FOURTH DIVISION September 10, 2015

No. 1-14-3437

STEPHEN J. KLANCIR, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 13 L 11652 ) BNSF RAILWAY COMPANY, ) Honorable ) John H. Ehrlich, Defendant-Appellee. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Stephen J. Klancir, was allegedly injured on January 6, 2009 during the course

of his employment with Defendant, BNSF Railway Company. On June 24, 2009, Plaintiff filed

a complaint against Defendant pursuant to the Federal Employer’s Liability Act (FELA). FELA

carries a three-year statute of limitations.

(2006). On October 23, 2012, Plaintiff

moved to voluntarily dismiss his complaint pursuant to section 2-1009 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-1009 (West 2012)).

¶2 On October 21, 2013, Plaintiff filed his second complaint against Defendant based on the

January 6, 2009 injury. Defendant moved to dismiss the 2013 complaint pursuant to section 2-

619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2012)). The trial court granted

Defendant’s motion to dismiss Plaintiff’s 2013 complaint. This appeal followed.

¶3 For the following reasons, we affirm.

¶4 BACKGROUND

¶5 The facts are not in dispute but the context of Plaintiff’s motion to voluntarily dismiss the

complaint in 2012 is necessary to an understanding of Plaintiff’s arguments in this appeal. This 1-14-3437

matter was scheduled to proceed to trial. On October 23, 2012, the parties appeared in the circuit

court of Cook County with “a problem about scheduling.” The trial was supposed to have begun

the previous Friday but because defense counsel had another trial, the trial of this matter did not

begin on that date. Plaintiff’s attorney informed the court that because of the remaining matters

to be addressed before trial began, counsel would be unable to present his economics expert

witness. The expert had to testify by noon the following day because of another obligation and

Plaintiff’s counsel feared that given the pretrial matters left to be addressed and the order in

which counsel wanted to present his witnesses, he would not get to that witness in time. The

judge asked Plaintiff’s counsel how he wanted to proceed and counsel responded as follows:

“Well, what I suggest is we maybe mis-try it and get a new date to set the case, because this is

the key witness on our case.”

¶6 The trial judge informed Plaintiff’s counsel he could not proceed in that way because he

(the judge) did not set trial dates. The judge stated that if Plaintiff took “a voluntary” and refiled

within a year the case would go to a motion call and the trial judge suggested Plaintiff might be

able to “get an agreement with the defense to fast track it.” The judge then suggested that

Plaintiff present the witnesses out of order and start with the expert. Plaintiff stated doing so

would be detrimental to his case and rejected the judge’s suggestion. Plaintiff’s counsel and the

trial judge were discussing the pretrial matters left to be addressed, and Plaintiff’s ability to have

his expert testify if trial did begin, when Plaintiff’s counsel inquired about the trial judge’s

statement that Plaintiff had an absolute right to voluntarily dismiss the complaint. The judge

reiterated Plaintiff’s absolute right to voluntarily dismiss the case without stating a reason for

doing so. Plaintiff’s counsel then requested to confer off the record with defense counsel.

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¶7 When proceedings on the record resumed, the trial judge asked Plaintiff’s counsel how

counsel wished to proceed. Plaintiff’s counsel responded: “The only alternative that I could see

would be a continuance, but that would take agreement of all the parties.” The trial judge told

Plaintiff’s counsel “I don’t have the power to give a continuance.” Plaintiff’s counsel then

asked: “If we nonsuit it, can we have an agreement, is there such a thing as a fast track?” The

judge stated he could not order it and that it would be up to the defense. Plaintiff’s counsel asked

defense counsel if he would agree to fast track the case because Plaintiff’s counsel was unable to

present his expert witness in the way he wanted (stating he could not present the witness “in a

timely manner”). Plaintiff’s counsel stated “[t]hat judgment has already been made” in an

apparent reference to the decision not to proceed with the trial that day. Plaintiff’s counsel stated

he was asking the defense to agree to a fast track because he was seeking to “cut the delay as

short as possible with a nonsuit.”

¶8 Defense counsel responded as follows:

“And I guess—I don’t know what the term fast track means

or what it entails, so I mean if the idea is that you guys are going to

go refile next week and we’re going to go in and ask for an early

trial date as soon as the court will accommodate us based on

everybody’s schedule with the witnesses, I’m good with that.”

¶9 Plaintiff’s counsel stated, “That’s all we can do.” After clarifying that any new trial date

would depend on their respective schedules, defense counsel later said he had no problem with

trying “to get it back going as soon as we can.” Plaintiff’s counsel then said: “Well then, with

that being the case, I will make a record that we will do a nonsuit.”

¶ 10 The record Plaintiff’s counsel made was as follows:

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“Based on the scheduling, for the record, we find ourself

with our key witness not being available, which we knew was

going to happen, and that is the reason why we moved the case to

start last Friday. Unfortunately we couldn’t do that. Now the

schedule is closed and it’s critical to our case that we present our

evidence in a prescribed manner. We cannot do that, therefore we

will nonsuit the case and go to the court and refile it and ask that it

be put on the fast track.”

¶ 11 The trial judge instructed the parties to prepare an order. The order, dated October 23,

2012, reads as follows: “Plaintiff moves for a voluntary nonsuit, without prejudice. Plaintiff’s

motion is granted without prejudice. Plaintiff may refile this cause within one year pursuant to

statute. Plaintiff shall pay Defendant’s statutory costs upon refiling.” Plaintiff did not refile his

complaint until October 21, 2013. Defendant received service of the refiled complaint on

February 26, 2014.

¶ 12 On April 17, 2014, Defendant filed a motion to dismiss Plaintiff’s complaint on the

grounds the statute of limitations for Plaintiff’s claim expired prior to the filing of the complaint

and Illinois’s saving statute does not apply to Plaintiff’s claim under FELA. Alternatively,

Defendant argued Plaintiff’s complaint should be dismissed pursuant to Illinois Supreme Court

Rule 103(b) (eff. July 1, 2007) because Plaintiff delayed four months to serve Defendant. In

opposition to Defendant’s motion to dismiss Plaintiff’s refiled complaint, Plaintiff’s attorney

averred that “Before Judge Varga would sign the Order with the language ‘without prejudice’, he

first demanded that I call counsel for the Defendant to confirm that that was our understanding

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and agreement.” “In response to my query, Erika G. Baldonado ([Defendant’s attorney])

confirmed that the dismissal was ‘without any prejudice.’ ” (Emphasis in original.)

¶ 13 On June 23, 2014, following briefing by the parties, the circuit court of Cook County

granted Defendant’s motion to dismiss with prejudice pursuant to section 2-619(a)(5) and (a)(9)

of the Code. 735 ILCS 5/2-619(a)(5), (a)(9) (West 2012). On July 21, 2014, Plaintiff filed a

motion to reconsider. On September 24, 2014, the court denied Plaintiff’s motion to reconsider.

This appeal followed.

¶ 14 ANALYSIS

¶ 15 The trial court entered judgment granting Defendant’s motion to dismiss Plaintiff’s

complaint pursuant to section 2-619(a) of the Code, which allows for the involuntary dismissal

of an action that “was not commenced within the time limited by law.” (Internal quotation

marks omitted.) Carlson v. Fish,

, ¶ 22 (quoting 735 ILCS 5/2-

619(a)(5) (West 2012)). “Whether a cause of action was properly dismissed under section 2-

619(a)(5) of the Code based on the statute of limitations is a matter we review de novo.

[Citation.]” Id.

¶ 16 Plaintiff nonsuited his cause of action on October 23, 2012. The Illinois saving statute

(735 ILCS 5/13-217 (West 2012)) allows plaintiffs who nonsuit cases to refile their cases within

one year regardless of whether a limitation period set by Illinois statutes has expired. “Section

13-217 grants a plaintiff who voluntarily dismisses his complaint the right to refile within one

year or within the remaining period of limitation, whichever is greater.” (Internal quotation

marks omitted.) Case v. Galesburg Cottage Hospital,

(2007). Under Illinois

law, Plaintiff had an absolute right to take a nonsuit. However, the Illinois saving statute tolls

the statute of limitations only where the statute of limitations is set by Illinois law. See Nichols

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v. G.D. Searle & Co.,

(1996) (rejecting plaintiffs’ argument saving

statute applied where under Illinois borrowing statute, statute of limitations in plaintiffs’ home

jurisdictions where the causes of action arose applied to their claims, and claims were time-

barred under the laws of their home jurisdictions); Evans v. Lederle Laboratories, a Division of

American Cyanamid Co.,

(C.D. Ill. 1995) (section 13-217 is “part and

parcel” of Illinois total statute of limitations (internal quotation marks omitted)).

¶ 17 The limitations period in Plaintiff’s case is set by federal law. Plaintiff’s action was

governed by FELA, which limits the time to commence the action to “three years from the day

the cause of action accrued.”

(2006). For cases arising under FELA, the three-

year statute of limitations is “a condition of liability constituting a substantial part of the right

created” and “federal law controls all substantive rights. [Citation.]” (Internal quotation marks

omitted.) Noakes v. National R.R. Passenger Corp.,

(2000). This

court has held that under federal law, section 13-217 does not “operate to protect a plaintiff’s

right to refile an action after the three-year limitations period.”

. Plaintiff does not

dispute that his cause of action accrued on January 6, 2009, and, consequently, that the statute of

limitations expired on January 6, 2012. Plaintiff also does not dispute that the Illinois saving

statute does not apply to his FELA claim. See Burnett v. New York Central R.R. Co.,

(1965) (“The incorporation of variant state saving statutes would defeat the aim of a

federal limitation provision designed to produce national uniformity.”).

¶ 18 In support of his request this court reverse the trial court’s judgment dismissing his

complaint, Plaintiff argues that the statute of limitations should be tolled during the pendency of

his original complaint under the doctrine of equitable tolling. Plaintiff asserts that equitable

tolling applies because Defendant misled Plaintiff to believe that if the original timely filed

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complaint was voluntarily dismissed, Defendant “agreed to allow it to be re-filed without any

prejudice” to Plaintiff. In other words, Defendant would not assert a statute of limitations

defense that was not available to it but for the voluntary dismissal. Plaintiff argues Defendant

agreed to allow Plaintiff to refile its case within one year and that this agreement with Defendant

was not limited to anything less than the one year period to refile stated in the voluntary

dismissal order. In support, Plaintiff states that Defendant expressly agreed to the one-year

language.

¶ 19 1. Tolling Principles

¶ 20 The parties dispute whether Plaintiff is required to show “extraordinary circumstances” to

invoke the equitable tolling doctrine. We find the following statement by our supreme court

instructive:

“Generally, the doctrine of equitable tolling permits a court

to excuse a plaintiff’s failure to comply with a statute of limitations

where ‘because of disability, irremediable lack of information, or

other circumstances beyond his control,’ the plaintiff cannot

reasonably be expected to file suit on time. [Citation.] Unlike the

related doctrine of equitable estoppel, equitable tolling requires no

fault on the part of the defendant. [Citation]; see also Tregenza v.

Great American Communications Co.,

(7th Cir.

1993) (‘Equitable tolling just means that without fault by either

party the plaintiff does not have enough information to sue within

the period of limitations ***.’); Lehman v. United States,

(9th Cir. 1998) (‘Equitable tolling focuses primarily

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on the plaintiff’s excusable ignorance of the limitations period,’

whereas ‘[e]quitable estoppel focuses on the actions of the

defendant’ ***).” (Emphases omitted.) Williams v. Board of

Review,

(2011).

¶ 21 Thus, where the plaintiff seeks to apply the doctrine of equitable tolling where the

circumstances which led to the expiration of the statute of limitations before filing are not

alleged to be the fault of the defendant, the plaintiff must show that he or she “has been

prevented from asserting his or her rights in some extraordinary way.” (Internal quotation marks

omitted.) American Family Mutual Insurance Co. v. Plunkett,

.

This court has stated that “equitable tolling” may also be appropriate “if the defendant has

actively misled the plaintiff.” (Internal quotation marks omitted.)

However, when equitable

tolling is sought under circumstances where it is alleged the defendant misled the plaintiff into

filing outside the applicable statute of limitations, as is the case here, the relief actually sought is

equitable estoppel. Williams,

. See also Miller v. Runyon,

(7th Cir. 1996) (“A defendant who through misleading representations or otherwise prevents the

plaintiff from suing in time will be estopped to plead the statute of limitations. This is equitable

estoppel.”) (cited in Williams).

¶ 22 “The party claiming estoppel has the burden of proving it by clear and unequivocal

evidence. [Citation.]” (Internal quotation marks omitted.) Steinmetz v. Wolgamot,

. In Illinois, equitable estoppel does not give a plaintiff the entire limitations

period measured from the date the defendant discontinues the conduct that lulled the plaintiff

into inaction.

Rather, plaintiff is allowed a reasonable period to bring suit.

Intent of the

defendant to mislead, deceive, or delay is not necessary. Witherell v. Weimer,

,

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330 (1987). “The circuit court’s decision regarding equitable estoppel will not be disturbed on

review unless it is against the manifest weight of the evidence, or will be reviewed de novo if it is

based on a legal conclusion.” In re Parentage of Scarlett Z.-D.,

.

“To establish equitable estoppel, the party claiming estoppel must

demonstrate that: (1) the other person misrepresented or concealed

material facts; (2) the other person knew at the time he or she made

the representations that they were untrue; (3) the party claiming

estoppel did not know that the representations were untrue when

they were made and when they were acted upon; (4) the other

person intended or reasonably expected that the party claiming

estoppel would act upon the representations; (5) the party claiming

estoppel reasonably relied upon the representations in good faith to

his or her detriment; and (6) the party claiming estoppel would be

prejudiced by his or her reliance on the representations if the other

person is permitted to deny the truth thereof. [Citation.]”

(Emphasis and internal quotation marks omitted.) Wolgamot,

.

¶ 23 Plaintiff argues in favor of a test articulated by the United States District Court for the

Eastern District of Pennsylvania which would require Plaintiff to prove “three necessary

elements: (1) that the defendant actively misled the plaintiff; (2) which prevented the plaintiff

from recognizing the validity of her claim within the limitations period; and (3) where the

plaintiff’s ignorance is not attributable to her lack of reasonable due diligence in attempting to

uncover the relevant facts. [Citation.]” (Internal quotation marks omitted.) White v. PNC

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Financial Services Group, Inc., No. 11-7928,

, at *3 (E.D. Pa. June 20, 2013).

The elements of the White court’s test correlate to some elements of our test for equitable

estoppel in this context. We have no need and therefore do not expressly decide in this case

whether or not the test articulated by the White court is an accurate application of Illinois’

equitable estoppel rules. Under either test, Plaintiff has the burden to prove that Defendant in

this case misrepresented or concealed material facts with regard to whether Defendant waived its

statute of limitations defense for up to one year. Based on the evidence before this court we find

Plaintiff has not met that burden.

¶ 24 2. Defendant’s Alleged Misrepresentation

¶ 25 Plaintiff argues the misrepresentations or concealments in this case were (1) Defendant’s

statements to the court before Plaintiff made the final decision to dismiss the case, and (2)

Defendant’s “actions in agreeing to the language of the order before it was filed and its

statements re-iterating that the dismissal was without any prejudice to Plaintiff.” Plaintiff argues

this conduct by Defendant misled Plaintiff as to whether Defendant planned to assert a statute of

limitations defense “despite its apparent agreement to waive it.”

¶ 26 “The right to invoke a statute-of-limitations defense can be expressly waived or waived

by conduct inconsistent with an intent to enforce that right.” Hassebrock v. Ceja Corp.,

. An implied waiver may also arise where the party against whom waiver

is asserted pursues a course of action or acts in such a way that demonstrates his intention to

waive a right or is inconsistent with any intention other than waiving the right. Hahn v. County

of Kane,

. However, “we must point out that ‘equitable estoppel’

and ‘waiver’ are two distinct concepts, though they have similarities and are sometimes used

interchangeably. A waiver is a voluntary relinquishment of a known right, claim or privilege

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[citation], whereas an equitable estoppel may arise even though there was no intention on the

part of the party estopped to relinquish any existing right.” Vaughn v. Speaker,

(1988). Accordingly, we will confine our discussion to whether Plaintiff has proved by clear

and unequivocal evidence that Defendant misrepresented or concealed material facts.

¶ 27 As to defense counsel’s statements before the trial court, on appeal Defendant argues as

follows:

“There was no discussion with regard to extending the

statute of limitations, but only a discussion whether or not BNSF’s

counsel would be willing to ask for an early trial date (i.e. ‘fast

track’ the matter) if Plaintiff-Appellant refiled it. *** This

discussion with regard to refiling in no way establishes that

BNSF’s counsel agreed to tolling the FELA statute of limitations.”

¶ 28 Our review of the transcript of the hearing on October 23, 2012 led this court to the same

conclusion. Accordingly, we hold that Plaintiff has not proved that Defendant misrepresented its

position on the statute of limitations before the trial court. The only discussion before the trial

court was about whether Plaintiff could “fast track” the case to trial when it was refiled and

whether Defendant would object to Plaintiff’s doing so. There was no discussion regarding the

statute of limitations.

¶ 29 Further, we find that defense counsel’s statements did not misstate facts because those

statements are not a tacit approval of Plaintiff’s refiling of the case. In Ciers v. O.L. Schmidt

Barge Lines, Inc.,

(1996), the plaintiff pointed to the defendant’s

failure to object to the plaintiff’s voluntary dismissal, where it knew the plaintiff intended to

refile, in support of the plaintiff’s contention the defendant in Ciers should be estopped from

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asserting a statute of limitations defense.

. Defense counsel’s statements in this case

are similar to the alleged failure to object in Ciers. In this case, defense counsel stated that “if

the idea is that you guys are going to go refile next week and we’re going to go in and ask for an

early trial date as soon as the court will accommodate us based on everybody’s schedule with the

witnesses, I’m good with that.” Defendant was discussing fast-tracking, not refiling. Defendant

“had no duty to inform [plaintiff] of the consequences of his dismissal and defense counsel’s

failure to alert opposing counsel of law bearing on his case cannot support an estoppel.”

.

¶ 30 All that remains to support Plaintiff’s argument that Defendant should be estopped from

asserting a statute of limitations defense is Defendant’s agreement to the language that the

dismissal was “without prejudice” to Plaintiff, and defense counsel’s agreement that the

dismissal was without “any” prejudice. Initially, we note that Plaintiff does not argue, and we do

not find, that the language in the order is an express wavier of Defendant’s statute of limitations

defense. Thus, Plaintiff could not have been misled by an express relinquishment of the right to

assert a statute of limitations defense. Defendant argues the agreement to the language was

perfunctory because Plaintiff had an absolute right to dismiss his case without prejudice and

Defendant was required to agree to those terms and, regardless, the order merely reflected the

discussions between the parties and the trial court regarding Plaintiff’s voluntary dismissal.

Plaintiff asserts Defendant did not have to agree to the language of the order.

¶ 31 To establish equitable estoppel, “[t]he representation need not be fraudulent in the strict

legal sense or done with an intent to mislead or deceive. Although fraud is an essential element,

it is sufficient that a fraudulent or unjust effect results from allowing another person to raise a

claim inconsistent with his or her former declarations. [Citation.] The test is whether,

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considering all the circumstances, conscience and the duty of honest dealing should deny one the

right to repudiate the consequences of his or her representations or conduct.” In re Parentage of

Scarlett Z.-D.,

.

¶ 32 Defendant did not take a position inconsistent with his former declaration agreeing to the

“without prejudice” language when it moved to dismiss Plaintiff’s complaint, and Defendant is

not repudiating his prior representations or conduct by invoking the statute of limitations

defense. Procedurally, Plaintiff had an absolute right to voluntarily dismiss the case without

prejudice prior to trial. Ciers,

. Defendant agreed to language in the

order that reflected that right. We do not find Plaintiff has proved by clear and convincing

evidence that Defendant’s agreement to the “without prejudice” language was a

misrepresentation of Defendant’s position where, under Illinois law, Plaintiff did have a right to

a voluntary dismissal without prejudice but the statute of limitations defense survived the

dismissal because federal law set the statute of limitations and the Illinois saving statute did not

apply. Noakes,

(under federal law section 13-217 does not “operate to

protect a plaintiff’s right to refile an action after the three-year limitations period”). Nor was

Defendant’s conduct a “fraudulent” concealment of material facts. “[D]efense counsel cannot be

said to have improperly concealed material facts simply by failing to alert opposing counsel, in

advance, of law bearing upon his case.” Greene v. Helis,

(1993).

¶ 33 We are aware of the following statement in Glus v. Brooklyn Eastern District Terminal,

(1959): “It is no answer to say, as respondent does, that the representations

alleged were of law and not of fact and therefore could not justifiably be relied on by petitioner.

Whether they could or could not depends on who made them and the circumstances in which

they were made.” Defendant does not argue that Plaintiff could not have justifiably relied on its

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“representation of law” with regard to the order of dismissal. Further, in this case, Defendant did

not make a representation to Plaintiff as to the applicable law regarding the effect (or lack

thereof) of the saving statute on FELA claims. Compare

.

¶ 34 In Glus, the petitioner claimed that the respondent was estopped from raising the three-

year statute of limitations because it had induced the petitioner to delay by representing that the

petitioner had seven years in which to sue.

. The Court held that the petitioner

could establish equitable estoppel if he could prove that the respondent acted in such a way that

the petitioner “was justifiably misled into a good-faith belief that he could begin his action at any

time within seven years after it had accrued.”

. In this case, Defendant did not

expressly agree to waive his statute of limitations defense, and Defendant’s act of agreeing to

language in the order consistent with the rights conferred by the statute under which the order

was made, without more, is not “a clear, unequivocal and decisive act” manifesting an intention

to waive Defendant’s rights. Ciers,

. In the absence of such facts, we

find that Plaintiff has not proved by clear and convincing evidence that Plaintiff was justifiably

misled into a good-faith belief he could file his complaint almost one year after the voluntary

dismissal.

¶ 35 The trial court properly granted Defendant’s motion to dismiss Plaintiff’s complaint and

properly denied Plaintiff’s motion to reconsider that order.

¶ 36 CONCLUSION

¶ 37 For the foregoing reasons, the trial court’s judgment is affirmed.

¶ 38 Affirmed.

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