Farrar v. Jacobazzi

614 N.E.2d 259, 245 Ill. App. 3d 26, 185 Ill. Dec. 125, 1993 Ill. App. LEXIS 427
CourtAppellate Court of Illinois
DecidedMarch 29, 1993
Docket1-91-2856
StatusPublished
Cited by10 cases

This text of 614 N.E.2d 259 (Farrar v. Jacobazzi) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farrar v. Jacobazzi, 614 N.E.2d 259, 245 Ill. App. 3d 26, 185 Ill. Dec. 125, 1993 Ill. App. LEXIS 427 (Ill. Ct. App. 1993).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiffs, Michael J. and Epifanía R. Farrar, brought an action against defendants, Joseph and Mildred Jacobazzi, .to recover for the damages they sustained in reliance upon certain alleged misrepresentations defendants made in order to induce plaintiffs to purchase their home. On the day of trial, plaintiffs presented a motion to continue or, in the alternative, for a voluntary dismissal. Both motions were denied and the trial judge dismissed plaintiffs’ complaint for want of prosecution. On appeal, plaintiffs argue: (1) that the trial judge erred in denying their motion for a voluntary dismissal because a plaintiff has an absolute right to dismiss his or her case at any time prior to trial; and (2) that the trial judge erred in dismissing plaintiffs’ cause for want of prosecution “with prejudice” because a trial judge does not have the power to enter such an order “with prejudice.”

On May 8, 1989, plaintiffs filed a one-count complaint against defendants. Plaintiffs alleged that on or about January 11, 1988, they entered into a contract for the purchase of defendants’ residence. Plaintiffs assert that defendants represented to them that the basement of the residence “was free from flooding and water intrusion” when,- in fact, defendants knew that the basement had previously suffered severe flooding. Plaintiffs maintain that they relied upon the representations of the defendants and, as a result, have brought this suit to recover the cost of repairing and waterproofing their basement.

A general summary of the procedural history leading up to the dismissal of plaintiffs’ complaint for want of prosecution is as follows. On July 7, 1989, a default order was entered against defendants for failure to answer plaintiffs’ complaint. Defendants then filed a motion to vacate the default and a motion to dismiss plaintiffs’ complaint. On July 13, 1989, an agreed order was entered vacating the default. Plaintiffs were given 28 days to answer the motion to dismiss and defendants were granted 21 days thereafter to respond. After plaintiffs were granted two continuances, they answered defendants’ motion on October 10, 1989. Defendants then received one continuance before responding to plaintiffs’ answer on November 13, 1989. On December 11, 1989, defendants’ motion to dismiss was denied. On February 20, 1990, defendants filed their answer to plaintiffs’ complaint.

There were several continuances over the next months due, among other things, to the death of one of the defendants, Joseph Jacobazzi, on March 19, 1990, and a knee injury to plaintiffs’ attorney. On November 29, 1990, plaintiffs’ complaint was dismissed for want of prosecution. On December 19, 1990, the dismissal was vacated and the case was set for trial on February 20,1991.

On February 15, 1991, pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237), defendants filed a notice to compel plaintiffs to appear and testify in court on the trial date. On or about February 17, 1991, plaintiffs served on defendants an emergency motion to continue trial due to plaintiffs’ alleged inability to locate a necessary witness. Plaintiffs’ emergency motion was denied on February 19, 1991. Plaintiffs immediately served notice on defendants informing them that on the morning of trial, February 20, 1991, they would renew their motion to continue, or in the alternative, ask for a voluntary dismissal. On February 20, 1991, the trial judge denied plaintiffs’ renewed motion for continuance and denied their motion for a voluntary dismissal. The judge then orally dismissed the case for want of prosecution and stated that “I am not going to allow you to do by voluntary dismissal what I would not allow you to do by a motion to continue trial.” Subsequently, plaintiffs received a postcard from the circuit court informing them of the dismissal for want of prosecution.

Plaintiffs then filed a motion to vacate the dismissal. On July 29, 1991, the trial judge denied plaintiffs’ motion to vacate and entered a written order. The order declared that the dismissal for want of prosecution had been entered “with prejudice due to the matter having been marked final for trial on prior occasions.” Additionally, the order explained that plaintiffs’ motion for a voluntary dismissal had been denied because “it was presented on the day of trial without proper prior notice and without payment or tender of costs.”

We note that the “half-sheet” is missing and not a part of the record. Additionally, there is no report of proceedings in the record for us to review. Defendants have filed a proposed report of proceedings in which they assert that defendants’ attorney objected at trial to plaintiffs’ motions to continue and for voluntary dismissal on the grounds that plaintiffs failed to answer defendants’ Rule 220 interrogatories, the case already had been continued numerous times, and defendants were not given proper notice of the motions.

Finally, although not mentioned in either party’s brief, it appears from reviewing plaintiffs’ reply in support of their motion to vacate that they have refiled their case pursuant to section 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13— 217 (now 735 ILCS 5/13 — 217 (West 1992))) trader docket number 91— M1 — 133958 and are asking us to insure that this refiled case not be dismissed as a result of the trial judge’s erroneous dismissal for want of prosecution “with prejudice.”

The first question to be addressed on appeal is whether the trial judge’s denial of plaintiffs’ motion for a continuance was an abuse of discretion. Defendants assert that the trial judge properly denied plaintiffs’ motion for continuance because plaintiffs did not attach a supporting affidavit to the pleading. On appeal, plaintiffs have not challenged the denial of their request for continuance and, therefore, it is not an issue we need address.

©1 Nonetheless, we are satisfied that the trial judge did not abuse his discretion. The trial judge has broad discretion to grant or to deny a motion for continuance, and his or her decision will not be reversed absent an abuse of that discretion. (Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 1002, 407 N„E.2d 799, 801.) According to Supreme Court Rule 231 (134 Ill. 2d R. 231), a motion for continuance which is based upon the unavoidable absence of material evidence “shall be supported by the affidavit of the party so applying or his authorized agent.” If plaintiff does not include an affidavit in support of his motion to continue, a denial of that motion seldom will be found to be an abuse of discretion. Feder, 85 Ill. App. 3d at 1003, 407 N.E.2d at 801.

In the instant case, plaintiffs requested a continuance due to the unavailability of a necessary witness. Plaintiffs did not attach, however, a supporting affidavit to their motion for continuance. Therefore, we believe that on this ground alone plaintiffs’ motion for continuance was properly denied. See Howard v. Francis (1990), 204 Ill. App. 3d 722, 726-27, 562 N.E.2d 599, 602 (trial court’s denial of plaintiff’s motion for continuance based upon the alleged unavailability of expert witness was not abuse of discretion where no affidavit supported motion).

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Bluebook (online)
614 N.E.2d 259, 245 Ill. App. 3d 26, 185 Ill. Dec. 125, 1993 Ill. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farrar-v-jacobazzi-illappct-1993.