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Nashlund v. Sabade





APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS W. GLOWACKI, Judge, presiding.


Defendant Sabade (Sabade) appeals from an order under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) The order vacated a previous dismissal of a suit in negligence brought by plaintiffs against defendants. Defendants Chicago Transit Authority and Ross (CTA) support plaintiffs' contention that the vacation was proper.

The following issues are presented for review: (i) whether the grant of plaintiffs' petition is appealable; (ii) whether the prior dismissal was by voluntary non-suit without right to reinstate, so as to deprive the trial court of jurisdiction to entertain the petition to vacate; (iii) whether Sabade's failure to move to strike the section 72 petition waived any question as to the sufficiency of the petition; and (iv) whether the trial court abused its discretion in granting the petition.

Plaintiffs, by their then attorney, Albert A. DePaolo, filed a complaint on June 29, 1971, in the Third Municipal District of the Circuit Court of Cook County *fn1 charging that on May 25, 1970, they were injured by defendants' negligence in an accident involving two cars and a bus. Plaintiffs requested $15,000 in damages. The merits of the suit are not before this court.

On October 17, 1972, the Honorable Francis W. Glowacki entered an order granting plaintiffs' motion to dismiss the suit "without prejudice to re-file and without costs." Plaintiffs were at this time represented by attorney John E. Navigato. On October 24, 1972, a complaint was filed in the county department, law division to which Sabade, on November 22, 1972, filed an answer and the affirmative defense of the statute of limitations. Plaintiffs filed no responsive pleading to affirmative defense. On October 11, 1974, attorney David Krasner of the law firm then retained by plaintiffs, filed a verified petition pursuant to section 72, seeking vacation of the dismissal order of October 17, 1972. The petition, based on the attorney's information and belief, alleged that the complaint had been filed by DePaolo; that Navigato had thereafter requested an increase in the ad damnum; and that Navigato then either entered an agreement whereby plaintiffs would take a voluntary non-suit and refile in the law division of the circuit court with a higher ad damnum with defendants relinquishing the applicable statute of limitations (Ill. Rev. Stat. 1971, ch. 83, par. 15) as a defense, or "erroneously concluded that such an agreement had been entered into." Based on his belief in this agreement, Navigato had, the petition asserted, "permitted" the court to enter its dismissal order and filed a complaint with an increased ad damnum in the Law Division of the First District of the Circuit Court of Cook County. *fn2 This refiled complaint was, the petition related, answered by the CTA without reference to the statute of limitations, and by Sabade who raised the statute of limitations as an affirmative defense.

Sabade filed a reply alleging the section 72 petition was insufficient as a matter of law in being unsupported by the affidavit of anyone with a knowledge of the facts and inadequate in having failed to allege diligence in filing; that she denied entering into any agreement and asserted the dismissal order had been prepared by Navigato and submitted to the judge; that on November 22, 1972, she had filed an answer to the complaint of October 24, 1972, with an affirmative defense of the statute of limitations, and had sent a copy to the plaintiffs; and that the plaintiffs filed their section 72 petition 23 months after they, with diligence, "knew" of the affirmative defense. The reply asked that the petition be denied on its merits. No motion to strike or dismiss the petition was ever filed.

Accompanying the reply was an affidavit of John Fenchel, a member of the firm retained by Sabade at the time of the dismissal. Fenchel averred that Navigato had made a motion to increase damages from $15,000 to $250,000; that Fenchel had objected; that the judge told Navigato he would deny the motion; that Navigato said he would take a non-suit and file a new suit in the county department and thereafter prepared the order; and that no agreement of any kind was effected, nor had any conversation transpired from which Navigato could have concluded an agreement.

Also accompanying the reply is a copy of Sabade's answer to the refiled complaint. On the first page appears the title, "ANSWER," with no statement that the document contains an affirmative defense. On the second page of the "answer," under separate title, the final paragraph asserts the applicable statute of limitations as an affirmative defense.

At the hearing on plaintiffs' section 72 petition, the following was adduced. On October 17, 1972, a pretrial conference was had in the chambers of Judge Glowacki. Navigato testified he requested an increase in the ad damnum based on more severe medical complaints which plaintiff had developed; and that Fenchel objected to this request because there was not sufficient time to investigate these complaints before trial and for other reasons. Navigato stated the suggestion "came up," and he assumed it was his suggestion, that he dismiss the case and refile it in the first district. No question existed in his mind when he left the judge's chambers that an agreement had been entered into allowing him to refile, although he did not recall at the hearing that the specific question of waiver of the statute of limitations arose at the conference. Navigato admitted he had prepared the order and submitted it to Judge Glowacki; that he had received a copy of Sabade's answer to the refiled complaint on or about November 22, 1972; and that he had not read the answer "in toto" until September or October of 1974 when attorney Krasner, of the firm then representing plaintiffs, telephoned him. Navigato asserted he had withdrawn from the case four to five months after the case was refiled in October 1972.

Ronald Bartkowicz, attorney for the CTA and Ross at the time of the dismissal, testified to reasons why he did not believe he was present at the October 17 conference. Bartkowicz concluded, from prior continuances and pretrial conferences, that all the attorneys involved would have felt a lot better with having the case postponed or transferred to the first district for convenience rather than having to try it in the third district. Bartkowicz did not recall any discussion about waiver of the statute of limitations in these prior conferences; and that he was under the impression, at the time of the dismissal, that a plaintiff could take a voluntary non-suit and refile his suit without bringing the statute of limitations into play. Another CTA attorney wrote the CTA's answer to the refiled suit after discussing the case with Bartkowicz.

John Fenchel testified that, when Navigato first raised the prospect of increasing the ad damnum, he objected on the grounds that such increase was factually unsupported, would unfairly complicate the discovery, and would delay the proceedings; that a Mayo Clinic report, received after the increased ad damnum was proposed, diagnosed the basis for the requested increase — an alleged connection between a blood disease and the accident — as "speculative at best"; that there was inadequate insurance coverage to protect against the claim; and that on October 17 the trial court told Navigato that it would deny the motion if pursued, whereupon Navigato decided he would dismiss the complaint and refile it. Fenchel testified that he believed at the time of the conference that Navigato could so dismiss his case without bringing the statute of limitations into play; that he in no way agreed to waive the statute but admitted he did not object to the use of the words "without prejudice to refile" in the order prepared by Navigato, although he understood this to mean plaintiffs had a right to refile because he believed the law allowed such a refiling after a voluntary non-suit.

The trial court stated, based on its recollection and the evidence adduced, that, if there was not an explicit agreement, there was at least a tacit agreement or understanding among the attorneys that the matter would not end with the dismissal; that it believed at the time of the hearing that the taking of a non-suit did not bring the statute of limitations into play; that the order had to be vacated to prevent unfairness and prejudice and stated the action was wrongly labeled as a voluntary non-suit when it was intended to be something else; and that plaintiffs had been diligent in refiling the suit and that it did not consider the delay in filing the section 72 petition to be important. Accordingly, the trial court vacated the previous dismissal and returned the cause to the trial calendar.


• 1 At the outset we feel compelled to comment on an important aspect of this case not discussed in the trial court or in the briefs before this court. The Judicial Article of 1962, effective January 1, 1964, provided for a unified trial court system in the State of Illinois with original jurisdiction on all justiciable matters. The Judicial Article of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, § 9) created a single integrated trial court structure. As we noted earlier in footnote 1 of the opinion, the Circuit Court of Cook County, as one court, is divided into departments, divisions and districts. Its rules clearly provide for the transfer of cases both properly and improperly filed among its various departments, divisions and districts. (General Order 1.3(d) (1967), General Orders of the Circuit Court of Cook County.) Under existing orders all that was necessary under the circumstances in this case was to transfer the cause from the third district to either the first district — if the prayer for damages remains at $15,000 — or to the municipal department, law division of the county department — if the damages sought exceed $15,000. (Cf. Jamal v. Jamal (1st Dist. 1968), 98 Ill. App.2d 180, 188, 240 N.E.2d 246; Daily Journal ...

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