Saeed v. Bank of Ravenswood

• Decision Date: 16 October 1981
• Docket Number: No. 80-1723,80-1723
• Citation: 56 Ill.Dec. 526,101 Ill.App.3d 20,427 N.E.2d 858
• Parties: , 56 Ill.Dec. 526 Munasser M. SAEED, Plaintiff-Appellee, v. BANK OF RAVENSWOOD, as Trustee under Trust # 1280, and Orestis Tsalapatanis and Anna Tsalapatanis, Defendants, v. Orestis TSALAPATANIS and Anna Tsalapatanis, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 858

427 N.E.2d 858

101 Ill.App.3d 20, 56 Ill.Dec. 526

Munasser M. SAEED, Plaintiff-Appellee, v. BANK OF RAVENSWOOD, as Trustee under Trust # 1280, and Orestis Tsalapatanis and Anna Tsalapatanis, Defendants, v. Orestis TSALAPATANIS and Anna Tsalapatanis, Defendants-Appellants.

No. 80-1723.

Appellate Court of Illinois, First District, Fifth Division.

Oct. 16, 1981.

[56 Ill.Dec. 527] Flynn, Galvin & Ryan by James R. Galvin, Emmett J. Galvin, Chicago, for defendants-appellants

Warren Mark P.C. by Warren Mark, Richard L. Gerber, Chicago, for plaintiff-appellee.

WILSON, Justice:

Plaintiff brought this negligence action to recover for personal injuries suffered in a fall on defendants' property. The complaint was dismissed with prejudice on defendants' motion for sanctions because of plaintiff's failure to comply with discovery requests. The trial court denied plaintiff's subsequent motion to vacate the dismissal but later granted plaintiff's petition, under section 72 of the Civil Practice Act, to vacate the dismissal. Defendants appeal from this order, contending that the section 72 petition was insufficient as a matter of law and that the court abused its discretion in granting the petition. We affirm the trial court.

On April 22, 1977, plaintiff filed a complaint for damages based on injuries he sustained when he fell in defendants' apartment building. Defendant Bank of Ravenswood has title to the building, which is held in an Illinois land trust. On May 17, 1977, the Bank was dismissed from the lawsuit pursuant to its section 48 motion. (Ill.Rev.Stat.1977, ch. 110, par. 48.) The basis for the motion was that the Bank had no right, power, or authority to manage the real estate but merely held legal title. Subsequently, plaintiff was granted leave to amend his complaint to add Orestis and Anna Tsalapatanis, the beneficial owners, as party defendants.

Both sides had served and answered interrogatories by October of 1977. Plaintiff's deposition was re-scheduled, at his attorney's request, several times from November 1977 through November of 1978. On November 24, 1978, plaintiff's attorney informed defendants' attorney that plaintiff had left the country and that he was On May 7, 1979, plaintiff's counsel asked for another continuance because his client was still out of the country. Defendants' attorney agreed to the continuance as long as plaintiff's attorney informed him of a new date no later than May 11, 1979. By May 30, 1979, however, the deposition had not been re-scheduled and defendants' attorney moved to dismiss the action.

[56 Ill.Dec. 528] unsure when his client would return. The attorneys agreed to reset plaintiff's deposition for May 9, 1979.

The hearing on defendants' motion to dismiss was set for June 21, 1979, but was subsequently continued to July 9, 1979.

On July 9, 1979, the court entered an order stating that "plaintiff shall be present for deposition on August 31, 1979" at defendants' attorney's office and that "failure of plaintiff to comply with this order shall result in the automatic dismissal of his cause with prejudice."

Plaintiff, who was still in Arabia, failed to appear for the August 31 deposition. Thereafter, defendants filed a motion to dismiss the complaint with prejudice. On September 19, 1979, the court granted the motion.

On October 12, 1979, the court considered plaintiff's motion to vacate the dismissal order. Plaintiff's counsel advised the court that plaintiff was still in Crater Aden, Arabia, tending to family problems and fully intended to return within 60 days to prosecute his case. The trial court denied the motion, however, stating that no new evidence had been presented that would warrant vacation of the order.

Plaintiff returned to this country in late December of 1979 or early January. On February 11, 1980, he filed a section 72 petition seeking relief from the dismissal of his complaint. (Ill.Rev.Stat.1979, ch. 110, par. 72.) Defendants were granted leave to respond and on March 5, 1980, they filed a motion to dismiss the petition as being insufficient in fact and in law.

On May 15, 1980, after a hearing, the trial court granted plaintiff's section 72 petition and vacated the prior dismissal order. Defendants appeal from the May 15, 1980 order.

OPINION

Defendants' argument is threefold: (1) The trial court lacked jurisdiction over plaintiff's section 72 petition; (2) the petition itself is inadequate as a matter of law because it fails to allege the necessary factual matters giving rise to plaintiff's claim for relief; (3) plaintiff's reinstated tort action is barred under the principles of res judicata because the September 19, 1979 dismissal order, as a sanction for failure to comply with discovery (Supreme Court Rule 219(c)), operated as an adjudication on the merits under Supreme Court Rule 273. (Ill.Rev.Stat.1979, ch. 110A, pars. 219(c), 273.) We reject all three contentions.

I.

Defendants' jurisdictional argument is based on the rule that the trial court loses the authority to reinstate an action or amend or vacate its final orders after 30 days from the entry of such order. (Ill.Rev.Stat.1979, ch. 110, par. 68.3; Green v. Wilmot (1980), 92 Ill.App.3d 176, 47 Ill.Dec. 763, 415 N.E.2d 1076.) Defendants contend that because the section 72 petition is legally insufficient, it could not confer jurisdiction on the court to reconsider its September 19 dismissal order. Therefore, the May 5, 1980 order is void and the dismissal order must stand. They further argue that plaintiff's proper course of action following the denial of his October 12, 1979 motion to vacate the dismissal would have been to take an appeal from that order.

This theory, we believe, misapprehends the jurisdictional issue. A section 72 petition is considered to be the filing of a new action and is subject to the usual rules governing civil cases. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) Here, there is no question that defendants were served with proper notice or that the court lacked subject matter jurisdiction. The real question is whether a section 72 petition alleges a cause of action or sufficient facts to demonstrate the petitioner's right to relief. If not, the trial court should dismiss the petition (Brockmeyer) and its failure to do so would presumably be an abuse of discretion. Conversely, if the petition is legally sufficient, the trial court has discretionary power to grant the requested relief, and generally will do so unless, for example, the petitioner fails to establish due diligence. See American Reserve Corp. v. Holland (1980), 80 Ill.App.3d 638, 644, 35 Ill.Dec. 965, 970, 400 N.E.2d 102, 107 (although petitioner stated a meritorious defense, he failed to allege facts showing his diligence in both defending the cause and filing the section 72 petition); but cf. Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill.App.3d 726, 729-30, 35 Ill.Dec. 22, 25, 398 N.E.2d 972, 975 (the equitable nature of section 72 relief allows courts to vacate judgments, where justice and fairness require it, "even though the requirement of due diligence has not been satisfied").

In the present case, the trial court had jurisdiction over the section 72 petition. Our review of its May 15, 1980 order granting plaintiff's relief, therefore, is limited to considering the sufficiency of the petition and determining whether the court abused its discretion in vacating its dismissal order.

II.

Section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72) permits relief, under certain circumstances, from final orders or judgments after 30 days from the date of their entry, up to two years thereafter. Relief under this section is equitable in nature and its award rests in the sound discretion of the trial court. (Davis v. Chicago Transit Authority (1980), 82 Ill.App.3d 987, 38 Ill.Dec. 384, 403 N.E.2d 615; Geller v. General Motors Corp. (1980), 87 Ill.App.3d 972, 43 Ill.Dec. 262, 410 N.E.2d 262.) Generally, a legally sufficient petition must demonstrate the existence of a meritorious claim or defense and the petitioner's "due diligence" in pursuing his right to relief. (Windmon v. Banks (1975), 31 Ill.App.3d 870, 335 N.E.2d 116.) The general purpose of a section 72 petition is to bring before the court matters not appearing on record which, if known to the court at the time the original judgment was entered, would have prevented its entry. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294; American Reserve Corp. v. Holland (1980), 80 Ill.App.3d 638, 35 Ill.Dec. 965, 400 N.E.2d 102.) It has been noted that these "new facts," extraneous to the record, must relate to matters which antedate the rendition of judgment and not those arising after the judgment is entered. Russell v. Klein (1974), 58 Ill.2d 220, 317 N.E.2d 556.

Defendants' primary challenge to the legal sufficiency of the petition is that it fails to set out any factual material, in existence at the time the dismissal order was entered, that would have allowed the court to grant plaintiff relief. The only "new fact" alleged in the petition that was not before the trial court when it entered the dismissal order was plaintiff's physical presence in the United States. Defendants agree that in a general sense plaintiff's return to Cook County is a new fact; however, they argue that it clearly arose subsequent to the entry of judgment. According to Russell v. Klein (1974), 58 Ill.2d 220, 317 N.E.2d 556, therefore, defendants argue that plaintiff's return is not a sufficient new fact to permit section 72 relief. For support, they quote the following language from Russell:

"We conclude that the clearly demonstrated intent of the statute requires us to hold that the remedy contemplated by section 72 is available for relief based on matters which antedate the rendition of the judgment and not those which arise subsequent to its rendition." 58 Ill.2d at 225, 317 N.E.2d at 559.

Defendan...