Burton by Burton v. Estrada

• Decision Date: 18 November 1986
• Docket Number: No. 85-2425,85-2425
• Citation: 149 Ill.App.3d 965,501 N.E.2d 254,103 Ill.Dec. 233
• Parties: , 103 Ill.Dec. 233 Stephanie BURTON, a Minor by Lou Ada BURTON, individually and as mother and next friend of Stephanie Burton, Plaintiff-Appellees, v. Dr. Evelyn ESTRADA, Defendant-Appellant, and The Upjohn Company, a corporation and Merck, Sharp & Dohme, a Division of Merck & Co., Inc., a corporation, Defendants.
• Court: United States Appellate Court of Illinois

Page 254

501 N.E.2d 254

149 Ill.App.3d 965, 103 Ill.Dec. 233

Stephanie BURTON, a Minor by Lou Ada BURTON, individually and as mother and next friend of Stephanie Burton, Plaintiff-Appellees, v. Dr. Evelyn ESTRADA, Defendant-Appellant, and The Upjohn Company, a corporation and Merck, Sharp & Dohme, a Division of Merck & Co., Inc., a corporation, Defendants.

No. 85-2425.

Appellate Court of Illinois,

First District, Second Division.

Nov. 18, 1986.

Wildman, Harold, Allen & Dixon, Chicago (Kay L. Schichtel and Orna L. Shulman, of counsel), for defendant-appellant.

Goldberg & Goldberg, Chicago (Barry D. Goldberg and David A. Novoselsky, of counsel), for plaintiff-appellees.

Justice SCARIANO delivered the opinion of the court:

Appellant Dr. Evelyn Estrada appeals under Supreme Court Rule 304(b)(3) (103 Ill.2d R. 304(b)(3)), from the grant of a Section 2-1401 petition (Ill.Rev.Stat.1985, ch. 110, par. 2-1401), which vacated a dismissal order and reinstated her as a defendant in this case. We affirm.

On January 16, 1979 plaintiffs Stephanie Burton, a minor, and her mother Lou Ada Burton, filed suit against appellant and two drug manufacturers, Merck, Sharp & Dohme and The Upjohn Company. Plaintiffs alleged that Stephanie was born on March 11, 1977 with congenital anomalies of the genitourinary tract because her mother had been taking two drugs, Hydrodiuril and Provera. Plaintiffs charged that appellant committed medical malpractice by negligently prescribing the two drugs, and they also asserted separate claims against the drugs' manufacturers under strict liability and negligence theories.

Discovery proceeded and appellant gave a deposition in Chicago, which was not completed. On January 28, 1985, the parties appeared before Judge James E. Murphy for a pre-trial conference, and he set the cause for further pre-trial proceedings on March 18, 1985. At the March 18 meeting, May Griffioen, a partner in the firm of Goldberg & Goldberg, appeared for plaintiffs and Kay Schichtel represented appellant. On the same day, Judge Murphy entered an order that dismissed the case against appellant with prejudice. The order stated:

"This cause coming on for pre-trial, all parties being represented by counsel,

IT IS HEREBY ORDERED THAT:

(1) This cause is dismissed with prejudice and without costs to the parties with respect to Dr. Evelyn Estrada only, all matters in controversy having been settled between Dr. Estrada and plaintiffs;

(2) This matter shall continue as to all other parties;

(3) All discovery against Upjohn will be stayed until after the next pre-trial;

(4) Further pre-trial is set for September 17, 1985 at 11:30 a.m. before Judge Murphy."

Because there was no Rule 304(a) finding of no just reason to delay appeal or enforcement, this dismissal order was not enforceable or appealable at the time it was entered. See Supreme Court Rule 304(a) (103 Ill.2d R. 304(a)).

On April 1, 1985, appellant's attorney, Kay Schichtel, mailed a letter to May Griffioen and enclosed documents identified as a release of attorney's lien, covenant not to sue and indemnity agreement, and a copy of the dismissal order entered on March 18, 1985. The letter concluded:

"You mentioned at the pre-trial that this portion of the settlement would be placed in an interest-bearing account. I think that we should have the name of the bank on the check, along with your firm's name and that of Mrs. Burton. Please let me know the name of the bank or other repository of the funds. I will then request the settlement draft in the amount of $100,000.00."

Barry Goldberg, of Goldberg & Goldberg, wrote a letter to Ms. Schichtel, on April 4, 1985, in which he asserted that the "releases" were forwarded to his office prematurely. Goldberg advised Schichtel that he could not consider a settlement until the discovery and evidentiary depositions of appellant had been completed, with appellant's testimony "being as you led me to believe it would be."

To prepare for a deposition of appellant, defendant Upjohn filed a motion to compel Mrs. Burton to produce the calendar diary that she kept before Stephanie's birth, to help pinpoint the date of conception. In its motion, mailed May 9, 1985, Upjohn recited that Dr. Estrada had been previously dismissed by court order.

A hearing on Upjohn's motion was set for June 3, 1985, before Judge Murphy. Barry Goldberg appeared for plaintiffs. Later that day, he filed a Section 2-1401 petition (Ill.Rev.Stat.1985, ch. 110, par. 2-1401), asking that the March 18 dismissal order be vacated. The petition, not accompanied by affidavits or other materials, stated in part that plaintiffs had never agreed to settle their case with appellant and had not executed any documents reflecting a settlement. Rather, in an April 4, 1985, letter, their attorneys had informed appellant that a settlement could not be reached until discovery was completed. Therefore, the petition asserted, the dismissal order of March 18, 1985, was not an agreed order.

Counsel for appellant filed a response to the petition and a request that plaintiffs be directed to identify a repository for the settlement funds. An affidavit by attorney Kay Schichtel was incorporated in the response. In it, she stated that she attended the pre-trial conference of January 28, 1985, before Judge Murphy, and that Barry Goldberg of Goldberg & Goldberg, representing plaintiffs, made a settlement demand of $6,000,000 against all defendants. The next day, Schichtel received a call from Judge Murphy advising her that Mr. Goldberg was now interested in a partial settlement with appellant. Schichtel then added:

"(6) I attended a further pre-trial conference before Judge Murphy on March 18, 1985. * * * May Griffioen was present for plaintiff.

(7) I drafted the order of March 18, 1985 in the presence of all counsel.

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(9) When I did not hear from Goldberg & Goldberg regarding the repository of the funds, I prepared the settlement documents and mailed them on April 1, 1985 to Goldberg & Goldberg with the dismissal order. * * *

(10) On April 3, 1985 I received a call from Mr. Goldberg stating that he wanted to take Dr. Estrada's evidence deposition before settling the case with her. I told Mr. Goldberg that this was not my understanding and that I had arranged for tender of the policy based upon a demand for its payment."

Plaintiffs next obtained leave to supplement their petition with affidavits. In his affidavit, attorney Barry Goldberg stated that he had been responsible for handling the case since it was filed in 1979. He indicated that he attended the January 28, 1985 pre-trial conference and afterwards spoke with Judge Murphy about the current status of the child plaintiff. He told the judge that plaintiffs could not accept a partial settlement with appellant until the completion of both her discovery and evidentiary depositions. Goldberg added:

"6. At no time did I authorize or request Judge Murphy to attempt to get the Defendants to tender the $100,000 policy of insurance as to Dr. Estrada.

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8. I never saw a copy of the Order claimed to have been entered in this matter until June 3, 1985, when I was first made aware of its entry nor did I know that any such order was entered.

9. On April 3, 1985, I spoke with Kay Schichtel and told her that in order to go to the next pre-trial I needed both the discovery and evidentiary depositions of Dr. Estrada to be completed and that no consideration of any possible settlement as to her client could be entertained and that I made this known to Judge Murphy as well.

10. At no time during this conversation did Miss Schichtel make any reference to any dismissal order having been entered nor of releases being sent.

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13. I made it clear * * * that if the Doctor did not testify along the lines she and I had on other occasions discussed I could not let her client out.

14. At no time during the April 3, 1985 conversation did Miss Schichtel make any reference to the policy already having been tendered to the Court nor to me for settlement based upon a demand for its payment.

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* * *

16. That at no time did Judge Murphy ever make known to me that any negotiations regarding the tendering of the policy had been reached."

No affidavit from May Griffioen was presented because she had died suddenly and unexpectedly on June 5, 1985.

A hearing was held before Judge Murphy on the petition to vacate and on defendant Upjohn's discovery motion, on July 11, 1985. Mr. Goldberg offered to waive oral argument on the petition. The circuit judge then stated that this was a matter of a misunderstanding, and that the order entered in the presence of Ms. Schichtel and a representative of Mr. Goldberg's office was negotiated in good faith between both of them. The judge then addressed Mr. Goldberg, adding:

"It's apparent that there had not been a conference with you as the head of that office and with your client. This is something that was done without authority on the part of Ms. Griffioen. And because you are the attorney of record and Ms. Griffioen was acting in your behalf, it is a difficult situation of whether she had authority to do--to enter into the agreement.

But I would have to go on record in saying that there was an agreement between Ms. Schichtel and Ms. Griffioen, the doctor would be dismissed. And it would appear though that this was done without the client's authority and approval. She is the client, and the client now has indicated that she does not want that doctor dismissed. I'd have to vacate the order dismissing the doctor."

Ms. Schichtel asked to comment, and the parties proceeded to argue the case. Afterwards, the judge vacated the March 18 order, stating that his recollection of the discussion at the time of the entry of the order was that appellant's counsel wanted an agreement to dismiss the case before appellant would give her deposition in Washington.

"Ms. Griffioen at that time I...