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09/27/88 Frank C. Baley Et Al., v. Joseph F. Tonti Et Al.

September 27, 1988

FRANK C. BALEY ET AL., PLAINTIFFS-APPELLANTS

v.

JOSEPH F. TONTI ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

529 N.E.2d 35, 174 Ill. App. 3d 828, 124 Ill. Dec. 318 1988.IL.1454

Appeal from the Circuit Court of Du Page County; the Hon. John W. Darrah, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This appeal arises from an order of the circuit court of Du Page County dismissing with prejudice plaintiffs' third action against defendants. Plaintiffs brought this action pursuant to section 13-217 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13-217) permitting one refiling of an action following a voluntary dismissal or dismissal for want of prosecution. Plaintiffs' original action was abandoned after an adverse ruling by the trial court in that case, and plaintiffs' second action was dismissed for want of prosecution. The sole issue on appeal is whether plaintiffs' abandonment of their initial action constitutes a "dismissal" from which they were only entitled one refiling. We hold that it does not and reverse.

ACTION ONE

On October 2, 1985, plaintiffs, Frank C. Baley, Ray J. Baley, and Baley's Inc., brought their original action against defendants, Joseph F. Tonti, Dalton P. Grief, and Tonti's International Classic Travel and Tours, Ltd., seeking dissolution of a partnership and an accounting. Plaintiffs' complaint was brought in the circuit court of Du Page County and assigned cause No. 85 CH 893. On December 30, 1985, that case came before Judge John Teschner on defendants' motion to strike the complaint. Judge Teschner granted defendants' motion to strike counts II and III of the complaint and gave plaintiffs 21 days to amend those counts. Plaintiffs did not file an amended complaint in that case, and no further action was ever taken on that file.

ACTION TWO

On January 24, 1986, plaintiffs refiled their action as cause No. 86 CH 822 in the circuit court of Cook County. In their brief, plaintiffs characterize No. 86 CH 822 as a "revised complaint" and further state that "if any attempted abandonment occurred in connection with the filing of Cook County cause 86 CH 822 it was not an abandonment of plaintiffs' cause of action, but an attempt to abandon any further proceedings before Judge John Teschner in Du Page cause No. 85 CH 893." (Emphasis in original.) Defendants moved to transfer venue, and the circuit court of Cook County granted that motion and transferred the venue of No. 86 CH 822 to Du Page County to be consolidated with the previously filed Du Page County case. Neither plaintiffs nor defendants asked the Cook County court for consolidation. The cases were in fact not consolidated. Instead, the Du Page County clerk gave the transferred case the new Du Page County cause No. 86 CH 177 and assigned it to Judge Teschner.

Thereafter, the parties proceeded to litigate this action in No. 86 CH 177. On January 6, 1987, plaintiffs' current counsel substituted into the case. On February 18, 1987, plaintiffs filed an amended complaint in No. 86 CH 177. A pretrial conference was subsequently set for May 11, 1987. On that date, plaintiffs failed to appear for the pretrial conference, and the court dismissed No. 86 CH 177 for want of prosecution. That dismissal order was subsequently vacated, and the case was set for a status hearing on August 11, 1987. On that date plaintiffs again failed to appear for the status hearing, and the court again dismissed No. 86 CH 177 for want of prosecution. Judge Teschner indicated to plaintiffs' counsel that he would not entertain a motion to vacate that dismissal. Plaintiffs subsequently received a copy of Judge Teschner's August 11, 1987, dismissal order in No. 86 CH 177, and, noting that the order failed to state that the dismissal was for want of prosecution as prayed for by defendants, filed a motion to clarify that order nunc pro tunc to reflect its entry as an order of dismissal for want of prosecution. In response, defendants asserted that the dismissal should be with prejudice. On September 22, 1987, Judge Teschner granted plaintiffs' motion to clarify and modified his August 11, 1987, order nunc pro tunc to reflect the dismissal as being entered for "want of prosecution without prejudice to plaintiffs' right to refile within the time provided by law."

ACTION THREE

On August 13, 1987, after the dismissal in No. 87 CH 177 and prior to the motion for clarification of that dismissal order, plaintiffs brought the instant action by refiling their complaint as Du Page County cause No. 87 CH 616 pursuant to section 13-217 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13-217). That case was assigned to Judge John W. Darrah. On October 22, 1987, defendants filed a motion to dismiss No. 87 CH 616 with prejudice alleging that it was not the first refiling of plaintiffs' action after a dismissal and was therefore not permitted by section 13-217. At the same time, plaintiffs moved to consolidate No. 85 CH 893 with No. 87 CH 616. According to plaintiffs' reply brief, the motion to consolidate was brought to protect No. 85 CH 893 from an "involuntary dismissal" and to preclude defendants from arguing "that two final orders of dismissal had occurred in the litigation."

On December 4, 1987, Judge Darrah held a hearing on defendants' motion to dismiss and plaintiffs' motion to consolidate. At that hearing, defendants stipulated that Judge Teschner's August 11, 1987, order in No. 86 CH 177 was a dismissal for want of prosecution, and Judge Darrah agreed. Characterizing plaintiffs' failure to prosecute No. 85 CH 893 as a dismissal, defendants argued that the August 11, 1987, dismissal of No. 86 CH 177 was the second dismissal of plaintiffs' action and thus precluded plaintiffs from refiling the instant action pursuant to section 13 -- 217. Plaintiffs argued in response that Judge Teschner rejected a similar argument made by defendants in opposing the motion to clarify that order and asserted that his ruling was res judicata on defendants' motion to dismiss. Judge Darrah granted defendants' motion to dismiss without reaching the question of res judicata. Judge Darrah stated that the same lawsuit had been filed by plaintiffs against defendants three times: first as No. 85 CH 893, then as No. 86 CH 822 (subsequently No. 86 CH 177), and finally as No. 87 CH 616. Both plaintiffs' counsel and the court concluded that Judge Teschner was not aware of the existence of No. 85 CH 893 when he dismissed No. 86 CH 177. Judge Darrah further noted that No. 85 CH 893 was last scheduled for activity on August 17, 1987, at ...


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