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03/22/88 Julie Parrish, Indiv. and v. James Lee Et Al.

March 22, 1988

JULIE PARRISH, INDI

v.

AND AS GUARDIAN AND NEXT FRIEND OF DANIELLE PARRISH, A MINOR, PLAINTIFFS-APPELLEES,

v.

JAMES LEE ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

521 N.E.2d 1188, 167 Ill. App. 3d 443, 118 Ill. Dec. 495 1988.IL.392

Appeal from the Circuit Court of Peoria County; the Hon. Joe B. McDade, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Defendants appeal on the pleadings the trial court's order of March 25, 1987, vacating an order in their favor dated February 23, 1987, which order effectively dismissed plaintiff's cause of action pursuant to an earlier order of dismissal entered on August 18, 1986.

On May 24, 1985, plaintiff Julie Parrish sued defendants for medical negligence in treating her daughter, Danielle Parrish. Defendants appeared and moved for a transfer of venue; however, Brokaw Hospital never appeared and there is no record that Brokaw was ever served. On April 8, 1986, the trial court transferred this case to McLean County.

Defendants moved to dismiss, alleging plaintiffs failed to pay the transfer costs. On August 18, 1986, the trial court granted defendants' motions and dismissed the action.

On August 28, 1986, plaintiffs' attorney, Richard D. Price, Jr., filed a motion to vacate the dismissal order. On November 24, 1986, the trial court ordered defense counsel to submit an itemized list of expenses associated with the August 18 and November 24 hearings. Plaintiffs were to pay these related expenses within 21 days of their submission. The order further provided plaintiffs' motion to vacate was granted subject to plaintiffs' compliance with the subject order by making the payments provided for therein. The plaintiffs' failed to make such payments.

On January 29, 1987, defendants filed a motion to make the dismissal order final and appealable, or alternatively, to dismiss with prejudice since plaintiffs failed to comply with the November 24 order and prayed the trial court make the August 18 order final and appealable.

On February 23, 1987, the trial court found plaintiffs failed to meet the conditions of the November 24 order, vacated that order, and dismissed the case pursuant to the August 18 order. The trial court declared there was "no just reason to delay enforcement or appeal," consistent with Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a).)

On March 19, 1987, plaintiffs, having employed new and different attorneys, filed a motion to vacate the February 23 order of dismissal, with the affidavit of Julie Parrish attached thereto. A supplement to said motion was filed on March 23, 1987. On March 25, 1987, defendants filed a motion to strike the motion to vacate claiming the trial court lacked jurisdiction to reconsider its February 23 order. Plaintiffs' motion was allowed providing the November 24 order once again became viable, except plaintiffs were to satisfy the conditions therein within five days. Defendants' motion to strike was denied. On March 26, 1987, plaintiffs filed a letter indicating the expenses were paid pursuant to the March 25th order. On March 30, 1987, this case was docketed in McLean County. Thereafter, defendants filed their notices of appeal in Peoria County.

For purposes of brevity, since the particular parties or substantive claims affected by the Rule 304(a) finding are not relevant in this appeal, there is no need for further elaboration on factual matters in this opinion.

The question posed is does a timely filed motion to vacate the February 23 order of dismissal, which contained a Rule 304(a) finding, retain jurisdiction in the circuit court so as to permit said trial court to vacate the dismissal order of February 23, 1987? Rule 304(a), which governs "Appeals ...


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