12/27/961-96-0015JOSEPH CIERS,                      )    Appeal from the                                   )    Circuit Court of          Plaintiff-Appellant,     )    Cook County.                                   )          v.                       )                                   )    O.L. SCHMIDT BARGE LINES, INC.,    )    Honorable                                   )    Arthur A. Sullivan, Jr.,          Defendant-Appellee.      )    Judge Presiding.     PRESIDING JUSTICE HARTMAN delivered the opinion of the court:     Plaintiff Joseph Ciers appeals from the circuit court ordergranting defendant's motion for summary judgment based upon thestatute of limitations, raising as issues whether (1) defendantshould be equitably estopped from asserting a statute oflimitations defense; (2) defendant waived the statute oflimitations defense; and (3) the statute of limitations should beequitably tolled.     On January 23, 1985, Ciers, a tankerman, was injured afterfalling on the deck of a barge owned by defendant O.L. SchmidtBarge Lines (Schmidt).  On December 10, 1986, Ciers filed a threecount complaint based upon The Jones Act, 46 U.S.C. �688, forfailure to provide a seaworthy vessel, negligence, and maintenanceand care.  On July 31, 1990, Ciers' complaint was voluntarilydismissed without prejudice.  On July 30, 1991, he filed a newcomplaint, pursuant to section 13-217 of the Code of CivilProcedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-217, currentversion at 735 ILCS 5/13-217 (West 1994)), containing the sameallegations and adding a common law claim of negligence.     On October 25, 1991, Schmidt filed its answer and affirmativedefenses, contending Ciers' exclusive remedy was under theLongshore and Harbor Workers' Compensation Act, 33 U.S.C. �905(b)(the LHWCA).  Schmidt thereafter successfully moved for partialsummary judgment as to Ciers' three Jones Act counts.  The court'sNovember 5, 1993 order granting Schmidt's motion for partialsummary judgment stated that "plaintiff's action shall proceed asa negligence action only as provided in 33 U.S.C. �905(b), [theLHWCA]."  Trial was set thereafter for May 5, 1995.     On April 27, 1995, Schmidt successfully moved to continue thetrial date and for leave to file an additional affirmative defense,based on a federal three-year statute of limitations, (46 U.S.C.�763(a)), and thereafter was granted leave to file an amendedanswer to include this additional affirmative defense.  On May 15,1995, Schmidt moved for summary judgment based upon the statute oflimitations.  Ciers replied to the motion for summary judgment,requesting the circuit court to toll the statute of limitations orto find that Schmidt waived the statute of limitations defense. Following argument, the court granted Schmidt's motion for summaryjudgment.                                       I     Ciers initially contends equitable principles of estoppeldictate that he be allowed to pursue his cause of action.  Schmidtmaintains Ciers has failed to prove equitable estoppel.      A motion for summary judgment should be granted only when thepleadings, depositions, admissions, and affidavits on file, if any,show that there is no genuine issue of material fact and that themoving party is entitled to judgment as a matter of law.  735 ILCS5/2-1005 (West 1994).  Summary judgment is a drastic measure andshould be used only when the right of the moving party is clear andfree from doubt.  Loyola Academy v. S & S Roof Maintenance, Inc.,146 Ill. 2d 263, 271, 586 N.E.2d 1211 (1992).  This court reviewssummary judgment orders de novo.  Zoeller v. Augustine, 271 Ill.App. 3d 370, 374, 648 N.E.2d 939 (1995); Demos v. National Bank ofGreece, 209 Ill. App. 3d 655, 659, 567 N.E.2d 1083 (1991).     Equitable estoppel arises through a party's voluntary conductwhereby he is precluded from asserting his rights against anotherwho in good faith relied on such conduct and was thereby led tochange his position to his detriment.  Phillips v. Elrod, 135 Ill.App. 3d 70, 74-75, 478 N.E.2d 1078 (1985), citing Slavis v. Slavis,12 Ill. App. 3d 467, 473, 299 N.E.2d 413 (1973); see Vaughn v.Speaker, 126 Ill. 2d 150, 533 N.E.2d 885 (1988).     Ciers contends Schmidt should be estopped because it did notobject to his voluntary dismissal.  No words or conduct by Schmidtamounting to a misrepresentation or concealment of material factsis suggested, nor is there any showing that Schmidt induced Ciersto dismiss the case voluntarily.  Cf. Witherell v. Weimer, 118 Ill.2d 321, 515 N.E.2d 68 (1987).  Ciers also focuses on Schmidt'sconduct after the filing, claiming that it participated in thelitigation and did not raise its affirmative defense until the eveof trial.  Such conduct, after the statute of limitations expired,however, cannot be used to establish estoppel.  Sanders v. ChicagoTransit Authority, 220 Ill. App. 3d 505, 508-09, 581 N.E.2d 211(1991).     Ciers also points to Schmidt's failure to object to hisvoluntary dismissal where it knew he intended to refile.  Ciers,however, had an absolute right to voluntarily dismiss the casewithout prejudice prior to trial.  See Raper v. St. Mary'sHospital, 181 Ill. App. 3d 379, 536 N.E.2d 1342 (1989).  Schmidthad no duty to inform Ciers of the consequences of his dismissaland defense counsel's failure to alert opposing counsel of lawbearing on his case cannot support an estoppel.  Greene v. Helis,252 Ill. App. 3d 957, 962, 625 N.E.2d 162 (1993).  Estoppel isinappropriate in the present case.                                    II     Ciers next contends that Schmidt's active participation inthis litigation results in a waiver of his statute of limitationsdefense.     Waiver is the voluntary and intentional relinquishment of aknown right by conduct inconsistent with an intent to enforce thatright.  Vershaw v. Northwestern National Life Insurance Co., 979F.2d 557, 560 (7th Cir. 1992); Vaughn v. Speaker, 126 Ill. 2d 150,533 N.E.2d 885 (1988).  Waiver can arise either expressly or byconduct inconsistent with an intent to enforce that right. Phillips v. Elrod, 135 Ill. App. 3d 70, 74, 478 N.E.2d 1078 (1985). The party claiming an implied waiver has the burden of proving aclear, unequivocal and decisive act of its opponent manifesting anintention to waive its rights.  Greene v. Helis, 252 Ill. App. 3d957, 962, 625 N.E.2d 162 (1993).       Ciers contends Schmidt's conduct is inconsistent with anintent to enforce the statute of limitations where it activelyparticipated in the litigation since 1986; did not object to thevoluntary dismissal; answered the refiled complaint; participatedin discovery; requested and received an order acknowledging hisright to pursue a 33 U.S.C. �905(b) claim; made no effort to vacatethis order; and did not raise its affirmative defense until the eveof trial.  Schmidt properly maintains, however, his actionspursuant to the first complaint cannot be construed a waiver of itsright to raise the statute of limitations defense against thesecond complaint, especially where Ciers did not assert a claimunder the LHWCA in his first complaint.  As aforementioned, Ciershad an absolute right to obtain a voluntary dismissal of his firstcomplaint.     Ciers places great emphasis on the court's order of November5, 1993, which granted Schmidt's motion for partial summaryjudgment and found that "plaintiff's action shall proceed as anegligence action only as provided in 33 U.S.C. �905(b), [theLHWCA]," maintaining that Schmidt sought this order via its motionfor partial summary judgment and the order manifests Schmidt'sacceptance of Ciers' right to pursue his LHWCA claim.  No report ofproceedings on the motion for partial summary judgment has beenfiled.  An appellant bears the burden of providing a sufficientrecord to support his claim of error and the absence of a recordraises the presumption that the circuit court's order was inconformity with established legal principles and had a sufficientfactual basis.  Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459N.E.2d 958 (1984).     Ciers contends Schmidt's motion for partial summary judgmentasked the court to decide which of several claims he could pursueand not to find violation of the statute of limitations.  Themotion for partial summary judgment did not ask the court to decidewhich claim Ciers could pursue, contrary to his argument.  Countfour of the complaint did not seek damages under the LHWCA, yet thecourt declared that Ciers' action could proceed as a negligenceaction under the LHWCA.  This was the first time during theproceedings Schmidt became aware that Ciers could pursue anegligence action under the LHWCA.  Schmidt's conduct does notevidence any intent to waive the statute of limitations defense. This court cannot infer that Schmidt knew of Ciers' LHWCA claimprior to plaintiff's second complaint of July 30, 1991.  Vershaw v.Northwestern National Life Insurance Co., 979 F.2d 557, 560 (7thCir. 1992); see also Greene v. Helis, 252 Ill. App. 3d 957, 625N.E.2d 162 (1993).     Nor is Schmidt's failure to raise the statute of limitationsdefense until the eve of trial evidence of waiver.  The decision topermit a defendant to file an amended answer raising affirmativematter, such as the statute of limitations, anytime prior to finaljudgment, is within the circuit court's discretion.  Behr v. ClubMed, Inc., 190 Ill. App. 3d 396, 407, 546 N.E.2d 751 (1989).  Thecircuit court did not abuse its discretion.  See Rognant v.Palacios, 224 Ill. App. 3d 418, 586 N.E.2d 686 (1991); Behr, 190Ill. App. 3d at 407.  Accordingly, there was no waiver of thestatute of limitations defense.                                    III     Ciers next asserts his action should not be time barred due tothe doctrine of equitable tolling.     Maritime torts, including 33 U.S.C. �905(b), are governed bythe statutory limitation period set forth in 46 U.S.C. �763(a). Logwood v. Apollo Marine Specialists, Inc., 772 F. Supp. 925, 926(E.D. La. 1991).  46 U.S.C. �763(a) provides:          "Unless otherwise specified by law, a suit for          recovery of damages for personal injury or          death, or both, arising out of a maritime          tort, shall not be maintained unless commenced          within three years from the date the cause of          action accrued."          Congress enacted section 763(a) to provide a uniform statute oflimitations for all maritime torts.  Friel v. Cessna Aircraft Co.,751 F.2d 1037, 1039 (9th Cir. 1985).     Tolling of a statute of limitations is a question oflegislative intent.  Burnett v. New York Central R.R., 380 U.S.424, 426, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965) (Burnett).  Inorder to determine legislative intent, a court "must examine thepurposes and policies underlying the limitation provision, the Actitself, and the remedial scheme developed for the enforcement ofthe rights given by the Act."  Burnett, 380 U.S. at 427.  Equitabletolling may be appropriate if defendant has actively misledplaintiff; plaintiff "in some extraordinary way" has been preventedfrom asserting his rights; or plaintiff has timely asserted hisrights mistakenly in the wrong forum.  Walck v. Discavage, 741 F.Supp. 88, 91 (E.D. Pa. 1990) (Walck), quoting Kocian v. GettyRefining & Marketing Co., 707 F.2d 748, 753 (3rd Cir. 1983). Equitable tolling principles must be applied with caution.  Walck,741 F. Supp. at 91.     Ciers contends the tolling of the statute of limitations inthe present case would not conflict with the legislative purposebehind the LHWCA.  Section 905(b) of the LHWCA was enacted byCongress to preclude an employee of an independent stevedoringcontractor from bringing suit against the vessel based upon thewarranty of seaworthiness.  Stockstill v. Gypsum Transportation,607 F.2d 1112, 1115 (5th Cir. 1979).  "'Congress did not intendthat a concept of negligence approximating no-fault liabilityshould take its place' [citation] *** [but] suggested in thelegislative history of the amendments that a uniform federal commonlaw stemming from land-based negligence concepts be developed." Stockstill, 607 F.2d at 1115-16.  The limitation provision, 46U.S.C. �763(a), provides a uniform statute of limitations for allmaritime torts.  Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039(9th Cir. 1985).     Ciers does not allege that "in some extraordinary way" he hasbeen prevented from asserting his rights (see Burnett, 380 U.S. at429), but contends Schmidt misled him by obtaining an order thatCiers' claim would proceed as a 33 U.S.C. �905(b) negligenceaction.  This argument, however, ignores his voluntary dismissal ofhis first compliant.  His second complaint was filed over threeyears after his cause of action accrued.  If the second complainthad stated a cause of action under the LHWCA, which it did not, itwould be barred nevertheless by the statute of limitations.  See 46U.S.C. �763(a).  Ciers' focus on Schmidt's actions after the filingof the second complaint cannot be a ground for tolling the statuteof limitations.  Ciers claims that Schmidt's "drafted and entered"the court's order of November 5, 1993; however, Ciers' failure torecognize the proper basis of his cause of action cannot beattributed to Schmidt.  That responsibility must be assigned toCiers.  Moreover, no transcript of the court's proceedings ofNovember 5, 1993 has been made part of the record, and this courtwill presume that the circuit court's order was in conformity withestablished legal principles and had a sufficient factual basis. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984).     Nor does Walck, upon which Ciers relies, support equitabletolling here because plaintiff in Walck timely asserted his rightmistakenly in the wrong forum.  741 F. Supp. at 91.  In Walck,plaintiff timely filed a negligence action against defendant inMaryland state court after plaintiff was injured on defendant'sboat, which was docked in Delaware.  741 F. Supp. at 89. Plaintiff's complaint was subsequently dismissed for lack ofpersonal jurisdiction; prior to the dismissal, however, plaintiffinitiated an action in a Pennsylvania federal district court, afterthe expiration of the limitation period.  741 F. Supp. at 89. Defendant moved for summary judgment, asserting that the statecourt action did not toll the running of the limitation period. After noting that maritime law includes traditional common lawrules, the court found that plaintiff's filing of the state claimtolled the three-year statute of limitations found in 46 U.S.C.�763(a).  741 F. Supp. at 91.  The court reasoned that Maryland'slack of jurisdiction was not certain; plaintiff demonstrated duediligence in pursuing her claim by filing within the appropriatetime period and serving defendant with her complaint; and plaintifffiled her compliant in federal court three months after filing thecomplaint in state court.  741 F. Supp. at 91-92.     Unlike Walck, Ciers did not timely assert his claim in thewrong forum; the forum in the present case never changed.  Rather,Ciers voluntarily dismissed his complaint and then filed a newcomplaint, adding a new count.  "A federal statute of limitationsis not tolled when the plaintiff files a claim that later isvoluntarily dismissed."  (Emphasis in original.)  Basco v. AmericanGeneral Insurance Co., 43 F.3d 964, 965-66 (5th Cir. 1994), citingTaylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir. 1985); 9 CharlesA. Wright & Arthur R. Miller, Federal Practice and Procedure �2367at 186-87 (1971).     Ciers' reliance upon Burnett also is misplaced.  In Burnett,plaintiff, a resident of Kentucky, filed a complaint under theFederal Employers' Liability Act (FELA) against his employer, arailroad, in an Ohio state court after plaintiff was injured inIndiana during the course of his employment.  380 U.S. at 424. Venue was improper in Ohio and defendant's motion to dismiss wasgranted.  Eight days after plaintiff's state action was dismissed,he filed the identical action in an Ohio federal court.  380 U.S.at 425.  The district court thereafter dismissed plaintiff'scomplaint as untimely; although the state action was within thelimitations period, the federal action was untimely due to FELA'sthree-year statute of limitations.  380 U.S. at 425.  The SupremeCourt reversed, holding that plaintiff's suit in state court tolledthe FELA statute of limitations.  380 U.S. at 426.     The Burnett Court first noted that FELA's limitation periodwas not totally inflexible and that statutes of limitation aredesigned to ensure fairness to defendants.  380 U.S. at 428.  TheCourt observed that plaintiff did not slumber on his rights;service of process was made on defendant; and defendant did notrely upon the policies embodied in the limitation statute asdefendant had appeared specially in the state court to argue fordismissal of plaintiff's complaint.  380 U.S. at 429-30.  The Courtin Burnett also considered that if plaintiff had sued in a federalcourt, where venue was improper, his case could have beentransferred under 28 U.S.C. �1406(a) and the statute of limitationswould not have barred his action.  380 U.S. at 430.  Similarly, ifhis claim had been filed under Ohio state law, he would have had anadditional year in which to refile in a proper court.  Thesefactors led the Court to conclude that Congress did not intend thestatute of limitations to bar plaintiff's cause of action; however,the federal limitation provision did not incorporate the statesaving statute because that would lead to nonuniform periods oflimitation.  380 U.S. at 433.  Nevertheless, the various factors,including the humanitarian purpose of FELA, supported tollingFELA's limitation during the pendency of the state suit.  The Courtfound the limitation provision was tolled until the state courtorder dismissing the state action became final.  380 U.S. at 434-35.     In the present case, Ciers' first complaint set forth threecounts based on The Jones Act.  Three years later, he voluntarilydismissed the suit.  One year later, he filed his second complaintwhich added a fourth count for common law negligence.  The secondcomplaint did not state a cause of action pursuant to the LHWCA. Cf. Huett v. Illinois Central Gulf R.R., 268 Ill. App. 3d 494, 495,644 N.E.2d 474 (1994).  Unlike Burnett, the initial complaint herewas not struck for technical reasons; it was voluntarily dismissed. Moreover, Ciers did not assert an LHWCA claim in his firstcomplaint.  On November 5, 1993, the circuit court believed thatCiers could pursue a claim under the LHWCA.  Because his firstcomplaint did not contain a count for negligence under either thecommon law or the LHWCA, the federal statute of limitations was nottolled.  He did not assert his LHWCA cause of action until, atearliest, July 30, 1991.  This was over six years after he wasinjured.  Cf.  Burnett, 380 U.S. at 430.  Assuming, arguendo, hisinitial complaint stated a cause of action under the LHWCA, Ciersstill would not prevail under Burnett because plaintiff's voluntarydismissal did not toll the federal statute of limitations.  Bascov. American General Insurance Co., 43 F.3d 964, 965-66 (5th Cir.1994), citing Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir.1985); 9 Charles A. Wright & Arthur R. Miller, Federal Practice andProcedure �2367 at 186-87 (1971); see also Stephan v. Selvic MarineTowing Co., 201 Ill. App. 3d 554, 559 N.E.2d 147 (1990).  The factsin the present case are insufficient to toll the federal statute oflimitations.     Ciers asserts, for the first time in his reply brief, thatSchmidt has waived its right to assert that the state savingstatute, section 13-217 (735 ILCS 5/13-217 (West 1994)), does notapply here.  Not only was this argument not raised in his openingbrief (see 145 Ill. 2d R. 341(e)(7)), but he abandoned this claimin the circuit court in responding to Schmidt's motion for summaryjudgment.  Arguments not raised in the circuit court are waived onappeal.  Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 508, 524 N.E.2d 561 (1988).  The circuit court did not errin granting summary judgment for defendant.     For the foregoing reasons, the order of the circuit court mustbe affirmed.     Affirmed.     DiVITO and BURKE, JJ., concur.