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04/13/88 T. L. Cain Et Al., As v. Fred Sukkar

April 13, 1988

CAIN, DECEASED, PLAINTIFFS-APPELLEES

v.

FRED SUKKAR, DEFENDANT-APPELLANT (AMERICANA HEALTH CARE CENTER ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

T. L. CAIN et al., as Coexecutors of the Estate of Marie M.

521 N.E.2d 1292, 167 Ill. App. 3d 941, 118 Ill. Dec. 599 1988.IL.525

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH, J., concurs. PRESIDING JUSTICE GREEN, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On August 12, 1985, plaintiffs T. L. Cain, Wayne T. Cain, and Edward J. Cain, as coexecutors of the estate of Marie M. Cain, filed a medical malpractice action in the circuit court of Champaign County against defendant Fred Sukkar, and naming Cole Hospital, Inc., A. Barnes, Americana Healthcare Center, Kenneth L. Bussey, M.D., and Anthony F. Karich, M.D., as respondents in discovery (Ill. Rev. Stat. 1985, ch. 110, par. 2-402).

On January 9, 1986, Sukkar filed a motion for summary judgment on the count filed against him in the complaint. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005.) On February 3, 1986, plaintiffs filed the affidavit of purported expert, Dr. Richard C. Gardner, in opposition to Sukkar's motion for summary judgment. Thereafter, Sukkar moved to strike Gardner's affidavit.

On February 5, 1986, plaintiffs filed an objection to Sukkar's motion to strike the affidavit, a motion to consolidate the instant action with one naming Americana Healthcare Center as defendant (Ill. Rev. Stat. 1985, ch. 110, par. 2-1006), a motion to add Kenneth L. Bussey, M.D., as a party defendant, and a first amendment to their original complaint alleging medical malpractice and naming Bussey as a defendant. On March 17, 1986, respondents in discovery, Cole Hospital, Inc., A. Barnes, and Anthony F. Karich, M.D., were dismissed with prejudice on the plaintiffs' motion.

On May 16, 1986, Sukkar filed a motion to strike Dr. Gardner's affidavit as being merely conclusory and failing to comply with Supreme Court Rule 191 (107 Ill. 2d R. 191). A hearing on Sukkar's motions for summary judgment and to strike Gardner's affidavit was held on July 3, 1986. At the Conclusion of the hearing, Gardner's affidavit was stricken for failure to comply with the requirements of Supreme Court Rule 191 and Sukkar's motion for summary judgment was taken under advisement.

On July 10, 1986, the trial court entered its written order finding, based upon the uncontradicted affidavit of the defendant, that there was no genuine issue of material fact as to the action against Sukkar. Thus, the court entered summary judgment in favor of Sukkar and against the plaintiffs. Further, the court entered its finding of no just reason to delay enforcement or appeal. 107 Ill. 2d R. 304(a).

On July 29, 1986, the plaintiffs filed a motion for reconsideration and to vacate summary judgment in favor of Sukkar. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1203.) On September 8, 1986, Sukkar filed a motion to strike plaintiffs' motion for reconsideration, arguing that the trial court had no jurisdiction to hear the motion. A hearing was held on September 29, 1986, after which the trial court denied Sukkar's motion to strike and took plaintiffs' motion for reconsideration under advisement.

On October 7, 1986, the trial court entered its "Memorandum Upon Vacating Summary Judgment for Defendant Sukkar." The court found that Gardner's affidavit was erroneously stricken and plaintiffs were granted leave to refile the affidavit. Further, the court found that a genuine issue of material fact was raised thereby. Thus, the court vacated its July 10, 1986, order granting summary judgment in favor of Sukkar and in turn denied Sukkar's motion for summary judgment. Sukkar now appeals from this order.

Sukkar contends on appeal that as a consequence of the trial court's entry of a Rule 304(a) finding, which immediately followed the entry of summary judgment in favor of Sukkar, the summary judgment was final and appealable and the trial court was divested of jurisdiction. Sukkar points out that the court on July 9, 1986, entered summary judgment in his favor and thereafter entered a finding pursuant to Supreme Court Rule 304(a) of no just reason to delay enforcement or appeal. Sukkar further points out that within the 30-day period following the entry of the Rule 304(a) finding, the plaintiffs filed a motion to reconsider or vacate the order granting summary judgment, which was ultimately allowed on October 7, 1986. Sukkar contends that as a result of the ...


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