{ "id": 3540681, "name": "FRANK ADAMCYZK et al., Plaintiffs-Appellants, v. THE FOREST PRESERVE DISTRICT OF COOK COUNTY et al., Defendants-Appellees", "name_abbreviation": "Adamcyzk v. Forest Preserve District of Cook County", "decision_date": "1986-12-30", "docket_number": "No. 85-0962", "first_page": "320", "last_page": "324", "citations": [ { "type": "official", "cite": "151 Ill. App. 3d 320" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "460 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 187", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522840 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0187-01" ] }, { "cite": "449 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113729 ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0150-01" ] }, { "cite": "462 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 194", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5677244 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0194-01" ] }, { "cite": "410 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3171541 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0406-01" ] }, { "cite": "281 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "51 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392724 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0274-01" ] } ], "analysis": { "cardinality": 538, "char_count": 9356, "ocr_confidence": 0.787, "pagerank": { "raw": 7.265756755647212e-08, "percentile": 0.4329746637738339 }, "sha256": "280a4eaa19da2e91fbea85327e44ab5e5892d925c471b6d13db79d304251e11f", "simhash": "1:27271f970a6e995a", "word_count": 1531 }, "last_updated": "2023-07-14T16:55:10.892091+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANK ADAMCYZK et al., Plaintiffs-Appellants, v. THE FOREST PRESERVE DISTRICT OF COOK COUNTY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nPlaintiffs appeal the denial of their motion to vacate an order dismissing their damage claims against the Forest Preserve District of Cook County (hereinafter referred to as appellee). The circuit court judge denied the motion to vacate because it was presented to the court for a hearing much later than 90 days after it was first filed, in violation of Rule 2.3 of the circuit court of Cook County.\nPlaintiffs filed the present class action on February 2, 1982, on behalf of property owners who suffered flood damage as a result of the overflow of Tinley Creek on June 13, 1981. Named as defendants were the village of Crestwood; its mayor, Chester Stranczek (neither of whom is a party to this appeal); and appellee. The original complaint contained six counts, only three of which were directed against appellee. In count II, plaintiffs alleged that appellee had agreed to allow the village of Crestwood to construct a levee on appellee\u2019s property that interfered with the natural watercourse of Tinley Creek. Count II charged that this agreement, together with appellee\u2019s failure to study the impact of the levee and appellee\u2019s failure to warn plaintiffs, proximately caused flood damage to plaintiffs and reduced the value of their property. Plaintiffs prayed for $3 million in damages from appellee plus costs and attorney fees and an order requiring appellee to remove the levee or to take \u201csuch precautions as are necessary to prevent future flooding.\u201d In count V, plaintiffs charged that the construction and the manner in which appellee maintained the levee constituted a nuisance. This count contained a prayer for $3 million to compensate for the decrease in value and loss of use and enjoyment of plaintiffs\u2019 property and for an order restraining maintenance of the nuisance. Finally, count VI of the original complaint sought an order restraining the continuing nuisance and an award of $3 million, without referring to any specific defendant.\nSection 3 \u2014 106 of the Local Governmental and Governmental Tort Immunity Act provides that in the absence of wilful and wanton negligence:\n\u201c[njeither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes.\u201d (Ill. Rev. Stat. 1985, ch. 85, par. 3 \u2014 106.)\nThis immunity is qualified by section 9 \u2014 103(c) of the same Act (Ill. Rev. Stat. 1985, ch. 85, par. 9 \u2014 103(c)), which provides that a local public entity waives immunity from a particular form of liability by obtaining insurance to cover that liability. See Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659; Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 410 N.E.2d 525.\nOn October 29, 1982, appellee filed a motion to dismiss to which it attached an affidavit executed by appellee\u2019s comptroller, James Gaugahn, who asserted therein that appellee had no insurance coverage for any of the wrongful or negligent acts or omissions that were alleged in plaintiff\u2019s complaint. On November 19, 1982, the circuit court issued an order stating:\n\u201cForest Preserve\u2019s Section 48 motion to dismiss based on Section 3 \u2014 106 of the Tort Immunity Act is granted as to the issue of money damages, although the parties may seek discovery regarding the issuance of insurance policies to the Forest Preserve District of Cook County.\u201d\nAfter the circuit court\u2019s order, the damage claims against the village and its mayor and other claims against appellee remained pending. Nearly four months later, on March 9, 1983, on appellee\u2019s motion, the circuit court certified its November 19 order for immediate appeal as provided in Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)). On March 17, 1983, plaintiffs filed a motion to vacate in which they stated that appellee was insured and named the company that had purportedly issued the policy.\nOn August 2, 1983, plaintiffs filed their first amended complaint, which dropped all damage claims against appellee. Of the two counts directed against appellee, count II stated that plaintiffs had filed a notice of claim \u201cin compliance with Chapter 85, Section 102,\u201d and prayed for an order requiring appellee to remove the levee or take other precautions necessary to prevent future flooding. Count V asserted that the levee constituted a nuisance and asked for an order that the levee be appropriately maintained. Appellee filed an answer to this first amended complaint on March 27, 1984. Plaintiffs\u2019 original counsel withdrew from the case on May 2, 1984, and their present attorney substituted on July 18, 1984. On January 8, 1985, plaintiffs filed their second amended complaint, which reasserted a $3 million damage claim against appellee plus a $750,000 claim against all defendants, including appellee, based on plaintiffs\u2019 asserted emotional distress.\nOn January 9, 1985, appellee\u2019s counsel filed a notice to appear for the purpose of presenting to the court plaintiffs\u2019 two-year-old motion to vacate the modified dismissal order of March 9, 1983. At the hearing on the motion, plaintiffs\u2019 counsel argued that Mr. Gaugahn, appellee\u2019s comptroller, admitted in a deposition, in contradiction to the statements in his affidavit, that he never handled or reviewed any of appellee\u2019s insurance policies prior to the institution of appellee\u2019s self-insurance program and that appellee\u2019s insurance director handled all insurance matters. Plaintiffs\u2019 counsel also argued that Gaugahn had testified that he did not know the effective dates of appellee\u2019s insurance policies, the type of coverage involved, or the meaning of the terms \u201cunderwriting\u201d and \u201cgeneral liability.\u201d No transcript of Gaugahn\u2019s deposition had yet been prepared, but appellee\u2019s counsel countered that Gaugahn was present at the hearing and could be sworn to attest to the truth of the matters contained in his affidavit. The court did not deem this necessary and ruled from the bench:\n\u201cThis motion, the motion that I believe that counsel is trying to argue today, is a motion that was filed on March 17, 1983, and to my view expired by reason of this court\u2019s rules ninety days thereafter. That means that this matter is dead and finished as of June 17, 1983. Thereafter, no matter \u2014 no matter was brought to the court.\nThe matter, or this case, I should say, was called for status at least a half dozen times after June 17, 1983, and no action on any motion to vacate was suggested or taken at any of those subsequent status calls.\u201d\nAn order was entered on March 19, 1985, denying plaintiffs\u2019 motion to vacate, but it was modified the next day to state, \u201c[t]his order is entered nunc pro tunc effective as of March 6, 1985, and that said Order is final and appealable with no just reason for delay of enforcement or appeal.\u201d The remainder of the case was transferred to the law division on April 6, 1985. Plaintiffs filed their notice of appeal on April 8,1985.\nAn amendment to an unverified pleading which is complete in itself and does not refer to or adopt a prior pleading constitutes an abandonment of the prior pleading. (Robins v. Lasky (1984), 123 Ill. App. 3d 194, 462 N.E.2d 774.) By filing an amended complaint, a plaintiff waives any right to object to the trial court\u2019s rulings on the original complaint, including orders dismissing claims contained in the earlier complaint. Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125.\nAfter the court dismissed the damage claims against appellee and while plaintiffs\u2019 motion to vacate was still pending, on August 2, 1983, plaintiffs filed a first amended complaint, which made no reference to the original complaint and which asserted no damage claims against appellee. This constituted abandonment of such claims for damages and withdrawal of the March 19, 1983, motion to vacate. Subsequently, on September 18, 1984, plaintiffs obtained leave to file a second amended complaint, which they filed on January 8, 1985. In this complaint, plaintiffs once again prayed for $3 million in damages against appellee. As far as the record shows, this complaint was still pending at the time this appeal was taken.\nWe need comment no further in this court on either the validity or the status of the plaintiffs\u2019 efforts to reassert in their second amended complaint the previously dismissed and abandoned damage claims against appellee. We find it incongruous, however, that at the hearing on March 6, 1985, the parties asked the trial court to rule on a motion to vacate a two-year-old order dismissing portions of a complaint that was no longer relevant to the proceedings. There is simply nothing for us to review. Kievman v. Edward Hospital (1984), 122 Ill. App. 3d 187, 460 N.E.2d 901.\nAccordingly, we dismiss this appeal for lack of jurisdiction.\nAppeal dismissed.\nBILANDIC, P.J., and HARTMAN, J., concur.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Carrane, Freifeld & Uruba, of Chicago (James E. Pancratz, of counsel), for appellants.", "Tenney & Bentley, of Chicago (David L. Coghlan, of counsel), for appellee." ], "corrections": "", "head_matter": "FRANK ADAMCYZK et al., Plaintiffs-Appellants, v. THE FOREST PRESERVE DISTRICT OF COOK COUNTY et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 85-0962\nOpinion filed December 30, 1986.\nCarrane, Freifeld & Uruba, of Chicago (James E. Pancratz, of counsel), for appellants.\nTenney & Bentley, of Chicago (David L. Coghlan, of counsel), for appellee." }, "file_name": "0320-01", "first_page_order": 342, "last_page_order": 346 }