Nenadic v. Grant Hospital

• Decision Date: 14 August 1979
• Docket Number: No. 78-434,78-434
• Citation: 394 N.E.2d 527,31 Ill.Dec. 325,75 Ill.App.3d 614
• Parties: , 31 Ill.Dec. 325 Dragica NENADIC, Plaintiff-Appellant, v. GRANT HOSPITAL, Defendant, and E. G. Eichbaum, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 527

394 N.E.2d 527

75 Ill.App.3d 614, 31 Ill.Dec. 325

Dragica NENADIC, Plaintiff-Appellant, v. GRANT HOSPITAL, Defendant and E. G. Eichbaum, M.D., Defendant-Appellee.

No. 78-434.

Appellate Court of Illinois, First District, Second Division.

Aug. 14, 1979.

Rehearing Denied Sept. 12, 1979.

Vincent C. Lopez, Chicago, for plaintiff-appellant.

Hinshaw, Culberton, Moelmann, Hoban & Fuller, Chicago, for defendant.

STAMOS, Presiding Justice:

Plaintiff has appealed from orders of the trial court entered on November 2, December 23, and December 30, 1977. Those orders dismissed plaintiff's medical malpractice cause of action and denied her subsequent motions to vacate that dismissal. In reality, however, plaintiff's appeal culminates her various efforts to reopen the original default order entered on February 8, 1977. This appeal demonstrates the conflict between those policies which on the one hand recognize the need for finality in orders but on the other favor disposition of the litigant's claims on the merits. With respect to those avenues of relief which were timely pursued, plaintiff has not filed a timely notice of appeal from their denial. Other avenues of relief pursued in the trial court were either barred by earlier proceedings or not pursued in a timely manner and, therefore, their denial provides no basis for appeal. Thus, since we are provided with no jurisdictional basis to hear plaintiff's claim, we must dismiss the appeal.

This protracted matter arose from a malpractice suit filed against Grant Hospital and Dr. E. G. Eichbaum on June 18, 1975. The trial court dismissed the complaint with prejudice as to Grant Hospital on October 17, 1975, leaving Dr. Eichbaum as the sole defendant. In late 1976 the court scheduled a pretrial conference and, since interrogatories had been exchanged over a year earlier, ordered that all discovery should be completed prior to the conference. The order specified further that the pretrial would be conducted in accordance with Supreme Court Rules 218 and 219(c), which provide, Inter alia, for judicial sanctions for noncompliance with discovery orders and for nonattendance at pretrial conferences. (See Ill.Rev.Stat.1977, ch. 110A, pars. 218, 219(c).) Plaintiff, her attorney, and defendant's attorney were all directed to appear. The order also warned that "if plaintiff and plaintiff's attorney fail to appear at said time, this cause will be dismissed under the provisions of Supreme Court Rules 218 and 219(c)." After a continuance, the matter was set for February 8, 1977, and, in accordance with the above order, defendant submitted his answers to interrogatories approximately one month before. Plaintiff concedes in her brief that she neglected to attend the deposition and failed to answer interrogatories propounded by defendant. In addition, plaintiff and her attorney did not attend the above mentioned pretrial conference. Accordingly, the trial judge ordered the cause dismissed.

On March 8, 1977, plaintiff filed a notice of motion to vacate the dismissal. It was entered and continued a total of four times. The case was finally set for a hearing on April 20. Uncontradicted affidavits submitted by defendant's attorneys state that neither plaintiff nor plaintiff's attorney attended the proceedings. As a result, once again the plaintiff's cause of action lapsed, and the court dismissed the motion to vacate. Defendant sent plaintiff a notice of the dismissal.

Six months passed. Then on November 1, 1977, the case came to life once more. The trial court entered the following order which is the source of some of the confusion that has resulted in this appeal:

"This cause having come on to be heard on plaintiff's petition to vacate the order of dismissal entered on February 8, 1977, due notice given and the court fully advised on the premises:

It is hereby ordered that hearing on plaintiff's petition be and hereby is continued to November 2, 1977 at 9:00 a. m. and this matter set for pre-trial conference at said time before Judge Canel without notice to the parties."

Neither the petition to which this order refers nor any report of the proceeding appears of record. On either November 2 or 3 the court ordered that "plaintiff's petition to vacate the order of dismissal entered on February 8, 1977 be and hereby is dismissed and plaintiff's cause of action is hereby stricken and dismissed for the further reason that plaintiff has not produced the name of any expert witness against the defendant." Once again, no motion or report of proceedings is contained in the record.

The month of December produced an onslaught of petitions and orders:

December 1, 1977 plaintiff's emergency motion which:

(1) acknowledges that a verified petition to vacate the order of dismissal was presented on November 1;

(2) petitions the court to vacate the orders of February 8 and November 2;

and (3) petitions the court for a substitution of attorneys.

December 23, 1977 order denying plaintiff's motions to vacate but allowing substitution of attorneys (Vincent Lopez for Thomas Donnelly).

December 30, 1977 motion for a rehearing on the denial of plaintiff's motion and for leave to file answers and objections to interrogatories.

December 30, 1977 motion for rehearing and leave to file answers denied.

On January 3, 1978, plaintiff filed a notice of appeal from the following orders: 1) the November 2 dismissal of plaintiff's cause of action as to defendant, Dr. Eichbaum, for failure to produce the name of an expert witness; 2) the December 23 denial of plaintiff's motion to vacate the orders of November 2 and February 8; and 3) the December 30 denial of plaintiff's motion for a rehearing and for leave to file answers to interrogatories instanter. Although not appearing of record, all parties agree that plaintiff next filed a motion to this court pursuant to Supreme Court Rule 303(e) (Ill.Rev.Stat.1977, ch. 110A, par. 303(e)), seeking an extension of time in which to file a notice of appeal from the original February 8 default dismissal and the November 2 denial of plaintiff's petition to vacate the February 8 order. The motion for an extension was denied and, therefore, the issues on appeal are limited to those raised in the first notice of appeal.

I.

Once a default order is entered, the litigant has three different means of reopening the judgment. The first two methods must be pursued within thirty days of the entry of judgment: an appeal under Supreme Court Rule 303 (Ill.Rev.Stat.1977, ch. 110A, par. 303) and a motion to vacate under section 50(5) of the Civil Practice Act. (Ill.Rev.Stat.1977, ch. 110, par. 50(5).) The third mode of attacking the order allows a section 72 petition to be presented after 30 days from the entry of a final order, judgment or decree if a party brings to the attention of the court matters of fact which, if known to the court at the time judgment was entered, would have prevented rendition of the judgment. (Ill.Rev.Stat.1977, ch. 110, par. 72; Resto v. Walker (1978), 66 Ill.App.3d 733, 739, 23 Ill.Dec. 334, 383 N.E.2d 1361.) Each of these three methods has been used at least once to attack the February default judgment.

When that default judgment was entered, plaintiff chose not to appeal and instead filed a post-trial motion under section 50(5). (Ill.Rev.Stat.1977, ch. 110, par. 50(5).) Section 50(5) is designed to have sufficient scope to allow the petitioner "the right to file a motion to vacate any final judgment within thirty days on any terms that are reasonable" and, in contrast to section 72, which requires new facts, "(t)he guidelines for considering such motions are based on the common law principles of right and wrong, prevention of injury, and furtherance of justice." Note, Post Trial Motions New Flexibility, 25 DePaul L.Rev. 737, 741 (1976) (footnotes omitted).

After several continuances, a hearing was held and the motion to vacate denied. An uncontradicted affidavit, presented by defendant, avers that neither plaintiff nor her attorney attended this proceeding. Once the trial court ruled ex parte to deny the 50(5) motion directed against the February 8 judgment, plaintiff once again had the right to appeal. (Ill.Rev.Stat.1977, ch. 110A, par. 303(a); Dolon v. Miller (1976), 42 Ill.App.3d 64, 68, 355 N.E.2d 195). However, no appeal was filed within the 30-day limit set out in Supreme Court Rule 303. See Weaver v. Bolton (1965), 61 Ill.App.2d 98, 109, 209 N.E.2d 5 (errors in judgments should be challenged by appeal).

Rather than appealing either of these orders in a timely manner, plaintiff is now appealing the December 1 denial of a motion to vacate the February 8 order. Whether the December motion was a belated attempt to file a motion to vacate so as to extend the time for appeal or a section 50(5) continuation of the February 8 proceeding, it was raised improperly more than nine months after the default proceeding. Notice of appeal alone does not vest jurisdiction in the appellate court to consider all matters presented. (Wright v. Thompson (1977), 50 Ill.App.3d 149, 151, 8 Ill.Dec. 318, 365 N.E.2d 556.) Neither do successive motions to vacate extend the time for appeal from a final judgment. (See Weaver v. Bolton (1965), 61 Ill.App.2d 98, 209 N.E.2d 5; Handing v. Power Ford, Inc. (1978), 67 Ill.App.3d 466, 24 Ill.Dec. 328, 385 N.E.2d 95.) Therefore, in the absence of proper preservation or presentation of this matter by timely appeal, we do not have jurisdiction to review the propriety of the February 8 order as raised in the December 1, 1977, petition. See generally Ruttenberg v. Red Plastic Co. (1979), 68 Ill.App.3d 728, 25 Ill.Dec. 345, 386 N.E.2d 616; Norris v. Board of Fire & Police Comm'rs (1975), 30 Ill.App.3d 224, 227, 332 N.E.2d 553.

II.

Even if thirty days have passed since the entry of a final judgment, the order can be reopened in either of two ways compliance with the requisites of a section 72 petition (Ill.Rev.Stat.1977,...