Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

03/31/95 KATHIE E. CLARK v. JAE EUN HAN RICHARD F.

March 31, 1995

KATHIE E. CLARK, INDIVIDUALLY AND AS GUARDIAN OF SCOTT CLARK, AND WALTER CLARK, PLAINTIFFS-APPELLANTS,
v.
JAE EUN HAN; RICHARD F. WHITLOCK; ESTATE OF ROBERT G. STONE, M.D., DECEASED; ESTATE OF LAWRENCE J. SCHMIT, M.D., DECEASED; HAN, WHITLOCK, STONE AND SCHMIT, A PARTNERSHIP; W.S.K., S.C., A CORPORATION; ESTATE OF ROBERT B. HUBER, M.D., DECEASED; AND SHERMAN HOSPITAL ASSOCIATION, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Kenneth Gillis, Judge Presiding.

As Corrected April 21, 1995. Rehearing Denied June 15, 1995. Released for Publication July 10, 1995.

Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Kathie E. Clark, individually and as guardian of Scott Clark, and Walter Clark (plaintiffs) appeal the dismissal with prejudice of their complaint alleging medical malpractice for conduct surrounding the birth of Scott Clark who was 16 years old at the time the complaint was filed.

First defendants question whether this court has jurisdiction by reason of plaintiffs' alleged untimely filing of their notice of appeal.

Next plaintiffs question whether a medical malpractice action brought on behalf of a plaintiff who is both a minor and mentally disabled is governed by the limitations period applicable only to minors (735 ILCS 5/13-212(b) (West 1992)) or by the tolling provision applicable to the legally disabled (735 ILCS 5/13-212(c) (West 1992)), and whether the statutory limitations period for minors is constitutional as applied.

Lastly, defendants suggest that plaintiffs waived their claims under the Family Expense Act by failing to raise such claims on appeal.

As to each issue respectively we find that this court has jurisdiction because plaintiffs' notice of appeal was timely filed, that the tolling provision for legally disabled persons applies (i.e., subsection (c)), that the constitutional challenges cannot be reached since we have decided this case on other grounds, and that plaintiffs waived their claims under the Family Expense Act. Accordingly, we reverse the dismissal of plaintiffs' complaint and remand the case to the circuit court.

The facts are not in dispute. On July 15, 1977, the minor plaintiff Scott Clark was born. On December 10, 1992, when Scott was 16 years old, plaintiffs filed the instant lawsuit alleging negligence against multiple defendants for medical care rendered in connection with Scott's birth. The complaint alleged that Scott has been severely mentally retarded since birth and sought recovery on behalf of Scott and on behalf of his parents under the Family Expense Act (750 ILCS 65/15 (West 1993)).

Defendants filed motions to dismiss under section 2-6l9(a)(5) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1992)) based on the eight-year limitations period applicable to a minor under subsection (b) of the statute governing medical malpractice actions (735 ILCS 5/13-212(b) (West 1992)).

In response, plaintiffs asserted that subsection (c) of the same statute applied and tolled the statute of limitations. 735 ILCS 5/13-212(c) (West 1992).

On September 10, 1993, the circuit court granted defendants' motions and thus dismissed plaintiffs' complaint with prejudice by a final and appealable order. Thereafter, on November 9, 1993, the circuit court denied plaintiffs' motion to reconsider. On November 30, 1993, plaintiffs filed a notice of appeal as to the September 10 order dismissing their complaint with prejudice and the November 9 order denying their motion for reconsideration of the earlier order.

On appeal, defendants raise the threshold question of this court's jurisdiction based on plaintiffs' alleged failure to timely file their appeal from the September 10 order dismissing their complaint. Defendants observe that plaintiffs timely filed their post-judgment motion to reconsider on October 8 but at the motion call on October 20, the trial court indicated that the motion had been withdrawn by plaintiffs. Thus, according to defendants, the motion was no longer pending before the circuit court and the 30-day period for filing a notice of appeal reverted to September 10, i.e., the date the circuit court entered its dismissal order. Since plaintiffs did not file their notice of appeal until November 30, defendants contend that such filing was tardy. We disagree.

Supreme Court Rule 303 provides that the 30-day filing period for a notice of appeal is triggered when the trial court enters an "order disposing of the last pending post-trial motion." 134 Ill. 2d R. 303(a)(1).

The Illinois Supreme Court commands strict compliance with its rules governing appeals and neither a circuit nor an appellate court has the authority to excuse compliance with the filing requirements mandated by such rules. ( Mitchell v. Fiat-Allis, Inc. (1994), 158 Ill. 2d 143, 150, 632 N.E.2d 1010, 198 Ill. Dec. 399.) The timely filing of an appeal is not only mandatory but also jurisdictional. ( Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539, 470 N.E.2d 290, 83 Ill. Dec. 332; Citicorp Savings of Illinois v. First Chicago Trust Company of Illinois (1st Dist. January 20, 1995), No. 1-93-1960.)

A valid motion to reconsider judgment tolls the time for filing a notice of appeal. Archer Daniels Midland, 103 Ill. 2d at 538; Mendelson v. Ben A. Borenstein & Co. (1992), 240 Ill. App. 3d 605, 615-16, 608 N.E.2d 187, 181 Ill. Dec. 114; Elmhurst Auto Parts, Inc. v. Fencl-Tufo Chevrolet, Inc. (1992), 235 Ill. App. 3d 88, 90, 600 N.E.2d 1229, 175 Ill. Dec. 771.

The record in the present case reveals that on October 8 plaintiffs timely filed a motion to reconsider. In this motion plaintiffs noticed it for October 20 and also requested leave to file a memorandum of law in support of their motion within 14 days, or on or before October 24. The following transcript for the October 20 proceedings states in full as follows:

"THE COURT: 10 o'clock call. Number 25 on the 10 o'clock call has been withdrawn. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.