APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
J. KAPLAN, the Hon. NATHAN ENGELSTEIN, and the Hon. NICHOLAS J.
BUA, Judges, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This wrongful-death action was brought originally by John Atkins, husband of the deceased, Brenda Atkins, acting as administrator of her estate, to recover damages for the alleged negligence of defendants in allowing carbon monoxide gas to escape and accumulate in the deceased's residence, resulting in her death. Atkins was succeeded by Claude Murphy as administrator who was himself removed in favor of plaintiff, Bessie Conley. Prior to a trial the circuit court entered an order reciting that the case had been settled and dismissing the cause with prejudice. From this order and from the order denying the petition to vacate the dismissal, plaintiff now appeals. Plaintiff contends the petition to vacate was improperly denied in that the judge failed to recognize his discretion to vacate an order entered "with prejudice" and that the underlying settlement itself was invalid since Conley, as the acting administrator, had never acquiesced in it. Plaintiff further claims that the order dismissing the lawsuit was void since it failed to comply with Supreme Court Rule 218(b) governing pretrial proceedings.
Plaintiff also made a motion, 10 months after the notice of appeal, to present a supplemental brief regarding the propriety of the trial court's issuance of discovery sanctions dismissing John Atkins from the suit two years prior to the alleged settlement on behalf of the decedent's children. We have taken that motion with the case.
On October 1, 1973, Brenda Atkins was asphyxiated because of a gas leak in her rented residence. Her two children were living with her at the time, but her husband was residing in Mississippi. In April of 1974 letters of administration were issued appointing John Atkins, the husband, guardian of the minors' persons and estates and awarding him custody of the children. Approximately one year later, a wrongful-death action was instituted by the administrator, Atkins, on behalf of the heirs against the owners of the rental property and Peoples Gas Company.
On April 18, 1975, a set of interrogatories was served on Atkins. When Atkins failed to respond or to attend scheduled depositions by September of 1975, defendants moved to dismiss. This motion was continued on plaintiff's behest and he was given until early November to comply with the discovery requests. Instead, in response to letters from defendants' attorneys demanding immediate compliance, plaintiff's attorney wrote defendants to ask what the earlier court order had included. In March of 1976, defendants responded. Two months later defendants' attorneys again wrote the attorney for plaintiff demanding discovery compliance and warning that they would seek dismissal if such were not forthcoming. On August 5, 1976, the threatened motion to dismiss was made on behalf of defendants. Plaintiff's attorney responded by stating that Atkins was not a resident of Illinois and as such was not qualified to act as administrator. The response also claimed that the real parties in interest were Victoria and Gloria Atkins, the children of decedent. It was stated that prior to any further proceedings a successor administrator had to be named and the present administrator was to be removed. Plaintiff's attorney thus nominated a new administrator, Claude Murphy. Judge Bua directed that a discovery deposition be given on August 11, 1976, but once again, Atkins did not appear. Supplemental interrogatory answers were filed on August 25 and, at that time, attorney Mauldin represented to the court that he had been unable to contact Atkins. As a result, discovery sanctions were issued against Atkins:
"That John Atkins, for failure to give his discovery deposition on August 24, 1976 and for failure to execute sworn answers to certain interrogatories pursuant to court orders of August 11, 1976 and October 10, 1975, be and same is hereby barred forever from making any claim whatsoever arising out of the death of Brenda Atkins and is further barred from any claim or proceeds which may be or shall be due to the estate of Brenda Atkins or to Victoria and/or Gloria Atkins and that John Atkins be barred from the filing of any action whatsoever against any defendant herein, either under the complaint or the amended complaint, or any other person, firm or corporation arising out of the death of Brenda Atkins."
Judge Bua's order also required that the new administrator, Claude Murphy, appear for a deposition on September 7, struck the supplemental answers to interrogatories and ordered that new answers be given, and continued defendants' motions to dismiss. The next day an amended complaint in the wrongful-death action was filed by Murphy. Subsequently second and third amended complaints were also filed.
Nearly 11 months later, in July 1977, Murphy filed a petition to vacate the portion of the August order which imposed discovery sanctions dismissing and barring Atkins' claims. Hearing on the petition was continued several times and eventually the petition was denied on February 6, 1978.
The wrongful-death action, with the children as remaining heirs, proceeded through discovery and other pretrial matters before Judge Kaplan. On August 7, defendants' motion to dismiss was denied and a new defendant, Robert Nevry, janitor in the Atkinses' residence at the time of the gas leak, entered his appearance and filed a motion to dismiss. Hearing on that motion was continued until September 21.
On August 26, 1978, defendants' attorneys sent administrator Murphy's attorney (Sidney Altman) various release forms and a stipulation to dismiss indicating that all forms needed to be completed prior to issuing drafts. Defendants' attorney asked that he be informed if anyone other than Atkins was to be administrator on the date the settlement was to be made since certain papers would in that event need redrafting. On that same date, August 26, Atkins petitioned the probate division of the circuit court for removal of Claude Murphy as administrator and for substitution of Bessie Conley. Atkins' petition stated that Murphy had been appointed only after misrepresentations were made to Atkins that acquiescence in Murphy's appointment was necessary because neither he nor his aunt, Bessie Conley, living in Chicago, would qualify as administrator. He further charged that his former counsel, now discharged, had wrongfully appointed Murphy so that the forthcoming disbursements on the suit could be controlled. Atkins also averred that Murphy was unqualified to act as administrator and had neglected his duties. On September 19 a notice was sent to all parties that a motion for continuance would be sought by Atkins and a copy of the probate petition was attached. The petition was stamped August 24. Atkins, as guardian of the estate and persons of the minor children, moved for this continuance of the wrongful-death proceeding on September 21 while the probate division was resolving the administrator appointment dispute. Atkins' attorney, Lamont Strong, filed his appearance in the wrongful-death action on that same date. Atkins had filed a supplemental petition in probate to remove Murphy on September 19. In that petition Atkins added allegations that Murphy had refused to communicate with him, had pursued a settlement of the wrongful-death claim over Atkins' objections, and had insisted the action be settled for an amount not in the best interests of the children. On September 19, Altman moved to amend portions of his motion for attorney's fees and sent copies to all attorneys, including Strong.
Meanwhile, in the wrongful-death action, two days after Atkins filed his initial petition in the probate division (August 26, 1978), Altman, Murphy's attorney, moved to advance the schedule for the September hearing on the motion to dismiss for two additional weeks. On September 11, Altman filed his petition for the adjudication of attorney's fees. The next day, September 12, Altman moved to advance the time for filing an answer to defendant Nevry's motion or to allow filing of an answer instanter "after advising the court that Sidney S. Altman has been `discharged' by the guardian `John Atkins' who has no other direct interest in the proceedings; that Sidney S. Altman is still attorney of record." A copy of this notice was sent to defendants' attorneys and presented to the court. Altman also filed the answer to Nevry's motion to dismiss on that date.
The probate division approved the substitution of Bessie Conley as administrator for Murphy on October 5, 1978. On November 13, Judge Giliberto granted a motion to substitute Conley for Murphy as plaintiff in the wrongful-death action and to amend all pleadings accordingly. Conley's attorney, Strong, gave notice immediately that he would enter an appearance in the wrongful-death action for the new administrator, Conley; the appearance was entered November 17. Meanwhile, Judge Kaplan continued the case on pretrial from September 21 to October 6 and on the latter date to November 30. On November 30, Judge Kaplan entered the order which precipitated this appeal:
"Claude J. Murphy, Sr., People's Gas, Light & Coke Administrator of the Company, Jack Goldstein and Estate of Brenda Atkins, v. Maurice Polisky, d/b/a Jack deceased. Morris Realty and individually Robert Neverly[sic].
THIS MATTER COMING on for pretrial and the court being full advised in the premises, and all parties appearing by counsel and personal representatives, and non-parties also appearing with counsel, and all facts regarding liability, injuries and damages having been made known ...