plaintiff cause the statues to be liberally construed in order to make sure that happened and provided that the plaintiff doesn't lose his entire case based on a technicality trial court in this case however contrary to those numerous decisions of the supreme court narrowly construes the right to refile and went ahead and dismissed the plaintiff's case and to do so it invoked a technicality that has never been a part of illinois law ever it doesn't exist in the statute  doesn't exist in the state in the in the case law and for those reasons that was error and it should be reversed in the plaintiff should be allowed to proceed on its claim when we are interpreting a statute we start as we always do with the language of the statute itself and nothing in the statute says anything about motions to vacate it doesn't say that the time starts on some other date it simply says one year after the action was dismissed for want of prosecution that statute is clear enough and so there should have been a dismissal for that reason alone however the defendants in the trial court they want to make an exception to that they want to they wanted to create a judicial exception to that statute and that judicial exception is that what a motion to vacate the d w p is filed and a subsequent case that that only relied on powers called wilson versus evans and hospital which was actually a two parter to one and two neither of those cases make that holding instead  disposed of and is one year after that but in that case the refile complaint was filed more than one year after the d w p was entered but less than one year after the motion  denied and so the powers court used that timeframe to find that the that the refile complaint was timely despite the defendant's argument that it was filed more than one year after the d in the wilson case simply followed bowers however and will see to it was determined that the refile complaint was filed more than one year after the motion to vacate was denied and so therefore the plaintiff wasn't allowed to proceed on that or the wilson one case relying on it also invoked that same the same principle but held that that means we don't have the jurisdiction to appeal this because of the well known  principle most recently spotted by this court in the state of the young one back on march rd of this year that as long as you have the right to refile a d w p is never final so the powers and evans and wilson they don't say that you're not allowed to file before the motion of a case decided if they if they do if they can be construed to say that then i would submit that that their holy altogether is questionable but again the court doesn't even have to go there if it's simply if the court simply finds as the statute says that we have one year from the date of the d w p and not one and not one year from some other date like the statute says and leave it for another day to decide if ours was correct but we would suggest that bowers and its progeny which is not very much progeny as only a few cases it contradicts the language of the statute because both statute doesn't and doesn't contemplate a motion to never really final to the one year passes any confusion over when we can when we can refile is as evidence in this case that i did i think it's i think it's clear but apparently the trial court was confused by that this bowers rule means that there is a window and not and not an extension so a final introspective hours it's ironic because the powers and wilson tases they appear to be expanding the right beyond one year from the time the d w p to a time that could be two years more in the future but despite those courts expansion of the right the trial court in this case actually contract to the right using bowers i just find that to be incredibly ironic that why should we be allowed to refile even though it was one day prior to the motion to vacate the be disposed of while the policy behind section thirteen dash to seventeen is to make every effort to the site a case on its merits and deliberately ninety days after the after the s s is issued the person filed it within ninety days then voluntarily dismissed and then refiled it almost a year later and the lower court said no you can't do that because of this because of the strict time frame the supreme court said no yes he can do that and the reason is the legislature did not make an exception to thirteen days to seventeen for s s hearings by contrast the trial court in this case is making an exception to thirteen gets to seventeen but that liberally construed to allow the even to allow a complaint to be amended to assert claims not asserted in the st case st cases st cases filed gets voluntarily dismissed refiled within a year and then the plaintiff wants to amend the complaint to add brave new cases the price in court related them back to the st case so that so the state's limitations was not a was it was not a bar to it it reversed the appellate court on that issue so once again the lower courts were trying to constrict the rights of rule of thirteen yes to seventeen the supreme court said no you can't do that that's not what the statute says same in iraq never says holder manufacturing company it's that held that it's an extension of the statute of the patients and therefore rule one  original voluntary dismissal in the refiling does not count for purposes of due diligence in service the court said that the purpose of the statute is to avoid frustration upon the grounds unrelated to the marriage and this court recognize that recently in the case of in re a state of young which i guess were called young one and held in paragraph eighteen courts liberally construed thirteen days to seventeen to achieve its real purpose which is to protect plaintiffs from complete loss of relief on the merits because of some procedural defect unrelated to the merits that's what this this the trial court in this case found some procedural defect unrelated to the merits which we submit is not a defect at all and the motion of a kate which was withdrawn an april th and this court did not express any form of disapproval and i didn't need to because that was that wasn't before this court but it still never noted any form of disapproval that refiling now given all the purposes of section thirteen days to seventeen our tastes fulfills those purposes yes there was a motion to vacate pending but we still filed it within the time set forth in the by the plain language of the statu and what that did was it removed the motion to vacate it made it moot that's all it did it wasn't barred there's no case that says it's barred instead of simply made it moot and all and allowed the case i would have allowed the case to move forward had not the trial court found this technicality to throw it out indeed it's the ultimate technicality doesn't exist the bill in the law the trial court did not dismiss it on the merits the trial court did not protect plaintiff's rights it could it be because there are two cases pending at the same time well there were and that's under suggest six thousand nine hundred and eighty three dollars well there were two cases pending at the same time except that one was one was withdrawn the very next day one the motion to vacate was withdrawn  this case the other case was over it had been dismissed for want to prosecution and the plaintiff accepted that this missile and instead of trying to vacate it the plaintiff the cited to exercise his rights under section  the wilson tasted the but in another irony under if this if the refiling is analogous to way a so called premature notice of appeal then our case our case should not have been dismissed because final post judgment motion is resolved we're not going to dismiss the appeal as being a nullity that's what the old rule says and the only supreme court found that that was a manifest injustice that it was totally unfair and pointless to at the very post all that should have happened was that the previous motion to vacate would be that would be dismissed or denied as moot which is what happened here but then we lost here it we lost the nd case as well and it simply not fair dash i'm sorry thirteen yes to seventeen or really was was a major issue to begin with and for all those reasons we would ask that the court that this court reversed the trial course dismissal and we may end it for proceedings extension so we get familiar with the file we didn't have the file yet we didn't know what was going on all we do is that our client was was really desperate to find a new lawyer quickly and we wanted to help him and the trial court denied that and whil under the one refinery rule we would be able to do it again and so we timely filed a motion to vacate and then as we got more familiar with the file and we determined that rather than burden the trial court with a motion to vacate that the judge has discretion to die and ultimately did deny with respect to the will challenge why don't we just exercise our section thirteen days to seventeen rights and go ahead and file and and we did and the trial court accepted that and said ok that's fine that's that's great now it's one motion i don't have to hear and and we and it was withdrawn is moot so we're trying to move the case forward and there was nothing in the statute that says we can't do that and there's nothing in the case law that says we can't do that and so you decided just ok you refile will claim yes yes we have we refile the will challenge on at the same time we're trying to we're trying to bridge do everything we can to preserve our client's claim we don't want to make the mistake that the plaintiff will soon to be made which is wait till the outcome of the appeal before the filing and so if the trial court found that our filing was premature and its if this court decides to affirm that if it's premature then it became a two or one day later and so we went ahead and we've we re filed the complaint again on thousand complaints then we don't need that two thousand and twenty complaint and we can just dismiss then proceed on to the twenty one thousand complaints on the other hand if this court affirms or is an alternative if this court decides well we still had a right to refile so we don't even need to consider the question questions yes i do thank you and you indicated mr pissed off of that we did not express any position on the april th filing in young one why would we have kid there's really no there really was no reason to because that issue was before the court i'm sorry the nation was not before the court it was it was your honor simply noted that that was the case that we that we apparently have exercised our right to refile and so there was yeah there was no need to decide if that was that was correct or not and if you and if you had mentioned that this is appropriate procedure that would have been victim but  is so yeah there was no reason to do so to answer your question the way you had presented it i thought maybe you were thinking we should have said something but i just wanted to know what your position was thank you on that  withdraw it was in the written motion all right so why oral or written how then did he get into an argument if there is no motion pending that a motion to vacate pending that there that's that's the issue they raised but i do agree with you that it's gone it's gone there was no motion to be getting more with respect to the to the six duncombe point and it is if it's withdrawn it's as if it were never filed so  exactly all right one last question when the trial court actually dismissed the the the case and got to hear did  so you said on a procedural deficiency did it say that as a result of that it lacked jurisdiction to hear this case the truck court did not say it simply said it was filed prematurely and therefore i'm dismissing it didn't say because i don't have jurisdiction it didn't say because there are two cases pending for the same cause it's simply said it was premature and what i'm trying what i was trying to do in my presentation earlier and also in my brief is think what kind of policy what kind of law is served by the trial court's dismissal maybe the trial court was thinking it didn't have jurisdiction i don't know but if it was it's wrong and that based on the bill true so what the tr court didn't say it didn't say in the transcript in a didn't say in the order either it simply said i find it's premature go ahead and appeal it because i'm curious and so it didn't say what what purposes were served and we submit there were no purpose is served by this dismiss has a basis for dismissal when supposedly there are two causes of action a based upon the same transactional set of facts and if the d w p occurs i was under the impression that that meant that the case was closed by order of court and that unless there was a new complaint filed or a motion  still existed and the case the original case was closed and if your original case was closed how could upon the filing of one complaint create two causes of action if there  only the nd complaint was filed and then the prior complaint was still closed because the deed to be if he hadn't been vacated in fact it hadn't even been heard considered and in fact it was i think you say withdrawn within two days later or something like that the following day the following day so if the trial court ever make any finding because i thought the there was a motion claiming that there were two causes of action pending and one should be dismissed and ever go if that's the case then maybe until the st one's dismissed which it in fact is the nd one should have been filed so is it correct for me to conclude that the syllogism that the trial court used in order to determine that the cause of action was premature is based upon the false premise case wasn't really d w p this long as a motion to vacate was pending and interesting that that really dug tails with the statute itself that says you refile within one year of the d w p not within one year of some other date i have no further questions who does in the panel have any are questions based upon the questions that were previously asked you know and no thank you thank you anderson thank you mr nelson you may proceed thank you your honor and please the court my name is kevin else and i represent two of the defendants in this matter anita suzanne wieland suzanne who is a defendant that  there's allegations of fraud george's conduct again and i also represent her brother alexander stewart young the rd who is actually an interested party and who joins her in this matter  with all that being said we're back again and as it's been alluded to by my colleague there is some subsequent history which the court is inquired about and kind of before beginning as an introductory roadmap i want to go into that very quickly because it does have some bearing on this case and i want this court to be operating with a full deck of knowledge of what's going on  hundred and twelve dollars supplemental statement reciting other cases concerning this one that are going on so in addition to this appeal that's presently before the court january of this year in fact brief filed his tort claims which is a refiling of this present cause just in case that is presumed or found to be premature so pending at the trial level there are two other of what was at one point in time a consolidated cause of action and ten surely fortunately or unfortunately depending on and how you feel about hearing from us two more possible appeals on the matter so with that full bevy of knowledge i think it's important to inform the court of that additionally just as a business the housekeeping matter and i think it's kind of symptomatic of some other issues going on in this case the reply brief by the plaintiffs was due on april th and it was not filed until april th and there is no motion for extension under local rule or supreme court rule so in that regard i would argue that if that was done timely is well to think it's symptomatic more of what's been going on in the case but that brief was late as well with all that being  said picking the response of briefs and distilling and i'm going to kind of go at it a little bit of a different tact and that the defendants argue that there's three reasons why on why the plaintiffs position is incorrect in they want to tell the court that thirteen to seventeen even though it's a one year right to refile is some kind of open window and extension and it doesn't have a start date it only has an end da e and the defendants would submit to this is court that there's a practical flaw with that because if you take the argument to the extreme we have a real problem the problem which we're actually seeing right now so then for whatever reason that motion to vacate is not ruled upon for an additional year ironically that's not uncommon in fact the cases from bowers students present one it's not uncommon time period  what's being created here in and under the guise of wanting to ensure a claim is continue and we get a resolution on the merits is a legal loophole and taking this a bit further so now we have those three and then the motion to vacate is now plaintive also assert seems certain as argument at the trial level and as brief as well too well then there's a year from that date potentially and those st three  filings don't even count so practically speaking we need some finality and we need some clear terms on thirteen to seventeen and when it starts and when they then isn't it submitted very simply in order to calculate one year you need to start and then so practically speaking there's a fundamental flaw in the plaintiff's argument with that that's the st area the nd area where we believe the arguments of the plaintiffs are exposed is statutorily now we all know thirteen to seventeen and we've all looked through its very closely but as to that specific language  it talks about the action is dismissed for want of prosecution within one year and then says after such judgment is reversed or entered or the action is dismissed for want of prosecution the language itself does not explicitly deal with what a motion to a cape does to this one year time period however the statute says within and within has meaning it means there is a definitive start in the dissent then i would also submit to the court that it then goes on to talk about after a judgment is reversed or entered and then follows with the dismissal of one the prosecution y there is a start and end date so there is a statutory flaw in the argument and the final flaw is the legal or case law law where the original brief and stand before the proposition that a case can be refiled prematurely under thirteen dollars to one dollar while that scene was very nice and neat and well packaged the problem with that is we're dealing with a one year extension and those cases here hold with the nature of time and quite frankly how you calculate one year and this court in young one just filed a few months ago in has affirmed bowers and stated that it's good law infected cited it for the very proposition that plaintiff's claims does not exist additionally with all the other cases that wilson won the court said you know what we don't have jurisdiction while that right exists so the score is actually followed that line very well and has been very consistent with that even though that others are our friends in the st district and  refiling more importantly this gen that case unequivocally states the one time right three filing is a one and only one time right what we want to avoid and as it exists and this court's prior ruling was that this case was filed in fact prematurely there was an oral motion to was a fully filed motion to vacate a brief response reply set for oral argument and then for whatever reason instead of waiting a day before the plaintiffs decided to refile this case which we submit one day too early and then for whatever reason one in the day afterwards and withdrew it his motion to bake it and the and fact that's nowhere in the oral argument transcript that's before the court dismissed it quite frankly because it was premature and thirteen to one said been is a limited extension and you need to follow statute if you do not the new action can be dismissed for a technicality so really what we have here is two dismissals based on technicalities the st d w p for trial court's rationale engaged in discussion with both counsel on it it fleshed out its rationale and then put explicitly in the order why it sounds as it did so with all that being said the defendants is a bunch of provisions that we're trying to harmonize and not to conflict with each other and the idea is if you read through it it's after one year it says after such judgment is reversed or entered  the dismissal for want to prosecution the idea is once the plaintiffs has exhausted his remedies with the initial pleading is it in their own right but here's my here's my within a year right he did respond within a year but he refiled within that year after he filed a motion to bake a so you know in this jurisdiction the court and i  agree with the bill bill trio but he filed a motion to vacate that was still pending in front of the trial court and in fact in in the record that's what the trial court is wrestling with is you know so i still even though it's been dismissed and it's a viable in some regards i have a pending motion that day kate that i have not resolved being the trial court until that's resolved that is when the thirteen well the number of provisions together to arrive at that yes that's a that's a great question and the answer is no there there in that specific regard this would be an issue  st impression because every case that i was looking at and i think my colleague would concede as well to dealt with a refiling that was too late so really it is it is a patchwork of their court opinions and the clear language within that there is not a single case that states that but there is also not a single case that says the one thank you justice hutchinson do you have any questions yes i do justice mclaren thank you mr nelson when did you file your motion to dismiss based upon this premature filing i thought i would have to go back and look in the record your honor however after it was in my memory serves me correct within thirty days to answer or otherwise we know that that refiling was on april th and then that was filed within thirty days that the motion to dismiss so the motion to vacat was withdrawn on april th by an oral motion correct correct so how did it how are we challenging a motion that no longer exists even within you know it was gone within thirty days you filed your motion to dismiss within thirty days but what are you trying to dismiss a case that was a a refiling that was premature not in any of them other than the logical the logical argument that you know you have one year and it every filing can be too late so there's not a case that says that it cannot be too early well when we're using a word premature that is not in the statute aren't we putting a condition into that statute that is not already there and if so how is that our right when this is a legislative action so i would agree and it really goes back to the the nature of time but the problem and the point is this is one year and within so with both of those we're not putting any conditions if it's a year extension it's a year extension it's not a year and a half or two years by having the words within the statute and you know throughout history has been the case law it's been the one year right to e file  there's an implication that you must have a start date and then date and an issue of st impression just in the narrow sense this is about a case being filed to where late but all of those other cases have spoken how do we measure this time and we would argue that there can be too late there are a simple logic it should also be able to be too early and we would argue this one was too early well since counsel as you've already told justice jurgensen filed within four months which is within twelve months at least as i look at a calendar why should we be concerned about too late or too early when he clearly filed within four months well i think because the whole purpose of thirteen to seventeen is a limited extension and the case done unless i'm mistaken it was completed within four months which is less than twelve months correct well we would say that you have three hundred and sixty five dollars days and that begins on april th you don't get expand one year be on a one year time period all right thank you thank you thank you justice mclaren i don't have any additional questions thank you if a tree falls in the forest prematurely it would make a sound am i correct that you made that argument i mean i made that argument yes correct and could you refresh my recollection as to why you believe it's inefficient  i would argue because he filed a timely motion to vacate the brief that's the defendant's responded he replied the matter was set for oral arguments the trial lawyers often wait and we've had cases about not filing on time especially under this electronic system because something doesn't work right and they started to file it within at one thousand one hundred and fifty eight that evening are you saying that attorney should always wait until the last minute to file something oh absolutely not no he filed it a day before three hundred and sixty five days began filing to earth three hundred and sixty five justice are served and why the purposes of section thirteen to seventeen are served by dismissing a complaint because it was supposedly filed too early and i submit that once again the defendants have failed to do that if they're simply is doing two things st of all the defendants are come came up with yet another rule that does not exist and that rule is when defendant's counsel stated that we reply brief on timely he claims that it was due a parole a and it was filed april th that's simply false the elbow supreme court has ruled and i'm sorry has issued a rule based on the coded crisis that it's extensions to file briefs are granted for all briefs up to thirty five days and we filed our as well within that thirty five dollars day extension we only needed by the extra days not thirty five dollars extra days once again we're filing well in advance of the deadline and the defendants are calling out yet another technicality that yet again does not exist in the illinois law the nd thing they do is they simply say over and over again it's too early it's too early it's too early and there's not a single statute that says that this filed too early there's not a single case that says that this debt that this case could can be filed too early it's just it's there's just a rule that is being invented out of whole cloth and i  argument was not when they filed their original motion to dismiss devotion to dismiss was filed on may th of twenty one thousand and at no time in that motion and that set ph is c twenty and c twenty one i'm sorry c twenty in the following pages of the record they don't say anything about it being filed prematurely they just cite a bunch of a bunch of statutes for section two there six hundred and nineteen dollars they don't say it's premature the st time they to put simply the statute says within one year after the case is dismissed for want of prosecution we filed our case within one year after the case was dismissed with for want of prosecution everything else that the defense  arguing is just an attempt to confuse the issues and one of the arguments was that the that we think that we can file this an unlimited number of times no we don't we get one free filing that's clear by the law but it's the it's the defendant's motion in the trial court action that have forced our he and that's what forced us to defend our refiling in this court and so it's forced us to attempt to refile the two thousand and twenty complaint which is not before this court it's before the trial court and the defendant say to calculate one year you need to start and date well i submit that the statute provides for a start the start date is when the d w p is entered the end date is one year later the bower's case as a judicial gloss to it but the statute says within one year after the case is dismissed for want of prosecution and the addition of those other things like that judgment being reversed or a judgment entered that simply makes the statute parallel with you and with the  part because the statute comes in two parts the st part is it lists the conditions under which you can file under thirteen days to seventeen and then the nd part says when you can refile and it simply was making a parallel structure in the sentence and so there's so there's nothing about judgment reversed or entered against plaintiffs that simply refers to the judgment being reversed rendered against plaintiff in the st part of it so for all those reasons we would ask justice hutchinson do you have any questions no i do not at this time thank you thank you i also do not have any other questions the case will be taken under advisement and a disposition