author: JUSTICE LINN

text:
      In re MARRIAGE OF NANCY B. MOBILE LEFLER, Petitioner-Appellant and Cross-Appellee, and RAYMOND A. MOBILE, Respondent-Appellee and Cross-Appellant.
    First District (4th Division)
    Nos. 1-86-2890, 1-86-3432, 1-86-3441 cons.
    Opinion filed October 20, 1988.
    Rehearing denied August 10, 1989.

      Tews, Theisen & Theisen, of Chicago (Kenneth F. Theisen and Linda S. Kagan, of counsel), for appellant.
    G. Wallace Roth, of Chicago (Francis X. Riley, of counsel), for appellee.

       Net income is determined by taking total income from all sources and deducting the following items:
      “(a) Federal income tax (properly calculated withholding or estimated payments);
      (b) State income tax (properly calculated withholding or estimated payments);
      (c) Social security (FICA payments);
      (d) Mandatory retirement contributions required by law or as a condition of employment;
      (e) Union dues;
      (f) Dependent and individual health/hospitalization insurance premiums;
      (g) Prior obligations of support or maintenance actually made pursuant to a court order;
      (h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income ***.” Ill. Rev. Stat. 1987, ch. 40, par. 505(aX3).

   JUSTICE LINN

delivered the opinion of the court:

Nancy Lefler sought a post-decree increase in child support based on a substantial change in circumstances. Raymond Mobile filed three petitions for an abatement or reduction of child support. The trial court increased the support award for five months, kept it at $850 for the next 11 months, and then reduced it to $600 from May 1, 1986, “until further order of court.” The court awarded Lefler approximately 25% of the attorney fees requested. She appeals from the order of child support and the order of attorney fees. Mobile cross-appeals from the fee award. The court also entered an order granting Nancy arrearages, which are not on appeal.

Background

The parties were divorced on July 7, 1981. Two children, then aged 11 and 13, were born of the marriage. Raymond was employed by Leffingwell Steel, grossing $60,000 and netting approximately $30,110.00 per year. Nancy was unemployed. Under the terms of the judgment for dissolution, Nancy was awarded custody of the two girls and $1,250 per month in unallocated maintenance and child support.

On August 13, 1982, the trial court modified the monthly unallocated award to reflect Nancy’s remarriage. Child support was set at $835 per month.

On February 3, 1984, Nancy moved to Italy, where her husband was stationed by the United States Navy. She took the children with her, with Raymond’s consent.

In December of 1984, Nancy filed a petition for an increase in child support, alleging that there had been a substantial change in circumstances, that the children’s expenses had increased and that Raymond had a greater ability to pay. At the time, Raymond was employed by Sonray Precision Steel Products, earning approximately $109,200 per year.

Raymond testified that he had left Leffingwell Steel to work for Mid-City Steel in September 1982. His salary was $100,000 per year, although he stayed with them for only five or six months. He then started his own business, Sonray Precision Steel Products, in February 1983. His salary was $109,000, or $9,100 gross per month and $5,800 net. He drew this amount until June of 1985, when the business closed. Because of his failure to make employee withholding payments, the Internal Revenue Service eventually assessed a $41,000 tax penalty against him.

On June 18, 1985, Raymond filed an emergency petition for abatement of child support, which was entered and continued to March 24, 1986.

On October 1, 1985, four months after his business closed, Raymond began employment with Regency Steel Company, earning $100,000 per year. Notwithstanding his new job, Raymond filed a second, or supplementary, emergency petition for abatement of child support on October 18. His W-2 from 1985 showed earnings from Regency of $25,000 for the three-month period of October through December 1985.

On March 25, 1986, Nancy filed a petition for rule to show cause against Raymond for his failure to pay child support and to set arrearages which had accrued since June 1985, the time of his first petition for abatement.

On May 1, 1986, Raymond became the regional director of mid-western sales for Staub Metal Company. From late April 1986 to the trial of the petitions for post-decree relief, Raymond worked for Staub as an independent sales agent on a commission basis.

On May 6, 1986, Raymond filed a second supplemental emergency petition for abatement of child support, having left his job with Regency Steel, the job he had begun in October of 1985. At this time, however, Raymond was earning money through Staub.

Nancy testified at trial as to the children’s increased expenses. Her husband, who works for the Navy, nets $903 per month.

Raymond’s wife, Cheryl, earns approximately $1,000 per month as a flight attendant.

Raymond testified that he had received six commission checks totalling $10,344.47 from his May 1, 1986, starting date at Staub to the date of trial, July 29, 1986. He subsequently admitted that he had in fact received eight checks during that three-month period, representing $17,621.

Raymond estimated his current income at $3,000 net per month. His gross for the year, from January 1 to August 11, 1986, was approximately $36,000, with $16,900 representing his payment from Regency and the balance from Staub. He testified that his monthly net for the eight months of 1986 would be $2,560 although his gross would be $4,500. Checks introduced into evidence, however, showed his total gross income from Staub from April 22, 1986, through August 11, 1986, to be $19,346.20 and his gross from Regency to be $29,346.20. This totalled $48,780.20 for the approximately 8V2 months of 1986.

Raymond testified that his refund check from the IRS had been seized for Sonray’s nonpayment of employee withholding taxes. He further testified regarding financial difficulties he was having as a result of the failure of his business in June 1985, including attorney fees for defending certain lawsuits. He testified regarding the IRS penalty assessment of $41,000.

Raymond’s business attorney, Ariel Weisberg, testified on Raymond’s behalf on the petition to abate child support. He related that his outstanding bill to Raymond was approximately $9,000 as of October 1985, plus an additional $5,000 or $6,000 incurred since then. Of the various lawsuits filed against Sonray, some had been dismissed or resolved, resulting in no liability to Raymond. At the time of trial, Raymond had no outstanding, liquidated liability resulting from any of the lawsuits. Weisberg also testified regarding various other matters in which he had represented Raymond’s interests, such as a proposed business venture that Raymond and another person had explored in 1985.

Raymond further testified that he had completed a mortgage loan application in July 1985 for his house. On the application he stated that his employer in July 1985 was Regency Steel, although he had earlier testified that he was unemployed in July 1985 and did not work for the company until October 1985. He secured a verification of employment from Regency, listing February 1, 1985, as date of employment. He admitted that he knew he was falsifying information on the application.

Cheryl Mobile, Raymond’s wife, testified that the deposits she made to the accounts of RCM Company, Ltd., of which she was president, came primarily from her husband’s income. In a four-week period in July 1986, $11,735.40 had been deposited in the company’s accounts.

The trial court ruled that Nancy had established grounds for an increase in support and raised the award from $835 to $1,250 for the period from January 1, 1985, to June 15 of that year. For the period of June 16 through May 1, 1986, the court dropped the support to $850 per month. From May 1, 1986, forward, child support was reduced to $600, to reflect a credit for Raymond’s business debts.

On Nancy’s petition for attorney fees and costs, the court reduced the requested amount from approximately $27,000 in fees and costs to $6,597.

Opinion

Based on the evidence before it the trial court determined that Nancy was entitled to an increase in child support. Nevertheless, the effect of the order is to decrease the support award, a result that is not appropriate on this record. For the reasons that follow we increase the child support award, increase the award of costs, and affirm as modified.

I

The primary difficulty in setting the proper amount of support in this case lies in ascertaining Raymond’s net income for the time periods in question. Under the statutory guidelines of section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 505), the minimum child support award for two children is 25% of the paying parent’s net income, as defined in the statute.

The documentary evidence reveals that Raymond’s gross income in 1985, despite the four months of unemployment, was $77,768. By August 11, 1986, Raymond had earned nearly $50,000. By his own testimony, Raymond anticipated earning from Staub approximately the same amount he had been earning at Regency, or $100,000 per year. Neither party, however, has given this court a clear net figure from which to assess a reasonable child support award.

At trial, Nancy’s attorney requested $1,750 per month, based on a net monthly figure of $7,038. This figure is misleading, however, in that the $11,735 per month gross upon which it is based was shown to be for a one-month period only, in which that amount had been deposited as commission checks from Staub. On the other hand, we believe that the $600-per-month figure that Raymond’s counsel suggested and the court awarded from May 1986 forward places undue emphasis on Raymond’s business debts, which were not shown to impede his monthly earnings in the form of deductions for indebtedness or otherwise interfere with his cash flow. Raymond’s business attorney testified how careful planning had insulated Raymond’s earnings from his creditors, to the extent possible and legal. He offered no evidence that Raymond was paying his legal fees out of current earnings. Raymond testified that the IRS had liened his house but did not state that the house was in foreclosure or that the IRS was attempting to collect the tax penalty out of Raymond’s current earnings. In fact, it is not clear from the record whether the tax lien against Raymond’s home was in fact $41,000 or whether Raymond’s $12,553 tax refund for 1985 that the IRS seized had been set off from the penalty, leaving a balance due of approximately $28,500.

For the period of January 1, 1985, through June 15, 1985, the court awarded support in the amount of $1,250. This period correlates with Raymond’s annual income of $109,000 from Sonray, until its demise in June 1985. To arrive at the support amount, the trial court apparently allowed a 40% overhead figure for the self-owned business, leaving a net income of $60,000. Twenty-five percent of $60,000 is $15,000, which, when divided by 12 months comes to $1,250. While a more exact calculation of net income than the 40% figure may have been preferable, we do not believe it is an unreasonable figure, since Federal and State income tax withholding and FICA withholding presumably would total close to one-third of gross. While 40% off gross may be liberal, it is not an abuse of discretion. Accordingly, we affirm the trial court’s award of $1,250 per month for the 6V2 month period in 1985.

From June 16, 1985, to May 1, 1986, the court awarded Nancy $850 per month, without explaining the basis for this figure and without articulating a sound base for reducing it further to $600 per month from May 1986 until further order of court.

The evidence indicates that Raymond’s gross income from September 1982 through August 1986 stayed remarkably close to $100,000 per annum. At the time of the parties’ divorce, he was grossing $60,000 and netting approximately $31,000. Unallocated child support and alimony was awarded in the amount of $1,250. In August 1982, the alimony portion was eliminated upon Nancy’s remarriage and support was set at $835. The next month, September 1982, Raymond began earning $100,000 per year at Mid-City Steel, a job he had until February 1983, at which time he created Sonray. He earned $109,000 per year while at Sonray, a period spanning two years and four months. During this time, while he was paying child support based on his previous, substantially lower income, he was enjoying the benefits of his higher income. After a four-month period of unemployment (during which time he was pursuing other business ventures) he again obtained employment at $100,000 per year, at Regency Steel. From October 1985 to May 1986 he worked for Regency. From sometime in April 1986 to the time of trial in August 1986 he was earning commissions from Staub in varying amounts, but testified that he anticipated earnings similar to his previous positions. In July 1986 he deposited approximately $11,700 in commission checks, covering a four-week period.

From this employment history we infer that Raymond was and is a consistently high earner. His business attorney’s testimony indicates that he is also sophisticated in the ways of corporate planning and avoiding personal liability from corporate creditors. Other evidence, such as his falsification of a mortgage loan application and his apparent foot-dragging in discovery, leaves the impression that his own assessment of his net monthly earnings and business debts may be less than candid. In fact, the trial court noted during the hearing on Nancy’s fee petition that his testimony was “not forthright,” that he “sure appeared to the Court to lie under oath,” and that “the question of what his earnings are can certainly be in doubt here at the present and in the future.”

The history of Raymond’s earnings suggest that his annual income may well be at the $100,000 level overall. Nevertheless, taking into account the four months of unemployment and the switch from salary to commissions, we find that for the years ending in 1985 and 1986, Raymond’s gross income averaged $75,000 per annum. In 1985, he reported income of $77,768. For the first eight months of 1986, he had grossed close to $50,000. Projecting the income for the remaining four months of 1986 based on this figure, ($50,000 divided by eight months equals $6,250 per month, times four months equals $25,000), we calculate an approximate annual income of $75,000 ($50,000 + $25,000) for 1986. To this gross earnings figure of $75,000, we will allow a 40% deduction to arrive at a net yearly income figure of $45,000. Twenty-five percent of $45,000 is $11,250 per year or $937.50 per month, rounded off to $935.

We believe that the trial court, to be consistent with the evidence, should have awarded Nancy an increase of $935 per month instead of $850 for the period from June 16, 1985, to May 1,1986.

The final provision of the order decreased Raymond’s child support obligations to $600 per month, from May 1, 1986, forward, until further order of the court. From the trial judge’s comments, it is clear that he intended to credit Raymond with some period of business indebtedness arising out of his IRS lien and attorney fee obligations. Pursuant to subsection 505(a)(3)(h) of the statute (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)(3)(h)), the court may further deduct from net income of the supporting parent such amount as fairly reflects repayment of debts that represent “reasonable and necessary expenses” for the production of income. This subsection requires, however, that the “court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)(3)(h).) The trial court in this case neither set a period for such reduced payments nor provided for the return to the higher support level at the termination of the period.

As we previously noted, Raymond’s evidence of business indebtedness was weak. He did not testify that he was currently paying any debts that were reasonable and necessary for the production of his income. Rather, he asserted a tax lien in an amount that is not clear from the record plus several thousands of dollars owed as attorney fees to his business attorney. Moreover, the provision allowing for a business debt deduction contemplates a specified repayment schedule tracking the time “such payments are due,” which was not presented in the evidence or in the trial court’s order. We conclude that the record lacks a sufficient basis for crediting Raymond with a business expenditures deduction under section 505(a)(3)(h).

Accordingly, we hold that the monthly support payment of $935, based on our previous calculations, is the amount that Raymond is required to pay as child support, effective June 16, 1985. Assuming that he is current in support payments, the additional amounts he must pay Nancy are the difference between the amounts ordered by the trial court and this court, or $85 per month for the period from June 16, 1985, through April 30, 1986, and $335 for the months from May 1986 to the present. Raymond is then obligated to continue paying $935 per month.

II

The remaining issue for our disposition challenges the award of attorney fees and costs to Nancy and the amount awarded.

We agree with the trial court that Nancy is entitled to some fees and costs and that Raymond caused her to “do a lot of digging” to ascertain his income; however, we do not agree that she is entitled to the full amount claimed. The trial court found that Raymond had lied under oath, a matter perhaps more appropriate for sanctions under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611) than for an award of fees under section 508 of the Dissolution of Marriage Act. In any event, the trial court did review the fee petition, hear testimony, and consider argument of counsel. The court then exercised its broad discretion in setting the fee award. From the relevant trial transcript we infer that the court initially cut down the number of billed hours substantially and then cut the hourly billing rate in half, from $75 per hour to $35 per hour. The parties and the court discussed the cost items at some length and the court adjusted its initial assessment of fees and costs, finally awarding a total of $6,597, or $6,200 in fees and $397 in costs.

Nancy argues that much of the $25,000 in fees that she claimed was directly caused by Raymond’s evasions and the fact that his three petitions for abatement of child support were groundless. He filed petitions stating that he was unemployed when in fact he was not. In addition, Nancy claims an additional $495 in costs, representing the expense of two depositions that were used at the trial.

On the attorney fee issue, we cannot state that the court clearly abused its discretion. We agree, however, that the cost of the two depositions used at trial should have been included in Nancy’s recoverable costs. Therefore, we award that additional item, bringing the total in fees and costs to $7,092.

For the foregoing reasons, we affirm the child support modification order of the trial court, as modified by this court, and remand for entry of an order in compliance with this opinion. The order should set forth the additional amounts Raymond now owes due to the increase in support payments. When that sum is calculated, the parties may agree or the court may direct payment of the additional amounts over time, in a lump sum, or in whatever manner is equitable under the circumstances.

Affirmed as modified and remanded.

JOHNSON and McMORROW, JJ., concur.

      We believe that the tax penalty that Raymond incurred for failure to pay employee withholding tax and the attorney fees that arose out of Sonray’s demise should be attributed at least in part to the 2Vs years that he earned $109,000 annually. In fact, the trial court’s calculation that 40% of his gross earnings should be subtracted in determining net income may well cover a portion of this liability.

      We use the same 40% figure as did the trial court in calculating Raymond’s net income for the first months of 1985, when Raymond was earning $100,000.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. MORTON THIOKOL, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1-88-148
    Opinion filed May 15, 1989.
    Rehearing denied July 28, 1989.

      David P. Cutler and Steven D. Pearson, both of Goggin, Cutler & Hull, of Chicago, for appellant.
    Robert W. Gettleman and Jane E. Jarcho, both of Chicago, and Thomas C. Hill, of Cincinnati, Ohio (D’Ancona & Pflaum, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, International Insurance Company (International) filed an action against defendant, Morton Thiokol, Inc. (Morton), seeking a declaration and rescission of certain insurance contracts. On Morton’s motion, the trial court dismissed International’s complaint without prejudice pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3)) due to the fact that there are actions pending between the same parties for the same cause in a New Jersey State court. The trial court also denied International’s motion for a preliminary injunction to enjoin Morton from proceeding against International in a lawsuit in Ohio. International appeals both from the dismissal of its action and the denial of its motion seeking preliminary injunctive relief.

Morton argues on appeal that this court should dismiss the appeal of the order dismissing International’s complaint without prejudice because the order is not final and appealable.

International contends on appeal that the dismissal of its action was an abuse of discretion since the case at bar and the later-filed New Jersey case do not involve the same cause. International further contends that the trial court erred in denying it the injunctive relief it sought since the court had a duty to protect its first-acquired jurisdiction from a later-filed duplicative action in Ohio.

The facts as set forth in the record are procedurally detailed, and we will set forth those facts necessary for resolution of the issues raised on appeal. On July 22, 1985, Morton filed a lawsuit against International and several other insurance companies in the New Jersey State court. The action sought damages for breach of contract and a judgment declaring that the insurers owed Morton a duty of defense and indemnification with regard to a suit brought against Morton by the New Jersey Department of Environmental Protection. Morton’s complaint sought coverage for alleged hazardous waste contamination as a result of its manufacturing processes under four of International’s policies and approximately 65 policies issued by 19 other insurance carriers. The question of insurance coverage related to one environmental site claim in New Jersey known as the Woodridge site. On August 27, 1987, International’s motion for summary judgment was granted.

On April 18, 1986, International filed the instant action in the circuit court of Cook County seeking a declaration and rescission or reformation of two of its primary liability insurance policies. In this action, International addressed the question of its insurance coverage at numerous environmental site claims throughout the United States for which Morton had made coverage claims to International. This included 33 environmental sites in 13 different States. Among the sites International sought to have found outside its coverage was the Wood-ridge site in New Jersey.

On May 13, 1986, Morton filed suit against Aetna Casualty & Surety Company in the Ohio State courts for damages and for breach of contract and seeking a declaration of coverage for 30 waste sites under approximately 20 of Aetna’s policies. Morton later amended its Ohio action to include two additional insurers, International and Continental Casualty.

On May 30, 1986, Aetna filed a declaratory judgment action against Morton and 20 of its insurers, including International, in New Jersey involving the same sites that were included in the action filed by Morton in Ohio.

On July 30, 1986, the New Jersey court, before which both New Jersey cases were pending, enjoined Morton and International from proceeding in any court other than the New Jersey Superior Court with coverage disputes relating to any New Jersey hazardous waste site. The New Jersey court specifically recognized that it could not prevent foreign State courts from hearing cases regarding non-New Jersey sites, but it could forbid the parties from litigating over New Jersey sites in other States. Further, the New Jersey court did preclude International from continuing to litigate non-New Jersey sites in New Jersey. Following this ruling, the action filed against Morton by Aetna in New Jersey was amended to involve 37 carriers, including eight of International’s policies and raised questions of application of those policies to 15 New Jersey waste sites.

On September 23, 1986, Morton filed a motion to dismiss or stay International’s amended complaint in the instant case based on the fact that it was duplicative of the actions pending in New Jersey. After extensive briefing, argument was heard on the motion on February 11, 1987. On that same date, International moved for an order for a preliminary injunction to enjoin Morton from proceeding against International in the Ohio case.

On March 12, 1987, the trial court dismissed International’s amended complaint without prejudice pursuant to section 2 — 619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3)) because it was duplicative of the actions pending in New Jersey.

On March 27, 1987, a hearing was held on International’s motion to reconsider the dismissal and motion for a preliminary injunction. Subsequently, on December 15, 1987, the trial court denied International’s motion for reconsideration of its order of dismissal, and the court also denied International’s motion to enjoin the Ohio action. On January 14, 1988, International moved the trial court for certification to file an interlocutory appeal by permission under Supreme Court Rule 308 (107 Ill. 2d R. 308) from its order of dismissal. On February 5, 1988, the court denied International’s motion for certification because it found that certification would not advance the ultimate determination of the litigation as provided in Rule 308.

On December 31, 1987, International filed a notice of interlocutory appeal from the order denying injunctive relief against Morton. Subsequently, on January 6, 1988, International filed a “Notice of Joining Prior Appeal” seeking an appeal from the dismissal order.

I

Morton argues on appeal that this court should dismiss the appeal of the order dismissing International’s amended complaint without prejudice because that order is not final and appealable. International maintains that the dismissal order is so inextricably enmeshed with its motion seeking injunctive relief that this court’s jurisdiction over the entire appeal is necessary for a complete determination of the matter.

The rules of the supreme court are clear in the requirement that only a “final judgment of a circuit court in a civil case is appealable as of right.” (107 Ill. 2d R. 301.) Appeals from interlocutory orders are permitted only as specifically provided in the rules. (107 Ill. 2d Rules 306, 307, 308; Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.) A final judgment has been defined as a determination by the court which is on the issues presented by the pleadings and which ascertains and fixes absolutely and finally the rights of the parties. (Village of Burnham v. Cook (1986), 146 Ill. App. 3d 124, 496 N.E.2d 1034.) Our supreme court has indicated that the language “without prejudice” in a dismissal order “clearly manifests the intent of the court that the order not be considered final and appealable.” Flores v. Dugan (1982), 91 Ill. 2d 108, 114, 435 N.E .2d 480, 483; O’Hara v. State Farm, Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 484 N.E.2d 834.

In the case at bar, Morton filed a motion to dismiss International’s amended complaint, pursuant to section 2 — 619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(3)), since there were actions pending between the same parties for the same cause in a New Jersey State court. On March 12, 1987, the trial court granted the motion to dismiss without prejudice, based on the duplicative nature of the pending New Jersey lawsuits. On December 15, 1987, the trial court denied International’s motion for reconsideration of its dismissal order. On January 6, 1988, International sought certification pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) in the trial court asking it to certify the issues for appeal relating to the dismissal of its case. The trial court denied the motion for certification, ruling that certification would not advance the ultimate determination of the litigation as required by Rule 308.

Under these facts, it is our judgment that the order of dismissal, without prejudice, under section 2 — 619(a)(3) is nonfinal in that, by its very nature, it did not reach the substantive merits of International’s claim. Section 2 — 619(a)(3) is Illinois’ codification of the common law plea of abatement and signifies a present suspension of all proceedings which, without disputing the justness of plaintiff’s claim, objects only to the place, mode or time of asserting it, leaving plaintiff open to renew the action in another place or form, or at another time. (See Note, Abatement & Revival — Another Action Pending — Whether Presence of Pending Action on Same Claim in Foreign Jurisdiction Serves as Ground for Dismissing Complaint, 34 Chi. Kent L. Rev. 178 (1955); H.A. Pitts Sons’ Manufacturing Co. v. Commercial National Bank (1887), 121 Ill. 582, 13 N.E. 156.) Therefore, the order is not final and appealable. International may refile or move to reinstate the cause in the trial court any time it believes there are changed facts to support such action. Further, since this order was interlocutory in nature and not otherwise specifically provided for under the supreme court rules, an appeal may be taken only under Rule 308 and then only after the trial court has made the requisite finding and leave to appeal is thereafter allowed by the appellate court. (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704; Village of Burnham v. Cook (1986), 146 Ill. App. 3d 124, 496 N.E.2d 1035.) The trial court denied International’s motion for certification here and International failed to petition this court for leave to appeal. Accordingly, we dismiss the appeal from the order of dismissal of December 15, 1987, for lack of jurisdiction.

II

International’s remaining contention on appeal is that the trial court failed to perform its duty to protect its first-acquired jurisdiction by not enjoining Morton from proceeding in its later-filed duplicative Ohio action. The trial court held that since the Illinois action was dismissed without prejudice, the Ohio action was not duplicative and should not be enjoined.

Following oral argument in this matter on January 30, 1989, this court ordered the parties on February 14, 1989, to file supplemental briefs on the issue of whether the trial court retained jurisdiction to entertain International’s motion to enjoin after it had dismissed its declaratory judgment action without prejudice.

International’s position in its supplemental brief is that the trial court retained jurisdiction to enter the injunctive relief requested since the effect of the section 2 — 619(a)(3) dismissal without prejudice operated as a stay and, further, that the trial court should have granted the injunction prohibiting Morton’s action against International in Ohio. Morton contends in its supplemental brief that this court should make a finding that it lacks jurisdiction to review the dismissal of International’s complaint since it is not a final and appealable order. At the same time, Morton seeks an affirmance of the trial court’s denial of the injunctive relief sought by International.

Neither party has cited, nor has a search of Illinois case law revealed, any authority directly on point. It is well settled, however, that where a suit is dismissed or a nonsuit ordered, it carries the parties and the entire cause of action out of court. (Howard v. Miller (1982), 108 Ill. App. 3d 1, 438 N.E.2d 680; Hutchison v. Woodstock Community Unit School District No. 200 (1978), 66 Ill. App. 3d 307, 384 N.E.2d 382.) A court without jurisdiction to proceed in an action lacks the power to enter orders incident to that action. (Galvin v. Galvin (1978), 72 Ill. 2d 113, 378 N.E.2d 510; In re Vaught (1981), 103 Ill. App. 3d 802, 431 N.E.2d 1231.) After the entry of an order of dismissal a court, as an incident to such order, has jurisdiction to tax costs, but is without power to make any other order. (Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550.) Unless the judgment of dismissal is vacated and the cause reinstated, all further proceedings in the action are unauthorized. In re Estate of Braje (1938), 294 Ill. App. 377, 13 N.E.2d 821.

At the hearing involved here on March 27, 1987, the trial judge raised the issue of jurisdiction and commented that the court would first consider International’s motion for reconsideration, and only consider the motion to enjoin if the court reversed its decision on the motion to dismiss. The trial judge stated, in part, during the course of that hearing:

“If I have dismissed the case, then, of course, I would — I have dismissed the case presently. So I don’t have any jurisdiction to hear your motion (to enjoin the Ohio action) ***. Well, if the case is dismissed, how can I entertain a motion to enjoin a proceeding, anyway?
* * *
I’ll determine the motion to reconsider first; and then if there is anything left ***.”

The motion to reconsider the dismissal of plaintiff’s complaint was ruled on first and denied, and therefore, the trial court no longer retained jurisdiction of this matter. The cases cited by International (National Hockey League v. Intermart, Inc. (1984), 127 Ill. App. 3d 1072, 470 N.E.2d 1; Lowe v. Norfolk & Western Ry. Co. (1981), 96 Ill. App. 3d 637, 421 N.E.2d 971; Block & Co. v. Storm Printing Co. (1976), 40 Ill. App. 3d 92, 351 N.E.2d 271; Wells v. Wells (1976), 36 Ill. App. 3d 91, 343 N.E.2d 215; Tabor & Co. v. McNall (1975), 30 Ill. App. 3d 593, 333 N.E.2d 562; Medline Industries, Inc. v. Pascal (1974), 23 Ill. App. 3d 346, 319 N.E.2d 310; Wiseman v. Law Research Service, Inc. (1971), 133 Ill. App. 2d 790, 270 N.E.2d 77) address the issue of enjoining sister State litigation but only where an underlying action existed in the trial court. Accordingly, the cited cases are not applicable to the instant issue presented.

International argues that a dismissal without prejudice is the same as a stay of the proceeding and, therefore, the trial court retained jurisdiction to hear its motion to enjoin. However, courts have found a clear distinction between a stay and a dismissal without prejudice. When the court enters a stay order, it retains jurisdiction to supervise or enforce the order and the court has jurisdiction to hear motions to modify or lift the stay if circumstances change. Where a case is dismissed without prejudice, there is no need for the court to supervise, modify or enforce the order and the plaintiff is free to refile without leave of court if the circumstances or facts change. (Compare Medline Industries, Inc. v. Pascal (1974), 23 Ill. App. 3d 346, 319 N.E.2d 310, with International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 444 N.E.2d 736.) As such, the dismissal without prejudice in the case at bar would clearly not operate as a stay.

Accordingly, it is our determination that this court does not have jurisdiction to review the denial of International’s motion seeking injunctive relief since the trial court lost its first-acquired jurisdiction following the dismissal of International’s complaint. Appellant must fail in the attempt and expectation to convert an otherwise nonappealable matter into an appealable matter by the use of the method and procedure employed. Therefore, the appeal from the order of December 15, 1987, denying International’s motion for injunctive relief is also dismissed.

Appeal dismissed.

MANNING, P.J., and BUCKLEY, J., concur.


author: PRESIDING JUSTICE BILANDIC

text:
    KATHLEEN O’HARA, Plaintiff-Appellant, v. HOLY CROSS HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1-88-0509, 1-88-2476 cons.
    Opinion filed May 23, 1989.
    Rehearing denied August 15, 1989.

      David L. Poindexter, of Holstein, Mack & Dupree, of Chicago, for appellant.

      Mary Jo Connelly, of Sweeney & Riman, Ltd., and D. Kendall Griffith, Mary Tobin Duffy, and Gerald Haberkorn, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, both of Chicago, for appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Kathleen O’Hara, appeals from orders of the trial court granting summary judgment in favor of defendants, Holy Cross Hospital and Emergency Medicine, S.C., and dismissing her cause of action with prejudice. Counts III and IV of plaintiff’s amended complaint, alleging negligence and wilful and wanton misconduct against Stanley Fronczak, M.D., are not involved in this appeal.

Various depositions, affidavits and the pleadings were considered by the trial court prior to granting summary judgment. The record reveals that on February 28, 1982, Patrick O’Hara was 11 years old. On that date, he incurred a laceration when he was hit in the face by a golf club. His mother, plaintiff Kathleen O’Hara, took him to the emergency room of Holy Cross Hospital for treatment.

Defendant Holy Cross Hospital leased the operation of its emergency room to defendant Emergency Medicine, S.C. Under the terms of the agreement, Emergency Medicine provided emergency room physicians while Holy Cross provided the nurses, administrative personnel, space and equipment. The trial court found that Dr. Max Domie Koenigsberg was the agent of Emergency Medicine and that a principal and agent relationship existed between Holy Cross Hospital and Emergency Medicine.

Summary judgment was first granted in favor of Emergency Medicine. One of the grounds urged by Holy Cross Hospital for summary judgment was that a principal cannot be held liable if its agent is not liable. To achieve this favorable result, it had to acknowledge that Emergency Medicine was its agent.

Count I of plaintiff’s amended complaint is directed against Holy Cross Hospital, while count II is directed against Emergency Medicine. Each defendant is alleged to owe a duty of reasonable care to the plaintiff. Each defendant is alleged to have violated that duty to the plaintiff by:

“a. allowing Plaintiff to remain in the emergency room when it knew or should have known that Plaintiff was susceptible to fainting when she saw her son receiving stitches;
b. requesting Plaintiff to assist in the emergency care of her son by asking here to wipe novocaine from his mouth;
c. allowing Plaintiff to assist in the emergency care of her son by allowing her to wipe novocaine from her son’s mouth;
d. failing to have the emergency room adequately staffed such that it would not be necessary to request Plaintiff to participate in the emergency medical care of her son.”

At his deposition, Dr. Koenigsberg testified about emergency room policy at Holy Cross Hospital in February 1982:

“Q. Do you know what the hospital policy was in February of 1982, for people being in the emergency room, within the confines of a room or a cubicle who are not the injured patient?
* * *
A. We usually — the practice to allow one visitor at a time with the patient, assuming there was not an emergency going on that would preclude them from being in the room. And with the pediatric patient we are usually required to have someone staying with the child for their comfort.”

Dr. Koenigsberg also testified that the child requested that his mother be present and that he documented the request in the record in his own handwriting. Dr. Koenigsberg further deposed:

“Q. Was there anything unusual that you can remember as you sit her today about the administration of the anesthesia to Patrick O’Hara?
A. Just the normal problems when you have a mother in the room when you’re administering anesthesia, there is some leakage out of the wound of the Xylocaine and some of it trickled down to the corner of his mouth and at that point she reached unto my tray for a piece of gauze. I immediately raised my voice, instructing her not to do that; that was sterile and told her that it was dangerous to contaminate the sterile barrier.
* * *
Q. And, is it your testimony that the mother on her own simply reached over to the tray in [an] attempt to get something to wipe off her son’s face?
A. She did.
* * *
Q. Did Kathleen O’Hara actually touch something on the tray?
A. I don’t recall whether she actually contaminated the tray or not — if she had, I would have boarded off that area and covered it with a sterile towel. What I did is at that point when the child was complaining of the taste — the Xylocaine is bitter and she had a Kleenex crumpled up in her hand, I believe, and went to use that and at that point I handed her a sterile towel and the nurse and I lifted up the drape over his face just enough so she can wipe his mouth.
* * *
Q. And, do you remember anything unusual occurring during the suturing of the wound?
A. I certainly do.
Q. What was that?
A. Well, after having the child all prepped and draped and anesthetized and all comforted upon — at that point I was involved with the child and talking to him, solely; and with the first position of the first suture which went into the skin on the one side and came out the other side, there was a drop of blood. At that point, I was continuing working and I saw a blur move out of my field of vision. I did not look up — I just saw a blur move away from my field of vision and I would have put down the instrument and immediately started tying, and as I did that I saw a blur fall into my field of vision and heard a smack on the ground that sounded like a sledge hammer and the little boy said, ‘What’s that?’ and I said, ‘Oh, nothing, mommy just fell to the ground; she’s okay; she just got a little sick;’ calming the child so he would allow me to finish the procedure rapidly and he was — at that point — calm enough for the nurse to leave the bedside, holding the child and immediately see to Mrs. O’Hara.”

Plaintiff testified at her deposition that she was in the area of the emergency room where treatment was rendered to her son, at the invitation of a nurse (an agent of Holy Cross Hospital), and at the invitation of Dr. Koenigsberg (an agent of Emergency Medicine). She had never fainted before and she has not fainted since. She saw her son’s wound while taking him to the hospital and in the emergency room. The doctor requested her to assist by wiping her son’s mouth. Her faint was caused by having to observe the surgical procedure on her son’s face simultaneously with the moment she was responding to the doctor’s instructions to wipe her son’s mouth.

On January 11, 1988, the trial court granted Emergency Medicine’s motion for summary judgment and dismissed plaintiff’s cause of action, with prejudice, as to this defendant. Plaintiff appealed.

While plaintiff’s appeal was pending, defendant Holy Cross Hospital moved for summary judgment on the ground that it had no duty to plaintiff, as asserted in Emergency Medicine’s prior summary judgment motion. The prior dismissal of the hospital’s alleged agent required the dismissal of the hospital. Holy Cross Hospital was granted summary judgment and plaintiff’s cause of action was dismissed. We consolidated plaintiff’s appeals from the judgments in favor of both defendants.

The principal issue on appeal is whether the trial court properly granted summary judgment in favor of both defendants.

I

A trial court should grant a motion for summary judgment where the pleadings, depositions, and affidavits, if any, show that there is no genuine issue as to any material fact and the moving party’s right to the judgment is clear and free from doubt. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 566, 396 N.E.2d 1197, appeal denied (1980), 79 Ill. 2d 630.

The sole function of this court in reviewing the trial court’s entry of summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact has been raised, and if none was raised, whether the judgment was correctly entered for the moving party as a matter of law. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 21, 414 N.E.2d 865, appeal denied (1981), 83 Ill. 2d 569.) In determining if a material question of fact exists, the pleadings, depositions, affidavits and admissions, if any, should be construed strictly against the moving party and liberally in favor of the opponent. (Barnes v. Rakow (1979), 78 Ill. App. 3d 404, 410, 396 N.E.2d 1168.) It is the trial court’s judgment that is on appeal and not whatever else it may have said. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9.

Summary judgment is a drastic method of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) It is not intended to be used as a means of weighing conflicting issues of fact. Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 1053, 398 N.E.2d 60, appeal denied (1980), 79 Ill. 2d 631.

By construing the pleadings, depositions and affidavits strictly against the defendants and liberally in favor of the plaintiff, we conclude that a genuine issue of material fact exists.

Plaintiff’s presence during the surgical procedure was in accordance with hospital policy. She was invited to be present by both the doctor and nurse, and responded to the doctor’s request to assist her son. This evidence tends to support plaintiff’s allegations of specific acts of negligence by defendants, which constituted a violation of their duty to her. On the basis of this record, we cannot determine that there is “no genuine issue of material fact.”

Therefore, the trial court erred in granting summary judgment in favor of defendants.

II

Holy Cross Hospital also contends that as a landowner, it was not required to warn the plaintiff, its invitee, of an open and obvious danger.

The controlling Illinois case is Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, which applied Restatement (Second) of Torts sections 343 and 343A, to establish and limit the duty of a landowner.

Section 343 premises liability on: (1) an unreasonable risk of harm; (2) invitees failing to protect themselves from the harm; and (3) failure to exercise reasonable care to protect the invitees. (Restatement (Second) of Torts §343 (1965).) Under the rule, defendant owes a duty. Dr. Koenigsberg admitted that it was possible that a person in plaintiff’s situation could faint.

Section 343A limits liability in the face of known or obvious dangers unless: (1) the landowner should anticipate the harm despite knowledge or obviousness; or (2) the landowner expects that the invitee’s attention may be distracted so that he will not discover what is obvious, or will forget what he has discovered or failed to protect himself against. Restatement (Second) of Torts §343A, comment /, at 220-21 (1965).

Based on the record in this case, the issue of “open and obvious danger” is disputed. There is testimony that hospital policy permitted plaintiff to be present. She saw her son’s wound on the trip to the hospital, in the emergency room, and during the surgical procedure in which her assistance and participation was requested. She never fainted before or since.

Therefore, summary judgment was improperly granted.

III

This case was concluded by summary judgment in favor of both defendants and the dismissal of plaintiff’s cause of action with prejudice. There is no need to review any issue dealing with a motion to dismiss the plaintiff’s complaint. See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605.

Accordingly, the judgments of the circuit court of Cook County are reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re APPLICATION OF THE COUNTY TREASURER OF COOK COUNTY, ILLINOIS, FOR JUDGMENT AND SALE OF REAL ESTATE FOR GENERAL TAXES FOR THE YEAR 1980 (Heritage Standard Bank, as Trustee, et al., Petitioners-Appellants, v. Edward J. Rosewell, Cook County Treasurer, as Trustee of the Indemnity Fund Created Pursuant to Section 247a of the Revenue Act of 1939, as Amended, Respondent-Appellee).
    First District (1st Division)
    No. 1-87-2696
    Opinion filed June 12, 1989.
    Rehearing denied August 2, 1989.

      Daniel J. Pierce, P.C., of Chicago (Daniel J. Pierce, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Mark R. Davis and Robert O. Carroll, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner Larry Burke (Burke) filed a petition for indemnification pursuant to section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 728a), after the county clerk of Cook County failed to process Burke’s redemption of a three-unit apartment building. The respondent Cook County collector, as trustee under section 247a (the Collector), admitted liability for failure to process the redemption, and Burke was awarded indemnification in the amount of the fair market value of the subject property, less the redemption amount. Burke appeals, arguing that the circuit court incorrectly deducted the redemption amount. For the reasons below, we reverse and remand.

The procedures for the assessment and enforcement of property taxes, and the remedies of redemption and indemnification, are set forth in the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 482 et seq.). The tax sale, redemption and indemnification process is summarized below.

After property taxes are assessed for a subject property, a lien for the taxes attaches to the property. The lien is extinguished when the taxes are paid, or when the property is sold pursuant to any of the enforcement provisions in the Revenue Act, which include a tax sale, explained below; a forfeiture sale, held subsequent to the tax sale for properties that were not bid on in the tax sale; and the scavenger sale for properties over five years delinquent.

If the taxes on the subject property are not paid, they are declared delinquent. The county clerk publishes a list of delinquent properties, and notice is given to the individual owners. A judgment sale record is prepared and serves as the complaint in the circuit court. The judgment sale record is held by the county clerk, who enters the details of any payments, sales, forfeiture, redemption, and tax deed proceedings. At the appointed time the judgment sale record is presented to the circuit court. The property owner is entitled to be present and present evidence at the hearing. If the court enters an order of sale, the subject property becomes subject to a tax sale. At the annual tax sale, delinquent properties are submitted in order and the sale continues until all parcels bid on are sold.

No property is forfeited at the tax sale; the tax sale buyer receives, for the amount of the delinquent taxes, plus interest and costs, a tax sale certificate. The owner may pay the taxes at any time before the tax sale is final, and the property tax lien is extinguished when the tax sale certificate is issued. The tax sale certificate does not constitute title to the property, which the owner still holds. Rather, the tax sale certificate is personal property, a form of negotiable instrument, which represents a lien on the property in favor of the tax buyer and the tax buyer’s right to enforce the lien and institute tax deed proceedings after the redemption period expires.

The property owner is given a length of time after the tax sale certificate is issued, called the redemption period, in which to redeem the property. To redeem the property, the owner must pay an amount that varies, but is generally the amount paid by the tax buyer plus accrued interest and costs. The minimum length of the redemption period is prescribed by statute and varies depending on the type of sale from which the taxes were bought, and whether the property is residential or commercial. The redemption period may be extended by the tax buyer. Once the property is redeemed, the lien imposed by the tax sale certificate is extinguished.

If the property is redeemed, the tax buyer receives his original investment plus accrued interest and costs, and the redemption is noted on the tax sale certificate by the county clerk, so no tax deed will be issued on the certificate. If the property is not redeemed, the tax buyer may institute tax deed proceedings. The tax deed proceedings are conducted according to article IX, section 8, of the Illinois Constitution because if a tax deed is issued, the owner forfeits the property and the tax sale certificate becomes merchantable title to the property.

The legislature recognized that the forfeiture process sometimes led to harsh results, however, and created an alternative remedy to redemption. Section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 728a) created a fund to indemnify eligible parties for losses sustained from failure to redeem their property (the indemnity fund). The criteria for recovery from the fund are set forth in section 247a(5), which states:

“Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any owner of property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.” Ill. Rev. Stat. 1987, ch. 120, par. 728a(5).

It is within the procedural context described above that the instant case arose. Burke failed to pay the 1980 general real estate taxes on a three-unit apartment building at 7008 South Archer Avenue in Chicago (the subject property), and the delinquent taxes were purchased at the annual tax sale on May 3, 1982. Burke learned of the sale and redemption deadline in January 1984, and the tax buyer, not a party to this appeal, gave Burke until May 11, 1984, to redeem the property.

On May 1, 1984, Burke delivered a certified check payable to the county collector for the full redemption amount of $13,462.83, consisting of $7,583.98 in unpaid taxes, $5,460.47 in accrued interest to the tax buyer, and $418.38 in costs and fees. County personnel did not process the redemption, however, and a tax deed was issued on June 15, 1984.

On October 2, 1984, Burke filed a petition for indemnity pursuant to section 247a of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 728a). On May 22, 1987, Burke filed a motion for summary judgment on the issue of liability. The Collector admitted liability and summary judgment was entered. The parties later stipulated that the fair market value of the subject property on June 15, 1984, was $141,000. There were no liens or mortgages against the subject property on the date the tax deed issued.

On July 20, 1987, the circuit court issued an order finding that Burke was entitled to indemnification in the amount of $127,536.17, the fair market value of the subject property on June 15, 1984, minus the redemption amount. Burke appeals, arguing that the circuit court improperly deducted the redemption amount from the fair market value of the property.

Burke argues that while the court may consider equitable factors in determining whether a plaintiff is entitled to indemnification, it may not consider equitable factors in calculating the amount of indemnification. Burke’s argument is supported by the plain language of section 247a, which sets forth the criteria for recovery in the first sentence, and includes the consideration of equitable factors by the court:

“Any owner of real estate *** who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed *** or any owner of property *** who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained.” (Ill. Rev. Stat. 1987, ch. 120, par. 728a(5).)

The second sentence of section 247a, however, provides a mechanical formula for calculation of the award which does not mention equitable considerations: “[ijndemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.” Ill. Rev. Stat. 1987, ch. 120, par. 728a(5).

The legislature contemplated that the interest in enforcing tax assessment through the forfeiture process would in some instances create harsh results, causing some plaintiffs to lose their property through no fault of their own, or due to a lack of sophistication or ability to understand the forfeiture process. Naturally, however, not all plaintiffs would be helpless in the face of the tax laws. Thus the most reasonable interpretation of section 247a indicates that while a court may examine the facts of a particular case to determine whether a plaintiff is fairly entitled to indemnification, the court does not have the same latitude in calculating the amount of the award. The amount of the indemnification would not be influenced by equitable considerations, as both the market value of a property and any outstanding liens or mortgages could be determined with reasonable precision. The plain language of section 247a(5) shows that application of the statute is not, as the trial court stated, “cloaked in equity.”

In deciding to deduct the redemption amount, the trial court relied substantially on In re Application of Cook County Treasurer & Ex Officio Collector (1983), 119 Ill. App. 3d 212, 456 N.E.2d 221, appeal denied (1983), 96 Ill. 2d 560 (hereinafter Viso), stating, “the Viso decision appears to allow trial court discretion to be somewhat creative in structuring an equitable award that justly compensates the property owner for the exact loss or damage sustained.” Even had the trial court’s reliance on Viso been proper, allowing Burke to recover less than the full value of his property was contrary to the manifest weight of the evidence.

In Viso, a clerical error prevented redemption, a tax deed was issued, and the petitioner, Joyce Viso, was evicted from her home. Viso petitioned for indemnification, and the trial court found that she was equitably entitled. The trial court awarded Viso the fair market value of her house, $56,000, and ordered her promptly to submit proof to the court of payment of the personal note of $17,126.56, which had been severed from the mortgage. The appellate court affirmed: mechanical application of section 247a(5) would have resulted in an indemnification award of $38,873.44, and, subtracting the amount of the personal note, left Viso with a net recovery of $21,746.88, a result the court found “inequitable and contrary to the spirit of the statute.” In re Application of County Treasurer, 119 Ill. App. 3d at 216.

The application of equitable considerations to calculating the indemnification has not been followed, however. Instead, cases have held that the court has no discretion in determining the amount of the indemnification. (In re Application of County Treasurer & Ex Officio County Collector (1983), 114 Ill. App. 3d 921, 924, 449 N.E.2d 879 (“The trial court has no discretion in computing the amount of damages and must strictly adhere to the mandate of the statute”); In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 48, 429 N.E.2d 590 (“Once [it is] determined *** that the petitioner is [eligible for the remedy, the equities are no longer relevant;] *** all that remains is for the trial court to make [a] determination of the amount”).) Further, although the phrase “limited to” in section 247a(5) seems to allow some discretion in the calculation of the indemnification, the phrase

“clearly is intended to prevent a property owner from recovering more than the equity in the property by requiring that the value of any liens or mortgages be deducted from the market value. This limiting language fixes a date certain to determine the amount of recovery and bars recovery of any other actual, consequential or punitive damages as well as fees, costs and expenses of litigation.” (In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 49, 429 N.E.2d 590.)

Moreover, the mandate for liberal construction upon which the Collector relies appears not to apply to the determination of the amount of compensation but to whether compensation should be made: “[t]he Court shall liberally construe this Section to provide compensation wherever in the discretion of the Court the equities warrant such action.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 120, par. 728a(6).) This interpretation is consistent with the language in section 247a(5) that allows the trial court to consider the equities to determine whether a petitioner is entitled to compensation.

The trial court’s application of equitable considerations to the calculation of the indemnification was contrary to the weight of authority, but even had the application of equitable principles been proper, here any reduction from the full market value of the property was contrary to the manifest weight of the evidence. Burke made inquiries promptly after he was notified of the tax sale, and a certified check for the full amount of redemption was in the possession of the county clerk’s office before the redemption period had expired. Burke did all that he could to ensure that his property was redeemed. It would be inapt to reduce the amount of Burke’s loss on “equitable” principles when he suffered the loss through no fault of his own. Deducting the redemption amount would, in effect, force Burke to pay for a remedy he did not receive.

The Collector also argues that the redemption amount constituted a lien on the subject property and was properly deducted in any event. The Collector urges that we calculate Burke’s indemnification by determining his equity in the subject property the day before the tax deed issued. Accordingly, the Collector contends, Burke’s equity was the fair market value less the lien for the redemption amount held by the tax buyer. The Collector’s premises has no basis, however.

Section 247a expressly states that the indemnification “shall be limited to the fair cash value of the real estate as of the date of that the tax deed was issued, less any mortgages or liens thereon.” (Ill. Rev. Stat. 1987, ch. 120, par. 728a(5).) If the fair market value of the property is determined as of the date the tax deed is issued, it is logical to look to that date to determine what liens or mortgages shall be subtracted. But the lien in favor of the tax buyer for the amount of the redemption is extinguished upon redemption, or when the tax deed is issued. Calculating the value of the property and the setoffs as of the date the tax deed was issued, the lien representing the redemption amount no longer existed. Therefore, the lien for the redemption amount should not be deducted from the value of the property because it no longer exists on the date from which the owner’s equity in the property is determined. A lien once extinguished cannot be revived by the device of granting a setoff. The equitable powers of a court may not be exercised in contradiction to the plain requirements of a statute. 601 W. 81st Street Corp. v. City of Chicago (1984), 129 Ill. App. 3d 410, 472 N.E.2d 827.

The Collector finally argues that the trial court should have considered, as an equitable matter, the indemnity fund’s capacity to pay out awards, and that limiting the present award increases its ability to pay out future awards. This argument has been rejected. (In re Application of Cook County Treasurer & Ex Officio Collector (1983), 119 Ill. App. 3d 212, 456 N.E.2d 221, appeal denied (1983), 96 Ill. 2d 560.) As plaintiff points out, the indemnity fund has access to the legislature to change the laws to increase the indemnity fund, or limit the amount of a single award. It should also be noted that the legislature already has limited the amount of a single award: the fair cash value of the real estate, less any mortgages or liens. The instant case turns on the instant facts and not on speculation of future awards.

In conclusion, we hold that the trial court erred in deducting the redemption amount from the fair market value of the subject property. Once the trial court determined that Burke was entitled to indemnification, it had no discretion to apply equitable considerations in calculating the indemnification award. Any lien for the redemption amount was extinguished by the time the tax deed was issued and therefore should not have been deducted from the fair market value of the subject property. We note further that here, equitable considerations militated against deducting the redemption amount from the value of the property, since Burke suffered the loss through no fault of his own, and to require Burke to pay the redemption amount would require him to pay for a remedy he did not receive. Accordingly, the ruling of the trial court is reversed, and this case is remanded with instructions that the Collector be ordered to indemnify Burke for the full market value of the subject property, $141,000.

Reversed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE HARTMAN

text:
    MICHAEL BERNSTEIN, a Minor by his Father and Next Friend, Richard Bernstein, Plaintiffs-Appellees, v. GOTTLIEB MEMORIAL HOSPITAL et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1-88-1129, 1-88-1132 cons.
    Opinion filed June 13, 1989.
    Rehearing denied August 11, 1989.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John Langhenry, Stephen Swofford, and Lynn Dowd, of counsel), for appellants Gottlieb Memorial Hospital and Rosemary Carroll.
    Wildman, Harrold, Allen & Dixon, of Chicago (Mark Fedota and Ruth VanDemark, of counsel), for appellant Hai Solomon.

      Lane & Munday, of Chicago (Stephen I. Lane, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

This court allowed a Supreme Court Rule 308 (107 Ill. 2d R. 308) interlocutory appeal in this case based upon the following circuit court statement and question:

“Plaintiff, born in 1967, in 1971, filed a medical malpractice action. In 1975, the case was D.W.P. Plaintiff refiled in 1975. In 1978 the case again was D.W.P. Plaintiff refiled in 1980. In 1985, plaintiff filed a fourth time and the day after filing, took a voluntary dismissal of the 1980 case.
The question is whether the 1985 action is barred and should be dismissed on motion.”

The circuit court, by a memorandum opinion and order, held that the action was not so barred and denied defendants’ motions to dismiss.

Because of the serpentinous path created by the history of these cases, a somewhat detailed description of the procedures followed is necessitated.

Plaintiff Michael Bernstein (Michael) was born on June 16, 1967. On August 24, 1971, Michael, by his father and next friend Richard Bernstein (Richard), filed a two-count complaint (1971 complaint) against defendants Gottlieb Memorial Hospital (Hospital), Dr. Hai Solomon, M.D. (Dr. Solomon), and Rosemary Carroll, R.N. (Carroll) (sometimes collectively defendants): The gravamen of the complaint was that on June 16, 1967, the Hospital, by and through its “agents, servants and employees, including [Carroll]” was negligent in, inter alia: administering a drug known as pitocin to Ofra.Bernstein (Ofra), Michael’s mother, while she was in labor and immediately preceding Michael’s birth, which proximately caused Ofra’s frequent and prolonged labor contractions causing serious injury to Michael, then a viable full-term fetus subsequently born alive. Dr. Solomon was alleged guilty on June 16, 1986, of carelessly and negligently treating Ofra resulting in injury to plaintiff, administering pitocin to Ofra, failing to discontinue use of pitocin during Ofra’s advanced stages of labor, and failing to inspect or observe Ofra’s condition during treatment with pitocin.

The circuit court entered an order on October 2, 1975, dismissing the 1971 complaint for want of prosecution; Richard refiled Michael’s claim (1975 complaint), on November 12, 1975. By order entered June 15, 1978, the court dismissed the 1975 complaint for want of prosecution with prejudice, adding, “This cause was previously filed in 1967 [sic] and after having been on the call for seven (7) years was dismissed for want of prosecution.”

Pursuant to a motion filed by Richard, on a date not apparent from the record, the circuit court ordered on October 25, 1978, the vacatur of all prior orders of dismissal and then, on the same date, again dismissed the 1975 complaint for want of prosecution.

On May 6, 1980, Richard filed a third complaint (1980 complaint). Although Richard achieved timely service of the 1980 complaint on the Hospital and Carroll, Dr. Solomon was not served until four years later, on May 14, 1984. Dr. Solomon filed a motion on June 13, 1984, and on June 17, 1984, an amended motion, to dismiss the 1980 complaint, citing Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), and arguing that Richard failed to exercise due diligence in serving him and that the complaint was barred by laches.

The circuit court dismissed count II of the 1980 complaint with prejudice on August 30, 1984, but then, on July 12, 1985, and pursuant to Richard’s motion, vacated the August 30, 1984, order of dismissal.

Dr. Solomon renewed his motion to dismiss on July 24, 1985, and on August 13, 1985, filed a response in opposition to Richard’s motion to voluntarily dismiss the 1980 complaint. Richard filed a complaint for the fourth time (1985 complaint), on August 14, 1985. The following day, the circuit court granted Richard’s motion for a voluntary dismissal and dismissed the 1980 complaint without prejudice.

On September 23, 1986, this court issued a Supreme Court Rule 23 order (124 Ill. 2d R. 23) disposing of Dr. Solomon’s appeal of the August 15, 1985, order and remanding the cause to the circuit court for farther consideration of the Rule 103(b) motion.

On October 26, 1987, Dr. Solomon moved to dismiss both the 1980 and 1985 complaints. The Hospital and Carroll similarly moved to dismiss Michael’s “cause of action” on December 4, 1987, although their motion did not specify which complaint they desired to have dismissed. Richard responded to “All Defendants’ ” motions to dismiss on January 7, 1988, to which the Hospital and Carroll replied on February 5,1988. Dr. Solomon replied thereto on January 29,1988.

By a memorandum opinion and order issued March 16, 1988, the circuit court denied the motion to dismiss the 1985 complaint and granted the motion to dismiss the 1980 complaint.

Dr. Solomon filed a motion on March 25, 1988, to certify a question to this court under Supreme Court Rule 308 (107 Ill. 2d R. 308), which we allowed as first mentioned.

I

Defendants urge that the circuit court erred in denying their motions to dismiss Richard’s 1985 complaint, insisting that Richard improperly filed the 1980 and 1985 complaints in violation of section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217), which states in relevant part:

“In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution ***.”

Unless restricted by operation of this statute, defendants continue, Richard possesses the unfettered ability to renew his claim against defendants as many times as he desires prior to the exhaustion, up to four years after he attains majority, of the pertinent statute of limitations. Ill. Rev. Stat. 1985, ch. 110, pars. 13 — 211, 13 — 212.

The language of section 13 — 217 judicially has been construed to mean that, under circumstances enumerated in the statute, a plaintiff may refile his claim once before the expiration of the applicable statute of limitations or within a single year, whichever period is greater. (Gendek v. Jehangir (1988), 119 Ill. 2d 338, 340, 518 N.E.2d 1051; Tuch v. McMillen (1988), 167 Ill. App. 3d 747, 750, 521 N.E.2d 1218; Fanaro v. First National Bank (1987), 160 Ill. App. 3d 1030, 1034, 513 N.E.2d 1041; Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, 671, 508 N.E.2d 246, appeal denied (1987), 116 Ill. 2d 577.) Although the statute is remedial in nature (Fanaro v. First National Bank, 160 Ill. App. 3d at 1034), its limited refiling provision is intended to serve as an “aid to the diligent, not a refuge for the negligent” (Gendek v. Jehangir, 119 Ill. 2d at 343), and to spare defendants “harassing renewals] of litigation” through repeated filings of virtually identical claims. Gendek v. Jehangir, 119 Ill. 2d at 343; Tuch v. McMillen, 167 Ill. App. 3d at 750.

Richard contends that section 13 — 217 allows multiple re-filings until the limitations period on his claim expires, and erroneously asserts that in each of the decisions cited by defendants, the statute of limitations was exhausted before the plaintiff attempted to renew a claim. In Walicek v. Ciba-Geigy Corp. (155 Ill. App. 3d at 671), plaintiff filed his complaint twice prior to the expiration of the limitations period, which ran almost two months after dismissal of the second complaint. The Walicek court found section 13 — 217 expressly permits one, and only one, refiling of the claim “even if the statute of limitations has not expired,” and therefore reversed the circuit court’s denial of defendants’ motion to dismiss plaintiff’s third complaint.

The result reached in Walicek, moreover, is wholly consistent with prior decisions which interpreted “a new action” in section 13 — 217, and its predecessor, section 24 of the Limitations Act (Ill. Rev. Stat. 1967, ch. 83, par. 24a) to mean one refiling only. (See Harrison v. Woyahn (7th Cir. 1958), 261 F.2d 412, 413; Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 387-88, 385 N.E.2d 62.) Furthermore, Walicek adheres to rules of statutory construction by giving effect to the plain meaning of the phrase “whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action” (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217). Franzese v. Trinko (1977), 66 Ill. 2d 136,139-40, 361 N.E.2d 585.

Richard maintains that the recent decision in Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1041-42, 527 N.E.2d 1328, supports his position and should be followed here. In that case, the fifth district found the third assertion of plaintiff’s complaint, previously the object of two voluntary dismissals, permissible because it was filed prior to the expiration of the statute of limitations. The Relaford court relied solely on Gendek v. Jehangir, in which the supreme court answered the discrete issue of whether a plaintiff who takes a voluntary dismissal of his original action, after the exhaustion of the relevant limitations period, is entitled to only one refiling within a year. (Gendek v. Jehangir, 119 Ill. 2d at 340-41.) It should be observed that the Relaford voluntary dismissals and refilings took place within a seven-month period, the defendants there had not yet appeared or answered, and the actions there were not taken to avoid a probable adverse ruling, as in the present case. Nevertheless, in our opinion, Relaford reached a result contrary to our understanding of precedent case law and tenets of statutory interpretation set forth above and we respectfully decline to follow it.

Richard’s reliance on Casillas v. Rosengren (1967), 86 Ill. App. 2d 139, 229 N.E.2d 141, is equally misplaced. There, suit was filed in Kane County on behalf of the minor plaintiff “shortly [after]” she suffered injury in March 1962. The circuit court dismissed the complaint in March 1964 for want of prosecution and, 23 months later, plaintiff filed a petition to vacate the dismissal pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 72). Upon denial of the motion to vacate, plaintiff again filed suit in March 1966 in Kane County. The court dismissed this second complaint three weeks later based on the denial of plaintiff’s previous motion to vacate. When plaintiff filed a third complaint in Cook County, the circuit court dismissed the action in October 1966, stating that the March 1966 order of the Kane County circuit court was binding on “all other courts of like jurisdiction.”

Critical to the holding in Casillas was a prior rendering of section 24 which allowed renewal of claims if filed within one year of the contingencies enumerated therein and “if the time limited for bringing such action shall .have expired during the pendency of such [i.e., the initial] suit.” (Ill. Rev. Stat. 1965, ch. 83, par. 24a.) That version of section 24 necessarily required exhaustion of the applicable limitations period before the savings statute could be invoked, as contrasted with the current statute, which limits the refiling of claims “whether or not the time limitation for bringing such action expires during the pendency of such action.”

For the foregoing reasons, Richard’s 1980 and 1985 complaints should have been dismissed.

II

Richard contends that permitting a minor plaintiff multiple re-filings of his claim before the expiration of the statute of limitations is consistent with Illinois public policy.

Cases relied on by Richard recite the well-established and unquestioned principle that our courts regard minors with special interest and will not abandon their rights to the “whim or mercy of some self-constituted next friend.” (See Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 520-21, 434 N.E.2d 290; Zimmerman v. Village of Skokie (1988), 174 Ill. App. 3d 1001, 1008, 529 N.E.2d 599; Brandon v. DeBusk (1980), 85 Ill. App. 3d 645, 648, 407 N.E.2d 193.) In Severs, the injured minor child’s parent neglected to bring any action to secure a recovery for her injuries within a two-year limitations period provided by an uninsured motorist insurance policy. Here, action has been taken, albeit too often. In both Brandon and Zimmerman, a parent, acting as next friend or guardian, filed a complaint on behalf of his children (Brandon, 85 Ill. App. 3d 645, 407 N.E.2d 193) or a child (Zimmerman, 174 Ill. App. 3d 1001, 529 N.E.2d 599) for injuries suffered by them, who in Brandon were minors and in Zimmerman was mentally incompetent. Violation of discovery rules by plaintiffs culminated in the dismissals of their claims, to which they unsuccessfully responded with motions to vacate under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401).

The court in Brandon reversed and remanded, directing the lower court to explore “alternative sanctions” because of the minor litigants. The court noted, however, that notwithstanding the involvement of minors, if the alternative sanctions did not secure the desired result, dismissal could be entered. (Brandon v. DeBusk, 85 Ill. App. 3d at 648.) In Zimmerman, the court reversed the circuit court’s ruling because of the minor incompetent plaintiff, but noted that partial discovery had been fulfilled by plaintiff and that plaintiff’s doctors had advised against his testifying at deposition as injurious to his health, equities which supported the section 2 — 1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) petition. (Zimmerman v. Village of Skokie, 174 Ill. App. 3d at 1007.) In contrast, here plaintiff’s actions were dismissed for want of prosecution twice, and once again for failure to serve Dr. Solomon until four years after the third suit was filed, case histories devoid of equities.

As noted in preceding passages, the theory animating the one-refiling restriction of section 13 — 217 is to provide aid to the diligent, not a refuge for the negligent or indifferent.

Ill

Defendants assert that Supreme Court Rule 273 (107 Ill. 2d R. 273) also bars multiple revivals of Richard’s causé of action upon application of the principles of res judicata and of Rule 103(b). Rule 273 states:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication on the merits.” (107 Ill. 2d R. 273.)

Defendants maintain that the second dismissal for want of prosecution of Michael’s 1975 complaint, entered October 25, 1978, constituted an adjudication on the merits and therefore precluded a third filing of the claim by operation of the principles of res judicata. In re Estate of Nuyen (1982), 111 Ill. App. 3d 216, 443 N.E.2d 1099.

A dismissal for want of prosecution is not an adjudication on the merits and does not prevent subsequent claims arising from the same issues. (Fanaro v. First National Bank, 160 Ill. App. 3d at 1035; Kraus v. Metropolitan Two Illinois Center (1986), 146 Ill. App. 3d 210, 212, 496 N.E.2d 1080; O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 950, 420 N.E.2d 425.) Section 13 — 217, moreover, constitutes a statute which “otherwise specifies” and, therefore, by its own terms, allows a single refiling of a claim dismissed for want of prosecution. Nevertheless, a dismissal for want of prosecution does amount to an adjudication on the merits where, as here, the court dismisses a complaint for want of prosecution a second time. See Fanaro v. First National Bank, 160 Ill. App. 3d at 1035.

Even were we to assume, as Richard suggests, that the dismissal of his 1980 action was voluntary because he did not object to it, his 1985 action against Dr. Solomon is barred by Rule 273, and the right to refile granted by section 13 — 217 is unavailable to him. Dr. Solomon was not served until four years after Richard’s 1980 action was instituted. Dr. Solomon filed a Rule 103(b) motion to dismiss which was granted, with prejudice. Richard thereafter filed a petition for rehearing which was heard almost a year later, by another judge who vacated the dismissal order and granted Dr. Solomon leave to file an amended motion to dismiss. Richard presented a motion to voluntarily dismiss the 1980 action at a hearing held before the scheduled hearing on the Rule 103(b) motion to dismiss. The day before the hearing on the motion to voluntarily dismiss the 1980 action, Richard filed his 1985 action, which was granted. Dr. Solomon appealed.

The order voluntarily dismissing Richard’s 1980 action was vacated on appeal by this court, which directed the circuit court on remand “[to] consider the Rule 103(b) motion on its merits.” (Bernstein v. Solomon (1st Dist. 1986), No. 85 — 2786 (unpublished Rule 23 order).) On remand, the circuit court granted the motion to dismiss the 1980 action and the order entered was final and without qualification. We hold that the order also, then, required the dismissal of Richard’s 1985 action.

Dr. Solomon’s Rule 103(b) motion was based upon circumstances showing that, after two prior lawsuits, both of which were dismissed for want of prosecution, Richard waited for four years to serve him in the third lawsuit. Our supreme court recently emphasized and reemphasized that “nothing is more critical to the judicial function than the administration of justice without delay” and that “reasonable diligence in the service of process, as required by Rule 103(b), is essential to rendering justice fairly and promptly." (Emphasis added.) (Muskat v. Sternberg (1988), 122 Ill. 2d 41, 48, 521 N.E.2d 932.) Dr. Solomon’s Rule 103(b) motion therefore was well founded. (Hanna v. Kelly (1980), 91 Ill. App. 3d 896, 414 N.E.2d 1262; Greenwood v. Blondell (1980), 85 Ill. App. 3d 186, 406 N.E.2d 204.) The order entered dismissing the 1980 case was final for purpose of Rule 273. Richard’s action against Dr. Solomon could not be refiled under section 13 — 217. There is nothing in the case law, rules or statutes to suggest that the due diligence mandated by Rule 103(b) is inapplicable to actions governed by long statutes of limitations or to minors and those under legal disabilities.

The circuit court order granting Dr. Solomon’s Rule 103(b) motion to dismiss the 1980 action against him also should have allowed his motion to dismiss Richard’s 1985 action for the further reason that an order of dismissal based on Rule 103(b) is not an order that gives a plaintiff the right to refile under section 13 — 217. See Keilholz v. Chicago & North Western Ry. Co. (1974), 59 Ill. 2d 34, 37, 319 N.E.2d 46; Wallace v. Smith (1979), 75 Ill. App. 3d 739, 394 N.E.2d 665.

The circuit court reached its decision in the case sub judice “reluctantly,” noting that plaintiff had “subjected defendants to four suits over 14 years” and that any “meritorious cause of action” could have been asserted in 1971. The court continued:

“Surely the courts must protect the rights of minors. Because they are minors, by law they may sue in general until they attain the [age of] 20, or the usual limitation period expires. But once the minor invokes the aid of the court, then he/ she is treated much like an adult, since represented by a ‘next friend,’ typically, as here, a parent and counsel. The minor is expected to file proper pleadings, to respond in discovery, to appear for deposition (depending on age), appear as a witness, etc. The usually [sic] rules of res judicata apply to the minor. Indeed, the rules could scarcely be otherwise, else a defendant could be subjected to intolerable burdens.
In the case of the adult plaintiff, the right to refile within the statute has little meaning; typically the limitation period is short, two years for personal injury, and by the time the suit is refiled, he/she must use Sec. 13 — 217 and is restricted to one filing. But here plaintiff was only four when the first suit was filed. Moreover, counsel declares that plaintiff is incompetent, and if this is true, there may never be a limitation period during his life. Thus, plaintiff could continue to dismiss and refile.
If I were writing on a clean slate, I would hold that a plaintiff may refile once only before, as well as after the statute.”

The circuit court then thought itself bound to hold otherwise by precedent.

As indicated above, we take a contrary view and are compelled to reverse and remand for entry of dismissal as to all defendants, answering the certified question in the affirmative.

Reversed and remanded.

BILANDIC, P.J., and SCARIANO, J., concur.

      The contents of this and all subsequent complaints filed by Richard were identical to the 1971 complaint.

        Hamilton v. Vaden (Okla. 1986), 721 P.2d 412, 418, supports this conclusion. In Hamilton, the Oklahoma Supreme Court held that Oklahoma’s savings statute, which is similar to the version of section 24 construed in Casillas, “simply does not apply” if the limitations period applicable to the minor plaintiff’s cause of action “has not run against the plaintiff.” (721 P.2d at 418.) The result reached by New York courts is the same. See Gundershein v. Bradley-Mahoney Coal Cory. (1946), 295 N.Y. 539, 540, 68 N.E.2d 599, 599; Russo v. City of New York (1932), 258 N.Y. 344, 349, 179 N.E. 762, 764; Martello v. Board of Education (1966), 49 Misc. 2d 551,_, 267 N.Y.S.2d 963, 965; Williams v. Board of Education (1943), 182 Misc. 619,_, 45 N.Y.S.2d 385, 386.

      The rendering of section 24 apparently relied on in Casillas and in effect when that plaintiff filed her second and third complaints stated in pertinent part (Ill. Rev. Stat. 1965, ch. 83, par. 24a):
      “In any of the actions specified in any of the sections of this act or any other act *** where the time of commencement of any action is limited *** if the plaintiff has heretofore been nonsuited or shall be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the plaintiff *** may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”
      Effective July 1, 1967 (Ill. Const. 1870, art. IV, §13) amendments to section 24 altered it to read (Ill. Rev. Stat. 1967, ch. 83, par. 24a):
      “In the actions specified in this Act or any other act *** if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the plaintiff is nonsuited or the action is dismissed for want of prosecution.”

      See, e.g., Ill. Rev. Stat. 1987, ch. 110, pars. 13 — 202.1 (no limitation), 13 — 118 (40 years), 13-101, 13-116 (20 years), 13-206, 13-214.1 (10 years), 13-102, 13-103, 13 — 107 (7 years).

      See, e.g., Ill. Rev. Stat. 1987, ch. 110, pars. 13 — 214(e) (minority or legal disability plus 4/io years), 13 — 112, 13 — 211 (minority or legal disability plus 2 years), 13— 213(d) (minority or legal disability plus 2ls years), 13 — 212(b) (8 years but 22nd birthday at latest).