*1 case, by common supported but it particular fairness in this is many injustice in in- statutory precedent and could cause law or stances. representa- rule of virtual problem is that common law agree- resulting judgments litigation and not applies
tion give representation virtual disputes. person to settle One can ments in reach- in a when have a common interest to another lawsuit person who would ing happen This when the same result. does not given one who represent a consideration to the another settles for Here, if and his chil- purportedly settles for both of them. Charles odds, allowing him Charles settle consideration dren were children, would not of his children promise, on behalf Likely, here, consider- grossly be unfair. contest the will would estate, promise received from his enhanced that Charles ation indirectly eventually from it. children will benefit and Charles’ However, happen. always that would not gives authority Act for includ- 16.1 of the Trustees some
Section right person rights settle the another under of one special representa- rule of virtual apply circumstances does However, there. 16.1 concerns trusts and tion to the situation section application has direct to the instant situa- their beneficiaries and no representation is If the law of virtual tion. common doctrine it, majority no would exist to have a expansive as the makes reason section 16.1. HOUSE, al., Plaintiffs-Appellants, L.
TINA E. HIGGENS et v. STEPHEN Defendant). (Sarah Center, Defendant-Appellee Lincoln Health Bush Fourth No. 4 — 96—0793 District Rehearing Argued Opinion May denied March filed 1997 . 1997 . July *2 COOK,J., dissenting. Williamson, Webster, (argued), Groshong, Richard Gibson of W. Falb &
Gibson, Alton, appellants. of for Gundlach, Lee, (argued), Charlene A. Cremeens Brad G. both Pele of Eggmann, Roessler, Belleville, appellee. Boyle & of for the court: of opinion delivered KNECHT JUSTICE of Coles circuit court from appeal is an This to set aside motion denying plaintiffs’ County mal- in a medical favor L. House’s Stephen Dr. entered defendant 1994). (West 1203, 2—1005 735 ILCS action. See practice 5/2 — parties justice between arguing substantial appeal, Plaintiffs set aside their motion to denied when the trial court not achieved We affirm. Higgens filed a com- Ronald Tina and May plaintiffs In and Sarah against defendant alleging medical plaint Center). (Health January In Health Center Bush Lincoln Health Center. voluntarily dismissed plaintiffs litigation, of the in the course On numerous occasions identify discovery requests with defendant’s comply failed to witness(es). March Eventually, on expert opinion proposed their and entered management conference held a case opinion their to disclose directing plaintiffs management order a case deposition for such witnesses days produce witnesses within witnesses opinion their failed to disclose 1996. Plaintiffs by June summary for and, filed a motion May as ordered judgment as matter entitled him to arguing this failure judgment, law. copy of the motion Defendant sent counsel *3 1996, date, hearing yet of the June summary judgment and notice and failed to the motion response did not file a plaintiffs counsel for entered sum- hearing. Accordingly, appear to at the July 1996. On favor on June mary judgment defendant’s summary the a motion to set aside plaintiffs counsel for filed hearing notice of the date stating he had overlooked the judgment, did deposition. Counsel an who was available for but did have summary the motion for response failure to file a to explain denied hearing, the trial court Following September a 1996 judgment. motion to set aside the brief, summary judg the order of plaintiffs In their contend failing attend order, a for a entered as sanction ment was default (see ILCS hearing summary judgment motion 735 the on the 5/2— 1994)). 1301(d)(West liberally have argue trial court should They the order, do when rul the as courts their motion to set aside construed pursuant entered to section default orders petitions to vacate (Code). of Procedure 2—1301 of the Code Civil a summary judgment order as default view the possible It is However, plaintiffs’ failure a abuse. order or sanction by witness the identify file a to the motion or response justified date also entry summary the of judgment on the merits of defendant’s motion.
Contrary assertion, to defendant’s section 2—1401 of the Code application has no to these facts plaintiffs filed their motion to set aside summary judgment the order of days within 30 of its (West 1994). entry. 735 ILCS The trial court juris 5/2 —1401 retained diction to set aside summary judgment, a final disposing order of litigation, days for 30 entry. after its Board Managers Dun bar Lakes Condominium II Beringer, 442, 446, Ass’n v. 3d (1981). 418 N.E.2d approach
We plaintiffs’ motion to set summary aside the judg ment as a motion to reconsider or vacate the (West 1994). section 2—1203 of the Code. 735 ILCS Such a 5/2 —1203 motion invokes the sound court, discretion of the trial and absent a showing the trial court discretion, abused its we will not disturb the ruling court’s on review. See Inc., Freeman v. Augustine’s, (1977). 360 N.E.2d We need not address the question of whether the trial court could have impose chosen to a against sanction or their counsel as a spur means to them to disclose the expert comply with future court orders. Perhaps another judge trial proceeded would have in a different fashion. We must focus on what the trial court did and whether that was an abuse of discretion. presented The issue is whether the trial court abused denying its discretion in plaintiffs’ motion to set aside summary judgment where failed respond to the mo tion summary judgment and offered no explanation reasonable for their failure to identify witness until after the trial court entered in defendant’s favor. case,
In a medical Illinois law mandates a plaintiff (1) prove proper standard by of care which to measure the (2) conduct, defendant’s negligent care, breach of the standard of (3) resulting injury proximately caused the defendant’s lack of skill Chen, M.D., or care. Gorman Shu-Fang Ltd., Ill. 596 N.E.2d Necessary to the establish prima ment of a negligence case of presentation medical is the facie of expert testimony applicable care, to establish the standard of standard, deviation from resulting injury plaintiff. to the Addison v. Whittenberg, *4 disposition of a medical by summary claim
judgment is appropriate genuine when no issue of material fact resolved; remains to be accordingly, when a defendant files a sum mary judgment motion establishing and affidavit he was not
547 allega to substantiate plaintiff on the is incumbent negligent, it Salafsky, v. testimony. Brandeis through expert negligence tions of (1990). a 1026, Where 35-36, 1029 31, 563 N.E.2d App. Ill. 3d 206 such ability to offer present show the has failed to plaintiff appropriate. is favor in a defendant’s testimony, (1986); Smock 876 229, 250, N.E.2d Hess, Purtill v. (1990). Hale, 3d 197 Ill. v. the motion response a to failed to file plaintiffs Because fact on of material genuine issue was no summary judgment, there i.e., had not disclosed plaintiffs malpractice, of medical issue In claim. of their elements establish the essential expert required to a matter of circumstances, grant the motion as could the court these 1029; 36-37, Diggs v. N.E.2d at Brandeis, at 206 Ill. 3d law. N.E.2d Center, App. 3d 191 Ill. Medical Suburban 377-78 hearing on the at the appear did not plaintiffs counsel for
When
had defense counsel
the trial court
summary judgment,
motion for
indicated he
plaintiffs
attorney. Counsel
plaintiffs’
contact
date,
not assure the
yet he did
inadvertently missed the
trial
conclude the
witness. We
produce
court he could
judgment
proper.
entry
summary
court’s
reconsider or
ruling on a motion to
trial court’s
Whether the
litigants
justice between
substantial
a
achieved
vacate
its
abused
assessing
inquiry in
whether
is a relevant
Hoyos,
ruling
Mryszuk
motion. See
on the
discretion
reviewing
A
court should
N.E.2d
App. circumstances,
rea
whether,
it would have been
under the
determine
go
trial on the merits of
compel
nonmoving party
to
sonable to
Plaintiffs
In defendant Supreme Court Rule pursuant regarding expert ries witnesses 1996). January Plaintiffs failed to (repealed 134 Ill. 2d R. 220 eff. and, in October interrogatories answer defendant’s 201(k), Rule Supreme Court letter sent discovery requests. 134 Ill. 2d compliance with his written requesting 201(k). defendant filed to the letter and respond R. Plaintiffs did not compel was The motion to compel in November 1995. a motion to *5 witness(es) plaintiffs agreed cancelled and expert to disclose their 31, January 1996. Plaintiffs failed to disclose expert(s) by their that date. 1996,
In January February or defendant served with supplemental interrogatories pursuant to recently amended Supreme Court Rule 213. 166 Ill. 2d R. 213. Plaintiffs did not answer the supplemental interrogatories or request defendant’s for produc 201(k) tion. Defendant sent plaintiffs another letter to Rule and, in April filed another motion compel. parties management attended case conference in March and, stated, plaintiffs comply failed manage- with the case
ment following order entered the conference. Counsel for plaintiffs admits he has no compelling excuse for complying not with the trial case management court’s regarding order the disclosure of expert witnesses. Counsel states he inwas contact with the intended expert regarding long witness this case before the complaint was filed but follow-up expert with the became difficult due expert’s to the move ato new Florida office. above,
As mentioned plaintiffs were notified of defendant’s mo- summary judgment tion for and of hearing date for the motion yet filed no response to the motion and missed the hearing date. Counsel assures us his identify failures to witness and to attend the on the motion for were inad- vertent and there was no attempt ignore wilful or intentional trial court’s orders. already
We have concluded the trial court correctly entered sum mary judgment in defendant’s favor. We conclude further the trial court’s denial of motion to set summary judg aside the proper light ment in diligence of the lack of prosecution plaintiffs urges this case. Counsel for us to reverse the trial court’s ruling so his will punished clients not be for his errors. Counsel’s fail handling ure to exercise care in the proper of this case is not a basis Mamolella, for us to reverse the trial judgment. People court’s See nearly years, For three expended defending Allowing resources in this action. has merits, proceed merely to a trial on the should be penalized attorney, not for the omissions of their own visiting "would plaintiffls’] lawyer upon be the sins of the defendant.” Co., (Emphasis original.) Link v. R.R. Wabash 370 U.S. n.10, n.10, 8 L. Ed. 2d 82 S. Ct. 1390 n.10 is af- reasons, of the circuit court the above For firmed.
Affirmed.
CARMAN, J., concurs. COOK, dissenting:
JUSTICE (1) interrogatories served respond to attorney did not (2) agree- comply did not with upon September him on (3) inter- by January did not answer ment to disclose (4) February did rogatories apparently him served on by April management order to disclose comply with case interrogatories, the re- responded 1996. If counsel had plaintiff yet had not retained sponse apparently would have been *6 expert. experts for had been No cutoff date disclosure Nevertheless, interrogatories established when the were served. were taken of all discovery Depositions was conducted in this case. sides, except experts the on both and there was other witnesses discovery appears parties as well. It the were able to resolve their dif- 201(k). voluntarily, they encouraged ferences are to do Rule For example, compel defendant filed a November motion to but that motion was withdrawn. Defendant filed a second motion to conference, compel management at the time of the case March apparently which was resolved at that time. (1) attorney suggests expert physician was the same with whom had he consulted when he filed his affidavit (735 (West (2) 1994)), section 2—622 of the Code ILCS he 5/2 —622 delayed naming physician expert had the as his he wanted physician depositions August September to examine taken in (3) got- 1995 to if opinion, physician see altered his had not (4) him, physician ten back to contact with the was difficult physician because the had relocated his officesto Florida. Although plaintiffs’ attorney apparently complied had with requests discovery, only some of defendant’s that court order complied management setting had not been with was the case order 28, April deadline of for the opinion disclosure of witnesses. plaintiff manage When failed to comply portion with that of the case order, ment as in Cly did not file motion for sanctions (1996), Hayden, App. more v. 278 Ill. 3d 663 N.E.2d but instead filed a motion for
Summary judgments
They
are not entered as
are
sanctions.
genuine
any
entered where there is no
issue as to
material fact and
moving party
is entitled to
aas matter of law. 735
1005(c) (West 1994). Nevertheless,
ILCS
plaintiff
where
in a
5/2 —
medical
case is
procure
necessary expert
unable to
testimony, summary judgment
for the defendant
appropriate.
is
Nauton,
(1979);
Stevenson v.
71 Ill.
3d
390 N.E.2d
Addison,
295-96,
556;
Hale,
see
124 Ill. 2d at
Pogge
The failure
an
April
may
to disclose
have
sanctions,
been a
a
imposition
basis for the
of
but it was not basis for
Brandeis,
entry
summary judgment.
App.
of
206 Ill.
3d at
(granting summary judgment
at
N.E.2d
as
sanction
sanction,
improper).
possible
Dismissal is a
but such a drastic sanc
only
employed
Clymore,
a last
See
278 Ill.
tion should
be
resort.
867-68,
App.
(repeated
3d at
his a response failure to file to the motion for noted, plaintiffs’ attorney 543. As the trial court explain hearing among did that he received the motion and notice of defendant, group pleadings them, of other from overlooked failed to enter the date on attorney his calendar. Plaintiffs’ stated county that in the regularly practices, where he the court calendars motions and that motions attorney filing are not set a notice of hearing. There is no indication the trial court disbelieved those representations.
The majority complains plaintiffs’ attorney given opportunity omissions, explain possibly obtain a continu ance, hearing date, when he was contacted on the but he did not do so. 3d at plaintiffs’ attorney, practices 547. When who in Madison County, appear did not at the County, Coles the trial attorney court directed defendant’s to call at torney. record, The substance of that conversation is not in the but plaintiffs’ attorney states he asked defense counsel to continue the case, explain accidental, that the apologize missed date was and to to the trial court. Defense responded agree counsel that he could not ato continuance grant and indicated the court would not a continu ance. In the absence of a anything record we should not assume contrary. attorney just file a did not motion to set aside addition, July on In plaintiffs’ attorney 1996. answered the Rule interrogatories, expert, disclosed his made him deposition any Saturday August available for *8 attorney fully complied had with all court orders and when he filed his motion to set aside.
requests today, single setting missed can Under the rule announced court, hindsight, concludes that result in dismissal where the trial attorney have worked harder on the case. Sanctions could goal further hindsight punish serve to but do little to imposed Jeremy what Bentham achieving compliance. We have here " law,” training dogs by "dog 'age-old referred to as method of then waiting they until do what are to be forbidden to do and kicking Singer, Statutory them.’ N. Sutherland on Construction [2 (Sands 1986).]” 41.02, at 340-41 4th ed. § Fight Fire Chicago Rivard Union, ers Local No. (1988) (discussing prospective application preference statutes). INC., PROFESSIONALS, Plaintiff-Appellee, v. GARY R. R.E.
RE/MAX al., Defendants-Appellants. et ARMSTRONG No. Fourth District 4 — 96—0837 May 28, Opinion filed