Wade v. Byles
Annotate this Case
Fourth Division
March 5, 1998
1-97-2009
MELVIN WADE, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
OSCAR L. BYLES, and the T-FORCE )
SECURITY CO., INC., ) HONORABLE
) PHILIP L. BRONSTEIN,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
Section 13-217 of the Civil Practice Act provides that a
cause of action which is dismissed by a United States district
court judge for lack of jurisdiction must be refiled within one
year from the date of dismissal. See 735 ILCS 5/13-217 (West
1992 & Supp. 1997). The statute contains no tolling provision
for the time the dismissal is being appealed. The issue here is
whether the statute means what it says.
In this case, the plaintiff filed a three-count complaint
against the defendants on September 28, 1992, in the United
States District Court for the Northern District of Illinois. It
alleged violations of 42 U.S.C. 1983 and various State law
claims. On May 25, 1995, the district court judge granted the
defendants' motion for summary judgment on the Civil Rights Act
claim and dismissed the State law claims for lack of Federal
supplemental subject matter jurisdiction. See Wade v. Byles,
886 F. Supp. 654 (N.D. Ill. 1995).
The plaintiff then chose to appeal the district court's
decision to the United States Court of Appeals for the Seventh
Circuit. The trial judge's decision was affirmed on May 13,
1996. See Wade v. Byles, 83 F.3d 902 (7th Cir. 1996). The
United States Supreme Court denied the plaintiff's petition for
certiorari on October 15, 1996. See Wade v. Byles, ___ U.S. ___,
136 L. Ed. 2d 227, 117 S. Ct. 311 (1996).
Then, on November 1, 1996, almost a year and a half after
the dismissal in the Federal district court, the plaintiff filed
a seven-count complaint in the circuit court of Cook County.
That complaint was based on the same acts alleged in the district
court.
The trial judge dismissed the complaint as time barred
pursuant to section 2-619(a)(5). See 735 ILCS 5/2-619(a)(5)
(West 1992). This appeal followed. Reviewing this case de novo,
as we must (see Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995)), we affirm the trial
judge.
The plaintiff contends the one-year requirement was tolled
during the pendency of the Federal appellate process. This issue
has been decided twice by our Supreme Court. In Hupp v. Gray, 73 Ill. 2d 78, 382 N.E.2d 1211 (1978), and again in Suslick v.
Rothschild, 128 Ill. 2d 314, 538 N.E.2d 553 (1989), the Supreme
Court held the language of section 13-217 and its virtually
identical predecessor, Ill. Rev. Stat. ch. 83, par. 24(a), is
clear: there is no tolling while a case dismissed for lack of
jurisdiction is on appeal. It follows here that once the
district court judge dismissed the plaintiff's action it no
longer was "pending," appeal or not. See also Sager Glove Corp.
v. Continental Casualty Co., 37 Ill. App. 2d 295, 185 N.E.2d 973
(1962).
To avoid the operation of section 13-217, the plaintiff
refers us to section 13-216, which provides that when "the
commencement of an action is stayed by *** statutory prohibition,
the time of the *** prohibition is not part of the time limited
for the commencement of the action." 735 ILCS 5/13-216 (West
1992).
What is the "statutory prohibition?" The plaintiff says it
is contained in section 2-619(a)(3), which provides for dismissal
when another action is pending between the same parties for the
same cause. The plaintiff cites Locke v. Bonello, 965 F.2d 534
(7th Cir. 1992), in support of his position.
First, we note we are bound to follow Illinois Supreme Court
decisions, not Federal appellate authority. See SK Handtool
Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 619 N.E.2d 1282 (1993).
Second, we are unwilling to say the Supreme Court was not
aware of section 13-216 and its predecessor when it decided Hupp
and Suslick. After all, the two statutes are right next to each
other in the Civil Practice Act.
The decision in Locke does not apply here anyway. In Locke,
the defendant appealed from the plaintiffs' voluntary dismissal
of their action, contending the trial court erred in failing to
enforce a settlement agreement between the parties. The court
was concerned about giving the defendant the "keys to the
courthouse." Locke, 965 F.2d at 536. That is, to enforce
section 13-217 under these circumstances would allow the losing
defendant to defeat the plaintiffs' Illinois cause of action
unless they refiled within a year of the district court
dismissal. That would give the defendant control of the
plaintiffs' lawsuit.
The problem the court saw in Locke does not exist here. The
plaintiff had control of his own lawsuit and was free to file it
in the Illinois courts whenever he wished. The plaintiff chose
to wait, trusting in his Federal appeal. It turned out to be a
bad decision. He is left without a remedy, consistent with the
obvious purpose of section 13-217--to put an end to litigation.
See Sepmeyer v. Holman, 162 Ill. 2d 249, 256, 642 N.E.2d 1242
(1994).
The plaintiff asks us to play out the scenario: if he had
refiled within one year the defendants would have moved to
dismiss, based on section 2-619(a)(3) ("another action pending
between the same parties for the same cause"), and the trial
judge would have granted it, depriving the plaintiff of his cause
of action. We do not claim such prescience. We will not
speculate on what motion the defendants would have filed and what
ruling the trial judge would have made, although we do note
section 2-619(a) authorizes a trial judge to grant "other
appropriate relief" as an alternative to dismissal. A stay,
perhaps. See Staley Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245, 252, 419 N.E.2d 23 (1980)("*** dismissal is not mandated or
the only form of relief afforded by that statute ***").
At any rate, our duty is to read statutes as written
(see Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656
(1990)) and to follow the decisions of the Illinois Supreme
Court. That duty leads inexorably to our conclusion that the
trial judge was right when he dismissed the plaintiff's lawsuit.
We affirm.
AFFIRMED.
CERDA, P.J. and McNAMARA, J., concur.
March 5, 1998
1-97-2009
MELVIN WADE, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
OSCAR L. BYLES, and the T-FORCE )
SECURITY CO., INC., ) HONORABLE
) PHILIP L. BRONSTEIN,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
Section 13-217 of the Civil Practice Act provides that a
cause of action which is dismissed by a United States district
court judge for lack of jurisdiction must be refiled within one
year from the date of dismissal. See 735 ILCS 5/13-217 (West
1992 & Supp. 1997). The statute contains no tolling provision
for the time the dismissal is being appealed. The issue here is
whether the statute means what it says.
In this case, the plaintiff filed a three-count complaint
against the defendants on September 28, 1992, in the United
States District Court for the Northern District of Illinois. It
alleged violations of 42 U.S.C. 1983 and various State law
claims. On May 25, 1995, the district court judge granted the
defendants' motion for summary judgment on the Civil Rights Act
claim and dismissed the State law claims for lack of Federal
supplemental subject matter jurisdiction. See Wade v. Byles,
886 F. Supp. 654 (N.D. Ill. 1995).
The plaintiff then chose to appeal the district court's
decision to the United States Court of Appeals for the Seventh
Circuit. The trial judge's decision was affirmed on May 13,
1996. See Wade v. Byles, 83 F.3d 902 (7th Cir. 1996). The
United States Supreme Court denied the plaintiff's petition for
certiorari on October 15, 1996. See Wade v. Byles, ___ U.S. ___,
136 L. Ed. 2d 227, 117 S. Ct. 311 (1996).
Then, on November 1, 1996, almost a year and a half after
the dismissal in the Federal district court, the plaintiff filed
a seven-count complaint in the circuit court of Cook County.
That complaint was based on the same acts alleged in the district
court.
The trial judge dismissed the complaint as time barred
pursuant to section 2-619(a)(5). See 735 ILCS 5/2-619(a)(5)
(West 1992). This appeal followed. Reviewing this case de novo,
as we must (see Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995)), we affirm the trial
judge.
The plaintiff contends the one-year requirement was tolled
during the pendency of the Federal appellate process. This issue
has been decided twice by our Supreme Court. In Hupp v. Gray, 73 Ill. 2d 78, 382 N.E.2d 1211 (1978), and again in Suslick v.
Rothschild, 128 Ill. 2d 314, 538 N.E.2d 553 (1989), the Supreme
Court held the language of section 13-217 and its virtually
identical predecessor, Ill. Rev. Stat. ch. 83, par. 24(a), is
clear: there is no tolling while a case dismissed for lack of
jurisdiction is on appeal. It follows here that once the
district court judge dismissed the plaintiff's action it no
longer was "pending," appeal or not. See also Sager Glove Corp.
v. Continental Casualty Co., 37 Ill. App. 2d 295, 185 N.E.2d 973
(1962).
To avoid the operation of section 13-217, the plaintiff
refers us to section 13-216, which provides that when "the
commencement of an action is stayed by *** statutory prohibition,
the time of the *** prohibition is not part of the time limited
for the commencement of the action." 735 ILCS 5/13-216 (West
1992).
What is the "statutory prohibition?" The plaintiff says it
is contained in section 2-619(a)(3), which provides for dismissal
when another action is pending between the same parties for the
same cause. The plaintiff cites Locke v. Bonello, 965 F.2d 534
(7th Cir. 1992), in support of his position.
First, we note we are bound to follow Illinois Supreme Court
decisions, not Federal appellate authority. See SK Handtool
Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 619 N.E.2d 1282 (1993).
Second, we are unwilling to say the Supreme Court was not
aware of section 13-216 and its predecessor when it decided Hupp
and Suslick. After all, the two statutes are right next to each
other in the Civil Practice Act.
The decision in Locke does not apply here anyway. In Locke,
the defendant appealed from the plaintiffs' voluntary dismissal
of their action, contending the trial court erred in failing to
enforce a settlement agreement between the parties. The court
was concerned about giving the defendant the "keys to the
courthouse." Locke, 965 F.2d at 536. That is, to enforce
section 13-217 under these circumstances would allow the losing
defendant to defeat the plaintiffs' Illinois cause of action
unless they refiled within a year of the district court
dismissal. That would give the defendant control of the
plaintiffs' lawsuit.
The problem the court saw in Locke does not exist here. The
plaintiff had control of his own lawsuit and was free to file it
in the Illinois courts whenever he wished. The plaintiff chose
to wait, trusting in his Federal appeal. It turned out to be a
bad decision. He is left without a remedy, consistent with the
obvious purpose of section 13-217--to put an end to litigation.
See Sepmeyer v. Holman, 162 Ill. 2d 249, 256, 642 N.E.2d 1242
(1994).
The plaintiff asks us to play out the scenario: if he had
refiled within one year the defendants would have moved to
dismiss, based on section 2-619(a)(3) ("another action pending
between the same parties for the same cause"), and the trial
judge would have granted it, depriving the plaintiff of his cause
of action. We do not claim such prescience. We will not
speculate on what motion the defendants would have filed and what
ruling the trial judge would have made, although we do note
section 2-619(a) authorizes a trial judge to grant "other
appropriate relief" as an alternative to dismissal. A stay,
perhaps. See Staley Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245, 252, 419 N.E.2d 23 (1980)("*** dismissal is not mandated or
the only form of relief afforded by that statute ***").
At any rate, our duty is to read statutes as written
(see Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656
(1990)) and to follow the decisions of the Illinois Supreme
Court. That duty leads inexorably to our conclusion that the
trial judge was right when he dismissed the plaintiff's lawsuit.
We affirm.
AFFIRMED.
CERDA, P.J. and McNAMARA, J., concur.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
