{ "id": 2850167, "name": "JOHN FLYNN et al., Plaintiffs-Appellants, v. ALLIS CHALMERS CORPORATION, d/b/a American Air Filter Company, Inc., et al., Defendants-Appellees", "name_abbreviation": "Flynn v. Allis Chalmers Corp.", "decision_date": "1994-05-04", "docket_number": "No. 2\u201493\u20140108", "first_page": "136", "last_page": "141", "citations": [ { "type": "official", "cite": "262 Ill. App. 3d 136" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "158 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780296 ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0166-01" ] }, { "cite": "209 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2542749 ], "year": 1994, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0304-01" ] }, { "cite": "142 Ill. App. 3d 917", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448822 ], "pin_cites": [ { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0917-01" ] }, { "cite": "753 F.2d 565", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 292514 ], "year": 1986, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/f2d/753/0565-01" ] }, { "cite": "297 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "164 Ga. App. 460", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 595230 ], "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ga-app/164/0460-01" ] }, { "cite": "99 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3162933 ], "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0084-01" ] }, { "cite": "145 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595904 ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0252-01" ] } ], "analysis": { "cardinality": 530, "char_count": 9836, "ocr_confidence": 0.792, "pagerank": { "raw": 1.6330318933378788e-07, "percentile": 0.6891832303736627 }, "sha256": "7302b1a9d0cda46d1f2ceadbab6be8486bb6d41f6e4faa2390976788ecc90bbc", "simhash": "1:cebadfefb91cbc4a", "word_count": 1573 }, "last_updated": "2023-07-14T21:36:39.333622+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN FLYNN et al., Plaintiffs-Appellants, v. ALLIS CHALMERS CORPORATION, d/b/a American Air Filter Company, Inc., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE DOYLE\ndelivered the opinion of the court:\nPlaintiffs, John Flynn and Carolyn Flynn, appeal the circuit court\u2019s order dismissing their complaint against defendant, Allis Chalmers Corporation (Allis Chalmers). The court dismissed the complaint on the ground that it was the second refiling of a dismissed action, which is prohibited by section 13 \u2014 217 of the Code of Civil Procedure (735 ILCS 5/13 \u2014 217 (West 1992)). Plaintiffs contend that the court should not have dismissed the complaint because they refiled the action only once, and a previous complaint filed against a different corporate defendant should not bar the present action.\nThree separate complaints are involved in this case. Plaintiffs filed their first complaint, case No. 87 \u2014 L\u201421929, on October 13, 1987, against American Air Filter Company (American Air). The complaint alleged that plaintiff John Flynn was injured while working at a warehouse owned and operated by defendant in Zion, Illinois.\nShortly after this filing, plaintiffs received a letter from Ronald Huntley of Allis Chalmers. According to Huntley, American Air was a \"non-operating corporate shell.\u201d Huntley explained that the actual owner of the premises, Allis Chalmers, was the subject of bankruptcy proceedings in New York.\nWhen plaintiff\u2019s counsel declined to dismiss the case based solely on Huntley\u2019s representations, the firm of Johnson, Cusack & Bell undertook the defense on behalf of American Air. American Air moved for summary judgment, alleging that Allis Chalmers was the party actually operating the facility where plaintiff was injured. In a letter dated April 28, 1988, defense counsel requested that, since American Air was not the real party in interest and since Allis Chalmers was in bankruptcy, plaintiffs voluntarily dismiss the action or face the possibility of sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).\nPlaintiffs dismissed the action against American Air and participated in the Allis Chalmers\u2019 bankruptcy proceedings. Sometime later, Huntley notified plaintiffs that the bankruptcy court had modified the automatic stay, permitting plaintiffs\u2019 action to go forward.\nOn December 30, 1988, plaintiffs filed an action in Cook County against Allis Chalmers and others. The complaint related to the same incident as that in case No. 87 \u2014 L\u201421929. On defendant\u2019s motion, the court transferred venue to Lake County.\nDefendant moved in the circuit court of Lake County for sanctions against plaintiffs for their failure to comply with discovery. On January 2, 1991, the court granted the motion and barred plaintiffs from calling any expert witnesses or introducing evidence of lost wages at trial. In response, plaintiffs voluntarily dismissed the action. See 735 ILCS 5/2 \u2014 1009 (West 1992).\nOn February 21, 1992, plaintiffs filed another complaint in the circuit court of Cook County. The complaint named Allis Chalmers Corporation, d/b/a American Air Filter Company, Inc., and others, as defendants, and concerned the same incident as the previous two pleadings.\nAllis Chalmers again had the cause transferred to Lake County and moved to dismiss the complaint under section 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619 (West 1992)). Allis Chalmers alleged that the complaint was an improper second refiling pursuant to section 13 \u2014 217. The court granted the motion, and plaintiffs perfected this appeal.\nPlaintiffs contend on appeal that the present cause of action should not be barred. They maintain that the first action, case No. 87 \u2014 L\u201421929, does not bar the present action because Allis Chaimers was not a party to that case. Alternatively, plaintiffs contend that the present complaint should not be barred because the causes of action are not identical.\nSection 13 \u2014 217 provides in relevant part as follows:\n\"In the actions specified in Article XIII of this Act *** if *** the action is voluntarily dismissed by the plaintiff *** whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, *** after the action is voluntarily dismissed by the plaintiff ***.\u201d 735 ILCS 5/13 \u2014 217 (West 1992).\nIn Flesner v. Youngs Development Co. (1991), 145 Ill. 2d 252, the supreme court held that section 13 \u2014 217 permits only a single refiling, even if the statute of limitations has not yet run. The parties apparently agree that the automatic stay entered in the bankruptcy proceedings tolled the statute of limitations against Allis Chalmers, so that the 1988 complaint was filed within the limitations period. (See Garbe Iron Works, Inc. v. Priester (1983), 99 Ill. 2d 84, 87.) Therefore, the only question is whether the 1987 action against American Air constituted the first filing. If so, the present cause constitutes an improper second refiling. If, however, the 1988 complaint, naming Allis Chalmers as defendant for the first time, represents a new and separate action, then the present cause is a permissible refiling under section 13 \u2014 217.\nThe parties have not cited, and our research has not disclosed, any Illinois cases which have considered this precise issue. As plaintiffs point out, in the usual case, upon learning that American Air was not the real party in interest, plaintiffs would have simply moved to amend their complaint to name the proper defendant. However, because of the bankruptcy automatic stay and defense counsel\u2019s threat to seek sanctions, plaintiffs felt compelled to dismiss the complaint and pursue relief in the bankruptcy court.\nSection 13 \u2014 217 provides that within one year of a voluntary dismissal a plaintiff may file \"a new action.\u201d The Code does not define \"action.\u201d Black\u2019s Law Dictionary defines \"action\u201d as follows:\n\"The legal and formal demand of one\u2019s right from another person or party made and insisted on in a court of justice. An ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection or a right, the redress or prevention of a wrong, or the punishment of a public offense. It includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court ***.\u201d Black\u2019s Law Dictionary 28 (6th ed. 1990).\nAccording to this definition, the identity of the defendant is an essential element of an \"action.\u201d Thus, a complaint against a different defendant, even if based on the same facts supporting a right to relief, would constitute a separate \"action.\u201d In discussing savings provisions similar to section 13 \u2014 217, one authority provides that such a statute \"is inapplicable in the case of a defendant who was a stranger to the original action.\u201d (54 C.J.S. Limitations of Actions \u00a7 245, at 324 (1987).) The Georgia Court of Appeals has held that Georgia\u2019s savings provisions did not resurrect a time-barred action where the defendant was not a party to the prior action. Speer, Inc. v. Manis (1982), 164 Ga. App. 460, 461, 297 S.E.2d 374, 375.\nIt thus appears that if the first complaint was actually filed against a different entity, that filing would not be a bar to maintaining the present action. In Illinois, a corporation is deemed a distinct legal entity, separate from other corporations with which it may be affiliated. (Van Dorn Co. v. Future Chemical & Oil Corp. (7th Cir. 1985), 753 F.2d 565, 569; see also Peoples Energy Co. v. Illinois Commerce Comm\u2019n (1986), 142 Ill. App. 3d 917, 924.) Before a court will pierce the corporate veil of a subsidiary corporation, it must be shown that one corporation so controls the affairs of another that the other is the mere instrumentality or dummy of another and that, under the circumstances, the observance of the fiction of separate corporate existence will sanction fraud or injustice. (Logal v. Inland Steel Industries, Inc. (1991), 209 Ill. App. 3d 304, 309.) The supreme court has recently held that a corporation may not pierce its own corporate veil. In re Rehabilitation of Centaur Insurance Co. (1994), 158 Ill. 2d 166.\nIn the present case, representatives of Allis Chalmers procured the dismissal of the first complaint against American Air on the ground that American Air was not the real party in interest and that a separate entity, Allis Chalmers, actually owned the property in question. On appeal, however, Allis Chalmers argues that plaintiff\u2019s first suit was, in reality, \"directed against Allis Chalmers.\u201d If this were true, there was no basis to dismiss plaintiff\u2019s first complaint. Having obtained the dismissal of the first suit on the ground that American Air and Allis Chalmers are separate entities, defendant may not procure the dismissal of the third complaint on the ground that they are really the same. The above-cited cases establish that a corporation may not use the fiction of separate corporate existence to frustrate creditors.\nPlaintiff\u2019s first complaint against American Air named a different defendant than the complaint at issue. Therefore, the present complaint is not an improper second refiling under section 13 \u2014 217, and the circuit court erred in dismissing it on that basis.\nFor the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nINGLIS, P.J., and BOWMAN, J., concur.", "type": "majority", "author": "JUSTICE DOYLE" } ], "attorneys": [ "George E. Dykes, of Lansing, for appellants.", "Gregory D. Conforti, Jack T. Riley, Thomas H. Fegan, and Mindy Kallus, all of Johnson & Bell, Ltd., of Chicago, for appellees." ], "corrections": "", "head_matter": "JOHN FLYNN et al., Plaintiffs-Appellants, v. ALLIS CHALMERS CORPORATION, d/b/a American Air Filter Company, Inc., et al., Defendants-Appellees.\nSecond District\nNo. 2\u201493\u20140108\nOpinion filed May 4, 1994.\nGeorge E. Dykes, of Lansing, for appellants.\nGregory D. Conforti, Jack T. Riley, Thomas H. Fegan, and Mindy Kallus, all of Johnson & Bell, Ltd., of Chicago, for appellees." }, "file_name": "0136-01", "first_page_order": 154, "last_page_order": 159 }