National Underground Const. Co. v. E.A. Cox Co.

• Decision Date: 20 June 1995
• Docket Number: No. 1-93-3890,1-93-3890
• Citation: 273 Ill.App.3d 830,210 Ill.Dec. 132,652 N.E.2d 1108
• Parties: , 210 Ill.Dec. 132 NATIONAL UNDERGROUND CONSTRUCTION CO., an Illinois Corporation, Plaintiff-Appellant, v. E.A. COX COMPANY, an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

652 N.E.2d 1108

273 Ill.App.3d 830

210 Ill.Dec. 132

NATIONAL UNDERGROUND CONSTRUCTION CO., an Illinois Corporation, Plaintiff-Appellant, v. E.A. COX COMPANY, an Illinois Corporation, Defendant-Appellee.

No. 1-93-3890.

Appellate Court of Illinois First District, Second Division.

June 20, 1995.

R.S. Maione, Chicago, for appellant. McCracken, Walsh, DeLavan & Hetler (Thomas G. Moffitt, Andrew J. Anderson, of counsel), Chicago, for appellee.

Justice McCORMICK delivered the opinion of the court:

Plaintiff National Underground Construction Co. (National) appeals from the trial court's order denying its motion to reinstate this cause pursuant to Supreme Court Rule 369(c). (134 Ill.2d R. 369(c).) The motion was filed 23 months after our mandate issued reversing summary judgment in favor of defendant E.A. Cox Company (E.A. Cox) and remanding the cause. (See National Underground Construction Co. v. E.A. Cox Co. ( National I ) (1991), 216 Ill.App.3d 130, 159 Ill.Dec. 614, 576 N.E.2d 283.)

We affirm.

On November 21, 1986, National sought a declaratory judgment against E.A. Cox, alleging unpaid extra work under a subcontract entered into on February 23, 1984. ( National I, 216 Ill.App.3d at 131, 159 Ill.Dec. 614, 576 N.E.2d 283.) The trial court granted summary judgment in favor of E.A. Cox. On appeal, we reversed the judgment and remanded the cause “for further proceedings consistent with” the opinion. ( National I, 216 Ill.App.3d at 137, 159 Ill.Dec. 614, 576 N.E.2d 283.) Our mandate issued on October 2, 1991. On September 17, 1993, National filed a motion in the trial court to reinstate the case pursuant to Supreme Court Rule 369(c). (134 Ill.2d R. 369(c).) E.A. Cox objected to reinstatement, arguing that (1) under section 13-217 of the Illinois Code of Civil Procedure (Code) ( Ill.Rev.Stat.1991, ch. 110, par. 13-217), National was required to refile the action within one year of this court's reversal of the trial court's judgment; and (2) under section 13-205 of the Code (Ill.Rev.Stat.1991, ch. 110, par. 13-205), the five-year statute of limitations on an action for declaratory judgment had run. During argument on the motion, E.A. Cox also asserted that a party should be held to a standard of due diligence in reinstating a cause after issuance of the mandate. National responded that section 13-217only applied to reversals of judgments in favor of a plaintiff and that, under Supreme Court Rule 369(c)(134 Ill.2d R. 369(c)), reinstatement in this case could be had at any time on 10 days-notice to E.A. Cox.

On October 6, 1993, the trial court denied National's motion to reinstate. In so ruling, the trial court stated as follows:

“This is a 1986 chancery case which plaintiff seeks to have reinstated and set for trial. Counsel's papers today or the moving papers today proffer or provide no explanation whatsoever as to why there has been such a delay.

To my knowledge there is no case which says that the mandate maintains its viability and permits redocumenting [ sic ] of a case in the trial court at any time at the whim of the prevailing party on appeal. * * *.

If two years isn't a bar to redocketing would five years be a bar, would ten years be a bar? The argument here being made by National Underground, they have an absolute right to reinstate the case and that simply can't be the law.

* * * * * *

I'm not confining my comments to [section] 13-217. I am just talking about what a mandate is and what it requires.

* * * [T]he case in Chancery with no action for two years would be routinely dismissed * * *.

There is no justification why a matter pending on mandate should be treated differently just because it hasn't been redocketed.

Additionally, reinstatement of the case, it's more than thirty days after dismissal requires a showing of due diligence. There is no such showing there. Without a showing of due diligence with some explanation or reason to make apparent the reason for the delay, * * * delay of this kind simply can't be permitted.”

The order denying National's motion does not state that the case was dismissed for want of prosecution.

National argues that the trial court was required to reinstate this cause pursuant toSupreme Court Rule 369(c), which provides, in pertinent part: “When the reviewing court remands the case for a new trial or hearing * * *, the case shall be reinstated therein upon 10 days notice to the adverse party.” (134 Ill.2d R. 369(c).) Although National correctly notes that Rule 369(c) contains no time limitation on the right to reinstate, nonetheless, E.A. Cox advances numerous bases for upholding the trial court's refusal to reinstate.

E.A. Cox first argues that the trial court's actions were justified under section 13-217 of the Code, which provides:

“In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, * * * then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution * * *.” (735 ILCS 5/13-217 (West 1993).)FN1

FN1. Section 13-217 has recently been amended to remove from its ambit voluntary dismissals and dismissals for want of prosecution. (Pub. Act 89-7, sec. 15, eff. March 9, 1995 (amending735 ILCS 5/13-217 (West 1993)).) However, because the amendment is prospective in application, we apply the prior version in this appeal.

Section 13-217 does not address the situation where summary judgment is entered for the defendant and later reversed on appeal in favor of the plaintiff.

The purpose of section 13-217 is to extend the limitations period to enable plaintiffs to refile a case when their complaints suffer defects, primarily procedural in nature, which have resulted in dismissal without resolution on the merits. ( Koffski v. North Barrington (1993), 241 Ill.App.3d 479, 182 Ill.Dec. 61, 609 N.E.2d 364.) Section 13-217 does not pertain to the effect of a mandate remanding a case. Indeed, reinstatement after remand does not constitute the filing of a new action. ( People ex rel. Hartigan v. Illinois Commerce Comm'n (1992), 148 Ill.2d 348, 404, 170 Ill.Dec. 386, 592 N.E.2d 1066.)Thus, by its terms, section 13-217 does not apply to this case.

E.A. Cox also asserts that the doctrine of laches bars reinstatement. Certainly, laches is an available defense in an objection to reinstatement. In Miller v. Bloomberg (1984), 126 Ill.App.3d 332, 81 Ill.Dec. 540, 466 N.E.2d 1342,

the trial court dismissed the cause, after remand, on the ground of laches because the party prevailing on appeal failed to act for almost three years on the mandate in his favor. Here, however, E.A. Cox did not argue laches in its objection to reinstatement. Although E.A. Cox urges this court to find laches, that defense must be pleaded and proved and cannot be raised in the first instance on appeal. Nancy's Home of Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill.App.3d 934, 941, 98 Ill.Dec. 673, 494 N.E.2d 795;

People ex rel. Klingelmueller v. Haas (1982), 111 Ill.App.3d 88, 66 Ill.Dec. 856, 443 N.E.2d 782.

In any event, the mere passage of time does not establish laches. ( Patrick Media Group, Inc. v. City of Chicago (1993), 255 Ill.App.3d 1, 7, 193 Ill.Dec. 515, 626 N.E.2d 1066;Renth v. Krausz, (1991), 219 Ill.App.3d 120, 122-23, 161 Ill.Dec. 754, 579 N.E.2d 11.) Rather, as stated in Renth:

“Laches depends on whether, under all the circumstances of the particular case, plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did. It has been defined to be such neglect or omission to assert a right, taken in conjunction with lapse of time of more or less duration, and other circumstancescausing prejudice to an adverse party * * *.” (Renth, 219 Ill.App.3d at 123, 161 Ill.Dec. 754, 579 N.E.2d 11.)

Although Renth indicates that notions of diligence are central to a finding of laches, here the trial court made no finding as to prejudice. Thus, even were we inclined to overlook the fact that E.A. Cox never asserted laches below, beyond the bald assertions in its brief on appeal as to unavailability of witnesses, the record does not demonstrate that E.A. Cox suffered any prejudice. Therefore, we decline to find laches applicable in this cause.

E.A. Cox further suggests that we construe the trial court's order as one dismissing the cause for want of prosecution. Under Rule 369(c) (134 Ill.2d Rule 369(c)), the trial court should not take any action on this court's mandate absent the requisite notice. ( Jackson v. Pellerano (1991), 210 Ill.App.3d 464, 473, 155 Ill.Dec. 167, 569 N.E.2d 167.) Nonetheless, jurisdiction revests in the trial court when this court's mandate issues. ( Pellarano, 210 Ill.App.3d at 473, 155 Ill.Dec. 167, 569 N.E.2d 167.)Thus, the cause is pending in the trial court as soon as the mandate issues, regardless of whether the parties attempt to act on the mandate. Therefore, a party may seek a dismissal for want of prosecution even if the action has not been reinstated. Tidwell v. Smith (1963), 43 Ill.App.2d 9, 192 N.E.2d 410

(abstract opinion).

Here, E.A. Cox did not file a motion seeking dismissal for want of prosecution. Furthermore, we have examined the substance of the trial court's comments in refusing to reinstate this cause and we do not believe the trial court intended to dismiss for want of prosecution. First, the order...