McCorry v. Gooneratne
| Decision Date | 15 July 2002 |
| Docket Number | No. 1-00-3352., No. 1-00-1954 |
| Citation | 775 N.E.2d 591,332 Ill. App.3d 935,266 Ill.Dec. 751 |
| Parties | Richard McCORRY and Barbara McCorry, Plaintiffs-Appellants, v. Nihal GOONERATNE, and Evangelical Hospitals Corporation, f/k/a Christ Hospital and Medical Center, Defendants-Appellees (Thomas Hurley, Defendent). |
| Court | United States Appellate Court of Illinois |
Ambrose & Cushing, P.C. of Chicago (John C. Ambrose, F. John Cushing III, Thomas M. Cushing and Marilyn Martin, of counsel), for appellant.
Cassiday, Schade & Gloor of Chicago (Rudolf G. Schade, Kyle R. Burkhardt and Donald F. Evansek, of counsel), for appellee.
After surgery left Richard McCorry paralyzed, he and his wife, Barbara McCorry, sued the surgeon, Dr. Thomas Hurley, the radiologist, Dr. Nihal Gooneratne, and Christ Hospital, where Hurley performed the surgery. The trial court granted Gooneratne's motion for summary judgment because it found no evidence that Gooneratne's alleged negligence had any causal connection to the injuries. Plaintiffs appeal from that judgment in docket number X-XX-XXXX. Christ Hospital moved to dismiss one count of the amended complaint based on the statute of limitations. The trial court granted the motion, holding that the count did not relate back to the original complaint. Plaintiffs appeal from that ruling in docket number X-XX-XXXX. We consolidated the appeals.
Richard had back pain that prevented him from sitting for prolonged periods. The pain steadily worsened through 1993 and early 1994, to the point that Richard could no longer drive. In June 1994 Dr. Andrew Kazaniwskyj admitted Richard to Christ Hospital for a neurosurgery consultation. Hurley, a neurosurgeon, examined Richard and ordered a magnetic resonance imaging (MRI) test of the upper part of Richard's spine, the part in his neck. Gooneratne reported that the MRI showed disc herniation at two locations.
Hurley performed the surgery on October 27, 1994. When Richard awoke after surgery, Hurley tested his condition and found Richard unable to move his legs. Hurley ordered a new MRI. Although he discussed the possibility of further surgery with plaintiffs, he did not recommend surgery, as he had little hope of restoring any function to the legs. Richard remains paralyzed.
Plaintiffs filed their original complaint on October 25, 1996, alleging as follows:
Plaintiffs claimed that Richard's paralysis resulted from the negligence. Plaintiffs sought to hold Christ Hospital liable based on respondeat superior; they alleged no negligence of Christ Hospital apart from the negligence of the named doctors.
In his deposition Hurley swore that he interpreted the MRI films himself when he performed the operation. He did not rely on Gooneratne's report. Gooneratne moved for summary judgment, and he attached to his motion an excerpt from the transcript of the deposition. Plaintiffs missed the initial date for a response to the motion and sought an extension of time. The trial court allowed extra time but added that plaintiffs should respond with "Counter Affidavits only." After plaintiffs filed their affidavits but no brief, the court denied the motion for summary judgment because Gooneratne failed to supply all relevant portions of Hurley's deposition.
Gooneratne moved for reconsideration, supporting the motion with the complete transcript of Hurley's deposition. By order dated January 28, 2000, the court set the motion for ruling on February 28, 2000. Plaintiffs did not seek leave to respond to the motion for reconsideration. On February 28, 2000, the court granted the motion for reconsideration and entered summary judgment in favor of Gooneratne. The court added, "This finding is made pursuant to Supreme Court Rule 3204(a) [sic] thus there is no just reason to delay the enforcement or appeal of this order."
Plaintiffs moved to reconsider the judgment and fully briefed the merits of the summary judgment motion. By order dated April 19, 2000, the trial court denied the motion for reconsideration, stating that the "summary judgment entered in favor of Dr. Nihal Gooneratne on February 28, 2000 stands." On May 16, 2000, plaintiffs moved for a finding that the order denying the motion to reconsider was final and appealable. The court granted the motion by order dated May 22, 2000. Plaintiffs filed their notice of appeal for docket number X-XX-XXXX on June 2, 2000.
Gooneratne asks this court to dismiss plaintiffs' appeal for want of jurisdiction. Supreme court rules narrowly circumscribe this court's jurisdiction. If the appellant fails to comply with the deadline for appeals provided in Supreme Court Rule 303 (155 Ill.2d R. 303), this court lacks authority to consider the appeal. See Bernhauser v. Glen Ellyn Dodge, Inc., 288 Ill.App.3d 984, 989, 225 Ill.Dec. 531, 683 N.E.2d 1194 (1997). When the trial court finds no reason to delay enforcement or appeal of a judgment that is final with respect to one of multiple parties to a case, the appellant must file the notice of appeal within 30 days after disposition of postjudgment motions. 155 Ill.2d Rs. 303(a)(1), 304(a).
Here the trial court purported to enter a final judgment in favor of Gooneratne on February 28, 2000. The court expressly found no reason to delay enforcement or appeal, apparently rendering the judgment immediately appealable under Supreme Court Rule 304. 155 Ill.2d R. 304(a); Reyes v. Compass Health Care Plans, 252 Ill.App.3d 1072, 1078, 192 Ill. Dec. 286, 625 N.E.2d 246 (1993). Plaintiffs filed a timely postjudgment motion for reconsideration, tolling the time for appeal. Elmhurst Auto Parts, Inc. v. Fencl-Tufo Chevrolet, Inc., 235 Ill.App.3d 88, 90, 175 Ill.Dec. 771, 600 N.E.2d 1229 (1992). Plaintiffs had 30 days from the denial of their motion for reconsideration in which to file the notice of appeal. They did not do so. Instead, they later filed a motion for a second finding of appealability and filed a notice of appeal after the court granted that motion. Even if we construed the motion for a finding of appealability as a postjudgment motion, the appeal filed after that finding would not be timely, because a second successive postjudgment motion does not toll the time for appeal. Sears v. Sears, 85 Ill.2d 253, 259, 52 Ill. Dec. 608, 422 N.E.2d 610 (1981).
Plaintiffs try several different theories to show that the rules authorize this court to hear this appeal. First plaintiffs suggest that the order dated February 28, 2000, lacked the finding requisite for appealability under Rule 304(a). Although the court found no just reason to delay appeal, the court made the finding pursuant to a nonexistent "Rule 3204(a)." In re Application of DuPage County Collector, 152 Ill.2d 545, 178 Ill.Dec. 773, 605 N.E.2d 567 (1992), established applicable standards for Rule 304(a) findings. When the judgment dismisses a count of the complaint, the court must refer to the judgment's immediate appealability. DuPage County, 152 Ill.2d at 550-51, 178 Ill.Dec. 773, 605 N.E.2d 567. Other language found here is unnecessary surplusage with no effect on appealability. DuPage County, 152 Ill.2d at 549-50, 178 Ill.Dec. 773, 605 N.E.2d 567. The court here made the finding requisite for immediate appealability.
Plaintiffs argue that the order dated February 28, 2000, was not a final judgment. Plaintiffs point out that the trial court here failed to hold a hearing on the summary judgment motion before entering the order of February 28, 2000, and court rules require such a hearing.
A judgment is final if it determines the rights of the parties on some definite part of the litigation. Citicorp Savings of Illinois v. First Chicago Trust Co. of Illinois, 269 Ill.App.3d 293, 296-97, 206 Ill.Dec. 786, 645 N.E.2d 1038 (1995). The order of February 28, 2000, granted Gooneratne summary judgment on the only claim against him, thereby terminating the litigation against him. That order constitutes a final judgment unless it is void, and it is void only if the court lacked jurisdiction to enter the judgment (People v. Davis, 156 Ill.2d 149, 155, 189 Ill.Dec. 49, 619 N.E.2d 750 (1993)), or if a party procured the judgment through fraud (Terra-Nova Investments v. Rosewell, 235 Ill.App.3d 330, 335, 176 Ill.Dec. 411, 601 N.E.2d 1109 (1992)).
Plaintiffs have not argued that fraud contributed to the judgment. Our supreme court in Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 531, 259 Ill.Dec. 729, 759 N.E.2d 509 (2001), held that a judgment is not void for want of jurisdiction as long as the court has both subject matter jurisdiction and personal jurisdiction over the parties. Plaintiffs, who sought the circuit court's adjudication of their claims, do not dispute its subject matter jurisdiction or its personal jurisdiction over them. Accordingly, the judgment in favor of Gooneratne entered on February 28, 2000, was a valid final judgment disposing of the claim against him. Any error or irregularity in its entry cannot affect its validity as a final judgment. See Miller v. Balfour, 303 Ill. App.3d 209, 216, 236 Ill.Dec. 632, 707 N.E.2d 759 (1999).
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