Portwood v. Ford Motor Co.
Annotate this Case
FIRST DIVISION
September 8, 1997
No. 1-96-1181
GWENDOLYN PORTWOOD et al.,
Plaintiffs-Appellants,
v.
FORD MOTOR COMPANY,
Defendant-Appellee. )
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)
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)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Dorothy Kirie
Kinnaird,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
This appeal represents the latest chapter in a litigation
odyssey, Homeric in both size and duration, that spans two
decades. The most recent class action complaint sought relief
for 52 named plaintiffs--owners of certain Ford automobiles--and
all others similarly situated throughout the nation, against
defendant Ford Motor Company for damages and injuries caused by
certain allegedly defective vehicles it manufactured during the
1976-79 model years. Plaintiffs appeal the trial court's
dismissal of the complaint as time-barred, and we affirm. BACKGROUND[fn1]
Plaintiffs have filed five proposed nationwide class actions
related to these allegedly defective vehicles in four distinct
jurisdictions. Each action alleged that the vehicles would
suddenly jump out of park--that is, shift from park to reverse--
while left unattended. These "park to reverse" incidents
resulted in the injuries and property damage for which plaintiffs
have sought recovery. The proposed class actions are as follows:
(1) Walsh v. Ford Motor Co., No. 81-1998 (D.D.C., filed August
21, 1981); (2) Thoubboron v. Ford Motor Co., No. 91-CA-01642
(D.C. Super. Ct., filed February 6, 1991); (3) Doutt v. Ford
Motor Co., No. 212 (Pa. C. P. Phila. Co., filed April 1,
1991)(Doutt I); (4) Portwood v. Ford Motor Co., No. 91 CH 4442
(Ill. Cir. Ct. Cook Co., filed May 14, 1991), the present case
before this court; and (5) Doutt v. Ford Motor Co., No. 94 CH
3999 (Ill. Cir. Ct. Cook. Co., filed May 3, 1994)(Doutt
II).[fn2]
The only previous action directly relevant to our
disposition of this case is Walsh v. Ford Motor Co. On March 26,
1990--after nearly nine years of litigation--the United States
District Court for the District of Columbia ultimately denied
plaintiffs' motion for recertification as a class, due to the
unmanageability of the case as a class action. Walsh v. Ford
Motor Co., 130 F.R.D. 260, 277 (D.D.C. 1990); see also Walsh v.
Ford Motor Co., 130 F.R.D. 514 (D.D.C. 1990)(denying plaintiffs'
motion to reconsider). The court also dismissed the plaintiffs'
individual claims, noting that said claims failed to satisfy the
jurisdictional requirements of either the Magnuson-Moss Warranty
Act (15 U.S.C. 2301 et seq. (1981)) or federal diversity
jurisdiction (28 U.S.C. 1332 (1981)). Walsh, 130 F.R.D. at 277.
Plaintiffs filed a motion to reconsider the dismissal of their
individual claims, arguing that a multiparty action might be
maintained under Magnuson-Moss and the joinder provision of Rule
20 of the Federal Rules of Civil Procedure. Walsh v. Ford Motor
Co., 130 F.R.D. 514 (D.D.C. 1990). The trial court disagreed and
denied plaintiffs' motion on May 14, 1990. 130 F.R.D. at 516.
In October 1991, the United States Court of Appeals for the D.C.
Circuit dismissed plaintiffs' appeal on jurisdictional grounds.
Walsh v. Ford Motor Co., 945 F.2d 1188 (D.C. Cir. 1991).
Plaintiffs filed the present action, Portwood v. Ford Motor
Co., on May 14, 1991, precisely one year after their motion for
reconsideration was denied in Walsh. The complaint named 52
plaintiffs--47 of whom had been named in the earlier Walsh case.
Plaintiffs styled their complaint as a two-count action for
breach of warranty. Early on, the trial court stayed Portwood
because of the pending actions in other jurisdictions, but that
stay was reversed on a previous appeal to this court. Portwood
v. Ford Motor Co., No. 1-92-2098 (1st Dist. 1995)(unpublished
order under Supreme Court Rule 23). Eventually, plaintiffs
voluntarily dismissed their complaints in the other
jurisdictions, leaving Illinois as the sole forum in which their
claims remained pending. Finally, on March 6, 1996, the trial
court dismissed the Portwood complaint as time-barred.
When it dismissed the complaint, the trial court noted that
both sides agreed that the applicable statute of limitations was
found in section 2-725 of the Uniform Commercial Code--Sales
(UCC). Ill. Rev. Stat. 1991, ch. 26, par. 2-725 (now 810 ILCS
5/2-725 (West 1996)). That statute provides that any breach of
warranty action must be brought within four years of the delivery
of the goods at issue. The trial court, recognizing both that
plaintiffs filed this suit in 1991 and that the vehicles in
question were manufactured and sold in and around model years
1976-79, held that plaintiffs' breach of warranty action
"[o]bviously" did not fall within the necessary four-year period
and was therefore untimely. Plaintiffs argued (1) that the
limitations period under section 2-725 was tolled, or suspended,
from the date they filed Walsh (August 21, 1981) until the date
the district court dismissed the case in 1990[fn3] (citing
American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974), and Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983));
and (2) that the limitations period was extended an additional
year by operation of section 13-217 of the Code of Civil
Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-217 (now 735
ILCS 5/13-217 (West 1996))), the Illinois saving statute.
Accordingly, plaintiffs' theory made their May 14, 1991, filing
of Portwood a timely one. The trial court, however, rejected
plaintiffs' arguments, and we affirm the trial court's decision.
OPINION
The present appeal presents two issues before this court:
(1) whether American Pipe's tolling doctrine applies to toll the
Illinois statute of limitations even where a class action is
filed in a foreign jurisdiction, and (2) if tolling does not
apply, then which saving provision best applies to plaintiffs'
claims? We consider each issue in turn.
I
The initial question we must decide is whether the class
action tolling doctrine, as laid out in the United States Supreme
Court's decision in American Pipe and expanded in Crown, Cork &
Seal, applies to toll the limitations period in a jurisdiction
different from the one in which the original class action is
filed. American Pipe held that the filing of a federal class
action tolls the statute of limitations as to all asserted
members of a class who make timely motions to intervene after a
court denies class certification. American Pipe, 414 U.S. at
553-54, 38 L. Ed. 2d at 726-27, 94 S. Ct. at 766. Later, the
Court expanded this doctrine, ruling that a class action suspends
the limitations period as to asserted members of the class
whether they choose to intervene or file separate, individual
actions following the denial of class certification. Crown, Cork
& Seal, 462 U.S. at 354, 76 L. Ed. 2d at 636, 103 S. Ct. at 2397-
98. Plaintiffs correctly point out that the Illinois Supreme
Court adopted the American Pipe tolling doctrine for Illinois
class actions, albeit without discussion. Steinberg v. Chicago
Medical School, 69 Ill. 2d 320, 342, 371 N.E.2d 634, 645 (1977),
rev'g in part 41 Ill. App. 3d 804, 354 N.E.2d 586 (1976); see
also Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill. App.
3d 790, 629 N.E.2d 520 (1993)(discussing American Pipe, Crown,
Cork & Seal, and Steinberg). Defendant argues that neither the
United States Supreme Court nor the Illinois Supreme Court has
yet spoken on the issue of cross-jurisdictional tolling, and we
agree. Both American Pipe and Crown, Cork & Seal dealt with
cases in which the plaintiffs filed their class and individual
claims in federal court and, as noted above, our supreme court in
Steinberg adopted American Pipe's tolling doctrine without
discussion. Accordingly, we find this to be a case of first
impression in Illinois.
When it considered the viability of plaintiffs' complaint,
the trial court analyzed the class claims raised by the
plaintiffs and each of the individual claims of the 52 named
plaintiffs. In dismissing plaintiffs' class claims, the trial
court relied upon the reasoning of Korwek v. Hunt, 827 F.2d 874
(2d Cir. 1987), and Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir.
1987). These cases, among others, rejected the proposition that
the tolling doctrines laid out in American Pipe and Crown, Cork &
Seal should be extended to class members who file subsequent
class actions. Although we agree with the trial court's
interpretation of Korwek and Robbin, we need not decide this
issue regarding plaintiffs' class claims. Because we hold that
cross-jurisdictional tolling does not apply to save plaintiffs'
individual claims, their class claims must also fail. Landesman
v. General Motors Corp., 72 Ill. 2d 44, 377 N.E.2d 813 (1978)(if
the named plaintiff has no individual cause of action, any
attempted class action also fails).
In general, Illinois courts have resisted the notion that
the commencement of suit tolls the relevant statute of
limitations during the period that suit is pending. Baird &
Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill. App. 3d
59, 75, 387 N.E.2d 831, 845 (1979). The Illinois saving statute
expressly anticipates that a limitations period may expire during
the pendency of a prior suit, as it allows for a plaintiff to
refile "whether or not the time limitation for bringing such
action expires during the pendency of such [prior] action." Ill.
Rev. Stat. 1991, ch. 110, par. 13-217. We endorse the view
adopted by the District of Columbia Court of Appeals in the
related case of Thoubboron v. Ford Motor Co., 624 A.2d 1210 (D.C.
1993), in which many of the same plaintiffs filed a near-
identical complaint against the same defendant. That court
stated its unwillingness to establish--"by judicial fiat"--a
tolling exception that emasculated the legislatively enacted
statute of limitations. Thoubboron, 624 A.2d at 1213, citing
Bond v. Serano, 566 A.2d 47 (D.C. 1989). Although our supreme
court adopted the tolling doctrine of American Pipe in Steinberg,
we decline to further extend that doctrine to the case at hand.
We hold, therefore, that a class action filed in a foreign
judicial system does not operate to toll the duly enacted
limitations period in Illinois.
We believe our decision today best serves the interests of a
just and efficient legal system in Illinois. As defendant points
out in its brief, the Portwood complaint alleges that fraudulent
concealment on defendant's part tolled the UCC's four-year
limitations period until August 1981, when plaintiffs filed the
Walsh action. If American Pipe here applied as plaintiffs argue,
the doctrine would have tolled the limitations period throughout
the entire life of the Walsh action; thus, Portwood would have
been timely up to four years after Walsh's dismissal (that is,
until May 1994)--some 15 years after defendant delivered the last
of the allegedly defective vehicles. This theory would establish
the Illinois judiciary as a clearinghouse for stale class actions
from any of the 50 states, wherein classes that died in other
jurisdictions might breathe again in Illinois courts and at
Illinois' expense. We cannot read Steinberg as mandating this
court to ignore the legislature's manifest intent to set the
statute of limitations for warranty actions at four years.
Moreover, we are not persuaded by the authorities plaintiffs
cite in favor of cross-jurisdictional tolling. In Ganousis v.
E.I. duPont de Nemours & Co., 803 F. Supp. 149 (N.D. Ill. 1992),
the district court explicitly declined to rule on whether cross-
jurisdictional tolling applied, "because even giving plaintiffs
the benefit of the American Pipe-Crown, Cork & Seal rule, they
lose." 803 F. Supp. at 155 (plaintiffs were members of an
original class action in Minnesota, but filed subsequent
individual actions in federal court under Illinois law). In Lee
v. Grand Rapids Board of Education, 148 Mich. App. 364, 384 N.W.2d 165 (1986), the court held that a federal district court
action tolled the statute of limitations in a subsequently filed
state action. 148 Mich. App. at 369-70, 384 N.W.2d at 168.
However, the Michigan court relied upon a previous ruling in
which it interpreted Michigan's tolling statute (Ralph Schrader,
Inc. v. Ecclestone Chemical Co., 22 Mich. App. 213, 177 N.W.2d 241 (1970)(interpreting predecessor to Mich. Comp. Laws Ann.
600.5856 (West 1987)); Illinois law contains no such tolling
statute. As for the other cases cited by plaintiffs, we find
them to be either factually inapposite or nonbinding upon this
court.
II
Because we hold that cross-jurisdictional tolling does not
apply here, we must now determine which of two conflicting saving
provisions best applies to plaintiffs' claims--the one contained
in the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110,
par. 13-217)[fn4] or that provision included in the Uniform
Commercial Code section setting out the statute of limitations in
contracts of sale (Ill. Rev. Stat. 1991, ch. 26, par. 2-
725(3)).[fn5] Since no cross-jurisdictional tolling operated to
suspend the running of the four-year statute of limitations,
plaintiffs' action remains viable only if they filed their
Portwood complaint within the time period allotted by the
applicable saving provision. If the six-month provision of
section 2-725(3) of the UCC applies, plaintiffs' claims are time-
barred; if the one-year provision of section 13-217 of the Code
of Civil Procedure applies, then plaintiffs' claims may not be
time-barred. Because we find the saving provision of the UCC to
be the more applicable provision, we hold that the trial court
properly found plaintiffs' claims to be time-barred.
Section 2-725(3) governs plaintiffs' cause of action because
that section specifically deals with warranty actions upon
contracts for sale. "'[W]here there are two statutory
provisions, one of which is general and designed to apply to
cases generally, and the other is particular and relates to only
one subject, the particular provision must prevail.'" Hernon v.
E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195, 595 N.E.2d 561, 563 (1992), quoting Bowes v. City of Chicago, 3 Ill. 2d 175,
205, 120 N.E.2d 15, 31 (1954); see also In re Lifschultz Fast
Freight Corp., 63 F.3d 621, 629 (7th Cir. 1995)(when forced to
choose between specific statutory provisions and a general
savings clause, a court should err on the side of the specific
provision). We premise our conclusion that section 2-725(3) is
the more specific provision upon our view of the legislature's
intent in passing both sections 2-725(3) and 13-217.
As the Illinois Supreme Court has stated on several
occasions, "'[t]he cardinal rule of statutory construction, to
which all other canons and rules are subordinate, is to ascertain
and give effect to the true intent and meaning of the
legislature.'" Hernon, 149 Ill. 2d at 194, 595 N.E.2d at 562,
quoting People v. Boykin, 94 Ill. 2d 138, 141, 445 N.E.2d 1174,
1175 (1983); Cunningham v. Huffman, 154 Ill. 2d 398, 609 N.E.2d 321 (1993). The first step in determining legislative intent
requires a court to examine the statutory language. Hernon, 149 Ill. 2d at 194, 595 N.E.2d at 562; Cunningham, 154 Ill. 2d at
405, 609 N.E.2d at 325. Section 13-217 (the one-year saving
provision) applies to all "actions specified in Article XIII of
[the Code of Civil Procedure] or any other act or contract where
the time for commencing an action is limited." (Emphasis added.)
Ill. Rev. Stat. 1991, ch. 110, par. 13-217. Thus, the plain
language of section 13-217 indicates that it is a general, catch-
all saving provision; it applies to real estate actions, personal
injury actions, or "any other" action that might be subject to a
limitations period. Indeed, it would apply to warranty actions
in the absence of a more specific provision. The one-year saving
period of section 13-217 applies where, as here, an action is
dismissed by a United States District Court for lack of
jurisdiction. However, section 13-217 also applies in any of the
following instances: (1) a judgment in a plaintiff's favor is
reversed on appeal; (2) a verdict is in a plaintiff's favor but,
upon motion in arrest of judgment, judgment is entered against
plaintiff; (3) an action is voluntarily dismissed by the
plaintiff; or (4) an action is dismissed for want of
prosecution.[fn6] Ill. Rev. Stat. 1991, ch. 110, par. 13-217.
In contrast, subparagraph (3) of section 2-725 (the six-
month saving provision) specifically limits its application only
to those actions authorized by subparagraph (1) of that section--
actions for breach of a contract of sale (including actions for
breach of warranty). Ill. Rev. Stat. 1991, ch. 26, par. 2-
725(3). Moreover, the six-month saving provision itself is
limited: it applies where an action "is so terminated as to leave
available a remedy by another action for the same breach ***
unless the termination resulted from voluntary discontinuance or
from dismissal for failure or neglect to prosecute." Ill. Rev.
Stat. 1991, ch. 26, par. 2-725(3). It appears, then, that
section 2-725 not only applies to a narrower subject area than
section 13-217, but it also applies in even fewer circumstances
within that subject area.
Our reading of section 2-725(3) gives effect to the purpose
of this provision of the Uniform Commercial Code. As indicated
by the official Comment to UCC section 2-725, the provision was
designed "[t]o introduce a uniform statute of limitations for
sales contracts, thus eliminating the jurisdictional variations
and providing needed relief for concerns doing business on a
nationwide scale." U.C.C. 2-725, cmt. (1995). If we hold that
the one-year saving statute of the Code of Civil Procedure trumps
the six-month saving provision of UCC section 2-725, then we
resurrect the uncertainty and jurisdictional vagaries that the
UCC eliminated by tolerating different grace periods under each
jurisdiction's saving statute.
We also reject plaintiffs' argument that section 13-217
constitutes a "specific exception to the broader provision of UCC
2-725(3)" (emphasis in original). Initially, we note that the
language of the statute does not support plaintiffs'
interpretation. Furthermore, the proposed "specific exception"
engulfs the rule. As noted above, section 13-217 would apply in
this case in the absence of a more specific provision. Should
this court hold that section 13-217 applies to this case despite
the existence of a narrower provision, we would render that
narrower provision absurd, pointless and void. In Illinois, it
is a well-established rule of statutory construction that courts
shall avoid any construction that renders a statute meaningless
or void. Hernon, 149 Ill. 2d at 195, citing Harris v. Manor
Healthcare Corp., 111 Ill. 2d 350, 362-63 (1986), People v.
Tarlton, 91 Ill. 2d 1 (1982), and People v. Lutz, 73 Ill. 2d 204
(1978). Because we presume the legislature did not intend to
adopt a meaningless provision, we cannot accept plaintiffs'
position.
Plaintiffs point out that the General Assembly amended
section 13-217 to include dismissals from a United States
District Court for lack of jurisdiction in 1980, long after it
adopted the UCC in the early 1960s; consequently, plaintiffs
argue, section 13-217 should control over UCC section 2-725(3).
This argument fails to recognize another fundamental axiom of
statutory construction: "a more specific statute will be given
precedence over a more general one, regardless of their temporal
sequence." United States v. Olinger, 759 F.2d 1293, 1299 (7th
Cir. 1985), citing Prieser v. Rodriguez, 411 U.S. 475, 489-90, 36 L. Ed. 2d 439, 450, 93 S. Ct. 1827, 1836-37 (1973), rev'g
Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972).
Finally, plaintiffs' interpretation of section 13-217
facilitates forum shopping, a result that the legislature could
not have intended. This epic litigation has crept ever westward
in the hope of finding a hospitable forum. The history of this
case indicates that plaintiffs have filed two virtually identical
complaints (Thoubboron and Doutt I) in two other jurisdictions
prior to the filing of their complaint in this matter; then,
subsequent to the Portwood complaint, plaintiffs filed yet
another complaint in this jurisdiction (Doutt II). In Doutt II,
plaintiffs' counsel admitted that he expected the Pennsylvania
court to find Doutt I time-barred; as a result, plaintiffs sought
to litigate in Illinois. Doutt v. Ford Motor Company, 276 Ill.
App. 3d 785, 790, 659 N.E.2d 89, 93 (1995)(Doutt II). The trial
court described plaintiffs' tactics as an obvious case of forum
shopping. Doutt II, 276 Ill. App. 3d at 790, 659 N.E.2d at 93.
We agree with that characterization. Section 13-217 should not
be used as a tool to circumvent the statute of limitations, as
that result would frustrate the legislature's intent in
establishing a limitations period. White v. Tucker, 53 Ill. App.
3d 862, 867, 369 N.E.2d 90, 94 (1977)(interpreting section 24
(Ill. Rev. Stat. 1975, ch. 83, par. 24a) the predecessor to
section 13-217); see also Kahle v. John Deere Co., 104 Ill. 2d 302, 310-11, 472 N.E.2d 787, 791 (1984)(Ryan, J.,
concurring)(section 13-217 "should not be abused by using the
statute as a means of forum shopping").
The cases plaintiffs cite in support of their position are
distinguishable from the facts of this case, in that those cases
did not require a court to choose between two applicable saving
provisions. In Roth v. Northern Assurance Co., 32 Ill. 2d 40,
203 N.E.2d 415 (1964), rev'g 46 Ill. App. 2d 253, 196 N.E.2d 389
(1964), our supreme court held that the former Illinois saving
statute (section 24) extended a contractual limitations period
contained in an insurance policy. Plaintiffs also rely upon
Limer v. Liman, 241 Ill. App. 3d 125, 608 N.E.2d 918 (1993),
which dealt with a conflict between section 13-217 and the
medical malpractice statute of repose (Ill. Rev. Stat. 1991, ch.
110, par. 13-212). The court noted that nothing in the medical
malpractice statute of repose indicated a legislative intent to
avoid the remedial provision of section 13-217 (Limer, 241 Ill.
App. 3d at 128, 608 N.E.2d at 920); in contrast, the very fact
that section 2-725 of the UCC includes its own saving provision
demonstrates a legislative intent to alter the effect of the Code
of Civil Procedure's general saving statute, section 13-217, at
least with respect to actions on a contract of sale. Finally,
plaintiffs mischaracterize Bethlehem Steel Corp. v. Chicago
Eastern Corp., 863 F.2d 508 (7th Cir. 1988), asserting that that
court found a section of the Code of Civil Procedure[fn7] to
constitute a specific exception to the broader UCC section 2-
725(3). In fact, Bethlehem Steel never even mentioned section 2-
725(3); instead, the seventh circuit held that Chicago Eastern's
counterclaims were governed by the counterclaim provision of the
Code rather than the four-year limitations period of the UCC.
863 F.2d at 511-12. Accordingly, we find that plaintiffs'
authorities do not support their construction of section 13-217.
CONCLUSION
Our decision today may have negative ramifications with
respect to unnamed plaintiffs in a class action, as such
plaintiffs may experience more difficulty in having the merits of
their claims heard. However, our decision does not foreclose a
hearing on the merits for such plaintiffs. In a worst-case
scenario, an unnamed plaintiff in a federal class action may see
his or her state claims time-barred as a result of our rejection
of cross-jurisdictional tolling. Yet, even if this occurs, and
that plaintiff's federal class is denied certification, under
American Pipe the plaintiff may still pursue his claim in federal
court. Furthermore, should that plaintiff's federal claim be
dismissed for lack of jurisdiction, he or she may still take
advantage of the proper saving provision and file the claim in
Illinois.
In the instant case, the trial court properly found that the
American Pipe tolling doctrine did not apply to toll the statute
of limitations on plaintiffs' class claims under Illinois law.
For the reasons given in part I above, we affirm this part of the
trial court's order. Furthermore, although plaintiffs themselves
acknowledged that the four-year statute of limitations of UCC
section 2-725 applied to their action--and hence should have
known that the six-month saving provision of section 2-725(3)
might also apply--they chose to wait an entire year before filing
their complaint in Illinois. The trial court concluded that
section 2-725(3), as the more specific saving provision, applied
to bar plaintiffs' claims. For the reasons given in part II
above, we agree. As such, we affirm the March 6, 1996, order of
the trial court.
Affirmed.
TULLY, P.J., and CERDA, J., concur.
[fn1]For purposes of our review, we state only those facts
relevant to the present appeal. For a more exhaustive discussion
of the facts and procedural history of the case, we direct the
reader to this court's earlier opinion in Doutt v. Ford Motor
Co., 276 Ill. App. 3d 785, 659 N.E.2d 89 (1995)(Doutt II). That
case was before the same trial court, and it presented virtually
identical issues between the same parties on the same facts.
Although filed later than the present action, Doutt II was
quickly dismissed on the basis that it constituted duplicative
litigation, a finding affirmed by this court on appeal.
[fn2]Apparently, plaintiffs filed Doutt II because the
Pennsylvania action, Doutt I, had been stayed. Curiously,
plaintiffs themselves requested the stay in the Pennsylvania
action. Doutt II, 276 Ill. App. 3d at 790-91, 659 N.E.2d at 93.
[fn3]As pointed out by the trial court, the parties dispute
which day the 1990 dismissal became effective: defendant claims
the effective dismissal date was March 29, 1990; plaintiffs
assert May 14, 1990, as the effective date. The trial court
found it unnecessary to resolve this dispute, and so do we.
[fn4]At the time this action was filed, section 13-217 (Ill.
Rev. Stat. 1991, ch. 110, par. 13-217) provided:
"Reversal or dismissal. 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 judgment is entered for the plaintiff but
reversed on appeal, or if there is a verdict in favor
of the plaintiff and, upon a motion in arrest of
judgment, the judgment is entered against the
plaintiff, or the action is voluntarily dismissed by
the plaintiff, or the action is dismissed for want of
prosecution, 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 such judgment is reversed
or entered against the plaintiff, or after the action
is voluntarily dismissed by the plaintiff, or the
action is dismissed for want of prosecution, or the
action is dismissed by a United States District Court
for lack of jurisdiction." (Emphasis added.)
[fn5]Section 2-725 (Ill. Rev. Stat. 1991, ch. 26,
par. 2-725) provided in part:
"(1) An action for breach of any contract for sale
must be commenced within 4 years after the cause of
action has accrued. By the original agreement the
parties may reduce the period of limitation to not less
than one year but may not extend it.
***
(3) Where an action commenced within the time
limited by subsection (1) is so terminated as to leave
available a remedy by another action for the same
breach such other action may be commenced after the
expiration of the time limited and within 6 months
after the termination of the first action unless the
termination resulted from voluntary discontinuance or
from dismissal for failure or neglect to prosecute."
(Emphasis added.)
[fn6]Since this case was filed, section 13-217 has
been amended twice by the legislature. While the
provision no longer applies to voluntary dismissals and
dismissals for want of prosecution (Pub. Act 89-7, eff.
March 9, 1995), it does now apply to dismissals from
federal court for improper venue (Pub. Act. 87-1252,
2, eff. January 7, 1993).
[fn7]Section 13-207 (Ill. Rev. Stat. 1991, ch.
110, par. 13-207 (now 735 ILCS 5/13-207 (West 1996))),
setting forth the limitations period for filing defense
counterclaims.
September 8, 1997
No. 1-96-1181
GWENDOLYN PORTWOOD et al.,
Plaintiffs-Appellants,
v.
FORD MOTOR COMPANY,
Defendant-Appellee. )
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Dorothy Kirie
Kinnaird,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
This appeal represents the latest chapter in a litigation
odyssey, Homeric in both size and duration, that spans two
decades. The most recent class action complaint sought relief
for 52 named plaintiffs--owners of certain Ford automobiles--and
all others similarly situated throughout the nation, against
defendant Ford Motor Company for damages and injuries caused by
certain allegedly defective vehicles it manufactured during the
1976-79 model years. Plaintiffs appeal the trial court's
dismissal of the complaint as time-barred, and we affirm. BACKGROUND[fn1]
Plaintiffs have filed five proposed nationwide class actions
related to these allegedly defective vehicles in four distinct
jurisdictions. Each action alleged that the vehicles would
suddenly jump out of park--that is, shift from park to reverse--
while left unattended. These "park to reverse" incidents
resulted in the injuries and property damage for which plaintiffs
have sought recovery. The proposed class actions are as follows:
(1) Walsh v. Ford Motor Co., No. 81-1998 (D.D.C., filed August
21, 1981); (2) Thoubboron v. Ford Motor Co., No. 91-CA-01642
(D.C. Super. Ct., filed February 6, 1991); (3) Doutt v. Ford
Motor Co., No. 212 (Pa. C. P. Phila. Co., filed April 1,
1991)(Doutt I); (4) Portwood v. Ford Motor Co., No. 91 CH 4442
(Ill. Cir. Ct. Cook Co., filed May 14, 1991), the present case
before this court; and (5) Doutt v. Ford Motor Co., No. 94 CH
3999 (Ill. Cir. Ct. Cook. Co., filed May 3, 1994)(Doutt
II).[fn2]
The only previous action directly relevant to our
disposition of this case is Walsh v. Ford Motor Co. On March 26,
1990--after nearly nine years of litigation--the United States
District Court for the District of Columbia ultimately denied
plaintiffs' motion for recertification as a class, due to the
unmanageability of the case as a class action. Walsh v. Ford
Motor Co., 130 F.R.D. 260, 277 (D.D.C. 1990); see also Walsh v.
Ford Motor Co., 130 F.R.D. 514 (D.D.C. 1990)(denying plaintiffs'
motion to reconsider). The court also dismissed the plaintiffs'
individual claims, noting that said claims failed to satisfy the
jurisdictional requirements of either the Magnuson-Moss Warranty
Act (15 U.S.C. 2301 et seq. (1981)) or federal diversity
jurisdiction (28 U.S.C. 1332 (1981)). Walsh, 130 F.R.D. at 277.
Plaintiffs filed a motion to reconsider the dismissal of their
individual claims, arguing that a multiparty action might be
maintained under Magnuson-Moss and the joinder provision of Rule
20 of the Federal Rules of Civil Procedure. Walsh v. Ford Motor
Co., 130 F.R.D. 514 (D.D.C. 1990). The trial court disagreed and
denied plaintiffs' motion on May 14, 1990. 130 F.R.D. at 516.
In October 1991, the United States Court of Appeals for the D.C.
Circuit dismissed plaintiffs' appeal on jurisdictional grounds.
Walsh v. Ford Motor Co., 945 F.2d 1188 (D.C. Cir. 1991).
Plaintiffs filed the present action, Portwood v. Ford Motor
Co., on May 14, 1991, precisely one year after their motion for
reconsideration was denied in Walsh. The complaint named 52
plaintiffs--47 of whom had been named in the earlier Walsh case.
Plaintiffs styled their complaint as a two-count action for
breach of warranty. Early on, the trial court stayed Portwood
because of the pending actions in other jurisdictions, but that
stay was reversed on a previous appeal to this court. Portwood
v. Ford Motor Co., No. 1-92-2098 (1st Dist. 1995)(unpublished
order under Supreme Court Rule 23). Eventually, plaintiffs
voluntarily dismissed their complaints in the other
jurisdictions, leaving Illinois as the sole forum in which their
claims remained pending. Finally, on March 6, 1996, the trial
court dismissed the Portwood complaint as time-barred.
When it dismissed the complaint, the trial court noted that
both sides agreed that the applicable statute of limitations was
found in section 2-725 of the Uniform Commercial Code--Sales
(UCC). Ill. Rev. Stat. 1991, ch. 26, par. 2-725 (now 810 ILCS
5/2-725 (West 1996)). That statute provides that any breach of
warranty action must be brought within four years of the delivery
of the goods at issue. The trial court, recognizing both that
plaintiffs filed this suit in 1991 and that the vehicles in
question were manufactured and sold in and around model years
1976-79, held that plaintiffs' breach of warranty action
"[o]bviously" did not fall within the necessary four-year period
and was therefore untimely. Plaintiffs argued (1) that the
limitations period under section 2-725 was tolled, or suspended,
from the date they filed Walsh (August 21, 1981) until the date
the district court dismissed the case in 1990[fn3] (citing
American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974), and Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983));
and (2) that the limitations period was extended an additional
year by operation of section 13-217 of the Code of Civil
Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-217 (now 735
ILCS 5/13-217 (West 1996))), the Illinois saving statute.
Accordingly, plaintiffs' theory made their May 14, 1991, filing
of Portwood a timely one. The trial court, however, rejected
plaintiffs' arguments, and we affirm the trial court's decision.
OPINION
The present appeal presents two issues before this court:
(1) whether American Pipe's tolling doctrine applies to toll the
Illinois statute of limitations even where a class action is
filed in a foreign jurisdiction, and (2) if tolling does not
apply, then which saving provision best applies to plaintiffs'
claims? We consider each issue in turn.
I
The initial question we must decide is whether the class
action tolling doctrine, as laid out in the United States Supreme
Court's decision in American Pipe and expanded in Crown, Cork &
Seal, applies to toll the limitations period in a jurisdiction
different from the one in which the original class action is
filed. American Pipe held that the filing of a federal class
action tolls the statute of limitations as to all asserted
members of a class who make timely motions to intervene after a
court denies class certification. American Pipe, 414 U.S. at
553-54, 38 L. Ed. 2d at 726-27, 94 S. Ct. at 766. Later, the
Court expanded this doctrine, ruling that a class action suspends
the limitations period as to asserted members of the class
whether they choose to intervene or file separate, individual
actions following the denial of class certification. Crown, Cork
& Seal, 462 U.S. at 354, 76 L. Ed. 2d at 636, 103 S. Ct. at 2397-
98. Plaintiffs correctly point out that the Illinois Supreme
Court adopted the American Pipe tolling doctrine for Illinois
class actions, albeit without discussion. Steinberg v. Chicago
Medical School, 69 Ill. 2d 320, 342, 371 N.E.2d 634, 645 (1977),
rev'g in part 41 Ill. App. 3d 804, 354 N.E.2d 586 (1976); see
also Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill. App.
3d 790, 629 N.E.2d 520 (1993)(discussing American Pipe, Crown,
Cork & Seal, and Steinberg). Defendant argues that neither the
United States Supreme Court nor the Illinois Supreme Court has
yet spoken on the issue of cross-jurisdictional tolling, and we
agree. Both American Pipe and Crown, Cork & Seal dealt with
cases in which the plaintiffs filed their class and individual
claims in federal court and, as noted above, our supreme court in
Steinberg adopted American Pipe's tolling doctrine without
discussion. Accordingly, we find this to be a case of first
impression in Illinois.
When it considered the viability of plaintiffs' complaint,
the trial court analyzed the class claims raised by the
plaintiffs and each of the individual claims of the 52 named
plaintiffs. In dismissing plaintiffs' class claims, the trial
court relied upon the reasoning of Korwek v. Hunt, 827 F.2d 874
(2d Cir. 1987), and Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir.
1987). These cases, among others, rejected the proposition that
the tolling doctrines laid out in American Pipe and Crown, Cork &
Seal should be extended to class members who file subsequent
class actions. Although we agree with the trial court's
interpretation of Korwek and Robbin, we need not decide this
issue regarding plaintiffs' class claims. Because we hold that
cross-jurisdictional tolling does not apply to save plaintiffs'
individual claims, their class claims must also fail. Landesman
v. General Motors Corp., 72 Ill. 2d 44, 377 N.E.2d 813 (1978)(if
the named plaintiff has no individual cause of action, any
attempted class action also fails).
In general, Illinois courts have resisted the notion that
the commencement of suit tolls the relevant statute of
limitations during the period that suit is pending. Baird &
Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill. App. 3d
59, 75, 387 N.E.2d 831, 845 (1979). The Illinois saving statute
expressly anticipates that a limitations period may expire during
the pendency of a prior suit, as it allows for a plaintiff to
refile "whether or not the time limitation for bringing such
action expires during the pendency of such [prior] action." Ill.
Rev. Stat. 1991, ch. 110, par. 13-217. We endorse the view
adopted by the District of Columbia Court of Appeals in the
related case of Thoubboron v. Ford Motor Co., 624 A.2d 1210 (D.C.
1993), in which many of the same plaintiffs filed a near-
identical complaint against the same defendant. That court
stated its unwillingness to establish--"by judicial fiat"--a
tolling exception that emasculated the legislatively enacted
statute of limitations. Thoubboron, 624 A.2d at 1213, citing
Bond v. Serano, 566 A.2d 47 (D.C. 1989). Although our supreme
court adopted the tolling doctrine of American Pipe in Steinberg,
we decline to further extend that doctrine to the case at hand.
We hold, therefore, that a class action filed in a foreign
judicial system does not operate to toll the duly enacted
limitations period in Illinois.
We believe our decision today best serves the interests of a
just and efficient legal system in Illinois. As defendant points
out in its brief, the Portwood complaint alleges that fraudulent
concealment on defendant's part tolled the UCC's four-year
limitations period until August 1981, when plaintiffs filed the
Walsh action. If American Pipe here applied as plaintiffs argue,
the doctrine would have tolled the limitations period throughout
the entire life of the Walsh action; thus, Portwood would have
been timely up to four years after Walsh's dismissal (that is,
until May 1994)--some 15 years after defendant delivered the last
of the allegedly defective vehicles. This theory would establish
the Illinois judiciary as a clearinghouse for stale class actions
from any of the 50 states, wherein classes that died in other
jurisdictions might breathe again in Illinois courts and at
Illinois' expense. We cannot read Steinberg as mandating this
court to ignore the legislature's manifest intent to set the
statute of limitations for warranty actions at four years.
Moreover, we are not persuaded by the authorities plaintiffs
cite in favor of cross-jurisdictional tolling. In Ganousis v.
E.I. duPont de Nemours & Co., 803 F. Supp. 149 (N.D. Ill. 1992),
the district court explicitly declined to rule on whether cross-
jurisdictional tolling applied, "because even giving plaintiffs
the benefit of the American Pipe-Crown, Cork & Seal rule, they
lose." 803 F. Supp. at 155 (plaintiffs were members of an
original class action in Minnesota, but filed subsequent
individual actions in federal court under Illinois law). In Lee
v. Grand Rapids Board of Education, 148 Mich. App. 364, 384 N.W.2d 165 (1986), the court held that a federal district court
action tolled the statute of limitations in a subsequently filed
state action. 148 Mich. App. at 369-70, 384 N.W.2d at 168.
However, the Michigan court relied upon a previous ruling in
which it interpreted Michigan's tolling statute (Ralph Schrader,
Inc. v. Ecclestone Chemical Co., 22 Mich. App. 213, 177 N.W.2d 241 (1970)(interpreting predecessor to Mich. Comp. Laws Ann.
600.5856 (West 1987)); Illinois law contains no such tolling
statute. As for the other cases cited by plaintiffs, we find
them to be either factually inapposite or nonbinding upon this
court.
II
Because we hold that cross-jurisdictional tolling does not
apply here, we must now determine which of two conflicting saving
provisions best applies to plaintiffs' claims--the one contained
in the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110,
par. 13-217)[fn4] or that provision included in the Uniform
Commercial Code section setting out the statute of limitations in
contracts of sale (Ill. Rev. Stat. 1991, ch. 26, par. 2-
725(3)).[fn5] Since no cross-jurisdictional tolling operated to
suspend the running of the four-year statute of limitations,
plaintiffs' action remains viable only if they filed their
Portwood complaint within the time period allotted by the
applicable saving provision. If the six-month provision of
section 2-725(3) of the UCC applies, plaintiffs' claims are time-
barred; if the one-year provision of section 13-217 of the Code
of Civil Procedure applies, then plaintiffs' claims may not be
time-barred. Because we find the saving provision of the UCC to
be the more applicable provision, we hold that the trial court
properly found plaintiffs' claims to be time-barred.
Section 2-725(3) governs plaintiffs' cause of action because
that section specifically deals with warranty actions upon
contracts for sale. "'[W]here there are two statutory
provisions, one of which is general and designed to apply to
cases generally, and the other is particular and relates to only
one subject, the particular provision must prevail.'" Hernon v.
E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195, 595 N.E.2d 561, 563 (1992), quoting Bowes v. City of Chicago, 3 Ill. 2d 175,
205, 120 N.E.2d 15, 31 (1954); see also In re Lifschultz Fast
Freight Corp., 63 F.3d 621, 629 (7th Cir. 1995)(when forced to
choose between specific statutory provisions and a general
savings clause, a court should err on the side of the specific
provision). We premise our conclusion that section 2-725(3) is
the more specific provision upon our view of the legislature's
intent in passing both sections 2-725(3) and 13-217.
As the Illinois Supreme Court has stated on several
occasions, "'[t]he cardinal rule of statutory construction, to
which all other canons and rules are subordinate, is to ascertain
and give effect to the true intent and meaning of the
legislature.'" Hernon, 149 Ill. 2d at 194, 595 N.E.2d at 562,
quoting People v. Boykin, 94 Ill. 2d 138, 141, 445 N.E.2d 1174,
1175 (1983); Cunningham v. Huffman, 154 Ill. 2d 398, 609 N.E.2d 321 (1993). The first step in determining legislative intent
requires a court to examine the statutory language. Hernon, 149 Ill. 2d at 194, 595 N.E.2d at 562; Cunningham, 154 Ill. 2d at
405, 609 N.E.2d at 325. Section 13-217 (the one-year saving
provision) applies to all "actions specified in Article XIII of
[the Code of Civil Procedure] or any other act or contract where
the time for commencing an action is limited." (Emphasis added.)
Ill. Rev. Stat. 1991, ch. 110, par. 13-217. Thus, the plain
language of section 13-217 indicates that it is a general, catch-
all saving provision; it applies to real estate actions, personal
injury actions, or "any other" action that might be subject to a
limitations period. Indeed, it would apply to warranty actions
in the absence of a more specific provision. The one-year saving
period of section 13-217 applies where, as here, an action is
dismissed by a United States District Court for lack of
jurisdiction. However, section 13-217 also applies in any of the
following instances: (1) a judgment in a plaintiff's favor is
reversed on appeal; (2) a verdict is in a plaintiff's favor but,
upon motion in arrest of judgment, judgment is entered against
plaintiff; (3) an action is voluntarily dismissed by the
plaintiff; or (4) an action is dismissed for want of
prosecution.[fn6] Ill. Rev. Stat. 1991, ch. 110, par. 13-217.
In contrast, subparagraph (3) of section 2-725 (the six-
month saving provision) specifically limits its application only
to those actions authorized by subparagraph (1) of that section--
actions for breach of a contract of sale (including actions for
breach of warranty). Ill. Rev. Stat. 1991, ch. 26, par. 2-
725(3). Moreover, the six-month saving provision itself is
limited: it applies where an action "is so terminated as to leave
available a remedy by another action for the same breach ***
unless the termination resulted from voluntary discontinuance or
from dismissal for failure or neglect to prosecute." Ill. Rev.
Stat. 1991, ch. 26, par. 2-725(3). It appears, then, that
section 2-725 not only applies to a narrower subject area than
section 13-217, but it also applies in even fewer circumstances
within that subject area.
Our reading of section 2-725(3) gives effect to the purpose
of this provision of the Uniform Commercial Code. As indicated
by the official Comment to UCC section 2-725, the provision was
designed "[t]o introduce a uniform statute of limitations for
sales contracts, thus eliminating the jurisdictional variations
and providing needed relief for concerns doing business on a
nationwide scale." U.C.C. 2-725, cmt. (1995). If we hold that
the one-year saving statute of the Code of Civil Procedure trumps
the six-month saving provision of UCC section 2-725, then we
resurrect the uncertainty and jurisdictional vagaries that the
UCC eliminated by tolerating different grace periods under each
jurisdiction's saving statute.
We also reject plaintiffs' argument that section 13-217
constitutes a "specific exception to the broader provision of UCC
2-725(3)" (emphasis in original). Initially, we note that the
language of the statute does not support plaintiffs'
interpretation. Furthermore, the proposed "specific exception"
engulfs the rule. As noted above, section 13-217 would apply in
this case in the absence of a more specific provision. Should
this court hold that section 13-217 applies to this case despite
the existence of a narrower provision, we would render that
narrower provision absurd, pointless and void. In Illinois, it
is a well-established rule of statutory construction that courts
shall avoid any construction that renders a statute meaningless
or void. Hernon, 149 Ill. 2d at 195, citing Harris v. Manor
Healthcare Corp., 111 Ill. 2d 350, 362-63 (1986), People v.
Tarlton, 91 Ill. 2d 1 (1982), and People v. Lutz, 73 Ill. 2d 204
(1978). Because we presume the legislature did not intend to
adopt a meaningless provision, we cannot accept plaintiffs'
position.
Plaintiffs point out that the General Assembly amended
section 13-217 to include dismissals from a United States
District Court for lack of jurisdiction in 1980, long after it
adopted the UCC in the early 1960s; consequently, plaintiffs
argue, section 13-217 should control over UCC section 2-725(3).
This argument fails to recognize another fundamental axiom of
statutory construction: "a more specific statute will be given
precedence over a more general one, regardless of their temporal
sequence." United States v. Olinger, 759 F.2d 1293, 1299 (7th
Cir. 1985), citing Prieser v. Rodriguez, 411 U.S. 475, 489-90, 36 L. Ed. 2d 439, 450, 93 S. Ct. 1827, 1836-37 (1973), rev'g
Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972).
Finally, plaintiffs' interpretation of section 13-217
facilitates forum shopping, a result that the legislature could
not have intended. This epic litigation has crept ever westward
in the hope of finding a hospitable forum. The history of this
case indicates that plaintiffs have filed two virtually identical
complaints (Thoubboron and Doutt I) in two other jurisdictions
prior to the filing of their complaint in this matter; then,
subsequent to the Portwood complaint, plaintiffs filed yet
another complaint in this jurisdiction (Doutt II). In Doutt II,
plaintiffs' counsel admitted that he expected the Pennsylvania
court to find Doutt I time-barred; as a result, plaintiffs sought
to litigate in Illinois. Doutt v. Ford Motor Company, 276 Ill.
App. 3d 785, 790, 659 N.E.2d 89, 93 (1995)(Doutt II). The trial
court described plaintiffs' tactics as an obvious case of forum
shopping. Doutt II, 276 Ill. App. 3d at 790, 659 N.E.2d at 93.
We agree with that characterization. Section 13-217 should not
be used as a tool to circumvent the statute of limitations, as
that result would frustrate the legislature's intent in
establishing a limitations period. White v. Tucker, 53 Ill. App.
3d 862, 867, 369 N.E.2d 90, 94 (1977)(interpreting section 24
(Ill. Rev. Stat. 1975, ch. 83, par. 24a) the predecessor to
section 13-217); see also Kahle v. John Deere Co., 104 Ill. 2d 302, 310-11, 472 N.E.2d 787, 791 (1984)(Ryan, J.,
concurring)(section 13-217 "should not be abused by using the
statute as a means of forum shopping").
The cases plaintiffs cite in support of their position are
distinguishable from the facts of this case, in that those cases
did not require a court to choose between two applicable saving
provisions. In Roth v. Northern Assurance Co., 32 Ill. 2d 40,
203 N.E.2d 415 (1964), rev'g 46 Ill. App. 2d 253, 196 N.E.2d 389
(1964), our supreme court held that the former Illinois saving
statute (section 24) extended a contractual limitations period
contained in an insurance policy. Plaintiffs also rely upon
Limer v. Liman, 241 Ill. App. 3d 125, 608 N.E.2d 918 (1993),
which dealt with a conflict between section 13-217 and the
medical malpractice statute of repose (Ill. Rev. Stat. 1991, ch.
110, par. 13-212). The court noted that nothing in the medical
malpractice statute of repose indicated a legislative intent to
avoid the remedial provision of section 13-217 (Limer, 241 Ill.
App. 3d at 128, 608 N.E.2d at 920); in contrast, the very fact
that section 2-725 of the UCC includes its own saving provision
demonstrates a legislative intent to alter the effect of the Code
of Civil Procedure's general saving statute, section 13-217, at
least with respect to actions on a contract of sale. Finally,
plaintiffs mischaracterize Bethlehem Steel Corp. v. Chicago
Eastern Corp., 863 F.2d 508 (7th Cir. 1988), asserting that that
court found a section of the Code of Civil Procedure[fn7] to
constitute a specific exception to the broader UCC section 2-
725(3). In fact, Bethlehem Steel never even mentioned section 2-
725(3); instead, the seventh circuit held that Chicago Eastern's
counterclaims were governed by the counterclaim provision of the
Code rather than the four-year limitations period of the UCC.
863 F.2d at 511-12. Accordingly, we find that plaintiffs'
authorities do not support their construction of section 13-217.
CONCLUSION
Our decision today may have negative ramifications with
respect to unnamed plaintiffs in a class action, as such
plaintiffs may experience more difficulty in having the merits of
their claims heard. However, our decision does not foreclose a
hearing on the merits for such plaintiffs. In a worst-case
scenario, an unnamed plaintiff in a federal class action may see
his or her state claims time-barred as a result of our rejection
of cross-jurisdictional tolling. Yet, even if this occurs, and
that plaintiff's federal class is denied certification, under
American Pipe the plaintiff may still pursue his claim in federal
court. Furthermore, should that plaintiff's federal claim be
dismissed for lack of jurisdiction, he or she may still take
advantage of the proper saving provision and file the claim in
Illinois.
In the instant case, the trial court properly found that the
American Pipe tolling doctrine did not apply to toll the statute
of limitations on plaintiffs' class claims under Illinois law.
For the reasons given in part I above, we affirm this part of the
trial court's order. Furthermore, although plaintiffs themselves
acknowledged that the four-year statute of limitations of UCC
section 2-725 applied to their action--and hence should have
known that the six-month saving provision of section 2-725(3)
might also apply--they chose to wait an entire year before filing
their complaint in Illinois. The trial court concluded that
section 2-725(3), as the more specific saving provision, applied
to bar plaintiffs' claims. For the reasons given in part II
above, we agree. As such, we affirm the March 6, 1996, order of
the trial court.
Affirmed.
TULLY, P.J., and CERDA, J., concur.
[fn1]For purposes of our review, we state only those facts
relevant to the present appeal. For a more exhaustive discussion
of the facts and procedural history of the case, we direct the
reader to this court's earlier opinion in Doutt v. Ford Motor
Co., 276 Ill. App. 3d 785, 659 N.E.2d 89 (1995)(Doutt II). That
case was before the same trial court, and it presented virtually
identical issues between the same parties on the same facts.
Although filed later than the present action, Doutt II was
quickly dismissed on the basis that it constituted duplicative
litigation, a finding affirmed by this court on appeal.
[fn2]Apparently, plaintiffs filed Doutt II because the
Pennsylvania action, Doutt I, had been stayed. Curiously,
plaintiffs themselves requested the stay in the Pennsylvania
action. Doutt II, 276 Ill. App. 3d at 790-91, 659 N.E.2d at 93.
[fn3]As pointed out by the trial court, the parties dispute
which day the 1990 dismissal became effective: defendant claims
the effective dismissal date was March 29, 1990; plaintiffs
assert May 14, 1990, as the effective date. The trial court
found it unnecessary to resolve this dispute, and so do we.
[fn4]At the time this action was filed, section 13-217 (Ill.
Rev. Stat. 1991, ch. 110, par. 13-217) provided:
"Reversal or dismissal. 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 judgment is entered for the plaintiff but
reversed on appeal, or if there is a verdict in favor
of the plaintiff and, upon a motion in arrest of
judgment, the judgment is entered against the
plaintiff, or the action is voluntarily dismissed by
the plaintiff, or the action is dismissed for want of
prosecution, 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 such judgment is reversed
or entered against the plaintiff, or after the action
is voluntarily dismissed by the plaintiff, or the
action is dismissed for want of prosecution, or the
action is dismissed by a United States District Court
for lack of jurisdiction." (Emphasis added.)
[fn5]Section 2-725 (Ill. Rev. Stat. 1991, ch. 26,
par. 2-725) provided in part:
"(1) An action for breach of any contract for sale
must be commenced within 4 years after the cause of
action has accrued. By the original agreement the
parties may reduce the period of limitation to not less
than one year but may not extend it.
***
(3) Where an action commenced within the time
limited by subsection (1) is so terminated as to leave
available a remedy by another action for the same
breach such other action may be commenced after the
expiration of the time limited and within 6 months
after the termination of the first action unless the
termination resulted from voluntary discontinuance or
from dismissal for failure or neglect to prosecute."
(Emphasis added.)
[fn6]Since this case was filed, section 13-217 has
been amended twice by the legislature. While the
provision no longer applies to voluntary dismissals and
dismissals for want of prosecution (Pub. Act 89-7, eff.
March 9, 1995), it does now apply to dismissals from
federal court for improper venue (Pub. Act. 87-1252,
2, eff. January 7, 1993).
[fn7]Section 13-207 (Ill. Rev. Stat. 1991, ch.
110, par. 13-207 (now 735 ILCS 5/13-207 (West 1996))),
setting forth the limitations period for filing defense
counterclaims.
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