## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hart v. Kieu Le , 2013 IL App (2d) 121380

Appellate Court Caption LYNETTE Y. HART, Plaintiff-Appellant, v. L OAN KI EU L E, Def endant- Appellee

.

District & N o. Second District Docke t No. 2-12-1380

Filed August 26, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff’s ref iled persona l injury action was properly dismiss ed as untimely wher e the rec ord showed that plaintiff’s initial action was filed elec tronically on e d ay afte r the statute of limit ations expired due to the fac t that the return date for the summons selec ted by the para leg al in the initial timely filing was unavailable an d cause d the entire filing to be reje cted by the elec tronic filing sy stem, and the succe ssful initial filin g

one day afte r the expiration of the l imitations period prec luded the application of secti on 13-217 of the Code of Civil Procedur e and the equitable tolling doctrine to reha bilitate the reje cted filing, espec ially in the abse nce of

a showingof due dilig ence on plaintiff’s par t.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County , No. 12-AR-384; the Hon. J ames D. O rel, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Ry an J

. Har ring ton, of Kuhn, Mitchell, Moss, Mork & L echow icz, L L C, of Na perville, for

appellant.

C ar i s a J

. Krieg
, of L aw Offic e of J ohn H. Currie, of Chicag o, for appellee

.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Schostok and Spenceconcur red in the judgment and opinion.

OP INION

¶ 1 Plaintiff, L

y nette Y. Har

t, appea ls from an order of the circ uit court of Du Pag e County dismiss ing, pursuant to section 2-619 of the Code of Civil Procedur e (Code) (735 I L CS 5/2- 619 (West 2010)), her persona l injury lawsuit ag ainst defe ndant, L oan Kieu L e. As explained
at greater leng th below, the dispositi on of this appea l depends on whether
, under principles of “equitable tolling,” a prior lawsuit betwee n the same parties was t imely filed. On the

rec ord bef

ore us, we cannot c onclude that it was. We ther efor e af firm. ¶ 2 For rea sons that a re unclea r, defe ndant’s motion to dismiss the lawsuit does not appea r in the rec ord on appea l. Howeve r, plaintiff’s written response to the motion and defe ndant’s written reply to that response indica te that def

endant moved f

or dismissal on the ba sis that the lawsuit was time-barr ed. Plaintiff’s complaint, which wa s fi led on Fe bruar y 14, 2012,
soug ht r ecove ry for injuries sustained in a motor vehicle acc ident that occur red on J uly 29, 2008. Plaintiff had soug ht rec overy for the same injuries in a prior lawsuit that was dismiss ed for want of prosec ution on Fe bruar y 24, 2011. Pursuant to section 13-217 of the Code (735 I L CS 5/13-217 (West 2010)), an action that is dismiss ed for want of prosec ution m ay be

re fi l ed within one year or the rema ining limit ations period. “Section 13-217 is term ed a ‘saving statute’ or ‘re vival statute’ beca use it ‘re vives’ a plaintiff’s previous, timely filed compl ai nt, beyond the limit ations period, wher e no adjudication on the merits has been obtained and the complaint has been dismiss ed for proce dural rea sons.” (Emphasis added.) Merc antile Holdings, Inc. v. Fe ldman , 258 I ll. App. 3d 748, 751 (1994). ¶ 3 Although plaintiff ref iled her lawsuit within one year of the dismiss al of the prior lawsuit, defe ndant contende d that the prior lawsuit was not filed within the ap p l i cab l e limit ations period, so section 13-217 did not ap p ly

. On appea l, plaintiff does not dispute that the complaint in the prior lawsuit was filed one day afte r the expira t i o n o f the applicable limit ations perio d

. H o w e v e r , s h e a rgues that the complaint should be considere d timely under the “equitable tolling” doctrine. Be fore considering that arg ument, a few observa

tions about the proce dural posture of this appea l are in order

. As noted, this app ea l i s b efor e us on an order of dismiss al enter ed pursuant to section 2-619 of the Code. Section 2-619 provides, in

-2-pertinent pa rt: “(a) Def endant may , within the time for pleading
, file a motion for dismiss al of the action

or for other

appropriate re lief upon any of the following grounds. I f the grounds do not appea r on the fa ce of

the pleadingattacke d the motion shall be supported by aff idavit:
* * * (5) That the action wa s not commence d within the time lim ited by law.
* * * (c) I f, upon the hearing of the motion, the opposite party prese nts aff idavits or other proof denying the fac ts alleg ed or establishing fac ts obviating the grounds of defe ct, the
court may hear and deter

mine the same and may grant or deny the motion. I f a materia l and g enuine disputed question of fac t is raised the court may decide the motion upon the aff idavits and evidenc e offe red by the parties, or may deny the motion without prejudice
to the right to raise the subject matter of the motion by answe r and shall so deny it if the action is one in which a party is entitled to a trial b y j ury and a jury demand has been filed by the opposite party

in apt time.” 735 I L CS 5/ 2-619(a )(5) , (c) (West 2010). ¶ 4 We have noted that:

“When a defe ndant moves for involuntary dismiss al under section 2-619 of the Code and no jury

demand ha s been ma de and g enuine disput ed questions of fa ct ar e pre sent, the court has two options: it may deny the motion without prejudice to the right to raise the subject matter of the motion by answe r or it may hear and deter mine the merits of the dispute based upon the pleading s, aff i davits, counter aff

idavits, and other evidenc e offe red by the parties. When the latter course is taken, our duty on appea l is to revie w not only the law, but also the fac ts, and to reve rs e t h e circ uit court’s order if it is clea rly
ag ainst the manifest weight of the evidenc e.” A.F.P. Enterprises, Inc. v. Crescent Pork, Inc. , 243 I ll. App. 3d 905, 912 (1993). ¶ 5 Her e, plaintiff did not deny that her complaint was filed outside the applicable limit ations period. Rather she soug ht to establish fac ts obviating the limit ati o ns defe nse via the joint
operation of section 13-217 and the equitable tolling d o ctrine. “Ge nera lly
, the doctrine of equitable tolling permits a court to excuse a plaintiff’s failure to comply with a statute of l imitations wher e ‘bec ause of disability
, irreme diable lack of information, or ot h er circ umstances beyond his control,’ the plaintiff cannot rea sonably be expected to file suit on time.” W illiams v. Board of Rev iew
, 241 I ll. 2d 352, 360 (2011) (quoting Miller v. Runyon
, 77 F.3d 189, 191 (7th Cir. 1996) ). Equitable tolling require s a showing of due diligenc e on the part of the plaintiff. Id. “Due diligenc e is a ‘fa ct-spec ific inquiry
, guided by ref ere nce to the hy pothetical rea sonable person’ ***.” Id. at 372 (quoting Former Employe es ofSiemens In f o rma t ion Communication Networks, Inc. v. Herman
, 24 Ct. Int’l Trade 1201, 1208 (2000))

. Howeve r, “whe re the evidenc e leave s no room for a re as o n able differ ence of opinion, the court may properly resolve such issues as a matter of law.” Mack ereth v. G.D. Searle &Co. , 285 I ll. App. 3d 1070, 1077 (1996). ¶ 6 In support of her eq u i t ab l e t o l l i ng theory
, plaintiff supplied the trial court with an aff idavit from a para leg al emp l o y ed by the law firm that filed the lawsuit on plaintiff’s behalf

. The para leg al aver

red that her duties included “on line [ sic ] filing using Dupag e [ sic ]

-3-County ’s Interne t Case Filing S y stem (i2File) .” Wit h ref ere nce to the prese nt case , the
para leg al ave rre d as follows in para graphs 2 through 4 of her aff idavit:
“2. On J uly 29, 2010, I scanne d and saved the summons and complaint and enter ed the i2File.net website to file the documents. I filed the documents in the same manner as I had in the past. I rec eived a confirmation notice that i2File had rec eived the summons and complaint.
3. L ate in the afte rnoon of J uly 29, 2010, notice was rec eived that the summons and complaint had been reje cted due to the fac t that the date chosen in the the [ sic ] summons

was unavailable

. I inserted a new date on the summons and ref iled both the summons and the complaint prior to the close of business on J uly 29, 2010. I had n ev er h ad a fi l i ng reje cted be causeof a summons date.
4. It wasn’t until J uly 30, 2 0 10 that I rec eived notice that the filing was denied. I lear ned that the date selec ted for the summons was not available so the entire filing was reje cted.” ¶ 7 L ocal rules of the circ uit court of Du Pag e County provide for the implementation of an elec tronic filing ( i.e. “e- filing” ) sy s t em using private vendors as intermediaries betwee n litigants and the cler

k of th e court. Under the rules, when a vendor rec eives an elec tronic document and submits it to the cler k, the vendor shall issue confirmation of the time and date of rec eipt of the document. 18th Judicial C i r. C t. R. 5.11(d) (Nov. 16, 2004). The confirmation shall “ser

ve as proof that the document has been submitted t o the C lerk.” Id. T h e rules provide that “[e]ach document revie wed and acc epted for filing by the Clerk of Court shall rec eive an elect ro n i c fi l e stamp” indicating the time and date of filing (18th J udicial Cir. Ct. R. 5.11(e) (Nov. 16, 2004)) and that “[a]ny document filed elec tronically shall be considere d as filed with the Clerk of the Circuit Court upon revie w and acc eptanc e,

an d t h e transmission has been completed with the Clerk’s elec tronic filing stamp” (18 t h J udicial Cir. Ct. R. 5.11(a) (Nov. 16, 2004)). Howeve r, “any document filed with a [v] endor on a day or at a time when the Clerk is not open for business, unless r ejec ted by the Clerk, shall be deemed to have been accepted at the opening ti me of the nex t b u s i n ess day of t he Clerk.” 18th Judi cial Cir. Ct. R. 5.11(c) (N ov. 16, 2004). ¶ 8 Notably
, in cer tain circ umstances, the trial court may g ive eff ect to unsucce ssful attempts to electr onically

file docume nts. L ocal Rule 5.14(b) provides:
“I f an elec tronic filing is not filed with the Clerk beca use of (1) an err or in the transmission of

the document to the [v]endor which was unknown to the sending party

or (2) a failure t o p ro ce s s t h e elec tronic filing when rec eived by the [v] endor or (3) rejec tion by the Circuit Court Clerk or (4) other technica l problems experience d by the filer or (5) the party was err oneously excluded from the service list, the Court may upon satisfac tory proof enter an order permitting the document to be sub s eq u ently filed eff ective as of t he date the fil ing w as first attempted.”18th J udicial C ir. Ct. R. 5.14(b) (Nov. 16, 2004). ¶ 9 Initially we no t e t h at , taken alone, the para leg al’s aff idavit fails, as a matter of law, to establish due diligenc e. The aff idavit is vague with res p ec t t o the time of day when the
para leg al made her second attempt to file plaintiff’s complaint. The para leg al stated that she

-4-did so “prior to the close of business” on J uly 29, 2010. It is unclea r, howeve r, whether she

was referring to the business hours of the cler k’s office or those of her law firm. I f the
para leg al attempted to ref

ile the complaint and summons after the cler k’s office closed, those documents, even if acc epted by the cler k, would have been deeme d to have been filed on J uly 3 0
, 2 0 10 (18th J udicial C ir. Ct. R. 5.11(c) (Nov. 16, 2004)), on which date the action wa s time-barr ed. The para leg al’s aff idavit is also vague with respe ct to the time of day when she lear ned that the first attemp t to file the complaint had been uns ucce ssful. Thus, we cannot g aug e whether the para leg al had a rea sonable opportunity to r efile befor e the cler k’s office closed for the day

. ¶ 10 Plaintiff argues that “the computer sy stem’s reje ction of the summons and complaint” was beyond the paraleg al’s control. Acco rd i ng to plaintiff, t hose documents wer e rejecte d “not b ec au se of any incorre ct procedure on [the paraleg al’s] part, but beca use the selected date wa s unavailable within the sy stem itself.” Howe ver, thepara leg al’s af fidavit does not indicate how she selec ted the return date for the summons, whether the vendor or the cler k’s office provided any method of confirming the availability of a particular return date, or whether the para leg al actua lly made any eff ort to c onfirm the availability of the return date she selec ted. ¶ 11 In addition, the cler k’s reje ction of the summons and complaint submitt ed on J u l y 2 9
, 2010, did not nece ssarily fore close plaintiff from commencing the action within the two-year limit ations period. I f, as plaintiff claims, the para leg al was not at fault, the trial court would likely have been rec eptive to a reque st pursuant to L ocal Rule 5.14(b) to permit the summons and complaint to be filed eff ective as of July 29, 2010–when the para leg al first attempted to file those documents. Due diligenc e would require an attempt to obtain relief under that rule. Her e, howeve r, the rec ord contains no indication that plaintiff made any such attempt. Rather, plaintiff let the prior lawsuit be dismiss ed for want of prosec ution and she now seeks
to apply the equitable tolling doctrine collater ally to the complaint in that lawsuit. Under these c ircumstance s, it cannot be said that plaintiff a cted with due dilig ence

. ¶ 12 T o t h e ex t ent that plaintiff raised a question of fac t beyond the aff idavit, the lack of a complete rec ord of what transpire d in the trial court hinders our revie w of the dismiss al order

. It is well established that “an appellant has the burden to prese nt a sufficie ntly complete rec ord of the proce eding s at trial to support a claim of err or, and in the absenc e of such a r ecor d on appea l, it will be pre sumed that the orde r ente red by the trial court wa s in confor mity with law and had a sufficie nt fac tual basis.” Foutch v. O’Bry ant , 99 I ll. 2d 389, 391-92 (1984). “Any doubts which may arise from the incompleteness of the rec ord will be resolved ag ainst the appellant.” Id. at 392. On October 31, 2012, th e t ri al court entered an

o rder stating that defe ndant’s motion to dismiss was “ente red and continued for mor e information from the Du Pag e County Clerks [ sic ] office conce rning elec tronic filing of the complaint for November 13, 2012.” The trial court grante d the motio n o n No vember 13, 2012, but the rec ord contains neither a transcript nor a substitut e (see I ll. S. Ct. R. 323 (ef f. Dec

. 13, 2005)) of the proceeding s that took place on that date. Pl aintiff did not file a jury demand. There fore
, in deciding the motion to dismiss pursuant to section 2-619, the trial
court was entitled to resolve materia l questions of fac t. A.F.P. Enterprises, Inc.
, 243 I ll. App. 3d at 912. Howe ver, w e do not know what information, if any , the court re ceive d from the

-5-cler k’s office
, and how any such information aff ecte d the trial court’s decision. Simi larly
, we do not know whether the parties prese nted additional evidenc e bearing on whether equitable tolling was appropriate. Pursuant to Foutch
, we must assume that there wer e sufficie nt fac tual and leg al g rounds for the trial court’s deter mination that the doctrine of equitable tolling did not apply

here

. ¶ 13 For the fore g oing reas o n s , t h e j u d gm en t o f t h e circ uit court of Du Pag e County is aff irmed.

¶ 14 Affir

med.

-6-