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Hawes v. Luhr Brothers

June 4, 2004

[5] JAMES E. HAWES, APPELLEE,
v.
LUHR BROTHERS, INC., APPELLANT.



[6] The opinion of the court was delivered by: Justice Kilbride

[7]  Docket No. 96153-Agenda 5-March 2004.

[8]  After entering a voluntary dismissal order, the circuit court of St. Clair County allowed plaintiff's motion to reinstate his complaint for damages under the Jones Act (46 U.S.C. §688 et seq.). The initial order of voluntary dismissal was without prejudice, but it did not specifically reserve to plaintiff the right to reinstate. The defendant appealed (155 Ill. 2d R. 301), claiming that the trial court had no jurisdiction to allow the reinstatement. The appellate court affirmed in an unpublished opinion. No. 5-01-0952 (unpublished order under Supreme Court Rule 23). We granted leave to appeal. 177 Ill. 2d R. 315.

[9]  BACKGROUND

[10]   Plaintiff, a resident of Marshall County, Kentucky, was employed as a deck hand crew member of a barge operated by defendant. On July 14, 1998, he was injured while on board defendant's vessel on a portion of the Ohio River near Livingston County, Kentucky. On June 15, 2001, plaintiff filed a complaint in the circuit court of St. Clair County, Illinois, alleging causes of action under the Jones Act and related admiralty theories. The defendant first filed an answer and jury demand and later filed, pursuant to Supreme Court Rule 187 (134 Ill. 2d R. 187), a motion to dismiss or, in the alternative, to transfer, on the ground of forum non conveniens.

[11]   The motion, supported by affidavit, claimed that defendant is an Illinois corporation with its principal office in Monroe County, Illinois; that the witnesses were residents of Kentucky or Illinois working in or around Livingston County, Kentucky; that plaintiff received medical treatment in Calloway County, Kentucky; and that the courts of St. Clair County are more congested than those of the proposed alternative forum, Pope County, Illinois. The motion was set for hearing on October 23, 2001. Plaintiff, in turn, filed a written motion for voluntary dismissal without prejudice. The motion was served on defendant's counsel and granted ex parte on October 23, 2001. The order made no reference to the pending forum non conveniens motion and did not reserve to plaintiff the right to reinstate the case.

[12]   On November 6, 2001, plaintiff filed a Jones Act complaint in the United States District Court for the Southern District of Illinois. Defendant moved to dismiss the action on the ground that it had not been commenced within three years of the accident as required by the Jones Act.

[13]   On November 19, 2001, while the case was still pending in federal court, plaintiff filed a motion in this case to vacate the order of dismissal. The motion was granted, despite defense counsel's oral motion to dismiss for lack of jurisdiction. Defense counsel's dismissal motion was pursuant to section 2-301 of the Code of Civil Procedure (Code) (735 ILCS 5/2-301 (West 2000)), governing objections to jurisdiction over the person. At the hearing on the motion to vacate, plaintiff's counsel stated that he telephoned defendant's counsel prior to the hearing on the Rule 187 motion and told him he would concede the forum non conveniens issue. Defendant's counsel disputed that account of the conversation. He contended that plaintiff's counsel said that he was either going to move for voluntary dismissal or concede to avoid the delay of an appeal if the forum motion was denied, and that defense counsel replied that "it's up to you." The trial court found the forum motion was conceded and that the order allowing the voluntary dismissal did not state what was actually done. The trial court noted that the only motion pending at the time of the voluntary non-suit was the forum motion and that there was no other reason to non-suit the case. This finding appears in the transcript of the hearing but is not reflected in the order. The order, entered on November 21, 2001, recited:

[14]  
"This cause coming before the Court; the Court being fully advised in the premises and having jurisdiction of the subject matter; The Court finds: Both parties present through counsel. Arguments heard on plaintiff's motion to vacate filed pursuant to 735 ILCS 5/2-1203. Motion is hereby granted. Cause to be reset for status on 1-30-02 at 9:00 a.m. in Ct. Rm 404."

[15]   On December 11, 2001, the defendant filed, pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301), a notice of appeal from this order. Plaintiff then filed a motion for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137), asserting that the appeal was frivolous and filed intentionally for the purpose of delay because the order being appealed was not even final. The sanctions motion was set for hearing on January 7, 2002, with defendant's pending forum non conveniens motion. The trial court found that it had jurisdiction, denied the motion for sanctions, and denied the forum non conveniens motion, finding that defendant had refused to waive the statute of limitations defense as a condition of the dismissal order.

[16]   Fearing that the first notice of appeal may have been premature, defendant subsequently filed a second notice of appeal. Defendant also filed, pursuant to Supreme Court Rule 306 (166 Ill. 2d R. 306), a petition for leave to appeal in the appellate court from the order denying the forum non conveniens motion. That motion was granted, and the appeals were consolidated for hearing.

[17]   The appellate court affirmed the vacation of the voluntary dismissal order, but remanded the cause to the trial court for further proceedings on the forum motion. The appeal before us involves only the order vacating the voluntary dismissal order.

[18]   ANALYSIS

[19]   The primary issue before us is whether a plaintiff may move to vacate a voluntary dismissal order when the trial court did not specifically reserve to plaintiff any right to reinstate. Defendant asserts that under the rule in Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 543 (1916), a plaintiff must reserve the right to move for reinstatement following a voluntary dismissal. Plaintiff contends, however, the Weisguth was subsequently preempted by the enactment of section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2000)). This issue presents a question of law subject to de novo review. See Cameron v. Owens-Corning Fiberglas Corp., 296 Ill. App. 3d ...


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