Mages Sports Arenas, Inc. v. Winston Park Shopping Center, Inc.

• Decision Date: 25 June 1969
• Docket Number: Gen. No. 52588
• Citation: 112 Ill.App.2d 409,251 N.E.2d 334
• Parties: MAGES SPORTS ARENAS, INC., a Delaware corporation authorized to do business in Illinois, and Community Discount Centers, Inc., an Illinois corporation (formerly known as Mages Sporting Goods Co.), Plaintiffs- Appellants, v. WINSTON PARK SHOPPING CENTER, INC., an Illinois corporation; the Prudential Insurance Company of America, a New Jersey corporation, and Jewel Tea Company, Inc., a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 334

251 N.E.2d 334

112 Ill.App.2d 409

MAGES SPORTS ARENAS, INC., a Delaware corporation authorized to do business in Illinois, and Community Discount Centers Inc., an Illinois corporation (formerly known as Mages Sporting Goods Co.), Plaintiffs- Appellants, v. WINSTON PARK SHOPPING CENTER, INC., an Illinois corporation the Prudential Insurance Company of America, a New Jersey corporation, and Jewel Tea Company, Inc., a corporation Defendants-Appellees.

Gen. No. 52588.

Appellate Court of Illinois, First District, Fourth Division.

June 25, 1969.

Shaffer, Seelig, Mandel & Shapiro, Chicago, for appellants, Robert S. Atkins, Chicago, of counsel.

Arthur Abraham, I. J. Berkson, Chicago, for Winston Park Shopping Center, Inc.

Schiff, Hardin, Waite, Dorschel & Britton, Chicago, for The Prudential Ins. Co. of America.

McDermott, Will & Emery, Chicago, for Jewel Tea Co., Inc.

McCORMICK, Justice.

This appeal is taken from an order entered in the Circuit Court of Cook County on April 25, 1967, sustaining defendants' motion to dismiss plaintiffs' complaint. Defendant Winston Park Shopping Center, Inc. (Winston) constructed, developed and was the lessor of a shopping center. Plaintiffs Mages Sports Arenas, Inc. (Mages), and Community Discount Centers, Inc. (Community), executed various leases and agreements with Winston regarding occupation of the specified premises at the shopping center. Defendant Jewel Tea Company, Inc. (Jewel) leased part of the building above the premises occupied by plaintiffs.

On September 3, 1963, plaintiffs filed a complaint against the abovementioned defendants and the Prudential Insurance Company of America, first mortgagee of the land upon which the premises were located. In the complaint plaintiffs alleged that the said defendants wrongfully caused plaintiffs' premises to be subjected to excessive water seepage, dampness, accumulation of liquids, noxious odors and a defective air conditioning and ventilating system, all to the damage of plaintiffs. Plaintiffs prayed for an injunction and other equitable relief and for compensatory and punitive damages in the amount of $1,500,000. Answers were filed by the various defendants and counterclaims were filed by Jewel against Winston and by Winston against Jewel.

Plaintiffs' motion for temporary injunctive relief was denied and the matter was then referred to a master in chancery for the taking of evidence. The master twice set the case for hearing, and on both occasions defense counsel attended but plaintiffs' attorneys were absent. The master then sent the case back to the referring judge; on November 12, 1964, the case was again called, and again plaintiffs did not appear. On the motion of two of the defendants the case was dismissed for want of prosecution. The order entered on November 12 read as follows:

On motion of defendants, Jewel Tea Company, Inc. and Prudential Insurance Company of America, to dismiss this cause for want of prosecution, this case is hereby dismissed and costs charged to plaintiffs.

Plaintiffs assert that they had never received notice that a motion had been made to dismiss the case. The defendants assert that announcements of all progress cases appear in the Chicago Daily Law Bulletin a few days before the call is made, and that plaintiffs did not respond to the progress call in the instant case.

On December 12, 1966, plaintiffs filed a complaint which was identical to that which had been filed on September 3, 1963. All three defendants moved to dismiss the complaint, contending that the action was barred by the former order of November 12, 1964, which had dismissed the September 3, 1963 complaint for want of prosecution. The judge sustained the defendants' motion and dismissed plaintiffs' complaint 'with prejudice' on April 25, 1967. No opinion was issued, nor were there any findings of fact.

Within 30 days plaintiffs moved to vacate and set aside the order, and urged that Supreme Court Rule 273, Ill.Rev.Stat.1967, c. 110A, § 273, had no applicability since its effective date was January 1, 1967, subsequent to the filing of the complaint; and further, that it should not have been construed to bar the present action, for to do so would deny plaintiffs equal protection and due process under the constitutions of Illinois and the United States. On July 12, 1967, the trial court denied plaintiffs' motion to vacate, from which order this appeal is taken.

The sole issue in this appeal is whether the dismissal of a complaint for want of prosecution bars the filing of a new...