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08/12/96 ELDA NELSON v. KEENE CORPORATION

August 12, 1996

ELDA NELSON, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT NELSON, DECEASED, PLAINTIFF-APPELLANT,
v.
KEENE CORPORATION, ET AL., DEFENDANTS-APPELLEES. PATRICIA DUNNING, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF COLETTE FITZSIMMONS, DECEASED, PLAINTIFF-APPELLANT, V. KEENE CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DEAN M. TRAFELET, PRESIDING.

Released for Publication September 16, 1996.

The Honorable Justice Braden delivered the opinion of the court. Campbell, P.j., and Wolfson, J., concur.

The opinion of the court was delivered by: Braden

JUSTICE BRADEN delivered the opinion of the court:

Plaintiffs, Elda Nelson and Patricia Dunning, appeal the judgment of the circuit court of Cook County dismissing their actions for lack of jurisdiction. On appeal, they opine that their complaints were erroneously dismissed.

We affirm.

On April 23, 1987, plaintiffs filed petitions pursuant to Supreme Court Rule 217 (134 Ill. 2d R. 217), seeking to preserve the testimony of two terminally ill persons, Robert Nelson and Colette Fitzsimmons, whose fatal conditions allegedly resulted from exposure to asbestos. Nelson was a former asbestos worker who was exposed to the substance on a daily basis. Fitzsimmons, a teacher, was exposed to asbestos at school where she taught. Both Nelson and Fitzsimmons developed malignant mesothelioma, a cancer caused by exposure to asbestos.

Rule 217, a discovery rule, provides for the taking of depositions in order to perpetuate testimony. Anticipating future litigation and the deaths of Nelson and Fitzsimmons, plaintiffs sought to videotape their depositions. In June 1987, the depositions of Nelson and Fitzsimmons were taken. Fitzsimmons died in September 1987; Nelson died in November of that year.

On October 15, 1987, plaintiffs submitted two motions, one pertaining to the Nelson case and one pertaining to the Fitzsimmons case. These motions, bearing the docket numbers of the Rule 217 proceedings, requested leave to file complaints for damages against defendants, Keene Corporation, ACandS, Inc., Armstrong World Industries, Inc., The Flintkote Company, Fibreboard Corporation, National Gypsum, Owens-Corning Fiberglas Corporation, Pittsburgh-Corning Corporation, Turner & Newall, P.L.C., GAF Corporation, United States Gypsum Company, Owens-Illinois, Inc., Rock Wool Manufacturing Company, Carey Canada, Inc., Celotex Corporation, Crown Cork & Seal Company, Eagle-Picher Industries, Inc., H.K. Porter Company, Inc., and Nicolet, Inc.

Appended to the motions for leave to file were the actual complaints. The motions for leave to file and the notice of the motions were mailed to defendants. Plaintiffs delivered the complaints to the deputy clerk assigned to the courtroom of the trial judge presiding over the Rule 217 proceedings. Plaintiffs' counsel stamped the complaints as filed in the chambers of the trial judge. Plaintiffs never paid a filing fee nor did they obtain new docket numbers for the actions they sought to commence. Defendants were never served with either summonses or complaints. None of the defendants filed appearances, responsive pleadings (with the exception of one which filed an answer with respect to Nelson) or any other motion indicative of the belief that a complaint had been filed. There was silence between the parties until October 1989.

On October 10, 1989, plaintiffs' counsel amended the Nelson complaint, naming the same defendants. Defendants again filed no appearances or responsive pleadings. In December 1990, plaintiffs' cases were set for trial which was to begin on November 1, 1991. On January 24, 1991, ACandS filed a special and limited appearance, moving to dismiss the actions based upon lack of jurisdiction. ACandS argued that because it was not served with summonses and complaints, no actions were pending and the trial court had no jurisdiction over it. Several of the remaining defendants also moved to dismiss, filing special and limited appearances to contest the jurisdictional issue.

On December 12, 1991, the trial court granted the motions to dismiss, finding that no action had commenced and that it was without jurisdiction to proceed to trial on the matter. The trial court explained:

"By granting the motion and entering the order of October 15, 1987 allowing the complaint to be filed instanter and allowing defendants time certain within which to answer or otherwise plead I believe I did not confer jurisdiction. It doesn't matter what the court's intention was. It could not confer jurisdiction.

Indeed this Court had and continues to have limited jurisdiction under Rule 217. Any exercise of jurisdiction beyond what was conferred under Rule 217 was and would be in error. It would be a violation of the ...


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