## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Mabry v. Boler , 2012 IL App (1st) 111464

Appellate Court Caption AL I CE MABRY and FL OYD MABRY, by I llinois Fa rmers I n s u ra nce,

as Subrog ee, Plaintiffs-Appellants, v. J EAN BO L ER, DefendantAppellee

.

District & N o. First District, Second D ivision Docke t No. 1-11-1464

Filed May 15, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o 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

. ) In an action arising from the damag es and injuries that occur red in 2006 when defe ndant’s automobile struck plaintiff’s vehicle, the trial court

err ed in dismiss ing with prejudice the complaint filed by plaintiffs in 2010 on the g round that the complaint did not relate back to plaintiff’s 2008 complaint, which plaintiffs dismiss ed wi thout prejudice in 2010, and that it was not filed within the two-y ear statute of limit ations period, since both complaints alleg ed neg lige nce on the part of defe ndant arising from the acc ident in 2006 and the fac t that the 20 1 0 co m p l ai nt soug ht relief differ ent from the relief soug ht in the 2008 co m p l ai n t had no bear ing on t h e fac t that both complaints arose from a single g roup of
operative fac ts and constituted a single cause of action stemming from the

same acc ident; further

more, the 2010 complaint was a permissi b le ref iling of the action under section 13-217 of the C o d e o f C ivil Procedur e.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-M1-302307; the Hon. L aure nce J. Dunford, Judge, pr esiding

.J udg ment Reverse d and re manded.

Counsel on Appea l Shelist L aw F irm, L L C, of Chicag o (Assata N. Peterson a

nd Samuel A. Shelist, of counsel), for

appellants.

L aw Offic e of Mathein & Rostoker, P.C., of Chicag o (David B. Edwar ds, of counse l), for a

ppellee.

Panel J USTI CE CUNNI NGHAM delivere d the judgme nt of the court, with opinion. Presiding J ustice Quinn and Just ice Connors concur red in the judgme nt and opinion.

OP INION

¶ 1 On Marc h 17, 2011, the circ uit c ourt of Cook County enter ed an or der dismissing with prejudice a neg lige nce complaint filed by the plaintiff, I llinois Fa rmers Insuranc e (F arme rs I n s u rance), ag ainst the defe ndant, J ean Bole r. On May 9, 2011, the circ uit court denied Fa rmers Insuranc e’s motion for re co n s i d eration of its Marc h 17, 2011 ruling

. On appea l, Fa rmers Insuranc e argues that: (1) the circ u i t co u rt err ed in dismiss ing with prejudice the
neg lige nce complaint beca use i t was a timely ref

iled cause of action under secti o n 1 3 -2 17 of t h e C o d e of Civil Procedur e (735 I L CS 5/13-217 (West 1994)); and (2) alternatively
, dismiss al of the cause of action was unwar rante d under the relation-back doctrine pursuant to section 2-616(b) of the Code of Civil Procedur e (735 I L CS 5/2-616(b) (West 2010)). For the following rea sons, we reve rse the judgme nt of the circ uit court of Cook County and

rema nd the matter f

or fur ther proc eeding s.

¶ 2 BA CKGROUND ¶ 3 On August 13, 2006, pedestria n Alice Mabry (Alice ) was alleg edly struck and injured by

an automobile driven by J ean Bole r (Jean). At the time of the acc ident, Alice was insured by Fa rmers Insuranc e. In J uly 2008, Fa rmers Insuranc e, as subrog ee pursuant to the insurance 1 policy
, initiated a neg lige nce lawsuit ag ainst J ean (the 2008 complaint), al l egi n g that, on

Far m er s I nsu ra nce re pre sen ts to thi s cou rt tha t the 2008 complai nt was fi le d in J uly 2008
, 1 whil e J ean ’s bri ef bef

ore thi s cou rt st at es tha t it was fi le d in J une 2008

. Alt hough the re cor d is

unc le ar as to the exa ct m ont h of fi li ng, we not e tha t our re sol uti on of the is sue s in thi s cas e was not hin der ed b y this di scr epa ncy.

-2-August 13, 2006, “at or about 100th,” J ean neg lige ntly and car elessly drove her automobile

into Alice’ s automobile, that her acts an d o m issions proxi mately cause d Alice’ s damag es, and that Alice “suff

ere d sever e damag es to [her] [automobi le], losing much of the value of the same, and [her] damag es include the total value of the [automobi le] and/or re p airs to same and renta l char g es, t ow charg es, and appurte nant charg es and m ed i ca l pay ment [ sic ]

cover ag e pay

ments.” The 2008 complaint reque sted that a judgme nt in the amount of $6,850 plus costs be enter ed in Fa rmers I nsuranc e’s f

avor. 2 ¶ 4 On August 25, 2010, Fa rmers Insuranc e voluntarily dismiss ed the 2008 cause of ac tion 3 without prejudice. ¶ 5 On September 10, 2010, Fa rmers Insuranc e filed another neg lige nce complaint ag ainst 4 J ean, a lleg ing that on Aug ust 13, 2006, Alice was a pedestria n near “74 E. 100th Place ” in Chicag o, I llinoi s , wh en J ean’ s automobile struck Alice (the 2010 complaint). The 2010 5 complaint asser

ted that J ean’ s neg lige nt and car eless actions direc tly and proxi mately cause d Alice’ s phy sical injuries, incl u d i n g “seve re shock to her nervous sy stem and bruises, contusions, strains, sprains and lace rations to diverse p ar t s o f [her] body ” and perma nent disability . The 2010 complaint further alleg ed that Alice’ s husband, F loyd Mabry (F loy d),

was deprive d of Alice’ s companionship, and that both Alice and Floyd had become liable for larg e sums of money as a result of Alice’ s medical car e. The 2010 complaint also stated that, pursuant to A lice and Floyd’s insurance policy with F arme rs Insuranc e, Fa rmers Insuranc e had paid $2,000 for Alice’ s medical pay ments and $6,850 in “medica l pay ments and

co m p en s at ion for pain and suffe ring
, loss of a normal life and [Ali ce’ s injuries],” and
reque sted that a judg ment be ente red in its favor in the amount of $8,850 plus costs. ¶ 6 On J an u ar y 1 1
, 2011, J ean filed a section 2-619 motion to dismiss (735 I L C S 5 / 2

- 619(a) (5) (West 2010)), arguing that the 2010 complaint should be dismiss ed with prejudice beca use it was filed afte r the two-y ear statute of limit ations period for persona l injury claims had expired. ¶ 7 On Fe bruar

y 18, 2011, Fa

rmers I nsuranc e filed a

response to J ean’ s motion to dismiss
, arguing that both the 2008 and 2010 compl aints included a prayer for relief for “medica l
pay ments,” that the 2008 lawsuit was voluntarily dismiss ed without pr ejudice, and that the 2010 complaint was re filed within the allowable statutory time period. ¶ 8 On Marc h 1, 2011, J ean filed a reply in support of the motion to dismiss
, arguing that the

Ma bry v. Boler , No. 0 8–M 1–01 5258 (Ci r. Ct . Cook Co.) 2

Alt hough t he Au gust 2 5, 20 10 o rde r e videnc ing Far m er s I nsu ra nce ’s volunt ar y dismissa l 3 of the 2008 complai nt is il le gible in the re cor d bef ore us, the par ti es do not dis put e the acc ura cy of thi s da te

.

T hough unc le ar in the re cor d, the par ti es agree on app eal tha t Sept ember 10, 2010 was the

4 fi li ng date of

th e 20 10 c om

pla int

.

Ma bry v. Boler , No. 1 0–M 1–30 2307 (Ci r. Ct . Cook Co.) 5

-3-2010 complaint was not simply a refiling of the 2 0 0 8 cause of action, but that it “conta ins

fac tual alleg ations and claims for relief that wer e not [pl ed ] i n t he orig inal action.” Specifica lly
, J ean pointed out that the 2010 complaint soug ht “ additional relief in the form of pain and suffe ring
, loss of a normal life, and other relief for bodily injury” which had not been previously pled in the 2008 complaint. Thus, she argued, portions of the 2010 complaint that wer e not pre viously

pled in the 2008 complaint should be dismissed. ¶ 9 On Marc h 17, 2011, the circ uit court g rante d the motion to dismiss
, finding that the 2010 complaint al l egi n g persona l injury claims was a differ ent cause of action from the 2008 complaint alleg ing proper ty damag e. The circ uit court further found that “since there was no claim for persona l injury in the [2008 complaint], the [2010 complaint] [di d] not relate back
to the [2008 complaint]” under section 2-616(b) of the Code of Civil Procedur e (735 I L CS 5/2-616(b) (West 2010)). Thus, the circ uit court dismiss ed the 2 0 1 0 c o mp la int with prejudice for failing to file it within the two-y ear statute of limi tations period from the date of the

acc ident. ¶ 10 On Marc h 31, 2011, Fa rmers Insuranc e filed a motion for rec onsideration of the circ uit court’s Marc h 17, 2011 ruling

. On May 9, 2011, the circ uit co u rt denied the motion for

rec onsidera t i o n

. On May 23, 2011, Fa rmers Insuranc e filed a notice of appea l befor e this
court.

¶ 11 ANALYSI S ¶ 12 The sole inquiry on appea l befor e us, which we revie w de novo , is whether t h e ci rcuit
court err ed in gra n t i n g J ean’ s section 2-619 motion to dismiss Fa rmers Insuranc e’s 2010 complaint with prejudice

. See Citi ze n s Opposing Pollution v. Exx onMobil Coal U.S.A.
, 2012 I L111286, ¶ 22. ¶ 13 Fa

rm er s I n s u rance argues that the circ uit court err ed in dismiss ing its 2010 complaint with prejudice on the basis that it did not “re late back” to the 2008 cause of action pursuant to se ction 2-616(b) of the Code of Civil Procedur e (the Code) (735 I L CS 5/2-616(b) (West 2010)). I t maintains that section 2-616(b) was not the proper vehicle by which to analy ze the timeliness of the claims that wer e raised in the 2010 complaint. Rather, it c ontends that the 2010 complaint was a timely ref iled new c ause of

action pursua

nt to section 13-217 of the Code (735 I L CS 5/ 13-217 (West 1994)). ¶ 14 J ean c ounters that F arme rs Insuranc e has forf eited the argument on appea l that section 13-217 of the Code applied to the instant case beca use it was neither in its response to J ean’ s section 2-619 motion to dismiss nor in its motion for rec onsideration. For feiture aside, J ean argues, the application of sec tion 13-217 to the case at bar would not have chang ed the circ uit court’s decision to dismiss the 2010 complaint with pr ejudice beca use the 2008 and 2010 lawsuits did not arise from the same core of operative fac ts. J ean maintains instead that the 2 0 1 0 complaint was proper ly dismiss ed pursuant to section 2-619(a )(5) of the Code beca use it was filed afte r the two-y ear statute of limit ations period for the persona l injury and loss of consortium claims had passe d. ¶ 15 As a preliminary matter, we deter mine whether Fa

rmers Insuranc e’s arg

ument perta ining

-4-to the applicability of section 13-217 of the C o d e h as b een forf eited on appea l. Gene rally
, arguments not raised before the circuit court ar e for feited a nd cannot be raised f

or the fir st time on appea l. Village of Roselle v. Commonwea lth Edison Co.
, 368 I ll. App. 3d 1097, 1109, 859 N.E.2d 1, 12 (2006). Howeve r, our revie w of the rec ord indicates that Fa rmers Insuranc e did raise this argument, albeit vaguely
, in its Fe bruar y 18, 2011 response to J ean’ s section 2-619 motion to dismiss

. In that response, Fa rm ers Insuranc e asser ted that it had ref iled its complaint “within 1 y ear ” of the voluntary dismiss al of its orig inal 2008 lawsuit. We find that asser

tion to have been sufficie nt to alleg e the one-year statutory ref iling period allowed by section 13-217 of the Code, for purposes of prese ntation of the issue on appea l. Thus, we conclude that Fa rmers Insuranc e has not forf eited revie w of this argument on appea l. Neve rtheless, J ean asser ts, without any ref

ere n ce t o the rec ord, that Fa rmers Insuranc e, in opposing the motion to dismiss
, advanc ed the argument that th e 2 010 complaint related back to the 2008 complaint pursuant to section 2-616(b) of the C od e. W e find that it is unclea

r what arguments wer e made befor e the circ uit court at the hear ing on the motion to dismiss, beyond those set forth in the parties’ written pleading s perta ining to the motion
to dismiss

. No transcr ipt or by stander’ s repor t of th e hear ing is contained in the rec ord on appea l. Whil e it is g ener ally the burden of the appellant, Fa rm ers Insuranc e, to provide a sufficie ntly complete rec ord of the circ uit court proce eding s (see Foutch v. O’Bry ant , 99 I ll. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984))
, we find that had J ean wanted to asser t estoppel claims ag ains t Fa rm ers Insuranc e, she could have done so and should have reque sted to supplement the rec ord on appea l with transcr ipts of the hear ing on the motion to dismiss

. She did not do so. As discussed, beca use we find that Fa

rmers Insuranc e sufficie ntly alleg ed the applicability of section 13-217 in its written response to J ean’ s motion to dismiss
, the issue of whether Fa

rmers Insuranc e had also made argum en ts perta ining to the applicability of section 2-616(b) befor e the circ uit court had absolutely no bear ing on the revie wability of Fa rmers Insuranc e’s section 13-217 arg uments on appea l. There fore
, we proce ed to addre ss the merits of F arme rs Insuranc e’s c ontentions on appea l. ¶ 16 Section 13-217 of the Code provides in per tinent part the following : “[I ]f judgment is enter ed for the plaintiff but r ever sed on appea l, or if there is a verdic t in favor of the plaintiff and, upon a motion in arr est of judgme nt, the judgme nt is enter ed
ag ainst the plaintiff, or the action is v oluntaril y dismissed by the plaintif f
, or the action is dismiss ed for want of prosec ution, or the action is dismiss ed by a United States District Court for lack of jurisdiction, or the action is dismiss ed by a United States District Court for improper venue, then, whether or not the time limitati on for bringing such action expire s during the p endenc

y of such action
, the plaintiff, his or her heirs, executors or adm inistrators may comme nce a new action withi n one year or withi n the remaining period of limitati on, whicheve r is greater *** .” (Emphase s added.) 735 I L CS 5/13-217 (West 1994). 6

T his versi on of sec ti on 13- 217 is cur re ntl y i n ef fe ct bec aus e i t p re ced ed t he amendm ent s 6 of Publ ic Act 89- 7, § 15, ef f. Ma rc h 9, 1995
, whic h our sup re m e cou rt fou nd unc ons ti tut ion al in it s ent ir et y. Se e Huds on v. Ci ty of Chi cag o , 228 I ll . 2d 462, 469 n.1, 889 N.E.2d 210, 214 n.1 (20 08)

-5-Section 13-217 operates as a “saving s statute, with the purpose of fac ilitating the dispositi on

of litigation on the merits and to avoid frustration upon g rounds unrelated to the merits.” S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexande r , 181 I ll. 2d 489, 497, 693 N.E.2d 338, 342 (1998). ¶ 17 In dismiss ing the 2010 cause of action with prejudice
, the circ uit court held that the 2010 complaint d i d n ot “re late back” to the 2008 complaint under section 2-616(b) of t he C ode and was thus untimely beca use it was filed beyond the two-y ear statute of limit ations period for persona l injury claims. We ag ree with Fa rmers Insuranc e’s contention that the circ uit court’s relation-back analy sis under section 2-616(b) was the improper vehicle by which to deter mine the timeliness of the cla ims presented in the 2010 c omplaint. ¶ 18 Section 2-616 of the Code g overns the amendments of pleading s and not r efiled cause s of actions. Apollo Real Estate Inve stment Fund IV, L.P. v. Gelber
, 398 I ll. App. 3d 773, 782, 935 N.E.2d 949, 958 (2009). Sect io n 2

- 616, entitled “Amendme nts,” is “conc erne d only with

am en dments and when they should be permitted.” (Interna l quotation marks omitted

. ) Id

. “Refiling s are g overne d by section 13-217 of the Code [citation]
, and not s ec t i o n 2 -616 [citation] .” Id. at 783, 935 N.E.2d at 958. ¶ 19 We find Gelbe r particula rly instructive. In Gelber
, the plaintiff filed a lawsuit in J une 2005 ag ainst the defe ndants to collect money that was alleg edly transfe rre d to the defe ndants by fra ud in J une 2001. Id. at 776, 935 N.E.2d at 953. Subsequently
, the circ uit court g rante d the defe ndants’ motion to dismiss all three counts of the 2005 complaint. Id. In Fe b ru ar y 2006, the plaintiff filed a first amende d complaint, which the circ uit court also dismiss ed on the basis that it failed to state a c laim pursuant to section 2-615. Id. at 776-77, 935 N.E.2d
at 953. The circ uit court allowed the plaintiff 28 day s to amend its complaint; howeve r, the plaintiff neither

amende d the complaint nor a ppeale d the dismissal. Id. at 777, 935 N.E.2d
at 953-54. Instead, in J une 2006, the plaintiff v o l u n t arily dismiss ed the cause of action without prejudice

. Id.
, 9 3 5 N.E.2d at 954. In May 2007, the plaintiff ref iled the cause of action ag ainst the same defe ndants, ag ain asser ting claims of fra

ud and adding a new claim of unjust e nrichment. Id. After the circ uit c ourt dismiss ed the 2007 complaint, the plaintiff filed a first amende d complaint alleg ing the same claims. Id. The circ uit court then dismiss ed the claims of fra

ud on the basis that they failed to state a cause o f ac tion, but allowed the unjust enric hment claim to stand. Id. The defe ndants then filed an addit i o n al m o tion to dismiss the unjust enric hment claim, which t h e ci rcuit court denied. Id. The defe ndants’ motion for summary judgme nt was also denied. Id. There afte r, the circ uit court cer ti f ie d th ree questions for interlocutory appea l, including whether the claim for unjust enric hment, which

was asser ted for the first time a s part of the ref iled 2007 action, related back to the orig inal

cause of action. Id. at 774, 935 N.E.2d at 952. On interlocutory appea l, this court found that the 2007 ref

iled cause of action was not an amendment of the ear lier 2005 lawsuit, that it was not an amende d pleading subject to section 2-616(b) of the Code but, rathe r, that it was a new lawsuit. Id. at 782, 935 N.E.2d at 958. Thus, beca use t he unjus t enric hment claim was not

(c it ing Bes t v . Tay lor

M ach ine W ork s , 179 I ll . 2d 367, 689 N.E.2d105 7 ( 1997 ))

.
-6-raised in an amended plea ding to the origina l 2005 lawsuit, the review ing c ourt found t hat

section 13-217, rathe r than section 2-616(b)
, was applicable

. Id. at 782-83, 935 N.E.2d at 958. The Gelber court then held that the ref iled 2007 lawsuit was timely filed under section 13-217 and the unjust enric hment claim was timely raised within one y ear afte r the plaintiff’s J une 2006 voluntary

dismiss al of the 2005 la

wsuit. Id. at 786, 935 N.E.2d at 961. ¶ 20 In the case at bar, the alleg ed acc ident occur red on August 1 3
, 2 0 0 6

. I n J u l y 2 0 0 8
, Fa rmers Insu ra n ce fi led a cause of action alleg ing neg lige nce ag ainst J ean and reque sting damag es for Alice ’s prope rty and medica l cover ag e pay ments. L ike Gelber
, on August 25, 2010, Fa rmers Insuranc e voluntarily dismiss ed the 2008 cause of action without prejudice

. On September 10, 2010, Fa rmers Insuranc e ref

iled a neg lige nce lawsuit ag ainst J ean, which
reque sted damag es for Alice’ s phy sical injury
, pain and suffering
, medical cover ag e pay ments and Floyd’s loss of consortium. Applying the principles of Gelber
, we find that the 2010 complaint was not an amende d pleading to the 2008 lawsuit and, thus, was not subject
to the provisions of section 2-616(b)

. Rather, the 2010 complaint was a re fi led cause of action under section 13-217 of the Code. Thus, section 13-217 of the Code g overns whether the 2010 complaint was timely filed. Under section 13-217, a cause of acti o n t h at was voluntarily dismiss ed by the plaintiff may be ref iled “within one y ear or within the rema ining period of limit ation, whicheve r is g reater.” 735 I L CS 5 /13-217 (West 1994). Fa rmers Insuranc e’s 2010 complaint alleg ed a cause of action sounding in tort, which permits a statute of limit ations period of two y ear s from the date that the cause of action acc rued. See 735 I L CS 5/13-202, 13-2 03 (West 2010). Initially
, the 2008 complaint was filed in J uly 2008, which was within the two-y ear statute of limit ations period for claims sounding in tort. Be cause the cause of action acc rued on August 13, 2006, and the statute of limit ations period expired on August 13, 2008, the g reater of the two periods for ref iling Fa rmers Insuranc e’s lawsuit was within one y ear of the voluntary dismiss al of the 2008 lawsuit. There fore
, Fa rmers Insuranc e had until August 25, 2011, a y ear from the voluntary dismiss al, to r efile the dismiss ed cause of action. Acc ording ly
, we conclude that Fa rmers Insuranc e timely ref iled the cause of action ag ainst J ean on September 10, 2010, prior to the expiration of the section 13-217 pe riod. ¶ 21 Noneth el es s , J ea n m ai n t ai n s t h at Fa rmers Insuranc e’s 2010 complaint was not a permissible “re filing” under section 13-217 beca use it stated fac ts in direc t contra diction to the 2008 complaint. She ar g ues t hat t he facts allege d in the 2008 and 2010 complaints did
not arise from a “sing le g roup of operative fac ts,” and that the 2010 complaint fa iled to

m en tion any theory of recover y perta ining to proper

ty damag e, as was alleg ed in t h e 2 0 0 8 complaint. ¶ 22 “[T] he filingof a c omplaint is considered a ‘re filing’ of a pr eviously filed complaint if it contains the s am e cause of action as define d by res judicata principles.” Schrager v. Grossman
, 321 I ll. App. 3d 750, 755, 7 5 2 N. E.2d 1, 4 (2000). “Separ ate claims are considere d the same c ause of action for purposes of res judicata if they arise f rom a sing le
g roup of operative fac ts.” Id.
, 752 N.E.2d at 4-5. Whil e a single g roup of operative fac ts may g ive rise to the asser

tion of more than one kind of relief or more than one theory of rec overy , “ ‘ “asse rtions of differ ent kinds or theories of relief arising out of a single g roup of operative

-7-fac ts constitute but a single c ause of action.” ’ ” Id. at 757, 752 N.E.2d at 6 (quoting River P a rk, Inc. v. City of Highland Park
, 184 I ll. 2d 290, 315, 703 N.E.2d 883, 895 (1 9 9 8 ), quoting Torcasso v. Standard Outdoor Sales, Inc.
, 157 I ll. 2d 484, 490-91, 626 N.E.2d 225, 228 (1993)) ; acc ord Don Saf fold Enterprises v. Concept I, In c. , 316 I ll. App. 3d 993, 996, 739 N.E.2d 27, 29 (2000)

. ¶ 23 We find J ean’ s arguments to be without merit. Both the 2008 and 2010 complaints filed by Alice alleg ed neg lige nce ag ainst J ean arising out of the automobile acc ident that alleg edly

occur red on August 13, 2006. Specifica lly
, both complaints alleg ed that J ean car elessly and
neg lige ntly operated her vehicle, which cause d the collision at issue. Although the relief
soug ht in the 2010 complaint differ ed from the relief reque sted in the 2008 complaint, such differ ence had absolutely no bear ing on the fac t that the fac tual allega t i ons in the two complaints arose from a single g roup of opera tive fac ts–namely
, that J ean’ s alleg edly
neg lige nt actions on the specific date of August 13, 2006 resulted in the acc ident at issue. See River Park, Inc.
, 184 I ll. 2d at 315, 7 0 3 N. E

. 2 d at 895 (asse rtions of differ ent kinds or theories of relief arising out of a single g roup of operative fac ts c onstitut e a single cause of action). L ikewise, althoug h the 20 0 8 co m p laint alleg ed that J ean’ s vehicle neg lige ntly collided with Alice’ s vehicle, a nd the 2010 complaint asser ted that J ean’ s vehicle c ollided with Alice’ s person, these distinctions could not a nd did not wholly neg ate the fac t that the
two complaints, brought ag ainst the same defe n d an t , const ituted a single cause of action stemming from the same acc ident. We further reje ct J ean’ s arguments that differ ence s betwee n the two complaints, such as the descr iption of the acc ident location as “at or about 100th” in the 2008 complaint as opposed to “nea r 784 E. 100th Place” in the 2010 complaint, showed that they did not arise from the same g roup of operative fac ts. Ba sed on our revie w of the rec ord, we find these distinctions to be minor and that, when viewed in the context of the pleading s’ entirety
, both complaints adequately g ave J ean notice of the litigation which

arose from a single acc ident on August 13, 2006 involving the collision of her automobile. See Gonzalez v. Thorek Hospital & Medic al Center
, 143 I ll. 2d 28, 36-37, 570 N.E.2d 309, 313 (1991) (statute of limit ations is extended by section 13-217 when the defe ndant alre ady has had notice of litigation arising out of the same f

acts a nd circ umstances) . Thus, we f ind that Fa rmers Insuranc e’s 2010 complaint was a permissibl e re fi l i n g of the cause of action under section 13-217 of the Code, and as such, could asser t new theories of relief or rec overy perta ining to the acc ident. Th ere fore
, the circ uit court err oneously dismiss ed Fa rmers Insuranc e’s 2010 complaint with prejudice

. Acc ording ly
, in light of our holding, we need not addre ss Far

mers Insuranc e’s a lternative a rguments. ¶ 24 Notwithstandi n g t h is court’s holding, J ean asser ts for the first time on appea l that the 2010 compl ai n t was proper ly dismiss ed with prejudice for lack of diligenc e pursuant to I llinois Supreme Court Rule 103(b) (ef f. J uly 1, 2007). Rule 103(b) require s that the plaintiff exercise rea sonable diligenc e in obtaining service of proce ss on the defe ndant in a cause of action. I ll. S. Ct. R. 103(b) (ef f. J uly 1, 2007). We find that J ean has forf eited revie w of this
argument raised for the first time on appea l beca use it was never prese nted in the circ uit
court. See Village of Rosel l e , 3 68 I ll. App. 3d at 1109, 859 N.E.2d at 12 (ar g uments not raised befor e the circ uit court are forf eited and cannot be raised for the first time on appea l).

-8-We f urther note that in ma

king this a

rgument, J ean fails to c ite to a ny rele vant pag es in the

rec ord on appea l. See I ll. S. Ct. R. 341(h)( 7), (i) (ef f. J uly 1, 2008) (ar g uments made in appellate briefs shall contain “citation of the authorities and the pag es of the rec ord relied on” and that points not argued are forf eited); see g ener ally Curtis v. Lofy , 394 I ll. App. 3d 170, 189
, 9 14 N.E.2d 248, 263-64 (2009). The rules promulg ated by our supreme court are not aspirational nor mere ly sug g estions, but rathe r, they “have t h e fo rc e of law, and the presumption must be that they will be obey ed and enfor ced as written.” Bright v. Dicke
, 166 I ll. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995); Billerbeck v. Caterpillar Tractor Co.
, 292 I ll. App. 3d 350, 353, 685 N.E.2d 1018, 1020 (1997). For these rea sons, we d ecline to addre ss the merits of this argument. ¶ 25 For the fore g oing rea sons, we reve rse the judgme nt of the circ uit court of Cook County and re mand the matter

for f urther pr ocee dings.

¶ 26 Reverse d and re manded.

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