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Sunderland v. Portes

August 01, 2001

MARIAH L. SUNDERLAND, A MINOR, AND RYDER J. SUNDERLAND, A MINOR, BY THEIR COURT-APPOINTED GUARDIAN AD LITEM, JOSEPH POELL, PLAINTIFFS-APPELLEES
v.
STEVEN A. PORTES, DANIEL J. LYNCH, AND PRIMARY CARE FAMILY CENTER, S.C., DEFENDANTS-APPELLANTS (SAM SOOKHAKITCH AND SAM SOOKHAKITCH, M.D., LTD., DEFENDANTS)
MARIAH L. SUNDERLAND, A MINOR, AND RYDER J. SUNDERLAND, A MINOR, BY THEIR COURT-APPOINTED GUARDIAN AD LITEM JOSEPH POELL, PLAINTIFFS-APPELLEES
v.
SAM SOOKHAKITCH AND SAM SOOKHAKITCH, M.D., LTD., DEFENDANTS-APPELLANTS (STEVEN A. PORTES, DANIEL J. LYNCH, AND PRIMARY CARE FAMILY CENTER, S.C., DEFENDANTS)



Appeal from the Circuit Court of Lake County. No. 95-L-507 Honorable Terrence J. Brady, Judge, Presiding

The opinion of the court was delivered by: Justice Bowman

UNPUBLISHED

Minor plaintiffs, Mariah Sunderland and Ryder Sunderland, through their next friends, Edward Sunderland and Miranda Sunderland, and Edward and Miranda Sunderland individually, filed a medical malpractice complaint against defendants, Steven A. Portes, M.D., Daniel J. Lynch, M.D., Primary Care Family Center, S.C. (collectively Primary Care defendants), Sam Sookhakitch, M.D., Sam Sookhakitch, M.D., Ltd. (collectively Sookhakitch), and respondents in discovery who are not parties to this appeal. In 1997 the trial court granted summary judgment in favor of Sookhakitch and later dismissed plaintiffs' cause of action with prejudice in its entirety. In 1999, the minor plaintiffs, pursuant to section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1998)), filed a petition to vacate the summary judgment order and the dismissal order.

The trial court entered an order that allowed the minors to refile their cause of action against all defendants and, at the same time, granted defendants' motions to dismiss the minors' petition to vacate. The court later entered an order vacating the summary judgment order and the dismissal order. Both Sookhakitch and the Primary Care defendants have appealed from the order granting the minors leave to refile their cause of action. In addition, Sookhakitch appeals from the court's vacatur of the order granting summary judgment in his favor, and the Primary Care defendants appeal from the vacatur of the order dismissing the cause of action with prejudice as to all defendants. Defendants contend that the trial court lacked the authority to vacate the summary judgment and dismissal orders and to allow the minor plaintiffs to refile their cause of action. Their appeals have been consolidated.

We have jurisdiction over this matter pursuant to Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), which provides for the interlocutory review of a judgment or order granting or denying the relief requested in a petition under section 2--1401 of the Code.

On March 2, 1995, plaintiffs filed a complaint alleging medical negligence in connection with the prenatal care defendants provided to Miranda Sunderland while she was pregnant with minors Mariah and Ryder Sunderland. The complaint alleged that the minors, who were born on October 26, 1994, suffered severe, disabling, permanent brain damage as a result of defendants' negligence. Miranda and Edward Sunderland, the minors' parents, brought the action on behalf of the minors as their next friends.

Plaintiffs were represented by the Law Offices of Patrick A. Salvi, P.C., which later changed its name to Salvi & Schostok, P.C. The Salvi firm withdrew as plaintiffs' counsel on April 9, 1997. The record is silent regarding the reason for the withdrawal. The order granting the Salvi firm leave to withdraw stated, in relevant part:

"B). Plaintiff has 21 days to file appearance of new counsel.

C). If no new counsel appears within 21 days of this date, this case shall be dismissed."

Plaintiffs did not obtain new counsel after the Salvi firm withdrew.

On May 21, 1997, Sookhakitch filed and presented a motion for summary judgment. The summary judgment motion was based solely upon Sookhakitch's affidavit stating that he did not violate the standard of care in treating Miranda Sunderland or the minors. The summary judgment motion was uncontested, as plaintiffs were not represented by counsel and no one appeared on their behalf. The trial court granted summary judgment in Sookhakitch's favor on May 21, 1997. The court's order contained a finding, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal.

On June 5, 1997, the case came up on a "special progress call." Finding no appearance in the court file on behalf of plaintiffs, the trial court entered an order dismissing their cause of action with prejudice as to all defendants and all respondents in discovery.

Nothing further happened in the case until approximately two years later, on June 4, 1999, when the minors, through their guardian ad litem, Joseph Poell, filed a petition pursuant to section 2--1401 of the Code to vacate the summary judgment order and the dismissal order entered against them. The petition to vacate further requested that the minors be allowed to proceed with their action against defendants and file an amended complaint.

The petition to vacate alleged that Judge David Hall had appointed Poell as the minors' guardian ad litem in matters that had been filed in other divisions of the circuit court of Lake County. On or about December 22, 1998, Judge Hall authorized Poell to investigate whether the minors had a viable medical negligence action against any of the physicians who treated them or their mother prior to their delivery. On June 3, 1999, an order was entered in case numbers 96--D--1394 and 97--F--476 authorizing Poell to file a medical negligence action on the minors' behalf. Further, the ...


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