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01/21/94 MADELINE WILSON AND DENNIS WILSON v.

January 21, 1994

MADELINE WILSON AND DENNIS WILSON, PLAINTIFFS-APPELLANTS,
v.
EVANSTON HOSPITAL, DEBRA ELMER, R.N., AND MARY HIRSCH, R.N., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MICHAEL C. ZISSMAN, JUDGE PRESIDING.

Released for Publication March 18, 1994.

Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

This is an appeal from an order of the circuit court denying plaintiff'B motion to vacate the order dismissing their medical malpractice suit for want of prosecution. For reasons we will discuss, we dismiss the appeal for lack of jurisdiction.

The facts are undisputed. On April 26, 1989, plaintiffs, Madeline and Dennis Wilson (the Wilsons), filed a cause of action against Evanston Hospital (Evanston) and its nurses, Mary Hirsch (Hirsch) and Debra Elmer (Elmer). The complaint alleged that, in January 1988, as a result of the negligent care Madeline Wilson received, she suffered a respiratory arrest and seizures. Dennis Wilson alleged loss of consortium. Only Evanston Hospital and Nurse Elmer were served and they filed their appearances with the court in August 1989.

On October 23, 1989, the case was dismissed for want of prosecution (DWP'd) when plaintiffs' attorney failed to appear for a progress call. On November 1, 1989, plaintiffs' counsel filed a motion to vacate the DWP on behalf of the Wilsons and on November 21, 1989, an identical motion was filed on behalf of Madeline Wilson, alone. However, no notice of either motion was served on any of the defendants or their counsel and neither motion was set for hearing.

Although the DWP order was not vacated, the following events took place in conjunction with this matter: (1) on November 1, 1989, plaintiffs' counsel filed a special interrogatory requesting the address of the yet-unserved defendant Hirsch, (2) on February 21, 1990, Evanston and Elmer sent a letter to plaintiffs' counsel requesting answers to their previously filed interrogatories, (3) on February 26, 1990, Evanston answered plaintiffs' interrogatory regarding Hirsch's whereabouts, (4) on March 28, 1990, plaintiffs' counsel served Hirsh by alias summons, (5) on April 12, 1990, plaintiffs' answered defendants' interrogatories and on April 17, 1990, they responded to a notice to produce, (6) on May 18, 1990, Hirsch filed an appearance, answer and affirmative defense (without leave of court), (7) in May 1990 plaintiffs' counsel filed interrogatories, notice of deposition and notice to produce with regard to Hirsch, (8) on June 1, 1990, plaintiffs answered Hirsch's affirmative defense, and (9) in February 1991 plaintiffs filed additional interrogatories and production requests.

Finally, on March 14, 1991, plaintiff Madeline Wilson served notice on defendants that a hearing on her motion to vacate the DWP would be heard on March 25, 1991. Defendants immediately objected and filed memoranda of law with the trial court.

Initially, defendants argued that, because notice was only given in the name of plaintiff, Madeline Wilson, the motion to vacate the DWP only applied to that one plaintiff and Dennis Wilson was no longer in the case. In addition, defendants argued that because plaintiff had failed to comply with Circuit Court Rule 2.3, which requires that hearing on any motion be brought within 90 days of filing, the motion should be denied. Defendants contended that they would be severely prejudiced by the reinstatement of the case due to plaintiff's delay in pursuing the matter.

In response, plaintiffs denied that the motion to vacate the DWP applied only to Madeline Wilson. They also argued that, because their motion to vacate had been filed timely, it didn't matter when hearing on the motion was held. Alternatively, plaintiffs argued that, because all of the parties had proceeded as if the dismissal had not been entered, they revested the trial court with jurisdiction over the entire matter by their conduct in continuing to litigate the matter.

On July 12, 1991, after argument on the motion was heard, the trial court determined that the motion that was before the court had been brought by Madeline Wilson, alone, and that Dennis Wilson was no longer a party to the action. The trial court also held that Madeline Wilson's motion to vacate the DWP should be denied on the basis of Circuit Court Rule 2.3, which provides:

"The burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying ...


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