Shanklin v. Hutzler

SIXTH DIVISION
DECEMBER 5, 1997

No. 1-96-2415

LEIGH SHANKLIN, ) APPEAL FROM THE
Plaintiff-Appellant, ) CIRCUIT COURT
) OF COOK COUNTY.
v. )
)
JOHN HUTZLER and JOHN DOE, )
Defendants, )
)
J. ELMES, M.D., JAMES P. ELMES, )
M.D., LTD., )
Respondents in Discovery- )
Appellees, )
)
INGALLS MEMORIAL HOSPITAL, ) HONORABLE
E. WINTER, M.D., J. LOHAN, R.N., ) KENNETH L. GILLIS,
EDWARD UNGER, M.D., A.J. BROWNER, ) JACQUELINE P. FOX,
M.D., and G. MOONEY, G.P.T., ) JUDGES PRESIDING.
Respondents in Discovery. )

PRESIDING JUSTICE CAMPBELL delivered the opinion of the
court:
Plaintiff Leigh Shanklin appeals orders of the circuit court
of Cook County denying plaintiff's motion for leave to amend her
complaint and convert respondents in discovery James P. Elmes,
M.D. and James P. Elmes, M.D., Ltd. ("Elmes Ltd.") into defen-
dants in a personal injury action. Defendant John Hutzler and
respondents in discovery Ingalls Memorial Hospital ("Ingalls"),
E. Winter, M.D., J. Lohan, R.N., Edward Unger, M.D., A.J. Brown-
er, M.D., and B. Mooney G.P.T., are not parties to this appeal.
This case is a subsequent appeal following this court's
decision in Shanklin v. Hutzler, 277 Ill. App. 3d 94, 660 N.E.2d 103 (1995). The facts necessary to a disposition of this appeal
are contained in that decision. However, for the purposes of
this opinion, a recitation of the facts may be useful.
The record on appeal indicates the following facts. On
December 6, 1991, plaintiff filed an unverified complaint against
defendant Hutzler and defendant John Doe which also named the
aforementioned medical care providers as respondents in discovery
pursuant to section 2-402 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-402 (West 1996)) (Code). Section 2-402 provides in
relevant part as follows:
"Sec. 2-402. Respondents in discovery. 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 respon-
dents in discovery shall be required to re-
spond to discovery by the plaintiff in the
same manner as are defendants and may, on
motion of the plaintiff, be added as defen-
dants 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 respon-
dent in discovery, even though the time dur-
ing which an action may otherwise be initiat-
ed against him or her may have expired during
such 6 month period." 735 ILCS 5/2-402
(West 1996).
The complaint alleged that shortly before December 7, 1989,
Hutzler, who resided in a separate condominium unit of plain-
tiff's building, violated a duty owed to his fellow residents by
using unsafe electrical devices in his unit, thereby causing a
fire that spread through the building, resulting in property
damage and personal injury to the plaintiff. In particular, the
complaint alleged that plaintiff suffered a trimalleolar fracture
of the left lower extremity.
Plaintiff's complaint then details medical care she received
for this fracture from the respondents in discovery. The com-
plaint alleges that Dr. Elmes provided "consulting orthopedic
services" and "performed an open reduction and internal fixation
operation" on plaintiff. The complaint also alleges that after
plaintiff was discharged from the hospital, she received follow-
up treatment and evaluation from Dr. Elmes at the offices of
James P. Elmes, M.D., Ltd. The complaint further alleges that
plaintiff has continued to suffer with extreme mental and physi-
cal pain, has undergone several remedial surgeries and therapies,
but remains permanently injured. The complaint attributes these
continuing injuries at least in part to the negligence of John
Doe and seeks discovery from the respondents in order to deter-
mine whether a cause of action exists against any or all of them.
The record includes a letter dated December 5, 1990 (approx-
imately one year after the injury and one year before the filing
of the complaint) from plaintiff to Ingalls requesting a complete
copy of her medical records regarding her confinement from
December 6, 1989, through December 13, 1989. The letter appears
to be stamped with the date of December 12, 1990. The letter
also appears to be stamped "ALL AVAILABLE INFORMATION SENT."
Dr. Elmes was served on January 12, 1992. From January 1992
through May 1992, plaintiff sought and received discovery mater-
ials, including the taking of depositions, from the respondents
in discovery, including Dr. Elmes.
On June 4, 1992, plaintiff sought leave to file a first
amended complaint converting Ingalls, Dr. Elmes and Elmes Ltd.
into defendants, pursuant to section 2-402. The motion stated
"That the requirements of said statute
and case law have been met by Plaintiff in
that this motion has been filed within six
(6) months of the filing of Plaintiff's Com-
plaint against these Respondents in Discovery
and that Plaintiff is, and will at the hear-
ing of this matter, demonstrate probable
cause to convert those Respondents in Discov-
ery to Defendants by way of the attachment
and incorporation of Plaintiff's First Amend-
ed Complaint and by producing at the hearing
on this matter pertinent portions of the
medical records, x-rays and other evidence
obtained through discovery."
The record indicates that a copy of the original unverified
complaint was attached to the motion. It appears that a proposed
first amended complaint was not attached to the motion.
On August 11, 1992, Dr. Elmes joined in Ingalls' motion to
dismiss, which was attached to Dr. Elmes' motion, though the
location of the original Ingalls motion is not provided by the
parties. The attached motion alleges that plaintiff failed to
obtain leave of court or probable cause to convert Ingalls into a
defendant within the applicable statute of limitations, as
extended by section 2-402. On August 28, 1992, the trial court
entered an order granting Ingalls' "ORAL" motion to dismiss.
Plaintiff did not appeal that dismissal.
On September 1, 1992, plaintiff filed a three-count first
amended complaint without leave of court. Count I was brought
against Hutzler and largely repeated the allegations of the
initial complaint. Count II was brought against Dr. Elmes,
alleging negligence both in the initial surgery and the follow-up
treatment provided to plaintiff. Count III was brought against
Elmes, Ltd. based on the theory of respondeat superior.
Two affidavits were attached to the first amended complaint.
The first was signed by an orthopedic surgeon, Ian B. Fries, M.D.
In the affidavit, Dr. Fries states that Dr. Elmes breached the
applicable standard of care owed to plaintiff, causing substan-
tial and permanent injury to the plaintiff. The second affidavit
was executed by plaintiff's counsel, who attested that he had
spoken with other physicians and that both he and Dr. Fries had
determined that there was reasonable and meritorious cause for
filing the action.
The trial court ultimately heard plaintiff's motion to
convert and respondents' motion to dismiss on April 19, 1993.
The transcript of this hearing indicates that the trial court
stated that plaintiff filed her complaint on December 6, 1991,
one day before the statute of limitations expired on December 7,
1991. The trial court stated that plaintiff filed her motion to
convert on June 4, 1992, two days before the expiration of the
six month extension provided by section 2-402. The trial court
concluded that plaintiff had met the procedural requirements of
section 2-402 relating to timeliness and notice of the motion to
convert.
However, the transcript indicates that the trial court also
concluded that plaintiffs were required to file its probable
cause materials within the six month time period specified in
section 2-402 and that the affidavits of Dr. Fries and plain-
tiff's attorney did not establish probable cause. The transcript
indicates that plaintiff's attorney raised a question as to
whether the statute of limitations had run; the trial court
indicated that plaintiff could raise the issue in a motion to
reconsider. Accordingly, the trial court entered an order
denying plaintiff's motion to convert and granting respondents'
motion to dismiss.
On the afternoon of April 19, 1993, plaintiff filed with the
court volumes of discovery materials which had been presented
during that morning's hearing. Plaintiff also filed a verified
first amended complaint without leave of court at that time. The
verified first amended complaint included allegations that
plaintiff did not have reason to know of Dr. Elmes' negligence
until November 1990, thus extending the statute of limitations to
November 1992.
On April 27, 1993, plaintiff filed a "Renewed Motion for
Leave to File Verified Second Amended Complaint Converting
Certain Respondents to Defendants," which was largely similar to
plaintiff's prior pleadings. On April 29, 1993, plaintiff filed
another affidavit by Dr. Fries in support of the motion to
convert. The new affidavit was largely similar to Dr. Fries'
prior affidavit, except that it contained allegations of specific
failures of Dr. Elmes that Dr. Fries believed were negligent.
On May 17, 1993, plaintiff filed her motion to reconsider.
The trial court heard the motion to reconsider on July 28, 1993.
The transcript of proceedings indicates that the trial court
concluded that even assuming that the statute of limitations did
not expire until November 1992, the six month period specified by
section 2-402 expired before November 1992 and did not extend the
statute of limitations beyond November 1992. The trial court
also concluded that plaintiff failed to obtain leave of court to
amend her complaint by May 1993. The trial court entered an
order denying plaintiff's motion to reconsider. Plaintiff filed
a timely Notice of Appeal to this court.
This court dismissed the appeal for lack of jurisdiction.
Shanklin, 277 Ill. App. 3d at 94, 660 N.E.2d at 103. This court
held that the orders appealed from were not final as to all
parties, as there was no indication in the record regarding an
adjudication of defendant Hutzler's rights or liabilities.
Shanklin, 277 Ill. App. 3d at 99-100, 660 N.E.2d at 106. This
court also considered a May 26, 1994, order purporting to amend
the April 19, 1993, order nunc pro tunc to include a written
finding that there was no just reason for delaying the enforce-
ment or appeal from its order, pursuant to Supreme Court Rule
304(a) (134 Ill. 2d R. 304(a)). This court ruled that the
May 26, 1994, order was not effective to confer jurisdiction on
the appellate court because: (1) there was no determination by
the trial court that the proposed amendment fell within the scope
of Supreme Court Rule 329 (107 Ill. 2d R. 107); (2) the order
appealed from was not final and appealable prior to the proposed
amendment; and (3) plaintiff did not seek to amend the Notice of
Appeal or file a second Notice of Appeal. Shanklin, 277 Ill.
App. 3d at 101, 660 N.E.2d at 107.
Plaintiff then apparently petitioned for leave to appeal to
the Illinois Supreme Court, as it denied plaintiff's petition on
April 3, 1996. Shanklin v. Hutzler, 166 Ill. 2d 554, 664 N.E.2d 648 (1996). The case was then apparently returned to the circuit
court, which apparently entered an order on June 14, 1996,
dismissing Hutzler as a defendant. The plaintiff does not
identify where this order appears in the record. Nor does
plaintiff identify where the July 3, 1996, Notice of Appeal
appears in the record on appeal.
However, on July 23, 1996, the respondents in discovery
filed a motion to dismiss the appeal for lack of jurisdiction;
the June 14, 1996, order and July 3, 1996, Notice of Appeal are
attached as exhibits to the motion. Plaintiff objected to the
motion. On September 20, 1996, this court entered an order
taking the motion to dismiss with the case.
I
Initially, this court addresses the question of this court's
jurisdiction. Respondents in discovery note that this court held
that a May 26, 1994, order purporting to amend the April 19,
1993, order nunc pro tunc to include a written finding that there
was no just reason for delaying the enforcement or appeal from
its order, pursuant to Supreme Court Rule 304(a), was not effec-
tive to confer jurisdiction on the appellate court. Shanklin,
277 Ill. App. 3d at 101, 660 N.E.2d at 107. Thus, relying on
Maywood Proviso State Bank v. Village of Lisle, 234 Ill. App. 3d
206, 214, 599 N.E.2d 481, 487 (1992), respondents in discovery
maintain that the trial court retained jurisdiction and that the
April 19, 1993, order became final and appealable as of May 26,
1994, when the Rule 304(a) finding was entered. Thus, respon-
dents in discovery claim that this court lacks jurisdiction
because plaintiffs did not file a Notice of Appeal within 30 days
of May 26, 1994.
However, in Maywood Proviso State Bank, the ostensibly nunc
pro tunc Rule 304(a) finding was entered prior to any notice of
appeal being filed. Maywood Proviso State Bank, 234 Ill. App. 3d
at 214, 599 N.E.2d at 487. In this case, plaintiff had already
filed a notice of appeal when the trial court attempted to enter
the Rule 304(a) finding nunc pro tunc. Thus, the nunc pro tunc
order in Maywood Proviso State Bank was not an attempt to remedy
a jurisdictional defect. A nunc pro tunc order cannot be used to
supply omitted judicial action or remedy a jurisdictional defect.
Beck v. Stepp, 144 Ill. 2d 232, 238, 579 N.E.2d 824, 827 (1991).
Yet the record on appeal shows that such ends were precisely what
the parties sought to accomplish in this case.
Respondents in discovery argue that the nunc pro tunc order
may be separated into two parts: a void nunc pro tunc aspect and
a valid Rule 304(a) finding. Where parts of an order are clearly
separable, only that part which is in excess of the authority
granted to the court is void. Chapman, Mazza, Aiello, Inc. v.
Ace Lumber & Const. Co., 83 Ill. App. 2d 320, 335, 227 N.E.2d 562, 570 (1967). In this case, we conclude that the parts of the
order at issue are not clearly separable. Rather, they were both
integral to the parties' attempt to remedy a jurisdictional
defect in a pending appeal. Thus, we conclude that the May 26,
1994, order is ineffective in its entirety, given the record on
appeal in this case.
In sum, the May 26, 1994, order did not render the prior
orders involving the respondents in discovery final as of May 26,
1994. Respondents in discovery raise other objections to the
form of the Notice of Appeal, such as the failure to list the
June 14, 1996, order, but such defects are generally not fatal to
an appeal. E.g., Saunders v. Michigan Avenue National Bank, 278
Ill. App. 3d 307, 662 N.E.2d 602 (1996). Accordingly, we con-
clude that, given the facts and circumstances in this case,
plaintiff's appeal was not untimely and we now turn to address
the other issues raised in this appeal.
II
The first question is whether the trial court erred in
granting the motion of respondents in discovery to dismiss them
for failure to add them as defendants within the statute of
limitations. Dismissals based on the statute of limitations are
governed by section 2-619 of the Code of Civil Procedure. 735
ILCS 5/2-619 (West 1996). The granting of a section 2-619 motion
to dismiss is given de novo review on appeal. Kedzie & 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993).
Section 2-619 permits motions to dismiss to be made by a
"[d]efendant" or "any other party against whom a claim is assert-
ed." A non-party cannot seek dismissal pursuant to section 2-
619. See Conley v. Rust, 12 Ill. App. 3d 26, 297 N.E.2d 397
(1973) (interpreting predecessor section 48). This court has
held that (at least for the purposes of section 2-619) persons
and entities named as respondents in discovery are not parties to
the action in which they are so named. Engel v. St. Mary's
Hospital of Decatur, 198 Ill. App. 3d 174, 177, 555 N.E.2d 810,
811 (1990). Section 2-402 expressly permits respondents in
discovery to file a motion to convert themselves into defendants,
but is silent regarding any other motion. See 735 ILCS 5/2-402.
Thus, the motion to dismiss was improper and the trial court
erred in granting it.
III
The question remains however, as to whether the trial court
erred in denying plaintiff's motion to convert and amend. The
trial court concluded that plaintiff had met the procedural
requirements of section 2-402 relating to timeliness and notice
of the motion to convert. However, the trial court also conclud-
ed that plaintiffs were required to file its probable cause
materials within the six month time period specified in section
2-402 and that the affidavits of Dr. Fries and plaintiff's
attorney did not establish probable cause.
However, this court has stated that "section 2-402 does not
require that the evidence supporting a finding of probable cause
be filed prior to the hearing." Coley v. St. Bernard's Hospital,
281 Ill. App. 3d 587, 595, 667 N.E.2d 493, 498 (1996). This
court has also held that section 2-402 may be read in pari
materia with section 2-622 (735 ILCS 5/2-622 (West 1996)), which
requires that a plaintiff file an affidavit and a medical report
that the plaintiff has a reasonable and meritorious cause of
action. Coley, 281 Ill. App. 3d at 592, 667 N.E.2d at 497;
Moscardini v. Neurosurg, S.C., 269 Ill. App. 3d 329, 336, 645 N.E.2d 1377, 1382 (1994). Section 2-622 demonstrates that the
legislature is perfectly capable of expressly requiring the
submission of affidavits or other materials.
Respondents rely on Browning v. Jackson Park Hospital, 163
Ill. App. 3d 543, 516 N.E.2d 797 (1987), in which the plaintiff
had the section 2-402 motion granted as a routine motion without
a hearing and attached no affidavits or other supporting mater-
ials. This court stated that:
"We hold that plaintiffs must request prob-
able cause hearings on their motions to con-
vert respondents to defendants in order to
show that they have the evidence required by
the statute. In the case at bar plaintiff
made no such showing and he specifically
asked the court not to hold a hearing on the
motion to add respondents as defendants by
filing it as a routine motion. Since plain-
tiff made no attempt to present the evidence
needed to support his motion to add [respon-
dents] as defendants within six months of
naming them as respondents in discovery, we
affirm the trial court's decision to dismiss
the complaint as to these defendants."
Browning, 163 Ill. App. 3d at 548-49, 516 N.E.2d at 801 (emphasis in original).
Respondents' brief quotes the first and third sentences just
quoted, but omits the second. In this case, however, plaintiff
did not ask the court not to hold a hearing on the motion to add
respondents as defendants by filing it as a routine motion.
In Froehlich v. Sheehan, 240 Ill. App. 3d 93, 102, 608 N.E.2d 889, 896 (1992), this court followed Browning, but added
in dicta that the result would be the same even if the motion had
not been placed on the routine motion call because the original
motion there "was accompanied by no evidence whatsoever."
Froehlich, 240 Ill. App. 3d at 102, 608 N.E.2d at 896. However,
in Froehlich, the appellate court was presented with a case where
the trial court had initially granted the plaintiff's motion to
convert. Certainly, a trial court may not find probable cause
based on "no evidence whatsoever." In this case, while plaintiff
did not attach affidavits to the motion to convert, plaintiff
submitted them to the trial court prior to the hearing on the
matter. The record shows that the affidavits were similar to
those at issue in Moscardini. The record also shows that plain-
tiff informed the trial court of additional evidentiary material
plaintiff could present on the day of the hearing. Given the
facts and circumstances of this case, this court is persuaded
that Coley and Moscardini are more applicable than Browning and
Froehlich.
For all of the aforementioned reasons, the judgment of the
circuit court of Cook County is reversed and the case is remanded
for further proceedings consistent with this opinion.
Reversed and remanded.
BUCKLEY, J., and O'BRIEN, J., concur.