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06/20/95 NATIONAL UNDERGROUND CONSTRUCTION COMPANY

June 20, 1995

NATIONAL UNDERGROUND CONSTRUCTION COMPANY, PLAINTIFF-APPELLANT,
v.
E.A. COX COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

Rehearing Denied July 20, 1995. Petition for Leave to Appeal Denied January 31, 1996.

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

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff National Underground Construction Co. (National) appeals from the trial court's order denying its motion to reinstate this cause pursuant to Supreme Court Rule 369(c). (134 Ill. 2d R. 369(c).) The motion was filed 23 months after our mandate issued reversing summary judgment in favor of defendant E.A. Cox Company (E.A. Cox) and remanding the cause. (See National Underground Construction Co. v. E.A. Cox Co. (1991), 216 Ill. App. 3d 130, 576 N.E.2d 283, 159 Ill. Dec. 614 (National I).) We affirm.

On November 21, 1986, National sought a declaratory judgment against E.A. Cox, alleging unpaid extra work under a subcontract entered into on February 23, 1984. ( National, 216 Ill. App. 3d at 131.) The trial court granted summary judgment in favor of E.A. Cox. On appeal, we reversed the judgment and remanded the cause "for further proceedings consistent with" the opinion. ( National, 216 Ill. App. 3d at 137.) Our mandate issued on October 2, 1991. On September 17, 1993, National filed a motion in the trial court to reinstate the case pursuant to Supreme Court Rule 369(c). (134 Ill. 2d R. 369(c).) E.A. Cox objected to reinstatement, arguing that (1) under section 13-217 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 13-217), National was required to refile the action within one year of this court's reversal of the trial court's judgment; and (2) under section 13-205 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 13-205), the five-year statute of limitations on an action for declaratory judgment had run. During argument on the motion, E.A. Cox also asserted that a party should be held to a standard of due diligence in reinstating a cause after issuance of the mandate. National responded that section 13-217 only applied to reversals of judgments in favor of a plaintiff and that, under Supreme Court Rule 369(c) (134 Ill. 2d R. 369(c)), reinstatement in this case could be had at any time on 10 days' notice to E.A. Cox.

On October 6, 1993, the trial court denied National's motion to reinstate. In so ruling, the trial court stated as follows:

"This is a 1986 chancery case which plaintiff seeks to have reinstated and set for trial. Counsel's papers today or the moving papers today proffer or provide no explanation whatsoever as to why there has been such a delay.

To my knowledge there is no case which says that the mandate maintains its viability and permits redocumenting [sic] of a case in the trial court at any time at the whim of the prevailing party on appeal. ***.

If two years isn't a bar to redocketing would five years be a bar, would ten years be a bar? The argument here being made by National Underground, they have an absolute right to reinstate the case and that simply can't be the law.

I'm not confining my comments to [section] 13-217. I am just talking about what a mandate is and what it requires.

There is no justification why a matter pending on mandate should be treated differently just because it hasn't been redocketed.

Additionally, reinstatement of the case, it's more than thirty days after dismissal requires a showing of due diligence. There is no such showing there. Without a showing of due diligence with some explanation or reason to make apparent the reason ...


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