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09/25/95 ESTATE BEN ALBERGO v. DEWAYNE HULL

September 25, 1995

IN RE THE ESTATE OF BEN ALBERGO, DECEASED (ST. THERESE MEDICAL CENTER, PLAINTIFF-APPELLANT,
v.
DEWAYNE HULL, D/B/A INFORMED PATIENTS; INFORMED PATIENTS; AND INFORMED PATIENTS, INC., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County. No. 92-P-246. Honorable Jane D. Waller, Judge, Presiding.

The Honorable Justice Doyle delivered the opinion of the court: Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, St. Therese Medical Center (Hospital), appeals from a trial court order which granted the motion for summary judgment of defendants, Dr. DeWayne Hull (Dr. Hull), d/b/a Informed Patients; Informed Patients; and Informed Patients, Inc. Plaintiff contends that the trial court erred in granting defendants' motion for summary judgment because there were issues of material fact with respect to each count of its complaint. Plaintiff also contends that the trial court erred in dismissing count III of its complaint because defendants did not oppose count III in their motion for summary judgment and did not raise it in oral arguments.

Informed Patients, Inc., is an Indiana corporation which was incorporated December 28, 1992. Prior to December 28, 1992, a partnership existed and engaged in business under the name Informed Patients. For purposes of this appeal, we will refer to both Informed Patients and Informed Patients, Inc., as Informed Patients. Dr. Hull is an employee of Informed Patients. His title is Director of Review and Analysis.

This case concerns an unpaid balance on a hospital bill. The patient's estate and insurer refused to pay the balance of the bill based, allegedly, upon their consideration of a report from Informed Patients that its evaluation disclosed that the charges were excessive. The hospital now seeks to hold Dr. Hull and Informed Patients liable for providing information which allegedly induced the patient's estate and insurer to refuse payment of the disputed charges.

Ben Albergo (Albergo) was a patient at the Hospital during January and February 1992. Albergo died on February 14, 1992. Plaintiff subsequently issued a bill for Albergo's hospitalization in the amount of $60,594.68. Albergo's medical insurer, the Midwest Operating Engineers Fringe Benefit Fund (Fund), paid $42,589.83 of the bill leaving an unpaid balance of $18,004.85.

Plaintiff initially filed a claim for the unpaid balance against Albergo's estate. The estate responded by denying that it owed the unpaid balance because the charges claimed by plaintiff were "duplicative, inappropriate and/or excessive."

Attached to the estate's response to plaintiff's claim, were two letters from the Fund. Both letters were dated March 12, 1992. One of the letters, signed by the Fund's administrative manager, Larry W. Bushmaker, was addressed to plaintiff and advised plaintiff that the Fund had retained the services of Informed Patients to review plaintiff's charges for Albergo's hospitalization. The letter stated that the review included, but was not limited to, checking for: duplicate billing, inappropriate billing, and excessive billing. The letter further stated that the review of the charges resulted in a determination that the enclosed payment of $42,589.83 was submitted in full payment of the charges and that Albergo therefore did not owe anything else to plaintiff. The letter advised plaintiff to direct inquiries concerning the details of the review to Informed Patients.

The second letter, signed by a case manager, was addressed to Albergo. The letter stated that the Fund had found excessive charges on many inpatient hospital stays and had therefore retained Informed Patients to assist the Fund in determining the "reasonableness" of plaintiff's charges for Albergo's hospitalization. The letter stated that Informed Patients had advised the Fund that plaintiff's charges "appeared to exceed the reasonable cost" by an amount of $18,004.85 and that the Fund had therefore made a payment to plaintiff of $42,589.83. The letter stated that Albergo owed plaintiff nothing else and that Albergo should not pay plaintiff anything else.

On May 24, 1993, the court in which Albergo's estate was being probated granted plaintiff leave to file an action against additional defendants. On the same date, plaintiff filed a two-count complaint against defendants. Count I of the complaint alleged tortious interference with a contract. Count II alleged deceptive business practices.

Defendants filed a motion for summary judgment as to counts I and II of plaintiff's complaint. On September 29, 1994, the trial court entered an order granting defendants' motion for summary judgment and dismissing "both causes of action." The order stated that "this case is dismissed, this being a final order," and contained language referring to the order as "final and appealable." Plaintiff filed a timely notice of appeal from the order.

JURISDICTION

Before addressing the merits of this case, we must first resolve a motion taken with the case and a related issue. On November 18, 1994, defendants filed a motion with this court to dismiss the appeal for lack of jurisdiction. The motion was ordered taken with the case.

Defendants contend in their motion that Supreme Court Rule 304(a) (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(a), eff. February 1, 1994) is the applicable rule as to jurisdiction in this case because the trial court's grant of summary judgment did not dispose of the entire proceeding pending before the trial court. Defendants argue that this court does not have jurisdiction under Rule 304(a) because the trial court did not make the express written finding necessary for jurisdiction under Rule 304(a).

Plaintiff responds that this court has jurisdiction under several supreme court rules. First, plaintiff maintains there is jurisdiction under Supreme Court Rule 303 (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 303, eff. February 1, 1994) because the order appealed from was a final order which disposed of the entire proceeding between plaintiff and defendants. Alternatively, plaintiff contends that we have jurisdiction under Rule 304(a) because the trial court's language that the order was "final and appealable" was sufficient for jurisdiction under that rule, or that we have jurisdiction under Supreme Court Rule 304(b)(1) (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(b)(1), eff. February 1, 1994).

Before resolving the jurisdictional question, we must address a related issue. The related issue is whether the September 29, 1994, order, the order from which plaintiff appeals, was a final order. In order to resolve this issue, we must determine whether plaintiff filed an amended complaint containing three counts.

Plaintiff asserts that its first amended complaint contained three counts with count III sounding in business and trade libel. Plaintiff argues that the trial court erred in granting summary judgment in favor of defendants as to count III because defendants did not raise count III in their motion for summary judgment or in oral arguments. In other words, plaintiff contends that the trial court did not dispose of count III. If undisposed of, count III could affect our jurisdiction because the trial court's order would not have disposed of all the issues as to plaintiff and defendants, and therefore the order would not be a final order upon which the cause was properly dismissed. See Alliance Syndicate, Inc. v. Brad Foote Gear Works, Inc. (1993), 244 Ill. App. 3d 737, 741, 185 Ill. Dec. 211, 614 N.E.2d 345 (appellate court did not have jurisdiction where purported final order did-not dispose of all issues notwithstanding appealability language).

Defendants respond that plaintiff's assertions regarding count III are not grounded in fact. Defendants maintain that the only complaint plaintiff filed in the trial court was its original complaint containing the two counts for tortious interference with contract and for deceptive business practices.

Along with its response to defendants' motion in this court to dismiss the appeal, plaintiff attached a supporting record pursuant to Supreme Court Rule 328 (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 328, eff. February 1, 1994). The supporting record contained a document entitled "First Amended Complaint at Law" (amended complaint). The amended complaint contained three counts, with count III sounding in business libel.

Plaintiff also filed a motion with this court on January 25, 1995, to supplement the record on appeal pursuant to Supreme Court Rule 329 (134 Ill. 2d R. 329). The motion stated that, in reviewing the appeal record prepared by the clerk of the circuit court, plaintiff's counsel discovered that there were omissions in the record. The motion stated that there were two ...


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