{ "id": 3559933, "name": "RONALD BREWER, Plaintiff-Appellant, v. ALTON MOORE, Defendant-Appellee", "name_abbreviation": "Brewer v. Moore", "decision_date": "1984-01-31", "docket_number": "No. 82\u20142184", "first_page": "423", "last_page": "429", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 423" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "433 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "258" } ], "opinion_index": 0 }, { "cite": "89 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493996 ], "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0273-01" ] }, { "cite": "27 Ill. App. 2d 347", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5787764 ], "year": 1982, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/27/0347-01" ] }, { "cite": "412 Ill. 285", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664013 ], "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0285-01" ] }, { "cite": "27 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358431 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "613" }, { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0609-01" ] }, { "cite": "426 N.E.2d 8", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099097 ], "pin_cites": [ { "page": "881" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0878-01" ] }, { "cite": "403 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 987", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3225649 ], "pin_cites": [ { "page": "989" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0987-01" ] }, { "cite": "427 N.E.2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "864" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 20", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3087092 ], "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0020-01" ] }, { "cite": "449 N.E.2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591286 ], "pin_cites": [ { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0835-01" ] }, { "cite": "386 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3308345 ], "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0478-01" ] }, { "cite": "385 N.E.2d 75", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "320 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2504963 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0835-01" ] }, { "cite": "319 N.E.2d 46", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "59 Ill. 2d 34", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960058 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/59/0034-01" ] }, { "cite": "385 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3314745 ], "weight": 2, "pin_cites": [ { "page": "487" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0487-01" ] }, { "cite": "77 L 5130", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 2, "opinion_index": 0 }, { "cite": "76 L 10746", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 696, "char_count": 15135, "ocr_confidence": 0.741, "pagerank": { "raw": 1.0547801384503952e-07, "percentile": 0.5550667239673046 }, "sha256": "28fe97016dc0eb4613d9cd73db291626c1305aeb4d1b1305adb1900fee2bfe0a", "simhash": "1:87fdc19153688076", "word_count": 2515 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RONALD BREWER, Plaintiff-Appellant, v. ALTON MOORE, DefendantAppellee." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nPlaintiff, Ronald Brewer (Brewer), appeals from the trial court\u2019s denial on July 28, 1982, of his January 10, 1979, section 72 petition for relief from judgment (formerly Ill. Rev. Stat. 1979, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401). This petition requested the trial court to vacate its order of January 11, 1977, dismissing plaintiff\u2019s complaint \u201cwith prejudice\u201d as a sanction for noncompliance with discovery.\nOn June 11, 1976, Brewer filed a complaint (No. 76 L 10746) against defendant, Alton Moore (Moore), in the circuit court of Cook County for personal injuries allegedly sustained in a July 2, 1974, automobile accident. In August 1976 Moore filed his appearance and answer and propounded interrogatories to Brewer. In September 1976 Moore, pursuant to Supreme Court Rule 201(k) (58 Ill. 2d R. 201(k)), made written demand for the answers to interrogatories. In October 1976 Moore moved to dismiss the complaint for Brewer\u2019s failure to answer interrogatories. By agreement, hearing on the motion was continued several times. Brewer\u2019s attorney advised Moore\u2019s attorney that answers to the interrogatories were not forthcoming because Brewer had apparently moved and his attorney was unable to locate him. On December 27, 1976, Moore filed a second motion to dismiss again based on Brewer\u2019s failure to answer interrogatories. On January 11, 1977, the hearing date set for Moore\u2019s motion, Brewer\u2019s attorney telephoned Moore\u2019s attorney. Upon being advised by Moore\u2019s counsel that he would not agree to a further continuance, Brewer\u2019s counsel informed Moore\u2019s counsel that he could not appear at the hearing due to a scheduling conflict. He requested that any order of dismissal entered include language providing that if Brewer was located within 30 days the case would be reinstated, and if he was located within one year, the case could be refiled. Brewer\u2019s counsel also requested Moore\u2019s counsel to forward to him a copy of the order when entered.\nOn January 11, 1977, Moore\u2019s counsel drafted an order, signed by the court, which read in relevant part:\n\u201cThis cause coming on to be heard on defendant\u2019s motion to dismiss plaintiff\u2019s cause of action for failure to answer interrogatories; and plaintiff\u2019s failure to comply with Supreme Court Rule 201(k); and plaintiffs failure to obey court ordered continuances to permit answering of said interrogatories. All parties having notice and plaintiffs counsel advising in open court that the plaintiffs [sic] have failed to follow their case and have failed to advise their counsel of their whereabouts upon moving and the court being fully advised in the premises,\nIT IS HEREBY ORDERED that this entire cause of action is dismissed with prejudice for plaintiff\u2019s failure to answer interrogatories; comply with Supreme Court Rule 201(k) and failure to comply with previous continuances to answer interrogatories. This court further sees no just reason to delay the appeal of this order.\u201d (Emphasis added.)\nOn January 27, 1977, after receiving several requests, Moore\u2019s attorney mailed to Brewer\u2019s attorney a copy of the order. Immediately upon receipt of the order Brewer\u2019s attorney that same day mailed a notice of motion to vacate the order of dismissal, or to modify it to reflect the dismissal to be \u201cvoluntary\u201d or \u201cfor want of prosecution.\u201d\nAt the February 3, 1977, hearing on Brewer\u2019s motion to vacate or to amend the January 11 order of dismissal, Brewer\u2019s attorney advised the court that the dismissal order prepared and submitted by Moore\u2019s counsel contained misleading and untrue statements. Brewer\u2019s counsel explained that, contrary to the wording of the order, he was not \u201cin open court\u201d on January 11 and he had not then \u201cadvised\u201d the court that Mr. Brewer \u201cfailed to follow his case.\u201d Also, the order\u2019s recitation that Brewer failed \u201cto obey court ordered continuances to permit answering of said interrogatories\u201d was untrue; no previous order of court so provided, and no order had been entered requiring answers to the interrogatories on a date certain.\nThe court granted Brewer\u2019s motion in an order providing, in part, \u201cthat the order of January 11, 1977 be modified to read that this cause was dismissed for want of prosecution. The defendant objects to this modification of this order as contrary to the law and evidence and the court overrules these objections.\u201d\nOn March 3, 1977, Brewer, pursuant to the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a), filed a second action (No. 77 L 5130) in the circuit court of Cook County involving the same facts and parties. Moore moved to dismiss the second action alleging it had been filed more than two years after the July 2, 1974, automobile accident and that the refiling under section 24 of the Limitations Act was barred because dismissal of the first action was not \u201cvoluntary\u201d but rather was an \u201cinvoluntary\u201d dismissal entered \u201cwith prejudice\u201d as a sanction for Brewer\u2019s failure to comply with discovery.\nThe trial court denied Moore\u2019s motion to dismiss the second case but certified the matter for appeal to the appellate court pursuant to Supreme Court Rule 308 (58 Ill. 2d R. 308). This court granted Moore\u2019s application for leave to appeal. In that appeal (Brewer v. Moore (1978), 67 Ill. App. 3d 487, 487, 385 N.E.2d 73, 74) we found the \u201csole issue\u201d to be \u201cwhether the dismissal of plaintiff\u2019s initial complaint acted as a bar to the refiling of a new action pursuant to section 24 of the Limitations Act.\u201d We held:\n\u201cThe supreme court in Keilholz v. Chicago & Northwestern Ry. Co. (1974), 59 Ill. 2d 34, 319 N.E.2d 46, held that the dismissal of an action for failure to comply with discovery is not a dismissal for want of prosecution, but rather it is an involuntary dismissal which bars refiling under section 24 [of the Limitations Act]. (See also Heizman v. City of Chicago (1st Dist. 1974), 23 Ill. App. 3d 835, 320 N.E.2d 121.) In the case at bar the original dismissal order was entered as a sanction under Supreme Court Rule 219 (Ill. Rev. Stat. 1975, ch. 110A, par. 219) for failure to answer interrogatories and comply with court orders. It is obvious from the record that the trial court modified the original dismissal order so as to use the magic words \u2018want of prosecution\u2019 and thereby bring the dismissal under the provisions of section 24.\n* * *\nWe find that the initial action was dismissed as a sanction for failure to comply with court orders, and that the dismissal acts as a bar to refiling under section 24. Therefore, we reverse the order of the circuit court of Cook County.\u201d 67 Ill. App. 3d 487, 489, 385 N.E.2d 75.\nOn January 10, 1979, 15 days after the filing of our opinion dismissing Brewer\u2019s second ease (No. 77 L 5130), he filed in the trial court a timely section 72 petition, with supporting affidavits, requesting the trial court to vacate its January 11, 1977, order of dismissal entered in his first case (No. 76 L 10746). Brewer\u2019s section 72 petition contended: the order entered on January 11, 1977, does not \u201ctruly or accurately\u201d relate the relevant circumstances of the case nor the agreement reached between the attorneys regarding wording of that order; Brewer\u2019s attorney had lost contact with Brewer after the case was referred to him by Brewer\u2019s initial attorneys and repeated efforts to locate Brewer were finally successful and contact had been reestablished shortly after the court\u2019s order of January 11, 1977; and that Moore\u2019s attorney had misled the court in his drafting of the January 11 order of dismissal.\nMoore filed a motion to strike and dismiss the section 72 petition, alleging that it contained.no new facts as required by law, and that the petition was an effort to \u201cre-litigate\u201d the same issues already determined by the appellate court.\nOn July 28, 1982, the trial court denied Brewer\u2019s section 72 petition, holding in part:\n\u201cThe petition contains no new matters which arose before or after this court\u2019s decision in January and February, 1977; or if it does, same could and should have been presented in January or February, 1977.\nThe matters arising out of both cases were before the Appellate Court. It is clear that the Court considered the entire record and determined Plaintiff was not entitled to any relief including that which he seeks here.\nThe mandate of the Appellate Court binds this Court and requires this Court to turn down any back door after the fact attack on either the decision or reasoning of the Appellate Court.\u201d\nBrewer appeals from the above order of July 28,1982.\nThe statutory provisions for relief from judgments (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401, formerly Ill. Rev. Stat. 1979, ch. 110, par. 72) provides a procedure whereby final orders, judgments and decrees may be vacated after 30 days. The following requirements must be shown by a petitioner before relief is granted:\n\u201c(1) the existence of a meritorious defense or claim [citations];\n(2) due diligence in presenting this defense or claim in the original action [citation];\n(3) that through no fault or negligence of his own an error of fact or a valid defense or claim was not made to appear to the trial court at the time the challenged judgment, order or decree was entered [citation]; and\n(4) due diligence in filing the petition for section 72 relief [citations].\nThe petitioner must set forth specific factual allegations supporting each of the above elements [citations] and must prove his right to the relief, sought by a preponderance of the evidence [citation].\u201d (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284, 286.)\n\u201cThe petition invokes the equitable powers of the court as justice and fairness require and should be considered in the light of equitable principles.\u201d Manning v. Meier (1983), 114 Ill. App. 3d 835, 838, 449 N.E.2d 560, 562.\nIn the instant case we believe the trial court erred in denying Brewer\u2019s section 72 petition. In its order the trial court found \u201cthe mandate of the appellate court binds this court and requires this court\u201d to deny Brewer\u2019s petition. Our previous opinion in this case, however, addressed only the issue of a trial court\u2019s authority to modify an order of dismissal entered as a sanction for noncompliance with discovery, so as to allow a refiling of the lawsuit pursuant to the Limitations Act. Our opinion neither contemplated nor considered the issues raised by the section 72 petition subsequently filed by Brewer. \u201c[T]he requirements and purposes of the Limitations Act are clearly distinct from those of section 72 of the Civil Practice Act.\u201d (Saeed v. Bank of Ravenswood (1981), 101 Ill. App. 3d 20, 28, 427 N.E.2d 858, 864.) Thus, our prior opinion was not to be construed to \u201cbind\u201d the trial court\u2019s ruling on Brewer\u2019s section 72 petition.\nIn our view the trial court erred also in finding that Brewer\u2019s section 72 petition presented \u201cno new matters.\u201d The new matters to be brought to a court\u2019s attention in a section 72 petition are those facts \u201cnot appearing on the record which, if known to the court at the time judgment was entered, would have prevented its rendition.\u201d (Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615, 616.) As we have previously noted, shortly after the January 11, 1977, dismissal order was entered, Brewer moved the court to vacate or amend the order based on facts which, according to Brewer, were not known to the court at the time it entered the order; to wit, the inaccuracies and untruths contained in the language of the order; that Brewer\u2019s failure to answer interrogatories was due to Brewer\u2019s counsel having lost contact with Brewer and the purported agreement between the attorneys regarding the wording of the order and the refiling of the lawsuit. The trial court, when first advised of these facts in February 1977, did in fact modify the January 11, 1977, order. Thus, we find Brewer\u2019s section 72 petition did present \u201cnew facts\u201d not known to the court in January 1977 when the order was entered.\nAmong the circumstances to be examined in adjudging a section 72 petition is whether \u201ca party has procured an unconscionable advantage through the extraordinary use of a court process.\u201d (Hiram Walker Distributing Co. v. Williams (1981), 99 Ill. App. 3d 878, 881, 426 N.E.2d 8, 10.) The conduct of opposing counsel is a relevant factor to be considered.\n\u201cOne of the guiding principles in the administration of section 72 relief is that the petition invokes the equitable powers of the court, which should prevent enforcement of a judgment when it would be unfair, unjust, or unconscionable. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613; Ellman v. De Ruiter (1952), 412 Ill. 285, 292.) We note that in both these cases the unfair conduct of counsel was a factor in the court\u2019s determination that section 72 relief was warranted. As the court stated in Elfman, \u2018 \u201cSomething more than the morals of a medieval market may reasonably be expected in the conduct of litigation.\u201d \u2019 27 Ill. 2d 609, 615, quoting Jansma Transport, Inc. v. Torino Baking Co. (1960), 27 Ill. App. 2d 347, 354.\u201d Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 285, 433 N.E.2d 253, 258.\nWe are compelled to conclude that Moore\u2019s attorney did not act in good faith when he drafted the January 11, 1977, order of dismissal wherein he included language which: dismissed Brewer\u2019s lawsuit \u201cwith prejudice\u201d; indicated Brewer\u2019s attorney had made certain admissions \u201cin open court\u201d when the attorney was not in fact present; incorrectly noted Brewer\u2019s \u201cfailure to obey court ordered continuances\u201d and made the dismissal order final and appealable. Such conduct, as well as the failure of Moore\u2019s counsel, until more than two weeks had passed and several requests by Brewer\u2019s counsel to provide him with a copy of the order went unanswered, cannot be condoned.\nAlthough at oral argument before this court Moore\u2019s attorney stated he had never acceded to the request of Brewer\u2019s attorney that the order of dismissal recognize plaintiff\u2019s right to refile the lawsuit, we cannot, in view of Brewer\u2019s attorney\u2019s immediate action to vacate the order, believe that Brewer\u2019s attorney was cognizant of, or agreed to, inclusion of the language noted above. Although we are duly concerned with unnecessary delays in the judicial process, we deem even more significant our quest for justice.\nWe believe that under all of the circumstances of this case justice and good conscience require vacature of the trial court\u2019s January 11, 1977, order of dismissal.\nFor the reasons herein stated, the trial court\u2019s order denying Brewer\u2019s section 72 petition is reversed and this cause is remanded for further proceedings.\nReversed and remanded.\nSTAMOS and DOWNING, JJ., concur.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Brody, Gore & Fineberg, Ltd., of Chicago (John M. Mack and Grace Wein, of counsel), for appellant.", "Beverly, Pause, Duffy & O\u2019Malley, of Chicago (James R. Patterson and Samuel T. Klaskin, of counsel), for appellee." ], "corrections": "", "head_matter": "RONALD BREWER, Plaintiff-Appellant, v. ALTON MOORE, DefendantAppellee.\nFirst District (2nd Division)\nNo. 82\u20142184\nOpinion filed January 31, 1984.\nBrody, Gore & Fineberg, Ltd., of Chicago (John M. Mack and Grace Wein, of counsel), for appellant.\nBeverly, Pause, Duffy & O\u2019Malley, of Chicago (James R. Patterson and Samuel T. Klaskin, of counsel), for appellee." }, "file_name": "0423-01", "first_page_order": 445, "last_page_order": 451 }