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Don Saffold Enterprises v. Concept I9/26/2000
Appeal from the Circuit Court of Cook County. Honorable Nancy J. Arnold, Judge Presiding.
Plaintiff, Don Saffold Enterprises, appeals from an order of the circuit court dismissing its complaint with prejudice, on motion of defendant, Concept I, Inc. Plaintiff filed three lawsuits based on the breach of a written contract for goods and services. The first two actions were dismissed for want of prosecution, and the court dismissed the third complaint, which is the subject of this appeal, pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1998)). Section 13-217 allows for only a one time refiling of a cause of action dismissed for want of prosecution. On appeal, the issue is whether the trial court correctly held that plaintiff was not entitled to file a third complaint based upon section 13-217 where the third complaint named a defendant other than the defendant named in the first two causes of action.
On September 11, 1995, plaintiff filed a complaint under case number 95 M1 152081 for breach of contract. The complaint named "Carl Wasserman D/B/A Concept I" as defendant. Carl Wasserman filed a motion to dismiss on the grounds that Concept I was a corporation and that Wasserman had not entered into a contract with plaintiff on behalf of the corporation. On February 5, 1996, the action was dismissed for want of prosecution.
On November 19, 1996, plaintiff filed a second complaint under case number 96 M1 165134 for breach of the same contract. The original complaint is not contained in the record; however, the pleadings, notices and motions all refer to defendant as "Carl Wasserman D/B/A Concept I." Carl Wasserman again filed a motion to dismiss on the same grounds that Concept I was a corporation and he had not entered into a contract with plaintiff on behalf of the corporation. Wasserman also included with the motion a certificate from the Illinois Secretary of State indicating Concept I's status as a corporation. Defendant's motion to dismiss was granted, but plaintiff was given three weeks to file an amended pleading. At the subsequent hearing on February 10, 1998, plaintiff's attorney was not present and defendant's attorney stated that he had not received an amended pleading as of that date. The case was then dismissed for want of prosecution. Plaintiff's motion to vacate this dismissal was denied.
We do note that plaintiff asserts in its appellate brief that plaintiff filed an amended complaint on January 12, 1998. An amended complaint is included in the record naming only Concept I as defendant. However, the date stamp is not readable, no other documents in the record document its existence, and defendant had not received it as of the February 10, 1998, court date.
On November 4, 1998, plaintiff filed a third complaint under case number 98 M1 157765 for breach of the same contract. The complaint named only Concept I, Inc. as defendant and was essentially identical in substance to plaintiff's first and second complaints. Defendant filed a motion to dismiss pursuant to section 13-217, arguing that plaintiff had refiled the same cause of action twice when the statute allowed for only a one time refiling of a cause of action that has been dismissed for want of prosecution. The court denied defendant's motion. However, the court subsequently granted defendant's motion to reconsider and then dismissed plaintiff's third complaint as a second refiling of a dismissed action. Plaintiff now appeals.
The issue on appeal is whether the trial court correctly held that plaintiff was not entitled to file a third cause of action based upon section 13-217 where the third cause of action named a different defendant than t
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