{ "id": 5661055, "name": "LEROY NEUBERG et al., Plaintiffs-Appellants, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER et al., Defendants-Appellees", "name_abbreviation": "Neuberg v. Michael Reese Hospital & Medical Center", "decision_date": "1983-08-29", "docket_number": "Nos. 81\u20143160, 82\u201466 cons.", "first_page": "93", "last_page": "102", "citations": [ { "type": "official", "cite": "118 Ill. App. 3d 93" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "417 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045625 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0178-01" ] }, { "cite": "438 N.E.2d 620", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 841", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3019719 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0841-01" ] }, { "cite": "382 N.E.2d 1217", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "73 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440905 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/73/0113-01" ] }, { "cite": "409 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3180693 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0988-01" ] }, { "cite": "443 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2998336 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/1066-01" ] }, { "cite": "88 S. Ct. 165", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "19 L. Ed. 2d 157", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "389 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11380258, 11380518, 11380650, 11380588, 11380333, 11380761, 11380410, 11380699, 11380286, 11380447 ], "opinion_index": 0, "case_paths": [ "/us/389/0874-01", "/us/389/0874-06", "/us/389/0874-08", "/us/389/0874-07", "/us/389/0874-03", "/us/389/0874-10", "/us/389/0874-04", "/us/389/0874-09", "/us/389/0874-02", "/us/389/0874-05" ] }, { "cite": "223 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "79 Ill. App. 2d 479", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2563988 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0479-01" ] }, { "cite": "421 N.E.2d 278", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12125454 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0148-01" ] }, { "cite": "412 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5540979 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0544-01" ] }, { "cite": "415 N.E.2d 1260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5534302 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0292-01" ] }, { "cite": "440 N.E.2d 1066", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 627", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448234 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0627-01" ] }, { "cite": "398 N.E.2d 972", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5609073 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0726-01" ] }, { "cite": "417 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 1201", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "392 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3260733 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0863-01" ] }, { "cite": "420 N.E.2d 1055", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 1118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3117270 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/1118-01" ] }, { "cite": "431 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082867 ], "weight": 3, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0527-01" ] }, { "cite": "377 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3350257 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0679-01" ] } ], "analysis": { "cardinality": 834, "char_count": 21079, "ocr_confidence": 0.762, "pagerank": { "raw": 3.178324595510135e-07, "percentile": 0.8643583081484674 }, "sha256": "a1c20596d5054ecaeb7df292819e2f73a4f9827eab14a891560fd1ffe487df91", "simhash": "1:854ac0a4754fcdc5", "word_count": 3430 }, "last_updated": "2023-07-14T15:55:29.032579+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LEROY NEUBERG et al., Plaintiffs-Appellants, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McGLOON\ndelivered the opinion of the court:\nTonsil X-ray treatment was administered to plaintiffs\u2019 sons (Leland and Joel Neuberg) in 1947, prior to the discovery that tonsil radiation was linked to thyroid cancer. One son developed thyroid cancer and the other developed a nodule that was thought to be cancerous. The treatment allegedly caused plaintiffs to suffer \u201cgreat painful mental, psychological and emotional trauma as well as pain and worry over the present and future health of their sons.\u201d These consolidated appeals relate to actions filed by plaintiffs (Leroy and Sari Neuberg) in 1975 for intentional infliction of emotional distress and in 1980 for fraud.\nIn case No. 81 \u2014 3160, plaintiffs appeal the dismissal of their motion for rehearing whereby plaintiffs sought to vacate the court\u2019s prior order dismissing plaintiffs\u2019 amended section 72 petition.\nIn case No. 82 \u2014 66, plaintiffs appeal from the trial court\u2019s order of July 1, 1981, dismissing plaintiffs\u2019 action for fraud on res judicata grounds.\nWe affirm in part, reverse in part and remand.\nMichael Reese Hospital and Medical Center (Michael Reese) accepted Leland and Joel Neuberg as patients for treatment of tonsilitis in 1947. At that time, an X-ray treatment involving the application of radiation to the throat and neck areas was extensively used as an alternative to surgery for tonsilitis and lymphadenitis. The Neuberg boys received X-ray treatments to shrink the inflammation of their enlarged tonsils upon the recommendation of Dr. Philip Rosenblum, the boys\u2019 treating physician. Dr. Erich M. Uhlmann was the radiologist in charge of the X-ray treatments the boys received. Both doctors died prior to the filing of plaintiffs\u2019 complaint. Their respective estate representatives were joined and remain defendants-appellees in case No. 82-66.\nAlthough Drs. Arthur Rosenblum and Samuel J. Pearlman never treated the Neuberg children, they are named as party defendants in both actions. Dr. Rosenblum was a member of the Pediatrics Department at Michael Reese and an associate of Dr. Philip Rosenblum. Dr. Pearlman authored medical publications which advocated the use of X-ray treatments and was a member of the ear, nose, and throat department at Michael Reese.\nMichael Reese and Michael Reese Research Foundation are also named party defendants in both actions. Allegedly, the hospital and foundation failed to use reasonable diligence in employing the other named defendants, negligently used the X-ray radiation procedure as a treatment, and committed assaults on the Neuberg sons.\nLeland Neuberg developed cancer of the thyroid gland in 1962 and had to under a thyroidectomy and radical neck resection. In 1974, Joel Neuberg developed a nodule on his thyroid gland that was suspected of being cancerous.\nAs scientific evidence linking thyroid cancer to tonsil radiation became available, Michael Reese discontinued or reduced its use of the procedure. The proximate causal connection between radiation and cancer was acknowledged in 1975 when Michael Reese contacted former patients for re-examination.\nThe procedural history of this litigation is pertinent to the disposition of the issues raised.\nI\n(No. 81-3160)\nOn November 12, 1975, plaintiffs filed an action against defendants for intentional infliction of emotional distress. The emotional distress claim was based upon the allegation that plaintiffs suffered great emotional trauma over their sons\u2019 conditions. Plaintiffs\u2019 amended complaint, filed in 1976, included allegations that defendants were guilty of fraudulent concealment. On October 1, 1976, the trial court granted defendants\u2019 motion to dismiss plaintiffs\u2019 amended complaint on the ground that it failed to state a cause of action under Illinois law. Plaintiffs did not attempt to file a second amended complaint, but chose to appeal the dismissal. This court affirmed the trial court\u2019s dismissal of plaintiffs\u2019 complaint on May 22, 1978, holding that even given the most favorable inferences from plaintiffs\u2019 pleadings their complaint failed to state a cause of action of recovery. Neuberg v. Michael Reese Hospital (1978), 60 Ill. App. 3d 679, 377 N.E.2d 215.\nThereafter, plaintiffs did not file a petition for rehearing nor did they move for leave to appeal to the Illinois Supreme Court. Instead, plaintiffs sought leave to file a second amended complaint, which requested the same relief and attempted to allege the same cause of action as was alleged in their previously dismissed complaint on which plaintiffs stood through appeal. Plaintiffs\u2019 motion was denied on July 2, 1979.\nOn November 7, 1980, plaintiffs filed a section 72 petition in the circuit court requesting that the October 1, 1976, judgment of the circuit court and the May 22, 1978, judgment of this court be set aside. Defendants moved to dismiss the section 72 petition, alleging that (1) the trial court lacked jurisdiction to vacate the appellate court\u2019s decision; (2) the section 72 petition was filed more than two years after the entry of the relevant orders; and (3) the petition did not show due diligence or meritorious grounds for vacating the prior judgments. Defendants also moved for section 41 costs. Ill. Rev. Stat. 1981, ch. 110, par. 41.\nAfter several continuances, plaintiffs were granted leave to file an amended section 72 petition. Defendants moved to dismiss the amended petition.\nAfter a hearing on August 5, 1981, the trial court allowed defendants\u2019 motion and entered a final order dismissing the amended section 72 petition. The order included the express finding that \u201cThere is no just reason to delay enforcement or appeal.\u201d On September 2, 1981, plaintiffs filed a motion for rehearing or reconsideration requesting the circuit court to vacate its August 5, 1981, order dismissing plaintiffs\u2019 amended section 72 petition.\nFollowing a hearing on November 25, 1981, the trial court dismissed plaintiffs\u2019 motion for rehearing. On December 21, 1981, plaintiffs filed a notice of appeal from the order of August 5, 1981, dismissing their amended section 72 petition and the order of November 25,1981, dismissing their motion for rehearing.\nPlaintiffs first contend that the trial court misconstrued the nature of a section 72 petition. They specifically argue that their notice of appeal was timely filed since the motion for rehearing directed against the judgment denying their amended section 72 petition tolled the running of the 30-day period for filing plaintiffs\u2019 notice of appeal. We agree. See Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358.\nSupreme Court Rule 304(b)(3) (73 Ill. 2d R. 304(b)(3)) provides that \u201c[a] judgment or order granting or denying any of the relief prayed in a petition under section 72 of the Civil Practice Act ***\u201d is final and appealable. Rule 303(a) (73 Ill. 2d R. 303(a)) provides that timely notice of appeal must be filed within 30 days of the date on which the circuit court judgment becomes final.\nDefendants argue that by reading these statutory provisions together, it becomes clear that a party has 30 days from the denial of a section 72 petition within which to file a notice of appeal. Furthermore, they contend that the time for appeal is not tolled by the filing of a motion for rehearing. They cite In re Application of County Collector (1981), 95 Ill. App. 3d 1118, 420 N.E.2d 1055, and City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863, 392 N.E.2d 703, to support their contentions.\nHowever, the Illinois Supreme Court recently rejected this view in Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358. The defendant in Burnicka filed a section 72 petition seeking to vacate a default judgment entered against them. The petition was granted on October 31, 1979. Plaintiffs did not file a notice of appeal from the granting of defendant\u2019s section 72 petition, but within 30 days, they filed a motion to set aside that judgment. Their motion was denied on January 3, 1980. Within 30 days after the order of January 3, plaintiffs filed a notice of appeal from the judgments of' October 31, 1979 and January 3, 1980. The appellate court dismissed the appeal for want of jurisdiction. 89 Ill. App. 3d 1201, 417 N.E.2d 271.\nIn reversing the appellate court, the supreme court reiterated that a petition under section 72 is the filing of a new action. (See Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 398 N.E.2d 972.) The court concluded that the motion to set aside the judgment is a post-trial motion allowable under Rule 303(a) which sets\nthe 30-day limit for filing the notice of appeal from the entry of the final judgment\u201d *** or, if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the motion.\u201d 73 Ill. 2d R. 303(a).\nApplying the above reasoning, the court held:\n\u00ab*** pjf within 30 days of the grant or denial of a section 72 petition a post-trial motion directed against that judgment is filed, the motion will extend the time for filing a notice of appeal until 30 days after the order disposing of the motion is entered.\u201d Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 531, 431 N.E.2d 358, 361.)\nIn the instant case, plaintiffs\u2019 post-trial motion was filed within 30 days of the denial of their amended section 72 petition. As in Donnelley, it was the first such motion filed and therefore cannot be characterized as successive or repetitious. (See Burnicka, wherein the court stated that successive post-judgment motions will not be recognized.)\nApplying the holding in Burnicka to the instant case, we find that the trial court erred in dismissing plaintiffs\u2019 motion for rehearing on the grounds that it lacked jurisdiction over the matter. The judgment of the circuit court denying plaintiffs\u2019 motion for rehearing for lack of jurisdiction is reversed and the cause is remanded for consideration of the motion.\nII\n(No. 82-66)\nOn September 30, 1980, plaintiffs filed a complaint purporting to state a cause of action for fraud against defendants. Defendants moved to dismiss. On July 1, 1981, the trial court entered an order striking plaintiffs\u2019 complaint as to all defendants without leave to amend. It was further ordered that plaintiffs\u2019 action be dismissed entirely on the grounds of res judicata. Plaintiffs filed a petition for rehearing on July 29, 1981. After a hearing, the trial court reaffirmed its previous finding that the action was barred. The order was entered on December 11, 1981, and on December 31, 1981, plaintiffs filed their notice of appeal.\nThe issue presented by appeal in case No. 82 \u2014 66 is whether the trial court properly dismissed plaintiffs\u2019 complaint on grounds of res judicata. We conclude that it did.\nThe doctrine of res judicata bars a second adjudication where there is a former adjudication on the merits by a court of competent jurisdiction. (Yaw v. Beeghly (1982), 109 Ill. App. 3d 627, 440 N.E.2d 1066.) In order to invoke the bar of res judicata an identity of parties (or their privies), subject matter, and the cause of action must exist between the two actions. (O\u2019Neill v. DeLaney (1980), 92 Ill. App. 3d 292, 415 N.E.2d 1260.) When properly invoked the judgment in the former suit is conclusive not only as to all questions actually decided, but also as to all questions which could have been litigated in the action. Beeghly; Thornton v. Williams (1980), 89 Ill. App. 3d 544, 412 N.E.2d 157.\nThe dismissal of plaintiffs\u2019 amended complaint for failure to state a cause of action for intentional infliction of emotional distress was a final judgment upon the merits. (73 Ill. 2d R. 273.) The dismissal order was affirmed by this court. (Neuberg.) The filing of plaintiffs\u2019 section 72 petition does not affect the order or suspend its operation. Ill. Rev. Stat. 1981, ch. 110, par. 72(4).\nPlaintiffs further contend that the judgment in the 1975 action is not on the merits because the theory of recovery which they presented (intentional infliction of emotional distress upon nonimpacted third parties) was determined to be unavailable to them. The fact that the theory of recovery in the earlier action was held not to state a cause of action does not afford plaintiffs the right to bring a second action based upon a different theory. Even if different theories of recovery are sought, where the same facts are essential to the maintenance of either proceeding, there is identity between the causes of action and res judicata bars the latter action. (See Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278, and cases cited therein.) (Pratt v. Baker (1967), 79 Ill. App. 2d 479, 223 N.E.2d 865, cert. denied (1967), 389 U.S. 874, 19 L. Ed. 2d 157, 88 S. Ct. 165.) Having reviewed the pleadings in the two proceedings, we find that there is no material difference between the separate causes of action. The issues raised in both complaints relate to the X-ray treatments received by plaintiffs\u2019 sons and are grounded upon the same duties that defendants allegedly owed to plaintiffs. (Baker.) The evidence relied upon to establish fraud (the publicity and media pronouncements, the articles published in medical journals, and the recall program) is also relied upon to establish intentional infliction of emotional distress. Here, as in Morris all that has been substituted in the second lawsuit is a different theory of recovery.\nPlaintiffs\u2019 theory of recovery based upon fraud is no more than a substitution of labels. Moreover, allegations of fraudulent concealment are included in the complaint filed in 1975 as well as the one filed in 1980. To allow plaintiffs to avoid the bar of res judicata under such circumstances would undermine its very purpose.\nFinally, plaintiffs contend that the doctrine of res judicata was not properly invoked because the parties to the two actions are different. They argue that their complaint for fraud named the following additional defendants: the estate of Philip Rosenblum, the estate of Erich M. Uhlmann, Lionel Cohen, Martin Coleman and unknown members of the governing board of Michael Reese since 1947.\nThe estates of Drs. Philip Rosenblum and Erich M. Uhlmann were dismissed from the former action pursuant to a motion to quash prior to the time that plaintiffs\u2019 complaint was dismissed on the merits. Thereafter, plaintiffs made no efforts to bring the estates back into the case before the final order dismissing the amended complaint as to all other defendants was entered. To require the estates to defend a second action would be patently unfair since no person should be unnecessarily harassed with a multiplicity of lawsuits. (Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 443 N.E.2d 670; Bonanno v. LaSalle & Bureau County R.R. Co. (1980), 87 Ill. App. 3d 988, 409 N.E.2d 481.) Moreover, Dr. Philip Rosenblum was an associate in the pediatric practice of Dr. Arthur Rosenblum, a named defendant. Therefore, the estate was in privity with Dr. Arthur M. Rosenblum for the purpose of applying the doctrine of res judicata. {Bonanno.) Accordingly, the judgment dismissing plaintiffs\u2019 first action against Dr. Arthur M. Rosenblum also bars a subsequent action against the estate of Philip Rosenblum.\nLikewise, Dr. Uhlmann, Dr. Coleman and Dr. Cohen are alleged to have been agents or employees of Michael Reese. This is also true with respect to the unknown members of Michael Reese\u2019s governing boards since 1947. It is well established that a claim against an employee predicated on the same acts which form the basis of liability of an employer will be barred when a prior judgment bars a subsequent action against the employer. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217; Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 438 N.E.2d 620; Bonanno.) The operative facts which would establish liability on the part of Michael Reese are identical to those which indicate its employees liability. We find that plaintiffs attempt to name additional defendants to avoid the applicability of the doctrine of res judicata is without legal effect.\nFinally, we must address the issues raised by defendants in their cross-appeal concerning the trial court\u2019s denial of their motion for costs and attorney fees. At various stages of this litigation, defendants filed motions for costs and attorney fees pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41).\nOn June 25, 1981, and June 30, 1981, hearings were held on defendants\u2019 motions. After the hearings, the trial court entered an order dismissing plaintiffs\u2019 1980 complaint for fraud on the grounds of res judicata. On July 1, 1981, the court also entered an order denying defendants\u2019 section 41 motion for expenses incurred with respect to defending the action for fraud.\nThereafter, plaintiffs filed a petition for rehearing seeking to set aside the court\u2019s order striking their complaint. On September 22, 1981, defendants filed a response to the petition. They also filed a second section 41 motion for costs and attorney fees. Although the court held an extensive hearing on plaintiffs\u2019 petition for rehearing, defendants\u2019 second motion for costs was not considered.\nOn cross-appeal, defendants contend that the trial court erred in denying their motion for costs on July 1, 1981. They argue that plaintiffs persisted in this litigation in bad faith, without reasonable cause and for the purpose of harassment.\nSection 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41) provides in part:\n\u201cAllegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney\u2019s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.\u201d\nThe granting or denial of penalties under section 41 rests within the sound discretion of the trial court and will not be overturned absent a clear showing that the court abused its discretion. Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297.\nIn the instant case, the trial court determined that plaintiffs\u2019 action for fraud was brought without good cause and constituted harassment. However, the court held that plaintiffs\u2019 allegations were not found to be untrue and denied defendants\u2019 motions. We have examined the record and found nothing to indicate that the trial court abused its discretion. We hold that the trial court\u2019s order of July 1, 1981, denying defendants\u2019 motion for expenses was proper.\nHowever, we agree with defendants\u2019 contention that they are entitled to a hearing on their second section 41 motion for costs filed on September 22, 1981, in response to plaintiffs\u2019 petition for rehearing. The fact that no hearing was held thereon is evidenced by the court\u2019s order of December 11,1981, which stated:\n\u201cThis Court makes no additional finding on the requests of various defendants for costs and attorneys\u2019 fees, this matter having been argued only in defendants\u2019 response to plaintiffs\u2019 Petition for Rehearing and having been denied in the order of June 30,1981.\u201d\nIn Pole Realty Co. v. Sorrells, the Illinois Supreme Court held that a movant is entitled to a hearing on whether to permit penalties under section 41 prior to the trial court\u2019s denial of its motion. Accordingly, we remand this matter to the trial court for a hearing on defendants\u2019 second section 41 motion.\nFor the reasons stated, we reverse the circuit court\u2019s judgment denying plaintiffs\u2019 motion for rehearing in case No. 81 \u2014 3160. In case No. 82 \u2014 66: (1) we affirm that part of the court\u2019s judgment dismissing the second action on res judicata grounds; (2) we affirm that part of the court\u2019s judgment denying defendants\u2019 section 41 costs; and (3) we reverse the court\u2019s judgment insofar as it denied defendants\u2019 section 41 costs (filed in response to plaintiffs\u2019 petition for rehearing), without a hearing. The causes are remanded to the circuit court of Cook County for further proceedings consistent with this opinion.\nCase No. 81 \u2014 3160, reversed and remanded.\nCase No. 82 \u2014 66, affirmed in part, reversed and remanded in part.\nBUCKLEY, P.J., and CAMPBELL, J., concur.\nA separate suit on behalf of plaintiffs\u2019 sons was filed in Federal court and is still pending there.", "type": "majority", "author": "JUSTICE McGLOON" } ], "attorneys": [ "Charles E. Adler, of Law Offices of Joseph I. Adler, of Chicago, for appellants.", "Lord, Bissell & Brook, of Chicago, for appellees Michael Reese Hospital and Medical Center and Michael Reese Research Foundation.", "Wildman, Harrold, Allen & Dixon, of Chicago, for appellee Samuel J. Pearlman.", "Pretzel & Stouffer Chartered, of Chicago, for appellees Executors of the Estate of Philip Rosenblum." ], "corrections": "", "head_matter": "LEROY NEUBERG et al., Plaintiffs-Appellants, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER et al., Defendants-Appellees.\nFirst District (1st Division)\nNos. 81\u20143160, 82\u201466 cons.\nOpinion filed August 29, 1983.\nRehearing denied October 17, 1983.\nCharles E. Adler, of Law Offices of Joseph I. Adler, of Chicago, for appellants.\nLord, Bissell & Brook, of Chicago, for appellees Michael Reese Hospital and Medical Center and Michael Reese Research Foundation.\nWildman, Harrold, Allen & Dixon, of Chicago, for appellee Samuel J. Pearlman.\nPretzel & Stouffer Chartered, of Chicago, for appellees Executors of the Estate of Philip Rosenblum." }, "file_name": "0093-01", "first_page_order": 115, "last_page_order": 124 }