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12/21/89 Dennis R. Mizell, v. Thomas C. Passo

December 21, 1989

DENNIS R. MIZELL, PLAINTIFF-APPELLEE

v.

THOMAS C. PASSO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

548 N.E.2d 783, 192 Ill. App. 3d 435, 139 Ill. Dec. 398 1989.IL.2011

Appeal from the Circuit Court of Vermilion County; the Hon. Rita B. Garman, Judge, presiding.

APPELLATE Judges:

JUSTICE STEIGMANN delivered the opinion of the court. SPITZ, J., concurs. JUSTICE McCULLOUGH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN

Dennis R. Mizell, the plaintiff, brought this medical malpractice action against Thomas C. Passo, M.D., the defendant. At a hearing on several pretrial motions filed by both plaintiff and defendant, the circuit court granted plaintiff's motion for voluntary dismissal without first hearing defendant's previously filed motion for judgment. On appeal, defendant argues that (1) the circuit court committed reversible error in granting plaintiff's motion for voluntary dismissal over defendant's previously filed motion for judgment, (2) plaintiff violated Rule IV of the Uniform Rules of Practice Governing Civil Cases of the Fifth Judicial Circuit of Illinois (Rules of Practice of the Circuit Court, Fifth Judicial Circuit, Rule IV, at 7-9 (1977)) by failing to give notice of the filing and presentation of his motion for voluntary dismissal, and (3) the circuit court committed reversible error in granting plaintiff's motion for voluntary dismissal without requiring the payment of costs.

We vacate the granting of plaintiff's motion for voluntary dismissal and remand for further proceedings consistent with this opinion.

On May 27, 1988, plaintiff filed a healing art malpractice claim against defendant. Attached to the complaint was an affidavit of plaintiff's attorney stating that plaintiff had been unable to obtain the written report of a reviewing health professional as required by paragraph one of section 2-622 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-622).

Forty-five days later, plaintiff filed a motion to waive the section 2 -- 622 requirement. In his motion, plaintiff requested that the court relieve him from complying with section 2 -- 622 or, in the alternative, allow him to procure the required affidavit within 90 days of the date of denial of the motion. At the same time, plaintiff sent a notice of hearing for August 19, 1988, and a notice of deposition of defendant to take place on August 24, 1988.

On August 15, 1988, defendant filed a motion for protective order, requesting that the court stay discovery until plaintiff complied with section 2 -- 622. Defendant also sent a notice of hearing for August 19, 1988. On August 18, 1988, defendant filed a response to plaintiff's motion to waive section 2 -- 622, maintaining that the affidavit and report requirements of section 2 -- 622 are mandatory and cannot be waived.

On August 19, 1988, the parties appeared at the hearing as scheduled. The docket entry made at that time indicates that the court denied plaintiff's motion to waive section 2 -- 622, but allowed an additional 90 days to procure the report. The court also entered an order staying discovery until plaintiff filed the report.

Ninety days later, on November 18, 1988, plaintiff filed a motion for a continuance to obtain a written report to attach to the affidavit demonstrating that plaintiff's attorney had consulted with a reviewing health professional about plaintiff's case. Plaintiff, however, did not request a hearing on the motion at that time.

On February 15, 1989, defendant filed a motion for judgment and sent a notice of hearing on that motion, showing that a hearing was scheduled on February 22, 1989. In that motion, defendant prayed for relief based on plaintiff's failure to comply with section 2 -- 622. A revised notice of hearing on the motion was sent by defendant, rescheduling the hearing on defendant's motion for March 14, 1989.

On March 10, 1989, plaintiff sent a notice of hearing March 14, 1989, on plaintiff's motion for a continuance to obtain a written report to attach to the affidavit.

On March 14, 1989, plaintiff's attorney filed a second affidavit in which he stated that he had spoken with a reviewing health professional who was willing and able to provide a written report. Also on March 14, plaintiff filed a written motion for voluntary dismissal pursuant to section 2-1009 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1009).

At the March 14, 1989, hearing, the court initially stated that the hearing concerned defendant's motion for judgment. Plaintiff then called to the court's attention the notice for hearing on the motion for a continuance to obtain a written report to attach to the affidavit, and asked that this motion be heard first. Defendant objected to hearing plaintiff's motion, citing Rule IV of the Uniform Rules of Practice Governing Civil Cases of the Fifth Judicial Circuit of Illinois (Rules of Practice of the Circuit Court, Fifth Judicial Circuit, Rule IV, at 7-9 (1977)) (Rule IV). Defendant argued that plaintiff violated Rule IV by failing to give defendant sufficient notice of the hearing and by failing to call the motion for a hearing within 90 days of its being filed. Plaintiff responded to ...


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