text:
    SLOAN BIOTECHNOLOGY LABORATORIES, LLC, an Illinois Limited Liability Company, Plaintiff-Appellant, v. ADVANCED BIOMEDICAL INCORPORATED, a Delaware Corporation, Defendant-Appellee.
    Appeal No. 3-17-0020
    Appellate Court of Illinois, Third District.
    Opinion filed March 14, 2018
    Lane G. Alster, John S. Elias, and Janaki H. Nair, of Elias, Meginnes & Seghetti, P.C., of Peoria, for appellant.
    Daniel M. Cordis and James P. Lawson, of Cordis & Cordis, of Princeville, and Deborah J. Michelson and David A. Kunselman, of Miller Goler Faeges Lapine LLP, of Cleveland, Ohio, for appellee.
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Sloan Biotechnology Laboratories, LLC (Sloan), brought a declaratory judgment action against defendant, Advanced Biomedical Incorporated (ABI), seeking a ruling from the trial court that Sloan was not in breach of its contract with ABI. Citing a forum selection clause in the parties' contract, ABI filed motions to either transfer venue to the state court in Cuyahoga County, Ohio, or to dismiss the case. Following a hearing, the trial court granted ABI's request and transferred venue to the Ohio state court. Sloan filed a motion to reconsider and asked the trial court to reverse its prior ruling or, in the alternative, to amend its prior ruling to show that the case had been dismissed rather than transferred. After a hearing, the trial court granted the motion to reconsider in part, reversed the prior ruling in its entirety, and entered an order dismissing Sloan's complaint for declaratory judgment. Sloan appeals. We reverse the trial court's judgment and remand for further proceedings.

¶ 2 FACTS

¶ 3 Sloan was an Illinois limited liability company and had its principal place of business in Peoria, Illinois. ABI was a Delaware corporation and had its principal place of business in Dublin, Ohio. In March 2015, Sloan entered into an exclusive manufacturing agreement (manufacturing agreement) with ABI wherein Sloan agreed to manufacture a nonalcohol based hand sanitizer lotion and derivatives of that product for ABI. The manufacturing agreement incorporated by reference a prior nondisclosure agreement (NDA) that had been entered into between the parties in June 2014 (the 2014 NDA was entered into between Sloan and ABI's predecessor and was later assigned to ABI). The following year, the parties entered into another NDA, which was substantially the same as the prior NDA. The manufacturing agreement and the two NDAs constituted the parties entire agreement (collectively referred to as the contract) for the purposes of this appeal.

¶ 4 In June 2016, Sloan filed the instant declaratory judgment action against ABI in the state trial court in Peoria County, Illinois. In addition to most of the information set forth above, Sloan alleged in its complaint that (1) it had performed all of its obligations under the parties' contract and (2) ABI had delivered to Sloan a demand letter claiming that Sloan had breached the contract and demanding that Sloan take (or refrain from taking) certain actions. Sloan asked the trial court to enter a declaration that Sloan had not breached the contract. Copies of the parties' contract (the manufacturing agreement and the two NDAs) and the demand letter were attached to the declaratory judgment complaint as supporting documents.

¶ 5 Of relevance to this appeal, the manufacturing agreement contained the following provisions:

"12. CONFIDENTIALITY.
The parties hereto acknowledge and agree that the information contained in this Agreement and all exhibits hereto is considered 'Confidential Information' as such term is defined in the June 17, 2014 Restatement of Non-Disclosure Agreement between SLOAN and ABI (the 'NDA Agreement') and is governed by the terms of such NDA Agreement. The parties further acknowledge and agree that June 17, 2014 Restatement of NDA Agreement remains in full force and effect and is hereby incorporated by reference as if fully set forth in this Agreement.
* * *
16. GOVERNING LAW.
This Agreement shall be deemed made in Peoria, Illinois, and the validity and interpretation thereof shall be governed by the laws of the state of Illinois without regard to its conflict of law principles."

The manufacturing agreement did not, however, contain a forum selection clause.

¶ 6 Also of relevance to this appeal, the NDAs contained the following provisions:

"11. Governing Law. The validity, performance, construction and effect of this Agreement will be governed by the laws of Ohio and the federal laws of the United States, without regard to conflict of laws. If any international treaties or conventions are applicable to this Agreement, then the parties, to the greatest extent possible, shall opt out of such treaties and conventions being applied to this Agreement. This Agreement may be enforced in the courts sitting in Cuyahoga County, Ohio, and in other courts and before other bodies to the extent required to protect the Disclosing Party's [ABI's] rights. The prevailing party in any litigation relating to this Agreement or a party's performance hereunder shall be entitled to recovery of its reasonable legal fees and all of its reasonable costs and expenses incurred in connection with the litigation.
12. Equitable Remedies. The Parties recognize that serious injury could result to the Disclosing Party [ABI] and its business if the Receiving Party [Sloan] breaches its obligations under this Agreement. Therefore, Receiving Party agrees that the Disclosing Party will be entitled to a restraining order, injunction or other equitable relief, the scope and extent of which shall be determined by a court of competent jurisdiction, sitting in Cuyahoga County, Ohio, if Receiving Party breaches its obligations under this Agreement, in addition to any other remedies and damages that would be available at law or equity.
* * *
16. Miscellaneous. The headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement. This Agreement shall not be construed against either Party as the drafter of this Agreement."

¶ 7 In July 2016, ABI filed a motion to transfer venue in this case to Cuyahoga County, Ohio. ABI also filed, in the alternative, a motion to dismiss the case pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2016) ). In the motions, ABI alleged that (1) earlier that month, it had filed a lawsuit against Sloan in the state court in Cuyahoga County, Ohio, for breach of the manufacturing agreement and the NDAs and for injunctive relief "inextricably intertwined with the issues raised by Sloan" in the present case; (2) the terms of the NDAs provided for exclusive venue in Cuyahoga County, Ohio; (3) it was unclear under Illinois law whether transfer or dismissal was the appropriate remedy, so ABI filed a motion requesting each remedy in the alternative; and (4) in addition to the forum selection clause, dismissal under section 2-615 of the Code was also appropriate because Sloan had failed to state a claim for declaratory relief in its complaint in that it had alleged insufficient facts and was improperly seeking a declaration of nonliability for past conduct. Attached to the motions as supporting documents were ABI's memoranda setting forth its position in greater detail, copies of the agreements, and a copy of the breach of contract complaint that ABI had filed in the state court in Cuyahoga County, Ohio.

¶ 8 In September 2016, Sloan filed its responses, opposing ABI's motions to transfer or dismiss. Attached to the responses, among other things, was an affidavit of Sloan's president, Donald Stephens, in support of Sloan's claim that all of the relevant events, materials, and witnesses in this case were in Peoria, Illinois.

¶ 9 The following month ABI filed replies to Sloan's responses. Attached to the replies was an affidavit of ABI's president, William Fouss, in support of ABI's claim that the preponderance of the relevant events, materials, and witnesses in this case were in Ohio.

¶ 10 In October 2016, a hearing was held on ABI's motions to transfer venue or to dismiss the case. During the hearing, the parties presented their oral arguments to the trial court. Of relevance to this appeal, ABI's attorney stated, among other things:

"Does the court have a preference in the order? I have two arguments. I have two motions filed. One is the motion to transfer venue. One is a motion to dismiss. I'll just note for the record I think they're directly related, if for no other reason, because there's a procedural question as to how the Court would grant the relief we're seeking if it decided to do so. We got one string of Illinois law that says it must be under the venue statute. We also have Illinois case law that says the proper procedural matter to address this would be an outright dismissal. I'll leave that up to the Court. That's a primary reason why we brought both motions."

¶ 11 In response to a question asked during the hearing, ABI's attorney told the trial court that the case that ABI had filed in the state court in Cuyahoga County, Ohio, had been removed to federal court on Sloan's motion. After listening to the arguments of the attorneys, the trial court took the case under advisement.

¶ 12 At a later court date the following month, the trial court announced its decision. As it was doing so, the following conversation ensued:

"THE COURT: * * * And in reviewing all of this, it's pretty clear to this Court that both corporations, who are sophisticated, contracted to have their matters heard in Cuyahoga, Ohio, and Illinois law presumes validity and enforcement of an expressly agreed-upon forum selection clause, and I find that the contracts entered into in June of 2014 and October of 2015 do just that.
So I'm gonna find that this should be heard in Ohio. And my inclination-well, I'll just ask if there would be an agreement on whether it's dismissed or transferred. Does anybody have a real strong preference on-
[SLOAN'S ATTORNEY]: None, because I couldn't figure out what procedurally is-
THE COURT: Well-
[SLOAN'S ATTORNEY]: I'd say transferred but-
THE COURT: I-it's not clear to me whether it should be dismissed or transferred. So in an abundance of caution so that nobody's prejudice[d]-
[SLOAN'S ATTORNEY]: Prejudice[d]. Yeah.
THE COURT: -as far as how things were done procedurally, I'll just transfer it-
[SLOAN'S ATTORNEY]: Okay.
THE COURT: -to Ohio, and then you can sort it out.
[SLOAN'S ATTORNEY]: Okay.
* * *
[ABI'S ATTORNEY]: To my-my only other question is, I apologize, but what do you mean when you say 'you will transfer'? Just entering an order that says 'transfer'?
THE COURT: I'm gonna grant a motion to transfer venue as opposed to dismissing it for improper venue. And the reason I'm doing that is so that nobody is prejudice[d] because of some things that have been done procedurally and then you can sort it out in Ohio.
[ABI'S ATTORNEY]: Sure.
THE COURT: Okay?
[ABI'S ATTORNEY]: Okay."

¶ 13 After a written order was entered transferring venue in this case to Cuyahoga County, Ohio, Sloan filed a motion to reconsider that order or, in the alternative, to amend it. In the motion, Sloan alleged that (1) after the trial court made its ruling in this case, the federal court in the Ohio case issued an order abstaining from exercising jurisdiction and staying the Ohio case pursuant to the Colorado River Water Conservation District v. United States , 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), abstention doctrine; (2) in this case, the Peoria County trial court's interpretation of the forum selection clause contained in the NDAs was incorrect under Ohio law; (3) the trial court in this case should reconsider its prior ruling; (4) in the alternative, the trial court in this case should amend its prior ruling and dismiss this case, as opposed to transferring it to Ohio, because transfer of venue to a foreign court is improper under Illinois law; and (5) dismissal would allow the parties to retain their appeal rights. Sloan attached to the motion to reconsider a copy of the federal court's ruling in the Ohio case.

¶ 14 ABI filed a motion to strike the motion to reconsider. ABI attached to the motion to strike a notice indicating that the state court in Cuyahoga County, Ohio, had accepted the transfer of this case from Illinois, had docketed the case, and had assigned the case to a judge. Sloan filed a response and opposed the motion to strike.

¶ 15 In December 2016, a hearing was held on Sloan's motion to reconsider or amend and on ABI's motion to strike. After some brief discussion with the attorneys, the trial court granted Sloan's motion to reconsider or amend, in part, and dismissed this case. In so doing, the trial court stated:

"Well, as I previously stated, I mean, there's no question this should all be happening in Ohio. Period. And the only reason I didn't rule one way or the other is because I didn't want to compromise your rights.
So that's-and-and nobody really-everybody was kinda like, well, we're not sure exactly whether it's transfer or dismiss. So if-given the fact that I would've just dismissed it, we wouldn't have-we wouldn't have all these issues. And no one had a strong position when we were here initially."

The trial court entered a written order that Sloan had prepared reversing the trial court's previous ruling in its entirety and dismissing the case. Sloan filed this appeal to challenge the trial court's ruling.

¶ 16 ANALYSIS

¶ 17 On appeal, Sloan argues that the trial court erred in granting ABI's section 2-615 motion to dismiss Sloan's complaint for declaratory judgment. Sloan asserts that the motion to dismiss should have been denied because the parties' contract does not require Sloan to litigate this case in Cuyahoga County, Ohio, or prohibit Sloan from bringing this case in Peoria County, Illinois. In making that assertion, Sloan acknowledges that paragraph 12 of the NDAs contains a mandatory forum selection clause but denies that it applies in this case. Rather, Sloan maintains that the mandatory forum selection clause only applies to suits brought by ABI for injunctive or other equitable relief for breach of the nondisclosure provisions and only for the purpose of determining the scope and extent of any such injunctive relief that may be granted. According to Sloan, if any forum selection clause applies in this case, it is the permissive forum selection clause contained in paragraph 11 of the NDAs that allows a lawsuit, such as the one in the present case, to be brought in any court. In the alternative, Sloan asserts that the mandatory forum selection clause is unenforceable because the chosen forum is so inconvenient, under the circumstances of the present case in which almost all of the relevant witnesses, documents, and materials are in Peoria, that it would, in effect, provide Sloan with no remedy at all. For all of the reasons stated, Sloan asks that we reverse the trial court's dismissal order; that we find that venue is appropriate in Peoria County, Illinois; and presumably, that we remand this case for further proceedings.

¶ 18 ABI argues that the trial court's ruling was proper and should be upheld. In support of that argument, ABI asserts first that Sloan has waived its claim of error on appeal by asking the trial court to dismiss the case in Sloan's motion to reconsider and by submitting the proposed dismissal order that the trial court approved and entered. Thus, ABI contends that Sloan invited or induced the trial court to make the alleged erroneous dismissal and that Sloan cannot now challenge that dismissal on appeal. Second, ABI asserts that even if Sloan's claim of error is not waived, it should still be rejected by this court because the parties' agreement specifically and mandatorily provides that venue for cases such as this shall be in Cuyahoga County, Ohio, as the trial court correctly found. In making that assertion, ABI maintains that the mandatory forum selection clause is not limited to claims for injunctive relief, as Sloan suggests but, rather, applies to all cases involving Sloan's alleged breach of the contract, regardless of the remedy being sought. ABI maintains further that paragraphs 11 and 12 of the NDAs are not ambiguous or in conflict and can be easily harmonized in that paragraph 11 addresses the jurisdictions where ABI can seek to protect its rights (any jurisdiction) and paragraph 12 addresses the locale where the parties must litigate disputes regarding Sloan's alleged breach of the contract (the selected Ohio forum), such as those disputes raised in the present case. In addition, ABI contends that the mandatory forum selection clause in the present case is valid and enforceable and that Sloan's claim as to inconvenience is wholly irrelevant in this context or, at the very least, that it must be balanced against the inconvenience that would result to ABI if this case was not litigated in the designated forum. ABI contends further that when an agreement contains both a mandatory and a permissive forum selection clause, the mandatory forum selection controls over the permissive one. Third and finally, ABI asserts that even if the trial court's reasoning on venue was incorrect, dismissal was still proper in this case because Sloan's complaint failed to state a cause of action for declaratory judgment in that the complaint (1) sought a declaration of nonliability for past conduct, which is not actionable under Illinois law, and (2) failed to allege sufficient facts under Illinois pleading standards. For all of the reasons set forth, ABI asks that we affirm the trial court's dismissal order.

¶ 19 In reply to ABI's assertions, Sloan repeats many of the same arguments that it made initially. Sloan does, however, make some additional assertions about ABI's waiver argument and about ABI's failure-to-state-a-claim argument. First, as to ABI's waiver argument, Sloan contends that waiver does not apply here because Sloan's motion to reconsider was ultimately requesting that the trial court reverse its previous ruling and deny ABI's motion to transfer or dismiss the case. According to Sloan, it requested in the alternative that the trial court amend the previous order and change it to a dismissal order, rather than a transfer order, because it believed that the trial court had erred, as a matter of civil procedure, by transferring the case, instead of dismissing it. Further, Sloan contends it prepared and submitted the proposed order after the trial court requested that Sloan do so. Second, as to ABI's failure-to-state-a-claim argument, Sloan contends that its declaratory judgment complaint was sufficient under the law. Sloan asserts that in the complaint it was not seeking a declaration of nonliability for past conduct but, rather, was seeking the right to continue acting in the future, with regard to the contract, as it had acted in the past and was challenging the current allegations that were being made by ABI. Sloan points out that the trial court did not rule upon the sufficiency of the complaint and asserts that, if this court reaches that issue, it should remand the case for the trial court to decide the issue and to allow Sloan to file an amended complaint if the need arises. Ultimately, Sloan again asks that we reverse the trial court's dismissal order; that we find the venue is appropriate in Peoria County, Illinois; and presumably, that we remand this case for further proceedings.

¶ 20 I. Standard of Review

¶ 21 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based upon defects that are apparent on the face of the complaint.

Heastie v. Roberts , 226 Ill. 2d 515, 531, 315 Ill.Dec. 735, 877 N.E.2d 1064 (2007). In determining whether a complaint is legally sufficient, a court must accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Id. The critical inquiry in deciding a section 2-615 motion to dismiss is whether the allegations of the complaint, considered in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc. , 186 Ill. 2d 419, 424, 238 Ill.Dec. 608, 712 N.E.2d 330 (1999). A cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that the plaintiff cannot prove any set of facts that will entitle the plaintiff to relief. Heastie , 226 Ill. 2d at 531, 315 Ill.Dec. 735, 877 N.E.2d 1064. In reviewing a trial court's ruling on a section 2-615 motion to dismiss, the appellate court applies a de novo standard of review. Id. at 530-31, 315 Ill.Dec. 735, 877 N.E.2d 1064. When de novo review applies, the appellate court performs the same analysis that the trial court would perform. Direct Auto Insurance Co. v. Beltran , 2013 IL App (1st) 121128, ¶ 43, 376 Ill.Dec. 182, 998 N.E.2d 892. The appellate court may affirm a trial court's grant of a section 2-615 motion to dismiss on any basis supported by the record. Fidelity National Title Insurance Co. of New York v. Westhaven Properties Partnership , 386 Ill. App. 3d 201, 220, 325 Ill.Dec. 772, 898 N.E.2d 1051 (2007). In addition, as will be discussed later in this decision, our ruling on the main issue in this particular case turns on an interpretation of the parties' contract. Contract interpretation is a matter that is also subject to de novo review on appeal. Gallagher v. Lenart , 226 Ill. 2d 208, 219, 314 Ill.Dec. 133, 874 N.E.2d 43 (2007).

¶ 22 II. ABI's Assertion of Waiver

¶ 23 Before we reach the merits of the parties' arguments on appeal, we must first address ABI's assertion that Sloan waived its claim of error by asking the trial court to enter the dismissal order in Sloan's motion to reconsider and by preparing and submitting the dismissal order that the trial court eventually entered. It is well settled that a party may not complain on appeal about an error that it invited or induced the trial court to make. McMath v. Katholi , 191 Ill. 2d 251, 255, 246 Ill.Dec. 321, 730 N.E.2d 1 (2000) ; Stephens v. Taylor , 207 Ill. 2d 216, 222-24, 278 Ill.Dec. 84, 797 N.E.2d 679 (2003). When a party invites or induces the trial court to commit error, we do not inquire into the party's motivations for doing so. See Stephens , 207 Ill. 2d at 222-24, 278 Ill.Dec. 84, 797 N.E.2d 679. The party's motivations for inviting or inducing the trial court to commit error are irrelevant. Id. That being said, under the circumstances of the present case, we cannot agree with ABI's claim that Sloan invited or induced the trial court to enter the allegedly erroneous dismissal order. It was ABI, and not Sloan, who initially moved for transfer or dismissal. Because of the uncertainty on this issue under Illinois law, neither the parties nor the trial court was sure of the appropriate remedy to award ABI. However, when Sloan learned that under the case law, a transfer to a foreign jurisdiction was not allowed, it appropriately informed the trial court that it had entered the wrong remedy under the law. We find, therefore, that Sloan did not waive its claim of error under the circumstances of this particular case.

¶ 24 III. Validity of the Mandatory Forum Selection Clause Contained in Paragraph 12 of the NDAs

¶ 25 Having determined that there was no waiver in this case, we turn to the merits of the parties' arguments on appeal and must first decide whether the mandatory forum selection clause contained in paragraph 12 of the NDAs was valid and enforceable. Pursuant to the provisions of the NDAs, we are required to apply Ohio law in answering that question.

¶ 26 Ohio law recognizes that parties to a contract may agree to submit their disputes to a particular court by placing a forum selection clause to that effect in their contract. See Salehpour v. Just A Buck Licensing, Inc. , 2013-Ohio-4436, ¶ 10, 2013 WL 5533113. There are generally two types of forum selection clauses: permissive and mandatory. State ex rel. Cordray v. Makedonija Tabak 2000 , 189 Ohio App. 3d 73, 2010-Ohio-2903, 937 N.E.2d 595, ¶ 15. A permissive forum selection clause allows the parties to submit their dispute to a designated forum but does not prohibit litigation elsewhere. Id. A mandatory forum selection clause, on the other hand, provides an exclusive forum for litigation under the agreement as the only place where the parties are allowed to submit their dispute. See id. Use of the words "may" or "should" in a forum selection clause indicates that the parties intended the clause in question to be permissive in nature. Id. ¶ 16. Whereas, use of the word "shall" tends to signify that the parties intended the forum selection clause to be mandatory. See Cleveland Ry. Co. v. Brescia , 100 Ohio St. 267, 126 N.E. 51, 52 (1919). For a forum selection clause to be considered mandatory, however, the clause must clearly display the intent of the contracting parties to choose a particular forum to the exclusion of all others. Cordray , 2010-Ohio-2903, 189 Ohio App.3d 73, 937 N.E.2d 595, ¶ 15.

¶ 27 In the present case, there is no dispute between the parties that paragraph 11 of the NDAs contains a permissive forum selection clause and that paragraph 12 of the NDAs contains a mandatory forum selection clause. Instead, the dispute between the parties in this appeal centers on how the forum selection clauses are to be interpreted, how the forum selection clauses are to be applied, and whether the forum selection clauses should be enforced. Again, we turn to Ohio law to resolve those questions.

¶ 28 Under Ohio law, a forum selection clause contained in a commercial contract between two business entities (commercial forum selection clause) is prima facie valid, as long as it was bargained for freely. Kennecorp Mortgage Brokers, Inc. v. Country Club Convalescent Hospital, Inc. , 66 Ohio St.3d 173, 610 N.E.2d 987, 989 (1993). A commercial forum selection clause, therefore, will generally be enforced, absent a strong showing that it should be set aside. Id. Enforcement of a commercial forum selection clause will be rejected, however, where either one of the two following conditions is clearly present: (1) where the clause was the product of fraud or overreaching; or (2) where enforcement of the clause would be unreasonable and unjust in that it would essentially deprive the opposing party of its day in court or would be against public policy. See id. ; Preferred Capital, Inc. v. Power Engineering Group, Inc. , 112 Ohio St. 3d 429, 2007-Ohio-257, 860 N.E.2d 741, ¶ 17.

¶ 29 In the present case, Sloan does not allege fraud or overreaching and has made no showing that enforcement of the mandatory forum selection clause contained in paragraph 12 would essentially deprive it of its day in court or would be against public policy. See Kennecorp Mortgage Brokers, Inc. , 610 N.E.2d at 989. Sloan merely alleges, in effect, that having to litigate this breach of contract case in Ohio would be inconvenient. Such an allegation is not sufficient, however, to negate the application of the mandatory forum selection clause. See id. at 988-89 (a minimum-contacts analysis, as set forth in International Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny, does not apply in determining the validity of a commercial forum selection clause). Thus, the mandatory forum selection clause is valid and enforceable. The only question that remains to be resolved is how that forum selection clause should be interpreted. That question is one of contract interpretation.

¶ 30 IV. Interpretation of the Mandatory Forum Selection Clause

¶ 31 The rules of contract interpretation under Ohio law are well established and are similar to the rules of contract interpretation under Illinois law. Compare, e.g. , In re All Kelley & Ferraro Asbestos Cases , 104 Ohio St. 3d 605, 2004-Ohio-7104, 821 N.E.2d 159, ¶ 29 (setting forth some of the rules of contract interpretation under Ohio law), with Gallagher , 226 Ill. 2d at 232-33, 314 Ill.Dec. 133, 874 N.E.2d 43 (setting forth some of the rules of contract interpretation under Illinois law). The main goal of contract interpretation under Ohio law is to ascertain and give effect to the intent of the parties, which a court presumes rests in the language that the parties chose to use in their contract. All Kelley , 2004-Ohio-7104, 104 Ohio St.3d 605, 821 N.E.2d 159, ¶ 29. In determining the parties' intent, a court must read the contract as a whole and must attempt to give effect to, and harmonize, every part of the contract. See id. ; Ford Motor Co. v. John L. Frazier & Sons Co. , 8 Ohio App.2d 158, 196 N.E.2d 335, 337-38 (1964). Common words in a contract are to be given their ordinary meaning unless manifest absurdity results or unless some other meaning is clearly evidenced from the face or overall contents of the contract itself, and technical words will be given their technical meaning unless a different intention is clearly expressed. Foster Wheeler Enviresponse, Inc. v. Franklin County Convention Facilities Authority , 78 Ohio St.3d 353, 678 N.E.2d 519, 526 (1997). When the terms of a contract are clear and unambiguous, the trial court need not go beyond the plain language of the contract to determine the rights and obligations of the parties. All Kelley , 2004-Ohio-7104, 104 Ohio St.3d 605, 821 N.E.2d 159, ¶ 29. "However, if a term cannot be determined from the four corners of a contract, factual determination of intent or reasonableness may be necessary to supply the missing term." Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc. , 15 Ohio St.3d 321, 474 N.E.2d 271, 273 (1984) (applying that rule of contract interpretation in the context of a summary judgment proceeding). That being said, it must be remembered that it is not the role of the court to alter a contract by construction or to make a new contract for the parties; rather, it is the court's duty to interpret the contract that the parties have made for themselves. See In re All Kelley & Ferraro Asbestos Cases , 153 Ohio App. 3d 458, 2003-Ohio-3936, 794 N.E.2d 729, ¶ 57, rev'd on other grounds , 2004-Ohio-7104, 104 Ohio St.3d 605, 821 N.E.2d 159, ¶ 42.

¶ 32 Applying the Ohio rules of contract interpretation in the present case, we find that the forum selection clause contained in paragraph 12 of the NDAs, while mandatory, is not nearly as broad as ABI suggests. To give paragraph 12 such a meaning would negate the permissive forum selection clause contained in paragraph 11. The only way to harmonize the two forum selection clauses (paragraph 11 and paragraph 12) is to interpret the mandatory forum selection clause very narrowly, as indeed it is so worded. We conclude, therefore, that the mandatory forum selection clause only applies to cases brought by ABI for breach of the nondisclosure provisions and only for the purpose of determining the scope of any restraining order, injunctive relief, or equitable relief that may be awarded in such a case. As Sloan correctly points out, that is not the situation before the court in the present case. Thus, we agree with Sloan that there is no provision in the manufacturing agreement or in the NDAs that prohibits Sloan from bringing the instant declaratory judgment action in the Peoria County trial court. The trial court erred in ruling to the contrary.

¶ 33 Having made that determination, we will not reach the other main assertion set forth by ABI-that its motion to dismiss should be granted because Sloan failed to state a claim for declaratory relief in its complaint. The trial court did not rule upon that particular argument and will undoubtedly face a motion to amend the complaint by Sloan if the trial court determines that the complaint is insufficient. We, therefore, remand this case for the trial court to decide that issue and any other matters that may arise.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County and remand this case for further proceedings.

¶ 36 Reversed and remanded.

Justices Lytton and Schmidt concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    LET FOREST PARK VOTE ON VIDEO GAMING, Petitioner-Appellant, v. The VILLAGE OF FOREST PARK MUNICIPAL OFFICERS ELECTORAL BOARD and Its Members, Anthony T. Calderone, Vanessa Moritz, and Thomas Mannix; David Orr, in His Official Capacity as Cook County Clerk; and James Watts, Objector, Respondents-Appellees.
    No. 1-18-0391
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    Filed March 16, 2018 Rehearing denied April 13, 2018
    Edward B. Mullen III, of Mullen Law Firm, of Chicago, for appellant.
    James P. Nally, of Law Office of James P. Nally, P.C., of Chicago, for appellees.
   PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The petitioner, Let Forest Park Vote on Video Gaming, appeals from an order of the circuit court which affirmed a decision of the Village of Forest Park Municipal Officers Electoral Board (Board) sustaining the objection of James Watts to a referendum petition seeking to place a public question regarding video gaming on the ballot to be voted on by the voters of the Village of Forest Park (Village). For the reasons which follow, we reverse the judgment of the circuit court, reverse the decision of the Board, and remand the matter back to the Board with directions.

¶ 2 On December 18, 2017, the petitioner filed a petition with the clerk of the Village, seeking the placement of a proposition on whether video gaming shall be prohibited in the Village on the ballot to be voted on by the voters of the Village (Referendum Petition). The Referendum Petition consisted of 276 petition sheets in total, containing 3522 signatures. The headings on each of the individual petition sheets were identical with one exception: the headings on six of the petition sheets stated that the proposition would be submitted to the voters "at the General Election to be held on November 8, 2016." The headings on the remaining 270 petition sheets, however, stated that the proposition would be submitted to the voters "at the next regular election occurring not less than 92 days after the filing of this petition."

¶ 3 On December 26, 2017, James Watts filed a petition with the clerk of the Village, raising multiple objections to the Referendum Petition. He asserted grounds addressed to the validity of the signatures contained in the Referendum Petition and also alleged that the headings contained on the individual sheets of the petition failed to comply with the uniformity requirement of section 28-3 of the Election Code ( 10 ILCS 5/28-3 (West 2016) ). Watts sought a determination by the Board that the Referendum Petition is legally insufficient and a decision declaring that the referendum question not be printed on the official ballot of the next regular election in the Village.

¶ 4 A records examination was conducted on January 17, 2018, by the Cook County Clerk. Objections to 682 signatures contained in the Referendum Petition were sustained, leaving a total of 2840 valid signatures.

¶ 5 On three days in January 2018, the Board met and conducted hearings on Watts's objections to the Referendum Petition. The Board issued its written decision on January 26, 2018, finding that the individual sheets contained in the Referendum Petition failed to comply with the heading uniformity requirement of section 28-3 of the Election Code (id. ) and, as a consequence, holding all 276 petition signature sheets to be invalid. It found, therefore, that the Referendum Petition contains less than the minimum number of valid signatures of the legal voters of the Village. The Board ordered that the public question addressed to video gaming in the Village shall not appear on the ballot of the next regular election.

¶ 6 The petitioner sought a judicial review of the Board's decision. On February 21, 2018, the circuit court affirmed the Board's decision, and this appeal followed.

¶ 7 When, as in this case, an appeal is taken from a judgment of the circuit court affirming the decision of an electoral board, it is the Board's decision which we review, rather than the circuit court's decision. Samuelson v. Cook County Officers Electoral Board , 2012 IL App (1st) 120581, ¶ 11, 360 Ill.Dec. 658, 969 N.E.2d 468. The facts of this case are not in dispute; it is the legal effect of those facts which is at issue. Consequently, we are presented with a mixed question of law and fact to which we apply a " 'clearly erroneous' " standard of review. Cinkus v. Village of Stickney Municipal Officers Electoral Board , 228 Ill. 2d 200, 211, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008). An administrative agency's decision is clearly erroneous when we are left with the definite and firm conviction that a mistake has been committed. Id.

¶ 8 In urging reversal, the petitioner argues before this court, as it did in the circuit court, that, as 270 of the petition sheets filed with the Village clerk contain identical headings and in excess of the minimum number of signatures required to place the question of video gaming on the ballot, the Referendum Petition is in substantial compliance with the requirements of section 28-3 of the Election Code and the proposition stated therein should be placed on the ballot at the next regular election in the Village. Watts contends that the Referendum Petition does not comply with the mandatory requirements of section 28-3 as each of the petition sheets does not contain the same heading. He argues, therefore, that the Board correctly found all 276 petition sheets invalid and ordered that the proposition on video gaming shall not appear on the ballot at the next regular election.

¶ 9 The initiation and submission of all public questions to be voted on by the electors of any political subdivision are subject to the provisions of article 28 of the Election Code. 10 ILCS 5/28-1 (West 2016). Section 28-1 of the Election Code provides, in part, that:

"Whenever a statute provides for the initiation of a public question by a petition of electors, the provisions of such statute shall govern with respect to the number of signatures required, the qualifications of persons entitled to sign the petition, the contents of the petition, the officer with whom the petition must be filed, and the form of the question to be submitted." Id.

¶ 10 Section 70 of the Video Gaming Act ( 230 ILCS 40/70 (West 2016) ) states that:

"Upon the filing in the office of the clerk, at least 90 days before an election in any municipality * * * of a petition directed to such clerk, containing the signatures of not less than 25% of the legal voters of that municipality * * *, the clerk shall certify such proposition to the proper election officials, who shall submit the proposition at such election to the voters of such municipality * * *. The proposition shall be in the following form:
Shall video gaming YES be prohibited in NO ...............?

¶ 11 Section 28-3 of the Election Code ( 10 ILCS 5/28-3 (West 2016) ) provides, in part, that:

"Petitions for the submission of public questions shall consist of sheets of uniform size and each sheet shall contain, above the space for signature, an appropriate heading, giving the information as to the question of public policy to be submitted, and specifying the state at large or the political subdivision or district or precinct or combination of precincts or other territory in which it is to be submitted and, where by law the public question must be submitted at a particular election, the election at which it is to be submitted."

¶ 12 When, as in this case, two statutes relate to the same subject matter, we presume that the legislature intended both statutes to be operative and harmonious, and we must construe them with reference to each other so as to give effect to all of the provisions of each statute. Cinkus , 228 Ill. 2d at 218, 319 Ill.Dec. 887, 886 N.E.2d 1011. It follows then that we must consider the provisions of the Election Code and the Video Gaming Act as they relate to the form and content of petitions for the initiation of a public question or referendum on whether video gaming should be prohibited within a municipality in pari materia for purposes of statutory construction. Id. at 218-19, 319 Ill.Dec. 887, 886 N.E.2d 1011.

¶ 13 In interpreting a statute, our primary goal is to ascertain and give effect to the intent of the legislature. Id. at 216, 319 Ill.Dec. 887, 886 N.E.2d 1011. "The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning." Paris v. Feder , 179 Ill. 2d 173, 177, 227 Ill.Dec. 800, 688 N.E.2d 137 (1997). Where the plain language of the statute is clear and unambiguous, the intent of the legislature that is discernable from the language of the statute prevails, and no resort to other tools of statutory construction is necessary. Id.

¶ 14 We find the provisions of section 28-3 of the Election Code relating to the requirements for all petitions seeking the submission of public questions and the requirements of section 70 of the Video Gaming Act relating to petitions seeking a referendum on video gaming within a municipality to be clear and unambiguous. There is no conflict between the requirements of the two statutes, and the provisions of each are capable of being given effect without violating the plain language of the other.

¶ 15 Section 70 of the Video Gaming Act sets forth the place where a petition seeking a referendum on video gaming within a municipality must be filed, the minimum time which must elapse between the filing of such a petition and the date of an election at which the proposition is to be voted on, the number of signatures supporting the petition which must be contained in the petition, and the language of the proposition to be submitted to the voters. See 230 ILCS 40/70 (West 2016). Section 28-3 of the Election Code mandates uniformity in the size of each sheet of such a petition and the content of the heading which must appear above the space for signatures. Section 28-3 also requires that "[t]he heading of each sheet shall be the same." 10 ILCS 5/28-3 (West 2016).

¶ 16 In this case, it cannot be disputed that the headings contained on each of the individual sheets of the Referendum Petition are not the same. The headings contained in 270 sheets of the petition provide that the proposition relating to video gaming in the Village is to be submitted to the voters "at the next regular election occurring not less than 92 days after the filing of this petition." The headings contained in six sheets of the petition provide that the proposition is to be submitted to the voters "at the General Election to be held on November 8, 2016."

¶ 17 The Board found, and we agree, that the provision of section 28-3 of the Election Code requiring uniformity in the headings contained on the individual sheets on a petition for the submission of a public question such as the Referendum Petition is mandatory. The statute provides that the headings "shall be the same." The legislature's use of the word "shall" is indicative of its intent to make the provision mandatory. Brennan v. Kolman , 335 Ill. App. 3d 716, 719, 269 Ill.Dec. 847, 781 N.E.2d 644 (2002) ; El-Aboudi v. Thompson , 293 Ill. App. 3d 191, 193, 227 Ill.Dec. 684, 687 N.E.2d 1166 (1997). Also supporting our conclusion that the heading uniformity requirement of section 28-3 is mandatory is the provision in that same section that "[n]o signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with." 10 ILCS 5/28-3 (West 2016) ; Brennan , 335 Ill. App. 3d at 720, 269 Ill.Dec. 847, 781 N.E.2d 644 ; El-Aboudi , 293 Ill. App. 3d at 192-93, 227 Ill.Dec. 684, 687 N.E.2d 1166.

¶ 18 The Board found that, as a result of the Referendum Petition's failure to comply with the mandatory provision of section 28-3 of the Election Code requiring uniformity in the headings of the individual sheets contained therein, all 276 sheets of the Referendum Petition are invalid. We do not believe, however, that the mere fact that a petition seeking the submission of a public question fails to comply with a mandatory provision of section 28-3 necessarily results in the invalidation of the entire petition.

¶ 19 Substantial compliance can satisfy even mandatory provisions of the Election Code. Samuelson , 2012 IL App (1st) 120581, ¶ 29, 360 Ill.Dec. 658, 969 N.E.2d 468 ; King v. Justice Party , 284 Ill. App. 3d 886, 890, 220 Ill.Dec. 83, 672 N.E.2d 900 (1996). But see In re Petition to Form a New Park District , 182 Ill. App. 3d 973, 982, 131 Ill.Dec. 474, 538 N.E.2d 849 (1989). The question in this case is whether the Referendum Petition, with its lack of uniformity in the headings of the individual sheets, nevertheless substantially complied with the requirements of both the Election Code and the Video Gaming Act.

¶ 20 Strict compliance with the requirements of the Election Code is required when the requirements of the statute "contribute substantially to the integrity of the election process." Craig v. Peterson , 39 Ill. 2d 191, 196, 233 N.E.2d 345 (1968) ; Samuelson , 2012 IL App (1st) 120581, ¶ 20, 360 Ill.Dec. 658, 969 N.E.2d 468. However, substantial compliance is sufficient when there is only a technical violation. Samuelson , 2012 IL App (1st) 120581, ¶ 20, 360 Ill.Dec. 658, 969 N.E.2d 468. The total failure to comply with a statutory requirement will result in the invalidation of a petition. See Hagen v. Stone , 277 Ill. App. 3d 388, 391, 213 Ill.Dec. 932, 660 N.E.2d 189 (1995) ; Jones v. Dodendorf , 190 Ill. App. 3d 557, 562-63, 137 Ill.Dec. 468, 546 N.E.2d 92 (1989). However, when a deviation from the Election Code is minor or technical in nature and does not affect the legislative intent to guarantee a fair and honest election, the deviation will not render the entire petition invalid. Samuelson , 2012 IL App (1st) 120581, ¶¶ 52-56, 360 Ill.Dec. 658, 969 N.E.2d 468 ; King , 284 Ill. App. 3d at 890-91, 220 Ill.Dec. 83, 672 N.E.2d 900.

¶ 21 We find that the 270 sheets of the Referendum Petition which share common headings comply with the requirements of section 70 of the Video Gaming Act and substantially comply with the requirements of section 28-3 of the Election Code. Other than his assertion that the headings in these 270 sheets are not the same as the headings in the 6 other sheets in violation of section 28-3, Watts has not argued, nor did the Board find, that the headings contained in the 270 sheets fail, in any other respect, to comply with the requirements of either the Election Code or the Video Gaming Act. Section 70 of the Video Gaming Act requires that a referendum petition on video gaming contain the signatures of not less than 25% of the legal voters in the Village, which the record reflects is 2360 signatures in this case. The records examination determined that there are 2840 valid signatures contained on the 276 sheets which make up the Referendum Petition. Discounting the 90 signatures contained on the 6 sheets of the petition which, in their headings, state that the proposition on video gaming is to be submitted to the voters on November 8, 2016, there remains a minimum of 2750 valid signatures on the 270 sheets remaining which share common headings: 390 signatures more than the statutory minimum. Watts asserts that the Board made no decision on whether the records examination showed that the Referendum Petition contained sufficient signatures to place the proposition on the ballot. This assertion is patently false. The summary report of the records examination conducted on the Referendum Petition states on its face that the petition contained a total of 2840 valid signatures, "480 signatures greater than the required minimum." Paragraph 7 of the Board's decision states that the records examination was conducted with respect to, among other allegations, the allegation in paragraph 12 of Watts's objection petition stating that the Referendum Petition contain less than the statutorily required number of signatures. Paragraph 8 of the Board's decision states: "The Electoral Board adopts the results of the records exam and admits the results of the records exam as Board Exhibit # 6."

¶ 22 The 270 sheets of the Referendum Petition with the same headings contain more than the statutory minimum number of signatures necessary to place before the voters of the Village the question of whether video gaming should be prohibited, and the proposition set forth within the headings of those 270 sheets satisfies the requirement of section 70 of the Video Gaming Act. We hold, therefore, that the inclusion within the Referendum Petition of 6 sheets which do not contain the same headings as the remaining 270 sheets was merely a technical deficiency which is insufficient to render all 276 sheets of the Referendum Petition invalid.

¶ 23 Based upon the foregoing analysis, we conclude that the Board's decision holding that all 276 sheets of the Referendum Petition are invalid and ordering that the public question addressed to video gaming in the Village shall not appear on the ballot of the next regular election is clearly erroneous. Having found that the 270 sheets of the Referendum Petition which share common headings comply with the requirements of section 70 of the Video Gaming Act and substantially comply with the requirements of 28-3 of the Election Code, we reverse the judgment of the circuit court which affirmed the Board's decision and reverse the Board's decision.

¶ 24 Watts argues for the first time that the petitioner failed to state a claim upon which relief can be granted. Relying upon section 28-1 of the Election Code ( 10 ILCS 5/28-1 (West 2016) ), which limits to three the number of propositions which may be submitted to the voters in an election in a political subdivision, Watts argues that, by reason of the fact that there are presently three propositions on the ballot in Forest Park for the March 20, 2018, election, the proposition on video gaming in the Village cannot be submitted to the voters at the next regular election and, therefore, no relief can be granted to the petitioner. We disagree.

¶ 25 Watts never raised the three-proposition rule in his objections filed with the Board, nor did he raise the issue before the circuit court. As a consequence, the issue has been forfeited and cannot be raised for the first time on appeal. Cinkus , 228 Ill. 2d at 212-13, 319 Ill.Dec. 887, 886 N.E.2d 1011. Forfeiture aside, we find no merit in the argument.

¶ 26 If more than three propositions are timely initiated for submission to the voters in a political subdivision at an election, the first three validly initiated propositions shall be printed on the ballot and submitted to the voters at the election. 10 ILCS 5/28-1 (West 2016). There is nothing in the record before us to indicate that the three propositions which are contained on the ballot for the March 20, 2018, election in the Village were initiated prior to the proposition on video gaming initiated by the filing of the Referendum Petition. Watts's failure to raise the three-proposition rule in his objections to the Referendum Petition filed with the Board and his failure to raise the issue before the circuit court lead us to infer that, at the time that the Referendum Petition was filed with the Village's clerk, three other propositions had not yet been initiated.

¶ 27 Due to the passage of time from the filing of Watts's objections on December 26, 2017, and the circuit court's order of February 21, 2018, that affirmed the Board's decision which resulted in this appeal, it is impossible to remand this matter to the Board with directions to order the clerk of the Village to certify the proposition on video gaming within the Village to the proper election official for submission to the voters at the March 20, 2018, election. Having determined that the Board erroneously ordered that the public question addressed to video gaming in the Village shall not appear on the ballot of the next regular election which is scheduled for March 20, 2018, we remand this matter to the Board with directions to order the clerk of the Village to certify the proposition on video gaming within the Village to the proper election official for submission to the voters at the next regular election in the Village after March 20, 2018.

¶ 28 Circuit court judgment reversed.

¶ 29 Board decision reversed and remanded with directions.

Justice Cunningham concurred in the judgment and opinion.

Justice Delort specially concurred, with opinion.

¶ 30 JUSTICE DELORT, specially concurring:

¶ 31 I join the majority's opinion in full with two exceptions. First, I do not join the characterization of the objector's position that the Board "made no decision on whether the records examination showed that the Referendum Petition contained sufficient signatures to place the proposition on the ballot" as "patently false." Supra , ¶21. The objector presented this argument while noting that the Board never reached the merits of his Rule 6 motion to invalidate additional signatures because it invalidated the entire petition on a different basis. Essentially, whether the objector's Rule 6 motion was meritorious then became moot. But the Board never made such a mootness finding in its written decision, so I agree that no remand for a Rule 6 hearing is appropriate.

¶ 32 Second, I disagree with how the majority has structured the remedy, which is to "remand the matter to the Board with directions to order the clerk of the Village to certify that proposition on video gaming within the Village to the proper election official for submission to the voters at the next regular election in the Village after March 20, 2018." The Board has no decisional authority except to declare the referendum petitions valid or invalid and to transmit that determination to the clerk when the period for judicial review has expired. See 10 ILCS 5/10-10 (West 2016) ; Kozel v. State Bd. of Elections , 126 Ill. 2d 58, 68, 127 Ill.Dec. 714, 533 N.E.2d 796 (1988) ; Guerrero v. Mun. Officers Electoral Bd. of Vill. of Franklin Park , 2017 IL App (1st) 170486, ¶ 13, 414 Ill.Dec. 753, 81 N.E.3d 19. We should instead remand the matter to the Board with instructions to declare the Referendum Petition valid and then, separately, order the Village Clerk, who is a party to this case, to certify the referendum question for the next regular election in the Village after March 20, 2018, specifically, the November 6, 2018, General Election.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose A. CARRIZOZA, Defendant-Appellant.
    Appeal No. 3-16-0051
    Appellate Court of Illinois, Third District.
    Opinion filed March 20, 2018 Rehearing denied April 24, 2018
    Michael J. Pelletier, Peter A. Carusona, and Bryon Kohut, of State Appellate Defender's Office, of Ottawa, for appellant.
    Terry A. Costello, State's Attorney, of Morrison (Patrick Delfino, Lawrence M. Bauer, and Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Jose A. Carrizoza, appeals the denial of his postconviction petition, alleging that the case should be remanded for further postconviction proceedings where counsel filed a Rule 604(d) certificate instead of a Rule 651(c) certificate and failed to amend defendant's pro se petition See Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015); R. 651(c) (eff. Feb. 6, 2013). We reverse and remand with directions.

¶ 2 FACTS

¶ 3 Defendant was charged with unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(a)(2)(D) (West 2008) ). Defendant filed a motion to suppress, and a hearing was held. The evidence presented at the hearing established that Deputy Douglas Wade was working with the Whiteside County Sheriff's Department drug interdiction detail and observed defendant approach a stop sign in a truck and fail to signal continuously for 200 feet prior to stopping at the stop sign, in violation of section 11-804 of the Illinois Vehicle Code ( 625 ILCS 5/11-804 (West 2008) ). Wade then radioed Sergeant Kristopher Schmidt about the violation. Schmidt then effectuated a traffic stop. During the stop, Schmidt called Deputy Mike Boucher and his canine, Pico. Pico performed a free-air sniff and showed a positive indication to the presence of a controlled substance near the passenger side tire.

¶ 4 After Pico alerted, Schmidt asked defendant if he had any contraband, and defendant said that he did not. Defendant permitted Schmidt and Boucher to search his truck. Upon the initial search, they discovered that the truck's bolts, molding, and carpet appeared to have been removed and replaced and did not fit properly. Chief Deputy Larry Van Dyke searched the bed of the truck and took the spare tire to an auto body shop to see if there was anything hidden inside it. Van Dyke thought the tire felt heavier than it should.

¶ 5 Schmidt read defendant his Miranda rights ( Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ) but told him he was not under arrest. Schmidt asked defendant if he would follow him to the auto body shop so they could continue the search. Defendant drove his truck to the auto body shop. At the auto body shop, it was discovered that a toolbox in the bed of the truck had a hidden compartment that contained "six kilos of cocaine individually packaged." Defendant was placed under arrest. After allowing the parties to file written arguments, the court denied the motion to suppress.

¶ 6 Defendant entered an open plea. After a sentencing hearing was held on May 13, 2010, the court sentenced defendant to 25 years' imprisonment with 3 years' mandatory supervised release. Defendant did not directly appeal.

¶ 7 On June 30, 2014, defendant filed a pro se postconviction petition. The postconviction petition, which is the subject of this appeal, stated:

"I * * * was advised by [my trial attorney] to put in post-conviction petition. She advise[d] me that the Whiteside County, Police, and County Sheriff's testimonies were false, and the case was mishandle[d]. The search, seizure was done improperly and evidence was mis-withheld. I believe my time for the charge was unjustly."

Defendant also asked for counsel to be appointed.

¶ 8 The court allowed the postconviction petition to proceed to the second stage and appointed counsel. Postconviction counsel did not amend the petition but filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015), stating:

"1. I have consulted with the Defendant in this cause in person or by mail to ascertain the Defendant's contentions of error in the entry of the plea of guilty and in the sentence;
2. I have examined the trial court file and report of proceedings of the plea of guilty and the sentencing; and
3. I have made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."

The State filed a motion to dismiss the postconviction petition, stating that the petition was untimely, not properly supported, and failed to establish a substantial preliminary showing of any constitutional violation.

¶ 9 A hearing was held on the motions to dismiss. In response to the State's motion, defendant's postconviction counsel stated:

"I will admit that it was filed after the fact, after the time it should have been filed. But * * * we would allege * * * that [defendant], in his affidavit states that he did so, or he believed he could do so because he claims [trial counsel] told him what to do and he followed her advice.
* * *
If we get [past] the fact that the State has claimed that this is not timely filed, I have read over the transcript, I've talked to [defendant], and I really have nothing to add to his petition."

The court dismissed the petition, finding that the petition did not present a substantial showing of a constitutional violation.

¶ 10 ANALYSIS

¶ 11 On appeal, defendant requests that the dismissal of his postconviction petition be reversed and the matter be remanded for new second-stage proceedings due to counsel's failure to comply with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Specifically, defendant calls our attention to the fact that postconviction counsel did not file a certificate that substantially complied with Rule 651(c) or amend his pro se petition.

¶ 12 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2014) ) "provides a method by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their rights under the United States or the Illinois Constitution or both." People v. Kirkpatrick , 2012 IL App (2d) 100898, ¶ 10, 360 Ill.Dec. 417, 968 N.E.2d 1170. Under the Act, the defendant is only entitled to reasonable assistance of counsel ( People v. Perkins , 229 Ill. 2d 34, 42, 321 Ill.Dec. 676, 890 N.E.2d 398 (2007) ), which is based on counsel's compliance with Rule 651(c). Under Rule 651(c), postconviction counsel must file a certificate stating that he or she

"consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

Strict compliance with Rule 651(c) is not necessary. People v. Williams , 186 Ill. 2d 55, 59 n.1, 237 Ill.Dec. 112, 708 N.E.2d 1152 (1999). A certificate pursuant to Rule 651(c) raises a presumption of compliance with that rule. People v. Smith , 2016 IL App (4th) 140085, ¶ 33, 401 Ill.Dec. 447, 50 N.E.3d 353. However, "[i]f counsel fails to file a certificate of compliance with Rule 651(c), a reviewing court is not entitled to assume that counsel has complied with the rule; rather, there must be an explicit showing in the record that the rule's requirements have been met." People v. Myers , 386 Ill. App. 3d 860, 865, 326 Ill.Dec. 343, 899 N.E.2d 560 (2008). Stated another way, the failure to file a proper Rule 651(c) certificate is harmless if the record demonstrates that counsel adequately fulfilled his or her duties. People v. Suarez , 224 Ill. 2d 37, 44-45, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007) ;

People v. Guest , 166 Ill. 2d 381, 412-13, 211 Ill.Dec. 490, 655 N.E.2d 873 (1995).

¶ 13 In sum, in determining whether postconviction counsel complied with Rule 651(c), we first determine whether counsel filed a certificate that substantially complied with Rule 651(c). If so, a presumption is raised that counsel complied with that rule, and the burden is on the defendant to rebut that presumption. Smith , 2016 IL App (4th) 140085, ¶ 33, 401 Ill.Dec. 447, 50 N.E.3d 353. If counsel did not file a certificate that substantially complied with Rule 651(c), we determine whether the record explicitly shows that counsel complied with Rule 651(c). Suarez , 224 Ill. 2d at 43-44, 308 Ill.Dec. 774, 862 N.E.2d 977. Where the record shows counsel complied with Rule 651(c), the failure to file a certificate is harmless error. Williams , 186 Ill. 2d at 59 n.1, 237 Ill.Dec. 112, 708 N.E.2d 1152. However, where the record does not explicitly demonstrate counsel's compliance with the rule, we must remand the matter to the circuit court for compliance. Suarez , 224 Ill. 2d at 47, 308 Ill.Dec. 774, 862 N.E.2d 977.

¶ 14 Thus, we first determine whether postconviction counsel filed a certificate that substantially complied with Rule 651(c). Here, the certificate that postconviction counsel filed was captioned, "Defense Counsel Certificate of Compliance with Supreme Court Rule 604(d)." Counsel is required to file a certificate pursuant to Rule 604(d) when a defendant seeks to withdraw his guilty plea. Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015). A certificate under Rule 604(d) requires the attorney to affirm that he or she

"has consulted with the defendant either by phone, mail, electronic means or in person to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."Id.

¶ 15 Though Rule 604(d) and Rule 651(c) certificates are similar, they do contain noticeable differences. People v. Mason , 2016 IL App (4th) 140517, ¶ 22, 404 Ill.Dec. 728, 56 N.E.3d 1141.

"Under Rule 604(d), the attorney's certificate requires only that the attorney consult with defendant and review the records with respect to the plea and sentencing proceedings. Conversely, under Rule 651(c), the attorney's certificate requires the attorney to consult with defendant regarding any contentions of deprivation of constitutional rights, and he must review the record of proceedings. In other words, a Rule 604(d) certificate is more limited in scope than a Rule 651(c) certificate." Id.

¶ 16 The parties cite two cases regarding whether a Rule 604(d) certificate is adequate for substantial compliance with Rule 651(c). In Kirkpatrick , 2012 IL App (2d) 100898, ¶ 4, 360 Ill.Dec. 417, 968 N.E.2d 1170, postconviction counsel filed a " 'Certificate of Counsel Pursuant to Illinois Supreme Court Rule 604(d).' " On appeal, the Second District noted that although postconviction counsel had filed a certificate captioned pursuant to Rule 604(d), the contents of the certificate were "consistent with the requirements of Rule 651(c)." Id. ¶ 14. The court therefore concluded that counsel had filed a certificate that substantially complied with Rule 651(c). Id.

¶ 17 In Mason , 2016 IL App (4th) 140517, ¶ 10, 404 Ill.Dec. 728, 56 N.E.3d 1141, postconviction counsel filed a Rule 604(d) certificate where

"postconviction counsel stated he had reviewed defendant's pro se motion, consulted with defendant by mail and phone to ascertain his contentions of error in the plea and sentencing hearings, and ascertained no amendments to defendant's pro se motion were necessary to present defendant's contentions of error at the plea and sentencing proceedings."

On appeal, the Fourth District found Kirkpatrick to be factually distinguishable. Id. ¶¶ 24-25. In doing so, the court stated:

"[U]nlike in Kirkpatrick , postconviction counsel did not merely mislabel the caption of his certificate; rather, the language contained within the certificate mirrors the precise language of Rule 604(d). Although the claims in defendant's pro se postconviction petition revolved mostly around his guilty plea and sentencing, some of his claims required postconviction counsel to consider the records from other proceedings. Thus, the certificate filed by postconviction counsel fails to demonstrate he reviewed the transcripts of all the trial court proceedings or spoke with defendant about his contentions of constitutional deprivation outside of the plea and sentencing hearings." Id. ¶ 24.

¶ 18 The certificate filed here is more similar to that in Mason than Kirkpatrick . Like in Mason , postconviction counsel's certificate precisely mirrored the language of Rule 604(d) in that counsel stated he (1) "consulted with the Defendant in this cause in person or by mail to ascertain the Defendant's contentions of error in the entry of the plea of guilty and in the sentence," (2) " examined the trial court file and report of proceedings of the plea of guilty and the sentencing," and (3) "made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." It was not simply a misnamed Rule 651(c) certificate like the one filed in Kirkpatrick . Though defendant's postconviction petition raised a sentencing issue as contemplated by Rule 604(d), the petition also included claims not covered by Rule 604(d), specifically that "the Whiteside County, Police, and County Sheriff's testimonies were false, and the case was mishandle[d]. The search, seizure was done improperly and evidence was mis-withheld." In order to consider these contentions, postconviction counsel would have had to consider the record outside the plea and sentencing, including the hearing from the motion to suppress. The certificate postconviction counsel filed fails to shows that he reviewed these proceedings or spoke to defendant about these contentions. Thus, we find that postconviction counsel did not file a certificate that substantially complied with Rule 651(c).

¶ 19 Having determined that a substantially compliant Rule 651(c) certificate was not filed, we next turn to the question of whether the record explicitly shows that postconviction counsel complied with the mandate of Rule 651(c). Here, postconviction counsel did not amend the pro se petition or file any response to the State's motion to dismiss. At the hearing, counsel acknowledged that the petition was not timely filed and then stated, "If we get [past] the fact that the State has claimed that this is not timely filed, I have read over the transcript, I've talked to [defendant], and I really have nothing to add to his petition." While we acknowledge that counsel orally informed the court that he had "talked to defendant," this statement does not make clear what specifically counsel spoke to defendant about. We, therefore, find it significant that the certificate counsel filed only stated that he talked to defendant regarding his contentions of error in the guilty plea and sentencing and only reviewed the transcript from those hearings. Supra ¶ 18. The record is devoid of any evidence establishing that counsel talked to defendant regarding his allegations of constitutional deprivation or reviewed the transcript from other proceedings, like the motion to suppress, where many of defendant's pro se contentions stemmed from. Simply put, the record does not provide any assurance "that postconviction counsel fulfilled his duty under Rule 651(c) rather than under Rule 604(d)." Mason , 2016 IL App (4th) 140517, ¶ 25, 404 Ill.Dec. 728, 56 N.E.3d 1141.

¶ 20 In coming to this conclusion, we again call attention to the factual contrast between Kirkpatrick and Mason . While the Kirkpatrick court ultimately found the Rule 651(c) certificate to be substantially compliant, the court also noted the depth of postconviction counsel's representation. Kirkpatrick , 2012 IL App (2d) 100898, ¶ 14, 360 Ill.Dec. 417, 968 N.E.2d 1170. Specifically, the court commented on the fact that counsel amended the pro se petition and assured the court at the hearing that counsel had spoken with the defendant a couple of times, had written communications with him, had reviewed the defendant's petition, and had discussed the petition and potential changes to the petition with the defendant. Id. No such amendments or assurances were made in the instant case. In contrast, the Mason court not only found that counsel failed to file a substantially compliant certificate, but the court also noted, when concluding that counsel failed to comply with the substance of Rule 651(c), that counsel did not amend the petition or provide any oral Rule 651(c) assurances. Mason , 2016 IL App (4th) 140517, ¶¶ 10, 13, 404 Ill.Dec. 728, 56 N.E.3d 1141. Similar to our finding above that the certificate in the instant case mirrors the one found in Mason (supra ¶ 18), we also find that counsel's representation in the instant case also mirrors the representation described in Mason .

¶ 21 We, therefore, reverse the circuit court's dismissal of the postconviction petition and remand for further second-stage proceedings, including the appointment of new postconviction counsel for defendant, who shall file a new certificate pursuant to Rule 651(c) and make any amendments to the pro se petition deemed necessary. As we remand for compliance with Rule 651(c), we need not address defendant's remaining contentions.

¶ 22 Finally, we would be remiss if we did not clarify the limited scope of our analysis. The question of whether a certificate filed substantially complies with the requirements of Rule 651(c) should be considered on a case-by-case basis. For example, our holding is not intended to foreclose a finding of substantial Rule 651(c) compliance with regard to any and all certificates filed in the future that contain Rule 604(d) language or are labeled as Rule 604(d) certificates. Likewise, if a court concludes that substantial compliance is in fact lacking, we emphasize that a court must then consider the totality of the circumstances as borne out in the record when determining whether the Rule 651(c) certificate error is harmless. Upon reviewing the unique certificate and record in the instant case, we find both the certificate and representation fail to establish Rule 651(c) compliance.

¶ 23 CONCLUSION

¶ 24 The judgment of the circuit court of Whiteside County is reversed and remanded with directions.

¶ 25 Reversed and remanded with directions.

Presiding Justice Carter and Justice McDade concurred in the judgment and opinion.


text:
    Gregory PELLICO, Individually and as Beneficiary of the Evelyn Pellico and Peter M. Pellico Trusts, Plaintiff-Appellant, v. Lorraine MORK, Executor of the Estate of Robert Mork, Individually and as Former Du Page County Public Guardian; Jennifer Martyn, Individually and as Former Assistant Du Page County Public Guardian; and The Office of the Du Page County Public Guardian, Defendants
    (Lorraine Mork, Executor of the Estate of Robert Mork, Individually and as Former Du Page County Public Guardian, Defendant-Appellee).
    No. 2-17-0468
    Appellate Court of Illinois, Second District.
    Opinion filed March 23, 2018
    Richard C. Leng, of Law Offices of Richard C. Leng, of Barrington, for appellant.
    Adam C. Kruse, of Walsh, Knippen & Cetina, Chtrd., of Wheaton, for appellee.
   JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Gregory Pellico, individually and as beneficiary of the Evelyn Pellico and Peter M. Pellico trusts, appeals the order of the circuit court of Du Page County dismissing his refiled lawsuit against defendant, Lorraine Mork, the executor of the estate of Robert Mork (Mork), now deceased, the former public guardian of Du Page County. The court dismissed plaintiff's lawsuit as barred under the rule that allows only one refiling, under section 13-217 of the Illinois Code of Civil Procedure (Code) ( 735 ILCS 5/13-217 (West 1994) ). Plaintiff argues that the court erred by dismissing this case based on section 13-217, because plaintiff's previous refiling occurred while his original case was still pending. Plaintiff also argues that defendant acquiesced to the multiple refilings. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. First Filing

¶ 4 On April 12, 2013, plaintiff filed a complaint against defendant in the circuit court of Du Page County, case No. 13-L-333 (Case I), alleging breach of fiduciary duty in managing a trust and intentional infliction of emotional distress. On May 20, 2015, the complaint was voluntarily dismissed upon plaintiff's motion.

¶ 5 B. Second Filing

¶ 6 On January 13, 2014, while Case I was still pending, plaintiff filed a complaint against defendant in the United States District Court for the Northern District of Illinois, case No. 14CV-226 (Case II). Plaintiff alleged breach of fiduciary duty (failure to manage trusts), negligence (legal malpractice), denial of his civil due process rights, and intentional infliction of emotional distress. The case was stayed pending the resolution of Case I. After Case I was voluntarily dismissed on May 20, 2015, the stay was lifted in Case II. However, on January 28, 2016, the federal court dismissed Case II for lack of federal subject matter jurisdiction.

¶ 7 C. Third Filing

¶ 8 On May 17, 2016, plaintiff filed case No. 16-L-445 (Case III), the complaint at issue here, in the circuit court of Du Page County. On October 31, 2016, plaintiff filed an amended complaint alleging violation of his due process rights, breach of fiduciary duty (failure to manage trusts), intentional infliction of emotional distress, and violation of the Probate Act of 1975 ( 755 ILCS 5/1-1 et seq. (West 2016) ).

¶ 9 Defendant moved for dismissal pursuant to sections 2-615, 2-619(a)(4), 2-619(a)(9), and 2-619.1 of the Code ( 735 ILCS 5/2-615, 2-619(a)(4), 2-619(a)(9), 2-619.1 (West 2016) ). Defendant argued that, pursuant to section 13-217 of the Code (735 ILCS 2/13-217 (West 1994) ), plaintiff's case was barred by the single-refiling rule and should be dismissed under sections 2-619(a)(4) and (a)(9) of the Code. Defendant also argued that Mork had absolute quasi-judicial immunity and sovereign immunity and that the case should be dismissed pursuant to section 2-619(a)(9); that, because res judicata barred all of plaintiff's counts, the complaint should be dismissed pursuant to sections 2-619(a)(4) and (a)(9); and that, because plaintiff failed to state a cause of action for a violation of his due process rights, this count should be dismissed pursuant to section 2-615.

¶ 10 On June 13, 2017, the trial court dismissed plaintiff's complaint with prejudice on the basis that it was barred by the single-filing rule under section 13-217 of the Code. On June 19, 2017, plaintiff filed his notice of appeal.

¶ 11 II. ANALYSIS

¶ 12 Plaintiff argues that the trial court erred by dismissing his complaint pursuant to sections 13-217 and 2-619 of the Code.

¶ 13 The purpose of a motion to dismiss under section 2-619 of the Code is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Van Meter v. Darien Park District , 207 Ill. 2d 359, 367, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). A section 2-619 motion to dismiss admits as true all well-pleaded facts in the complaint, together with all reasonable inferences gleaned from those facts. Khan v. Deutsche Bank AG , 2012 IL 112219, ¶ 18, 365 Ill.Dec. 517, 978 N.E.2d 1020. In ruling on the motion, the trial court will interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. Richter v. Prairie Farms Dairy, Inc. , 2016 IL 119518, ¶ 18, 402 Ill.Dec. 870, 53 N.E.3d 1. A section 2-619 motion presents a question of law, which we review de novo. Id.

¶ 14 Section 13-217 provides a plaintiff with the absolute right to refile a complaint within one year or within the remaining limitations period, whichever is greater. Timberlake v. Illini Hospital , 175 Ill. 2d 159, 163, 221 Ill.Dec. 831, 676 N.E.2d 634 (1997). Section 13-217 provides in pertinent part:

"In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if * * * the action is voluntarily dismissed by the plaintiff, * * * or the action is dismissed by a United States District Court for lack of jurisdiction, * * * then, 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, * * * or the action is dismissed by a United States District Court for lack of jurisdiction * * *." 735 ILCS 5/13-217 (West 1994).

¶ 15 Although not expressly provided in section 13-217, our supreme court has explained that the statute does not permit multiple refilings of the same action. Timberlake , 175 Ill. 2d at 163, 221 Ill.Dec. 831, 676 N.E.2d 634. Indeed, our supreme court has interpreted section 13-217 as permitting one, and only one, refiling of a claim. Id.

¶ 16 The parties do not dispute that Cases I, II, and III are the same action, based on the same operative facts. But plaintiff argues that the trial court erred by dismissing Case III as an improper third filing. Plaintiff contends that Case II does not count as his single refiling under the statute, because he filed Case II while Case I was pending, before it was dismissed without prejudice. Consequently, plaintiff argues, after Case II was dismissed for lack of subject matter jurisdiction, he properly filed Case III. Defendant counters that the trial court correctly ruled that Case III was barred by the single-refiling rule under section 13-217, because the case had been filed and dismissed twice already.

¶ 17 In a similar case, Schrager v. Grossman , 321 Ill. App. 3d 750, 256 Ill.Dec. 456, 752 N.E.2d 1 (2000), the plaintiff filed the first case in April 1995 in the United States District Court for the Northern District of Illinois and that case was voluntarily dismissed in March 1997. Id. at 751-52, 256 Ill.Dec. 456, 752 N.E.2d 1. While the first case was pending, the plaintiff filed the second case in the circuit court of Lake County in March 1996. Id. at 752, 256 Ill.Dec. 456, 752 N.E.2d 1. The second case was removed to the federal court and was then involuntarily dismissed in February 1997. Id . In April 1996, the plaintiff filed the third case. Id. at 753, 256 Ill.Dec. 456, 752 N.E.2d 1. In March 1997, the plaintiff filed a fourth case in the circuit court of Cook County. Id. The trial court denied the defendants' motion to dismiss based on section 13-217. Id. The appellate court held that the trial court erred by denying the defendants' motion and rejected the plaintiff's argument that the second case was not a refiling where it was commenced during the pendency and not following the dismissal of the first case. Id. at 754, 756, 759, 256 Ill.Dec. 456, 752 N.E.2d 1. The appellate court reasoned:

"[T]he fact that [the second case] was the second claim filed but the first to be dismissed has no bearing on the determination of whether plaintiff has fully availed himself of the opportunity afforded by the statute to refile. It is clear plaintiff filed two separate, although identical, claims against defendants in two separate forums and both cases were involuntarily dismissed. Plaintiff now attempts to secure a third bite of the apple because the first bite turned sour. Unfortunately for plaintiff, the statute prohibits a third bite." Id. at 756, 256 Ill.Dec. 456, 752 N.E.2d 1.

¶ 18 Like the plaintiff in Schrager , plaintiff here had already used his single opportunity to refile his claim by the time he filed the claim at bar. Plaintiff's Case I was voluntarily dismissed, which is one of the dispositions enumerated in section 13-217. Case II was dismissed by the federal court for lack of jurisdiction, which is another disposition enumerated in section 13-217. Thus, plaintiff had already used his single opportunity to refile his claim by the time he filed Case III. Plaintiff cannot evade the one-refiling rule by noting that he filed Case II while Case I was pending. See id.

¶ 19 Plaintiff also argues that defendant acquiesced to his filing of Case III and to the filing of Case II while Case I was pending. Plaintiff contends that, after he filed Case II in the federal court, defendant thwarted his attempt to seek the voluntary dismissal of Case I. Plaintiff argues that defendant could have moved to dismiss Case I or Case II on the basis that the same cause was pending in another court.

¶ 20 The rule of acquiescence or invited error is a form of procedural default also described as estoppel. Gaffney v. Board of Trustees of the Orland Fire Protection District , 2012 IL 110012, ¶ 33, 360 Ill.Dec. 549, 969 N.E.2d 359. The rule prohibits a party from requesting to proceed in one manner and then arguing on appeal that the requested action was error. Id. The rationale for the rule is that it would be manifestly unfair to grant a party relief based on an error that the party introduced into the proceedings. Id.

¶ 21 Plaintiff's argument that defendant acquiesced to his multiple refilings of his claim is unsupported by the record. Defendant moved to dismiss Case I, moved to stay Case II pending the resolution of Case I, and moved to dismiss Case III. In addition, plaintiff moved to voluntarily dismiss Case I, Case II was dismissed for lack of federal subject matter jurisdiction, and defendant argued in open court, before Case I was dismissed, that plaintiff had no basis for federal jurisdiction. Therefore, we reject plaintiff's argument that defendant acquiesced to the multiple refilings of this case.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.

¶ 24 Affirmed.

Justices Zenoff and Burke concurred in the judgment and opinion.

      Robert I. Mork died on May 29, 2012.

      Although section 13-217 of the Code was amended effective March 1995, the public act that enacted that amendment was later held to be unconstitutional in its entirety by the Illinois Supreme Court in Best v. Taylor Machine Works , 179 Ill. 2d 367, 378, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). The version of section 13-217 currently in effect, therefore, is the version that was in effect prior to the March 1995 amendment. Hudson v. City of Chicago , 228 Ill. 2d 462, 469 n.1, 321 Ill.Dec. 306, 889 N.E.2d 210 (2008).