Kulhavy v. BURLINGTON N. SANTA FE RR

• Decision Date: 07 February 2003
• Docket Number: No. 1-02-1973.,1-02-1973.
• Citation: 271 Ill.Dec. 734,785 N.E.2d 928,337 Ill. App.3d 510
• Parties: Terry R. KULHAVY, Plaintiff-Appellant, v. BURLINGTON NORTHERN SANTA FE RAILROAD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

785 N.E.2d 928

337 Ill. App.3d 510

271 Ill.Dec. 734

Terry R. KULHAVY, Plaintiff-Appellant, v. BURLINGTON NORTHERN SANTA FE RAILROAD, Defendant-Appellee.

No. 1-02-1973.

Appellate Court of Illinois, First District, Sixth Division.

February 7, 2003.

Law Offices of Frederic W. Nessler, Springfield (Jack D. Davis, of counsel), for Appellant.

Kenneth J. Wysoglad & Associates, Chicago (John Newell, Kenneth J. Wysoglad, Michael L. Sazdanoff and Robert J. Prendergast, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

Plaintiff Terry R. Kulhavy filed a complaint against defendant Burlington Northern Santa Fe Railroad¹ (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 at 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 forward" because it was precluded by FELA's statute of limitations. The circuit court's order was self-executing on June 18, 2002.

ANALYSIS

Initially, we note that the appendix to plaintiff's brief does not contain a copy of the judgment appealed from, the notice of appeal, or a complete table of contents of the record on appeal, as required by Supreme Court Rule 342(a). 155 Ill.2d R. 342(a). Adherence to Supreme Court Rule 342(a) is not an inconsequential matter. La Grange Memorial Hospital v. St. Paul Insurance Co., 317 Ill.App.3d 863, 876, 251 Ill.Dec. 191, 740 N.E.2d 21 (2000). Where an appellant's brief fails to comply with the rules, this court is within its authority to dismiss the appeal for noncompliance. LaGrange Memorial Hospital, 317 Ill.App.3d at 876, 251 Ill.Dec. 191, 740 N.E.2d 21. Although we elect to consider plaintiff's appeal on its merits, we stress that we could dismiss the appeal because of the omissions in the appendix. Piecuch v. Cook County Sheriff's Merit Board, 312 Ill.App.3d 78, 83, 244 Ill.Dec. 426, 726 N.E.2d 22 (2000).

On appeal, plaintiff contends that the circuit court erred in not vacating its dismissal of the case for want of prosecution. Specifically, plaintiff argues that the dismissal should have been vacated because he met the requirements of section 2-1301 of the Code of Civil Procedure (735 ILCS 5/2-1301 (West 2000)) pertaining to setting aside judgments. In the alternative, plaintiff argues that if the pertinent statutory authority in this case is section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), then the circuit court erred in finding that he did not act with diligence.

I. Section 2-1301 Motion to Reinstate

Plaintiff asserts that the "details of the file" indicate that his section 2-1401 petition for relief from judgment was actually governed by section 2-1301. In support of his assertion that section 2-1301 was the proper authority, plaintiff notes that he initially filed for relief within 30 days of the dismissal of his action and set the matter for hearing within the 90-day time period set forth in Rule 2.3 of the circuit court of Cook County (Cook Co. Cir. Ct. R. 2.3 (eff. July 1, 1976)). Plaintiff contends that he met the requirements of section 2-1301 pertaining to setting aside judgments and that therefore, the circuit court should have granted the motion.

We reject plaintiff's arguments. The record reflects that plaintiff's case was dismissed for want of prosecution on November 21, 2000. Plaintiff filed an initial "Motion to Reinstate" on December 20, 2000. However, plaintiff did not attach the required $75 filing fee or appear at the scheduled hearing on that motion. Two months later, on February 21, 2001, plaintiff filed another "Motion to Reinstate," this time accompanied by the requisite $75 filing fee. On March 12, 2001, the motion to reinstate was withdrawn, and plaintiff subsequently filed a "Petition for Relief from Judgment" in which he cited section 2-1401 and addressed diligence and the merits of the case. As Jensen noted in his amended affidavit:

"26. Edward Proctor of

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