{ "id": 5164477, "name": "TRACY KELCH, Plaintiff-Appellee, v. LOUIS L. WATSON et al., Defendants-Appellants", "name_abbreviation": "Kelch v. Watson", "decision_date": "1992-11-04", "docket_number": "No. 3-92-0037", "first_page": "875", "last_page": "880", "citations": [ { "type": "official", "cite": "237 Ill. App. 3d 875" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "450 N.E.2d 28", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 179", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557091 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0179-01" ] }, { "cite": "390 N.E.2d 579", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5584130 ], "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0101-01" ] }, { "cite": "597 N.E .2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "262" }, { "page": "263" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5201839 ], "weight": 2, "pin_cites": [ { "page": "1005" }, { "page": "1007" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/1002-01" ] }, { "cite": "422 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1015" } ], "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 660", "category": "reporters:state", "reporter": "Ill. 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App.", "case_ids": [ 3066122 ], "pin_cites": [ { "page": "309-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app/226/0293-01" ] }, { "cite": "73 Ill. 476", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5317047 ], "year": 1922, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill/73/0476-01" ] }, { "cite": "112 N.E. 350", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 4, "pin_cites": [ { "page": "351" }, { "page": "351" }, { "page": "351" } ], "opinion_index": 0 }, { "cite": "272 Ill. 541", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4829132 ], "weight": 4, "pin_cites": [ { "page": "543" }, { "page": "543" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill/272/0541-01" ] }, { "cite": "58 N.E.2d 550", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1916, "pin_cites": [ { "page": "551-52" }, { "page": "552" }, { "page": "552" }, { "page": "552" } ], "opinion_index": 0 }, { "cite": "388 Ill. 487", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2501452 ], "weight": 5, "year": 1916, "pin_cites": [ { "page": "489" }, { "page": "489" }, { "page": "489" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/ill/388/0487-01" ] }, { "cite": "503 N.E.2d 1169", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1173-74" } ], "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 114", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3575216 ], "pin_cites": [ { "page": "119-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0114-01" ] } ], "analysis": { "cardinality": 507, "char_count": 10795, "ocr_confidence": 0.772, "pagerank": { "raw": 7.832383596388408e-08, "percentile": 0.45823270005316913 }, "sha256": "41435719d6fe08a8630e81821685645f3e10ef3b162154b2f4f8a022b51fa357", "simhash": "1:09dad1ce5e460442", "word_count": 1712 }, "last_updated": "2023-07-14T20:32:17.971536+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TRACY KELCH, Plaintiff-Appellee, v. LOUIS L. WATSON et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nDefendants appeal the denial of their motions to dismiss plaintiff\u2019s complaint. We granted leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) to consider the following question:\n\u201cWhere a plaintiff stipulates, even though inadvertently, pursuant to [Ill. Rev. Stat. 1989,] ch. 110, par. 2\u20141009, to dismiss her action and the order based upon said stipulation is entered, does the court have jurisdiction, upon motion made within thirty days and pursuant to stipulation of the parties, to thereafter vacate the order of dismissal and reinstate said action; and if so, can plaintiff thereafter voluntarily dismiss and then file a new action pursuant to Ill. Rev. Stat. 1989, ch. 110, par. 13-217.\u201d\nWe conclude that defendants waived the question of the trial court\u2019s jurisdiction to vacate the dismissal order and reinstate the action by their continued participation in the proceedings following plaintiff\u2019s voluntary dismissal. Accordingly, we affirm the denial of defendants\u2019 motions to dismiss.\nPlaintiff, Tracy Keleh, filed a complaint in July 1985 against Proctor Community Hospital (Proctor) and defendant-appellants Louis L. Watson, M.D., T.V. McGuffin, M.D., and Orthopedic Surgery Group, S.C. (defendants). Two years later, plaintiff and Proctor prepared a stipulation for dismissal, purportedly to operate only in favor of Proctor. The order entered by the trial court, however, inadvertently dismissed the entire action.\nWithin 30 days, plaintiff moved to vacate the dismissal order and reinstate the action against all defendants but Proctor. The trial court granted the motion and entered an \u201cagreed\u201d order in July 1987.\nIn November 1989, the trial court granted plaintiff\u2019s motion to voluntarily dismiss the case. In November 1990, within one year of the voluntary dismissal, plaintiff filed a new action against defendants.\nDefendants contended in motions to dismiss that plaintiff had improperly refiled her action twice, contrary to section 13\u2014217 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13\u2014217).\n. The trial court denied defendants\u2019 motions. The court found that plaintiff\u2019s November 1990 filing was not an improper second refiling under section 13\u2014217. The court determined that the inadvertent 1987 dismissal \u201cbecame a nullity\u201d upon its vacatur, so that the immediately reinstated cause of action was not a (first) refiling. Plaintiff\u2019s November 1990 complaint was then properly and timely filed trader section 13\u2014217. The trial court also found that defendants revested the court with jurisdiction by consenting to the vacatur of plaintiff\u2019s inadvertent dismissal and by continuing to participate in court proceedings.\nDefendants maintain on appeal that following entry of an order granting a voluntary dismissal, a court loses jurisdiction to reinstate the same cause of action unless leave to reinstate was granted in the order of dismissal. Defendants maintain that since leave to reinstate the action was not granted plaintiff in the dismissal order, plaintiff could only file a new action. Such a new action would be considered a first refiling under section 13\u2014217. Plaintiff\u2019s 1989 voluntary dismissal and 1990 refiling, then\u2014according to defendants\u2014was an improper second refiling under section 13\u2014217. Plaintiff counters that the trial court properly denied defendants\u2019 motions to dismiss because defendants submitted themselves to the continuing jurisdiction of the court by consenting to vacatur of the dismissal order and by participating in all future aspects of the litigation. The voluntary dismissal and refiling was only a first refiling because the vacatur order merely reinstated the inadvertently dismissed action.\nPlaintiff\u2019s motion to vacate the inadvertent order of dismissal was brought pursuant to section 2\u20141301(e) of the Civil Practice Law, which by its very language vests discretion in the trial court to set aside a final order or judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141301(e).) The effect of a vacated order is that of a void order. Black\u2019s Law Dictionary defines \u201cvacate\u201d as follows: \u201c[t]o annul; to set aside; to cancel or rescind. To render an act void; as, to vacate an entry of record, or a judgment.\u201d (Black\u2019s Law Dictionary 1548 (6th ed. 1990).) The substantive effect of the order vacating the allegedly inadvertent voluntary dismissal was to restore the parties to their original status in the case; the vacatur operated as if the voluntary dismissal had never been entered.\nThe trial court clearly had jurisdiction to vacate the inadvertent dismissal order. We conclude that the order vacating the inadvertent dismissal of plaintiff\u2019s complaint rendered the dismissal order nugatory and returned the parties to the status they held prior to entry of the dismissal order. Therefore, plaintiff\u2019s later voluntary dismissal and refiling was not an improper second refiling under section 13\u2014217. See George W. Kennedy Construction Co. v. Industrial Comm\u2019n (1987), 152 Ill. App. 3d 114, 119-20, 503 N.E.2d 1169, 1173-74.\nDefendants rely upon the rule of Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550, and Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350, that once a trial court enters an order granting a voluntary dismissal, the court no longer retains jurisdiction to reinstate the cause of action unless leave to reinstate was granted at the time the order of dismissal was entered. Bettenhausen, 388 Ill. at 489, 58 N.E.2d at 551-52; Weisguth, 272 Ill. at 543, 112 N.E. at 351.\nWe find Bettenhausen and Weisguth distinguishable. First, the plaintiff in the instant case never intended to abandon her claim against all the defendants. This contrasts with the rationale behind the rule, as stated in Bettenhausen:\n\u201c[I]f a plaintiff, by his deliberate and voluntary act, secures a dismissal of his suit, he must be held to have anticipated the effect and necessary results of his action and should not be restored to the position and the rights which he voluntarily abandoned.\u201d (Emphasis added.) Bettenhausen, 388 Ill. at 489, 58 N.E.2d at 552.\nThe plaintiff here did not \u201cdeliberately] and voluntar[il]y act\u201d to \u201csecure[ ] a dismissal of [her] suit,\u201d at least as to all defendants. It would be inconsistent with the reasoning stated by our supreme court in Bettenhausen to conclude that the plaintiff \u201canticipated the effect and necessary results of [her] action\u201d and to hold that she \u201cshould not be restored to the position and *** rights\u201d she previously held. Bettenhausen, 388 Ill. at 489, 58 N.E.2d at 552.\nSecond, defendants forfeited their right to complain of the court\u2019s reinstatement of plaintiff\u2019s cause of action by appearing generally after vacatur of the order of dismissal. Defendants, by their continued appearances in the action, conferred upon the court the power to proceed and waived their right to object to reinstatement of the cause. In Bettenhausen, the court specifically noted that the defendants, by their special and limited appearance, had not waived the question of jurisdiction. (Bettenhausen, 388 Ill. at 491, 58 N.E.2d at 552.) The court in Weisguth, however, refused to apply the rule prohibiting reinstatement because the defendant had forfeited its right to complain of the trial court\u2019s action by appearing and contesting the case on the merits. (Weisguth, 272 Ill. at 543, 112 N.E. at 351.) To exercise the right to question the jurisdiction of the court, the defendants \u201c \u2018should either have not appeared at all or limited their appearance to the objection against the jurisdiction of the court.\u2019 \u201d (Weisguth, 272 Ill. at 543, 112 N.E. at 351, quoting Herrington v. McCollum (1874), 73 Ill. 476, 479; Zandstra v. Zandstra (1922), 226 Ill. App. 293, 309-10.) \u201c[W]hen defendants appeared and contested the case on the merits, they conferred jurisdiction on the court, assuming that it had not had jurisdiction before.\u201d (Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 664, 422 N.E.2d 1011, 1015.) (As noted by the Appellate Court for the Fifth District, the rule set forth in Weisguth, and followed in Bettenhausen, is dicta, since the defendant was held to have forfeited its right to complain by appearing without objection in the subsequently reinstated case. Ripplinger v. Quigley (1992), 231 Ill. App. 3d 1002, 1005, 597 N.E .2d 260, 262.)\nThird, our plaintiff\u2019s voluntary nonsuit was supported by an agreed-upon stipulation for dismissal; this contrasts with the facts of Weisguth and Bettenhausen, in which the plaintiff took a nonsuit without the consent of the defendant. Where the parties agree to the dismissal, strict application of the Weisguth rule has been held unwarranted. Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 105, 390 N.E.2d 579, 582; Ripplinger, 231 Ill. App. 3d at 1007, 597 N.E.2d at 263.\nDefendants point to this court\u2019s decision in Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28, in which we affirmed the trial court\u2019s denial of plaintiff\u2019s motion to vacate an order of dismissal following a voluntary nonsuit. While our court in Herman relied upon the rule of Bettenhausen and Weisguth, the question of defendant\u2019s waiver was not at issue since the case went directly on review following the trial court\u2019s denial of plaintiff\u2019s motion to vacate and reinstate. Also, the plaintiff in Herman appeared to have intended the consequences of his voluntary dismissal, since that plaintiff moved for dismissal to avoid the consequences of a motion for summary judgment. In the case now before us, it is undisputed that plaintiff did not intend to dismiss her action against these defendants, so the rationale behind the rule in Bettenhausen, as applied in Herman, would not be met were we to choose the result urged by defendants.\nWe conclude that the trial court had jurisdiction to vacate the order of dismissal and reinstate plaintiff\u2019s complaint. Such action was not a refiling of plaintiff\u2019s complaint under section 13\u2014217, so that plaintiff\u2019s later voluntary dismissal and refiling was not an impermissible second refiling.\nAccordingly, the order of the circuit court of Peoria County denying defendants\u2019 motions to dismiss is affirmed.\nAffirmed.\nBARRY, P.J., and STOUDER, J., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "David B. Collins, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., of counsel), for appellants Louis L. Watson and Orthopedic Surgery Group.", "Susan H. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant T.V. McGuffin.", "Theodore J. Bednarek, of Troha, Troha & Bednarek, of Joliet, for appellee." ], "corrections": "", "head_matter": "TRACY KELCH, Plaintiff-Appellee, v. LOUIS L. WATSON et al., Defendants-Appellants.\nThird District\nNo. 3-92-0037\nOpinion filed November 4, 1992.\nDavid B. Collins, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., of counsel), for appellants Louis L. Watson and Orthopedic Surgery Group.\nSusan H. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant T.V. McGuffin.\nTheodore J. Bednarek, of Troha, Troha & Bednarek, of Joliet, for appellee." }, "file_name": "0875-01", "first_page_order": 895, "last_page_order": 900 }