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Zuniga v. Dwyer

June 14, 2001

MOISES ZUNIGA, PLAINTIFF-APPELLANT,
v.
THOMAS J. DWYER, AS EX'R OF THE ESTATE OF DONALD DWYER, AND INTERNAL MEDICINE AND GASTROENTEROLOGY ASSOCIATES, S.C., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 L 10592 Honorable David R. Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Justice Barth

Not Released For Publication

MOISES ZUNIGA, PLAINTIFF-APPELLANT,
v.
THOMAS J. DWYER, AS EX'R OF THE ESTATE OF DONALD DWYER, AND INTERNAL MEDICINE AND GASTROENTEROLOGY ASSOCIATES, S.C., DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County. No. 99 L 10592 Honorable David R. Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Justice Barth

Plaintiff Moises Zuniga (Moises) appeals from the circuit court's dismissal of his loss of consortium action against defendants Thomas J. Dwyer, as executor of the estate of Donald Dwyer, M.D., and Internal Medicine and Gastroenterology Associates (collectively defendants). On appeal, Moises contends the trial court erred when it granted defendants' motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code). 735 ILCS 5/2-619 (West 1998).

 BACKGROUND

Moises and his wife Anna Zuniga (Anna) filed a joint complaint, case number 96 L 2504 (Zuniga I), against defendants on March 5, 1996. Donald Dwyer (Donald) was Anna's personal physician from approximately 1978 through 1994. During the pendency of Zuniga I, Donald died and Thomas J. Dwyer, executor of Donald's estate, was substituted as defendant.

Zuniga I contained three counts: count I alleged that defendants were negligent in their care and treatment of Anna from 1978 through 1994 by misdiagnosing and treating Crohn's disease; count II alleged that defendants were negligent in providing ongoing medical care to Anna for a condition she did not have and in performing an unnecessary surgery; and count III alleged that as a result of defendants' wrongful acts, Anna's husband Moises had been and would be deprived of the society, companionship, love, affection and support of Anna.

Zuniga I proceeded to trial on June 7, 1999, at which time the trial court heard and ruled on various motions in limine. On June 8, 1999, prior to voir dire of the jury, Anna and Moises moved to voluntarily dismiss count III (the loss of consortium claim) of the complaint pursuant to section 2-1009 of the Code. 735 ILCS 5/2-1009 (West 1998). The trial court granted the motion and dismissed the loss of consortium claim without prejudice.

The case proceeded to trial on counts I and II of Zuniga I on June 8, 1999. On June 11, 1999, the jury returned a verdict in the amount of $378,000 against defendants. Anna and Moises's posttrial motion was denied on September 1, 1999. Anna signed a release and satisfaction of judgment on September 8, 1999. No appeal was filed in Zuniga I.

On September 22, 1999, Moises filed case number 99 L 10952 against defendants in which he realleged his loss of consortium claim. Defendants filed a section 2-619 motion to dismiss, arguing the complaint was in violation of the mandatory joinder rule set forth in Brown v. Metzger, 104 Ill. 2d 30 (1984). On April 5, 2000, the trial court granted defendants' motion. The trial court reasoned that dismissal was required because Moises had not provided evidence to support deviation from the mandatory joinder rule expressed in Brown. This appeal followed.

ANALYSIS

On appeal, Moises contends the trial court erred when it ruled that the loss of consortium action had to be tried with the underlying action and when it granted defendants' motion to dismiss despite section 2-1009's grant of an ...


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