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                              Appellate Court                          Date: 2018.06.25
                                                                       15:26:25 -05'00'




                   Pellico v. Mork, 2018 IL App (2d) 170468



Appellate Court   GREGORY PELLICO, Individually and as Beneficiary of the Evelyn
Caption           Pellico and Peter M. Pellico Trusts, Plaintiff-Appellant, v.
                  LORRAINE MORK, Executor of the Estate of Robert Mork,
                  Individually and as Former Du Page County Public Guardian;
                  JENNIFER MARTYN, Individually and as Former Assistant Du Page
                  County Public Guardian; and THE OFFICE OF THE DU PAGE
                  COUNTY PUBLIC GUARDIAN, Defendants (Lorraine Mork,
                  Executor of the Estate of Robert Mork, Individually and as Former
                  Du Page County Public Guardian, Defendant-Appellee).



District & No.    Second District
                  Docket No. 2-17-0468



Filed             March 23, 2018



Decision Under    Appeal from the Circuit Court of Du Page County, No. 16-L-445; the
Review            Hon. Dorothy French Mallen, Judge, presiding.



Judgment          Affirmed.


Counsel on        Richard C. Leng, of Law Offices of Richard C. Leng, of Barrington,
Appeal            for appellant.

                  Adam C. Kruse, of Walsh, Knippen & Cetina, Chtrd., of Wheaton, for
                  appellee.
     Panel                     JUSTICE McLAREN delivered the judgment of the court, with
                               opinion.
                               Justices Zenoff and Burke concurred in the judgment and opinion.


                                                 OPINION

¶1         Plaintiff, Gregory Pellico, individually and as beneficiary of the Evelyn Pellico and Peter
       M. Pellico Trusts, appeals the order of the circuit court of Du Page County dismissing his
       refiled lawsuit against defendant, Lorraine Mork, the executor of the estate of Robert Mork
       (Mork), now deceased,1 the former public guardian of Du Page County. The court dismissed
       plaintiff’s lawsuit as barred under the rule that allows only one refiling, under section 13-217
       of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 1994)).2 Plaintiff
       argues that the court erred by dismissing this case based on section 13-217 because plaintiff’s
       previous refiling occurred while his original case was still pending. Plaintiff also argues that
       defendant acquiesced to the multiple refilings. For the following reasons, we affirm.

¶2                                         I. BACKGROUND
¶3                                            A. First Filing
¶4         On April 12, 2013, plaintiff filed a complaint against defendant in the circuit court of
       Du Page County, case No. 13-L-333 (Case I), alleging breach of fiduciary duty in managing a
       trust and intentional infliction of emotional distress. On May 20, 2015, the complaint was
       voluntarily dismissed upon plaintiff’s motion.

¶5                                          B. Second Filing
¶6         On January 13, 2014, while Case I was still pending, plaintiff filed a complaint against
       defendant in the United States District Court for the Northern District of Illinois, case
       No. 14-CV-226 (Case II). Plaintiff alleged breach of fiduciary duty (failure to manage trusts),
       negligence (legal malpractice), denial of his civil due process rights, and intentional infliction
       of emotional distress. The case was stayed pending the resolution of Case I. After Case I was
       voluntarily dismissed on May 20, 2015, the stay was lifted in Case II. However, on January 28,
       2016, the federal court dismissed Case II for lack of federal subject-matter jurisdiction.

¶7                                           C. Third Filing
¶8         On May 17, 2016, plaintiff filed case No. 16-L-445 (Case III), the complaint at issue here,
       in the circuit court of Du Page County. On October 31, 2016, plaintiff filed an amended
       complaint alleging violation of his due process rights, breach of fiduciary duty (failure to

             1
            Robert I. Mork died on May 29, 2012.
             2
            Although section 13-217 of the Code was amended effective March 1995, the public act that
       enacted that amendment was later held to be unconstitutional in its entirety by the Illinois Supreme
       Court in Best v. Taylor Machine Works, 179 Ill. 2d 367, 378 (1997). The version of section 13-217
       currently in effect, therefore, is the version that was in effect prior to the March 1995 amendment.
       Hudson v. City of Chicago, 228 Ill. 2d 462, 469 n.1 (2008).

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       manage trusts), intentional infliction of emotional distress, and violation of the Probate Act of
       1975 (755 ILCS 5/1-1 et seq. (West 2016)).
¶9         Defendant moved for dismissal pursuant to sections 2-615, 2-619(a)(4), 2-619(a)(9), and
       2-619.1 of the Code (735 ILCS 5/2-615, 2-619(a)(4), 2-619(a)(9), 2-619.1 (West 2016)).
       Defendant argued that, pursuant to section 13-217 of the Code (735 ILCS 5/13-217 (West
       1994)), plaintiff’s case was barred by the single-refiling rule and should be dismissed under
       section 2-619(a)(4) and (a)(9) of the Code. Defendant also argued that Mork had absolute
       quasi-judicial immunity and sovereign immunity and that the case should be dismissed
       pursuant to section 2-619(a)(9); that, because res judicata barred all of plaintiff’s counts, the
       complaint should be dismissed pursuant to section 2-619(a)(4) and (a)(9); and that, because
       plaintiff failed to state a cause of action for a violation of his due process rights, this count
       should be dismissed pursuant to section 2-615.
¶ 10       On June 13, 2017, the trial court dismissed plaintiff’s complaint with prejudice on the basis
       that it was barred by the single-filing rule under section 13-217 of the Code. On June 19, 2017,
       plaintiff filed his notice of appeal.

¶ 11                                            II. ANALYSIS
¶ 12       Plaintiff argues that the trial court erred by dismissing his complaint pursuant to sections
       13-217 and 2-619 of the Code.
¶ 13       The purpose of a motion to dismiss under section 2-619 of the Code is to dispose of issues
       of law and easily proved issues of fact at the outset of litigation. Van Meter v. Darien Park
       District, 207 Ill. 2d 359, 367 (2003). A section 2-619 motion to dismiss admits as true all
       well-pleaded facts in the complaint, together with all reasonable inferences gleaned from those
       facts. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 18. In ruling on the motion, the trial court
       will interpret all pleadings and supporting documents in the light most favorable to the
       nonmoving party. Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 18. A section 2-619
       motion presents a question of law, which we review de novo. Id.
¶ 14       Section 13-217 provides a plaintiff with the absolute right to refile a complaint within one
       year or within the remaining limitations period, whichever is greater. Timberlake v. Illini
       Hospital, 175 Ill. 2d 159, 163 (1997). Section 13-217 provides in pertinent part:
               “In the actions specified in Article XIII of this Act or any other act or contract where
               the time for commencing an action is limited, if *** the action is voluntarily dismissed
               by the plaintiff, *** or the action is dismissed by a United States District Court for lack
               of jurisdiction, *** then, whether or not the time limitation for bringing such action
               expires during the pendency of such action, the plaintiff, his or her heirs, executors or
               administrators may commence a new action within one year or within the remaining
               period of limitation, whichever is greater, *** after the action is voluntarily dismissed
               by the plaintiff, *** or the action is dismissed by a United States District Court for lack
               of jurisdiction ***.” 735 ILCS 5/13-217 (West 1994).
¶ 15       Although not expressly provided in section 13-217, our supreme court has explained that
       the statute does not permit multiple refilings of the same action. Timberlake, 175 Ill. 2d at 163.
       Indeed, our supreme court has interpreted section 13-217 as permitting one, and only one,
       refiling of a claim. Id.



                                                    -3-
¶ 16        The parties do not dispute that Cases I, II, and III are the same action, based on the same
       operative facts. But plaintiff argues that the trial court erred by dismissing Case III as an
       improper third filing. Plaintiff contends that Case II does not count as his single refiling under
       the statute because he filed Case II while Case I was pending, before it was dismissed without
       prejudice. Consequently, plaintiff argues, after Case II was dismissed for lack of
       subject-matter jurisdiction, he properly filed Case III. Defendant counters that the trial court
       correctly ruled that Case III was barred by the single-refiling rule under section 13-217
       because the case had been filed and dismissed twice already.
¶ 17        In a similar case, Schrager v. Grossman, 321 Ill. App. 3d 750 (2000), the plaintiff filed the
       first case in April 1995 in the United States District Court for the Northern District of Illinois
       and that case was voluntarily dismissed in March 1997. Id. at 751-52. While the first case was
       pending, the plaintiff filed the second case in the circuit court of Lake County in March 1996.
       Id. at 752. The second case was removed to the federal court and was then involuntarily
       dismissed in February 1997. Id. In April 1996, the plaintiff filed the third case. Id. at 753. In
       March 1997, the plaintiff filed a fourth case in the circuit court of Cook County. Id. The trial
       court denied the defendants’ motion to dismiss based on section 13-217. Id. The appellate
       court held that the trial court erred by denying the defendants’ motion and rejected the
       plaintiff’s argument that the second case was not a refiling where it was commenced during the
       pendency and not following the dismissal of the first case. Id. at 754, 756, 759. The appellate
       court reasoned:
                “[T]he fact that [the second case] was the second claim filed but the first to be
                dismissed has no bearing on the determination of whether plaintiff has fully availed
                himself of the opportunity afforded by the statute to refile. It is clear plaintiff filed two
                separate, although identical, claims against defendants in two separate forums and both
                cases were involuntarily dismissed. Plaintiff now attempts to secure a third bite of the
                apple because the first bite turned sour. Unfortunately for plaintiff, the statute prohibits
                a third bite.” Id. at 756.
¶ 18        Like the plaintiff in Schrager, plaintiff here had already used his single opportunity to
       refile his claim by the time he filed the claim at bar. Plaintiff’s Case I was voluntarily
       dismissed, which is one of the dispositions enumerated in section 13-217. Case II was
       dismissed by the federal court for lack of jurisdiction, which is another disposition enumerated
       in section 13-217. Thus, plaintiff had already used his single opportunity to refile his claim by
       the time he filed Case III. Plaintiff cannot evade the one-refiling rule by noting that he filed
       Case II while Case I was pending. See id.
¶ 19        Plaintiff also argues that defendant acquiesced to his filing of Case III and to the filing of
       Case II while Case I was pending. Plaintiff contends that, after he filed Case II in the federal
       court, defendant thwarted his attempt to seek the voluntary dismissal of Case I. Plaintiff argues
       that defendant could have moved to dismiss Case I or Case II on the basis that the same cause
       was pending in another court.
¶ 20        The rule of acquiescence or invited error is a form of procedural default also described as
       estoppel. Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012,
       ¶ 33. The rule prohibits a party from requesting to proceed in one manner and then arguing on
       appeal that the requested action was error. Id. The rationale for the rule is that it would be
       manifestly unfair to grant a party relief based on an error that the party introduced into the
       proceedings. Id.

                                                     -4-
¶ 21       Plaintiff’s argument that defendant acquiesced to his multiple refilings of his claim is
       unsupported by the record. Defendant moved to dismiss Case I, moved to stay Case II pending
       the resolution of Case I, and moved to dismiss Case III. In addition, plaintiff moved to
       voluntarily dismiss Case I, Case II was dismissed for lack of federal subject-matter
       jurisdiction, and defendant argued in open court, before Case I was dismissed, that plaintiff had
       no basis for federal jurisdiction. Therefore, we reject plaintiff’s argument that defendant
       acquiesced to the multiple refilings of this case.

¶ 22                                      III. CONCLUSION
¶ 23      For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.

¶ 24      Affirmed.




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