Wierzbicki v. Gleason

• Decision Date: 06 March 2009
• Docket Number: No. 1-06-3756.,1-06-3756.
• Citation: 388 Ill. App.3d 921,906 N.E.2d 7
• Parties: Magdalena WIERZBICKI, Plaintiff-Appellant, v. Thomas F. GLEASON, Illinois Bone and Joint Institute, Ltd., Roman Danczkewycz, and Park Ridge Orthopedic Surgeons, S.C., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

906 N.E.2d 7

388 Ill. App.3d 921

Magdalena WIERZBICKI, Plaintiff-Appellant, v. Thomas F. GLEASON, Illinois Bone and Joint Institute, Ltd., Roman Danczkewycz, and Park Ridge Orthopedic Surgeons, S.C., Defendants-Appellees.

No. 1-06-3756.

Appellate Court of Illinois, First District, Sixth Division.

March 6, 2009.

Walter E. Trittipo, Walter E. Trittipo, P.C., Wilmette, for Appellant.

Stephen A. Kolodziej, Brenner, Ford & Monroe, Ltd., Chicago, for Appellees Roman Daczkewycz and Park Ridge Orthopedic Surgeons, S.C.

Richard H. Donahue, Donahue, Brown, Mathewson & Smyth, Chicago, for Appellees Thomas F. Gleason and Illinois Bone and Joint Institute, Ltd.

Justice JOSEPH GORDON delivered the opinion of the court:

This is an appeal by plaintiff from an order of the circuit court vacating a previous order which had reinstated her action after it was dismissed for want of prosecution. On appeal, plaintiff contends that the court improperly vacated its decision to reinstate her case based upon unsubstantiated allegations of misconduct by her attorney. For the reasons that follow, we reverse.

I. FACTS

On March 2, 1999, plaintiff, Magdalena Wierzbicki, filed a medical malpractice action against defendants, Dr. Thomas F. Gleason and Dr. Roman Danczkewycz, apparently alleging that they were negligent in diagnosing and treating injuries she suffered to her right upper extremity and neck while at work.¹ On November 20, 2001, after the parties commenced discovery, but prior to its completion, plaintiff voluntarily dismissed the matter. On November 19, 2002, plaintiff refiled a complaint against defendants. On February 27, 2003, the circuit court held a case management conference on the matter and ordered that discovery be completed within 12 months, that the written discovery completed during the course of the previous case be incorporated into the case, and that written discovery be supplemented by the parties by March 16, 2003.

Thereafter, plaintiff requested and received more than five extensions of time in which to complete supplemental discovery. On February 18, 2004, plaintiff received another extension and plaintiff's counsel drafted an order, which was entered by circuit court Judge Kathy M. Flanagan, setting the matter for case management on April 29, 2004, at 9 a.m. On March 24, 2004, the case appeared on the law division's "Black Line" call and circuit court Judge William Maddux, as the assignment judge hearing the matter, entered an order returning the case to its regular calendar and setting a case management hearing for April 29, 2004, at 10:30 a.m.

On April 29, 2004, plaintiff's counsel failed to appear at 9 a.m. as was required by Judge Flanagan's February 18, 2004, order and the court entered an order dismissing her case for want of prosecution. The order further stated, "No motion to vacate will be entertained until plaintiff is in compliance with prior orders." That same day, however, plaintiff's attorney appeared before Judge Flanagan at 10:30 a.m., as was required by Judge Maddux's March 24, 2004, order and received another discovery extension. That afternoon, the court realized it had entered inconsistent orders and ordered the attorneys to return on May 3, 2004, in order to "determine the exact status of the case and to decide which order would stand."

Plaintiff's counsel failed to appear on May 3, 2004, and the court entered an order stating,

"1) Plaintiff failed to appear on 5-3-04

2) The [Plaintiff's] 4/29/04 order from the 10:30 am call that extended discovery is vacated

3) The order entered on 4/29/04 at 9:00 a.m. dismissing the case for want of prosecution stands"

On June 2, 2004, plaintiff filed a motion to vacate the dismissal arguing that her attorney inadvertently missed the May 3, 2004, hearing because he had left his calendar at home and came to court at 10 a.m., rather than 9 a.m., based on his faulty recollection of the court's request. On July 26, 2004, the court denied the motion to vacate stating as its reason plaintiff's "failure to comply with prior court orders to supplement discovery."

On August 19, 2004, plaintiff filed a motion to reconsider, alleging that her attorney had worked diligently to comply with the court's discovery orders and had finally done so. Plaintiff attached to her motion supplemental responses to interrogatories, including Rule 213(f) (210 Ill.2d R. 213(f)) disclosures for plaintiff's expert witnesses.

On September 17, 2004, the court entered an order stating that it was taking the motion under advisement and setting the matter for ruling on October 1, 2004. On October 1, 2004, the court entered another order continuing the ruling date to October 15, 2004. However, the court did not rule on the motion until June 15, 2006, at which time it granted plaintiff's motion to reconsider and vacated its dismissal of the case. On the respective dates of July 13 and July 14, 2006, each of the defendants filed his own appeal contesting the court's decision to vacate the dismissal. Thereafter, an order was entered staying all proceedings pending the resolution of those appeals.

While the appeals were pending, however, the court called the parties to a hearing, and, on August 14, 2006, told them:

"I called you back because after the entry of the last order by this Court, it came to my attention that plaintiff's counsel went to the clerk's office and asked one of the supervisors to make a deletion from the electronic docket of a particular order that would be germane to this case.

And on the basis of that, I am requesting that everybody give me copies of all their prior motions because I'm going to vacate my prior order, I am going to rule a different way, and I am doing a final memorandum opinion dealing with everything that has occurred in this case, including supporting it with an affidavit from the supervisor of the clerk's office attesting to the conversation that she had with plaintiff's counsel.

So if everybody can get me copies of whatever they had on file that I previously ruled on * * * I will do a new memorandum opinion which will probably obviate the necessity for defendants' appeals."

Plaintiff's counsel then asked if he could speak to the court's concerns, and the court replied, "You can respond to it when I file the order, counsel, you know, but I know what I was told."

In response to the court's request, plaintiff submitted to the court the documents it had requested. In a cover letter dated August 18, 2006, which accompanied those submissions, plaintiff's counsel offered his explanation of his conversation with the supervisor in the clerk's office. He asserted that the electronic docket showed that an order dismissing the case for want of prosecution was entered on June 3, 2004, which he thought was redundant of the order entered on May 3, 2004, and merely asked the employees in the clerk's office about the procedure for correcting the mistake.² He also contended that the electronic docket showed that plaintiff's motion to vacate the dismissal was filed on June 3, 2004, even though the file stamp on the motion showed that it was filed on June 2, 2004, and that he wished to correct this disparity. Plaintiff's counsel insisted that he never asked anyone in the clerk's office to change the docket.

On November 28, 2006, the court entered a written ruling vacating its June 15, 2006, order by which it had vacated its earlier dismissal of plaintiff's action. In its written memorandum, the court explained:

"On August 14, 2006, this Court requested that the parties appear before the Court, the request being based upon information received from a supervisor from the Office of the Clerk of the Circuit Court that Plaintiff's counsel had requested that a certain entry or entries be deleted from the Clerk's electronic docket for this case. Specifically, Plaintiff's counsel wanted the DWP order of June 3, 2004 deleted, since it was `redundant' of the April 29, 2004 DWP order (and have never been stricken from the court call, as set forth above); and he wanted to `correct' the dates and times of filing of certain of his numerous notices and motions, he wanted to `protect his client from claims that the motion was filed late['] (as per his letter of August 18, 2006).

The Clerk's office supervisor personally telephoned this Court to impart this information and to inform the Court that she had repeatedly told Plaintiff's counsel that the only way the electronic docket could be changed was by a court order signed by the judge whose call the case was on. The supervisor also advised this Court that when Plaintiff's counsel was told this information, he then inquired as to whether any judge from Room 2005 (Law Division Assignment Room) could enter such an order, rather than this Court. Upon receiving this information, this Court contacted the personnel in Room 2005 to advise them of these developments, and to request that any such contact or request from Plaintiff's counsel be immediately referred back to this Court for any necessary action. At the September 17, 2006 hearing, this Court related the aforementioned facts, and indicated that the Court would be issuing a memorandum opinion and order, which vacated the order of June 15, 2006 (granting the 2-1401 petition to vacate the DWP of April 29, 2004)."

The court continued its memorandum opinion, finding that plaintiff's motion to vacate, filed on June 2, 2004, constituted a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)) because it was filed more than 30 days after the case was dismissed on April 29, 2004. The court then held that plaintiff failed to satisfy the requisite elements of section 2-1401 because he did not establish that he exercised due diligence in pursuing her claim, that "the dereliction vis-a-vis the non-compliance with multiple discovery orders, failure to disclose SCR 213(f) witnesses and opinions, failure to...