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04/15/94 WALTER KEMPA v. RAY MURPHY AND LEMONT

April 15, 1994

WALTER KEMPA, PLAINTIFF-APPELLANT,
v.
RAY MURPHY AND LEMONT PAVING COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 89-LM-5646. Honorable Ann B. Jorgensen, Judge, Presiding.

Rehearing Denied May 17, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Inglis, Bowman, Quetsch

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, Walter Kempa (the landowner), appeals from an order of the circuit court of Du Page County which dismissed with prejudice his petition for rule to show cause filed against defendant, Lemont Paving Company (the contractor). The circuit court found that it had no jurisdiction to hear the petition. We agree and affirm.

The landowner and the contractor contracted for work on the landowner's driveways. A dispute arose about the work, and the landowner sued the contractor on October 10, 1989, for breach of contract. The cause was to be arbitrated on October 12, 1990, and on that date the parties entered into a settlement agreement. On October 16, 1990, the circuit court dismissed the cause with prejudice pursuant to the settlement agreement. The dismissal order did not incorporate the settlement agreement, and the court did not retain jurisdiction to enforce the settlement agreement.

On May 12, 1992, the landowner filed in the circuit court a petition for a rule to show cause against the contractor, alleging that the contractor did not abide by the terms of the settlement agreement. The landowner sought a rule to show cause why the contractor should not be held in contempt of court and also asked the court "to assess costs and fees and damages against defendant."

On May 27, 1992, the contractor filed a motion to strike, alleging that the landowner failed to state a cause of action for contempt. The motion was granted, and the landowner was given leave to replead. The landowner filed another petition again seeking damages and a rule to show cause why the contractor should not be held in contempt or, in the alternative, a judgment against the contractor for an amount necessary to complete the work called for in the settlement agreement.

The contractor filed a motion to strike and/or to dismiss, alleging that (1) the landowner did not plead separate causes of action in separate counts as required by section 2-613 of the Code of Civil Procedure (735 ILCS 5/2-613(a) (West 1992)); (2) the landowner failed to state a cause of action for contempt; and (3) the circuit court did not have subject matter jurisdiction to enforce the settlement agreement because it was a new contract between the parties, for which the dismissal of the landowner's suit served as partial consideration. On January 13, 1993, the court dismissed the landowner's petition for a rule to show cause, holding that it did "not have subject matter jurisdiction in this cause." The landowner timely appealed.

In this court, the landowner raises three issues. First, he argues that the trial court erred in finding that it lacked subject matter jurisdiction. Second, he contends that even if the court lost jurisdiction due to the passage of time between the October 16, 1990, dismissal of the lawsuit and the May 12, 1992, filing of the petition for a rule to show cause, the actions of the contractor revested the court with jurisdiction. Third, the landowner argues that courts have an inherent power to enforce a settlement arrived at through mandatory arbitration but not made a part of the trial court record.

The landowner first argues that, contrary to the language of the January 13, 1993, dismissal order, the court did have subject matter jurisdiction over the cause because the original order dismissing the lawsuit against the contractor, entered on October 16, 1990, dismissed the action without prejudice as to the contractor. The record belies the landowner's claim that its case was dismissed without prejudice.

The record contains a form with two parts: the first being a stipulation to dismiss and the second being an order of dismissal. The attorneys for both parties signed the stipulation portion, which as printed states, "WHEREFORE, the parties hereto pray that the court will enter an order dismissing complaint of plaintiff[s] with prejudice." On the form in the record, the words "with prejudice" are struck and the words "without prejudice as to Lemont Paving Co." are inserted in handwriting.

However, the order section of the form states:

"This cause coming on to be heard on this date upon the Stipulation for Dismissal with prejudice filed herein by the above plaintiff[s] and above named defendant[s], and the Court having examined said Stipulation and being fully advised in the premises, finds that this cause of action has been fully compromised and settled and the parties have stipulated and agreed to dismissal ...


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