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Slavick v. Michael Reese Hospital

OPINION FILED NOVEMBER 6, 1980.

CHARLES JOHN SLAVICK, PLAINTIFF-APPELLANT,

v.

MICHAEL REESE HOSPITAL AND MEDICAL CENTER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Charles John Slavick, brought this appeal from an order entered in the circuit court of Cook County allegedly denying his motion to vacate a prior order which had dismissed with prejudice his five-count medical malpractice complaint. Defendant, Michael Reese Hospital, filed with this court a motion to dismiss the appeal for lack of jurisdiction because plaintiff had failed to file a timely notice of appeal. We grant this motion and dismiss the appeal.

On October 25, 1978, plaintiff's complaint was dismissed pursuant to defendant's motion to dismiss which alleged that three of the counts in the complaint failed to state a cause of action and all of the counts were barred by the applicable statute of limitations. The order of dismissal reads as follows:

"That plaintiff's complaint be and is dismissed with prejudice; Further, that the defendant shall provide the plaintiff an affidavit signed and verified by such representative of defendant who has made a search of defendant's records for those documents previously sought by plaintiff, such affidavit to reflect the result of defendant's record search."

The second part of this order resulted from plaintiff's discovery request to produce certain documents, which request was filed before the order of dismissal. It appears that plaintiff had brought a previous and similar action which had been dismissed for want of prosecution. In that action, plaintiff had been provided by defendant with many of the documents he was requesting in the present action. Prior to the October 25, 1978, order, defendant sent plaintiff a letter telling him that defendant had previously produced many of the documents requested and could not find any of the remaining documents. The trial court, in the October 25, 1978, order, simply ordered the defendant to deliver an affidavit to plaintiff to verify that a search of defendant's records had been made and all documents in defendant's possession had already been produced.

On November 8, 1978, within 30 days of the order of dismissal, plaintiff filed a motion to vacate the order. This was a general motion and did not state the reasons warranting the vacating of the order of dismissal.

On March 15, 1979, plaintiff filed a motion asking the court to order the defendant to produce the affidavit defendant had been ordered to produce in the October 25, 1978, order. This motion was heard before a different judge than the one who had dismissed the complaint. The motion was heard on the same day it was filed. The motion was denied because the court found that the October 25, 1978, order was a final and appealable order, and since more than 30 days had passed since that order, the trial court held that it no longer had jurisdiction to consider such a motion. Apparently, the motion judge sitting on March 15, 1979, had no knowledge of plaintiff's November 8, 1978, motion to vacate the order of dismissal.

On April 12, 1979, plaintiff called up his November 8, 1978, motion for a hearing. On that day his motion to vacate was denied because he had failed to call it up for a hearing within 90 days as required by circuit court rule.

Shortly after this order, defendant delivered to plaintiff the required affidavit, and then on May 10, 1979, 28 days after his first motion to vacate had been denied, plaintiff filed a second motion to vacate the October 25, 1978, order of dismissal. In this motion plaintiff alleged, basically, that the complaint should not have been dismissed because plaintiff believed the complaint stated a cause of action and was not barred by the applicable statute of limitations. As alternative relief to vacating the October 25, 1978, order, plaintiff moved the court to declare that order to be final and appealable in light of defendant's having delivered the required affidavit.

On May 25, 1979, the trial court entered an order which merely granted plaintiff's motion to declare the October 25, 1978, order to be final and appealable. This order said nothing about plaintiff's second motion to vacate the October 25, 1978, order.

On June 22, 1979, plaintiff filed a notice of appeal from the May 25, 1979, order, which, according to plaintiff's notice of appeal, had denied his motion to vacate the October 25, 1978, order. Shortly thereafter, defendant filed his motion to dismiss this appeal.

OPINION

Defendant contends that the October 25, 1978, dismissal order was a final and appealable order. Defendant argues that plaintiff had two choices after the entry of this order. He could either file a notice of appeal within 30 days or a motion to vacate within 30 days. Plaintiff did in fact file a motion to vacate. This motion was denied on April 12, 1979.

Defendant next argues that following the April 12, 1979, order, plaintiff had one choice — to file his notice of appeal within 30 days. Defendant contends that plaintiff could not delay this requirement by filing a second motion to vacate within 30 days after the April 12, 1979, order. Defendant concludes that because plaintiff failed to file a ...


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