Acosta v. Sharlin

No. 2--97--0335
__________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
__________________________________________________________________

GRACIELLA ACOSTA, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 94--L--1049
)
STEVEN N. SHARLIN, )
Indiv. and d/b/a Advanced )
Podiatry Group, ) Honorable
) Bernard E. Drew,
Defendant-Appellee. ) Judge, Presiding.
__________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Graciella Acosta, appeals a grant of summary
judgment for defendant, Steven N. Sharlin, individually and doing
business as Advanced Podiatry Group, in a suit for healing art
malpractice. Plaintiff argues that (1) the trial court erred in
ruling on defendant s motion because defendant moved up the date of
the hearing without giving her proper notice; and (2) summary
judgment was substantively improper. We hold that the trial court
should have granted plaintiff s motion to vacate the summary
judgment. Therefore, without reaching plaintiff s second issue, we
vacate and remand the cause for further proceedings.
Attorney Robert Ronnbeck filed plaintiff s complaint on August
2, 1994. Defendant entered his appearance, plaintiff filed a
certificate of merit from a consulting health professional (see 735
ILCS 5/2--622 (West 1994)), and the court scheduled discovery. On
July 24, 1995, the law offices of Patrick J. Salvi (Salvi) appeared
as additional counsel for plaintiff. On September 18, 1996, the
court allowed Salvi to withdraw and allowed plaintiff until October
9, 1996, to replace Salvi; Ronnbeck still represented her.
On February 10, 1997, defendant moved for summary judgment,
alleging that plaintiff had yet to disclose any expert witness and
could not prevail without expert testimony. Defendant s notice of
motion, also filed on February 10, stated that, on February 19,
1997, his counsel would appear in court to present the motion.
Defendant soon rescheduled the hearing on his summary judgment
motion. Defendant s Re-Notice of Motion (renotice), file-stamped
February 18, 1997, stated that his counsel would present the
previously filed motion on February 18, 1997. Defendant s attorney
certified that on Friday, February 14, 1997, he mailed copies of
the renotice to the circuit court, Ronnbeck, and the law firm of
Nilson, Stookal, Gleason & Caputo, Ltd. (Nilson). Nilson had
earlier told defendant that it intended to request leave to appear
on plaintiff s behalf and to continue the trial date.
At the hearing on February 18, 1997, the trial court denied
Nilson s motion but granted defendant s motion for summary
judgment. Ronnbeck did not appear at the hearing.
On March 5, 1997, plaintiff moved to vacate the grant of
summary judgment and either continue the case or enter a voluntary
dismissal. Plaintiff argued in part that the court should not have
heard the summary judgment motion because defendant s re-notice
was not timely mailed; it would not have reached Ronnbeck until
after the February 18 hearing. Ronnbeck was not in court on
February 18 because he believed that only Nilson s motion was up
for a hearing that day. Ronnbeck stated that, had this motion been
denied, he would have moved for a voluntary dismissal before the
court heard argument on the motion for summary judgment, which it
had been scheduled to do on February 19. Ronnbeck asserted further
that he would have responded to the summary judgment by informing
the court that plaintiff had an expert who was in the process of
completing a report.
Plaintiff attached a copy of Nilson s motion and an affidavit
from Nilson lawyer William Caputo, who had agreed to take the case
if he could obtain a continuance. Caputo stated in part that, on
or about February 1, 1997, he sent defendant s counsel a copy of
Nilson s motion. He had left defendant s counsel phone messages
asking whether defendant would object to another continuance, but
defendant s counsel did not return his calls.
Plaintiff also attached her response to defendant s Rule 213
requests (see 166 Ill. 2d R. 213)) identifying her expert witnesses
and summarizing their qualifications and opinions. This exhibit
includes a report and the certificate of merit from podiatrist
Michel Petersen. The response also identifies Paul Michael Arnow,
M.D., as an expert, supplies his curriculum vitae, and states that
Arnow would testify that plaintiff s condition resulted from
defendant s delay in discovering and treating her infections. The
trial court denied the motion to vacate, and plaintiff appeals.
Plaintiff argues that summary judgment was improper because
she did not receive proper notice of the February 18, 1997, hearing
on defendant s motion. According to plaintiff, she was denied her
day in court because the renotice did not reach her attorney until
the morning of the hearing day, depriving him of a proper
opportunity to oppose the motion. We hold that fairness required
the trial court to grant plaintiff s motion to vacate the summary
judgment, in part because the notice defendant supplied of the new
hearing date was at best of questionable validity.
Under Supreme Court Rule 12(c) (145 Ill. 2d R. 12(c)), service
by mail is complete four days after mailing. The language of Rule
12(c) does not provide any details regarding how the four-day
period is computed. However, the four-day period is generally
calculated by excluding the day on which the notice is mailed and
including the following four days after the notice is mailed. See,
e.g., Tannenbaum v. Lincoln National Bank, 143 Ill. App. 3d 572,
575 (1986) (where motion and notice of motion were mailed March 5,
1984, service was complete on March 9, 1984); F.J. Pechman, Inc. v.
Oldham, 86 Ill. App. 3d 1018, 1021 (1980) (where request for
admissions and proof of service were mailed on February 6, 1979,
service was completed on February 10, 1979).
In the instant case, the trial court found that defendant
mailed the renotice on February 14, 1997. In light of the
aforementioned principles, service of the renotice was therefore
effectuated February 18, 1997, for a hearing scheduled for 9:15
a.m. on that day. Also, as there was no mail delivery from
February 15-17 (being a weekend followed by a federal holiday), the
earliest plaintiff s attorney could have received the renotice was
the day of the hearing--perhaps even after the hearing had taken
place. We doubt seriously whether this notice was timely at all;
however, even if technically sufficient, it was so slight that
equity will not allow the grant of summary judgment to stand.
The supreme court rules do not specify how far ahead a party
must supply notice of a hearing on a motion for summary judgment.
However, under the applicable circuit court rule, a motion for
summary judgment shall not be heard until 10 days after service of
the motion under Supreme Court Rule 11 (145 Ill. 2d R. 11). 19th
Judicial Cir. Ct. R. 2.03(g)(eff. August 4, 1989). Plaintiff did
not raise this defect, so we do not rely primarily on the violation
of the circuit court rule. However, defendant s gross violation of
the rule is some evidence that the proceedings leading to the entry
of summary judgment were irregular at best.
Kirk v. Michael Reese Hospital & Medical Center, 275 Ill. App.
3d 170 (1995), applies here. In Kirk, a medical malpractice case,
the defendants received summary judgment because the plaintiff s
expert did not form an opinion by the time of the summary judgment
hearing. The plaintiff moved timely to vacate, attaching an
affidavit from her witness stating that he had formed an opinion
and could testify for the plaintiff. The trial court denied the
motion. Reversing, the appellate court observed that the
controlling consideration was fairness, which required allowing the
motion to reconsider. The court noted that, although the plaintiff
did not have a proper expert witness when the summary judgment
motion was heard, her counsel promptly obtained a properly
qualified expert whose affidavit showed that he could give the
expert opinion testimony the plaintiff needed. Given the judicial
preference for deciding cases on their merits, it would be unfair
to uphold summary judgment under these circumstances. Therefore,
the court allowed the reconsideration of the defendants motion for
summary judgment. Kirk, 275 Ill. App. 3d at 173-74.
The equitable considerations in favor of vacating the summary
judgment here are at least as strong as in Kirk. Plaintiff s
timely motion to vacate demonstrates that she had secured the
needed expert opinions. Moreover, unlike the situation here, it
does not appear that the plaintiff in Kirk had inadequate notice of
the hearing on the summary judgment motion. Fairness requires that
the plaintiff receive a chance for a ruling on the merits rather
than what amounts to a dubiously grounded procedural default.
Defendant argues that, contrary to the contemporaneous
certificate of mailing, his counsel actually hand delivered the
renotice to plaintiff s counsel on February 14, 1997. Defendant
made a similar argument in his motion to amend the record. The
trial court refused the motion; lacking any record of the hearing
on this motion, we shall not disturb that decision. In any event,
we would still conclude that equity requires this court to vacate
the grant of summary judgment.
The judgment of the circuit court of Lake County is vacated,
and the cause is remanded for further proceedings.
Vacated; cause remanded.
GEIGER, P.J., and RATHJE, J., concur.