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Kulhavy v. Burlington Northern Santa Fe Railroad

February 07, 2003

TERRY R. KULHAVY, PLAINTIFF-APPELLANT,
v.
BURLINGTON NORTHERN SANTA FE RAILROAD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County Honorable David R. Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Plaintiff Terry R. Kulhavy filed a complaint against defendant Burlington Northern Santa Fe Railroad *fn1 (BNSF) alleging that he sustained injuries in the course of his employment. When plaintiff and his counsel failed to appear for a case management conference, the circuit court, on its own motion, dismissed the case for want of prosecution. Plaintiff thereafter filed a petition for relief from judgment, which was denied by the circuit court. On appeal, plaintiff contends that the circuit court erred in not vacating its dismissal of the case. We affirm.

BACKGROUND

On May 24, 2000, pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. §51 et seq. (1994)), plaintiff filed a complaint against BNSF for injuries he allegedly sustained while employed by BNSF as a traveling machinist / mechanic. A case management conference was scheduled for November 21, 2000. When plaintiff and his counsel failed to appear on that date, the circuit court, on its own motion, dismissed the case for want of prosecution. The next day, BNSF's attorney mailed a copy of the court's order to plaintiff's attorney, Jeffrey S. Cooper, at the Law Offices of Frederic W. Nessler.

On December 20, 2000, another attorney in Nessler's office, Keith A. Jensen, filed a motion on plaintiff's behalf titled "Motion to Reinstate." The motion alleged that plaintiff had not received notice of the case management conference, that BNSF would not be unduly prejudiced by reinstatement of the case, and that if the case were not reinstated, plaintiff would be denied all rights in the ability to recover for damages he received. The motion did not reference any legal authority such as the Code of Civil Procedure or a supreme court rule, and the required filing fee of $75 was not attached. Plaintiff's motion was noticed for hearing on December 28, 2000. Plaintiff did not appear at the scheduled hearing.

On February 21, 2001, plaintiff, via Jensen, filed another motion titled "Motion to Reinstate," identical to the previous motion. The $75 filing fee was paid, and the motion was noticed for hearing on March 7, 2001. Plaintiff did not appear at that hearing. According to plaintiff's brief, the hearing was continued to April 11, 2001. An affidavit executed by Jensen indicates that this motion to reinstate was withdrawn on March 12, 2001.

On March 27 or 28, 2001, plaintiff filed a "Petition for Relief from Judgment" under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), on the basis that plaintiff never received notice of the case management conference. Jensen drafted the petition, but Edward Proctor of the firm Munday & Nathan signed the notice of motion. The petition alleged that plaintiff exercised due diligence in attempting to have the order of dismissal set aside, as evidenced by his filing of a motion to reinstate on February 21, 2001. Attached to the petition was an affidavit, executed by Jensen, in which Jensen related a series of events that occurred after the circuit court dismissed the case for want of prosecution on November 21, 2000:

"In December 2000, attorney Cooper accepted employment with a different firm. On December 6, 2000, [the] Nessler office was advised, via fax from attorney Jeffrey Cooper, that the Court had dismissed the action. This is the first notice of the dismissal. At that time it was undetermined whether representation was to continue by attorney Cooper's new firm or to remain with the Nessler office."

Jensen further related that once the issue of representation was resolved, he filed a motion to reinstate on February 21, 2001. The section 2-1401 petition was noticed for a hearing on April 11, 2001. BNSF filed a written response to plaintiff's section 2-1401 petition and moved to strike. Plaintiff filed a reply.

On April 11, 2001, both parties appeared in court. Plaintiff was represented by Edward Proctor of the firm Munday & Nathan, which appeared for Nessler's office. The circuit court continued the case for hearing on the section 2-1401 petition on April 27, 2001.

On April 20, 2001, plaintiff filed an amended section 2-1401 petition. The amended petition was drafted by Jensen, but the notice of filing was signed by Proctor. The amended petition set forth the allegations of the complaint, asserted that the complaint alleged a meritorious cause of action, summarized BNSF's answer to the complaint, alleged that plaintiff had not received notice of the case management conference, and asserted that plaintiff exercised due diligence in prosecuting the action and attempting to have the order of dismissal set aside, as evidenced by the February 21, 2001, filing of the motion to reinstate. An affidavit executed by Jensen was attached to the amended motion. The affidavit was identical in substance to the affidavit attached to the original section 2-1401 petition. On April 27, 2001, Proctor noticed the amended section 2-1401 petition for hearing on May 23, 2001.

On May 23, 2001, Proctor appeared before the court and the circuit court issued an order giving plaintiff leave to file an amended affidavit on or before June 22, 2001. The affidavit was to address diligence from the date of filing the complaint, the merits of the claim, and diligence from the date of the dismissal. The order stated that the "motion to reinstate" was continued to June 28, 2001. Plaintiff thereafter filed Jensen's amended affidavit, in which Jensen outlined the details of the case's procedural history, and BNSF filed a reply. Proctor signed the notice of filing of the amended affidavit. On July 12, 2001, Proctor noticed the "motion to/for reinstate" for hearing on August 9, 2001. In August 2001, Nessler's secretary telephoned BNSF's counsel to relate that Nessler was on trial that month and the hearing would not go ahead.

Approximately seven months later, on March 14, 2002, plaintiff, represented by Proctor, who again appeared for Nessler's office, re-noticed the "motion to reinstate" for hearing. Following a hearing on June 11, 2002, the circuit court denied plaintiff's amended section 2-1401 petition. The circuit court stated that it had considered BNSF's arguments that plaintiff had not been diligent, but that "the most telling reason" it was denying the petition was "that there is no possibility of the case going ...


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