Knapp v. Bulun

• Decision Date: 30 June 2009
• Docket Number: No. 1-08-2299.,1-08-2299.
• Citation: 911 N.E.2d 541
• Parties: Lisa KNAPP and Kevin Knapp, Plaintiffs-Appellants, v. Serdar BULUN, Northwestern Memorial Physicians Group, and Northwestern Medical Faculty Foundation, Inc., Defendants, and George J. O'Neil, Jr., and O'Neil Associates, S.C., Respondents in Discovery-Appellees.
• Court: United States Appellate Court of Illinois

911 N.E.2d 541

Lisa KNAPP and Kevin Knapp, Plaintiffs-Appellants, v. Serdar BULUN, Northwestern Memorial Physicians Group, and Northwestern Medical Faculty Foundation, Inc., Defendants, and George J. O'Neil, Jr., and O'Neil Associates, S.C., Respondents in Discovery-Appellees.

No. 1-08-2299.

Appellate Court of Illinois, First District, Second Division.

June 30, 2009.

James P. Ginzkey (of counsel), Bloomington, IL, for Appellants.

Johnson & Bell, Ltd. (Mark D. Johnson & Garrett L. Boehm, Jr., of counsel), Chicago, IL, for Appellees.

Justice HOFFMAN delivered the opinion of the court:

The plaintiffs, Lisa Knapp and Kevin Knapp, appeal from the circuit court's order terminating the status of O'Neil Associates, S.C., (O'Neil Associates) and George J. O'Neil, Jr., (collectively, the O'Neils or the O'Neil respondents) as respondents in discovery. For the reasons that follow, we affirm the judgment of the circuit court.

The record reflects the following relevant facts. On December 8, 2006, the plaintiffs brought this action seeking recovery for personal injuries and loss of consortium allegedly caused by negligent medical treatment rendered to Lisa during December 2004 and January 2005. The complaint named Northwestern Memorial Physicians Group, Northwestern Medical Faculty Foundation, Inc., (collectively, the Northwestern defendants), and Dr. Serdar Bulun as defendants. The complaint also named Dr. George J. O'Neil, Jr., and O'Neil Associates, the corporation through which Dr. O'Neil conducted his medical practice, as respondents in discovery. On the same day the complaint was filed, the plaintiffs caused a summons for discovery to be issued against Dr. O'Neil, pursuant to section 2-402 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-402 (West 2006)). The summons for discovery indicated that Dr. O'Neil was required to appear for a deposition on February 23, 2007. In addition, the summons reflected that the sheriff was directed to serve "George O'Neil, Jr., Merrick Hayes, Registered Agent, 202 N. Center St., Bloomington, Illinois, 61701." Merrick Hayes was the registered agent for O'Neil Associates. On December 18, 2006, the summons for discovery against Dr. O'Neil was delivered to Paula Cree, the paralegal and secretary to Merrick Hayes, at the address listed on the summons. Cree forwarded a copy of the summons to Dr. O'Neil's office address by first-class mail. No summons for discovery was issued in the name of O'Neil Associates.

On December 20, 2006, Joyce Stalter, the office manager for O'Neil Associates, faxed the summons for discovery to Johnson & Bell, Ltd., a law firm that was representing Dr. O'Neil in another medical malpractice case that had been filed by the plaintiffs' attorney but which involved a different plaintiff. Stalter also telephoned the office of plaintiffs' counsel and advised his assistant, Shawntelle Thornton, that Dr. O'Neil was not available to appear for a deposition on the specified date due to a vacation. Over the next several weeks, Thornton telephoned Dr. O'Neil's medical office three times, seeking to reschedule his deposition. On February 9, 2007, Stalter informed Thornton that Dr. O'Neil was on vacation and that his practice was closing. According to Stalter, Dr. O'Neil never provided her with any acceptable deposition dates, and he advised her that he was not going to appear for a deposition.

On February 22, 2007, the plaintiffs filed a motion pursuant to Supreme Court Rule 204(c) (166 Ill.2d R. 204(c)), requesting that the trial court issue a subpoena against Dr. O'Neil to appear for his deposition. The plaintiffs also moved for an extension of time to file the certificate of merit required by section 2-622 of the Code (735 ILCS 5/2-622 (West 2006)). On March 7, 2007, the trial court granted both motions, but the record does not reflect that the Rule 204(c) subpoena was ever issued.

In mid-April 2007, the plaintiffs obtained the section 2-622 certificate of merit, which concluded that a meritorious cause of action existed against the O'Neil respondents. On April 24, 2007, the plaintiffs' attorney served counsel for the Northwestern defendants with a motion to convert the respondents in discovery to defendants and with a motion for leave to file an amended complaint. Both motions were sent by United States mail and were received by counsel for the Northwestern defendants. The record on appeal does not include a file-stamped copy of either motion, nor does it reflect that either motion was sent to or received by the Clerk of the Circuit Court of Cook County.

At a case-management conference held on May 9, 2007, the trial court heard and granted the plaintiffs' motion for leave to file an amended complaint.¹ The amended complaint named Dr. O'Neil and O'Neil Associates as party defendants and asserted medical negligence claims against them in counts III through V. Following the filing of the amended complaint, the Clerk of the Circuit Court of Cook County issued summonses against Dr. O'Neil and O'Neil Associates. Each summons directed the sheriff to serve the named defendant "c/o Merrick Hayes, Registered Agent, 202 N. Center St., Bloomington, IL 61701." Both summonses were delivered to Cree, the paralegal and secretary to Merrick Hayes, at the address listed on the summons. Cree forwarded a copy of the summons against Dr. O'Neil to his office address by first-class mail.

On June 12, 2007, the plaintiffs caused an alias summons to be issued against Dr. O'Neil for service at his residence at 14 Rock Garden Court, Unit 1, Bloomington, Illinois. During June 2007, one of the attorneys representing Dr. O'Neil advised plaintiffs' counsel that Dr. O'Neil had moved to Kuwait and was not amenable to service in Illinois. After receiving this information, plaintiffs moved for the appointment of a private process server in order to effect service on Dr. O'Neil in a foreign jurisdiction. The court granted the plaintiffs' motion on July 11, 2007. That same day, substitute service of the alias summons against Dr. O'Neil was accomplished by service on his wife, Charla O'Neil, at their residence in Bloomington, Illinois.

On October 4, 2007, the trial court entered an order vacating all technical defaults against the O'Neil defendants and allowing them to answer or otherwise plead within 21 days. That order further stated that the discovery deposition of Dr. O'Neil was to be set by agreement of the parties. On October 25, 2007, counsel for the O'Neils filed an appearance and jury demand. That same day, the O'Neils moved to vacate the order of May 9, 2007, which had granted the plaintiffs leave to file an amended complaint naming them as party defendants. This motion was predicated on the contention that the court lacked personal jurisdiction over them because they had not been properly served with the original complaint or with summonses for discovery. The O'Neils also moved to strike counts III through V of the amended complaint on the same grounds. After briefing, the trial court granted both motions on April 18, 2008.

Thereafter, the plaintiffs caused new summonses for discovery to be issued against the O'Neils. These summonses were served on May 13, 2008. Dr. O'Neil was served personally, and service of O'Neil Associates was accomplished through service on the Secretary of State. The plaintiffs subsequently filed a motion for reconsideration, a second motion to convert the respondents in discovery to party defendants, and a second motion for leave to file an amended complaint. The O'Neils then filed a motion to terminate their status as respondents in discovery. On July 15, 2008, the trial court granted the O'Neils' motion, finding that they had not been timely and properly served with summonses for discovery and the original complaint. The July 15, 2008, order included a finding, pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)), that there was no just cause for delay in enforcement or appeal of that ruling.²

A week later, the plaintiffs filed the affidavit of counsel for the Northwestern defendants, attesting that the plaintiffs' motion for leave to file an amended complaint was heard and granted on May 9, 2007. This affidavit did not indicate that the trial court had ever heard or granted a motion to convert the O'Neil respondents in discovery to defendants or that the trial court had made the requisite finding of probable cause for such conversion. On August 8, 2008, the plaintiffs filed a notice of appeal challenging the July 15, 2008, order terminating the status of the O'Neils as respondents in discovery.

We initially address the assertion by the O'Neils that this court lacks jurisdiction to review the propriety of the April 18, 2008, order, which vacated the grant of leave to file an amended complaint, because it was an interlocutory order that was not specifically challenged in the notice of appeal.

It is established that "a notice of appeal is to be liberally construed." Burtell v. First Charter Service Corp., 76 Ill.2d 427, 433-34, 31 Ill.Dec. 178, 394 N.E.2d 380 (1979). Also, "[u]nless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only, and not of substance, the appellate court is not deprived of jurisdiction." Burtell, 76 Ill.2d at 434, 31 Ill.Dec. 178, 394 N.E.2d 380. An appeal from a final judgment draws into issue all previous interlocutory orders that produced the final judgment. Burtell, 76 Ill.2d at 433, 31 Ill.Dec. 178, 394 N.E.2d 380; Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill.App.3d 528, 538, 241 Ill.Dec. 41, 718 N.E.2d 612 (1999). Consequently, a court of review has jurisdiction to review an interlocutory order that constitutes a procedural step in the progression leading to the entry of the final judgment from which an appeal has been taken. Valdovinos, 307 Ill.App.3d at 538, 241 Ill.Dec. 41...