author: PRESIDING JUSTICE BUCKLEY

text:
    CAROLE HEYING, Plaintiff-Appellant, v. DR. JOHN J. SIMONAITIS et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 82—1954, 83—1265 cons.
    Opinion filed June 29, 1984.

      Holland H. Stimson, Ltd., of Chicago (Holland H. Stimson and John Hey-ing, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, David J. Slawkowski, Hugh C. Griffin, and William D. Frazier, of counsel), for appel-lees Dr. John J. Simonaitis and Dr. Luis Cespedes.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and George W. Spellmire, of counsel), for appellees Nancy Borngra-ber and Orvilla Pupp.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The present consolidated appeals arise out of an action brought by plaintiff, Carole Heying, a nurse, against physicians John J. Simonaitis and Luis Cespedes and two other nurses, Nancy Borngraber and Or-villa Pupp, all of whom worked with plaintiff. Her complaint alleged intentional interference with prospective economic advantage, defamation and intentional infliction of emotional distress. The trial court dismissed plaintiff’s third amended complaint against all four defendants for failure to state a cause of action. Plaintiff thereafter filed a motion seeking to vacate the order of dismissal against the two defendant physicians and for leave to file a fourth amended complaint as to them only. The trial court denied plaintiff’s motion. Plaintiff appeals the denial of her motion pertaining to the physicians and the earlier order dismissing her third amended complaint as to the two nurses. We affirm in both instances.

The record reflects that in October 1978 plaintiff was employed as a nurse in the renal dialysis unit at Memorial Hospital in Du Page County in suburban Elmhurst. Defendant Drs. Simonaitis and Cespedes were staff physicians in the unit. Defendants Pupp and Born-graber were the head nurse and supervising nurse, respectively, in the unit. Plaintiff was employed by the hospital for nine years and assigned to the renal dialysis unit for approximately three years.

During the fall of 1978, there was growing discord between plaintiff and the rest of the renal dialysis unit staff. Plaintiff alleged that the problem stemmed from her criticism of certain training procedures being followed in the unit. Documents attached to the pleadings, however, disclosed there were various complaints both by patients and other staff members concerning plaintiff’s “negative” attitude, her favoritism to certain patients and her antagonism toward other staff members.

In accordance with the hospital’s established grievance procedures, two meetings were held between plaintiff and Drs. Simonaitis and Cespedes. At the meetings, the problems and dissension in the unit were discussed, allegedly in a somewhat heated manner. Following these meetings, an anecdotal note was signed by nurses Pupp and Borngraber, itemizing some of the events and problems that led to the meetings.

The meetings between plaintiff and Drs. Simonaitis and Cespedes failed to produce a satisfactory resolution of the problem. Consequently, the matter was taken through the next step of the hospital grievance procedure — review by an impartial peer review committee composed of other nurses outside the renal dialysis unit. Both Drs. Si-monaitis and Cespedes testified before the nurse’s review committee. On December 4, 1978, the review committee recommended that the anecdotal note be removed from plaintiff’s personnel file and that plaintiff be given an apology for the manner in which the meetings with Drs. Simonaitis and Cespedes were handled. In view of the personality conflicts involved, however, the review committee concluded that “in the best interest of all parties, the committee recommends that Mrs. Heying be reassigned to a nursing area that is mutually acceptable to her and the nursing office.”

Following the review committee’s recommendation, plaintiff made no attempt to carry the matter through any further review processes provided by hospital grievance procedures. She subsequently was reassigned to another nursing position in the hospital. At some point after her transfer, she voluntarily terminated her employment at the hospital. She currently is employed in an obstetrical/gynecological unit at another hospital.

After terminating her employment with the hospital, plaintiff brought suit against Drs. Simonaitis and Cespedes and nurses Pupp and Borngraber. Her third amended complaint contained three counts. Count I alleged intentional interference with prospective economic advantage. Count II charged defamation and count III alleged intentional infliction of emotional distress. On July 8, 1982, the trial court entered an order dismissing nurses Pupp and Borngraber from the case on the ground that plaintiff’s third amended complaint failed to state a cause of action as against them. Plaintiff thereafter filed an appeal from the court’s order under Docket No. 82 — 1954.

On December 16, 1982, the third amended complaint similarly was dismissed as to Drs. Simonaitis and Cespedes. Plaintiff filed a motion to vacate this dismissal order and for leave to file a fourth amended complaint against the physicians. The fourth amended complaint was predicated on the same three theories as the third amended complaint. The trial court considered plaintiff’s fourth amended complaint on the merits but ultimately concluded that it, too, failed to state a cause of action and denied plaintiff’s motion. Plaintiff appealed the court’s determination under Docket No. 83 — 1265.

In this consolidated appeal, we are to determine whether the trial court acted correctly in dismissing plaintiff’s third amended complaint as to all four defendants and in denying her leave to file a fourth amended complaint against Drs. Simonaitis and Cespedes.

I

Plaintiff initially urges that count I of her third and fourth amended complaints states a cause of action for tortious interference with prospective economic advantage. Count I alleges, in pertinent part, as follows: that “plaintiff had a reasonable expectation of continuing a valid business relationship” with Memorial Hospital of Du Page County; that defendants intentionally and maliciously conspired among themselves to interfere with plaintiff’s employment at Memorial Hospital by making defamatory statements; and that as a proximate result of the defendants’ actions, the plaintiff was. transferred out of the renal dialysis unit and into another unit at Memorial Hospital.

The law is well settled that the following essential elements must be alleged to state a cause of action for tortious interference with prospective economic advantage: (1) the plaintiff’s reasonable expectancy of entering into a valid business relationship; (2) the defendant’s knowledge of the expectancy; (3) an intentional interference by the defendant which prevents the expectancy from ripening into a valid business relationship; and (4) damage to the plaintiff from such interference. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709, 713-14, 306 N.E.2d 549, rev’d in part on other grounds (1975), 61 Ill. 2d 129, 334 N.E.2d 160.) It is further established that the interference complained of must induce or cause a breach or termination of the relationship or expectancy. City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 363, 300 N.E.2d 331.

Here, plaintiff has not advanced the requisite factual allegations in count I to support a cause of action based on interference with prospective economic advantage. Count I fails to allege that plaintiff’s relationship with Memorial Hospital was breached or terminated as a result of defendants’ conduct. Rather, plaintiff merely alleges that she was transferred from one unit of the hospital to another. This court has made it clear that transfer is not the same as termination and cannot be said to be a breach of contract. Johnson v. Board of Junior College District No. 508 (1975), 31 Ill. App. 3d 270, 274-75, 334 N.E.2d 442.

Plaintiff acknowledges that she was not terminated from Memorial Hospital when she alleges that she was “constructively terminated.” Plaintiff has cited no cases in her brief which recognize or define the term “constructive termination.” At oral argument, plaintiff relied on Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 450 N.E.2d 1235. Bryce, however, does not hold that a concept known as “constructive termination” exists in Illinois. Rather, the court in Bryce merely indicated in dicta that even if such a theory was allowed, its application would not be supported by the facts before it. Hence, we find plaintiff’s reliance on Bryce to be misplaced.

We briefly note that count I additionally alleged that plaintiff no longer could expect to be employed in the renal dialysis unit of any hospital. This allegation, contrary to plaintiff’s contention, fails to show that defendants interfered with her reasonable expectancy of entering into a prospective business relationship with a third party. To state a cause of action, plaintiff is required to allege that a contractual arrangement with an identifiable third party is at least contemplated. (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 402-03, 357 N.E.2d 211.) Here, there is no allegation that plaintiff was contemplating such a contractual arrangement with another hospital or that she even was seeking employment at another hospital. Accordingly, we find no error by the trial court in dismissing count I for failure to state a cause of action for interference with prospective economic advantage.

II

The next issue for our determination is whether count II of plaintiff’s third and fourth amended complaints states a cause of action for defamation. Count II, labelled “Defamation of a Person in Her Profession,” alleges that defendants entered into a conspiracy with ill-will and malice to defame and ruin the plaintiff and to deprive her of employment with Memorial Hospital of Du Page County and deprive her of future employment elsewhere in the renal dialysis field. Count II further alleges that defendants published defamatory statements they knew were false and that such statements were made with reckless disregard to their truth or falsity. The allegedly defamatory statements set forth in count II were supposedly made at hearings before the nurse’s review committee. Plaintiff in count II also cites two comments made by defendant Dr. Simonaitis following plaintiff’s transfer from the renal dialysis unit.

Initially, we note that a complaint for defamation must clearly identify the specific defamatory statement complained of. Without an allegation of specifically what was communicated, it is impossible to know whether the communication gives rise to a cause of action for defamation. (Altman v. Amoco Oil Co. (1980), 85 Ill. App. 3d 104, 108, 406 N.E.2d 142.) Here, plaintiff in count II fails to identify any specific defamatory statements made by the defendant nurses Pupp and Born-graber. Although count II alleges that these two defendants made defamatory statements before the nurse’s review committee, the statements which are quoted or described in count II were made by the defendant physicians rather than the nurses.

In recognition of the foregoing fact, plaintiff argues that the physicians’ statements were made collectively by all defendants as conspirators. To allege a conspiracy, however, the complaint must set forth with particularity the facts and circumstances constituting the alleged conspiracy. (Owens v. Green (1948), 400 Ill. 380, 393, 81 N.E.2d 149; Commercial Products Corp. v. Briegal (1968), 101 Ill. App. 2d 156, 242 N.E.2d 317.) Here, count II merely alleges in a conclusional fashion that defendants “entered into a conspiracy.” As such, the allegations in count II are insufficient to permit plaintiff to impose responsibility on the nurses for the statements of the physicians based on a conspiracy.

We further note that plaintiff on appeal cites the anecdotal record signed by nurses Pupp and Borngraber to support a defamation action in count II against these defendants. We find that count II, however, contains no allegation or reference to the anecdotal record. Although the anecdotal record is alleged in other counts and is attached to the third complaint, neither those allegations nor the anecdotal record are incorporated by reference in count II. Consequently, the anecdotal record cannot form a basis for sustaining count II against these two defendants.

Having determined above that count II fails to state a cause of action against the defendant nurses Pupp and Borngraber, we now consider the allegations in that count as they pertain to the defendant physicians. As previously noted, count II centers on certain testimony given by Drs. Simonaitis and Cespedes before the nurse’s review committee. Plaintiff alleges the physicians’ statements were libelous per se.

An action for defamation based on libel per se requires that the words used are in and of themselves so “obviously and inevitably hurtful” that proof of special damages is unnecessary. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348, 243 N.E.2d 217.) Two of the four categories of words which are actionable per se and thus do not require proof of special damages are those “imputing inability to perform or want of integrity in the discharge of duties of office or employment” and those “prejudicing a particular party in his profession or trade.” (Fried v. Jacobson (1983), 99 Ill. 2d 24, 27, 457 N.E.2d 392.) To determine whether the particular language used constitutes libel per se, the “rule of innocent construction” must be applied. 99 Ill. 2d 24, 27, 457 N.E.2d 392.

The innocent construction rule, as most recently modified by our supreme court in Chapski v. Copely Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195,199, provides:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.” (Emphasis added.)

Whether an allegedly defamatory statement is protected by the innocent construction rule is properly a question of law to be resolved by the trial court in the first instance. Chapski v. Copely Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195.

In the case at bar, the trial court determined as a matter of law that the statements before the nurse’s review committee were non-actionable under the innocent construction rule. After reviewing the statements complained of within the context of the physicians’ entire testimony before the nurse’s review committee, we are in agreement with the trial court. The transcript of their testimony, attached as an exhibit to the third and fourth amended complaints, reveals that the defendant physicians were merely expressing' that, given the close working relationship between nurses, doctors and patients in the renal dialysis unit, the personality conflicts involving plaintiff had developed to the extent where they were interfering with the work of the unit. At no time did either of the defendant physicians impugn plaintiff’s ability as a nurse. Rather, they stated to the contrary:

“DR. SIMONAITIS: Well I think Carole Heying is a good nurse. When she’s giving a bath or she’s attending to a patient I think she’s a very good nurse.”
“DR. CESPEDES: She’s a very good nurse. *** I was the first one to say to her now we’re not criticizing your work. We know that she’s a hard working, knowledgeable nurse, we have nothing to say about that Ok, this was not the point. It was the point that there was unrest among the staff.”

We are of the conclusion that the defendant physicians’ statements objected to by plaintiff in count II, when read in the context of their entire testimony before the review committee, are not libelous per se under the Chapski innocent construction rule. Additionally, we note that the two epithet and name-calling allegations in count II pertaining to times after plaintiff had been transferred from the renal dialysis unit do not impute want of integrity or capacity to plaintiff in her profession and are not libelous per se. See McGuire v. Jankiewicz (1972), 8 Ill. App. 3d 319, 320, 290 N.E.2d 675; Skolnick v. Nudelman (1968), 95 Ill. App. 2d 293, 305, 237 N.E.2d 804.

We briefly note that defendants Simonaitis and Cespedes assert that any libel action based upon their testimony before the nurse’s review committee was barred by the qualified privilege rule. Given our discussion above, defendants need not rely on the protection afforded by a qualified privilege. Nevertheless, we find that such a privilege was justified by the facts before us. The elements for a qualified privilege are “[g]ood faith by the defendant, an interest or duty to be upheld, a statement limited in its scope to that purpose, a proper occasion, and publication in a proper manner and to proper parties only.” (Spencer v. Community Hospital of Evanston (1980), 87 Ill. App. 3d 214, 219, 408 N.E.2d 981.) These elements are satisfied in this case. Plaintiff’s mere conclusional allegation in count II that defendants acted “with ill-will and malice” is insufficient to show that defendants exceeded their privilege. 87 Ill. App. 3d 214, 220, 408 N.E.2d 981.

III

The final issue presented for our review is whether count II of plaintiff’s third and fourth amended complaints was properly dismissed for failure to state a cause of action for the intentional infliction of emotional distress. To state a cause of action for this tort, a plaintiff must allege facts establishing: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) that defendant’s conduct was such that defendant knew that severe emotional distress would be certain or substantially certain to result. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89, 360 N.E.2d 765.) The “outrageous conduct” must extend beyond “mere insults, indignities, threats, annoyances, petty oppressions or trivialities”; the conduct must be so extreme in degree as to go beyond all possible bounds of decency. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765; Kelly v. Franco (1979), 72 Ill. App. 3d 642, 648, 391 N.E.2d 54.) Additionally, the distress suffered must be such that no reasonable man could be expected to endure it. Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765.

The allegations in count III of plaintiffs third and fourth amended complaints fall far short of stating a cause of action based on the intentional infliction of emotional distress. The conduct about which plaintiff complains in count III is the preparation of the anecdotal note and certain statements made by the defendant physicians before the nurse’s review committee. Essentially this conduct consisted of reporting observations of the effect of plaintiff’s personality on the renal dialysis unit’s operation. Count III additionally alleged that plaintiff was transferred from the renal dialysis unit. Clearly the conduct complained of is not so outrageous in degree as to extend beyond all possible bounds of human decency. Nor can we say that the conduct complained of was calculated to cause emotional distress so severe that no reasonable person could be expected to endure it.

Personality conflicts, questioning of job performance and job transfers, whether for disciplinary or management purposes, are unavoidable aspects of employment. Frequently, they produce concern and distress for the affected employee. Yet, if the distress from such incidents was deemed so severe that no reasonable person could be expected to endure it, nearly all employees would have a cause of action for intentional infliction of severe emotional distress. See Johnson v. Board of Junior College District No. 508 (1975), 31 Ill. App. 3d 270, 275, 334 N.E.2d 442 (allegations that defendant school officials criticized the performance of two teachers and caused the transfer of those two teachers to another college within the district were held insufficient to cause severe emotional distress to a person of ordinary sensibilities).

Given plaintiff’s failure to plead essential elements of her cause of action in count III, and our holdings above as to counts I and II, we conclude that the trial court acted properly in dismissing plaintiff’s third amended complaint and denying her leave to file a fourth amended complaint.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    CHARLES R. CRIST, Plaintiff-Appellee, v. HOWARD QUAM et al., Defendants-Appellants.
    First District (1st Division)
    No. 83—2403
    Opinion filed July 2, 1984.
    Rick Halprin, of Chicago, for appellants.
    Arvey, Hodes, Costello & Burman, of Chicago (Donald F. Spak and A. Marcy Newman, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Charles R. Crist (plaintiff) filed a verified petition for registration in Illinois of a judgment entered in Florida on May 14, 1981, in favor of plaintiff and against Howard Quam and Lester Quam (defendants). (See Ill. Rev. Stat. 1983, eh. 110, par. 12 — 601 et seq.) Defendants filed a response and affirmative defenses. On August 11, 1983, plaintiff filed a motion for summary judgment. After hearing argument of counsel, the trial court entered judgment in favor of plaintiff and against defendants in the amount of $25,413.05. Defendants have appealed.

During January of 1977, defendant Lester Quam was operating a motor boat in Broward County, Florida. This vessel was owned by his father, Howard Quam. It collided with another craft owned by plaintiff. Plaintiff filed suit against the defendants in the circuit court of Broward County, Florida. Defendants retained a Florida attorney, Phillip C. Asher. The case was set for trial on May 14, 1981. The parties and their attorneys appeared before the court. The court was about to proceed with jury selection when the court was advised that attorney Asher had made an offer of settlement which was $5,000 less than plaintiff’s counsel, Fred J. Ward, and plaintiff were willing to accept. The court indicated that attorney Asher should attempt to obtain more authority. Attorney Asher made a telephone call, then came back and told the court and attorney Ward that he had authority to settle the case for $25,000 if plaintiff would accept this offer. Plaintiff’s counsel did accept the offer and judgment was accordingly entered on May 14, 1981, for $25,000 in favor of plaintiff and against defendants.

Shortly thereafter, attorney Asher was discharged by defendant Howard Quam. Instead Mr. Quam employed William T. Laswell, who substituted as attorney for the defendants.

Attorney Laswell filed a motion to vacate the Florida judgment. This motion was denied by the Florida court. Defendant Howard Quam instituted proceedings against attorney Phillip Asher in the Supreme Court of Florida. Also, the defendants filed an action against attorney Asher in the United States District Court, Northern District of Florida. It appears that a motion for default judgment has been made against the defendants’ former attorney Phillip Asher, who has never responded to the complaint.

On September 8, 1981, the defendants, represented by attorney William Laswell, appealed from the judgment order entered in the circuit court of Broward County to the District Court of Appeals, Fourth District of Florida. This appeal was dismissed for lack of prosecution by said appellate court on May 26,1982.

In this court defendants contend that the law of Florida governed these proceedings and plaintiff may not register the judgment, which was obtained as a result of a fraud upon the Florida court resulting in a violation of defendants’ constitutional rights. Plaintiff takes the position that there was no fraud and no violation of constitutional rights of any kind, so that the Florida judgment should be duly registered in Illinois.

The issue here is whether an actual fraud was carried out against the circuit court of Broward County in Florida. Plaintiff correctly cites the decision of this court in Grant, Schon, Wise & Grant, P.C. v. R. W. Borrowdale Co. (1983), 114 Ill. App. 3d 89, 92, 448 N.E.2d 574, where this court held:

“When asked to register a foreign judgment, the forum court may constitutionally inquire into the proceedings of the sister State to determine whether such court had jurisdiction of the subject matter and of the parties. If this inquiry reveals an error which (1) renders the foreign judgment void according to the law of the foreign State, or (2) deprives the foreign court of jurisdiction over the contesting party according to the general constitutional principles of due process, the foreign judgment has no constitutional claim to full faith and credit.”

It appears clear from the above that we are not dealing with a situation which rendered the foreign judgment void according to the law of Florida or which deprived the Florida court of its jurisdiction in accordance with general constitutional principles of due process. The law of Illinois is also definite on this point. For example, in Grant this court carefully analyzed the situation and held that a denial of a continuance, even if erroneous or resulting from an abuse of discretion, did not render the judgment void under the law of Illinois. (114 Ill. App. 3d 89, 93.) Similarly, Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 165, 449 N.E.2d 812, shows that, “[a]n order is rendered void not by error or impropriety but by lack of jurisdiction by the issuing court.” The supreme court also stated at that point (96 Ill. 2d 159, 165):

“It is well established that once a court acquires jurisdiction, subsequent fraud, concealment, or perjury will not render its order void.”

Another authoritative decision to the same effect is James v. Chicago Transit Authority (1976), 42 Ill. App. 3d 1033, 356 N.E.2d 834. This court pointed out that if fraud occurs after the trial court acquires jurisdiction of the action, the resulting judgment is not void but voidable only. (42 Ill. App. 3d 1033, 1035.) Thus, it is abundantly clear that under the law of Illinois the judgment sought to be registered is not void but remains in full forcé and effect.

The same result is true under Florida law. In Truitt v. Truitt (Fla. App. 1980), 383 So. 2d 276, a judgment for dissolution of marriage was entered. The wife dismissed with prejudice her counterclaim to recover on a promissory note. The husband had testified that the signature on the note was riot his. More than two years later the wife brought action upon the note. The trial court dismissed the action with prejudice on the ground of res judicata. The Florida Court of Appeal considered the matter and affirmed the dismissal. The court reasoned that since the issue had been actually tried, or could have been tried, the judgment should not have been collaterally attacked.

Defendants cite Alexander v. First National Bank (Fla. App. 1973), 275 So. 2d 272. We find this decision, earlier than Truitt, reaches the same result. It should also be pointed out that Alexander and Truitt are concerned with conduct of one of the litigants, whereas the instant case involves alleged misconduct by defendants’ counsel.

Applying the holdings of the courts of Illinois and of Florida to this situation, it follows necessarily that the judgment in question was not subject to any infirmity under the law of Illinois or the law of Florida. Apparently this was the same determination reached by the Florida court when it denied defendants’ motion to vacate the judgment. Manifestly, the disagreement between the defendants and their former attorney, or even the lack of authority of the attorney to make an offer of settlement, does not constitute a fraud upon the Florida court which entered the judgment. That court had full and complete jurisdiction of the subject matter and of the parties. It follows that the summary judgment order appealed from for registration of the Florida judgment in Illinois was legal and proper in all respects. Said order is accordingly affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE LINN

text:
    JACQUELINE MAGNONE, Special Adm’r of the Estate of Jeffrey Magnone, Deceased, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (4th Division)
    No. 83—1913
    Opinion filed July 12, 1984.
    Rehearing denied August 16, 1984.

      John S. Bishof, Jr., and James P. Daley, both of Chicago, for appellant.
    Barrillo, Weiss & Moss, of Chicago (Paul Parker, of counsel), for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff brought an action for damages against defendant (the Railroad) and several of its employees for the wrongful death of her son. Following a bench trial, the Railroad was found negligent, and plaintiff’s decedent was found 25% comparatively negligent. Judgment was entered in the sum of $155,854.14, gross damages reduced by 25%. Judgment was entered against plaintiff in favor of the Railroad’s employees.

The Railroad appeals, claiming that the trial court’s decision was against the manifest weight of the evidence. Plaintiff cross-appeals from the finding that her decedent was 25% comparatively negligent.

We affirm the decision of the trial court.

Facts

On October 12, 1978, at approximately 10 p.m., plaintiff’s decedent was driving northbound on Wolf Road in Des Plaines, when he approached the railroad crossing of defendant, Chicago and North Western Transportation Company (Railroad). The crossing is guarded by automatic gates positioned to the immediate north and south of the tracks. Each gate is equipped with a bell, two pairs of red lights on each of three posts, and three additional individual red lights on the arm of each gate. Ideally, when activated by an approaching train, the bells sound, the red lights flash, and the arms gradually lower to extend across the two northbound lanes south of the crossing, and the two southbound lanes north of the crossing, thereby blocking access to the tracks.

Plaintiff’s first witness, James Johnston, a 41-year-old flight engineer for United Airlines, was present at the Wolf Road crossing at the time of the accident. Johnston stated that he routinely drives southbound on Wolf Road to get to work each evening.

On the evening of the occurrence, as Johnston approached the crossing, he noticed the red lights at the intersection begin flashing. As he started to slow down his car, he saw a train coming from his left at a speed of approximately 20-30 miles per hour, one-half block to 100 yards away. He noted that the arm of the gate was operating in an unusual manner, moving in a “slow hesitating motion.” Johnston stated that as he came to a stop, the arm continued to haltingly lower, bouncing approximately V-k feet before it came to a final resting position. Moreover, he stated that the train was actually entering the intersection and crossing the roadway before the arm was stationary.

Johnston recalled that while he was stopped facing southbound immediately prior to the occurrence, the speed of the descending crossing arm was abnormally slow. He stated that the reason he had specifically noted the slow speed of the arm was that he had been “playing a mind game in [him]self” thinking that he “could make it too [across the tracks] if [he] wanted to with no intention of doing it.” Johnston was thinking this as he observed the headlights of decedent’s car coming towards him from the opposite northbound lane, approximately one-half second prior to the collision.

Kendel Okon, a high school acquaintance of decedent’s, was present at the Wolf Road crossing as a passenger in her father’s van at 7:30 a.m. the morning of the collision. Okon testified that her father stopped the southbound van as it reached the railroad crossing because the arm of the gate started to lower. She noted that the arm, rather than making a smooth descent, went up and down three times before coming all the way down. She also observed that the arms of both the north and south gates were going through the same up and down motion.

Okon testified that after the gates finally came down, her father waited for a train to come, but no train ever came through the crossing. After five minutes of waiting, Okon’s father maneuvered around the still-lowered crossing arm and across the intersection.

Kurt Rossberger, a 28-year-old salesman," was an eyewitness to the collision. Rossberger was stopped in the inside southbound lane of the Wolf Road crossing, waiting for the approaching train to cross the intersection. There were no cars stopped in front of him. He had stopped in response to the red lights flashing and the gates beginning to lower. As he waited at the crossing, Rossberger noticed the headlights of decedent’s car bobbing up and down as they faced him from the inside northbound lane. This bobbing motion gave Rossberger the impression that decedent’s car was up on the railroad tracks. Rossberger could not recall if the south gate was down at the time of the collision. Rossberger testified that 10 seconds elapsed between the time the gates were finally down and the train entered the intersection.

Henry DePaepe, an employee of defendant Railroad since 1948, was leading maintainer in charge of the Wolf Road crossing in October 1978. He testified that he was called to examine the crossing one hour after the collision and that he conducted the examination alone. DePaepe’s examination consisted of “shunting the gates,” triggering the gates by placing a wire across the tracks to de-energize the relay rather than observing the operation of the gates in response to the actual approach of a train. He “shunted the gates” at three different distances from the crossing. At the first shunting, he could not observe the gates and determined that the crossing was operating “just by hearing it.” At the second shunting, some 500 feet from the crossing, he observed that the north gate, which blocked the southbound traffic, “went down.” He still did not observe the south gate, that which would have blocked decedent’s access to the tracks. At the third shunting, approximately 100 feet from the crossing, DePaepe observed that “both gates go down approximately the same time.” All the lights worked.

DePaepe then operated the gates once more with the manual switch. His observance as to the timing of the gates was that “they both went down at the same time.” He further observed that all the lights worked. The next morning, DePaepe was again present at the crossing and chanced to observe the operation of the gates in response to the actual approach of a train. He testified that the gates “operated just about the same.” A hypothetical was posed to De-Paepe in which the signal protection for the northbound traffic failed and the gate for the southbound traffic was operating. DePaepe’s opinion was that such a situation could not happen. He explained that the lights and the arms of the gates operate independently of each other, such that the coinciding of a light and arm malfunction on one gate would be highly unusual. He stated that if the lights on one side were not operational, and the lights on the other side were working but the arm did not go down, there would be two separate problems.

Three witnesses testified to being present at the accident scene the morning after the occurrence. Joseph Wolsztyniak, then district claim agent for defendant Railroad, photographed the scene. He then drove his car between the tip of the lowered gate and the median supporting post to determine if a car, such as decedent’s car, could pass through while the arm was down without damaging the gate or the median. He testified that it could be done.

Frederick Meyers and Joseph DePinto, two former classmates and friends of decedent’s, drove to the accident site upon learning of their friend’s death, arriving there at approximately 8:30 a.m. the morning following the occurrence. They both testified to witnessing four or five men working simultaneously at a silver-gray control box and the arms of the gates working very erratically. DePinto described the gates as “stuttering down” to a 45-degree angle, then back down and up again. He estimated this happened about 10 times. Meyers passed the scene an hour later that morning and saw that the men were still “working on it” and that the gates were still operating erratically. When he passed the crossing yet another V-k hours later, the workmen were still there.

The four crew members who were operating defendant Railroad’s train at the time of the accident testified at trial. Robert C. St. John, Vernon Lewis, and Paul Johnson, three of the Railroad’s employees, were named as parties defendant. Robert C. St. John, conductor, was seated on the right hand side of the lead engine at the time of the occurrence. St. John testified that as he approached the Wolf Road crossing, he was able to observe the gates operating from approximately 200 yards away. He stated that he first observed the north gate was down when he was 200 feet from the crossing. This testimony was contradicted by that of Vernon Lewis, brakeman, who was seated on the left side in the lead engine at the time of the incident.

Testifying for plaintiff, Lewis affirmed his earlier deposition testimony in which he stated that trees and bushes obscured his view of the Wolf Road crossing as the train approached the intersection and that “the only way you would see when you come, right, you have to be right there on the crossing.” He also stated, “You have to be almost across the crossing to be able to see around the corner.” The corner to which Lewis referred was the curve of the railroad tracks as they approach the Wolf Road crossing.

Paul Gregory Johnson, conductor, examined the crossing immediately after the accident. He found skid marks in the crossing between the northbound and southbound lanes. In his opinion, the marks were those of a heavy object which had been pushed or moved along the ground.

Jeff Randall, brakeman, was seated in the left side of the caboose at the time of the accident. Randall testified that he was able to observe the signal lights at the crossing operating when the train was approximately 150 feet from the intersection. He had observed that the three red lights on the arms of the gates were operating and in a horizontal position.

Plaintiff’s third rebuttal witness to testify over defendant’s objection was Thomas Bridges, a detective with the Chicago police department retained by plaintiff to investigate the accident scene. He conducted his investigation on June 1, 1980, some 20 months after the accident. Bridges testified that he found that the tiny holes or “bull’s-eyes” located on the side of the flashing light fixtures on the southeast corner of the Wolf Road crossing had been painted black or partially black. These lights were intended to be visible to an approaching train.

The trial court found in favor of the employee defendants as against plaintiff and against defendant Railroad in plaintiff’s favor. The court further found that plaintiff’s decedent was 25% comparatively negligent and reduced the judgment correspondingly. Defendant now appeals, and plaintiff cross-appeals.

Opinion

In a nonjury trial, the trial judge, as the trier of fact, is in a superior position to determine the credibility of the witnesses and to weigh their testimony; where his factual findings are not against the manifest weight of the evidence, they must be accepted on review. (Agrinetics, Inc. v. Stob (1980), 90 Ill. App. 3d 107, 412 N.E.2d 714.) On appeal, defendant argues that the trial court’s decision was against the manifest weight of the evidence, claiming as error the admission of the testimony of Kendel Okon, Joseph DePinto, Frederick Meyers and Thomas Bridges. Defendant further claims as error the trial court’s admission of certain testimony pertaining to damages. After a careful review of the record, we find that the trial court’s decision was not manifestly erroneous.

In the instant case, plaintiff alleged negligence. The essential elements of an action sounding in negligence are the existence of a duty of reasonable care owed plaintiff by defendant, breach of that duty, and injury proximately resulting from that breach. (Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 437 N.E.2d 334.) Preliminary to our determination of whether the trial court’s findings of negligence on the part of both the defendant and the plaintiff’s decedent were manifestly erroneous, we must rule on defendant’s claims of error to insure that all the evidence considered was competent.

Defendant first objects to the trial court’s admission of the testimony of Kendel Okon. Okon testified that on the morning of the accident the arms of the crossing gate were operating abnormally in a bouncing, halting manner, as if in response to an approaching train when none was in fact approaching. Defendant, citing Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929, objects on the grounds that testimony concerning the operation of the gate on a prior occasion when no train was present does not tend to prove that the gate failed when a train was present. While Churchill does state that faulty operation on a “later date” does not tend to prove that the signals were malfunctioning on the date in question, the case goes on to state that such evidence is admissible to rebut the testimony of an expert witness who has stated that the injury sued upon could not have been caused by the defendant’s conduct as alleged. 73 Ill. 2d 127, 143.

Here, DePaepe, defendant’s expert, examined the crossing gates by “shunting” them or triggering the automatic mechanism when no train was present. Based thereupon, he testified that the gates were operating simultaneously in response to the shunting, necessarily implying that the shunting mechanism was working properly. Okon testified that the gates were operating improperly by responding to the triggering mechanism when no train was present. Her testimony therefore directly rebutted that of the expert and, as such, was properly admitted.

Defendant next objects to the admission of the testimony of Joseph DePinto and Frederick Meyers on the grounds that it was irrelevant and not rebuttal. Defendant further claims that the testimony of these witnesses should not have been allowed because plaintiff did not disclose them in answer to an interrogatory.

In response to defendant’s first basis for objection, we note that the trial court found the testimony of these witnesses to be relevant and to be rebuttal. The trial judge based his finding on the fact that DePaepe testified the gates were working properly after the accident, and these witnesses testified that they were not. We see no error in this reasoning. Moreover, despite the conclusion in defendant’s brief that “it is obvious from the testimony of Messrs. DePinto and Meyers that plaintiff was aware of these witnesses on October 13, 1978,” there is no evidence in record that plaintiff knew these individuals to have knowledge of the facts “alleged in the complaint” at the time the interrogatory was propounded. Plaintiff did not offer these witnesses as occurrence witnesses nor as witnesses present at the scene immediately after the accident. Under Supreme Court Rule 213(c) (73 Ill. 2d R. 213(c)), plaintiff was under no duty to supplement answers to interrogatories that had been answered in good faith and were complete when made. (Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 389 N.E.2d 1374.) Absent any evidence that such was not the case here, we find that the trial court’s admission of this testimony was proper.

Defendant further objects to the trial court’s admitting and giving weight to the testimony of Thomas Bridges, who investigated the crossing on June 1, 1980. Specifically, Bridges testified that a couple of “bull’s-eyes,” holes on the flashers which reflected light back to the train, were painted over.

When the trial court is the trier of fact, every presumption will be accorded that the trial judge considered only competent evidence and discarded inadmissible evidence in reaching his conclusion. (Abraham Lincoln Memorial Hospital Corp. v. Gordon (1969), 111 Ill. App. 2d 179, 249 N.E.2d 311.) Here, this presumption is adequately supported by the record. When defendant objected to the admission of Bridge’s testimony, the trial judge repeatedly stated that his reason for admitting the testimony was to put the railroad on notice as to the problem. The trial judge specifically stated that he did not think the railroad “would have anything to do with painting peepholes” and that it could well be a sophisticated act of vandalism. Additionally, defendant admitted in closing argument that “the gates have nothing to do with the bull’s eyes ***.” In light of these statements, the admission of Bridge’s testimony did not constitute harmful error.

Having found that the testimony of Okon, DePinto, and Meyers was properly admitted, we may now look at all the evidence that was before the trial court to determine whether its finding was manifestly erroneous.

We note initially that the facts that the gates were ultimately down at the moment of impact and that the flashers were flashing at some point prior to impact are not dispositive. The dispositive issue here is whether the gates operated abnormally after the lights began flashing and prior to the moment of impact. The testimony adduced at trial showed (1) that the gates for the north and southbound traffic operated simultaneously and in a like manner, (2) that the arms of the gates could malfunction while the flashers worked properly, (3) that on the morning of the occurrence both gates were observed to be operating abnormally, (4) that at the time of the occurrence the gate for southbound traffic was operating in an erratic, halting and abnormally slow manner, and (5) that on the morning after the occurrence the gates were observed to operate in an erratic, abnormal manner. Defendant fails to negate these facts, essentially maintaining only that the arms worked simultaneously and ultimately lowered and that the flashers worked properly.

The decision in this case must necessarily be based upon circumstantial evidence, as no one observed the south gate at the crucial moments prior to the accident. Plaintiff, in proving her case by the use of circumstantial evidence, need not exclude all other possible inferences while creating a reasonable inference of the facts to be shown. (Campbell v. Northern Signal Co. (1981), 103 Ill. App. 3d 154, 430 N.E.2d 670.) After examining the evidence, we find that the trial court’s determination that defendant was negligent was not clearly against the manifest weight of the evidence. It will therefore not be disturbed on review.

Finally, defendant claims the trial court erred by allowing into evidence testimony of damages that was speculative and without foundation. The evidence to which defendant objects is the testimony of Mr. and Mrs. Magnone regarding their plans to move to Florida and to begin a distributorship business with plaintiff’s decedent.

Initially, defendant concedes that there is a presumption of pecuniary loss in a wrongful death action if the next of kin are lineal kinsmen of the decedent. We note further that lineal kinsmen are presumed, by reason of that relationship alone, to suffer substantial pecuniary loss from the wrongful death of a decedent, and actual loss need not be proved. (Baird v. Chicago, Burlington & Quincy R.R. Co (1976), 63 Ill. 2d 463, 349 N.E.2d 413.) Thus, parents are presumed to suffer substantial pecuniary loss from the wrongful death of their minor child. (63 Ill. 2d 454, 349 N.E.2d 413.) In Baird, the supreme court affirmed the award of $188,000 each for the wrongful deaths of two minors, 17 and 19 years old. The court noted that in cases where the deceased is a minor, pecuniary damages include the parents’ reasonable expectation-of benefits from the continuation of the child’s life in addition to the presumption of substantial loss. The Baird court qualified this acknowledgment with the fact that this latter presumption is not conclusive and that courts invoking it have buttressed it with supporting evidence of the decedent’s good health, industrious habits, and potential longevity. 63 Ill. 2d 463, 349 N.E.2d 413.

In the instant case, evidence adduced at trial showed that the decedent was in excellent health, had grown tremendously, both physically and mentally, during high school, and showed a promising aptitude for sports. He had completed several college preparatory courses in furtherance of his plans to attend college and had worked for his father, full-time during vacations and part-time during the school year, since he was 15 years old. This evidence is sufficient to buttress the presumption that decedent’s parents suffered substantial pecuniary loss by virtue of his wrongful death. Where, as here, there is sufficient competent evidence to support the damages awarded, it is presumed that only that evidence was considered by the trial court, and any error in admitting incompetent evidence is harmless. (General Electric Cablevision Corp. v. City of Peoria (1972), 8 Ill. App. 3d 948, 291 N.E.2d 295.) For these reasons, the damage award may stand.

Lastly, we consider plaintiff’s claim, asserted on cross-appeal, that the trial court’s finding that her decedent was 25% comparatively negligent was against the manifest weight of the evidence.

Contributory negligence is lack of due care for one’s own safety as measured by a reasonable-man standard; plaintiff is required to exercise that care which the reasonably prudent person would take to avoid injury in like circumstances. (Long v. City of New Boston (1982), 91 Ill. 2d 456, 440 N.E.2d 625.) A person may not knowingly expose himself to the danger of injury which might have been avoided by the exercise of ordinary care. (Stack v. Sears, Roebuck & Co. (1981), 102 Ill. App. 3d 397, 429 N.E.2d 1242.) Based on the testimony adduced at trial, it was not manifestly erroneous for the trial court to conclude that plaintiff’s decedent failed to exercise reasonable care and that he unnecessarily exposed himself to the danger which ultimately caused his death. The court therefore properly reduced plaintiff’s gross damages by the percentage of negligence attributable to plaintiff’s decedent, 25%, yielding a net damage award of $155,854.14.

For all of the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


author: JUSTICE LORENZ

text:
    COKER JOHNSON, Plaintiff-Appellee, v. UNITED NATIONAL INDUSTRIES, INC., Defendant-Appellant.
    First District (5th Division)
    No. 83—1597
    Opinion filed June 29, 1984.
    Michael J. Pavlicek, of Schaffenegger, Watson & Peterson, Ltd., of Chicago, for appellant.
    Lewis L. Hu, of Law Office of Robert C. Morton, of Chicago, for appel-lee.
   JUSTICE LORENZ

delivered the opinion of the court:

We granted defendant’s petition for leave to appeal under Supreme Court Rule 306(a)(l)(iii) (87 Ill. 2d R. 306(a)(l)(iii)) from the trial court’s order denying reconsideration of its earlier order, which denied defendant’s motion to quash service and dismiss plaintiff’s cause for lack of jurisdiction.

The sole issue on appeal is whether the trial court had jurisdiction over defendant on June 29, 1982, in order to vacate plaintiff’s voluntary dismissal entered on March 10, 1981.

The following facts are pertinent to the disposition of this appeal.

Plaintiff brought a products liability action against his employer, United National Industries, Inc., a Delaware corporation, in which he sought to recover damages for an injury he suffered as the result of his use of a textile waste picker machine on May 10, 1979. The machine was allegedly designed and/or manufactured by defendant. Summons was served upon United at the office of its registered agent on March 3, 1981. That same day, a notice of motion was sent to United’s registered agent by plaintiff’s attorney. In his motion, plaintiff sought leave to amend his complaint by dismissing defendant United and adding James Hunter Machine Company as defendant. (The record does not disclose whether United appeared on this motion.)

The trial court allowed plaintiff’s motion on March 10, 1981, at which time it ordered that “leave be and is hereby granted to plaintiff to amend his complaint by dismissing United National Industries, Inc., a Delaware corporation, as a party defendant and adding James Hunter Machine Company as a party defendant and for summons to issue forthwith.” The dismissal order was silent concerning the plaintiff’s ability to later set aside the order of dismissal and reinstate the cause as against United.

Plaintiff then filed an amended complaint naming the James Hunter Machine Company (Hunter), a Massachusetts corporation, as defendant. After Hunter was served on March 18, 1981, it filed its verified answer in which it admitted to being engaged in the manufacture, sale and distribution of machinery for use in the textile industry, but generally denied most of plaintiff’s allegations. Hunter’s motion for summary judgment alleged that it had never designed, manufactured or placed into the stream of commerce any machinery to United’s plant facilities. The motion for summary judgment was granted on June 29, 1982. At this time the trial court also ordered that its March 10, 1981, order which dismissed United as a party defendant be set aside and held for naught, and that the original complaint be reinstated as against defendant United with summons to issue forthwith.

On July 13, 1982, an alias summons was served upon United. Defendant filed a special and limited appearance and moved to quash the alleged service of summons and dismiss the cause of action for lack of jurisdiction, stating that it had been voluntarily dismissed by plaintiff 15 months prior to the June 29, 1982, reinstatement order. Defendant’s motion further alleged, inter alia, that because more than 30 days had elapsed since its dismissal the court had lost jurisdiction and had no power to reinstate a cause of action against it; that the motion presented by plaintiff to reinstate it was ex parte; and that the motion presented by plaintiff was not in the form of a petition pursuant to section 2 — 1401 (formerly section 72) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), and therefore could not impart jurisdiction upon the court.

Defendant’s motion to quash and dismiss for lack of jurisdiction was denied by the trial court on April 5, 1983, at which time defendant was ordered to file an answer to plaintiff’s complaint by April 28, 1983. On June 9, 1983, the trial court denied defendant’s motion for rehearing on its previous motion, as well as its request that the trial court amend its order of April 5, 1983, to reflect the certification of the involved question of law to the appellate court.

The issue presented on appeal is whether the trial court had jurisdiction over defendant on June 29, 1982, in order to vacate its previous order entered on March 10, 1981, and reinstate this cause of action against defendant when plaintiff had voluntarily dismissed defendant 15 months earlier.

Opinion

Defendant initially contends that the trial court erred in setting aside its order of voluntary dismissal entered on March 10, 1981, and reinstating this cause of action against it because the trial court did not have jurisdiction over it to do so.

Defendant relies principally on the supreme court’s decision in Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350, where the court stated:

“In involuntary non-suits the court may, in its discretion, set aside the order of dismissal and re-instate the cause. In ease of a voluntary non-suit upon motion of a plaintiff the court has no power to set aside the order of dismissal and re-instate the cause unless at the time the non-suit is taken leave is given the plaintiff to move to set it aside. [Citations.] The reason for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a non-suit, his only recourse is to begin his action anew.” 272 Ill. 541, 543, 112 N.E. 350. (Emphasis added.)

This Weisguth rule has been cited in many succeeding cases to establish generally that where a plaintiff takes a voluntary dismissal, the court granting the dismissal loses jurisdiction to set aside the dismissal and reinstate the cause unless leave was granted at the time of dismissal to file a motion to set aside the order and reinstate the case. See, e.g., People ex rel. Waite v. Bristow (1945), 391 Ill. 101, 62 N.E.2d 545; Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550; Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App. 3d 744, 391 N.E.2d 108; Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 376 N.E.2d 748; People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App. 3d 331, 376 N.E.2d 665; Nashlund v. Sabade (1976), 39 Ill. App. 3d 139, 350 N.E.2d 90; Fulton v. Yondorf (1944), 324 Ill. App. 452, 58 N.E.2d 640; Thompson v. Otis (1936), 285 Ill. App. 523, 2 N.E.2d 370.

Further, it is well established that plaintiff has an absolute right to voluntarily dismiss a defendant without prejudice prior to trial, and the court has no discretion to deny this motion for dismissal. (Hale v. Ault (1980), 83 Ill. App. 3d 78, 84, 403 N.E.2d 635.) In addition, section 24 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24a), now codified as section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217), provides that where an action is voluntarily dismissed by a plaintiff, the plaintiff has an absolute right to commence a new action within one year of the dismissal at trial court, or within the remaining statute of limitations, whichever is greater. (LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 744, 428 N.E .2d 711.) Although a plaintiff who obtains a voluntary dismissal under section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009), may not move for leave to reinstate his action unless he obtained leave so to move at the time the dismissal order was entered (see Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350), this does not prevent a trial court from vacating the dismissal order on its own motion during the pendency of the term or its equivalent. Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 364-65, 376 N.E.2d 748.

Defendant posits that Weisguth and the longstanding string of cases which have followed its rule, when read in conjunction with section 24 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24a), now codified as section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par 13 — 217), illustrates the policy of the Illinois courts that voluntary dismissals are to be “characterized” as final and appealable orders. This interpretation, defendant contends, would result in the trial court’s loss of jurisdiction over defendant 30 days after the plaintiff’s voluntary dismissal without leave to reinstate.

To view the situation otherwise, defendant contends, would be unfair to a defendant who had been voluntarily dismissed without leave to be reinstated given to plaintiff. A defendant in this situation would then be forced into a place of “limbo” to await the vacation of this voluntary dismissal order at any time plaintiff deemed appropriate.

Plaintiff conversely argues that Weisguth, which involved a case where the sole plaintiff dismissed the suit against the sole defendant, is totally inapplicable to the case at bar. Plaintiff contends that the trial court’s March 10, 1981, order dismissing defendant United and adding Hunter as a defendant served to create a multiple-defendant situation, causing the trial court to retain its jurisdiction over defendant even after its voluntary dismissal of defendant and absent leave given plaintiff to reinstate defendant.

As authority of its position, plaintiff cites Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 422 N.E.2d 1011, a case which, from the record, also appears to have been heavily relied upon by the trial court in formulating its decision to reinstate plaintiff’s complaint as against defendant on June 29, 1982. In Kalalinick, the appellate court found the trial court had retained jurisdiction to vacate plaintiff’s voluntary dismissal as to one of the multiple defendants involved and to reinstate the complaint as against another defendant even though the plaintiff had not requested leave to set aside the dismissal at the time it was entered.

Recognizing that originally under the Weisguth rule a voluntary dismissal was final and appealable in all instances where leave to reinstate was not given, it was the view of the Kalalinick court that the enactment of Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) served to overturn the rule established in Weisguth “to the extent that-rule has been applied to cases involving multiple issues or parties and that in such instances under Rule 304(a) the court has jurisdiction to vacate a voluntary dismissal and reinstate the complaint not only on its own motion [citation], but even on the motion of the plaintiff.” Kala-linick v. Knoll (1981), 97 Ill. App. 3d 660, 664, 422 N.E.2d 1011.

Defendant posits that the holding in Kalalinick was dictum because the defendant in the Kalalinick decision had already waived jurisdiction by making a general appearance and litigating the case on its merits. (97 Ill. App. 3d 660, 664.) Defendant also argues that this “dictum" was contrary to contemporary authority. Further, it is defendant’s position that even assuming arguendo that the Kalalinick decision does serve to hold the Weisguth rule inapplicable in a situation which deals with multiple defendants, it is still inapposite to the instant case, as here we are dealing with defendant’s status as a sole defendant at the time of its voluntary dismissal.

We too find Kalalinick inapplicable to our present case, as it is our interpretation that the trial court never intended to create a multiple-defendant situation when it ordered that:

“*** leave be and is hereby granted to plaintiff to amend his complaint by dismissing United National Industries, Inc. a Delaware Corporation, as a party defendant and adding James Hunter Machine Company as a party defendant and for summons to issue forthwith.” (Emphasis added.)

Although we realize that the fact situation in O.K. Electric Co. v. Fernandes (1982), 111 Ill. App. 3d 466, 444 N.E.2d 264, is slightly different from that of the case at bar, we have found this case to be instructive in our resolution of the issue whether this controversy involves multiple-defendants.

In O.K. Electric Co. v. Fernandes, plaintiff O.K. Electric appealed from an order dismissing Frank Fernandes, d/b/a Creative Home Builders (Fernandes), as a defendant and substituting T.D.B.J.M., Inc. Upon being served, and prior to answering plaintiff O.K. Electric’s complaint, original defendant Fernandes filed a motion to dismiss which alleged that plaintiff’s complaint had failed to state the correct parties and that plaintiff should be suing T.D.B.J.M., Inc., an Illinois corporation. Thereafter, the trial court granted Fernandes’ motion to dismiss and ordered T.D.B.J.M., Inc., substituted as a party defendant. Later, the trial court denied plaintiff’s motion to set aside its earlier substitution order.

In its resolution of defendant Fernandes’ objection to the court’s lack of jurisdiction to entertain the appeal based upon Fernandes’ argument that an order dismissing an individual defendant while retaining a corporate defendant was not appealable without the Rule 304(a) finding that there is no just reason for delaying enforcement or appeal, the appellate court in O.K. Electric Co. held that there were but two parties in existence when Fernandes filed his motion to dismiss. The court’s reasoning for this determination was that the order dismissing Fernandes as a party to the lawsuit “effectively terminated the litigation between the parties, thereby becoming a final judgment which determined absolutely their respective rights in the lawsuit.” (O.K. Electric Co. v. Fernandes (1982), 111 Ill. App. 3d 466, 469, 444 N.E.2d 264.) The appellate court went on further to state that the order substituting parties did “not operate to make this a suit involving multiple parties within the purpose of Rule 304(a) under these particular circumstances.” 111 Ill. App. 3d 466, 469.

Applying this rationale to our present case, we find nothing in this record to indicate that plaintiff intended to involve two original defendants in his litigation at the same time and in the same lawsuit, and we therefore reject plaintiff’s argument and find that United, at the time of its voluntary dismissal, was a sole defendant, and that therefore the Weisguth rule applies.

We recognize that the finality requirement of the Weisguth rule has come into question recently due to the appellate court’s decision in Kahle v. John Deere Co. (1983), 119 Ill. App. 3d 850, appeal al lowed (1984), 99 Ill. 2d 529, where the court held that a voluntary dismissal, without prejudice, is not a final and appealable order. 119 Ill. App. 3d 850, 851.

The Kahle court based its “reluctant” decision on two recent supreme court decisions, Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112, cert. denied (1983), 464 U.S. 936, 78 L. Ed. 2d 311, 104 S. Ct. 345, and Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480, dealing with dismissals for lack of prosecution and finding such dismissals not to be final and appealable orders because “the plaintiffs had an absolute right to refile the action against the same party or parties and to reallege the same causes of action. [Citations.]” (Flores v. Dugan (1982), 91 Ill. 2d 108, 112-13.) Because this same absolute right to refile an action existed for the plaintiff taking a voluntary dismissal, without prejudice, in Kahle, the court felt obliged to follow the Flores and Wold decisions, noting “there has been no determination of the issues and fixing absolutely and finally the rights of the parties in the lawsuit, nor has there been any determination on the merits, so that all that remains is execution of the judgment.” Kahle v. John Deere Co. (1983), 119 Ill. App. 3d 850, 852.

However, in the present case, we find that, as a direct extrapolation of the reasoning behind the Flores, Wold and Kahle decisions, plaintiff’s voluntary dismissal of defendant on March 10, 1981, became a final order on March 10, 1982, because plaintiff failed to exercise his absolute right to refile his action within one year of his dismissal of United under section 24 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24a), now codified in section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217). Thus, the trial court lacked jurisdiction over defendant to enter its June 29, 1982, order reinstating plaintiff’s original cause of action as against defendant. We therefore vacate the trial court’s order of June 29, 1982.

Order vacated.

MEJDA, P.J., and SULLIVAN, J., concur.

       Justice Kenneth E. Wilson heard oral argument in this case. Following his death Presiding Justice James J. Mejda was substituted and has listened to the tapes of the oral argument and read the brief and record.


author: JUSTICE JOHNSON

text:
    THE CECO CORPORATION, Plaintiff-Appellant, v. THE BANK OF HICKORY HILLS, Trustee, et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—1041
    Opinion filed June 28, 1984.
    Wesley G. Hall, Eugene R. Wedoff, and Benjamin A. Streeter III, all of Jenner & Block, of Chicago, for appellant.
    Mitchell S. Goldgehn and Nathan H. Lichtenstein, both of Greenberg, Keele, Lunn & Aronberg, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, the Ceco Corporation (Ceco), appeals an order of the trial court dismissing its complaint for foreclosure of a mechanics’ lien against defendant, the Bank of Hickory Hills (the Bank), on the ground that a necessary party was not named in the complaint. The sole issue on appeal is whether the trial court erred in refusing to allow Ceco to amend its complaint to name the correct trust number.

We reverse and remand.

On May 29, 1980, Ceco filed a complaint against defendant Bank, Virgo Custom Builders (Virgo), and the Worth Bank and Trust Company. Ceco alleged that it is in the business of furnishing and erecting steel joists. Defendant Bank was the trustee of trust No. 1149, which consisted of real estate in Palos Hills. Virgo, the general contractor, entered into a contract with plaintiff on October 26, 1978, in which plaintiff agreed to supply and erect steel joists on the property for a price of about $55,000. Plaintiff completed its work on May 30, 1979, but Virgo paid it only $19,405, with $35,595 owing. On August 10, 1979, plaintiff served notice on both banks that the work had been completed and that an amount was owing. On September 17, 1979, plaintiff recorded its claim for lien.

Plaintiff’s complaint contained three counts: count I sought to foreclose its mechanics’ lien; count II was a breach of contract action against Virgo; and count III sought recovery against the banks under a quantum meruit theory.

On July 3, 1980, the Bank and the Worth Bank and Trust Company moved to strike and dismiss counts I and III of plaintiff’s complaint on a theory that the complaint was insufficient at law. Defendants alleged that plaintiff’s complaint alleged no privity or contractual relationship between Virgo and the owner of the property and between plaintiff and defendants.

On July 19, 1980, Thomas Barnett, a subcontractor of Virgo, filed a mechanics’ lien foreclosure complaint against Virgo, the banks, Ceco and other subcontractors. The Barnett case was consolidated with that of Ceco on July 27,1981.

On April 15, 1982, defendants filed an amended motion to strike and dismiss counts I and III of Ceco’s complaint, alleging that the complaint was insufficient. Defendants claimed that the Bank, as trustee under trust No. 2250, had not been joined as a proper party. On March 10, 1980, the subject property of trust No. 1149 had been transferred by the Bank to trust No. 2250. On June 15, 1982, the trial court granted defendants’ motion to strike and dismiss with prejudice. On April 8, 1983, the court denied plaintiff’s motion to reconsider and certified its order as final and appealable. Plaintiff appeals.

Defendant Bank argues that because of Ceco’s failure to name trust No. 2250 as a necessary party defendant, the action is barred by sections 9 and 11 of the mechanics’ lien statute (hereinafter the Act) (Ill. Rev. Stat. 1981, ch. 82, pars. 9, 11), since it does not name all parties in interest within the 2-year statutory period. Ceco’s naming of the Bank as trustee under trust No. 1149 does not satisfy the statutory requirement because three months prior to the filing of the complaint ownership of the property in question had been transferred to trust No. 2250.

Additionally, the Bank asserts that Ceco’s reliance on section 2— 401(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 401(b)) is inapplicable in this case because it does not address naming the wrong party as was done here. Further, although Thomas Barnett, the subcontractor whose claim was consolidated with that of Ceco, named the Bank as trustee for the correct trust number (trust No. 2250), Ceco is not excused from meeting the statutory requirements. The Act (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.) provides an extraordinary remedy and should be strictly construed. The Bank concludes that there is no statutory or case law which permits Ceco to amend its complaint as it sought to do here.

We reject the Bank’s argument. We believe that resolution of the issue in this case is to be determined according to the procedural rules governing amendment of civil complaints. The Code of Civil Procedure provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense, or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(a).

Ceco argues persuasively that the erroneous trust number set forth in its complaint was merely a misnomer and that the proper and necessary party (the Bank) was at all times before the court. Ceco points out that its obvious intent was to name the Bank in its capacity as trustee for the property in question. Further, the Bank was at all times aware of the true nature of the proceeding, since a consolidated claim arising from the same transaction as that of Ceco named the correct trust number and the Bank in its capacity as trustee. Additionally, since it was the Bank itself that transferred the property from trust No. 1149 to trust No. 2250, it can be presumed that the Bank was more familiar with the history of the trust than Ceco would be.

As stated earlier, proceedings under the mechanics’ lien statute, like all civil proceedings, except as noted in section 1 — 108(b) of the Code of Civil Procedure, are governed by the procedural rules embodied in that code (Ill. Rev. Stat. 1981, ch. 110, par. 1 — 101 et seq.). Ceco asserts that support for its argument that it should have been permitted to amend its complaint to show the correct trust number can be found in the following section of the Code of Civil Procedure:

“A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person ***, even though he or she was served in the wrong capacity ***; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction *** involving or concerning .him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ***.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — -616(d).

The Bank was trustee for both trust Nos. 1149 and 2250. Therefore, the Bank was the proper party for service of process and was a necessary party in any judicial proceeding regarding either trust. The Bank was present before the court under the correct trust number in the consolidated action and can hardly claim to have been unaware of the nature of the proceedings.

Amending the pleadings to name the correct trust number would not have prejudiced any substantial right of defendant Bank. Further, since the rules of practice and procedure followed in all civil cases are applicable here, the trial court should have permitted Ceco to amend its complaint. (Malkov Lumber Co. v. Serafine Builders, Inc. (1971), 1 Ill. App. 3d 543, 550, 273 N.E.2d 654, 659.) Equity and justice require this result in order to prevent the loss of a legitimate claim for a lien on the basis of an overly technical construction of procedure and pleadings. 1 Ill. App. 3d 543, 550.

This result does not contravene case law which calls for strict construction of the mechanics’ lien statute with respect to the requirements upon which the right to a lien is based. (Malkov Lumber Co. v. Serafine Builders, Inc. (1971), 1 Ill. App. 3d 543, 550.) The Bank urges this court to construe the Act strictly. However, strict construction of the Act does not mean that procedural rules are to be strictly construed in the manner urged by the Bank. To do so would result in a separate set of procedural rules not only for the mechanics’ lien statute, but also for every other statutory enactment or revision of the Illinois civil statutes. This is contrary to the purpose of the legislature in enacting the Code of Civil Procedure.

For the reasons discussed, we hold that the trial court acted improperly in refusing to allow Ceco to amend its complaint to name the correct trust number. The trial court’s order is therefore reversed and the cause is remanded with instructions that it be reinstated and that Ceco be permitted to amend the complaint.

Reversed and remanded, with directions.

LINN, P.J., and ROMITI, J., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF LAURA JO KITCHEN, Petitioner-Appellee, and HAROLD LLOYD KITCHEN, Respondent-Appellant.
    Third District
    No. 3-83-0679
    Opinion filed July 27, 1984.

      Kathy Olivero and Douglas Olivero, both of Louis E. Olivero, of Peru, for appellant.
    Matthew A. Maloney, of Pierson & Maloney, of Princeton, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Respondent, Harold Kitchen, appeals from an order of the circuit court of Bureau County granting relief on petitioner Laura Jo (Kitchen) Curtis’ petition for rule to show cause why the respondent should not be held in contempt of court. The court’s order recites, inter alia, that the Bureau County Circuit Court has continuing subject matter and personal jurisdiction in this suit and that Harold Kitchen was in criminal contempt of court for violating the court’s previously entered custody order. The court ordered that the respondent appear in court on a rule to show cause, that the respondent restore custody of the parties’ daughter, Patricia Ann, to the petitioner, and that the respondent pay $2,600 in attorney fees and costs.

In his appeal, respondent raises two issues: (1) whether this court has jurisdiction to hear this appeal; and (2) whether the trial court properly exercised subject matter jurisdiction.

The marriage of Harold and Laura Jo was dissolved on April 22, 1980, in the circuit court of Bureau County, Illinois. At a subsequent hearing, temporary custody of Patricia Ann was granted to Laura Jo, with reasonable visitation rights to Harold. Harold moved to Montgomery County, Texas, in 1981. Thereafter Laura Jo moved to Lincoln, Nebraska, and filed a petition for leave to remove Patricia to Nebraska in the Bureau County Circuit Court on April 25, 1983. Although a hearing date was set for May 19, 1983, the record fails to indicate that any action was pursued on that petition. On July 22, 1983, Harold filed a petition to modify the Illinois custody order in the district court of Montgomery County, Texas. This was followed by a petition for rule to show cause filed by Laura Jo in Bureau County, Illinois, on August 12, 1983. Laura Jo’s petition recited that Harold had refused to return Patricia Ann to Laura Jo’s custody anid had, instead, commenced a lawsuit in Texas to obtain custody. In support of the petition, petitioner attached a copy of a document signed by the parties on June 25, 1983. The document recites that the parties agreed to a six-week period of visitation by Patricia Ann with her father in Texas beginning June 25, 1983. Harold agreed to return Patricia Ann to Laura Jo on August 6,1983.

On August 25, 1983, the Texas court heard Harold’s petition to modify and took the custody matter under advisement pending the outcome of the Illinois court’s decision on the question of its subject matter jurisdiction respecting Laura Jo’s show-cause petition. Although the Texas court granted physical custody of Patricia Ann to Harold pending its ruling in that lawsuit, the court specifically recited that it was not entering a ruling with respect to permanent or temporary custody at that time.

On September 16, 1983, the Bureau County Circuit Court heard testimony on Laura Jo’s petition for rule to show cause. Harold’s attorney filed a special and limited appearance and appeared in court. He did not participate in the proceeding when the court found that it had personal and subject matter jurisdiction to hear the pending matter. At the completion of testimony, the court entered its order granting the relief requested by Laura Jo, and a timely notice of appeal was filed by Harold.

The parties initially dispute the jurisdiction of this court. Harold argues that his appeal is authorized by Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)), from an interlocutory order granting an injunction. Laura Jo disagrees, contending that she did not seek injunctive relief in her petition for a rule to show cause, and further, that it would be antagonistic to the ends of justice to permit the noncustodial parent to wrongfully deny the custodial parent of custody and then confer appellate jurisdiction upon the entry of an order requiring him to comply with a previously entered custody order. We agree with the petitioner that this court lacks appellate jurisdiction.

Essentially, the order entered seeks to enforce the temporary custody order entered by the Bureau County court in November of 1980. The court’s exercise of its contempt power to enforce its order by requiring respondent to pay attorney fees and costs and appear in court to show why he should not be punished for criminal contempt does not render the order final or appealable. An order imposing punishment for contempt must first have been entered by the trial court. Then, if the contemnor seeks to exercise his right of appeal to this court, he should do so under Rule 303 (94 Ill. 2d R. 303). (Avis Plumbing & Heating Contractors Corp. v. McCormick Theological Seminary (1971), 131 Ill. App. 2d 603, 268 N.E.2d 472.) Punishment for contempt of court has not yet been imposed in this case. Thus, an appeal from final judgment under Rule 303 does not lie.

Nor do we find sufficient compliance with Supreme Court Rules authorizing interlocutory appeals to grant an appeal from the order in this case. As a rule interlocutory orders may not be appealed unless one of the exceptions set forth in Supreme Court Rules 306 through 308 applies. (Lewis v. Canty (1983), 115 Ill. App. 3d 306, 450 N.E.2d 864.) Appeals from interlocutory custody orders generally must proceed pursuant to Rule 306. However, since the respondent in this case has not filed an application for leave to appeal, he may not rely upon Rule 306(a)(l)(v) (94 Ill. 2d R. 306(a)(l)(v)).

Instead, respondent theorizes that an interlocutory appeal as of right lies under Rule 307(a)(1) where, as here, one party is effectively enjoined from certain conduct respecting the minor child or is directed to take certain action to comply with a custody determination. If such were the case, Rule 307(a)(1) would obviate Rule 306(a)(l)(v), which is specifically directed to appeals of interlocutory custody orders. It is clear to us that the supreme court carefully phrased Rule 306 to avoid the interpretation proposed by respondent by providing that the procedure outline therein applies “if the appeal of [interlocutory custody] orders is not otherwise specifically provided for elsewhere in these rules.” (Emphasis added.) The generic reference to “injunctions” in Rule 307(a)(1) is not sufficiently specific to override the need for an application for leave to appeal in custody matters as required by Rule 306. See In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137 (plaintiff’s appeal of final custody order under Rule 304(a) found improper. Since other issues in dissolution proceeding were reserved for later consideration, plaintiff could pursue interlocutory appeal only under Rule 306(a)(l)(v)).

Finally we believe that the public policy of this State is furthered by restricting interlocutory appeals in custody matters to those cases which, in the sound discretion of the reviewing court, may be resolved without undue disruption to the family members involved in the dispute. In determining whether granting leave to appeal a temporary custody order is in the best interests of the child, we are especially mindful of this State’s long-standing policy against shuttling the child from one contesting parent to the other and leaving the custody determination in a constant state of limbo. (See Collings v. Collings (1970), 120 Ill. App. 2d 125, 256 N.E.2d. 108 (cited with approval in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421).) Where the child’s current environment is not clearly harmful, courts of review will not countenance protracted litigation of custody matters to the extent that such can be avoided by denying leave to appeal. No facts have been presented in the instant case to indicate that the best interests of Patricia Ann would not be better served by denying leave to appeal in this case and thereby promoting some stability in her custodial situation as determined by the trial court’s temporary order. Accordingly, we hold that no basis in law or reason exists for extending the scope of appeals as of right to the case before us; and, insofar as the respondent has failed to pursue a discretionary interlocutory appeal, this court lacks jurisdiction to rule on the merits of this case.

Notwithstanding our finding that appellate jurisdiction was not properly invoked in this case, we choose to address the jurisdictional issue presented. (See Lewis v. Canty (1983), 115 Ill. App. 3d 306, 450 N.E.2d 864.) The Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1981, ch. 40, par. 2101 et seq.) provides guidelines by which the jurisdictional issue before us may be resolved. Section 4 of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104) recites: “(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if: *** 2. it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships ***. (b) A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.” Obviously, the Act permits some discretion in the trial court’s determination of its “jurisdiction” to ensure that litigation concerning the child’s custody takes place in the forum where the ties between the State and child and his family are the closest. See In re Marriage of Thompson (1983), 96 Ill. 2d 67, 449 N.E.2d 88.

In our opinion, the provisions recited above are adequate authority for affirming the Bureau County Circuit Court’s determination that it had continuing jurisdiction to rule on the petitioner’s motion for rule to show cause. Although no final custody order has been entered in this case, the parties remain subject to temporary custody orders entered in the dissolution proceeding pending in this State. Assuming that Laura Jo’s petition for leave to remove Patricia Ann from this State was filed contemporaneously with their move to Nebraska, it would appear that Laura Jo and the minor child had resided in this State within six months of the contempt proceedings. Evidence of the child’s well-being during the period between the entry of the only custody order — i.e., the Illinois temporary custody order — and the instant contempt proceeding could be more readily documented from sources in Illinois than in any other State. While the State of Texas was an available forum, it is clear from the record of proceedings that the Texas district court chose to give deference to the Illinois court on the jurisdictional question. Neither party sought to invoke the jurisdiction of a Nebraska court. Laura Jo appeared personally in the Bureau County Circuit Court and presented testimony in support of her motion for a rule to show cause. In our opinion, the best interests of Patricia Ann are served — and the requirements of the Uniform Child Custody Jurisdiction Act are satisfied — by permitting Laura Jo to proceed with her motion in the Illinois circuit court. We find no abuse of the Bureau County Circuit Court’s discretion in ruling that it had continuing subject matter jurisdiction on these facts.

For the foregoing reasons, we dismiss the appeal and remand this cause for further proceedings.

Appeal dismissed; cause remanded.

HEIPLE and STOUDER, JJ., concur.