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07/20/89 Raymona Gonzalez, Adm'r of v. Thorek Hospital and

July 20, 1989

RAYMONA GONZALEZ, ADM'R OF THE ESTATE OF JUANITA CARAVEO, DECEASED, PLAINTIFF-APPELLANT

v.

THOREK HOSPITAL AND MEDICAL CENTER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

542 N.E.2d 799, 186 Ill. App. 3d 648, 134 Ill. Dec. 453 1989.IL.1125

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, J., concurs. PRESIDING JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, Raymona Gonzalez, administrator of the estate of Juanita Caraveo, deceased, appeals from the order and judgment of the circuit court of Cook County dismissing her complaint based on the tolling of the statute of limitations. The sole issue for review is whether the document filed in 1984 prior to the expiration of the statute of limitations constituted a complaint sufficient to allow plaintiff to refile the action after the expiration of the statute of limitations, pursuant to section 13-217 of the Code of Civil Procedure (hereinafter the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 13-217).

We affirm.

On June 14, 1984, plaintiff filed a document purporting to be a complaint against Thorek Hospital (hereinafter Thorek or the Hospital) and various doctors. The document consisted of four typewritten pages. The first three pages identified Thorek as a hospital and the individual defendants as doctors. The doctors were noted as agents and employees of the Hospital. The document also stated that decedent had entrusted Thorek with her care on or about June 14, 1982, and that she had been in the exercise of due care. Further, the document alleged a duty on the part of the Hospital, by and through its agents, to render services commensurate with the medical needs of the patients at Thorek. The last page revealed the signature of plaintiff's attorney. Defendants were never served in this action; they received no notice until September 15, 1985, after the statute of limitations had expired. On December 14, 1984, the action was dismissed for want of prosecution.

On July 5, 1985, plaintiff refiled her action pursuant to section 13-217 of the Code. On the same day, plaintiff was appointed the administrator of decedent's estate. The complaint contained 16 counts alleging negligence, which occurred on June 14, 1982, against defendants. The Hospital, Dr. Kaplan, Dr. Chan, Dr. Odiaga, and Dr. Kaminski filed motions to dismiss pursuant to section 2-619 of the Code. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619.) They argued that the first action was a nullity because it failed to state a cause of action and a prayer for relief; therefore, it could not serve as the basis for the second action.

Plaintiff filed a memorandum of law in opposition to defendants' motions, accompanied by a copy of the alleged complaint in the first action and an affidavit. Plaintiff stated that a 16-count complaint had been drafted in the first action and that the attorney handling the action was unaware of the missing pages until defendants raised the issue in their motions to dismiss the second action.

On July 14, 1986, the court granted the motions to dismiss of Dr. Kaminski, Dr. Chan, and Dr. Odiaga. Plaintiff's motion to vacate this order was denied on March 23, 1987. On the same day, the court granted Dr. Kaplan's and Thorek's motions to dismiss. The court further ordered the plaintiff's action dismissed with prejudice. This appeal followed.

Plaintiff contends that the document which was the basis of the first action was a timely filed complaint and, thus, she is entitled to refile the action under section 13--217 of the Code.

Initially, we must determine whether the document filed in the first action constitutes a complaint or states a cause of action. Plaintiff concedes that the alleged complaint was defective in that it failed to state a cause of action; however, she argues that it contained enough allegations to be a valid complaint.

Pursuant to section 2-603(a) of the Code, "[a]ll pleadings shall contain a plain and concise statement of the pleader's cause of action." (Ill. Rev. Stat. 1985, ch. 110, par. 2-603(a).) The complaint must justify the enactment of the trial process by setting forth a legally cognizable cause of action. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 658.) It must also give notice to the defendant of the specific manner he has allegedly harmed the plaintiff so as to enable him to formulate an answer and prepare for trial. (Holton, 88 Ill. App. 3d at 658.) Accordingly, "a complaint is required to state material facts with sufficient specificity to show that the elements of the cause of action exist." (Holton, 88 Ill. App. 3d at 658.) At the very least, "it must contain sufficient factual allegations . . . to demonstrate to the court and the defendant . . . that the plaintiff is or may be harmed, the way in which the plaintiff has been harmed and that the harm results from some legal transgression or violation of a legal duty by the defendant." (B.L. Cartage Co. v. City of Chicago (1976), 35 Ill. App. 3d 1055, 1060.) While pleadings are to be liberally construed, a ...


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