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02/07/95 TED BRADY AND BRIAN BROCK v. RICHARD JOOS

February 7, 1995

TED BRADY AND BRIAN BROCK, PLAINTIFFS-APPELLANTS,
v.
RICHARD JOOS, PRESTON TRUCKING COMPANY, INC., AND NORTH STAR TRANSPORT, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Michael J. Kelly, Judge Presiding.

Rehearing Denied March 22, 1995. Released for Publication March 21, 1995.

The Honorable Justice DiVITO delivered the modified opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Divito

MODIFIED FOLLOWING RECONSIDERATION

The Honorable Justice DiVITO delivered the modified opinion of the court:

Plaintiffs Ted Brady and Brian Brock appeal from the entry of summary judgment in favor of defendants Preston Trucking Company, Inc. (Preston) and North Star Transport, Inc. (North Star). On appeal, plaintiffs contend that (1) the circuit court erred when it found that the previous dismissal of codefendant Richard Joos with prejudice pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) constituted a judgment on the merits; (2) the circuit court inappropriately modified the 103(b) dismissal order by a previous judge; and (3) summary judgment was inappropriate.

On March 29, 1994, we issued an opinion affirming the judgment of the circuit court. ( Brady v. Joos (1994), 259 Ill. App. 3d 813, 632 N.E.2d 200, 198 Ill. Dec. 141.) Subsequently, on December 6, 1994, in the exercise of its supervisory authority, the supreme court directed us to reconsider our judgment in light of an opinion it issued on September 29, 1994, Downing v. Chicago Transit Authority (1994), 162 Ill. 2d 70, 642 N.E.2d 456, 204 Ill. Dec. 755. Pursuant to that directive, we have reconsidered our earlier opinion and now withdraw it and, for reasons that follow, reverse the judgment of the circuit court.

On July 19, 1984, plaintiffs were injured when the truck in which they were traveling collided with a truck driven by Joos. At that time, Joos' truck was owned by him, leased to Preston, and "trip leased" to North Star. On July 18, 1986, plaintiffs filed a complaint alleging that Joos negligently operated his vehicle and that Preston and North Star were jointly and severally liable with him under the doctrine of respondeat superior. Plaintiffs also alleged that Preston and North Star were negligent in their maintenance of the vehicle.

On August 6, 1990, Preston moved to dismiss codefendant Joos pursuant to Supreme Court Rule 103(b) for lack of diligence in serving him process. On November 14, 1990, a hearing was held on the motion. At the hearing, the judge stated:

"Pursuant to Supreme Court Rule 103(b) the plaintiff's, plural, [sic] action against the defendant Richard Joos is dismissed and it is dismissed with prejudice.

However, I wish the order to reflect under no circumstances should this order be interpreted as an adjudication on the merits of plaintiffs' claim against the defendant, Joos, but should be solely and exclusively interpreted as a dismissal of the defendant Joos based upon the provisions of Rule 103(b) for failure to exercise due diligence in effectuating service."

When Preston's counsel argued that "with prejudice is synonymous with adjudication on the merits," the judge responded that he understood that a dismissal on the merits could "extricate the principal trucking company out of the case" unless he specified otherwise under Supreme Court Rule 273 (134 Ill. 2d R. 273). The judge then issued an order stating in pertinent part:

"The complaint of Plaintiffs Ted Brady and Brian Brock, against Defendant Richard Joos, is dismissed with prejudice pursuant to Supreme Court Rule 103(b); this order shall not be interpreted as an adjudication on the merits as to plaintiffs' complaint against Richard Joos."

On December 18, 1990, a hearing was held on Preston's motion to vacate the earlier order. At the hearing, the judge stated that he would amend the order to state that the ruling pertained only to the Rule 103(b) claim and should not be interpreted as an adjudication of the merits of plaintiffs' complaint. The judge then discussed the issue with Preston's attorney, and stated that under the then recent case of Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 835, 540 N.E.2d 966, 133 Ill. Dec. 100, and under Rule 273, he was entitled to specify ...


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