Jayko v. FraczekJayko v. Fraczek
- Reporters:
- , ,
- Before:
- McBride, Epstein, Howse
OPINION
Justice McBRIDE delivered the judgment of the court, with opinion.
¶ 1 St. Alexius Medical Center, a community health center located near Chicago in Hoffman Estates, Illinois (hereinafter St. Alexius), appeals from an order denying its motion to readjudicate its health care provider‘s lien against Allen Jayko‘s personal injury action 16 months after the trial court adjudicated the $11,638 lien to $0. Although St. Alexius used certified
¶ 2 Our first consideration is the appropriate standard of review and the issues to be addressed. The trial court rendered a final judgment order when it adjudicated all the health care provider liens to $0. When St. Alexius motioned the trial court to “[v]oid any previously entered order” concerning the lien and adjudicate St. Alexius’ rights once more, St. Alexius failed to specify the section of the Code of Civil Procedure that governed its motion.
¶ 3 Generally, a petition for relief from a final judgment order must meet the criteria specified in section 2-1401 of the Code of Civil Procedure (
¶ 4 In 2004, when he was 11, Allen was riding a bicycle near his home in Streamwood, Illinois, when he was struck by a car being driven by his 17-year-old neighbor Joseph E. Fraczek. Allen‘s left ankle was broken and he suffered other minor injuries. He spent the night in the hospital and the next few weeks with a cast and crutches and incurred medical bills totaling $22,279, of which $14,638 was for his hospital care. The hospital‘s bill dated October 13, 2004, was printed on letterhead which most prominently displayed what appears to be the crest of the Alexian Brothers Catholic order. Next to the crest, in a large, stylized font were the most conspicuous words on the page, “Alexian Brothers,” and just below that in a smaller version of the font, “St. Alexius Medical Center.” This section was followed by contact information:
“1555 Barrington Road
Hoffman Estates, Illinois 60194
Main Hospital: (847) 843-2000
Business Office: (847) 843-4040
www.stalexius.org”
Below this letterhead, the invoice was addressed to Allen, in care of his father, Lawrence Jayko, and in the middle portion of the page were about 30 itemized charges for the boy‘s care on October 7 and 8, 2004. In the bottom left corner of the page, in the smallest font on the page, were the words:
“Remit Payment to:
St. Alexius Medical Center
21219 Network Place
Chicago, IL XXXXX-XXXX
This bill contains charges for hospital services only. Charges for physician services related to your care will be billed separately.”
“Payment can be made via the following options:
1. Contact our office to pay by credit card today.
2. Mail payment to the address below. (Be sure to attach the bottom section with your payment.)
3. Contact our office to establish financial arrangements immediately.”
The letter concluded with the words “Thank you for your assistance, St. Alexius Medical Center (847) 843-4040,” which was the telephone number previously stated as the “Business Office.” A dark horizontal line separated this text from the bottom third of the page, where it was stated:
“Payment Address: St. Alexius Medical Center
21219 Network Place
Chicago, IL XXXXX-XXXX,”
followed by five blank lines which could be filled in with a payee‘s credit card information.
¶ 5 Acting on her minor son‘s behalf and pursuant to the statute commonly known as the family expense act (
¶ 6 In 2008, the hospital notified Allen, the Jaykos’ lawyer, and the Fraczeks’ insurer that the hospital was asserting a health care provider‘s lien on the proceeds of the cause of action. A lien is a legal claim on money or property recovered by the injured person; it is a property interest which gives the lienholder security for payment of a debt. Galvan v. Northwestern Memorial Hospital, 382 Ill. App.3d 259, 272, 321 Ill.Dec. 10, 888 N.E.2d 529, 541 (2008); In re Estate of Cooper, 125 Ill.2d 363, 369, 126 Ill.Dec. 551, 532 N.E.2d 236, 238 (1988) (a lien upon an accident victim‘s recovery is a property interest which secures payment of a debt). Perfecting notice of a lien does not guarantee recovery; rather, notice informs the adverse party of the claim and thereby prevents that party from making a settlement in disregard of the lien. Kovitz Shifrin Nesbit, P.C. v. Rossiello, 392 Ill. App.3d 1059, 1064, 331 Ill.Dec. 950, 911 N.E.2d 1180, 1186 (2009) (regarding attorney‘s lien). In order to collect, the rights of the parties must be adjudicated and the lien enforced by a court of competent jurisdiction. Kovitz, 392 Ill.App.3d at 1065, 331 Ill.Dec. 950, 911 N.E.2d at 1186. The statute at issue applies to causes of action that accrue on or after July 1, 2003.
¶ 7 Section 10(a) of the statute specifies when a health care lien arises and limits the total amount of all such liens:
“Every health care professional and health care provider that renders any service in the treatment, care, or maintenance of an injured person, except services rendered under the provisions of the Workers’ Compensation Act [( 820 ILS 305/1 et seq. (West 2004))] or the Workers’ Occupational Diseases Act [(820 ILCS 310/1 et seq. (West 2004))], shall have a lien upon all claims and causes of action of the injured person for the amount of the health care professional‘s or health care provider‘s reasonable charges up to the date of payment of damages to the injured person. The total amount of all liens under this Act, however, shall not exceed 40% of the verdict, judgment, award, settlement, or compromise secured by or on behalf of the injured person on his or her claim or right of action.”770 ILCS 23/10(a) (West 2004).
Although section 10(a) limits the combined amount of all health care liens to 40% of the settlement, it does not preclude the various health care providers from collecting the rest of the debt that is owed.
¶ 8 Section 10(b) of the Act specifies the contents of a health care provider‘s lien and indicates its “written notice” is effective whether delivered by mail or tendered in person:
“The lien shall include a written notice containing the name and address of the injured person, the date of the injury, the name and address of the health care professional or health care provider, and the name of the party alleged to be liable to make compensation to the injured person for the injuries received. The lien notice shall be served on both the injured person and the party against whom the claim or right of action exists. Notwithstanding any other provision of this Act, payment in good faith to any person other than the health care professional or health care provider claiming or asserting such lien prior to the service of such notice of lien shall, to the extent of the payment so made, bar or prevent the creation of an enforceable lien. Service shall be made by registered or certified mail or in person.”
770 ILCS 23/10(b) (West 2004).
¶ 9 The lien notice at issue was written and mailed by the hospital‘s attorneys and it did not resemble the invoice and “Past Due” correspondence that had been mailed by the hospital. It did not include the crest or name of Alexian Brothers or any of the three addresses previously given for Alexian Brothers and St. Alexius. It stated:
“You are hereby notified that ALLEN L JAYKO was on or about 10/07/2004 injured by the alleged negligent or wrongful act of defendant, * * * for which (s)he has a claim, demand or cause of action. ALLEN L JAYKO was a patient and received medical services and supplies in St. Alexius Medical Center because of said injuries.
You are further notified that St. Alexius Medical Center hereby claims a lien
upon any claim or demand or cause of action which the said injured party may have in accordance with * * * the Statutes of the State of Illinois in regard to health care provider liens * * *.”
The notice of lien concluded:
“ALISHA P. PATEL, ESQ. POWERS & MOON, LLC 707 Lake Cook Road, Suite 102 Deerfield, IL 60015 Lienholder address: St. Alexius Medical Center C/O Powers & Moon, LLC 707 Lake Cook Road, Suite 102 Deerfield, IL 60015.”
Cover letters written on the law firm‘s letterhead referred to: “Lienholder/Our Client: St. Alexius Medical Center.”
¶ 10 The Fraczeks failed to effectively respond to the Jaykos’ lawsuit. In a written answer and affirmative defenses, they contended Allen contributed to the collision by unexpectedly riding his bicycle onto the street. However, the court barred Joseph from testifying at trial because he did not comply with orders to sit for a deposition and the Fraczeks’ insurer asked in a separate declaratory judgment action to be released from any liability due to Joseph‘s failure to cooperate with its defense of the lawsuit. Nonetheless, in 2009, the Fraczeks’ insurer offered the Jaykos a $30,000 settlement, which was about a third of the limits of Joseph‘s $100,000 coverage.
¶ 11 Shortly after the settlement offer, the Jaykos filed a motion to adjudicate four unresolved health care provider liens totaling $16,988, including what was then the $11,638 lien of “St. Alexius Medical Center.” Section 30 of the Act specifies what must be done before the circuit court may adjudicate health care lien rights, and, we reiterate that, like section 10(b), section 30 requires a “written notice.”
¶ 12 About 16 months later, on September 13, 2010, the hospital filed a motion to adjudicate its lien anew, on grounds that the Jaykos’ notice was insufficient. Circuit Court Judge Marcia Maras considered written briefs and oral arguments from St. Alexius and the Jaykos and then denied the motion.
¶ 13 St. Alexius contends Judge Maras misconstrued the Act to permit notice by certified mailing when in fact there is no such statutory language. St. Alexius contends section 30 of the Act does not specify how “written notice [of a petition to adjudicate a health care lien]” is to be conveyed, but we should assume it must be served like a complaint and that the rules regarding “service of process” are controlling. As we outlined above, St. Alexius invokes three rules: section 2-204 of the Code, which concerns service of process on private corporations, Supreme Court Rule 101, which concerns the contents of a summons to a defendant, and Supreme Court Rule 102, which concerns the timing of the service of a summons and complaint upon a defendant.
¶ 14 The goal of statutory construction is to ascertain and give effect to the legislature‘s intent. County of Du Page, 231 Ill.2d at 603-04, 326 Ill.Dec. 848, 900 N.E.2d at 1101. Statutes should be interpreted as a whole, meaning different sections of the same statute should be considered in reference to one another so that they are given harmonious effect. County of Du Page, 231 Ill.2d at 604, 326 Ill.Dec. 848, 900 N.E.2d at 1101. In fact, viewing all provisions of an enactment as a whole is a fundamental principle of statutory construction. Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 504, 247 Ill.Dec. 473, 732 N.E.2d 528, 535 (2000). Also, in construing statutes, we are to presume that the General Assembly did not intend for absurdity, inconvenience, or injustice to result from its legislation. Michigan Avenue National Bank, 191 Ill.2d at 504, 247 Ill.Dec. 473, 732 N.E.2d at 535. In addition to the statutory language, we may consider the purpose behind the law and evils sought to be remedied, as well as the consequences that would result from construing the law one way or another. County of Du Page, 231 Ill.2d at 604, 326 Ill.Dec. 848, 900 N.E.2d at 1102.
¶ 15 The legislature used the phrase “written notice” in two different sections of the Act, but specified in the first section only the means of serving that written notice. Section 10 of the Act describes the contents of the health care provider‘s “written notice” of lien and that “[s]ervice shall be made by registered or certified mail or in person.”
¶ 16 The question then becomes whether due process considerations required personal service on the hospital. Zilinger helps us answer that question because it involved analogous circumstances. Although Zilinger is a federal court opinion, the case actually started in the circuit court of Cook County when a family sued their automobile insurer for breaching the uninsured motorist clause of the policy. Zilinger, 957 F.Supp. at 148. The family and the insurer agreed to a settlement but those settlement proceeds were subject to a lien asserted by the father‘s health insurer. Zilinger, 957 F.Supp. at 148-49. The family filed a motion to adjudicate the lien, arguing that the father‘s insurer was not contractually entitled to recoup funds expended for their treatment. Zilinger, 957 F.Supp. at 149.
¶ 17 The health insurer then filed a notice of removal in the federal court indicating it was exercising its right to move the case from the state court system to the federal court system. Zilinger, 957 F.Supp. at 149. The family countered with a motion to return the case to state court, on grounds that there was no longer any case or controversy needing adjudication. Zilinger, 957 F.Supp. at 149. At that point, the health insurer argued, like St. Alexius, that the order adjudicating the lien to $0 was void because the circuit court never obtained personal jurisdiction by service of summons. Zilinger, 957 F.Supp. at 149. The federal court, however, was persuaded that the circuit court did not need to obtain personal jurisdiction over the health insurer because a lien adjudication is an in rem action. Zilinger, 957 F.Supp. at 149. The federal court reached this conclusion due to state court precedent indicating a trial judge‘s adjudication of competing rights to settlement proceeds is an in rem action concerning the disposition of property within Illinois for which service by mail is permissible as described in Supreme Court Rule 11. Zilinger, 957 F.Supp. at 149-50 (distinguishing between in rem and in personam proceedings) (quoting Austin v. Royal League, 316 Ill. 188, 193, 147 N.E. 106, 109 (1925)); Wilson v. Smart, 324 Ill. 276, 281-82, 155 N.E. 288, 291 (1927) (indicating property of a nonresident defendant may be subjected to payment of alimony and support upon service by publication);
¶ 18 Supreme Court Rule 11, which is entitled “Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts,” provided at the time: “papers shall be served * * * by depositing them in a United States post office * * * plainly addressed * * * to the party at his business address * * * with postage fully prepaid.”
¶ 19 According to the Illinois Supreme Court:
“`In rem’ jurisdiction is `[a] court‘s power to adjudicate the rights to a given piece of property, including the power to seize and hold it.’ Black‘s Law Dictionary 856 (7th ed. 1999). `[A] proceeding in rem is one which is taken directly against property or one which is brought to enforce a right in the thing itself.’ Austin v. Royal League, 316 Ill. 188, 193[, 147 N.E. 106] (1925). The legal fiction underlying an in rem proceeding is that the `property, not the owner of the property, is liable to the complainant.
It treats property, therefore, as the defendant, susceptible of being tried and condemned, while the owner merely gets notice, along with the rest of the world, and may appear for his property or not.’ R. Waples, Treatise on Proceedings In Rem § 1, at 2 (1882).” ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill.2d 526, 532, 342 Ill. Dec. 7, 931 N.E.2d 1190, 1195 (2010).
¶ 20 Put another way, an in rem proceeding affects specific property within the jurisdiction of the court and does not adjudicate any personal claim or personal liability. Thus, a statutory lien proceeding is additional to or cumulative of other remedies for enforcement of the contract from which the lien arose. Rockwood Sprinkler, 265 Ill.App. at 276, 1932 WL 2753. “Independently of the lien given by the statute, a creditor may enforce his contract in any appropriate [in personam or in rem] common law action, but can have one satisfaction only.” Rockwood Sprinkler, 265 Ill.App. at 276, 1932 WL 2753 (holding that a creditor‘s failure to enforce a mechanic‘s lien against real property would not bar the creditor‘s breach of contract action).
¶ 21 We are unpersuaded by St. Alexius’ suggestion that the settlement dollars or circuit court proceedings in Zilinger were somehow different from the settlement and hearing at issue. St. Alexius emphasizes that Zilinger involved a lien arising from the common law rather than from a statute, but St. Alexius fails to explain why the source of the lien has any impact on the fact that a res is a res and that proceedings concerning rights to a res are in rem proceedings.
¶ 22 Zilinger is well founded in Illinois law and it has since been applied in Trustees of the Local 734, 537 F.Supp.2d at 956, a federal case involving an Indiana tort action and Illinois lienholders. The lien claimants were not made parties to the Indiana tort action or a related insurance case, no summons was served on either of them, but they were notified through certified mail delivery of a motion to adjudicate the liens and of a specific hearing date in Indiana. Trustees of the Local 734, 537 F.Supp.2d at 956. Neither lien claimant attended the hearing, but the court‘s adjudication, like the order at issue here, was based on the merits of the moving party‘s arguments rather than on the failure of the lien claimants to appear. Trustees of the Local 734, 537 F.Supp.2d at 956. The lien claimants later sued the Indiana settlement recipients in an Illinois federal court, but that court reasoned that (1) the motion to resolve the lien on the settlement proceeds concerned an in rem proceeding for which notice by certified mail was adequate, (2) due process did not require service of summons or formal designation of the lienholders as parties, (3) the lien had been adjudicated, and (4) res judicata barred further proceedings. Trustees of the Local 734, 537 F.Supp.2d at 958-59 (due process requires that those having or claiming an interest in a res be provided with notice reasonably calculated to apprise them of the pendency of the action and afford them an opportunity to present their objections; liens may be adjudicated ancillary to the underlying proceeding; and due process can be satisfied by certified mailing of a hearing date (citing Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983))). See also McCallum v. Baltimore & Ohio R.R. Co., 379 Ill. 60, 69, 39 N.E.2d 340, 344 (1942) (liens on settlement funds were properly adjudicated in an in rem proceeding in the court in which the funds had been deposited).
¶ 23 This line of authority leads us to conclude that the Jaykos’ $30,000 settlement proceeds were a res and, thus, the
¶ 24 We decline to apply cases regarding workers’ compensation lien rights, namely, Fremarek v. John Hancock Mutual Life Insurance Co., 272 Ill.App.3d 1067, 209 Ill.Dec. 423, 651 N.E.2d 601 (1995), and Augsburg v. Frank‘s Car Wash, Inc., 103 Ill.App.3d 329, 59 Ill.Dec. 39, 431 N.E.2d 58 (1982). St. Alexius relies on these opinions even though section 10 of the statute at issue expressly excludes health care services rendered under the Workers’ Compensation Act.
¶ 25 St. Alexius also argues it is a separate entity from Alexian Brothers and that the certified mailing to “Alexian Brothers” and the court order concerning “Alexian Brothers” are not binding on St. Alexius. In our opinion, however, any confusion between the two entities was caused by the hospital when it invoiced and corresponded with the Jaykos about Allen‘s care on sheets of letterhead which did not clearly distinguish “Alexian Brothers” from “St. Alexius Medical Center.” The most conspicuous entity on the letterhead was the blended name “Alexian Brothers St. Alexius Medical Center.” This name appeared prominently at the top of the invoice and the “Past Due” letter and was printed in the darkest, largest font on each page. According to the letterhead, this entity maintained the website “www.stalexius. org” and had telephone service and a mailing address in suburban Hoffman Estates. Hoffman Estates was where Allen received medical treatment. The other entity appearing
¶ 26 We are not swayed by St. Alexius’ contention that the certified mail should have been directed to its attorneys’ office in Deerfield, Illinois, because the law firm‘s name and address were printed on the notice of lien. St. Alexius describes a mailing to a party and not the party‘s attorney as ineffective, but St. Alexius’ fails to cite any supporting precedent and relies solely on its incorrect interpretation of Supreme Court Rule 11(a).
¶ 27 This conclusion does not resolve whether the two subsequent court orders adjudicating the health care lien of “Alexian Brothers” rather than “St. Alexius Medical Center” are binding on appellant St. Alexius. As we set out above, (a) Judge Maddux granted the Jaykos’ motion to adjudicate the four liens against the action to $0 and (b) Judge Lynch later granted the Jaykos’ petition to approve the $30,000 settlement and he again ordered that the liens be reduced to $0. The motion presented to Judge Maddux referred to
¶ 28 Clerical errors in an order, including the correct name of a party, may be modified at any time by entry of a nunc pro tunc or “now for then” order. Johnson v. First National Bank of Park Ridge U/T # 205, 123 Ill.App.3d 823, 79 Ill.Dec. 305, 463 N.E.2d 859 (1984). In Johnson, for instance, a man was awarded $5,000 for personal injuries he suffered on real estate owned by a bank trust. Johnson, 123 Ill.App.3d at 824, 79 Ill.Dec. 305, 463 N.E.2d at 860-61. However, the court‘s half-sheet indicating judgment was entered in his favor and against the property owner identified the defendant as “First National Bank of Park Ridge” instead of the party that had been sued, “First National Bank of Park Ridge U/T 205.” Johnson, 123 Ill.App.3d at 824, 79 Ill.Dec. 305, 463 N.E.2d at 860. (“A half-sheet is a document kept in the court file, upon which is entered a `memorandum of papers filed, proceedings, orders and judgments.‘” Berzana v. Mezyk, 86 Ill.App.3d 824, 824-25, 42 Ill.Dec. 34, 408 N.E.2d 412, 412 (1980) (quoting Circuit Court of Cook Co. Cir. Ct. R. 0.3(b)(Oct. 2, 1995)).) Thus, the judgment debtor appeared to be the bank individually rather than the bank in its capacity as trustee of Trust Number 205. The man failed to collect on the judgment for many years, but he eventually attempted to attach the assets of the bank as opposed to the assets of Trust Number 205, at which point the bank moved to correct the erroneous name on the half-sheet. Johnson, 123 Ill.App.3d at 826, 79 Ill.Dec. 305, 463 N.E.2d at 861.
¶ 29 The usual rule is that a court loses jurisdiction to review its own final order or judgment after the expiration of 30 days. Johnson, 123 Ill.App.3d at 826, 79 Ill.Dec. 305, 463 N.E.2d at 862. Once a court order becomes final and appealable with the passage of 30 days, the court may not correct any question of fact or law (Johnson, 123 Ill.App.3d at 826-27, 79 Ill.Dec. 305, 463 N.E.2d at 862), supply any omitted judicial action, or correct any judicial error. (Ad-Ex, Inc. v. City of Chicago, 247 Ill.App.3d 97, 101, 187 Ill.Dec. 125, 617 N.E.2d 333, 336 (1993)). In other words, the court may not rule on matters of substance (Anderson v. Alberto-Culver USA, Inc., 337 Ill.App.3d 643, 662, 273 Ill.Dec. 404, 789 N.E.2d 304, 318 (2003)) or correct an alleged error involving the merits of a case (Moore v. Shook, 276 Ill. 47, 52, 114 N.E. 592, 594 (1916). Changes of this nature would effectively make the suit “`a new case.‘” Southland Corp. v. Village of Hoffman Estates, 130 Ill.App.2d 311, 315-16, 264 N.E.2d 451, 454 (1970) (quoting Sidney Z. Karasik, Jurisdiction of Trial Court After Notice of Appeal, 53 Ill. B.J. 30 (1964)). If, however, there is proper evidence of a clerical error, then the court may at any time use a nunc pro tunc order to correct the mistake. Johnson, 123 Ill.App.3d at 827, 79 Ill.Dec. 305, 463 N.E.2d at 862. A nunc pro tunc order reflects the reality of what occurred. Ad-Ex, 247 Ill.App.3d at 101, 187 Ill.Dec. 125, 617 N.E.2d at 335. The distinction between a judicial error and a clerical error “does not depend so much upon the source of the error as upon whether it was the deliberate result of judicial reasoning and determination [citation], as opposed to inadvertence in the ministerial matter of putting in form the judgment of the court [citation].” Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill.App.3d 1051, 1058, 35 Ill.Dec. 382, 399 N.E.2d 216, 222 (1979). The correction must be based on a note, memorandum, or paper remaining in the file or records of the court, rather than a personal recollection of the trial judge or some other person. Johnson, 123 Ill. App.3d at 827, 79 Ill.Dec. 305, 463 N.E.2d at 862; Fox v. Department of Revenue, 34 Ill.2d 358, 360, 215 N.E.2d 271, 272 (1966) (a nunc pro tunc entry cannot rest on a recollection, or on a new affidavit or testimony).
¶ 30 In Johnson, the bank argued the entry of judgment against the bank individually was “totally unsupported by any of the official records in the file and was an obvious clerical error in recording the judgment.” Johnson, 123 Ill.App.3d at 826, 79 Ill.Dec. 305, 463 N.E.2d at 861. A clerical error was properly corrected by nunc pro tunc order. The circuit court agreed after reviewing the court file in which the complaint, summons, alias summons, appearance, and answer all referred to the bank in its capacity as trustee; the only documents which referred to the bank individually were a memorandum of judgment which was neither signed nor stamped and the half-sheet which had been recreated by court personnel four years after the judgment date because the original case file had been lost. Johnson, 123 Ill.App.3d at 827-28, 79 Ill.Dec. 305, 463 N.E.2d at 862-63. The injured man took an appeal because Trust Number 205 had been closed when all the assets were taken in a condemnation proceeding and there was no trust property from which to collect his $5,000 judgment. Johnson, 123 Ill.App.3d at 825, 79 Ill.Dec. 305, 463 N.E.2d at 862. The appellate court, however, affirmed the decision to amend the half-sheet nunc pro tunc based on the contents of the court file. Johnson, 123 Ill.App.3d at 828, 79 Ill.Dec. 305, 463 N.E.2d at 863.
¶ 31 Similarly, in Dauderman, the plaintiff motioned to correct a divorce judgment which ordered one of the parties to pay “$400 as alimony” instead of $400 “per month” as the court had intended when it entered the initial order. Dauderman v. Dauderman, 130 Ill.App.2d 807, 263 N.E.2d 708 (1970). In affirming the order on appeal, the appellate court noted that the wording of the original divorce judgment “demonstrates that the words `per month’ were inadvertently omitted.” Dauderman, 130 Ill.App.2d at 809, 263 N.E.2d at 710.
¶ 32 Also pertinent here is Anderson, in which a fatal plane crash at Palwaukee Municipal Airport in 1996 resulted in claims against numerous defendants, including Aon Aviation, Inc., and Aon Corporation. Anderson, 337 Ill.App.3d at 646, 273 Ill.Dec. 404, 789 N.E.2d at 306. The court dismissed “Aon Corp.” as a party before the case went to a jury trial. Anderson, 337 Ill.App.3d at 660, 273 Ill. Dec. 404, 789 N.E.2d at 317. Transcripts indicated that during the jury instruction conference, counsel for the remaining parties agreed upon certain instructions regarding “Aon” without differentiating between the two Aon entities, counsel for the Aon defendants tendered instructions which listed the Aon defendants simply as Aon, and the trial judge remarked that the parties had been using the two names interchangeably throughout the trial and that the Aon defendants’ name had been shortened to Aon for the jury. Anderson, 337 Ill.App.3d at 658-59, 273 Ill.Dec. 404, 789 N.E.2d at 315. The jury returned a $19 million verdict against “Aon,” but the judge entered a judgment order stating the verdict had been returned against “Aon Corp.” Anderson, 337 Ill.App.3d at 659, 273 Ill.Dec. 404, 789 N.E.2d at 315-16. After the judgment became final and was on appeal, the judge entered nunc pro tunc orders to substitute Aon Aviation as judgment debtor and again dismiss Aon Corp. with prejudice and without costs. Anderson, 337 Ill.App.3d at 660, 273 Ill. Dec. 404, 789 N.E.2d at 316. The appellate court concluded the correction was proper, stating:
“Here, the * * * nunc pro tunc order was not a change of substance that would present a `new case’ to this court from the matter that was appealed. The Whitener Estate filed its complaint against both Aon corporate entities. Although the circuit court and parties to the case frequently referred to Aon defendants as `Aon’ throughout the trial and did not distinguish Aon Aviation from Aon Corp., the court already had dismissed Aon Corp. as a party prior to opening argument. The record shows the basis upon which the amendment was made. [Citation.] Therefore, upon modifying the [judgment] order, the court was not deciding a substantive issue because Aon Corp. was no longer a party. Liability was rendered upon Aon Aviation as the only remaining Aon corporate entity. The court here merely corrected a clerical error to reflect the proper name of the judgment debtor. [Citation.]” Anderson, 337 Ill.App.3d at 662, 273 Ill.Dec. 404, 789 N.E.2d at 318.
¶ 33 Given the facts disclosed by the record in this case, we find it necessary to remand so that the circuit court may determine whether a nunc pro tunc order referring to the appellant St. Alexius rather than Alexian Brothers is appropriate. However, if the circuit court determines that a nunc pro tunc order is unwarranted, the circuit court is directed to adjudicate the lien claim of St. Alexius anew.
¶ 34 In summary, we have found that section 30 of the Act, like section 10 of the Act, provides for written notice to be served by registered or certified mail or in person (
¶ 35 Affirmed in part; remanded in part with directions.
Presiding Justice EPSTEIN and Justice HOWSE concurred in the judgment and opinion.