Lodolce v. Central Du Page Hospital

576 N.E.2d 458, 216 Ill. App. 3d 902, 159 Ill. Dec. 789, 1991 Ill. App. LEXIS 1309
CourtAppellate Court of Illinois
DecidedJuly 23, 1991
Docket2-90-1316
StatusPublished
Cited by5 cases

This text of 576 N.E.2d 458 (Lodolce v. Central Du Page Hospital) 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
Lodolce v. Central Du Page Hospital, 576 N.E.2d 458, 216 Ill. App. 3d 902, 159 Ill. Dec. 789, 1991 Ill. App. LEXIS 1309 (Ill. Ct. App. 1991).

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

The plaintiffs, Gary K. Lodolce and Marcena Lodolce, appeal from the trial court’s denial of a petition filed pursuant to section 2 — 1401 of the Code of Civil Procedure (the 2 — 1401 petition) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The 2 — 1401 petition sought to reinstate a medical malpractice action that the trial court had dismissed for want of prosecution. On appeal, the plaintiffs argue that the trial court abused its discretion in refusing to reinstate their action. We dismiss the appeal for want of jurisdiction.

On October 6, 1988, the plaintiffs filed their complaint against Central Du Page Hospital (Central Du Page) and Dr. Harb Boury (Dr. Boury). On November 15, 1989, on Dr. Boury’s motion, the complaint was dismissed for want of prosecution. On December 5, 1989, the plaintiffs obtained an order vacating the dismissal and reinstating the action. On January 2, 1990, Dr. Boury moved to vacate the December 5, 1989, order. On February 15, 1990, the trial court order granted Dr. Boury’s motion and vacated the vacatur of the November 15, 1989, order of dismissal. On March 12, 1990, the plaintiffs moved to vacate the dismissal, and the trial court denied this motion. On March 14, 1990, the plaintiffs moved to reconsider the trial court’s ruling. On April 3, 1990, the trial court denied this motion and ruled that the original dismissal order of November 15, 1989, would stand. On April 24, 1990, the plaintiffs filed a “motion for a rehearing.” On June 13, 1990, this motion was stricken by the trial court. On August 16, 1990, the plaintiffs filed the 2 — 1401 petition. On November 1, 1990, the trial court denied the motion. On November 27, 1990, the plaintiffs brought this appeal.

The facts of this case are more complicated than the foregoing may suggest, and we now set them out in depth.

The plaintiffs’ complaint was a refiling of an action that had been voluntarily dismissed without prejudice on October 19, 1987 (see Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217). The plaintiffs alleged that Dr. Boury and Central Du Page had been negligent in treating Gary Lodolce’s malignant tumor. On November 1, 1988, Dr. Boury entered his appearance and filed an answer, a notice to depose Gary Lodolce on January 20, 1989, and a set of interrogatories. Central Du Page entered its appearance on November 7, 1988, and filed its answer on November 14, 1988. Central Du Page also served the plaintiffs with interrogatories, to which the plaintiffs filed their reply on December 13,1988.

An initial status hearing was set for January 9, 1989. On that date, counsel for Central Du Page appeared. He explained to Judge Peccarelli that he had received a telephone call from the plaintiff’s attorney. She had a “very good reason” for not appearing, though he could not remember what it was. He suggested moving back the status date, and the court set March 10,1989, for a status hearing.

On January 20, 1989, the plaintiffs filed their response to Dr. Boury’s interrogatories. On February 14, 1989, they filed requests for production directed toward both defendants, and on February 27, 1989, filed interrogatories directed toward both defendants.

On March 10, 1989, the court entered an order, drafted by counsel for Dr. Boury, setting the case for status review on May 10, 1989. On that day, counsel for Dr. Boury appeared and informed the judge that discovery was well underway. The judge agreed to continue the case for a status hearing on July 12, 1989, allowing Dr. Boury to depose Gary Lodolce as scheduled meanwhile.

On June 8, 1989, the plaintiffs filed amended interrogatories directed to Dr. Boury. Dr. Boury filed his answers to the interrogatories on July 6, 1989.

On July 12, 1989, counsel for Dr. Boury appeared at the scheduled hearing. He told the judge that one plaintiff’s deposition had been taken, that Dr. Boury had yet to he deposed and would be out of the country until August. He did not know where plaintiffs’ counsel was and suggested another status date. The court ordered the case continued for a status hearing on September 13,1989.

On September 13, 1989, counsel for Dr. Boury appeared at the scheduled hearing before Judge Lewis. Dr. Boury’s attorney informed the judge that he did not know where the plaintiffs’ attorney was, that the plaintiffs had done very little in the case to date, and that he would ask for a dismissal with prejudice if the plaintiffs made no appearance. The court entered an order continuing the case for a status hearing on November 15,1989.

At the November 15, 1989, hearing, counsel for both defendants appeared, but the plaintiffs again were unrepresented. The trial court dismissed the case for want of prosecution.

On December 5, 1989, the plaintiffs filed a motion to vacate the dismissal for want of prosecution. The plaintiffs’ principal attorney, Alan C. Hoffman, submitted an affidavit in support of the motion. The affidavit stated that his absence at the status hearings “was done without any willful or intentional disregard,” but was due to “clinical [sic] and docketing errors.”

On December 5, 1989, at 9 a.m., Judge Lewis heard the plaintiffs’ motion to reinstate. Loretta Ursini of the plaintiffs’ law firm appeared; the defendants were not represented. After Ursini informed Judge Lewis that the defendants had received notice, the court entered an order vacating the dismissal, reinstating the case, and setting a status hearing for February 9,1990.

On January 2, 1990, Dr. Boury moved to vacate the order reinstating the case. Dr. Boury alleged that the plaintiffs never sent him notice of their motion and that he found out about the motion on December 18, 1989, when his counsel received a copy of the December 5 order. The court gave the plaintiffs 14 days to respond to the motion and set February 9, 1990, for a hearing on the motion. The plaintiffs filed their response on January 23, 1990. On February 9, 1990, the court continued the case to February 15, 1990, for a hearing on both the status of the case and the defendant’s motion. The case was assigned to Judge Robert E. Byrne.

On February 15, counsel for Dr. Boury appeared at the hearing. He informed the court that he did not know where the plaintiffs’ attorney was. He agreed with Judge Byrne that the plaintiffs’ motion to vacate had been timely filed, but stated that Dr. Boury had never received notice of the motion or an opportunity to respond. The judge said that it was his understanding that if he granted Dr. Boury’s motion, the plaintiffs could still renotice their motion for hearing because their motion had been timely filed. The court then entered a written order stating that (1) the defendant’s motion was granted; (2) the December 5, 1989, order was vacated; and (3) the order of November 15, 1989, dismissing the cause for want of prosecution hereby stood and the case was “dismissed for want of prosecution as of November 15, 1989.”

On March 5, 1990, the plaintiffs filed their notice of motion to vacate the dismissal for want of prosecution.

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Bluebook (online)
576 N.E.2d 458, 216 Ill. App. 3d 902, 159 Ill. Dec. 789, 1991 Ill. App. LEXIS 1309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lodolce-v-central-du-page-hospital-illappct-1991.