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September 07, 2001

No. 2--00--0672

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JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Victory Memorial Hospital (Victory), sought todismiss the complaint of plaintiffs, Nancy Hendricks and RussellHendricks, on the ground that it was the second refiling of thesame cause of action and therefore prohibited by section 13--217 ofthe Code of Civil Procedure (735 ILCS 5/13--217 (West 1998)). Thetrial court denied the motion but certified for appeal the questionwhether section 13--217 barred plaintiffs' action under the factspresented here. We granted defendant's petition for leave toappeal (see 155 Ill. 2d R. 308) and now affirm the circuit court'sdecision.

In 1993, plaintiffs sued Dr. Stephen Sipos for medicalmalpractice. The complaint alleged that Sipos negligently treatedNancy Hendricks at Victory between October 10 and October 16, 1991. The complaint also contained a count alleging loss of consortium onbehalf of Russell Hendricks. At the relevant time, Sipos was astaff physician at Victory.

Plaintiffs voluntarily dismissed their complaint and, onOctober 5, 1995, filed a new complaint against both Dr. Sipos andVictory. The complaint alleged medical negligence against Siposand a theory of "negligent credentialing" against Victory forgranting surgical privileges to Sipos.

Plaintiffs later settled with Sipos and, on November 24, 1998,voluntarily dismissed their complaint against both defendants. OnNovember 23, 1999, plaintiffs filed the present complaint solelyagainst Victory. Victory moved to dismiss, arguing that section13--217, which permits a plaintiff to refile a complaint within oneyear of a voluntary dismissal, allows only one refiling. Victorycontended that plaintiffs' complaint was an impermissible secondrefiling of the same cause of action. The trial court disagreedand denied the motion. The court certified for appeal the questionwhether plaintiffs' cause of action is barred where they previouslyfiled two complaints based on the same core of operative facts butthe first complaint did not name Victory as a defendant. Wegranted Victory's petition for leave to appeal.

Section 13--217 is a general savings provision that allows aplaintiff to refile within one year or within the remaining statuteof limitations, if any, a complaint that has been voluntarilydismissed or dismissed for one of a number of specified reasonsunrelated to the merits. 735 ILCS 5/13--217 (West 1998). Althoughthe statute does not say so, the supreme court has interpreted itto permit only a single refiling of the same cause of action. Timberlake v. Illini Hospital, 175 Ill. 2d 159, 164 (1997); Flesnerv. Youngs Development Co., 145 Ill. 2d 252, 254 (1991).

Victory acknowledges that it was not named as a defendant inplaintiffs' first complaint. Thus, there has been only onerefiling as to it. However, Victory contends that all threecomplaints arose from the same transaction, namely, Dr. Sipos'treatment of Nancy Hendricks in October 1991.

According to Victory, res judicata principles determinewhether causes of action are the same for purposes of section 13--217. Citing River Park, Inc. v. City of Highland Park, 184 Ill. 2d290 (1998), Victory argues that the supreme court has adopted the"transactional" test of res judicata, under which claims will beconsidered the same if they arise from a single group of operativefacts. Plaintiffs respond that an "action," by definition,involves a claim based on a particular set of facts involving aparticular defendant. Therefore, they maintain that their firstaction against Sipos was not an action against Victory.

Although neither party cites it, Flynn v. Allis ChalmersCorp., 262 Ill. App. 3d 136 (1994), controls the outcome of thiscase. 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 attorneysfor Allis Chalmers that Allis Chalmers, rather than American Air,was the real party in interest. Moreover, because Allis Chalmerswas involved in bankruptcy proceedings, the automatic stayprohibited plaintiffs from proceeding against Allis Chalmers instate court. Flynn, 262 Ill. App. 3d at 137-38.

After the bankruptcy proceedings concluded, plaintiffs fileda second complaint in state court naming Allis Chalmers as thedefendant. After being sanctioned for discovery violations,plaintiffs dismissed that complaint and shortly thereafter filedanother complaint against Allis Chalmers. All three complaintsinvolved the same incident. Flynn, 262 Ill. App. 3d at 138.

The court granted Allis Chalmers's motion to dismiss on theground that the complaint was an impermissible second refiling ofthe same cause of action. This court reversed, holding that theidentity of the defendant is an essential element of an "action." Flynn, 262 Ill. App. 3d at 139-40; see 54 C.J.S. Limitations ofActions