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October 19, 1994


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 90-L-7912. Honorable Herman Haase, Judge Presiding.

Present - Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The plaintiff, Larry Layfield as special administrator for the estate of Charles Layfield, filed a petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1992) to vacate the dismissal order of December 4, 1990, and reinstate his case against the defendant, Village of University Park. The circuit court of Will County denied the petition. Plaintiff appeals. We reverse and remand with instructions.

The decedent, Charles Layfield, died when a piece of concrete, thrown from the Stuenkel Road overpass on Interstate 57, landed on the truck in which he was travelling. The plaintiff filed a wrongful death action against several defendants. However, we only concern ourselves with the Village of University Park. The other defendants were either dismissed from the action or granted summary judgment in their favor.

On September 18, 1990, the defendant filed a motion to dismiss. On September 27, 1990, the defendant filed the affidavit of Michael Gruberman, Village Manager for the Village of University Park, in support of defendant's motion. The affidavit stated that the Village did not own, control or maintain, the Stuenkel Road overpass for a period of at least 2 years prior to the deceased death. Based on this affidavit, the plaintiff entered into an agreed order dismissing the Village of University Park as a defendant on December 4, 1990. The order stated:


Based upon the movant's non-ownership of the road in question as argued in University Park [sic] motion to strike and dismiss and evidenced by the attached affidavit of Village Manager, Michael Gruberman, the defendant Village of University Park shall be dismissed from this lawsuit voluntarily."

However, on November 7, 1989, plaintiff filed a complaint against the State of Illinois (State). The State then filed a motion to dismiss alleging the Stuenkel Road overpass was not part of the State's jurisdiction. In support of its motion, the State filed the affidavit of Robert I. Levine, Highway Systems Manager for the Illinois Department of Transportation. As Highway Systems Manager, Mr. Levine researches the jurisdictional boundaries of Illinois' highways. On April 29, 1993, the plaintiff took a discovery deposition of Mr. Levine. During this deposition Mr. Levine testified that on December 18, 1989, he telephoned Mr. Gruberman and discussed the probability of the Village of University Park having jurisdiction over the Stuenkel Road overpass. Mr. Gruberman agreed. Consequently, On October 26, 1993, plaintiff filed his motion to vacate the dismissal order of December 4, 1990 and reinstate the case.

The circuit court denied the plaintiff's petition based on our ruling in Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28, 70 Ill. Dec. 815. In Herman the trial court granted the defendant's motion for summary judgment. Consequently, the plaintiff moved for a voluntary nonsuit for the remainder of his complaint. The plaintiff then sought to reinstate the case and vacate the order granting summary judgment. We affirmed the trial court's decision not to vacate its order of dismissal and refusal to reinstate the case. We based our decision on the often cited rule from Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550. Namely, where a plaintiff has been granted a voluntary nonsuit, the court has no power to vacate an order of dismissal and reinstate the cause of action, unless, at the time the nonsuit was taken leave was given the plaintiff to move to set the dismissal aside. Absent this, the plaintiff's course of action is to begin the action anew. Bettenhausen 388 Ill. 487, 58 N.E.2d 550. The rationale for this often criticized rule (See Johnson v. Sumner (1988), 172 Ill. App. 3d 70, 526 N.E.2d 690, 122 Ill. Dec. 431 (Stouder P.J., specially Concurring) comes from Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350, where the Court reasoned, 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 which he voluntarily abandoned.

However, this case does not involve a voluntary dismissal. The plaintiff entered into an agreed upon dismissal only after the defendant filed Mr. Gruberman's affidavit stating the defendant did not own, control, or maintain, the Stuenkel Road overpass. Once this affidavit was filed, the plaintiff had no choice but to dismiss his action. As a matter of law, the plaintiff could not maintain a claim against a party who did not maintain, or control the overpass, and the dismissal order reflects this. Consequently, we believe this situation resembles more a dismissal for cause than it does a voluntary dismissal. Given this situation, the Weisguth and Bettenhausen rule as interpreted by Herman is inapplicable because the plaintiff neither voluntarily abandoned his position nor his rights.

Other courts have also refused to apply the rule where it would be inapposite to the Weisguth rational. For example in Weilmuenster v. Illinois Ben Hur Construction Co. (1979), 72 Ill. App. 3d 101, 390 N.E.2d 579, 28 Ill. Dec. 412 the court held the Weisguth rule did not apply where the appellee and appellant agreed to the dismissal. (Cf. Howard v. Francis (1990), 204 Ill. App. 3d 722, 562 N.E.2d 599, 150 Ill. Dec. 69 (Weisguth rational applicable where the plaintiff freely and voluntarily chose to dismiss his complaint over defendant's objections.) Moreover, the court held where agreed upon dismissals are involved, trial court retains jurisdiction to vacate an order of dismissal and reinstate the cause within the 30 day period under section 2-1203 of the Code (735 ILCS 5/2-1203 (West 1992).

Moreover, in Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 422 N.E.2d 1011, 52 Ill. Dec. 802, the court reasoned that Supreme Court Rule 304(a) enables a party to reinstate a case, either voluntarily or involuntarily dismissed, where claims are pending against other parties in the same action. In that situation, the court held, the trial court retains jurisdiction over the matter. See also Mozer v. Kerth (1992) 224 Ill. App. 3d 525, 586 N.E.2d 759, 166 Ill. Dec. 801.

Likewise, we find the trial court has jurisdiction to vacate this dismissal for cause in this case. Section 2-1401 of the Code provides a procedure where final orders, judgments, and decrees may be vacated after 30 days of entry; this is done by bringing to the court's attention matters of fact, unknown when the judgment was entered, but which, if known, would have affected or altered the judgment. ( Koffski v. Village of North Barrington (1993) 241 Ill. App. 3d 479, 609 N.E.2d 364, 182 Ill. Dec. 61.) A petitioner must first show, the grounds asserted for relief would have prevented the entry of judgment against him had it been known at trial, and then he must prove the failure to discover or present the grounds for relief were not the result of the petitioners's own lack of diligence. ( Lubbers v. Norfolk and Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955, 85 Ill. Dec. 356.) However, after two years of the final judgment's entry, the litigant must additionally establish that the grounds for relief were fraudulently concealed from him. ( Ptaszek v. Michalik (1992), 238 Ill. App. 3d 72, 606 N.E.2d 115, 179 Ill. Dec. 283.) Fraudulent concealment consists in the affirmative acts or misrepresentations intended to exclude suspicion or prevent injury. ( Dils v. City ...

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