Savage v. Mui Pho

• Decision Date: 07 April 2000
• Docket Number: No. 5-99-0341.,5-99-0341.
• Court: United States Appellate Court of Illinois
• Parties: Billy D. SAVAGE, Plaintiff-Appellant, v. MUI PHO, M.D., Defendant-Appellee.

727 N.E.2d 1052

312 Ill. App.3d 553

245 Ill.Dec. 318

Billy D. SAVAGE, Plaintiff-Appellant, v. MUI PHO, M.D., Defendant-Appellee.

No. 5-99-0341.

Appellate Court of Illinois, Fifth District.

April 7, 2000.

John J. Hopkins, Ted N. Gianaris, Hopkins, Goldenberg, P.C., Granite City, for Appellant.

Lackey & Lackey, P.C., Centralia, for Appellee.

Justice HOPKINS delivered the opinion of the court:

Plaintiff, Billy D. Savage, appeals from the trial court's order granting defendant's, Dr. Mui Pho's, motion to dismiss his complaint for medical malpractice. The basis of the court's dismissal was that the order granting plaintiff's motion for leave to amend his complaint to add Dr. Pho as a defendant, obtained ex parte and without notice to the other defendants, was void. The court further held that plaintiff's amended complaint against Dr. Pho was a nullity. We reverse and remand.

FACTS

Plaintiff received treatment, for a laceration of the palm of his right hand, in the emergency room of the public hospital of the town of Salem (the hospital) on October 14, 1996. Subsequently, plaintiff underwent surgery to correct a problem with his right hand that resulted from the improper treatment he received earlier at the hospital. Plaintiff filed a two-count medical malpractice complaint against the hospital and Dr. Sarnit Charnoud on August 24, 1998. Dr. Charnoud filed his answer to plaintiff's complaint on September 25, 1998, asserting that he did not treat plaintiff on October 14, 1996; however, plaintiff's medical records from the hospital's emergency room for October 14, 1996, reflected that Dr. Charnoud's name was typed in the space entitled "attending physician."

On October 6, 1998, Dr. Charnoud filed a motion for summary judgment, again asserting that he did not provide medical services to plaintiff on October 14, 1996. In Dr. Charnoud's affidavit attached to his motion for summary judgment, Dr. Charnoud stated that plaintiff's medical record from the hospital's emergency room for October 14, 1996, indicated that Dr. Mui Pho was plaintiff's attending physician on that date.

On October 8, 1998, two days after Dr. Charnoud's motion for summary judgment was filed, plaintiff filed a motion for leave to amend his complaint to add Dr. Pho as a defendant. Plaintiff made his amended complaint a part of his motion for leave to amend. The court granted plaintiff's motion for leave to amend ex parte and without a hearing the same day, October 8, 1998. Also on October 8, 1998, plaintiff mailed a copy of his motion for leave to amend, the order granting leave to amend, and the amended complaint to the attorneys for the hospital and Dr. Charnoud. Dr. Pho was personally served with the complaint and summons on October 14, 1998. Dr. Charnoud and the hospital each filed an answer to plaintiff's amended complaint. In their answers neither defendant objected to the lack of notice for plaintiff's motion for leave to amend or to the amended complaint. Following the filing of plaintiff's amended complaint, Dr. Charnoud also filed an amended motion for summary judgment.

On November 30, 1998, Dr. Pho filed a motion to dismiss plaintiff's complaint against him, asserting that the order was improperly obtained as no notice was given to the original parties either for plaintiff's motion for leave to amend or for the hearing conducted on the motion, in violation of the fourth judicial circuit's local rule 5-1. Dr. Pho also asserted in his motion to dismiss that plaintiff did not state the reason for the amendment or "show the materiality or propriety of the proposed amendment or explain why the proposed additional matter had been omitted from earlier proceedings and was not supported by any affidavit." Dr. Pho asserted that the order granting leave to amend was void and that the amended complaint was a nullity, and he asked that service of summons on him be quashed.

Plaintiff objected to Dr. Pho's motion to dismiss, and in his memorandum in opposition to the motion, plaintiff stated that the matter was clearly an emergency motion, "one prompted by the press of the statute of limitations, permitted under Local Rule 5.2 [sic] and equally permissible under the appropriate civil practice and Supreme Court [r]ules."

On February 3, 1998, the trial court, following a hearing, granted Dr. Charnoud's motion for summary judgment and granted Dr. Pho's motion to dismiss. In so ruling, the trial court relied upon First Robinson Savings & Loan v. Ledo Construction Co.,210 Ill.App.3d 889,155 Ill. Dec. 304,569 N.E.2d 304 (1991), as dispositive of Dr. Pho's motion to dismiss. Plaintiff's claim against the hospital was settled, and an order stipulating to the dismissal of the hospital was entered on May 3, 1999. Plaintiff appeals only from the order granting Dr. Pho's motion to dismiss.

ANALYSIS

Plaintiff contends that the trial court erred in granting Dr. Pho's motion to dismiss his complaint, because the facts of First Robinson Savings & Loan are factually distinguishable from the facts of his case. Alternatively, plaintiff states that if First Robinson Savings & Loan stands for the proposition that ex parte orders obtained on motions for leave to amend, without notice to the other defendants, are void, then plaintiff asks this court to either overrule First Robinson Savings & Loan or limit the case to its facts.

Rulings on motions to dismiss a complaint are reviewed on a de novo basis. See Vala v. Pacific Insurance Co., 296 Ill.App.3d 968, 231 Ill.Dec. 64, 695 N.E.2d 581 (1998). A de novo review of a dismissal includes an examination of the complaint and all evidentiary material before the trial court at the time of the entry of its order. See Vala, 296 Ill.App.3d at 970, 231 Ill.Dec. 64, 695 N.E.2d 581. On review, an appellate court will construe the evidence and will draw all reasonable inferences in the light most favorable to the plaintiff. See Vala, 296 Ill.App.3d at 970-71, 231 Ill.Dec. 64, 695 N.E.2d 581.

Section 2-616(a) of the Code of Civil Procedure provides that amendments to complaints may be allowed at any time before judgment, on just and reasonable terms. 735 ILCS 5/2-616(a) (West 1998); see Estate of Zander v. Department of Public Aid, 242 Ill.App.3d 774, 183 Ill.Dec. 233, 611 N.E.2d 86 (1993). A court's decision to grant a motion for leave to amend is a matter within the discretion of the trial court. See Selcke v. Bove, 258 Ill. App.3d 932, 196 Ill.Dec. 202, 629 N.E.2d 747 (1994). Section 2-616(a) is to be liberally construed so that cases are resolved on their merits. See Selcke, 258 Ill.App.3d at 937, 196 Ill.Dec. 202, 629 N.E.2d 747. The most important consideration is whether the allowance of the amendment furthers the ends of justice. See Selcke, 258 Ill.App.3d at 937, 196 Ill.Dec. 202, 629 N.E.2d 747. Any doubts as to whether leave to file an amended complaint should be granted should be decided in favor of the allowance of the amendment. See Mitchell v. Norman James Construction Co., 291 Ill.App.3d 927, 225 Ill.Dec. 881, 684 N.E.2d 872 (1997).

Generally, leave of court is required to file an amendment. However, section 2-616's requirement of obtaining leave of court is directory and not mandatory. See Estate of Zander, 242 Ill.App.3d at 776-77, 183 Ill.Dec. 233, 611 N.E.2d 86. Thus, the requirement of obtaining leave of court may be waived by the parties. See Estate of Zander, 242 Ill.App.3d at 777, 183 Ill.Dec. 233, 611 N.E.2d 86. In addition, under Supreme Court Rule 104(d), the failure to serve notice on a nonmoving party renders an order based upon the motion voidable rather than void. 134 Ill.2d R. 104(d); see In re Rehabilitation of American Mutual Reinsurance Co., 238 Ill.App.3d 1, 179 Ill.Dec. 200, 606 N.E.2d 32 (1992). "The determining factor is not the absence of notice but whether there was any harm or prejudice to the nonmoving party." In re Rehabilitation of American Mutual Reinsurance Co., 238 Ill.App.3d at 11, 179 Ill.Dec. 200, 606 N.E.2d 32. It is when the failure to serve notice prevents a party from appearing and denies the party an opportunity to be heard or to respond, thereby denying a party's procedural due process rights, that an ex parte order entered without notice may be deemed null and void. See People ex rel. Hamer v. Jones, 39 Ill.2d 360, 235 N.E.2d 589 (1968); In re Estate of Gustafson, 268 Ill.App.3d 404, 206 Ill.Dec. 45, 644 N.E.2d 813 (1994). Further, a party may waive his right to notice by subsequently appearing and not objecting after the ex parte order is entered. See People ex rel. Hamer,39 Ill.2d at 372,235 N.E.2d 589.

Supreme Court Rule 21(a) grants circuit courts the power to adopt local rules governing civil and criminal cases, including motion practice. 134 Ill.2d R. 21(a); see Phalen v. Groeteke, 293 Ill.App.3d 469, 228 Ill.Dec. 95, 688 N.E.2d 793 (1997). Whether to grant a motion pursuant to local rules is a matter left to the discretion of the trial court. See Phalen, 293 Ill.App.3d at 470, 228 Ill.Dec. 95, 688 N.E.2d 793.

Having set forth the applicable principles, we now consider whether the trial court's dismissal of plaintiff's complaint as to Dr. Pho was proper. In the trial court's order, the court stated in pertinent part as follows:

"On Oct. 8, 1998[,] [plaintiff] filed [a][m]otion to add this [defendant]. No notice was provided and a proposed order was attached. On Oct. 8, 1998[,] the court granted the motion ex parte [without] any hearing. No showing was made in the [motion] or before the court as to the materiality of the amendment. Further, other than that the [statute of limitations] was to expire in 6 days there is nothing to suggest, nothing was alleged, that this was an emergency motion that might have been considered ex parte. Indeed, Oct. 8, [1999][,] was a Thursday and civil court was held that day, on Friday[,] and [on] the following Tuesday before the [statute of limitations] would run. In First Robinson [sic] v. Ledo [Construction Co.], 210 [Ill.

...