Kleiman v. Northwestern Memorial Hosp.
| Decision Date | 03 September 1993 |
| Docket Number | No. 1-92-2856,1-92-2856 |
| Citation | 625 N.E.2d 284,192 Ill.Dec. 324,253 Ill.App.3d 47 |
| Parties | , 192 Ill.Dec. 324 Valorie KLEIMAN, Scott Kleiman and Matthew Kleiman, a minor, by his parents and next friends, Valorie Kleiman and Scott Kleiman, Plaintiff-Appellants, v. NORTHWESTERN MEMORIAL HOSPITAL, an Illinois not-for-profit corporation, Nancy Jo Reedy, and Janet Nosek, Defendants, and Richard Depp, M.D., Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Steven M. Levin, Levin & Perconti, Chicago, for plaintiffs-appellants.
Eric F. Quandt, Mary K. Periolat, Carolyn Quinn, Kelley Drye & Warren, Chicago, for defendant-appellee, Richard Depp, M.D.; James M. Perry, Associate Gen. Counsel, Northwestern University, Evanston, of counsel.
This appeal derives from the granting of a dismissal to the defendant, Richard Depp, M.D. (Depp), pursuant to a motion brought under Supreme Court Rule 103(b).
The facts relevant to this appeal are as follows:
On October 8, 1987, plaintiffs filed a medical malpractice complaint alleging that Valorie Kleiman suffered an intracranial hemorrhage, and consequential disability and disfigurement, as a result of the defendants' negligence, while hospitalized in Northwestern Hospital's high risk obstetric and gynecological unit. Plaintiffs alleged Depp failed to supervise Valorie's pregnancy, inappropriately used the drug syntocin and failed to recognize and properly treat a complication. Scott and Matthew limited their claims to loss of consortium and loss of society, respectively.
A summons was issued to Depp on the same date the complaint was filed. On November 13, 1987, a return of service was filed that disclosed service upon Depp on October 21, 1987. The return of service was prepared by the sheriff of Philadelphia County, Pennsylvania, and stated that service had been effected against Depp on October 21, 1987, at 11:45 a.m. "by delivering to and leaving with L. Pezzetti, receptionist personally a true attest copy of the said Summons nad (sic) Complaint."
On July 19, 1988, Depp filed a special and limited appearance. No pleading or affidavit was attached to this appearance.
On September 21, 1989, plaintiffs filed a motion to strike appearance contending that the special and limited appearance had not been filed in conformity with Ill.Rev.Stat.1989, ch. 110, par. 2-301(b), since no affidavit had been attached setting forth the reasons for the jurisdictional objection. Plaintiffs further alleged that not only had Depp taken no further action contesting jurisdiction, but in addition, Depp's attorney had engaged in discovery, including attending the depositions of Valorie and Scott Kleiman, thereby waiving any jurisdictional objection.
On October 6, 1989, Depp filed a response to the motion to strike the appearance and a motion to quash the October 1987 service. The motion to quash recited that service was invalid; Depp had not been served personally, nor had there been service on a family member. The motion further stated that Depp's attorney also represented two other defendants in the case and that Depp's counsel had entered general appearances on their behalf. Exhibits attached to the motion listed an attorney for Depp appearing at the Kleiman depositions "pursuant to a special and limited appearance."
The plaintiffs' response argued that in order for Depp to attack the in personum jurisdiction of the court, he must file a special and limited appearance along with the appropriate motion to quash service. Attached to the plaintiffs' response were pages from the Kleiman depositions in which the attorney for Depp asked questions of the witnesses regarding Depp's care of Valorie. Plaintiffs asserted that this participation waived any objection to jurisdiction.
In his reply, Depp asserted that the service error was so blatant that it was not necessary for an affidavit to accompany the special and limited appearance. Regarding any alleged waiver, Depp stated that the questions asked by his attorney at the depositions related to other defendants also represented by that attorney.
On November 28, 1989, the motion to strike was denied, while the motion to quash was granted, with language stating, "leave to issue an alias summons is allowed." Depp was served on March 20, 1990.
On April 12, 1990, a general appearance was filed on behalf of Depp. On April 17, 1990, Depp filed a motion to dismiss pursuant to Supreme Court Rule 103(b). (Ill.Rev.Stat.1989, ch. 110A, par. 103(b).) The motion to dismiss contended that since Depp was not properly served until more than two years after the lawsuit was filed, and the statute of limitations had run, due diligence had not been exercised by the plaintiffs. On August 6, 1990, the motion to dismiss was granted with prejudice as to the adult plaintiffs, Valorie and Scott, and without prejudice regarding the minor plaintiff, Matthew.
A motion for rehearing was brought with regard to the August 6, 1990, order and, on December 14, 1990, the trial court issued a memorandum and order denying the motion.
Discovery and other ancillary matters continued with regard to the other defendants. On the motion of the plaintiffs, an order was entered on July 17, 1992, granting a voluntary nonsuit as to the remaining defendants. The order was entered "without prejudice" pursuant to section 2-1009 of the Illinois of Code of Civil Procedure. See Ill.Rev.Stat.1991, ch. 110, par. 2-1009.
Plaintiffs filed a notice of appeal on August 14, 1992 appealing the following orders: (1) the August 6, 1990, order granting Depp's motion to dismiss; (2) the December 14, 1990, order denying plaintiffs' motion for reconsideration; and (3) the July 17, 1992, order "rendering as final the foregoing Orders." On August 25, 1992, Depp moved in this court to dismiss plaintiffs' appeal asserting that, inasmuch as plaintiffs sought review of nonappealable orders, this court lacked jurisdiction to entertain this appeal. Depp's motion to dismiss was taken with the appeal.
On July 15, 1993, plaintiffs Valorie and Scott Kleiman refiled a four-count complaint against the hospital, Nosek and Hoffman. As in their original complaint, plaintiffs assert claims grounded in negligence and loss of consortium. On August 6, 1993, Depp filed a motion to reconsider this court's prior order postponing disposition of Depp's motion to dismiss the appeal. Depp argues that the refiling of plaintiff's complaint results in two cases (one in the appellate court and one in the circuit court) arising out of the same operative facts and asserting the same claims, and thus, the maintenance of plaintiffs' appeal under these circumstances violates the letter of Supreme Court Rule 304(a), which was promulgated to prevent piece-meal appeals from interlocutory rulings. Depp further argues if the fact that plaintiffs voluntarily dismissed the remaining defendants had, at one time, persuaded the court that final, appealable orders existed, then the refiling of plaintiffs' claim against those same defendants now renders that conclusion incorrect. This motion was also taken with the appeal.
In light of the July 15, 1993, refiling of plaintiffs' complaint, for the following reasons we must dismiss plaintiffs' appeal for want of a nonfinal order and for want of jurisdiction to hear the merits of plaintiffs' appeal.
Subject to exceptions for appeals from interlocutory orders specified in the rules, the appellate court's jurisdiction is limited to review of final orders of a trial court. Flores v. Dugan (1982), 91 Ill.2d 108, 61 Ill.Dec. 783, 435 N.E.2d 480.
Supreme Court Rule 304(a) provides in relevant part: (Ill.Rev.Stat.1989, ch. 110A, par. 304(a).)
Absent the requisite finding that "there is no just reason to delay appeal," a judgment that disposes of fewer than all of the claims presented is not appealable. (Schlessinger v. Olsen (1984), 102 Ill.2d 497, 82 Ill.Dec. 378, 468 N.E.2d 1158.) Neither the August 6, 1990, order, nor the December 14, 1990, order contain 304(a) language. Moreover, the August 6, 1990, order preserves Matthew's ability to refile against Depp in the future, as the motion to dismiss was granted "without prejudice" as to Matthew.
Section 2-1009 provides that the plaintiff may voluntarily dismiss the case without prejudice "at any time before trial or hearing begins." (Ill.Rev.Stat.1991, ch. 110, par. 2-1009.) Section 13-217 allows the plaintiff the absolute right to refile the case within one year of a voluntary dismissal without prejudice. (Ill.Rev.Stat.1989, ch. 110, par. 13-217.) As a general rule a plaintiff cannot appeal an order of voluntary dismissal. (Edward E. Gillen Co. v. City of Lake Forest (1991), 221 Ill.App.3d 5, 163 Ill.Dec. 585, 581 N.E.2d 739; see also Kahle v. John Deere Co. (1984), 104 Ill.2d 302, 84 Ill.Dec. 650, 472 N.E.2d 787.) This is so because "the plaintiff * * * requested the order and thus is protected from prejudice by the statute of limitations which gives the plaintiff the absolute right to refile the action within one year of a voluntary dismissal without prejudice." (Edward E. Gillen Co., 221 Ill.App.3d at 9, 163 Ill.Dec. 585, 581 N.E.2d 739; see also Ill.Rev.Stat.1989, ch. 110, par. 13-217; Kahle v. John Deere...
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