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08/17/94 LAWRENCE MAJEWSKI v. VICTORIA VON BERGAN

August 17, 1994

LAWRENCE MAJEWSKI, PLAINTIFF-APPELLANT,
v.
VICTORIA VON BERGAN, D.C., INDIV. AND D/B/A CAPRI CHIROPRACTIC CARE AND CAPRI CHIROPRACTIC CARE, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 92-L-1429. Honorable Jack Hoogasian, Judge, Presiding.

Released for Publication September 19, 1994. Petition for Leave to Appeal Denied December 6, 1994.

PECCARELLI, Inglis, McLAREN

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff, Lawrence Majewski, appeals from the order of the circuit court of Lake County dismissing with prejudice his medical malpractice complaint for failure to file the certificate required under section 2-622(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 1992)). We affirm.

On June 28, 1990, plaintiff filed a medical malpractice complaint in the circuit court of Cook County against defendants, Victoria Von Bergan, D.C., individually and doing business as Capri Chiropractic Care and Capri Chiropractic Care, Ltd., alleging that defendants had provided him with negligent Chiropractic care. Plaintiff attached to the complaint his counsel's affidavit pursuant to section 2-622(a)(2) of the Code (735 ILCS 5/2-622(a)(2) (West 1992)), attesting that, because of the statute of limitations, he was unable to obtain a consultation with a physician as required by section 2-622(a)(1) of the Code but that such a certificate would be filed within 90 days.

On September 28, 1990, plaintiff filed a motion to extend the time in which to file the certificate of consultation. The trial court gave plaintiff an additional 90 days in which to file the certificate.

On October 30, 1990, defendants filed a motion to transfer venue to the circuit court of Lake County, pursuant to sections 2-101 and 2-106 (735 ILCS 5/2-101, 2-106 (West 1992)) of the Code. On January 7, 1991, the circuit court of Cook County ordered that the cause be transferred to the circuit court of Lake County "for all further action."

On October 13, 1992, defendants filed in Cook County a motion to dismiss pursuant to section 2-107 (735 ILCS 5/2-107 (West 1992)) of the Code for plaintiff's failure to pay the transfer fees and effectuate the transfer of the files to the Lake County circuit court. Also on October 13, 1992, plaintiff filed in the circuit court of Cook County a motion to dismiss voluntarily the case pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 1992)). On October 15, 1992, defendants filed a response moving to strike plaintiff's motion to dismiss voluntarily because the circuit court of Cook County no longer had jurisdiction over the case except under section 2-107 of the Code.

On October 15, 1992, the clerk of the circuit court of Cook County certified and transmitted the record to the circuit court of Lake County. On October 20, 1992, the circuit court of Lake County received, filed, and docketed the case.

On November 19, 1992, the circuit court of Cook County denied defendants' motion to dismiss under section 2-107 of the Code and granted plaintiff's motion to dismiss voluntarily. On November 17, 1992, plaintiff filed in the circuit court of Lake County a motion to dismiss voluntarily the case. The record does not indicate whether the circuit court of Lake County ever ruled on plaintiff's motion to dismiss voluntarily. The motion was set for hearing on December 15, 1992, but the record does not indicate any proceedings on that date.

On February 5, 1993, defendants filed in the circuit court of Lake County a motion to dismiss plaintiff's complaint for failure to file the certificate required under section 2-622(a)(1) of the Code. On February 10, 1993, the circuit court of Lake County dismissed with prejudice plaintiff's complaint for failure to file the certificate. On March 12, 1993, plaintiff filed a motion for reconsideration of that order. On April 7, 1993, the circuit court denied the motion to reconsider. Plaintiff filed a timely notice of appeal.

On appeal, plaintiff argues that the circuit court of Lake County erred in dismissing involuntarily the complaint because the case had already been dismissed voluntarily by the circuit court of Cook County. Plaintiff's primary contention is that the defendants should have appealed the order of the circuit court of Cook County voluntarily dismissing his complaint. According to plaintiff, that order ended the litigation, and there was no longer a justiciable matter before any court. We disagree. We find that, when the circuit court of Cook County granted defendants' motion for transfer of venue to Lake County on January 7, 1991, the case was no longer pending before the circuit court of Cook County. The case was transferred on October 15, 1992, and docketed on October 20, 1992, and was pending before the circuit court of Lake County.

One circuit court cannot dismiss an action pending in anothercircuit court. (See People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 292, 215 N.E.2d 806; Zimmerman Equipment Co. v. F.R. Orr Grain Co. (1975), 29 Ill. App. 3d 921, 922, 330 N.E.2d 881.) Therefore, once the suit was pending in the circuit court of Lake County, the circuit court of Cook County should have declined jurisdiction to entertain any further ...


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