{ "id": 3277864, "name": "DENNIS R. MIZELL, Appellant, v. THOMAS C. PASSO, M.D., Appellee", "name_abbreviation": "Mizell v. Passo", "decision_date": "1992-03-19", "docket_number": "No. 69766", "first_page": "420", "last_page": "430", "citations": [ { "type": "official", "cite": "147 Ill. 2d 420" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "127 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564244 ], "weight": 3, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0122-01" ] }, { "cite": "192 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507554 ], "weight": 3, "pin_cites": [ { "page": "442-43", "parenthetical": "McCullough, J., dissenting" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0435-01" ] }, { "cite": "207 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2555640 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0601-01" ] }, { "cite": "178 Ill. App. 3d 938", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433256 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0938-01" ] }, { "cite": "136 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3565231 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0793-01" ] }, { "cite": "154 Ill. App. 3d 881", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3647095 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0881-01" ] }, { "cite": "56 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404489 ], "weight": 2, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0560-01" ] }, { "cite": "30 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827026 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0178-01" ] }, { "cite": "127 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564244 ], "weight": 2, "pin_cites": [ { "page": "138" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/127/0122-01" ] }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "opinion_index": 1, "case_paths": [ "/ill-2d/147/0057-01" ] }, { "cite": "147 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278173 ], "opinion_index": 1, "case_paths": [ "/ill-2d/147/0084-01" ] } ], "analysis": { "cardinality": 672, "char_count": 17331, "ocr_confidence": 0.787, "pagerank": { "raw": 1.7344377831219116e-07, "percentile": 0.7060145205376839 }, "sha256": "4eff6dc33ed11f21dabccff59c4d914d05271e1d0abff0aa4fe799bbac4fb610", "simhash": "1:878b5ea4c6441da5", "word_count": 2882 }, "last_updated": "2023-07-14T21:35:32.347949+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DENNIS R. MIZELL, Appellant, v. THOMAS C. PASSO, M.D., Appellee." ], "opinions": [ { "text": "JUSTICE CUNNINGHAM\ndelivered the opinion of the court:\nOn May 27, 1988, plaintiff, Dennis R. Mizell, filed a healing art malpractice action in the circuit court of Vermilion County against defendant, Thomas C. Passo, M.D. Attached to the complaint was an affidavit of plaintiff\u2019s attorney stating that plaintiff had been unable to obtain the written report of a reviewing health professional as required by section 2 \u2014 622(a)(1) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 622(a)(1)).\nOn July 11, 1988, plaintiff filed a motion to waive the section 2 \u2014 622 requirement. In his motion, plaintiff requested that the court relieve him from complying with section 2 \u2014 622 or, in the alternative, allow him to procure the required affidavit within 90 days of the date of denial of the motion. At the same time, plaintiff sent a notice of hearing for August 19, 1988, and a notice of deposition of defendant to take place on August 24, 1988.\nOn August 15, 1988, defendant filed a motion for protective order, requesting that the court stay discovery until plaintiff complied with section 2 \u2014 622. Defendant also sent a notice of hearing for August 19, 1988. On August 18, 1988, defendant filed a response to plaintiff\u2019s motion to waive section 2 \u2014 622, maintaining that the affidavit and report requirements of section 2 \u2014 622 are mandatory and cannot be waived.\nOn August 19, 1988, the parties appeared at the hearing as scheduled. The docket entry made at that time indicates that the court denied plaintiff\u2019s motion to waive section 2 \u2014 622, but allowed an additional 90 days to procure the report. The court also entered an order staying discovery until plaintiff filed the report.\nOn November 18, 1988, plaintiff filed a motion for continuance to obtain a written report to attach to the affidavit demonstrating that plaintiff\u2019s attorney had consulted with a reviewing health professional about plaintiff\u2019s case. Plaintiff, however, did not request a hearing on the motion at that time.\nOn February 15, 1989, defendant filed a motion for judgment and sent a notice of hearing on that motion, showing that a hearing was scheduled on February 22, 1989. In that motion, defendant prayed for relief based on plaintiff\u2019s failure to comply with section 2 \u2014 622. A revised notice of hearing on the motion was sent by defendant, rescheduling the hearing on defendant\u2019s motion for March 14,1989.\nOn March 10, 1989, plaintiff sent a notice of hearing for March 14, 1989, on plaintiff\u2019s motion for a continuance to obtain a written report to attach to the affidavit.\nOn March 14, 1989, plaintiff\u2019s attorney filed a second affidavit in which he stated that he had spoken with a reviewing health professional who was willing and able to provide a written report. Also on March 14, plaintiff filed a written motion for voluntary dismissal pursuant to section 2 \u2014 1009 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1009).\nAt the March 14, 1989, hearing, the court initially stated that the hearing concerned defendant\u2019s motion for judgment. Plaintiff then called to the court\u2019s attention the notice for hearing on the motion for a continuance to obtain a written report to attach to the affidavit, and asked that this motion be heard first. Defendant objected to hearing plaintiff\u2019s motion, citing Rule IV of the Uniform Rules of Practice Governing Civil Cases of the Fifth Judicial Circuit of Illinois (Rules of Practice of the Circuit Court, Fifth Judicial Circuit, Rule IV, at 7-9 (1977)) (Rule IV). Defendant argued that plaintiff violated Rule IV by failing to give defendant sufficient notice of the hearing and by failing to call the motion for a hearing within 90 days of its being filed. Plaintiff responded to this objection by stating that if the court did not elect to hear his motion for a continuance, he would ask the court to hear his motion for voluntary dismissal pursuant to section 2 \u2014 1009 of the Code.\nThe court decided to hear arguments on plaintiff\u2019s motion for a continuance to obtain a written report, and the motion was denied. Plaintiff then tendered his motion for voluntary dismissal. Defendant\u2019s attorneys requested a short recess so that they could read the motion and consult with each other. Defendant objected on the following grounds: (1) that Rule IV had been violated, (2) that section 2 \u2014 1009 of the Code had been violated as there had been no tender of costs, and (3) that-under Gibellina v. Handley (1989), 127 Ill. 2d 122, defendant\u2019s motion for judgment must be heard prior to plaintiff\u2019s motion for voluntary dismissal.\nThe trial court allowed plaintiff\u2019s motion to voluntarily dismiss upon the payment of costs. The court\u2019s written order of May 9,1989, stated in part:\n\u201cThe Court finds that the Motion for Judgment is not a Motion for Summary Judgment as was the case in the causes before the Court in Gibellina.\nThe Court exercises its discretion to decline to hear the Motion for Judgment prior to the Plaintiff\u2019s Motion for Voluntary Dismissal. The Court finds that Gibellina, which was a Summary Judgment case, does not mandate that the Court must proceed to hearing on such a Motion but allows the trial Court to hear such a Motion if in the Court\u2019s discretion it is appropriate.\u201d\nOn appeal, defendant asserted that the trial court committed reversible error when it failed to follow the requirements of Gibellina. The appellate court majority stated that upon review of the record, it was not clear that the trial court understood that it had discretion to hear defendant\u2019s previously filed motion for judgment before hearing plaintiff\u2019s motion for voluntary dismissal. Stressing the importance that the trial court adequately understand its discretionary authority, the panel vacated the trial court\u2019s order granting plaintiff\u2019s motion for voluntary dismissal and remanded for further proceedings. The majority stated that on remand, the trial court should take into account the concerns underlying Gibellina as it exercised its discretion in choosing which motion to hear first. 192 Ill. App. 3d 435.\nIn dissent, Justice McCullough stated that the trial court did exercise its discretion in granting plaintiff\u2019s motion for voluntary dismissal and, thus, he did not see sufficient justification for reversing the trial court. 192 Ill. App. 3d at 442-43 (McCullough, J., dissenting).\nPlaintiff\u2019s petition for leave to appeal to this court was allowed pursuant to Rule 315 (134 Ill. 2d R. 315).\nWe agree with the appellate court dissent and hold that the trial court did exercise its discretion as indicated in its order of May 9, 1989.\nThe crux of this appeal is the interpretation of Gibellina v. Handley (1989), 127 Ill. 2d 122. The appellate court correctly indicated that in Gibellina this court found it necessary to modify its previous constructions of the voluntary dismissal statute (section 2 \u2014 1009 of the Code), because of abuses in the use of that statute. The appellate court further stated correctly that in Gibellina this court made clear it did not intend to limit a plaintiff\u2019s unfettered right to voluntarily dismiss prior to the filing of a dispositive motion by defendant, but emphasized that an increasing number of plaintiffs were using section 2 \u2014 1009 motions to avoid potential decisions on the \u201cmerits\u201d of their cases. Thus, the appellate court stated, this court held that the trial court had the discretion to decide whether to hear a previously filed dispositive motion.\nThe appellate court is correct in its evaluation of Gibellina, wherein the court stated:\n\u201c[T]he trial court may hear and decide a motion which has been filed prior to a section 2 \u2014 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.\u201d (Emphasis in original.) Gibellina, 127 Ill. 2d at 138.\nBy use of the permissive language \u201cmay hear,\u201d this court did indeed intend to give the trial court the discretion to hear and rule upon a motion that could dispose of the case prior to hearing a plaintiff\u2019s voluntary dismissal motion. By endowing the trial court with such discretion, the court intended to strike a balance between the legislative grant to plaintiffs of an \u201cunfettered right to voluntarily dismiss\u201d and the abuse which that unfettered right has engendered from some plaintiffs.\nIn Gibellina, this court did not establish a set of guidelines detailing when a plaintiff has abused the process such that a trial court is compelled to hear and allow a dispositive defense motion, nor did this court indicate what motions are potentially dispositive. Rather, the court intentionally left such matters to the discretion of the trial court and did not intend to tamper with that discretion unless it can be shown that the trial court has abused its discretion. Schoon v. Hill (1990), 207 Ill. App. 3d 601; In re Estate of Wiese (1989), 178 Ill. App. 3d 938.\nAn abuse of discretion occurs where the court\u2019s decision is against the manifest weight of the evidence such that no reasonable person could take the view adopted by the trial court. (Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793; In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881.) Plaintiff\u2019s attorney had filed a second affidavit in which he stated that he had spoken with a reviewing health professional who was willing and able to provide a written report,. but the health professional had not yet done so. It was reasonable for the trial court to have decided not to allow the motion for continuance because of plaintiff\u2019s previous delay in not obtaining the written report. A reasonable trial court could also have decided to force the plaintiff to use his unfettered right to a voluntary dismissal in order to pursue his claim, in light of the previous delays. Another possibility is that the trial court saw the absent report as a procedural requirement which should not entitle the plaintiff to unending delay but should also not be used to prevent the plaintiff from having his \u201cday in court.\u201d There are very likely other reasonable possibilities. In this case, the trial court did not act unreasonably and, hence, we do not find an abuse of discretion.\nThe appellate court indicated that upon reviewing the record, it was not clear that the trial court understood its discretion under Gibellina. (192 Ill. App. 3d at 441.) At the March 14, 1989, hearing, the trial court stated the following:\n\u201cThis Court will allow the motion for voluntary dismissal to be heard, based upon the fact that this is not a motion for summary judgment. I don\u2019t believe that the intent of the Supreme Court was to deny an opportunity for full discovery, and essentially a full opportunity to produce all of the facts. If this were a motion for summary judgment, I would follow Gibellina to the letter and not allow a motion for voluntary dismissal. I will, under these circumstances, on the basis of the motion for judgment ***.\u201d\nAdmittedly, these statements by the trial court could be interpreted as the appellate court interpreted them\u2014 that the trial court thought that the dispositive motion had to be a summary judgment motion, as it was in Gibellina, which was clearly not the case. Rather than speculate on the meaning of the court\u2019s somewhat ambiguous statements at the March 14, 1989, hearing, we rely on the court\u2019s written order of May 9, 1989, for guidance:\n\u201cThe Court finds that the Motion for Judgment is not a Motion for Summary Judgment as was the case in the causes before the Court in Gibellina.\nThe Court exercises its discretion to decline to hear the Motion for Judgment prior to the Plaintiff\u2019s Motion for Voluntary Dismissal. The Court finds that Gibellina, which was a Summary Judgment case, does not mandate ' that the Court must proceed to hearing on such a Motion but allows the trial Court to hear such a Motion if in the Court\u2019s discretion it is appropriate.\u201d\nFrom the above language, the only possible confusion one could point to on the part of the trial court is that it may have thought Gibellina mandated a hearing on a summary judgment motion prior to hearing a motion for voluntary dismissal. However, to conclude that the trial court did not understand it had discretion when it used the phrase \u201cexercises its discretion\u201d is, we believe, error. The trial court clearly understood it had discretion in the case at hand. Furthermore, we are not convinced that the trial court thought it did not have discretion regarding a motion for summary judgment under Gibellina. It may well be that the trial court was simply indicating that it would have viewed the plaintiff\u2019s delay in a different light had a valid summary judgment motion been involved and, in such a case, may have exercised its discretion differently.\nThe appellate court relied on People v. Queen (1974), 56 Ill. 2d 560, to support its position regarding the trial court\u2019s exercise of discretion. Such reliance is misplaced. Queen indicates that error is committed when a trial court refuses to exercise discretion due to the incorrect belief that it has no discretion as to the question presented. (Queen, 56 Ill. 2d at 565, citing People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178.) Here, the trial court did not refuse to exercise its discretion and Queen is thus inapposite.\nDefendant also argues that the plaintiff failed to comply with the section 2 \u2014 1009 provisions requiring notice and payment of costs. Plaintiff filed his motion for voluntary dismissal immediately after his motion for continuance was denied and, therefore, without notice. While we agree defendant should have been notified of plaintiff\u2019s voluntary dismissal motion prior to the court\u2019s ruling thereon, we do not see that the defendant was prejudiced by the trial judge\u2019s decision to hear the motion at that time. While in no way condoning plaintiff\u2019s lack of notice, we note from the record that plaintiff\u2019s attorney stated he did mention to defendant\u2019s attorneys that he would be tendering a motion for voluntary dismissal in the event the court denied his motion for continuance.\nSince the trial judge had the discretion to hear the motion for voluntary dismissal prior to the defendant\u2019s motion for judgment, the alternative to hearing plaintiff\u2019s motion instanter would have been to set both motions for a later date, thereby inconveniencing all parties. We further note that although defendant did object to the court\u2019s hearing plaintiff\u2019s section 2 \u2014 1009 motion, he did not request a continuance to allow him more time to prepare. Defendant was given a short recess to prepare and was thereafter allowed to present his argument against the motion. Thus, we fail to see that defendant was prejudiced in this case. Similarly, with regard to payment of costs, since plaintiff agreed to pay the costs and the trial court\u2019s order included a provision for plaintiff to pay defendant\u2019s costs upon presentation of same, we find no prejudice to the defendant.\nWe reiterate that under Gibellina, only a showing that the trial court abused its discretion to hear and decide a potentially dispositive motion prior to a section 2 \u2014 1009 motion will be grounds for reversing the trial court judgment. Accordingly, the judgment of the circuit court of Vermilion County is affirmed, and the judgment of the appellate court is reversed.\nAppellate court reversed; circuit court affirmed.", "type": "majority", "author": "JUSTICE CUNNINGHAM" }, { "text": "JUSTICE CLARK,\nspecially concurring:\nI write this special concurrence not to disagree with my colleague Justice Cunningham\u2019s interpretation of Gibellina v. Handley (1989), 127 Ill. 2d 122, which I authored, but to again express my strong belief that section 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622) is unconstitutional.\nAs the majority opinion aptly notes, \u201cthe crux of this appeal\u201d is the interpretation of Gibellina. (See 147 Ill. 2d at 424.) The majority opinion correctly holds that in Gibellina, this court intended to give the trial court the discretion to hear and decide a motion which has been filed prior to a section 2 \u2014 1009 motion for voluntary dismissal when that motion, if favorably ruled on by the court, could result in a final disposition of the case. See Gibellina, 127 Ill. 2d at 138.\nNonetheless, section 2 \u2014 622 is also involved in this appeal, for it is plaintiff\u2019s failure to comply with that code section which ultimately provoked the Gibellina issue. Consequently, I feel I must reiterate my conviction that section 2 \u2014 622 is unconstitutional in that it violates the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a71). See DeLuna v. St. Elizabeth\u2019s Hospital (1992), 147 Ill. 2d 57 (Clark, J., dissenting); McAlister v. Schick (1992), 147 Ill. 2d 84 (Clark, J.,. joined by Bilandic and Freeman, JJ., dissenting).\nJUSTICES BILANDIC and FREEMAN join in this special concurrence.", "type": "concurrence", "author": "JUSTICE CLARK," } ], "attorneys": [ "James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, of Champaign, for appellant.", "Richard F. Record, Jr., and Richard C. Hayden, of Craig & Craig, of Mattoon, and Todd M. Tennant and Mark D. Henss, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee." ], "corrections": "", "head_matter": "(No. 69766.\nDENNIS R. MIZELL, Appellant, v. THOMAS C. PASSO, M.D., Appellee.\nOpinion filed March 19, 1992.\nCLARK, J., joined by BILANDIC and FREEMAN, JJ., specially concurring.\nJames A. Martinkus, of Erwin, Martinkus, Cole & Ansel, of Champaign, for appellant.\nRichard F. Record, Jr., and Richard C. Hayden, of Craig & Craig, of Mattoon, and Todd M. Tennant and Mark D. Henss, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee." }, "file_name": "0420-01", "first_page_order": 430, "last_page_order": 440 }