                                    2018 IL App (1st) 163152


                                                                                FIRST DIVISION
                                                                                 February 5, 2018

                                          No. 1-16-3152

______________________________________________________________________________
                                         IN THE

                              APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT



ROSCOE GILES, as Special Representative and          ) Appeal from the Circuit Court of
Special Administrator of the Estate of Morris        ) Cook County, Law Division
Giles,                                               )
                                                     )
                      Plaintiff-Appellant,           )
                                                     ) No. 14 L 13240
v. 	                                                 )
                                                     )
ROBERT PARKS,                                        ) Honorable Janet Adams Brosnahan,
                                                     ) Judge Presiding
                      Defendant-Appellee.            )


       JUSTICE SIMON delivered the judgment of the court, with opinion.
       Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.

                                             OPINION

¶1     This case proves to be yet another reminder to attorneys and litigants about the

importance of complying with statutes of limitations and that the proper application of a

limitations period may produce results that seem harsh or undesirable. Plaintiff, whose brother

was killed, filed his case just a single day after the statute of limitations had run. On appeal,

plaintiff attempts to use the decedent’s legal disability as an excuse for his own untimely filing.

The Illinois Code of Civil Procedure does not permit the statutes to be used in the manner that
No. 1-16-3152


plaintiff advocates and, accordingly, we affirm the denial of plaintiff’s petition for relief from the

judgment.

¶2                                         BACKGROUND

¶3      On December 22, 2012, plaintiff’s decedent, Morris Giles, was walking through a

crosswalk when he was struck by defendant’s tow truck. Giles was unresponsive and

unconscious from the time of the collision until he died the next day at the hospital, on December

23, 2012.

¶4      Giles’s brother, plaintiff Roscoe Giles, retained an attorney to sue defendant. Exactly two

years after Giles died and two years and a day after the collision, this case was filed in Cook

County circuit court. The complaint had a single claim that plaintiff characterizes as a survival

claim, and the statute of limitations for the asserted cause of action is two years.

¶5      Before the limitations issue was litigated or before there was any other meaningful

activity in the case, the case was dismissed for want of prosecution. Plaintiff eventually hired

new counsel and filed a petition for relief from the judgment under section 2-1401 of the Illinois

Code of Civil Procedure (see 735 ILCS 5/2-1401 (West 2012)). That petition was filed on March

15, 2016.

¶6      In his petition for relief from the judgment, plaintiff presented evidence that his original

attorney had a minor stroke in October 2015 and was no longer authorized to practice law by the

time the petition was presented to the court. After some back and forth between the parties, it

became apparent that there was a real issue as to whether plaintiff acted with diligence in

prosecuting his original claim, with the ultimate question being whether the claim was barred by

the statute of limitations at the time it was filed.

¶7      Defendant took the position that the case was filed more than two years after the cause of



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action accrued. Plaintiff took the position that the claim was timely because Giles was under a

legal disability from the time he was struck until he died the next day, so the statute of

limitations was tolled for a day and the claim was, therefore, timely. Plaintiff also sought leave to

file a claim under the wrongful death statute where the statute of limitations accrues at the time

of the death rather than at the time of the injury. Plaintiff argued that his newly asserted wrongful

death claim should be considered to “relate back” to the date the complaint was filed because the

claim arises from the same transaction or occurrence as his original claim.

¶8      The trial court held a hearing but had the parties focus on addressing the propriety of

plaintiff’s arguments on the legal disability issue and on the applicability of the relation back

doctrine. The trial court issued a detailed and well-reasoned written order explaining its holding

that (1) any legal disability did not toll the statute of limitations, so the originally filed claim was

time barred, and (2) the new claim plaintiff wanted to assert could not relate back to an untimely

filed original pleading.

¶9                                           ANALYSIS

¶ 10    To begin, plaintiff essentially concedes that without the aid of a separate justifying

statute, the cause of action he asserts in his complaint is barred by the two-year statute of

limitations (735 ILCS 5/13-202 (West 2012)). Plaintiff admits that Giles was injured

traumatically on December 22, 2012, and that the case was not filed until December 23, 2014.

¶ 11    Actions for damages for an injury to the person shall be commenced within two years of

when the cause of action accrues. Id. Where the plaintiff’s injury is caused by a “ ‘sudden

traumatic event,’ ” the cause of action accrues immediately, and the statute of limitations begins

to run on the day the injury occurs. Golla v. General Motors Corp., 167 Ill. 2d 353, 362 (1995).

¶ 12    Therefore, in order to argue that his claim should avoid the statutory time bar, plaintiff



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relies on a combination of statutes that have the purpose of tolling or extending limitations

periods under certain circumstances. Plaintiff attempts to use two statutory sections that relate to

(1) time limitations for minors and persons under legal disability (735 ILCS 5/13-211 (West

2012)) and (2) time limitations when there is the death of a party (id. § 13-209). Plaintiff’s

position on appeal is that Giles’s cause of action was tolled by his immediate incapacitation and

resulting legal disability, so plaintiff is entitled to bring the claim until two years after the

disability was removed by Giles’s death—just as Giles could have done had he lived.

¶ 13   The statute pertaining to legal disability states that if the person entitled to bring an action

is under a legal disability at the time the cause of action accrues, then he or she may bring the

action within two years after the disability is removed. Id. § 13-211. The statute pertaining to the

death of a party states that, if the person entitled to bring an action dies before the expiration of

the time that the action must be filed and the cause of action survives the death, an action may be

commenced by his or her representative before the expiration of that time or within one year

from his or her death, whichever date is later. Id. § 13-209(a)(1).

¶ 14   Plaintiff seeks the benefit of both of those statutory sections: he wants the limitations

period to be tolled from the time of the collision until the decedent’s death, and he wants the

cause of action to survive for two years after that date—tacking one statutory extension onto the

other. According to plaintiff, section 13-209 gives him all the rights that Giles had, and section

13-211 saves his claim because, “had [Giles] survived,” Giles “could have brought a personal

injury action up to and including December 23, 2014, two years after his legal disability was

removed.” Plaintiff states that Giles’s “legal disability was removed on the day of his death.”

¶ 15   The statute dealing with legal disability is specific to and only applies to the person

suffering from the disability. Section 13-211 states that “[i]f the person entitled to bring an



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action” is under a legal disability, then “he or she may bring the action within 2 years after the

*** disability is removed.” (Emphases added). Id. § 13-211. The statute contemplates both that

the disability be removed at some point and that the injured party bring the action that would

otherwise be time barred. Id. The statute does not contemplate a representative bringing any

action at all, let alone an action two years after the disability is removed. Fess v. Parke, Davis &

Co., 113 Ill. App. 3d 133, 135 (1983) (the person under a disability, and “only that person[,] may

bring an action within two years after the disability is removed”); see also Swider v. Holy Cross

Hospital, 146 Ill. App. 3d 740, 742 (1986).

¶ 16   The cause of action that an injured party has and the one that the party’s representative

might have derivatively are treated differently. To borrow generously from and basically quote

Fess: the reason for tolling the statute of limitations for a person that is legally disabled is

that enforcement of that person’s right should not be left to the mercy of someone else. Fess,

113 Ill. App. 3d at 135. An exception for someone suffering a legal disability is necessary to

protect that person’s interests and preserve his day in court until he is able to bring suit on his

own behalf. Id. The injured person’s representative, who is not under any legal disability, is quite

capable of bringing suit within the two years of the injured person’s injury. Id. at 136.

Accordingly, plaintiff cannot invoke section 13-211 as a mechanism to toll the statute of

limitations.

¶ 17   So instead, since we must disregard any legal disability that Giles might have had insofar

as it concerns plaintiff’s rights, plaintiff had two years from the time of the injury or one year

from the time of death, whichever was later, to file the case. 735 ILCS 5/13-209(a)(1) (West

2012). Again, that is because, where there is a sudden traumatic injurious event, the cause of

action accrues, and the statute of limitations begins to run on the date the injury occurs. Golla,



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167 Ill. 2d at 362. Unfortunately for plaintiff, the case before us requires us to consider the rule

in terms of only a single day, but the length of the disability cannot be what prevents us from

correctly applying the law. Because the statute of limitations began to run on the date of Giles’s

injury, December 22, 2012, and the claim was not filed until December 23, 2014, plaintiff’s

claim is time barred.

¶ 18   A statute of limitations is by definition an arbitrary period after which all claims will be

cut off. Barragan v. Casco Design Corp., 216 Ill. 2d 435, 448 (2005). Sometimes the application

of a statute of limitations will produce seemingly capricious results. Hamil v. Vidal, 140 Ill. App.

3d 201, 204 (1985). Nevertheless, a statute of limitations must not be enlarged by judicial action

beyond the provision’s legislatively intended scope. Id. The statutory scheme simply does not

allow for plaintiff to use Giles’s legal disability as an excuse for not filing his own claim within

two years of the collision.

¶ 19   The purpose of section 2-1401 is to give litigants a chance after judgment is entered to

present facts to the court that, if known at the time the judgment was entered, would have

prevented the entry of judgment. BMO Harris Bank National Ass’n v. LaRosa, 2017 IL App (1st)

161159, ¶ 17. A section 2-1401 petition was not intended to allow a litigant to be relieved of the

consequences of his own mistake or negligence, and the burden is on the petitioner to rebut the

presumption that the judgment is correct and to demonstrate that there has been no lack of due

diligence. Malek v. Lederle Laboratories, 152 Ill. App. 3d 493, 497 (1987). To be entitled to

relief from a judgment under section 2-1401, the petitioner must set forth specific factual

allegations supporting (1) the existence of a meritorious claim or defense, (2) due diligence in

presenting the defense or claim to the trial court in the original action, and (3) due diligence in

filing the petition. BMO Harris Bank, 2017 IL App (1st) 161159, ¶ 13.



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¶ 20   Plaintiff offers no reason for his failure to file the case for more than two years. To the

extent plaintiff blames his attorney, it is well settled that litigants are bound by the mistakes or

negligence of their attorney. KNM Holdings, Inc. v. James, 2016 IL App (1st) 143008, ¶ 22.

A litigant has a duty to follow the progress of his or her case, and a section 2-1401 petition will

not relieve a litigant of the consequences of an attorney’s negligence. Id. In this case, the claim

was filed after the statute of limitations had run. There was a sudden and traumatic injury, but

plaintiff still did not file his case within two years. Accordingly, the claim was time barred, and

the trial court properly denied plaintiff’s petition for relief under section 2-1401.

¶ 21   As part of his petition for relief from the judgment, plaintiff asked the trial court for leave

to file a new claim for wrongful death. The trial court denied plaintiff’s request. Plaintiff argues

that his putative wrongful death claim relates back to the survival claim he filed and, since a

claim for wrongful death accrues when the decedent dies, it would be timely filed on December

23, 2014—exactly two years after the date Giles died.

¶ 22   The Illinois Code of Civil Procedure provides a process by which an amended pleading

can be held to relate back to the date that the original pleading was filed. 735 ILCS 5/2-616(b)

(West 2012). The statute provides that a cause of action set up in any amended pleading shall not

be barred by the lapse of time if the time to file had not expired when the original pleading was

filed and if it appears from the original and amended pleadings that the cause of action asserted

in the amended pleading grew out of the same transaction or occurrence as the one set up in the

original pleading. Id. Thus, the relation-back doctrine applies if (1) the original complaint was

timely filed and (2) the cause of action in the amended complaint grew out of the same

transaction or occurrence as the one alleged in the original complaint. Marek v. O.B. Gyne

Specialists II, S.C., 319 Ill. App. 3d 690, 696 (2001).



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¶ 23   As established above, the original complaint was not timely filed. What Giles seeks to do

is to relate back to an untimely filing by asserting a new cause of action that has a later accrual

date. The original filing was not timely, so no subsequent pleading can relate back to it. A party

cannot use the relation-back doctrine to assert a new claim that would have been timely had it

been filed originally in order to remedy an untimely filing.

¶ 24   Moreover, plaintiff is seeking leave to amend after a final judgment in the case has

already been entered. Parties do not have an absolute right to amend;  rather, the decision rests in

the sound discretion of the trial court. McDonald v. Lipov, 2014 IL App (2d) 130401, ¶ 47. We

will not disturb a trial court’s ruling on whether an amendment should be allowed unless the trial

court abuses its discretion. Id. Here, plaintiff let more than a year pass from the time his case was

dismissed until the time he tried to file a new claim. The trial court was under no obligation to

accept the amended pleading—asserted for the first time after plaintiff exhibited a lack of

diligence in pursuing his original claim. The trial court committed no error when it denied

plaintiff’s petition for relief from the judgment.

¶ 25                                      CONCLUSION

¶ 26   Accordingly, we affirm.

¶ 27   Affirmed.




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