Slavick v. Michael Reese Hospital and Medical Center

• Decision Date: 06 November 1980
• Docket Number: No. 79-1338,79-1338
• Citation: 92 Ill.App.3d 161,415 N.E.2d 1060,47 Ill.Dec. 747
• Parties: , 47 Ill.Dec. 747 Charles John SLAVICK, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1060

415 N.E.2d 1060

92 Ill.App.3d 161, 47 Ill.Dec. 747

Charles John SLAVICK, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER, a corporation Defendant-Appellee.

No. 79-1338.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 6, 1980.

As Modified on Denial of Rehearing Feb. 5, 1981.

Phebus, Tummelson, Bryan & Knox, Urbana and Thomas J. Healey, Patrick F. Healy, Jr., Chicago (Joseph W. Phebus, Betsy Pendleton Wong, Janet Flaccus, Urbana, of counsel), for plaintiff-appellant.

McKenna, Storer, Rowe, White & Farrug, Chicago (John F. White, Robert S. Soderstrom, James P. DeNardo, Chicago, of counsel), for defendant-appellee.

LINN, Presiding Justice:

Plaintiff, Charles John Slavick, brought this appeal from an order entered in the circuit court of Cook County allegedly denying his motion to vacate a prior order which had dismissed with prejudice his five count, medical malpractice complaint. Defendant, Michael Reese Hospital, filed with this court a motion to dismiss the appeal for lack of jurisdiction because plaintiff had failed to file a timely notice of appeal. We grant this motion and dismiss the appeal.

On October 25, 1978, plaintiff's complaint was dismissed pursuant to defendant's motion to dismiss which alleged that three of the counts in the complaint failed to state a cause of action and all of the counts were barred by the applicable statute of limitations. The order of dismissal reads as follows:

"That plaintiff's complaint be and is dismissed with prejudice;

Further, that the defendant shall provide the plaintiff an affidavit signed and verified by such representative of defendant who has made a search of defendant's records for those documents previously sought by plaintiff, such affidavit to reflect the result of defendant's record search."

The second part of this order resulted from plaintiff's discovery request to produce certain documents, which request was filed before the order of dismissal. It appears that plaintiff had brought a previous and similar action which had been dismissed for want of prosecution. In that action, plaintiff had been provided by defendant with many of the documents he was requesting in the present action. Prior to the October 25, 1978 order, defendant sent plaintiff a letter telling him that defendant had previously produced many of the documents requested and could not find any of the remaining documents. The trial court, in the October 25, 1978 order, simply ordered the defendant to deliver an affidavit to plaintiff to verify that a search of defendant's records had been made and all documents in defendant's possession had already been produced.

On November 8, 1978, within thirty days of the order of dismissal, plaintiff filed a motion to vacate the order. This was a general motion and did not state the reasons warranting the vacating of the order of dismissal.

On March 15, 1979, plaintiff filed a motion asking the court to order the defendant to produce the affidavit defendant had been ordered to produce in the October 25, 1978 order. This motion was heard before a different judge than the one who had dismissed the complaint. The motion was heard on the same day it was filed. The motion was denied because the court found that the October 25, 1978 order was a final and appealable order and, since more than thirty days had passed since that order, the trial court held that it no longer had jurisdiction to consider such a motion. Apparently, the motion judge sitting on March 15, 1979, had no knowledge of plaintiff's November 8, 1978 motion to vacate the order of dismissal.

On April 12, 1979, plaintiff called up his November 8, 1978 motion for a hearing. On that day his motion to vacate was denied because he had failed to call it up for a hearing within ninety days as required by circuit court rule.

Shortly after this order, defendant delivered to plaintiff the required affidavit, and then on May 10, 1979, twenty-eight days after his first motion to vacate had been denied, plaintiff filed a second motion to vacate the October 25, 1978 order of dismissal. In this motion plaintiff alleged, basically, that the complaint should not have been dismissed because plaintiff believed the complaint stated a cause of action and was not barred by the applicable statute of limitations. As alternative relief to vacating the October 25, 1978 order, plaintiff moved the court to declare that order to be final and appealable in light of defendant's having delivered the required affidavit.

On May 25, 1979, the trial court entered an order which merely granted plaintiff's motion to declare the October 25, 1978 order to be final and appealable. This order said nothing about plaintiff's second motion to vacate the October 25, 1978 order.

On June 22, 1979, plaintiff filed a notice of appeal from the May 25, 1979 order, which, according to plaintiff's notice of appeal, had denied his motion to vacate the October 25, 1978 order. Shortly thereafter, defendant filed his motion to dismiss this appeal.

OPINION

Defendant contends that the October 25, 1978 dismissal order was a final and appealable order. Defendant argues that plaintiff had two choices after the entry of his order. He could either file a notice of appeal within thirty days or a motion to vacate within thirty days. Plaintiff did in fact file a motion to vacate. This motion was denied on April 12, 1979.

Defendant next argues that following the April 12, 1979 order, plaintiff had one choice-to file his notice of appeal within thirty days. Defendant contends that plaintiff could not delay this requirement by filing a second motion to vacate within thirty days after the April 12, 1979 order. Defendant concludes that because plaintiff failed to file a notice of appeal by May 12, 1979, this court is without jurisdiction to hear this appeal.

We agree with defendant's contention that the October 25, 1978 dismissal order was final and appealable. We also agree that, in the circumstances of this case, plaintiff's failure to file a notice of appeal within thirty days after the April 12, 1979 order precludes us from having jurisdiction to hear this appeal.

The timely filing of a notice of appeal is jurisdictional. (Supreme Court Rule 301 (Ill.Rev.Stat.1979, ch. 110A, par. 301).) Failure to file a timely notice of appeal requires an appellate court to dismiss the appeal for lack of jurisdiction. Under Supreme Court Rule 303 (Ill.Rev.Stat.1979, ch. 110A, par. 303), a notice of appeal must be filed within thirty days after the entry of a final judgment or within thirty days after the entry of an order disposing of a timely filed post trial motion. For the purposes of this rule, an order dismissing a plaintiff's entire complaint with prejudice is considered to be a final judgment. See Fultz v. Haugan (1971), 49 Ill.2d 131, 305 N.E.2d 873; Pick v. Pick (1978), 58 Ill.App.3d 357, 15 Ill.Dec. 906, 374 N.E.2d 698.

Within thirty days after the entry of a final judgment, a party is entitled to file one post judgment motion attacking the validity of that judgment, and this motion stays the necessity for having to file a notice of appeal until thirty days after the trial court disposes of the motion. However, once this motion is disposed of, a party may not delay the necessity of filing a notice of appeal by filing a second post-judgment motion attacking the validity of the judgment unless such motion conforms to the requirements of section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72) and presents new matter that would render the judgment improper and such new matter could not have been included as a basis for the first post-judgment motion. (Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900, cert. denied, 400 U.S. 941, 91 S.Ct. 232, 27 L.Ed.2d 244; Drafz v. Parke, Davis & Co. (1980), 80 Ill.App.3d 540, 36 Ill.Dec. 95, 400 N.E.2d 515; Handing v. Power Ford, Inc. (1978), 67 Ill.App.3d 466, 24 Ill.Dec. 328, 385 N.E.2d 95.) If the rule were otherwise, a party could delay his taking of an appeal indefinitely by filing successive and repetitive motions.

Assuming for the moment that the October 25, 1978 order was final and appealable, then plaintiff had to file his notice of appeal within thirty days after April 12, 1979, when the trial court denied his first motion to vacate that order, unless plaintiff's second motion to vacate presented new matter that would have rendered the October 25, 1978 dismissal order improper and such new matter could not have been included in his ...