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Dick v. Gursoy





Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

JUSTICE LINDBERG delivered the opinion of the court:

On this appeal of a medical malpractice case from the circuit court of Lake County, defendant-physician seeks reversal based upon a statute of limitations defense or, failing that, a set-off from the judgment against him in the amount of the settlement reached by his co-defendants. Defendant's failure to plead the defense prevents reversal, but we do grant the set-off.

Plaintiff's wife, Donna S. Dick, filed this action on February 14, 1979, against five physicians and a hospital, alleging negligent misdiagnoses and treatment of her cancer. Defendant Ahmet O. Gursoy, the appellant here, was the first doctor Mrs. Dick consulted, on January 12, 1974, about a lump on her back, which he mistakenly diagnosed as a floating rib. After Mrs. Dick's death from cancer on November 4, 1980, her husband Donald B. Dick became the party of record and amended the complaint to add wrongful death counts against each of the defendants.

When the case came to trial in January 1983, only the counts against Gursoy were tried, the other parties apparently having reached a settlement. The jury found for plaintiff on both counts and awarded $100,000 for wrongful death and $200,000 for the survival action. After judgment was entered upon the verdicts, Gursoy moved for a set-off of $260,000, the amount of the settlement. The trial court, pursuant to plaintiff's petition, approved the settlement as being in exchange for plaintiff's covenants not to sue regarding only the wrongful death counts against Gursoy's co-defendants. The court approved the voluntary dismissal of the survival counts against the co-defendants. A set-off was granted, therefore, only with regard to the $100,000 wrongful death verdict.

Gursoy first contends that the trial court erred in denying him leave to amend his answer to include an affirmative defense based upon the statute of limitations. The record contains the following interchange between defense counsel and the trial judge:

"MR. GAROFALO: One other thing for the record. I don't know if the Court Reporter got my motion to file this Second Affirmative Defense.

THE COURT: Right. I frankly think at this point and posture of the case it's untimely and denied, and for a number of other reasons which I don't want to go into at this point."

This is the only reference in the transcript to Gursoy's attempt to plead this defense, and the common law record does not contain the proposed amended pleading.

• 1 A trial court has broad discretion in motions to amend pleadings prior to the entry of final judgment, and the denial of a motion to amend will not be regarded as prejudicial error unless there has been a manifest abuse of such discretion. (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill.2d 151.) It has been frequently held that a trial court cannot be said to have abused that discretion where the proposed amendment has not been submitted to the court or made a part of the record. (Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill.2d 1; Tate v. Coonce (1981), 97 Ill. App.3d 145, 421 N.E.2d 1385; Volvo of America Corp. v. Gibson (1980), 83 Ill. App.3d 487, 404 N.E.2d 406; Ochoa v. Maloney (1979), 69 Ill. App.3d 689, 387 N.E.2d 852.) Gursoy points to the quoted interchange as evidence in the record that the trial court knew of the existence of the motion to amend. However, the reviewing court itself is powerless to review the trial court's exercise of discretion when the proffered amendment is not included in the record on appeal. (Lowrey v. Malkowski (1960), 20 Ill.2d 280.) Thus, the record here does not permit our consideration of Gursoy's first contention.

• 2 Gursoy secondly contends that the trial court erred in not granting him a directed verdict at the end of plaintiff's case or, in the alternative, a judgment notwithstanding the verdict. He bases this contention on the assertion that his statute of limitations defense was conclusively proven at trial. However, as we just discussed, Gursoy was unsuccessful in his attempt to amend his answer to include this affirmative defense. The Code of Civil Procedure requires that affirmative defenses be plainly set forth in the answer or reply. (Ill. Rev. Stat. 1981, ch. 110, par. 2-613(d), formerly codified as par. 43(4).) It is well established that a defense not properly pleaded is deemed waived even though it may appear to be within the evidence. (Culligan Rock River Water Conditioning Co. v. Gearhart (1982), 111 Ill. App.3d 254, 443 N.E.2d 1065; M. Loeb Corp. v. Brychek (1981), 98 Ill. App.3d 1122, 424 N.E.2d 1193.) Although some exceptions to this rule exist (see Tarzian v. West Bend Mutual Fire Insurance Co. (1966), 74 Ill. App.2d 314, 221 N.E.2d 293, where the defense is introduced by the defendant's adversary and the defendant prior to trial did not have the information enabling him to plead the defense; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App.3d 298, 393 N.E.2d 1223, where the defense is raised in a motion for summary judgment), no applicable exception has been suggested here. Since we must affirm the trial court's denial of Gursoy's motion to amend the answer, we hold that Gursoy was not entitled to a judgment based upon the unpleaded defense, whether or not it was proven. See M. Loeb Corp. v. Brychek (1981), 98 Ill. App.3d 1122, 424 N.E.2d 1193.

Gursoy's final contention is that the trial court erred in denying his motion for a $260,000 set-off against plaintiff's total recovery on both counts. Plaintiff received $260,000 from the settling defendants. Instead of granting a set-off in that amount against the entire $300,000 judgment against defendant, the trial court awarded a set-off to Gursoy only with regard to the $100,000 wrongful death count, leaving him fully liable for the $200,000 survival action verdict.

The first indication in the record that any settlement had been reached appeared on January 20, 1983, when plaintiff petitioned the court to find that $150,000 was a fair, reasonable and proper settlement of the case against defendant Cesar Maniquis only. The petition made no distinction between the wrongful death and survival counts. No action was taken by the trial court on the petition prior to trial. On January 24, 1983, defendant Silverio Agujar was granted summary judgment. On that same date, trial began, but only on plaintiff's counts against Gursoy.

On February 7, 1983, after judgment on the jury verdicts had been rendered, Gursoy made his motion for a set-off of $260,000. A memorandum in support of that motion asserted that $260,000 was the total amount of a settlement reached between plaintiff and Gursoy's remaining co-defendants on the day the trial began and that the settling parties had entered covenants not to sue for all claims of plaintiff against Condell Memorial Hospital, Maniquis, Edward D. Hobart, and Arcadio F. Ortis.

On March 16, 1983, plaintiff petitioned the court to find the settlements with Maniquis ($150,000), Hobart ($100,000), and Condell Memorial Hospital ($10,000) to be fair, reasonable and proper. This petition indicated specifically that the monetary settlements came in exchange for covenants not to sue with regard to the wrongful death counts. Plaintiff also sought authorization to voluntarily dismiss the survival counts. The same day this petition was filed, the trial court entered an order ...

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