Gonzalez v. Thorek Hospital & Medical Center

570 N.E.2d 309, 143 Ill. 2d 28, 155 Ill. Dec. 796, 1991 Ill. LEXIS 20
CourtIllinois Supreme Court
DecidedMarch 21, 1991
Docket69144
StatusPublished
Cited by24 cases

This text of 570 N.E.2d 309 (Gonzalez v. Thorek Hospital & Medical Center) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzalez v. Thorek Hospital & Medical Center, 570 N.E.2d 309, 143 Ill. 2d 28, 155 Ill. Dec. 796, 1991 Ill. LEXIS 20 (Ill. 1991).

Opinion

JUSTICE CLARK

delivered the opinion of the court:

Plaintiff’s decedent was admitted to Thorek Hospital and Medical Center on June 14, 1982. She. died on February 15, 1983. On June 14, 1984, plaintiff, as administrator of decedent’s estate, brought an action in the circuit court of Cook County against Thorek and 14 of the hospital’s physicians (1984 complaint). A copy of the 1984 complaint on file with the circuit court is attached as the appendix. Plaintiff failed to attempt or serve process on any of the defendants. On December 14, 1984, the trial court dismissed plaintiff’s action for want of prosecution.

Relying on section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217), plaintiff filed a new complaint in the circuit court of Cook County against defendants on July 5, 1985 (1985 complaint). Section 13 — 217 of the Code provides in relevant part:

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

Various defendants were immediately served while others were not served for over six months after the filing of the 1985 complaint. Defendants Honer, Abdelnurchawla, Nammohan, and Jones were never served with copies of the 1985 complaint.

Defendant Thorek moved to dismiss the action, arguing that the 1985 complaint was barred by the statute of limitations because it was filed more than “two years after the alleged occurrence” which injured the plaintiff (Ill. Rev. Stat. 1985, ch. 110, par. 13-212). Although section 13 — 217 of the Code grants a party the absolute right to commence a new action within one year after a dismissal for want of prosecution, defendants argued that the 1984 complaint did not contain the basic minimum requirements of a legally and factually sufficient complaint to toll the statute of limitations for the 1985 filing. (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 603(a), 2— 604.) Defendants Odiaga, Stuebner and Chan joined in Thorek’s motion, while defendants Silvetti, Forman, Hsu, Thampy, Kaminski, and Hernandez filed separate motions, to dismiss. The remaining defendants who were served took no action during the pendency of the matter in the trial court.

On July 14, 1986, the trial court granted the motions to dismiss with prejudice of defendants Kaminski, Odiaga and Chan. Plaintiff sought to have the order vacated on December 10, 1986, which motion was denied by the trial court. Plaintiff also sought to have defendants Stuebner, Thampy, Silvetti, Forman and Hsu voluntarily dismissed with prejudice from the matter, which motion was granted in the trial court’s December 10 order.

In response to the remaining defendants’ motions to dismiss, plaintiff also filed a supplemental memorandum of law on December 10. As part of her memorandum, plaintiff attached an affidavit in which her counsel stated that in 1984 she had prepared a 16-count complaint with the same caption as the 1984 complaint. The affiant attached a copy of the 16-count complaint to her affidavit, which complaint was substantially the same as the 1985 complaint. The affiant stated that she had no knowledge that any portion of the 1984 complaint was missing from the court file until defendant Thorek filed its motion to dismiss.

On January 8, 1987, the trial court granted plaintiff’s motion to voluntarily dismiss defendant Hernandez. On March 23, the trial court granted the motions to dismiss of defendants Thorek and Kaplan and denied plaintiff’s motion to vacate the trial court’s previous dismissal of Drs. Kaminski, Chan, and Odiaga. It is from this order that plaintiff appeals.

The appellate court, with one justice dissenting, affirmed the trial court’s dismissal with prejudice. (186 Ill. App. 3d 648.) The majority concluded that the complaint “[did] not satisfy the minimum requirements of the Code” and therefore was not a proper filing for purposes of the refiling statute or the relation-back doctrine (Ill. Rev. Stat. 1983, ch. 110, pars. 13-217, 2 — 616(b)). (186 Ill. App. 3d at 651.) Moreover, the appellate court concluded that “[s]ince more than two years had elapsed after the alleged cause of action arose and the [filing of the 1985 complaint],” the 1985 complaint would have been barred by the statute of limitations but for sections 13 — 217 and 2 — 616(b) of the Code. (186 Ill. App. 3d at 652.) The dissent concluded that there was enough information in which to relate the 1985 complaint to the 1984 complaint and that any deficiencies in the original complaint could be rectified by way of amendment. 186 Ill. App. 3d at 656 (Jiganti, J., dissenting).

The majority declined to consider the affidavit of plaintiff’s counsel, in light of this court’s decision in Gibbs v. Crane Elevator Co. (1899), 180 Ill. 191. In Gibbs, the plaintiff commenced his suit by filing a praecipe (writ) and service of summons. The suit was dismissed when plaintiff failed to timely file his declarations. Declarations are specifications of facts and circumstances describing the cause of action; they are the equivalent of the complaint in code pleading. See Black’s Law Dictionary 367 (5th ed. 1979).

Although the applicable statute of limitations had elapsed, the plaintiff in Gibbs refiled pursuant to paragraph 24 of chapter 83 of the Revised Statutes (the predecessor of section 13 — 217), alleging that the new action was based upon the same facts as the first action. The defendant argued that no declarations had been filed before the first dismissal and therefore he was entitled to judgment.

After reviewing the record in the original action, this court observed that there was “no information as to the particular claim upon which [the original] suit was brought.” (Gibbs, 180 Ill. at 194.) The praecipe or writ in the original action did not “set out the cause of action,” eliminating any way in which to determine whether the cause of . action in the refiling was the same as that intended in the first filing. Without identifying the cause of action sued upon in the first matter as the “same identical cause of action” for which the second action was brought, plaintiff was not entitled to the extension of time under paragraph 24. Gibbs, 180 Ill. at 194.

The plaintiff in Gibbs tried to supplement the record in the original filing with testimony that he had no other cause of action against the defendants except the one which existed at the time of bringing the first suit. In reaching a conclusion on the admissibility of evidence to prove the identity of the two actions, this court said the following:

“When the plaintiff avers that the cause of action in the first suit is the same as that declared upon in the present action and claims the right to prove it by parol testimony, he tenders no issue or fact capable of being proved on his part and disproved on the part of the defendants.

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Bluebook (online)
570 N.E.2d 309, 143 Ill. 2d 28, 155 Ill. Dec. 796, 1991 Ill. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-thorek-hospital-medical-center-ill-1991.