Yang v. Chen, 1-93-4583

• Court: United States Appellate Court of Illinois
• Writing for the Court: TULLY
• Citation: 283 Ill.App.3d 80,669 N.E.2d 1181,218 Ill.Dec. 655
• Parties: , 218 Ill.Dec. 655 Chen Ying YANG, Plaintiff-Appellant, v. Henry K. CHEN, M.D., Defendant-Appellee.
• Docket Number: No. 1-93-4583,1-93-4583
• Decision Date: 21 August 1996

Page 1181

669 N.E.2d 1181 283 Ill.App.3d 80, 218 Ill.Dec. 655 Chen Ying YANG, Plaintiff-Appellant,
v.
Henry K. CHEN, M.D., Defendant-Appellee. No. 1-93-4583. Appellate Court of Illinois,
First District, Third Division. Aug. 21, 1996.

Page 1182

[218 Ill.Dec. 656] Charles B. Levin and David T. Odom, Chicago, for Yang.

James T. Ferrini, Edward M. Kay, Richard L. Murphy, Joyce M. Maxberry, and Melinda S. Kollross, Chicago, for Chen.

Presiding Justice TULLY delivered the opinion of the court:

Plaintiff, Chen Ying Yang, brought this medical malpractice action pro se in the circuit court of Cook County against defendant, Henry K. Chen, M.D. Defendant filed a motion to dismiss the action pursuant to 735 ILCS 5/2-619 (West 1996), which the circuit court granted on May 21, 1993. Subsequently, plaintiff filed a pro se motion to reconsider the May 21st dismissal order on June 18, 1993. On June 25, 1993, the trial court struck the post-judgment motion and granted plaintiff a 21-day extension to amend it, whereby an amended motion to reconsider was filed on July 16, 1993. At the November 18, 1993 hearing, the trial court struck the amended motion to reconsider, reasoning that it did not retain jurisdiction of the matter. It is from this judgment that plaintiff now appeals pursuant to Supreme Court Rule 301 (155 Ill.2d R. 301).

For the reasons which follow, we reverse and remand with directions.

[283 Ill.App.3d 81] At issue on appeal is whether we have jurisdiction to hear this appeal, since the trial court granted plaintiff a 21-day extension after 30 days of the May 21st dismissal order.

We now address the question of whether this court has jurisdiction to hear this appeal. We begin by citing the authority pertinent to this case.

Supreme Court Rule 301 provides as follows:

"Rule 301. Method of Review

Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional. An appeal is a continuation of the proceeding" (134 Ill.2d R. 301).

Supreme Court Rule 303(a)(1) provides, in pertinent part, as follows:

"Rule 303. Appeals from Final Judgments of the Circuit Court in Civil Cases

(a) Time; Filing; Transmission of Copy.

(1) Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of a final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-judgment motion." (Emphasis added.) (155 Ill.2d R. 303(a)(1)).

Section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1994)) states:

"Motions after judgment in non-jury cases. (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." (Emphasis added.) (735 ILCS 5/2-1203 (West 1994)).

Supreme Court Rule 183 states:

"The court, for good cause shown on motion after notice to the opposite party, may extend time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time." (Emphasis added.) (134 Ill.2d R. 183).

Most importantly, a valid motion to reconsider judgment tolls the time for filing a notice of appeal. Clark v. Han, 272 Ill.App.3d 981, 209 Ill.Dec. 371, 651 N.E.2d 549 (1995).

Plaintiff brought a pro se medical malpractice action against defendant[283 Ill.App.3d 82] on November 2, 1992, seeking to recover for the injuries she

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[218 Ill.Dec. 657] sustained while under defendant's care. The complaint alleged that the last time plaintiff had seen defendant was on November 12, 1988. Defendant filed a motion to dismiss on December 30, 1992 based on the grounds that plaintiff's action was barred by the two-year statute of limitation applicable to personal injuries. The trial court granted defendant's motion to dismiss the original complaint with prejudice on May 21, 1993. However, the trial court stated that "if facts arise where you believe a complaint could suffice, come in on a motion to reconsider * * *."

On June 18, 1993, within the required 30-day period, plaintiff filed a motion to reconsider the May 21st dismissal order which averred that the proper limitations period for this action was five years because defendant had "fraudulently concealed his negligent conduct." On June 25, 1993, the trial court ruled on the pending motion as being "technically improper," struck the motion, and granted plaintiff a 21-day extension to file a new motion to reconsider as well as an amended complaint.

On July 16, 1993, plaintiff filed a new motion to reconsider, a proposed answer to defendant's motion to dismiss, and an amended complaint. The trial court, on November 18, 1993, entered an order stating that the court had been without jurisdiction on June 25, 1993 to grant plaintiff an extension of time to file an amended motion as it was not granted within 30 days of the May 21 dismissal order.

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