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06/30/97 ZENON HARCHUT v. OCE/BRUNING

June 30, 1997

ZENON HARCHUT, INDIVIDUALLY AND AS FATHER AND NEXT FRIEND OF ANNA HARCHUT, A MINOR, PLAINTIFF-APPELLEE,
v.
OCE/BRUNING, INC., AN ILLINOIS CORPORATION, AND RONALD BUTTERMAN, DEFENDANTS-APPELLANTS.



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

Released for Publication August 5, 1997.

The Honorable Justice Tully delivered the opinion of the court. Rakowski and McNULTY, JJ., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

Defendants, OCE/Bruning, Inc. and Ronald Butterman, appeal from an order of the circuit court of Cook County entered May 23, 1996, which vacated its prior order of September 12, 1994, dismissing for want of prosecution the negligence action of plaintiff, Zenon Harchut, individually and as father and next friend of his minor-daughter Anna Harchut. Defendants contend that this court has jurisdiction over this matter pursuant to Supreme Court Rule 304(b) (134 Ill. 2d R. 304(b)).

FACTUAL BACKGROUND

On March 17, 1994, plaintiff filed his complaint against defendants, for injuries he and his daughter sustained when a vehicle owned by OCE/Bruning, Inc., and operated by Butterman collided with plaintiff's vehicle. Plaintiff's daughter was a passenger in his vehicle at the time of the accident.

On September 12, 1994, the matter came up on the circuit court's progress call and was dismissed for want of prosecution when plaintiff's counsel failed to appear. Plaintiff's counsel did not receive notice of the progress call as the clerk of the circuit court erroneously sent notice of it to another law firm. In fact, a new associate of law firm representing plaintiff was in the courtroom for the progress call on two other cases being handled by firm. However, as the attorney was not yet familiar with the firm's case inventory he did know to step up on the Harchut case.

On September 27, 1994, defendants' insurance carrier attended a settlement conference with plaintiff's counsel.

On November 10, 1994, defendants initiated written discovery to plaintiff.

In May 1995, plaintiff sent written discovery to defendants. Defendants filed no objections to this discovery, nor did they assert the case was dismissed and no longer active.

On December 7, 1995, defense counsel advised plaintiff's attorney that he had closed his file on the case based upon the dismissal entered on September 12, 1994. This was the first time plaintiff's counsel had heard of the dismissal.

On January 29, 1996, plaintiff filed a motion to vacate the dismissal based solely upon the doctrine of revestment. In that motion, plaintiff argued that defendants had acted inconsistently with the dismissal and had revested the circuit court with jurisdiction.

Defendants filed a special and limited appearance pursuant to section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301 (West 1994)) and a motion to quash plaintiff's motion to vacate pursuant to the special and limited appearance. In their motion defendants argued that plaintiff's motion was really a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)). ...


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