Neufville v. Diamond
| Decision Date | 29 July 1994 |
| Docket Number | No. 1-92-3950,1-92-3950 |
| Citation | 638 N.E.2d 683,202 Ill.Dec. 815,267 Ill.App.3d 1002 |
| Parties | , 202 Ill.Dec. 815 Timothy NEUFVILLE, Plaintiff-Appellant, v. Merle DIAMOND, M.D., Emergency Management Systems, Emergency Medical Associates, Emergency Medical Delivery, and St. Francis Hospital, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Lane & Lane, Chicago (Stephen I. Lane, of counsel), for appellant.
Wildman, Harrold, Allen & Dixon, Chicago (Kathy P. Fox, James G. Bonebrake, of counsel), for appellees.
Timothy Neufville (plaintiff) filed an original complaint naming John Doe, M.D. as a defendant and Merle Diamond, M.D. and St. Francis Hospital as respondents in discovery pursuant to 735 ILCS 5/2-402 (West Supp.1993) (). Plaintiff later moved to amend his complaint and convert the respondents in discovery to defendants.
Defendant Merle Diamond, M.D. moved to dismiss plaintiff's amended complaint pursuant to 735 ILCS 5/2-619(a)(1) (West Supp.1993) (section 2-619(a)(1)) for lack of subject matter jurisdiction. The trial court granted defendant Diamond's request and plaintiff appealed. The issues presented for review are (1) whether the trial court properly dismissed plaintiff's case for lack of subject matter jurisdiction and properly ruled that section 2-402 requires the naming of a real person or entity and (2) whether the trial court acted properly by retroactively applying the case law.
We affirm.
Plaintiff filed his original complaint on March 19, 1991. Count I alleged a claim against a fictitious "John Doe, M.D." for injuries resulting from "John Doe, M.D.'s" negligent treatment of plaintiff for back pain and paresthesia. Plaintiff requested money damages. No summons was ever served on "John Doe, M.D.," nor was such a summons sought.
Count II set forth allegations against respondents in discovery, including defendants Dr. Diamond and St. Francis Hospital, but stated no allegations of negligence or injuries caused by negligence. Count II did not request money damages.
On September 9, 1991, plaintiff moved for leave to file an amended complaint to convert the respondents in discovery to defendant status pursuant to the provisions of section 2-402. On October 9, 1991, plaintiff filed his The trial court granted plaintiff leave to convert Dr. Diamond and St. Francis Hospital from respondents in discovery to defendants.
[202 Ill.Dec. 817] first amended complaint naming real defendants for the first time and for the first time making substantive allegations of negligence.
Dr. Diamond and St. Francis Hospital (defendants) moved for dismissal of plaintiff's action pursuant to section 2-619(a)(1) contending that as plaintiff merely named a "Doe" defendant, he failed to comply with the requisites of section 2-402 and, thus, the trial court never acquired subject matter jurisdiction.
The trial court granted defendants' motion and dismissed plaintiff's first amended complaint for lack of subject matter jurisdiction ruling that:
"I read this complaint; and applying the law that's been set down under Theodorokakis [sic] as a justification for bringing John Doe lawsuits, the Court has taken the position that it does not have any jurisdiction * * * and applying Gorten [sic] Gonzales, Armour and Jacobs, I can't say that the statement of one legislator to another actually shows a legislative intent to allow the John Doe lawsuit to be brought."
The court further stated that:
"[t]he protections of the statute were not intended for a single defendant case; they were intended for a non-wide-range complaint naming multiple people who may or may not have something to do with the cause of action."
Plaintiff appealed after the trial court denied his motion for reconsideration.
OPINIONPlaintiff contends that the trial court improperly dismissed his case by ruling that it lacked subject matter jurisdiction and by also ruling that the respondent in discovery statute required the naming of a real person or entity as a defendant. We disagree.
Section 2-402 provides, in pertinent part:
"The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.
* * * * * *
A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period." 735 ILCS 5/2-402 (West Supp.1993) (Emphasis added.)
Whether section 2-402 clearly requires the naming of a defendant has been addressed in numerous cases. All of the following cases hold that the language of section 2-402 contemplates the existence of a named defendant: (Roe v. Little Co. of Mary Hospital (1992), 815 F.Supp. 244, 246; Armour v. Petersen (4th Dist.) (1991), 219 Ill.App.3d 289, 290-91, 162 Ill.Dec. 374, 579 N.E.2d 1188; Gonzales v. Pro Ambulance Service (4th Dist.) (1991), 219 Ill.App.3d 284, 288, 162 Ill.Dec. 370, 579 N.E.2d 1184; Jacobs v. Abbott Laboratories (5th Dist.) (1991), 213 Ill.App.3d 998, 1000-01, 157 Ill.Dec. 767, 572 N.E.2d 1231.) We find Roe, Armour, and Jacobs apposite to the case sub judice.
The naming of a legally nonexistent party renders an action void ab initio. (Theodorakakis v. Kogut (1990), 194 Ill.App.3d 586, 589, 141 Ill.Dec. 268, 551 N.E.2d 261.) For, Illinois does not allow suits against unknown persons. Hailey v. Interstate Machinery Co. (3d Dist.) (1984), 121 Ill.App.3d 237, 238, 76 Ill.Dec. 709, 459 N.E.2d 346.
We note that plaintiff posits that Whitley v. Lutheran Hospital (3d Dist.) (1979), 73 Ill.App.3d 763, 766, 30 Ill.Dec. 74, 392 N.E.2d 729, is apposite to this case. We disagree. The court, in Whitley, held that jurisdiction over a doctor could be obtained by service of complaint naming the doctor as a respondent in discovery. Whitley is inapposite because in that case, subject matter jurisdiction was not at issue and was not decided. Whitley only decided the process by which a court acquired in personam jurisdiction. Therefore, plaintiff's reliance on Whitley is misplaced.
More analogous is the third district court's ruling in Guertin v. Guertin (3d Dist.) (1990), 204 Ill.App.3d 527, 149 Ill.Dec. 643, 561 N.E.2d 1339. There, the court stated that by virtue of the clear language of section 2-402, it was contemplated that a complaint should be filed with at least one named defendant before a party could employ section 2-402. Guertin, 204 Ill.App.3d at 531, 149 Ill.Dec. 643, 561 N.E.2d 1339.
In Guertin, Peter Guertin and Jeanette Wheeler (Peter and Jeanette or plaintiffs), filed an unverified equitable bill of discovery in order to depose a family member (Hazel) and a bank to aid in possible claims. They speculated that Hazel, and her deceased husband had exercised undue influence over a deceased family member (Wilfred) while he was alive because Wilfred made Hazel and her deceased husband joint tenants with him on three certificates of deposit. Guertin, 204 Ill.App.3d at 528, 149 Ill.Dec. 643, 561 N.E.2d 1339.
Hazel moved to dismiss the petition citing that the court lacked subject matter jurisdiction because the plaintiff's petition was to seek discovery to determine whether a cause of action existed against a known defendant. The trial court denied this motion. Hazel then moved for an order authorizing an interlocutory appeal. The trial court denied that motion. Hazel then moved the appellate court for leave to appeal in order to avoid being held in contempt. Guertin, 204 Ill.App.3d at 528, 149 Ill.Dec. 643, 561 N.E.2d 1339.
Peter and Jeanette filed a motion to dismiss the appeal and a motion to impose sanctions pursuant to section 2-611 of the Illinois Code of Civil Procedure. Both motions were allowed and the cause remanded to the trial court. Peter and Jeanette set Hazel's deposition. Hazel did not appear and the trial court held her to be in civil contempt. Hazel appealed requesting the Guertin court to vacate the trial court's order.
The Guertin court stated that the trial court's action was void ab initio because the underlying action was outside of the trial court's jurisdiction. Thus, the Guertin court vacated Hazel's contempt citation. In holding that the trial court lacked jurisdiction to grant appellees' (plaintiffs') motion, the appellate court addressed the section 2-402 issue. According to the Guertin court, plaintiffs had alleged that section 2-402 was a codification of the common law equitable bill of discovery and that their motion fell within the purview of section 2-402. The Guertin court disagreed:
"By the very clear language of section 2-402 () it is contemplated that a complaint has to be filed with at least one named defendant before a party may employ section 2-402." Guertin, 204 Ill.App.3d at 531, 149 Ill.Dec. 643, 561 N.E.2d 1339. (Emphasis added.)
Guertin was decided eleven years after Whitley and other courts have since followed Guertin in this respect. See Armour, 219 Ill.App.3d at 290-91, 162 Ill.Dec. 374, 579 N.E.2d 1188; Gonzales, 219 Ill.App.3d at 286-87, 162 Ill.Dec. 370, 579 N.E.2d 1184; Jacobs, 213 Ill.App.3d at 1000-01, 157 Ill.Dec. 767, 572 N.E.2d 1231.
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