Computation of Time

• Library: Guide to Illinois Statutes of Limitations and Repose (2018 Ed.)

COMPUTATION OF TIME

A. GENERAL

1. Computation of Time Limitations

5 ILCS 70/1.11: Time-Computation

The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last. When the last day is a Saturday, Sunday, or holiday (as defined by statutes in force), it is excluded.

Trial court appropriately dismissed personal injury complaint as being filed more than 2 years after injury because affidavit of plaintiff's attorney's courier that they handed clerk complaint for filing two minutes after close of clerk's office, and that clerk handed it back to them because office was officially closed, is insufficient to demonstrate filing within limitations period. Roach v. Coastal Gas Station, 363 Ill. App 3d 674, 843 N.E.2d 393, 300 Ill. Dec. 135 (5th Dist. 2006).

Where the last day for filing is a "legal holiday" pursuant to statute, it is excluded from the time computation, even if the courthouse is actually open that day. Bertell v. Rockford Memorial Hospital, 393 Ill. App. 3d 469, 913 N.E.2d 123, 332 Ill. Dec. 528 (2d Dist. 2009).

Upholding the computational method set out in 5 ILCS 70/1.11, the Appellate Court held that a 2-1401 petition filed on the second anniversary of the entry of a judgment was timely. Parker v. Murdock 2011 IL App (1st) 101645 (replacing an earlier opinion with a contrary holding, which was withdrawn).

2. Computation of Time—Month, Year Defined

5 ILCS 70/1.10: Month, year

"Month" and "year" refer to calendar months and years unless otherwise stated. The word "year" alone is equivalent to the expression "year of our Lord."

3. Notice—Computation of Time

715 ILCS 5/6: Computation of time

In computing the time for any notice to be given, the first day is excluded and the last day included unless the last day is Sunday which shall also be excluded.

4. Appellate Review

In reviewing whether a cause of action is untimely, the Supreme Court is not bound by the conclusions of either the circuit or the appellate court. Whether a cause of action was properly dismissed under § 2-619(a)(5) of the Code of Civil Procedure based on the statute of limitations is a matter for de novo review. Reifv. Shatayeva, 2013 IL 114925.

Under Supreme Court Rule 373, if documents are mailed to the clerk, the time of filing is the time of mailing. Sufficient proof of mailing depends on how it was done (see SCR 373 and SCR 12(b)3). The Illinois Supreme Court has ruled that in the absence of an attorney's certificate or affidavit concerning the mailing, a label from an automated postal kiosk is not a "postmark" and is insufficient proof of mailing. Huber v. American Accounting Ass'n, 2014 IL 117293.

On September 19, 2014, the Supreme Court amended its Rule 12b to provide that inmates in correctional institutions do not have to provide an affidavit of deposit in the mail, only an affidavit of deposit with prison officials for mailing by them.

B. SUSPENSION OF THE TIME PERIOD

1. Absence from State

735 ILCS 5/13-208: Absence from state deducted— Exception

If a cause of action accrues against a person and that person is out of the state, the action may be commenced within the times limited in this act after that person returns to the state. If a person departs from and resides out of the state after a cause of action accrues, the time of absence is not part of the time limited for the commencement of the action.

However, pursuant to § 13-208(b) a defendant is not considered to be "out of state" if that defendant is subject to Illinois' long-arm jurisdiction statutes, or "any other statute authorizing service of process which would subject that person to the jurisdiction of the courts of this State." Where a person is subject to such service, then the tolling of § 13-208(a) does not apply. But, if a case is filed and service is attempted, but is unsuccessful, then the person is not considered to be subject to Illinois' jurisdiction, and tolling pursuant to § 13-208(a) is in effect. Where jurisdiction over a defendant outside Illinois can be obtained by service on the Secretary of State, the purpose of statutory provision tolling the statute of limitations during the defendant's absence has been removed and the statute of limitations should not therefore be tolled. Rivera v. Taylor, 61 Ill. 2d 406 (1975).

CAVEAT: These Guidelines are not a substitute for the statutory examination that is needed in considering a statute of limitations problem. We recommend such research.— Editors

2. Effect of Party's Death

735 ILCS 5/13-209: Death of Party—Effect

§ 13-209(a). If the person entitled to bring an action dies before the tolling of the statute and the cause of action survives, the legal representative may commence the action before the expiration date or within 1 year from that person's death, whichever is later.

§ 13-209(b). If a person against whom an action may be brought dies before the expiration date and the cause of action survives, an action may be commenced against the legal representative after the expiration date and within 6 months after the person's death.

§ 13-209(c). If a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof, and the cause of action survives, the action may be commenced against the deceased person's personal representative if the party proceeds with reasonable diligence to move for leave to file an amended complaint, substitutes the representative as defendant, and serves process on the representative. If process is served more than 6 months after the issuance of letters of office, liability of the estate is limited to the extent the estate is covered by liability insurance. In no event may a party commence an action under these provisions unless a representative is appointed and an amended complaint filed within 2 years of the time limited for the commencement of the original claim.

§ 13-209(c) is a limitation provision in itself, which governs the period within which an action may be commenced against the deceased person's personal representative. If a plaintiff falls within its coverage, there is no need to determine if his complaint "relates back" under 2-616. Minikon v. Escobedo, 324 Ill. App. 3d 1073 (1st Dist. 2011). The issue of "reasonable diligence" under 13-209(c) may be analyzed under Supreme Court Rule 103(b) standards. Minikon. The reasonable diligence requirements of § 13-209(c) do not apply to knowledge of the defendant's death, only to the filing of an amended complaint, and substituting the personal representative as defendant. Reif v. Shatayeva, 2013 IL 114925. In Reif, probate proceedings had commenced, and a death notice was published in a newspaper and information regarding the defendant's death and the related probate proceedings was available through the circuit clerk's office and online, but the Supreme Court held the issue was whether plaintiff was in fact aware of defendant's death, not whether he should have been, or made inquiry.

CAVEAT: These Guidelines are not a substitute for the statutory examination that is needed in considering a statute of limitations problem. We recommend such research. — Editors

§ 13-209(c) requires the plaintiff to have no knowledge of the death at the time he files his complaint, therefore the sheriff's return of service indicating the person was dead, did not bar the application of § 13-209(c) to plaintiff's claim. Walker v. Ware, 2013 IL App (1st) 122364 (the case is also notable for its discussion of the veracity of people who respond to the Sheriff when he tries to serve a summons).

The provisions of § 13-209(b) presuppose that the plaintiff is aware of the defendant's death at the time he or she commences the action. Where the defendant's death is not known to plaintiff before expiration of the limitations period and, unaware of the death, the plaintiff commences the action against the deceased defendant directly, § 13-209(c) applies. Reif v. Shatayeva, 2013 IL 114925. However, in Reif the Supreme Court held that in order for § 13-209(c) to apply, the plaintiff must file suit against the decedent's "personal representative," which the Court ruled is an executor or administrator and not a "special representative." In Reif there was an estate proceeding on file and an administrator had been appointed, but plaintiff had a special representative appointed and proceeded against that person. The Court therefore held that plaintiff failed to comply with § 13-209(c). The Court distinguished 735 ILCS 5/2008(b) stating it apples only where the party dies after suit is commenced.

The appointment of the personal representative under13-209(c) should be on plaintiff's motion. In Keller v. Walker, 319 Ill. App. 3d 67 (3d Dist. 2001), it was held error where the trial court did not appoint a representative on plaintiff's motion, and instead ordered defendant's insurer to do so. In Keller, the Court held that the appointment of a representative under 13-209(c) should be done pursuant to 13-209(b). In Relf v. Shatayeva, cited above, the court disagreed, holding that 13-209(c) controlled the procedure.

3. Effect of Stays of Action

735 ILCS 5/13-216: Stay of Action—Effect.

The statute of limitation does not run while the commencement of an action is stayed by injunction, order of court, or statutory prohibition.

The automatic stay of bankruptcy proceedings was held to toll the statute of limitations for the filing of a mechanic's lien. Garbe Iron Works Inc. v. Preister, 100 Ill. App. 3d 948 (1st Dist. 1982).

A stay under Supreme Court Rule 306 has been held to toll the limitations period. Giannini v. Kumho Tire U.S.A, Inc., 385 Ill. App. 3d 1013 (2d Dist. 2008). NOTE: Rule 306 has been amended, effective July 1, 2014 to provide that the Appellate Court can vacate or modify such a stay.

4. Tolling Agreements

The parties may agree, by contract, to shorten or lengthen the applicable limitations period, as...