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Valdovinos v. Luna-Manalac Medical Center

September 02, 1999

MARTA VALDOVINOS, AS PARENT, GUARDIAN, AND NEXT FRIEND OF DANIEL VALDOVINOS, A DISABLED MINOR; AND, THE CHICAGO TRUST COMPANY, AN ILLINOIS CORPORATION, AS GUARDIAN OF THE ESTATE OF DANIEL VALDOVINOS, A DISABLED MINOR; PLAINTIFFS-APPELLEES/CROSS-APPELLANTS,
v.
LUNA-MANALAC MEDICAL CENTER, LTD., D/B/A ANTILLAS FAMILY HEALTH CENTER, AN ILLINOIS CORPORATION; JULIETTA LUNA JOSON, M.D., INDIVIDUALLY AND AS AN AGENT AND EMPLOYEE OF LUNA-MANALAC MEDICAL CENTER, LTD., D/B/A ANTILLAS FAMILY HEALTH CENTER; AND PARKE, DAVIS & COMPANY, A MICHIGAN CORPORATION, DEFENDANTS-APPELLANTS/CROSS-APPELLEES.



The opinion of the court was delivered by: Justice Hoffman

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE JOHN V. VIRGILIO, SUSAN ZWICK, and DENISE M. O'MALLEY, JUDGES PRESIDING.

This action commenced on June 6, 1991, and was dismissed voluntarily pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 1996)) on September 26, 1997. The trial court's order dismissing the cause on that date and the proceedings which followed prompted the parties to file some seven notices of appeal and cross-appeal. However, for the reasons which will follow, we lack jurisdiction to consider these consolidated appeals.

The following is a recitation of so much of the procedural history of this case as is necessary to an understanding of our Disposition of the matter.

This action was originally filed as a medical negligence action on behalf of Daniel Valdovinos, a disabled minor, by Marta Valdovinos, his parent and next friend. It proceeded on with Marta Valdovinos acting as the sole plaintiff in her representative capacity until the filing of a seventh amended complaint. On July 2, 1997, the trial court entered an order permitting the filing of a seventh amended complaint. That complaint, when filed, listed not only Marta Valdovinos as a plaintiff in her representative capacity, but also The Chicago Trust Company, as guardian of the estate of Daniel Valdovinos, a disabled minor. When used hereinafter, the term "plaintiffs" refers to both Marta Valdovinos and The Chicago Trust Company in their respective representative capacities. The seventh amended complaint consisted of medical negligence claims against Julietta Luna Joson, M.D. (Joson) and Luna-Manalac Medical Center, Ltd. (Luna), and a product liability claim against Parke, Davis & Company (Parke Davis).

Although the case was assigned to a trial Judge on August 18, 1997, it was still subject to extensive motion practice, including a motion to strike and dismiss, a motion for judgment on the pleadings, multiple motions in limine, a motion to bar certain evidence, and four motions for a substitution of Judge.

On September 25, 1997, an oral motion to voluntarily dismiss the action was made by plaintiffs' attorney during the course of a hearing on various motions in limine. The defendants objected and were granted an opportunity to respond. Although the motion is not contained in the record, it appears that later that same day Parke Davis filed a motion for summary judgment without leave of court (see Cook Co. Cir. Ct. R. 2.1(f)(eff. April 23, 1992)), apparently in an effort to secure a "with prejudice" dismissal of the action before the plaintiffs were permitted to voluntarily dismiss the case "without prejudice." See Gibellina v. Handley, 127 Ill. 2d 122, 535 N.E.2d 858 (1989). Also on September 25, 1997, after the proceedings before the trial court had concluded, the plaintiffs filed a pleading styled "Plaintiffs' Revised Motion for a Voluntary Dismissal Without Prejudice[.]"

On September 26, 1997, Joson and Luna filed their motion to join in Park Davis's motion for summary judgment. When the matter was heard on September 26, the court granted the revised motion for a voluntary dismissal pursuant to section 2-1009 of the Code, declining to first rule on Parke Davis's motion for summary judgment. The order granting the voluntary dismissal also provided that "the plaintiff is ordered to pay all costs associated with this case including the costs incurred by the defendants in the taking of depositions and those other costs as provided for in Galowich v. Beech Aircraft Corp., 93 Ill. App. 3d 690, reversed on other grounds 92 Ill. 2d 157 (1981)." The order did not determine the amount of costs to be paid or specify which of the plaintiffs was to make the payment; the preamble of the order, though, states that the matter was "HEARD on the motion of the plaintiff, MARTA VALDOVINOS[.]"

On October 21, 1997, apparently in response to motions filed by the defendants to compel the payment of their costs, the court entered and continued the case to November 10, 1997, requiring the parties to provide briefs "regarding Illinois Supreme Court Rule 219(e)," and entered and continued to the same date the court's "own motion to vacate the order granting plaintiff's [sic] motion to voluntarily dismiss the case." That same order provides that "[t]he court declines to rule on any motion for attorneys fees other than those fees incurred on or subsequent to September 26, 1997, in regards to costs for voluntary dismissal[.]" This particular paragraph of the order was amended on October 22, 1997, to read:

"The Court declines to rule on any motions for attorneys' fees for those fees incurred before the case was assigned to this court. Fees incurred after assignment will be taken into consideration only in regards to costs for voluntary dismissal."

On October 24, 1997, Parke Davis filed a notice of appeal (our docket No. 1-97-3969) from the trial court's order of September 26, 1997, granting the plaintiffs' revised motion for a voluntary dismissal. On October 27, 1997, Joson and Luna filed their notice of appeal (our docket No. 1-97-3961) from the trial court's orders of: January 22, 1997, denying their motion for summary judgment; September 11, 1997, denying their renewed motion for summary judgment, partially denying their motion to strike certain of the plaintiffs' supplemental answers to interrogatories, denying certain of their motions in limine, and granting certain of the plaintiffs' motions in limine; and September 26, 1997, granting the plaintiffs' revised motion for a voluntary dismissal.

On October 27, 1997, Parke Davis filed a brief in support of its petition for costs as required by the trial court's order of October 21. This brief, however, went much further than merely addressing Parke Davis's entitlement to costs under Supreme Court Rule 219(e) (166 Ill. 2d R. 219(e)). It additionally requested that the trial court reconsider its order of September 26, 1997, granting the plaintiffs' motion for a voluntary dismissal.

Also on October 27, 1997, the plaintiffs filed: 1) a motion to vacate the order of September 26, 1997; and 2) a motion seeking an assessment of fees and costs pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137). The record is void of any indication that the plaintiffs' Rule 137 motion was ever ruled upon by the trial court. In point of fact, there is no indication that the motion was ever noticed for hearing.

On November 3, 1997, Parke Davis filed a motion seeking, inter alia, the imposition of sanctions under Rule 137 on the basis that it had been required to respond to the plaintiffs' motion for sanctions.

On November 6, 1997, a notice of cross-appeal, bearing a caption which lists only Marta Valdovinos in her representative capacity as a party plaintiff, was filed on behalf of the "Plaintiff-Appellee/Cross-Appellant." This notice of cross-appeal seeks review of the trial court's orders of: August 21, 1997, quashing certain deposition subpoenas; September 11, 1997, denying certain of her motions in limine, granting certain of the defendants' motions in limine, removing all references to Parke Davis's parent, Warner-Lambert, from the caption of the cause, striking certain paragraphs from the plaintiffs' complaint, striking all references in count III of the plaintiffs' complaint to epinephrine products other than those produced by Parke Davis, and striking certain of the plaintiff's supplemental answers to interrogatories and barring her from attempting to elicit testimony based thereon; September ...


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