Illinois Allows Only One Voluntary Dismissal of a Lawsuit

The Illinois Appellate Court has affirmed a decision made by a Cook County Circuit Court judge regarding a twice-filed injury case.

Michael Fiorito and Joseph Bellocchio were involved in a traffic collision on Oct. 19, 2001. Fiorito was injured and hired a lawyer to sue Bellocchio. 

In August 2003, the attorney for Fiorito filed a complaint against Bellocchio in the Circuit Court of Cook County but never told Fiorito about it.  A year later, Fiorito fired his first lawyer and hired a new one.  The second attorney was unable to determine if the first attorney had filed a lawsuit and so filed a second one on his own in October 2003. 

During the course of the proceedings, the second attorney learned about the lawsuit filed by the first attorney. On March 24, 2004, the second lawyer voluntarily dismissed his lawsuit and decided to go ahead with the original lawsuit filed by the first attorney.

The case went on until 2010. On May 18, 2010, Fiorito voluntarily dismissed his case so that he could alter his complaint and then refile. He filed again on May 16, 2011.

Under Illinois law, a plaintiff may voluntarily dismiss a case without prejudice and is allowed one year to refile it without the statute of limitations expiring.  Fiorito filed within the one-year window, but Bellocchio argued that the one-year window was only for the first time the plaintiff voluntarily dismissed the case.

In this instance, Fiorito, through his second attorney, had voluntarily dismissed his case in 2004. The 2010 dismissal was a second voluntary dismissal, not the first.

Fiorito argued that the previous dismissal was not a voluntary dismissal, but rather a dismissal under Illinois Code of Civil Procedure, §2-619(a)(3), related to duplicative litigation. However, the order that was entered in 2004 referenced §2-1009 of the Illinois Code regarding voluntary dismissals.

Accordingly, the trial court dismissed that case allowing a one-year window that would have began in 2004 for a refiling. When Fiorito withdrew his suit in 2011 to refile it, the window had already been closed.  Accordingly, the trial court did dismiss Fiorito’s suit. He filed a motion to reconsider, which was denied, and he took this appeal.

The Illinois Appellate Court examined this situation and cited precedent where the complaints have been filed and withdrawn without knowledge or permission of client.

If the second attorney had chosen to let the first attorney’s case die for want of prosecution or dismissed the first attorney’s case, then the appellate court seemed to suggest it might answer the question differently. But the second attorney’s suit was fully authorized by Fiorito and by withdrawing the second attorney’s suit and going with the first attorney’s suit, Fiorito also authorized the first lawsuit.

The appellate court stated that if Fiorito had not moved to withdraw his second suit as a voluntary dismissal, or if he had gotten rid of the first lawsuit, which would mean the first suit was entirely unauthorized, then Fiorito would have had the right to refile for up to a year. Because Fiorito’s lawyer did neither of those, the appellate court concluded that the one-year refiling period ran out on March 24, 2005 and thus, the trial court was right in dismissing the case.

Michael Fiorito v. Joseph Bellocchio, 2013 IL App. (1st) 121505-U (Oct. 24, 2013).

Kreisman Law Offices has been handling injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Glenview, Wheeling, Palatine, Highland Park, Joliet, Aurora, Palos Heights, Oak Lawn, Oak Park, River Grove, Harwood Heights, Chicago (Canaryville, Edgebrook, Norwood Park, Logan Square, Little Village) and Oakbrook, Ill.

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