Appeal from the Circuit Court of Cook County. Honorable Howard M. Miller, Judge Presiding.
The opinion of the court was delivered by: Giannis
JUSTICE GIANNIS delivered the opinion of the court:
Plaintiff appeals from an order of the circuit court which vacated a default judgment entered against defendants. On appeal, plaintiff contends that (1) the trial court erred in granting the defendants' motion to vacate without holding a hearing or permitting plaintiff to respond to the motion, and (2) defendants failed to provide plaintiff proper notice of their motion to vacate the default judgment.
The record reveals that plaintiff, La Rabida Children's Hospital and Research Center, sought recovery for medical care and goods provided to defendants' son, Wayne Harrison, who suffered brain damage at birth as a result of alleged medical malpractice by thirdparties, not involved in the instant cause. Consequently, defendants' son required intensive medical care which was provided by plaintiff from August 6, 1986, to August 9, 1988. In 1988, a settlement was reached with the third parties alleged to have been responsible for the brain damage suffered by defendants' son. Upon the settlement of this claim, a minor's estate was opened on behalf of defendants' son. The defendants were appointed guardians of the estate along with the Northern Trust Company. In addition, Jack DeBow was appointed as guardian ad litem. The minor's estate was assigned to Judge Novoselsky within the probate division of the circuit court of Cook County.
Plaintiff initially filed a claim against the minor's estate, seeking payment for the cost of the medical care provided to him. In an attempt to resolve the claim, plaintiff and the guardians of the minor's estate engaged in settlement negotiations before the probate division Judge.
On October 5, 1990, during the course of the settlement negotiations, plaintiff filed an action against defendants seeking payment for the medical bills incurred on behalf of defendants' son. According to defendants, this action was filed without notice to the defendants' attorneys, the guardian ad litem, the Northern Trust Company, or to the probate division Judge. Defendants assert that upon discovery of these facts, the probate division Judge struck plaintiff's claim against the minor's estate. Yet, defendants have not provided a copy of Judge Novoselky's order striking the claim against the minor's estate, and the record is unclear as to whether this claim was actually stricken or was ever reinstated. It appears, however, that the parties continued to negotiate a settlement of the plaintiff's claim against the minor's estate.
The action against defendants, which was brought in the law division of the circuit court of Cook County, was predicated upon breach of oral agreement, breach of written agreement, liability for family expenses, and liability for an account stated. In their answer, defendants denied the material allegations in plaintiff's complaint.
On March 15, 1991, plaintiff served interrogatories and a request to produce documents upon defendants. Defendants failed to comply with these discovery requests within the 28 days prescribed in Supreme Court Rules 213 and 214 (134 Ill. 2d R. 213, 214). On May 24, 1991, plaintiff filed a motion to compel compliance with the pending discovery requests. The notice which accompanied the motion to compel reflected that the motion would be called for hearing on June 12, 1991, before Judge Burke in the law division of the circuit court. On June 12, 1991, plaintiff presented its motion, and the courtentered an order granting the motion, ordering the defendants to comply with plaintiff's discovery requests on or before July 11, 1991, and setting a hearing date for July 19, 1991.
As of July 19, 1991, defendants had not complied with the outstanding discovery requests, and the trial court again ordered them to comply. In its order, the court required that defendants satisfy plaintiff's discovery requests by September 3, 1991, and set a second hearing date for September 6, 1991.
Although plaintiff's claim against the minor's estate had been stricken, one of defendants' attorneys met with the probate division Judge on August 27, 1991, in order to schedule a pretrial hearing without counsel present. The pretrial was scheduled for September 13, 1991, and this date was confirmed by the probate division Judge on August 30, 1991, in a letter to Richard Zeiler, the Director of Finance for plaintiff, and to Nancy Lyon, of the Northern Trust Company. According to defendants, a representative of plaintiff met with defense counsel, Nancy Lyon of Northern Trust Company, and with the probate division Judge and agreed that no action would be taken in the law division case pending negotiations in the suit against the minor's estate in the probate division. There is, however, no clear indication in the record as to the exact date of this alleged meeting and agreement.
At the September 13, 1991, pretrial, Nancy Lyon and Richard Zeiler appeared without counsel. Lyon provided Zeiler with updated financial information on the minor's estate and made a settlement offer on behalf of the estate. On September 19, 1991, Lyon sent Zeiler the current accounts of the estate as he had requested. Thereafter, Lyon awaited Zeiler's response to her settlement offer on behalf of the estate.
Defendants failed to meet the second discovery compliance date set by the law division Judge, and, due to a docketing error, counsel for defendants failed to appear at the hearing scheduled for September 6, 1991. At this hearing, the court ordered defendants to comply by October 4, 1991, and set a third hearing date for October 18, 1991, "without further notice." The order provided further that defendants' failure to comply "shall be grounds for the entry of a default against defendants, or other appropriate sanctions, upon proper motion of plaintiff." Defendants assert that a copy of this order was never served upon them.
As of October 18, 1991, defendants had not satisfied the plaintiff's outstanding discovery requests. On that date, Judge Casciato struck the defendants' answer, declared them in default, and transferred the cause for assignment to prove up damages. Although the court'sorder provided that due notice had been served, defendants contend that no notice of motion or copy of this order was ever served upon them or their attorneys. The hearing scheduled for October 18, 1991, was not listed on the courts' calendar and did not appear in the Chicago Daily Law Bulletin. In addition, defendants assert ...