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09/24/87 Nicholas G. Dassion Et Al. v. William E. Homan Et Al.

September 24, 1987





514 N.E.2d 41, 161 Ill. App. 3d 141, 112 Ill. Dec. 645

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding. 1987.IL.1428


JUSTICE INGLIS delivered the opinion of the court. DUNN and HOPF, JJ., concur.


Plaintiffs, Nicholas G. Dassion and Deborah A. Dassion (Dassions), appeal from an order of the circuit court denying their petition for post-judgment relief brought against defendants, William E. Homan, Lucille J. Homan, Wanda Luka, Century 21, and Brady Real Estate, a/k/a Century Citadel, pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), which sought relief from an order of voluntary dismissal without prejudice entered pursuant to section 2-1009 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). On appeal, plaintiffs contend that the circuit court abused its discretion in denying plaintiffs' petition for post-judgment relief by failing to consider fraudulent representations their former and original attorney in the case (original attorney) made to them.

On May 8, 1977, plaintiffs purchased from defendants a residential lot located in West Chicago, Illinois. On February 26, 1982, plaintiffs filed a complaint in the circuit court of Du Page County alleging that defendants made fraudulent representations concerning the contamination of the property by radioactive waste in order to procure its sale.

On April 6, 1984, three days before trial, the circuit court granted defendants' motion in limine to restrict plaintiffs from introducing medical testimony or seeking medical damages due to plaintiffs' failure to comply with a discovery order. On the day set for trial, April 9, 1984, the circuit court granted plaintiffs' motion for voluntary dismissal without prejudice pursuant to section 2 -- 1009 of the Code.

On April 19, 1985, plaintiffs refiled their complaint. This filing was untimely under section 13-217 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13-217), which requires that commencement of an action after voluntary dismissal be within one year from the date of dismissal. Thereafter, plaintiffs' original attorney withdrew from the case, and plaintiffs retained their current counsel, who obtained a voluntary dismissal of the newly filed complaint. On April 8, 1986, one day before expiration of the two-year statutory time period for filing section 2-1401 motions, plaintiffs petitioned the circuit court for post-judgment relief from the order granting voluntary dismissal without prejudice entered on April 9, 1984.

The plaintiffs' motion for post-judgment relief alleged, inter alia, (1) that their original attorney fraudulently induced plaintiffs to dismiss their complaint; (2) that plaintiffs had a meritorious claim; and (3) that plaintiffs acted diligently at all times in the pursuit of their claim. The circuit court held an evidentiary hearing on plaintiffs' petition.

At the evidentiary hearing, Mr. Dassion stated that he supplied the original attorney with medical information from several sources which supported Dassion's cause of action. Mr. Dassion further testified that their original attorney stated that he was not diligent in submitting Mr. Dassion's medical testimony to the circuit court in accordance with an agreed discovery order. After failing to get the medical evidence admitted, the original attorney told Mr. Dassion that plaintiffs' case was worthless and that the case should be dismissed and refiled. In reliance on the original attorney's representations, Mr. Dassion testified that he consented to a voluntary dismissal.

Mr. Dassion testified that following the dismissal of plaintiffs' case, he called the original attorney two or three times per month for approximately one year to determine whether plaintiffs' case had been refiled. The original attorney assured Mr. Dassion that Giampoli was properly handling plaintiffs' case. Mr. Dassion also testified he did not know the exact date on which his case was dismissed and that the original attorney never indicated to him that the refiling of his complaint was not within the statutory time period. Mr. Dassion stated, however, that the original attorney had informed him that they were near the deadline for refiling. On February 19, 1986, plaintiffs' original attorney informed plaintiffs that he was withdrawing from their case.

The circuit court denied plaintiffs' petition for post-judgment relief, finding that plaintiffs lacked due diligence in pursuing their cause of action. Plaintiffs then filed a timely notice of appeal.

The question raised in this appeal is whether the allegedly fraudulent representations plaintiffs' original attorney made to plaintiffs provide grounds for relief under section 2 -- 1401. Our analysis of the applicable law in conjunction with the particular facts of this case leads us to conclude that the ...

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