No. 2--09--0080 Filed: 1-20-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ BHAGWAN DASS JAIN, ) Appeal from the Circuit Court ) of Du Pa ge Co un ty. Plaintiff -Appella nt, )

) v. ) No. 08--AR--1012 ) KENNETH P. JOHNSON, Individually and ) d/b/a Johnson and Associates, and ) ROBERT KIRTL

AND, ) Honorab le ) John T. Elsner, Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE SCHOSTOK d

elivere d the opini on of the c ourt: This case pres ents t

he question of whether the I llinois saving statute (735 IL CS 5/13--217 (West 2008)), w

hic h permits the refiling of certain dismissed actions within one y ear, creates an exception to the stat

ute of re pose for legal malprac tice ac ti ons (73 5 ILCS 5/13--2 14.3(c)(West 2008)). F or the fo llowing r easons, we hold tha

t it does. OnMay 7, 2001, the plaintiff, B hagwan Dass Jain, filed a le gal mal practic e action

agains t the defendants, his former lawy ers, for malpractice allege dly accr uing on May 9, 1999. (T he defenda nts allegedly

failed to file a

lawsuit on

the plain tiff's b ehalf be fore the

statute of limitations expired.) The par

ties ag ree tha t the malpr

actice action wa s filed wi

thin the a pplicabl e statute s o f limitations and repose contained in section 13--214.3 of the Code of Civil Procedure (Code) (735 IL CS 5/13--214.3 (West 2008)). During the p endency of t he case, however, both the statute ofNo. 2--09--0080

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limitations and the statute of repose expired. After lengthy delays attributable to bot h parties, on March 10, 2008, the case was dismissed for want of prosecution. A little over two months later, on May 19, 2008, the plaintiff re filed the case under the I llinois saving statute, section 13--217 of the Code (735 IL CS 5/13--217 (West 2008)). The defendants moved to dismiss under section 2--619 of the Code (735 IL CS 5/2--619 (West 2008)), arguing that the refiled suit was bar red by the six-y

ear statute of r epo se f

or c lai ms of l ega l m alp rac ti ce. 735 ILC S 5/ 13--214.3(c) (West 2008). The plaintiff argued

that the saving statute created an exception to the statute of re pose, because under the saving statute, a plaintiff has an absolute right to refile (within one y ear) a case that was dismissedfor want of prosecution. The trial court ag reed with the defendants and gra nted the motion to dismiss, a

nd the pla intiff fil ed a timel

y no tice of a

ppeal. "Section 2--619 motions present a question of law, and we review rulings thereon de novo ." DeLuna v. Burc iaga , 223 I ll. 2d 49, 59(2006). M oreover, where the dete rmination of the mo ti on involves an issue o f statutor y c onstruct

ion, we r eview the judgmen t de novo
. Lee v. John Deere Insurance Co. , 208 Ill. 2d 38, 43 (2003). Inany case involving the inte raction of two statutes, we begin with the languag e of the statutes at issue. Section 13--214.3(c) of the Code contains the statute of repose for leg al malpractice actions. It states, in relevant part, that an a ction for legalmalpractice "may not be commenced in any event more than 6 yea

rs after the date on w

hic h the act

or omission

occurr ed." 73 5 ILCS 5/13--21 4.3(c) (

West 2008) . Section 1 3--217, t he saving statute, s tates: "In the actions specifie d in Artic le XI II of this Act or any othe

r act or contract where the time for c ommencin

g an action is limite d, if *** the action is dismiss ed for want

of prosecution, *** then, whether or not the time limitation for bringing such action expiresNo. 2--09--0080

1 "This version of section 13--217 preceded the ame ndments of Public Act 8 9--7, §15, eff. March 9, 1995. [The supreme] court f ound Public

Act 89--7 unconstitutional in its entirety in Best
v. Taylor Mac

hine Works , 179 Ill. 2d 367 (1997). The version of section 1 3--217 c

urrently in effect is, therefore, th e version th at preceded the amendments of Public A ct 89--7." H udson v. City of Chica go , 228 Ill. 2d 462, 469 n.1 (2008). -3- during the pendency

of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution." 735 ILCS 5/13--217 (West 1994). 1 The parties agree that the saving statute creates an exception to statutes of l imitations, so that an actionthat was timely filed at its inception may, under the saving statute, be refiled

within one year after a dis missal on one of the bases enumerated in the statute, even if the statute of limitat ion s expired prior to the date of refiling. The primary issue on appeal is whether the saving statute creates a similar exception to a statute of repose. "[A] statute of repose diffe rs from a statute of limitations in that a statute of limitations governs the time in

which lawsuits may be c ommenced after a cause of action has accrued, while a statute of re p ose extinguishes the action itself after a fixed period of time, reg ardless of when the actionaccrued." DeLuna , 223 Ill. 2d at 61. A statute of limitations generally does not begin to run until the plaintiff discovers (or reasonably should have discovered) his injury. B y contrast, a statute of repose g eneral ly

begins t o run at th e time of t

he defe ndant' s alleg edly

culpable act and cuts off the right to bring a claim after a cer tain period of time, regardless of when or even whether the plaintiff discovers that the defendant's act caused him injury
. Hinkle v. Henderson , 85 F.3d 298, 301 (7th Cir. 1996).No. 2--09--0080

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However, t here are also similarities between statutes of limitations and statutes of repose. The most obvious is that both limit the time in which an action may be br ought, and thus each ty

pe of statute se ts a "p er io d o f l im it at io n" on an ac ti on , a lt ho ug h t ho se pe ri od s a re ca lc ul at ed di ff er en tl y. Both types of statute ar

e contained in article XI II

of the Code. See 735 ILCS 5/13--101 et seq. (West 2008). Inconstruing a statute, our task is to "ascertain a nd give effect to the legislatur e's intent." Lieb v. Ju dges' Re ti re me nt Sys tem , 314 Ill. App. 3d 87, 92 (2000). The best indicator of the legisl ature's intent is the plain language of the statute. Lee , 2 08 I ll. 2d at 43. "One of the fundamental principles of statutory construc tion is to vi ew all pr

ovisions of

an enactment as a whole," and thus " words an d phrase s must

be interpreted in light

of other relevant provisions of the statute." J.S.A. v. M.H. , 224 Ill. 2d 182, 197 (2007). "When the statute' s langua ge is cl ear, it w

ill be given effec t without resort to ot her aids of st atutory constructi on." Lee , 208 Ill. 2d at 43. "However, if the lan

guag e of a sta

tute is amb iguous, courts ma y lo ok to tools o f interpr

etation to ascertain th e meaning of a pro vision." DeLuna , 223 Ill. 2d at 59. In DeLuna , the supreme court interpreted one of the sec tions of the Code involved here: the limitations provisions applicable to legalmalpr actice actions. The issue was whether sec tion 13--214.3(e) of the Code, which provides that the "period of limitations" for such a n actionis tolled during the minority or disability of the person entitled to sue, tolled the six-year statute of repose as wellas the two -y ear sta

tute of lim

itations. T

he plaint iffs also claimed t hat both stat utes had been tolled by the attorney

's fraudulent concealment of th e i nj ur y. DeLuna , 223 Ill. 2d at 56. The court ultimately

conclude d that the

statute of repose was tolle d during

minority or disabi lity

( DeLuna , 223No. 2--09--0080

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Ill. 2d at 65), and also was subject to an exce ption in cases of fraudul ent conc ealment ( DeLuna , 223 Ill. 2d at 74). I

n the course of doing so, the court made seve ral points that are relevant here. The supreme court first held that the phra s e used in the legal malpractice minority tolling provision (735 IL CS 5/13--214.3(e) (West 2008)), "period of limitations ," was a

mbiguous
. DeLuna , 223 Il l. 2d at 62. The court noted that article XIII of the Code is titled simply "Limitations," altho ugh it contains both statutes of limitat ions and statut es of repose. DeLuna , 223 Ill. 2d at 61. Inaddition, the legislature used the term "repose" only twice in all of article XII I (and one instance
wa s i n the title of the provision only), althoug h the article contains many statutes of repose. Nevertheless, the legislature clearly knows the difference between a statute of limitations and a statute of repos e, and c ould have chosen to use those more exact terms but

did not. DeLuna , 223 Ill. 2d at 61-6 2. Therefore, the phrase " period of limitations" could refer either to the statute of limitations, or to the statute of repose, or to both. DeLuna , 223 Ill. 2d at 62. The leg islature used an almost identical term in the saving statute at issue here, w hi c h provides that a pla

intiff " may

commenc e a new a

ction with inone year or wit hin t he rema inin g period of limitation , whichever is greater." (Emph asis adde d.) 7 35 ILCS 5/13- -217 (West 1994) . We believe that the term "period of limitation" in the saving statute is equally ambiguous as the term at issue in DeLuna , " period of limitations." The saving statute also refers to " the time limitation for bringing such action." On its face, this phrase could refer either to the statute of limitations or to the statute of repose, or both. This phrase is therefore ambiguous as we ll. Thus, we (like the supreme court in DeLuna

) must look t

o other to ols of stat

utory construc tion to dete

rmi ne whether

the legislature intended

to include statutes of

repose within the "period of limitation" referr ed to in the saving statute. DeLuna , 223 Ill. 2d at 59.No. 2--09--0080

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In DeLuna , the supreme court next noted the location of the tolling provision at issue: it was not place d within

eithe r the s ubsec tion setti ng a statute of limitations for legal malpractice actions (subsection

13--214.3(b) of the Code) or the subsection establishing a statute of repose (subsection 13--214.3(c)), but rathe

r foll owe d both of those subsections in its own subsection (subsection 13--214.3(e)). DeLuna , 223 Ill. 2d at 63. The supreme court stated that the position of the provision at issue with

in the ove rallorganization of a statute may reflect the legislature's view of how diffe rent parts of a statute should interact
. DeLuna , 223 Ill. 2d a t 63-6 4, cit ing Bruso v. Alexian Brothers Hospital , 178 I ll. 2d 445, 453 (1997). The separate and subsequent location of the minority tolling provision sugge sted that i t was mea

nt to apply

to both the

statute of limitati ons and the statute of repose. DeLuna , 223 Ill. 2d at 64. The supreme court use d the same positional analysis in its later consider ation of whether section1 3--215 of the Code, relating to fraudulent concea lment, applied to the legal malpractice statute of repose as well as thestatute of limitations. Section 13--215 provides that, "[i]f a person liableto an action fraudulently conceals the cause of action from the knowle dge of the person entitled thereto, the action

may be commenc ed

at any time within 5 y

ears after the person entitled to bring the same discovers that he or she has such c ause of action." 735 I LCS 5/13-

- 215 (West 2008). In fi

n ding that the fraudulent concealment statute crea ted an exception to the legal malpractice statute of

repose, the supre

me court relied in part on the fact that section 13--215 comes after section 1 3--214.3 (c) in a

rticle XIII. DeLuna , 223 Ill. 2d at 67. The

supreme court sta ted that, using the positional analysis developed in Bruso , "it can be inferred that sec tion 13-- 215 applie s to all of the precedi ng sections. " DeLuna , 223 Ill. 2 d at 67. Applying this positional analy sis to our case, we obser

ve that th e lega

l malprac ti ce statu te of repose (section 13--214.3(c)) pr ecedes theNo. 2--09--0080

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saving statute (section 13--217), suggesting that the legislature intended the saving statute to create
anexception to the legal malpractice statute of repose, similar to the e xception created by

the fraudulent concealment statute. DeLuna , 223 Ill. 2d at 74. Las tl y, the supreme court in DeLuna compared the issues before it, which a

rose in the c onte xt of an action for legal malpractice, with existing case law relating to actions for medical malpractice. The court not

ed that, i nthe context of actions for medical malpractice, it had already decided that similar minority tolling provisions applied to thestatute of repose ( Bruso , 178 Ill. 2d at 453; Antunes
v. Sookhakitch , 146 Ill. 2d 477, 491-92 (1992)), and it had indicated that the fraudulent concealment statute might also create an exception to that statute of repose ( Anderson v. Wagner , 79 Ill. 2d 295, 321-22 (1979)). DeLuna , 223 Ill. 2d at 72. Commenting that doctors and lawyers occupy similar positions of trust in society, the court stated that "it is inconceivable that the legislature would have intended to limit phy

sicians' relianc e upon the

medical m

alprac tice stat

u t e of repose, when physicianshave fraudulently concealed a

cause of action from

th ei r p at ie nt s, bu t * ** al lo w a tt or ne ys to benefit from the legal malpractice statute of repose, where they have done the same to their clients." (Emphasis in original.) DeLuna , 223 Ill. 2d at 73. Once again, the same analysis-- the existence of case law rega rding the statute of repose for medical malprac tice, and i ts applicability to actions for leg al malpractice--is relevant to our case
. Alth ough the I llinois Supr eme Court

has not deci ded the issue, two other courts have addressed whether the saving statute creates an exceptionto th e st atu te o f re pos e fo r me di cal mal pra cti ce. In Limer v. Ly man , 241 Ill. App. 3d 125, 129 (1993), the Illinois Appellate Court held that a plaintiff could refile a voluntar ily d ismissed me dical mal

practic e actio n within one year unde r the saving statute, although the four-y ear statute of repose for such actions had

expired (Ill. Rev. Stat. 1991, ch.No. 2--09--0080

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110, par. 13--212, no w 735 IL CS 5/13--212(a) (West 2008)). The court held that, despite the distinction between statutes of limitations and statutes of repose, there was no reason to give them different treatment under

the saving statute. The saving statute (and the de ath tolling provisions of section 13--209, also at issue in Limer ) were both "enactments by the legislature which have been de termined, right or wrong, to be necessary to avoid certain injustices. ***
*** The four-y

ear provisi on [statute of repose] in section 13--212(a) was adopted to avoid the

problem o f an inde finit e limi tations period based upon the discovery rule. Nothing indicates it was intended to avoid the remedial pu rposes o f sections 13--217 and 13--209 of t he Code." Limer , 241 Ill. App. 3d at 128-29. Thus, the plaintiff could re file her action under the saving statute despite the e xpiration of the applicable statute of repose. In Hinkle v. Henderson , 85 F.3d 298 (7th Cir. 1996), ou r lo cal fed

eral co urt of ap peals reached the same conclusion. Hinkle , 85 F.3d at 300-01. Th e court first noted that the weight of authority was clear: several states and the I llinois Appellate Court had held that a medical malpractice statute of

repose d id not bar

the ref iling of a case u nder the savin g statute ( See v. Hart le y , 257 Kan. 8 13, 896 P.2d 1049 (199 5); Cronin v. Howe , 906 S.W.2d 910 (Tenn. 1995); Limer , 241 I ll. App. 3d

at 129; Ve sol owski v. Repay , 520 N.E. 2d 433 (I nd. 1988) ; Wade v. Reynolds , 34 Ohio App. 3d 61, 517 N .E.2d 227 ( 1986)), b ut only one state supreme court ha d held to th e c on tr ar y ( Wright v. Robinson , 262 Ga. 844, 426 S.E.2d 870 (1993)). Intrying to pre dict how the Illinois Supreme Court would rule on the issue of w h ether the expiration of the statute of repose would bar the refiling of a medical malpractice action under theNo. 2--09--0080

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saving statute, the c ourt examined the purpose of the two statutory provisions. The medical malpractice stat ute of repose "embodies two essential and rela ted purposes: [first,] to prevent indefinit e potentia l liability for a particular act or omission *** and second, to aff ord defendants (and insurance companie s) greater certainty in predi cting potent ial liabi lity." Hinkle , 85 F.3d at 302; see Anders on , 79 Ill. 2d

at 307-08. The purpose of the saving statute is to encoura ge and permit the disposition of litigation on the merits and prev ent the failure of an action on technical gr ounds unrelated to the merits. Hinkle , 85 F. 3d at 3 02, ci ting DeCle rck v. Simpson , 143 Ill. 2d 489, 492 (1991). When a pla

intiff re files a c ase withi

n one y ear and also withi

nth e applicable statutes of limitations an d repose, there is no conflict between the statutes. However, w hen the statute of limitations or repose expired beforethe action was refiled, apply ing the saving statute would extend the time limits contained in those statutes for up to one ye ar, thereby possibly frustra ting the purpose of those statutes for that additional length of time. Noting that "[n]o one disputes that the savings provision applies when statutes of limitations
are involved" and that "[t]he savings stat ute expre ss ly applies to cases ' where the time for commencingan action is limited, ' which on its face includes both statutes of limitation and statutes of repose" ( Hinkle , 85 F.3d at 302), the court held that the question was whether the pur poses of the statute of repose were sufficiently different from

the purposes of the statute of limitations to justify excluding the statute of repose from the ambit of section 13--217 ( Hinkle , 85 F.3d at 303). The court concluded t

hat apply ing the s aving st

atute to a statute of repose created

no greater frustration

of purpos e than ap

ply ing it toa statute

of limitati ons. The first purpose of the statute of
re pose, eliminating indefinite potential liability, is not frustrated by the application of the savin g statute, because the addition of up to one y

ear to th e time limit

set by the statut e of rep ose still r

esultsNo. 2--09--0080

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ina finite period and does not "create the type of indefinite pot ential liability" that the statute of repose was designed to prevent. Hinkle , 85 F.3d at 303. The sec ond purpo se of the statute of repose is to afford defendants grea ter certainty

through the knowledge that, after the time limit set in the statute has expired, they ca

n no longer be sued

for a particular act. The court observed that a pplying the saving statute to permit refiling frustrates this purpose only if the defendant was unaware

of the original suit

to begin with. "Where the defendant knows that plaintiff has broug

ht an act ion, usual ly fromreceiving service, he must be pre sumed to understand that a procedural defect in the action may
cause a delay of up to one year pursuant to the savi ngs statute. " Hinkl e , 85 F.3d a t 303. And, in
c ases in which the defendant was not served in the origina l suit, the defendant wo uld still b e protected because the ref iled suit would be subject to dismissal for fail ure to comply

with Supre

me CourtRule 103(b) (177 Ill. 2d R. 103(b)). Hinkle , 85 F. 3d at 3 05, ci ting O'Connell v. St. Franc is Hospital , 112 Ill. 2d

273, 281 ( 1986). Th

us, neither

of the pur

poses of t he statute of repos e would be frustrated by

the application of the saving statute. Hinkle , 85 F.3d at 304. As noted by the supreme

court in DeLuna , cases involving the medical malpractice statute of repose are releva

nt to an analy sis of issues

involving the leg al malpra

ctice sta tute of re pose. Thu s, Limer and Hinkle , whichanalyzed the inter action be tween the medical malpractice stat

ute of re pose and the savin g sta tute , are instructive here, where the issue is the intera ction between the saving statute and the legal malpractice statute of r epose. For the same reasons stated in Hinkleand Limer , applying the savin g statut e to perm it refiling of the pla intiff' s case w ould not fr

ustrate the purposes of the legal malpractice stat ute of re pose. The

defenda nts offer no explanation why the reasoning of Hinkleand Limer

would not apply here.No. 2--09--0080

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Rather than distin

guishin g Hinkle and Limer , the defendants raise narrower a rguments. They point out that the st

atute of repose ( 735 I LCS 5/1 3--214.3 (c) (Wes t 2008)) provides t hat a lega l malpractice action " may

not be com

menced i n any event" more tha

n six y ears af

ter the a lleged ly negligent act occurred. They

then argue that this means that the six-year period must be applied unless the savin

g statut e trumps it , and assert that the plaintiff has not ad

equatel y shown that it

does. The defendants do not include any actual argument or cite leg al support for the idea that the "not *** inany event" langua

ge of the statute

of repos e is ma nd at or y, and thus they have for feited th is argume nt. 210 I ll. 2d R. 341 (h)(7) ; Mikolajczyk v. Ford Motor Co. , 374 I ll. App. 3d 646, 677 (2007). Moreover, at oral argument the de fendants conceded that there are several exceptions to the legal malpractice stat

ute of re pose (see DeLuna , 223 I ll. 2d at 67-68), and thus it cannot be read as imposing an inflexible barrier to suit. See also McR ait h v. BDO Sei dm an, LLP , 391 Ill. App. 3d 565, 578-79 (2009) (rejecting the argume nt that similar language inflexibly requires the enforcement of statutes of

repose in every

case, noting that statutes of repose may be extended by minority

tolling and fraudul ent conc ealment p rovisions , and in a medical malpractice case, by a continuing course of negligent treatment). T he sav ing stat

ute gra nts plainti ffs "a

n absolute

right" to refile

within one

ye ar when

their
cases fall within the other strictures of section 13--217. See, e.g. , Case v. Gales burg Co ttage Hospital , 227 Ill. 2d 207, 215 (2007) ("section 13--217 g rants a plaintiff the absol ute rig ht to refi le
a dismissed c omplaint. We may not infrin ge upon this statut

ory right to refile" ); Timberlake v. Illini Hospital , 175 Ill. 2d 159, 163 (1 997) ("Section 13--217 provides plaintiffs with the absolute right to refile their co mplaint wit

hin one y ear") . Just

as the rig ht to refile c

reates a limited e

xception to the statute

of limitations for legal malpractice, it creates a similar exception , limited to

one y ear, toNo. 2--09--0080

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the legal malpractice statute of repose. The trial court therefore e rred in holding that

the expiration of the statute of repose barred the plaintiff from re filing his action within one year unde

r the saving statute. The defendants raise one other arg ument on appeal that is unrelated to the interaction between the saving statute and the legal malprac tice statute of repose, asserting that the legislature did not inte

nd to inclu

de dismissa

ls for wa nt of pros ecution w

ithin the scope of the saving

statute. They base this argument on the Civil Justice Reform Amendments of 1995 (Act) (Pub. Act 89--7, eff. March 9, 1995), wh

ich conta ined amon

g other things a n amendme

nt to the saving statute that (1) removed dismissals for want of prosecution from the catalog of cases in which ref

iling was permitted and (2) further provided

that "[n]o action which is *** dismissed for want of prosecution by the court may be

filed where the time for commencing the action has expired." The def endants cite In re Detention of L ieberman , 201 Ill. 2d 300 , 320-21 (2002) , for the proposition that "[a] subsequent

amendment to a statute may be an appropriate source for

discerning legislative intent," and they ar

gue that the Act's amendment shows a legislative intent to exclude dismissals for want of prosecution from the saving statute. There are sev eral pr

oblems wit

h this arg ument. To b egin wi

th, the " legisla

tive inten t" identified by the defe

ndants is directly contra

ry to the plain lan

guag e of the s a ving sta

tute in its present form. As we have explained ( see foot note 1), in Best v. Tay

lor Machine Works , the supr eme court held that some of th e other provisions of the Act were un

constit uti onal, and

because those provisions could not be severed, the Act was void in its entirety. Best , 179 I ll. 2d at 459- 67. As a result, the Act's a

mendment

to the saving stat

ute was ineffec tive and t he statute revert ed to it s previous form (see Hudson , 228 Ill. 2d at 469 n.1), which includes dismissals for want of prosecutionNo. 2--09--0080

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within the kinds of dismissals for which refilingis permitte d. Thus, th e plain language of the saving statute in its present form

permits the refiling of actions dismissed for want of prosecution. We can drawno inferences regar

ding leg islative i ntent tha t are contrary

to the plain language of the pre sent formof the statute. See People ex rel. Ryan v. AGPRO, I nc. , 214 Ill. 2d 222, 231 (2005) ("We have
never held that a subsequ

ent amen dment may

replac e the pla

inmeaning as the best evidence of the legisl ature's original intent"). Lieberman is inapplicable, as it concerns only valid ame

ndments to
a statute, not invalidated and ineffective amendments to a statute. L astly, we note that, althoug h Best
was issued in 1 997, in the ye ars si nce then the le gislat ure has not s een fit to reen act th e Act's amendment

to the saving statute. Thus, as far as can be determined, any previous legislative intent to remove d

ismissals f

or want of p rosecut

ion from the saving

statute ha s waned. For all o f these
reasons , the Act provides no basis on which to hold that the plaintiff may not ref ile this action under the saving statute. The judgmen

t of the c ircuit

court of Du Page County is reversed and the cause is remanded for fur ther pro ceeding s. Reversed and remanded. O'MALL EY and HUDSON, JJ., concur.