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Saeed v. Bk. of Ravenswood

OPINION FILED OCTOBER 16, 1981.

MUNASSER M. SAEED, PLAINTIFF-APPELLEE,

v.

BANK OF RAVENSWOOD, TRUSTEE, ET AL., DEFENDANTS. — (ORESTIS TSALAPATANIS ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this negligence action to recover for personal injuries suffered in a fall on defendants' property. The complaint was dismissed with prejudice on defendants' motion for sanctions because of plaintiff's failure to comply with discovery requests. The trial court denied plaintiff's subsequent motion to vacate the dismissal but later granted plaintiff's petition, under section 72 of the Civil Practice Act, to vacate the dismissal. Defendants appeal from this order, contending that the section 72 petition was insufficient as a matter of law and that the court abused its discretion in granting the petition. We affirm the trial court.

On April 22, 1977, plaintiff filed a complaint for damages based on injuries he sustained when he fell in defendants' apartment building. Defendant Bank of Ravenswood has title to the building, which is held in an Illinois land trust. On May 17, 1977, the Bank was dismissed from the lawsuit pursuant to its section 48 motion. (Ill. Rev. Stat. 1977, ch. 110, par. 48.) The basis for the motion was that the Bank had no right, power, or authority to manage the real estate but merely held legal title. Subsequently, plaintiff was granted leave to amend his complaint to add Orestis and Anna Tsalapatanis, the beneficial owners, as party defendants.

Both sides had served and answered interrogatories by October of 1977. Plaintiff's deposition was rescheduled, at his attorney's request, several times from November 1977 through November of 1978. On November 24, 1978, plaintiff's attorney informed defendants' attorney that plaintiff had left the country and that he was unsure when his client would return. The attorneys agreed to reset plaintiff's deposition for May 9, 1979.

On May 7, 1979, plaintiff's counsel asked for another continuance because his client was still out of the country. Defendants' attorney agreed to the continuance as long as plaintiff's attorney informed him of a new date no later than May 11, 1979. By May 30, 1979, however, the deposition had not been re-scheduled and defendants' attorney moved to dismiss the action.

The hearing on defendants' motion to dismiss was set for June 21, 1979, but was subsequently continued to July 9, 1979.

On July 9, 1979, the court entered an order stating that "plaintiff shall be present for deposition on August 31, 1979" at defendants' attorney's office and that "failure of plaintiff to comply with this order shall result in the automatic dismissal of his cause with prejudice."

Plaintiff, who was still in Arabia, failed to appear for the August 31 deposition. Thereafter, defendants filed a motion to dismiss the complaint with prejudice. On September 19, 1979, the court granted the motion.

On October 12, 1979, the court considered plaintiff's motion to vacate the dismissal order. Plaintiff's counsel advised the court that plaintiff was still in Crater Aden, Arabia, tending to family problems and fully intended to return within 60 days to prosecute his case. The trial court denied the motion, however, stating that no new evidence had been presented that would warrant vacation of the order.

Plaintiff returned to this country in late December of 1979 or early January. On February 11, 1980, he filed a section 72 petition seeking relief from the dismissal of his complaint. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) Defendants were granted leave to respond and on March 5, 1980, they filed a motion to dismiss the petition as being insufficient in fact and in law.

On May 15, 1980, after a hearing, the trial court granted plaintiff's section 72 petition and vacated the prior dismissal order. Defendants appeal from the May 15, 1980, order.

OPINION

Defendants' argument is threefold: (1) The trial court lacked jurisdiction over plaintiff's section 72 petition; (2) the petition itself is inadequate as a matter of law because it fails to allege the necessary factual matters giving rise to plaintiff's claim for relief; (3) plaintiff's reinstated tort action is barred under the principles of res judicata because the September 19, 1979 dismissal order, as a sanction for failure to comply with discovery (Supreme Court Rule 219(c)), operated as an ...


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