No. 2--00--0672

_________________________________________________________________ 

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

NANCY HENDRICKS and RUSSELL	)	Appeal from the Circuit Court

HENDRICKS,       	)	of Lake County.

                                )

     Plaintiffs-Appellees,      )

                                )  No. 99--L--925

v.			)

	)

VICTORY MEMORIAL HOSPITAL,      )  Honorable	 

	)	Stephen E. Walter,

	Defendant-Appellant.	)	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:

	Defendant, Victory Memorial Hospital (Victory), sought to dismiss the complaint of plaintiffs, Nancy Hendricks and Russell

Hendricks, on the ground that it was the second refiling of the

same cause of action and therefore prohibited by section 13--217 of

the Code of Civil Procedure (735 ILCS 5/13--217 (West 1998)).  The

trial court denied the motion but certified for appeal the question

whether section 13--217 barred plaintiffs' action under the facts

presented here.  We granted defendant's petition for leave to

appeal (see 155 Ill. 2d R. 308) and now affirm the circuit court's

decision.

	In 1993, plaintiffs sued Dr. Stephen Sipos for medical

malpractice.  The complaint alleged that Sipos negligently treated Nancy Hendricks at Victory between October 10 and October 16, 1991.  The complaint also contained a count alleging loss of consortium on behalf of Russell Hendricks.  At the relevant time, Sipos was a staff physician at Victory.

	Plaintiffs voluntarily dismissed their complaint and, on

October 5, 1995, filed a new complaint against both Dr. Sipos and

Victory.  The complaint alleged medical negligence against Sipos

and a theory of "negligent credentialing" against Victory for

granting surgical privileges to Sipos.

	Plaintiffs later settled with Sipos and, on November 24, 1998,

voluntarily dismissed their complaint against both defendants.  On

November 23, 1999, plaintiffs filed the present complaint solely

against Victory.  Victory moved to dismiss, arguing that section

13--217, which permits a plaintiff to refile a complaint within one

year of a voluntary dismissal, allows only one refiling.  Victory

contended that plaintiffs' complaint was an impermissible second

refiling of the same cause of action.  The trial court disagreed

and denied the motion.  The court certified for appeal the question

whether plaintiffs' cause of action is barred where they previously

filed two complaints based on the same core of operative facts but

the first complaint did not name Victory as a defendant.  We

granted Victory's petition for leave to appeal.

	Section 13--217 is a general savings provision that allows a

plaintiff to refile within one year or within the remaining statute

of limitations, if any, a complaint that has been voluntarily

dismissed or dismissed for one of a number of specified reasons

unrelated to the merits.  735 ILCS 5/13--217 (West 1998).  Although

the statute does not say so, the supreme court has interpreted it

to permit only a single refiling of the same cause of action.  Timberlake v. Illini Hospital, 175 Ill. 2d 159, 164 (1997); Flesner v. Youngs Development Co., 145 Ill. 2d 252, 254 (1991).

	Victory acknowledges that it was not named as a defendant in

plaintiffs' first complaint.  Thus, there has been only one

refiling as to it.  However, Victory contends that all three

complaints arose from the same transaction, namely, Dr. Sipos'

treatment of Nancy Hendricks in October 1991.

	According to Victory, res judicata principles determine whether causes of action are the same for purposes of section 13--

217.  Citing River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (1998), Victory argues that the supreme court has adopted the

"transactional" test of res judicata, under which claims will be considered the same if they arise from a single group of operative

facts.  Plaintiffs respond that an "action," by definition,

involves a claim based on a particular set of facts involving a

particular defendant.  Therefore, they maintain that their first

action against Sipos was not an action against Victory.

	Although neither party cites it, Flynn v. Allis Chalmers Corp., 262 Ill. App. 3d 136 (1994), controls the outcome of this case.  In Flynn, plaintiffs sued American Air Filter Company (American Air), a subsidiary of Allis Chalmers, in state court. 

Plaintiffs dismissed that action after being informed by attorneys

for Allis Chalmers that Allis Chalmers, rather than American Air,

was the real party in interest.  Moreover, because Allis Chalmers

was involved in bankruptcy proceedings, the automatic stay

prohibited plaintiffs from proceeding against Allis Chalmers in

state court.  Flynn, 262 Ill. App. 3d at 137-38.

	After the bankruptcy proceedings concluded, plaintiffs filed

a second complaint in state court naming Allis Chalmers as the

defendant.  After being sanctioned for discovery violations,

plaintiffs dismissed that complaint and shortly thereafter filed

another complaint against Allis Chalmers.  All three complaints

involved the same incident.  Flynn, 262 Ill. App. 3d at 138.

	The court granted Allis Chalmers's motion to dismiss on the

ground that the complaint was an impermissible second refiling of

the same cause of action.  This court reversed, holding that the

identity of the defendant is an essential element of an "action." 

Flynn, 262 Ill. App. 3d at 139-40; see 54 C.J.S. Limitations of Actions §245, at 324 (1987) (savings provision similar to section 13--217 "is inapplicable in the case of a defendant who was a

stranger to the original action").  We held that because the first

complaint was against a separate corporate entity, Allis Chalmers

could not rely on that pleading to argue that the current complaint

against it was an improper second refiling.  Flynn, 262 Ill. App. 3d at 140.  The First District has recently followed Flynn in Don Saffold Enterprises v. Concept I, Inc., 316 Ill. App. 3d 993 (2000).  The court there held that res judicata principles did not bar plaintiff's third complaint because, although based on the same

contract, the three pleadings did not involve the same defendants. 

Don Saffold Enterprises, 316 Ill. App. 3d at 996.

	Like the defendants in Flynn and Don Saffold, Victory simply was not a party to the first action between plaintiffs and Sipos. 

Victory may not rely on that action to claim that the present

complaint is an impermissible second refiling.

	Both parties discuss at length Evans ex rel. Evans v. Lederle Laboratories, 167 F.3d 1106 (7th Cir. 1999).  There, plaintiffs initially filed a complaint in state court alleging that their son

was injured by a childhood vaccine.  The original complaint named

only a doctor and the clinic where he practiced.  Plaintiffs

dismissed that complaint and filed a diversity action in federal

court, naming the doctor, the clinic, and Lederle Laboratories

(Lederle).  Plaintiffs dismissed that action to pursue a special

statutory remedy in the Court of Claims.  After that proceeding was

terminated unsuccessfully, plaintiffs refiled their action in the

federal district court, which dismissed the action as to all three

defendants.  Evans, 167 F.3d at 1108.

	The appeals court had no trouble upholding the dismissal of

the doctor and the clinic on the ground that the suit was the

second refiling of the same action (the appeals court apparently

did not consider the Court of Claims proceeding to be a

"refiling").  However, the court also affirmed the dismissal of

Lederle, although it had not been named in the state-court

complaint.  Evans, 167 F.3d at 1113.  Needless to say, Victory urges us to follow Evans while plaintiffs argue that it was incorrectly decided and we should not follow it.

	Initially, Evans is factually distinguishable from this case.  It appears that the appeals court viewed the case as a matter of

compulsory joinder.  The court referred to a policy of joining

"necessary defendants" and referred to Lederle's absence from the

first proceeding as a "technicality" and an "oversight."  Evans, 167 F.3d at 1113 & n.9.  In that case, all three defendants were

potentially liable for exactly the same conduct: providing the vaccine to plaintiffs' son.  Here, plaintiffs' causes of action

against Sipos and Victory, while relating in a general way to the

same conduct, allege separate activities.  Sipos was allegedly

liable for negligently treating Nancy Hendricks while Victory is

allegedly liable for negligently giving Sipos credentials to

practice at the hospital.  Victory's acts involved in credentialing

Sipos necessarily took place earlier than Sipos' treatment of

Hendricks and involved entirely different activities.

	To the extent that Evans cannot be distinguished from this case, we decline to follow it.  Opinions of the lower federal

courts do not bind this court.  Hinterlong v. Baldwin, 308 Ill. App. 3d 441, 452 (1999).  In considering the issue with regard to

Lederle, the court stated, "The Illinois rule does not

differentiate on its face between actions brought against different

defendants by the same plaintiff.  Evans cites no instance in which

a court in Illinois has ignored the rule on this basis."  Evans, 167 F.3d at 1113.  Apparently the Evans plaintiffs did not cite Flynn.

	We continue to adhere to Flynn.  We therefore answer the certified question, whether section 13--217 bars refiling where

plaintiffs had filed two previous actions relating to the same

incident but defendant was not a party to the first action, in the

negative.  The trial court correctly determined that plaintiffs'

present action could go forward.  We affirm the court's order

denying the motion to dismiss and remand the cause for further

proceedings.

	Certified question answered; order affirmed; cause remanded.

	GEIGER and GROMETER, JJ., concur.