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Prendergast v. Rush-presbyterian-st. Luke's





APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.


This is an appeal from an order which granted a petition under section 72 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) filed by the plaintiff, Judith A. Prendergast. The petition sought to vacate a consent order which dismissed her suit against the defendants, Rush-Presbyterian-St. Luke's Medical Center (Rush-Presbyterian), Rush University, Joann Jamann, Betty Tarsitano and Myra Levine, and to reinstate her original cause of action against them.

Subsequent to the filing of Prendergast's petition, Rush-Presbyterian made a motion for a change of venue as of right, making a general allegation of prejudice. The trial court granted the motion only after it ruled on the section 72 petition. On appeal, Rush-Presbyterian contends that its motion for a change of venue deprived the trial court of jurisdiction over the section 72 petition and that, in any event, the petition did not meet the requirements for section 72 relief.

On April 6, 1977, Prendergast filed a complaint against the defendants alleging that they unfairly denied her the right to continue her education for a master's degree in nursing. Her complaint recounted that she was a graduate nursing student at Rush University needing three courses to receive her degree: N-511, N-512 and N-513. As a student in N-511, the first course of the sequence, she submitted two papers and was given a grade of "A" on the first paper and a grade of "F" on the second paper. She received a failing grade for the course. The school refused to permit her to enroll in N-512, the next course required for graduation. The complaint sought a grade of "C" for the N-511 course, an injunction enjoining Rush-Presbyterian from preventing her continued study and a temporary restraining order permitting her to participate in the N-512 class during the time an administrative review of her grade in N-511 was conducted within the University. The University agreed to the last request and no formal temporary restraining order was entered.

A hearing was held on the matter by the University and on April 22, 1977, its faculty senate determined that "C" was the proper grade for Prendergast's work in the N-511 course. On May 18, 1977, the trial court entered the following order:

"This matter having come on for hearing before the Court on May 3, 1977, and counsel for the herein named defendants having represented:

1. That the permanent grade for the course N-511 shall be a grade of "C";

2. That the remaining courses to be completed by the plaintiff in order to fulfill the requirements for graduation are courses N-512 and N-513;

3. That the Plaintiff has been reinstated as a student in the Graduate Program, College of Nursing; and

4. That in the continuation of her graduate studies, the plaintiff shall be treated in the same manner and graded pursuant to the same stated standards and requirements as those imposed upon all other graduate students in the College of Nursing.

And the Court having been fully advised of the premises; and the plaintiff having agreed, on the basis of the foregoing, to voluntarily dismiss this cause.

NOW, there, IT IS ORDERED that the herein cause shall be, and hereby is, dismissed without prejudice and without cost to either party."

Prendergast entered the N-512 class and received a "D" as a final grade. All other students in the N-512 class received grades of "A" or "B." On July 11, 1977, Prendergast filed the petition under section 72, with an amended complaint, alleging that Rush-Presbyterian had induced her to dismiss her original suit by fraudulent misrepresentation and that it had violated the consent order. She submitted an affidavit supporting the petition.

• 1 Rush-Presbyterian argues that Prendergast's petition was improvidently granted because the requirements for section 72 relief have not been met in this case. Initially, the contentions are directed at the recitation in the consent order which dismisses the cause "without prejudice." Rush-Presbyterian suggests that this language makes the order a "voluntary dismissal," over which the trial court has no ...

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