Appeal from the Circuit Court of McHenry County. No. 91-LA-67. Honorable James C. Franz, Judge, Presiding.
PECCARELLI, Inglis, McLAREN
The opinion of the court was delivered by: PECCARELLI
JUSTICE PECCARELLI delivered the opinion of the court:
On February 15, 1991, plaintiff, Ross Ryan, a minor, filed a complaint against defendant School District No. 47 (school district) for injuries allegedly sustained on May 27, 1989, by plaintiff at a playground maintained by the school district. Plaintiff appeals the order of the circuit court of McHenry County dismissing with prejudice his third amended complaint. We reverse and remand.
On May 27, 1989, plaintiff was playing on the monkey bars located on the playground at West Elementary School in Crystal Lake, Illinois. He fell from the monkey bars, landed on a large embedded rock in the ground surface of the playground, and was injured. Plaintiff filed a two-count complaint against the school district alleging negligence and wilful and wanton conduct in constructing and maintaining the playground equipment in an unsafe manner.
On November 6, 1991, plaintiff filed his first amended complaint. On October 19, 1992, plaintiff sought and obtained leave of court to file a second amended complaint adding Kay-Jay Construction, Inc., the installer of the playground equipment, as an additional defendant. On the same date, the school district was voluntarily dismissed as a defendant without prejudice and without costs. On October 14, 1993, plaintiff sought and obtained leave of court to file his third amended complaint adding the school district as a defendant. On October 21, 1993, plaintiff served the school district with the third amended complaint and summons.
The school district then filed a special and limited appearance and a motion to dismiss pursuant to section 13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 1992)). The motion alleged that plaintiff failed to follow the proper procedure in reinstating the school district as a defendant. On December 10, 1993, the trial court heard oral arguments on the school district's motion to dismiss. In an order entered that same date, the trial court dismissed with prejudice plaintiff's complaint against the school district and found that there was no just cause to delay the enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(a), eff. February 1, 1994). Plaintiff filed a timely notice of appeal.
On appeal, plaintiff argues that the trial court erred in dismissing his third amended complaint adding the school district as a defendant where, although the school district previously had been voluntarily dismissed, it would have been inefficient to file a separate action and then move for consolidation since the action had continued with another party remaining as a defendant. Defendant argues that the trial court did not err since plaintiff did not follow the proper procedure for renaming the school district as a party defendant pursuant to section 13-217 of the Code (735 ILCS 5/13-217 (West 1992)).
Section 13-217 of the Code provides in relevant part:
"In the actions specified in Article XIII of this Act or any other act * * * if * * * the action is voluntarily dismissed by the plaintiff, * * * the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater, * * * after the action is voluntarily dismissed * * *." 735 ILCS 5/13-217 (West 1992).
Defendant argues that section 13-217 of the Code required plaintiff to file a new action within one year of the voluntary dismissal in order to preserve his claim against defendant and that merely filing an amended complaint and serving summons was not an adequate method under the Code. Defendant cites Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 17 Ill. Dec. 602, 376 N.E.2d 748, and Mozer v. Kerth (1992), 224 Ill. App. 3d 525, 166 Ill. Dec. 801, 586 N.E.2d 759, for this proposition.
In Miller, a suit for specific performance of an option to purchase real estate, the plaintiffs obtained a summary judgment allowing them to purchase the real estate for the "prevailing market price." ( Miller, 60 Ill. App. 3d at 363.) On the owners' appeal, we affirmed and remanded for proof of the purchase price. Upon remand, William and Jeannette Berg, two of the plaintiffs, sought a voluntary dismissal of the suit, alleging that it had been filed without their knowledge or consent. The trial court granted the motion and dismissed the action. However, within 30 days, the court on its own motion vacated the dismissal order and reinstated the Bergs as parties-plaintiffs. ( Miller, 60 Ill. App. 3d at 363-64.) On the same date, the Bergs filed a motion to vacate for voidness the original order granting summary judgment arguing that the suit had not been filed within the two-year statutory period. The motion was dismissed and the Bergs appealed to this court arguing that the trial court was without the authority to vacate the voluntary dismissal order and to reinstate them as parties-plaintiffs. Miller, 60 Ill. App. 3d at 364.
On appeal, we stated the general rule enunciated in Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 543, 112 N.E. 350, that the party who takes a voluntary nonsuit or dismissal is equitably estopped from thereafter vacating the order of dismissal or reinstating the cause, unless he has been given leave to reinstate at the time of the dismissal, and his only recourse is to commence a new action. ( Miller, 60 Ill. App. 3d at 364.) The rationale for the rule is expressed in Weisguth:
"If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the rights ...