Blutcher v. EHS Trinity Hosp.

• Decision Date: 29 March 2001
• Docket Number: No. 1-00-2151.,1-00-2151.
• Citation: 321 Ill. App.3d 131,254 Ill.Dec. 106,746 N.E.2d 863
• Parties: David BLUTCHER, Plaintiff-Appellee, v. EHS TRINITY HOSPITAL, Defendant-Appellant and Third-Party Defendant-Appellee (Roseland Community Hospital, Myung Lee, M.D., Earl Fredricks, M.D., Hugh Russell, M.D., and Subodh Mohindra, M.D., Defendants; Roseland Community Hospital, Third-Party Plaintiff-Appellee).
• Court: United States Appellate Court of Illinois

746 N.E.2d 863

321 Ill. App.3d 131

254 Ill.Dec. 106

David BLUTCHER, Plaintiff-Appellee, v. EHS TRINITY HOSPITAL, Defendant-Appellant and Third-Party Defendant-Appellee (Roseland Community Hospital, Myung Lee, M.D., Earl Fredricks, M.D., Hugh Russell, M.D., and Subodh Mohindra, M.D., Defendants; Roseland Community Hospital, Third-Party Plaintiff-Appellee).

No. 1-00-2151.

Appellate Court of Illinois, First District, Fourth Division.

March 29, 2001.

Anderson Bennett & Partners, Chicago (William C. Anderson, III, Diane I. Jennings, of counsel), for Appellant.

Joan S. Callan, Ryan M. Henderson, Cozen & O'Connor, Chicago, for Appellee Roseland Community Hospital.

Thomas L. O'Carroll, John G. Phillips & Associates, Chicago, for Appellee David Blutcher.

Justice SOUTH delivered the opinion of the court:

This appeal arises from an order of the circuit court granting plaintiff's petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) and vacating dismissals pursuant to a prior settlement agreement. The issues raised on appeal are (1) whether the trial court abused its discretion in granting plaintiff's section 2-1401 petition by vacating the dismissals entered into by the parties' attorneys pursuant to a settlement agreement; and (2) whether the relief granted against Trinity was an abuse of the court's discretion when plaintiff's proper remedy was against his agent, the attorney.

In July 1995, plaintiff David Blutcher went to the emergency room at Roseland Community Hospital (Roseland) due to chest pains. After being treated at Roseland, Blutcher was transferred to EHS Trinity Hospital (Trinity). When Blutcher was admitted at Trinity, his initial EKG revealed that he was having a myocardial infarction. He remained in the emergency room for approximately 23 hours before being transferred to the intensive care unit (ICU). He did not receive a thrombloytic infusion for approximately 1½ hours after arriving at Trinity and did not see a cardiology consultant until 24 hours after his admission. Blutcher alleges that due to the negligent actions of the Trinity staff, he suffered a massive heart attack and later a stroke, which has rendered him completely disabled.

As a result of Blutcher's injuries, he filed a medical malpractice action against Trinity, Roseland, and four physicians— Myung Lee, M.D., Earl Fredricks, M.D., Hugh Russell, M.D. and Subodh Mohindra, M.D.

Blutcher hired attorney Stuart Bobrow to prosecute his claim. A complaint against the defendants was filed on July 1, 1997. During the pendency of the lawsuit, Blutcher would call Bobrow to see how the lawsuit was proceeding, and personally met with him twice during the summer of 1999. Throughout the proceedings, Bobrow continued to reassure Blutcher that the lawsuit was going well and that it would "run its course."

However, on December 18, 1999, Blutcher received an amended complaint from Bobrow which no longer included Trinity as a defendant and called him that same day and asked him why Trinity was not included in that complaint. During this conversation, Bobrow confessed that he had settled with Trinity for $200,000 without Blutcher's authorization back in December 1998 and kept the money. Subsequent to this conversation, Bobrow left several telephone messages with Blutcher asking him not to hire another attorney and admitting that he did not have authority to settle the case. He also told Blutcher that he was having problems with drug abuse during the time of the settlement but that he was currently not taking any drugs and pleaded with Blutcher not to report him because his law license would be taken away.

Blutcher discovered that in November 1998, Bobrow and the attorney for Trinity entered into arms-length settlement discussions over the phone. Bobrow informed Trinity's attorney that he wanted a settlement check issued on a "rush basis" due to the impending holiday season. In December 1998, Trinity agreed to settle the case for $200,000, and a check was tendered, which was made out to Blutcher and Bobrow. In exchange, Trinity received a "covenant not to sue" purportedly signed by Blutcher and notarized by a Theresa Lynch, a notary public, who certified that Blutcher was personally known to her and that she had acknowledged his signature in her presence.

Bobrow also signed a "stipulation to dismiss" Blutcher's claim against Trinity only. On December 24, 1998, an order was entered, however, which provided that the entire case be dismissed against all the defendants, with prejudice. This error went undiscovered until May 1999. In an attempt to correct the error, Bobrow appeared before the court on May 7, 1999, to request that the record be corrected to reflect the parties' true intentions of dismissing the case against Trinity only. None of these documents, neither the settlement order nor the dismissal order, were ever submitted to any of the other defendants to this action.

After learning about Trinity's settlement, Roseland requested leave to file a third-party action against Trinity for contribution. Trinity filed a motion in opposition to Roseland's contribution complaint and attached an affidavit from Bobrow certifying that Blutcher had purportedly signed the "covenant not to sue," a verification that the statements made in the affidavit were true and correct, and a transcript of the May 7, 1999, hearing.

On June 28, 1999, the court granted Roseland's motion for leave to file a third-party contribution complaint. However, on July 2, 1999, the court entered a new order vacating the order of December 24, 1998, dismissed the case against Trinity, with prejudice, and dismissed Roseland's contribution action against Trinity, with prejudice.

Blutcher subsequently hired a new attorney, and on February 22, 2000, he filed a motion pursuant to section 2-1401 (735 ILCS 5/2-1401 (West 1998)). He requested that the court vacate the order dismissing Trinity as a defendant, vacate the settlement agreement, and reinstate the case against Trinity. Blutcher explained to the court that he did not learn of the settlement agreement until December 1999, that the case was settled without his authorization, that he had never signed any of the settlement documents or releases, and that he never received any of the settlement funds. He also attached a transcript of the telephone messages Bobrow left on his answering machine and an affidavit stating that he knew nothing about the settlement or the dismissal of Trinity from the lawsuit, and that he had not signed any documents or received any monies from the settlement.

Trinity filed a response to Blutcher's petition but did not make any discovery requests, did not submit any counteraffidavits and did not request an evidentiary hearing.

On June 7, 2000, the trial court granted Blutcher's section 2-1401 petition. On June 27, 2000, Trinity filed the instant appeal.

Trinity's first issue on appeal is whether the trial court abused its discretion in granting plaintiff's section 2-1401 petition.

Section 2-1401 of the Illinois Code of Civil Procedure provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be vacated "after 30 days from the entry thereof." Smith v. Airoom, Inc., 114 Ill.2d 209, 220, 102 Ill.Dec. 368, 499 N.E.2d 1381, 1387 (1986). The proceeding is instituted by filing a petition "supported by affidavit or other appropriate showing as to matters not of record." 735 ILCS 5/2-1401(b) (West 1998). Like a complaint, the petition must be legally sufficient in affirmatively setting forth specific allegations supporting the right to relief. Smith, 114 Ill.2d at 220-21,102 Ill.Dec. 368,499 N.E.2d at 1386. The purpose of a section 2-1401 petition is to bring before the trial court facts not appearing in the record which, if known to the trial court at the time judgment was entered, would have prevented the judgment. Ostendorf v. International Harvester Co., 89 Ill.2d 273, 284, 60 Ill.Dec. 456, 433 N.E.2d 253, 258 (1982); Klein v. Steel City National Bank, 212 Ill.App.3d 629, 636, 156 Ill.Dec. 771, 571 N.E.2d 751, 756 (1991).

A section 2-1401 petition may be granted solely on the basis of the affidavits supporting and opposing the petition if they do not controvert one another. Ostendorf, 89 Ill.2d at 285-86, 60 Ill.Dec. 456, 433 N.E.2d at 259. However, an evidentiary hearing is required if the central facts of a section 2-1401 petition are disputed. Ostendorf, 89 Ill.2d at 286, 60 Ill. Dec. 456, 433 N.E.2d at 259. Central facts are those that are sufficient to support an order vacating the judgment, not those that must be proven to succeed in the underlying action on its merits. Smith v. Cole, 256 Ill.App.3d 806, 810, 197 Ill.Dec. 962, 632 N.E.2d 31 (1993).

Under section 2-1401, the moving party must set forth specific factual allegations supporting each of the following elements by a preponderance of the evidence: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. Smith, 114 Ill.2d at 220-21, 102 Ill.Dec. 368, 499 N.E.2d at 1386. For purposes of this appeal, the only element in dispute is whether plaintiff has presented a meritorious defense or claim. To prove the existence of a meritorious defense or claim, a petitioner must allege facts that would have prevented entry of the judgment if they had been known by the trial court. Physicians Insurance Exchange v. Jennings, 316 Ill. App.3d 443, 457, 249 Ill.Dec. 337, 736 N.E.2d 179, 191 (2000).

Whether a section 2-1401 petition should be granted lies within the sound discretion of the circuit court, depending upon the facts and equities presented. As such, a court of review is justified in disturbing the judgment of the circuit court only if it finds that the court abused its discretion. Smith, 114 Ill.2d at...