{ "id": 5422091, "name": "VALORIE KLEIMAN et al., Plaintiffs-Appellants, v. NORTHWESTERN MEMORIAL HOSPITAL et al., Defendants (Richard Depp, Defendant-Appellee)", "name_abbreviation": "Kleiman v. Northwestern Memorial Hospital", "decision_date": "1993-09-03", "docket_number": "No. 1\u201492\u20142856", "first_page": "47", "last_page": "53", "citations": [ { "type": "official", "cite": "253 Ill. App. 3d 47" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "409 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 881", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3182194 ], "pin_cites": [ { "page": "884" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0881-01" ] }, { "cite": "487 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 58", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532046 ], "weight": 2, "pin_cites": [ { "page": "61-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0058-01" ] }, { "cite": "478 N.E.2d 1338", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138974 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0487-01" ] }, { "cite": "449 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "96 Ill. 2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113828 ], "year": 1985, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0110-01" ] }, { "cite": "611 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155660 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "940" }, { "page": "940-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0937-01" ] }, { "cite": "472 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147125 ], "weight": 4, "pin_cites": [ { "page": "306" }, { "page": "305-06" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0302-01" ] }, { "cite": "581 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 5", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794833 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "9" }, { "page": "9-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0005-01" ] }, { "cite": "468 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3155977 ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0497-01" ] }, { "cite": "435 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "91 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091554 ], "weight": 2, "pin_cites": [ { "page": "111-12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0108-01" ] } ], "analysis": { "cardinality": 651, "char_count": 14857, "ocr_confidence": 0.769, "pagerank": { "raw": 1.1115497643501538e-07, "percentile": 0.5708201520629195 }, "sha256": "227c5c30b350007483d0b94576cf8350d928c2f05e3310bb0c0f0704e2915500", "simhash": "1:a32b10b6a526afe7", "word_count": 2444 }, "last_updated": "2023-07-14T15:28:32.530889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VALORIE KLEIMAN et al., Plaintiffs-Appellants, v. NORTHWESTERN MEMORIAL HOSPITAL et al., Defendants (Richard Depp, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nThis appeal derives from the granting of a dismissal to the defendant, Richard Depp, M.D. (Depp), pursuant to a motion brought under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)).\nThe facts relevant to this appeal are as follows.\nOn October 8, 1987, plaintiffs filed a medical malpractice complaint alleging that Valorie Kleiman suffered an intracranial hemorrhage, and consequential disability and disfigurement, as a result of the defendants\u2019 negligence, while hospitalized in Northwestern Hospital\u2019s high risk obstetric and gynecological unit. Plaintiffs alleged Depp failed to supervise Valorie\u2019s pregnancy, inappropriately used the drug Syntocin and failed to recognize and properly treat a complication. Scott and Matthew limited their claims to loss of consortium and loss of society, respectively.\nA summons was issued to Depp on the same date the complaint was filed. On November 13, 1987, a return of service was filed that disclosed service upon Depp on October 21, 1987. The return of service was prepared by the sheriff of Philadelphia County, Pennsylvania, and stated that service had been effected against Depp on October 21, 1987, at 11:45 a.m. \u201cby delivering to and leaving with L. Pezzetti, receptionist personally a true attest copy of the said Summons nad [sic] Complaint.\u201d\nOn July 19, 1988, Depp filed a special and limited appearance. No pleading or affidavit was attached to this appearance.\nOn September 21, 1989, plaintiffs filed a motion to strike appearance contending that the special and limited appearance had not been filed in conformity with section 2 \u2014 301(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 301(b)), since no affidavit had been attached setting forth the reasons for the jurisdictional objection. Plaintiffs further alleged that not only had Depp taken no further action contesting jurisdiction, but in addition, Depp\u2019s attorney had engaged in discovery, including attending the depositions of Valorie and Scott Kleiman, thereby waiving any jurisdictional objection.\nOn October 6, 1989, Depp filed a response to the motion to strike the appearance and a motion to quash the October 1987 service. The motion to quash recited that service was invalid; Depp had not been served personally, nor had there been service on a family member. The motion further stated that Depp\u2019s attorney also represented two other defendants in the case and that Depp\u2019s counsel had entered general appearances on their behalf. Exhibits attached to the motion listed an attorney for Depp appearing at the Kleiman depositions \u201cpursuant to a special and limited appearance.\u201d\nThe plaintiffs\u2019 response argued that in order for Depp to attack the in personam, jurisdiction of the court, he must file a special and limited appearance along with the appropriate motion to quash service. Attached to the plaintiffs\u2019 response were pages from the Kleiman depositions in which the attorney for Depp asked questions of the witnesses regarding Depp\u2019s care of Valorie. Plaintiffs asserted that this participation waived any objection to jurisdiction.\nIn his reply, Depp asserted that the service error was so blatant that it was not necessary for an affidavit to accompany the special and limited appearance. Regarding any alleged waiver, Depp stated that the questions asked by his attorney at the depositions related to other defendants also represented by that attorney.\nOn November 28, 1989, the motion to strike was denied, while the motion to quash was granted, with language stating, \u201cleave to issue an alias summons is allowed.\u201d Depp was served on March 20,1990.\nOn April 12, 1990, a general appearance was filed on behalf of Depp. On April 17, 1990, Depp filed a motion to dismiss pursuant to Supreme Court Rule 103(b). (134 Ill. 2d R. 103(b).) The motion to dismiss contended that since Depp was not properly served until more than two years after the lawsuit was filed, and the statute of limitations had run, due diligence had not been exercised by the plaintiffs. On August 6, 1990, the motion to dismiss was granted with prejudice as to the adult plaintiffs, Valorie and Scott, and without prejudice regarding the minor plaintiff, Matthew.\nA motion for rehearing was brought with regard to the August 6, 1990, order and, on December 14, 1990, the trial court issued a memorandum and order denying the motion.\nDiscovery and other ancillary matters continued with regard to the other defendants. On the motion of the plaintiffs, an order was entered on July 17, 1992, granting a voluntary nonsuit as to the remaining defendants. The order was entered \u201cwithout prejudice\u201d pursuant to section 2 \u2014 1009 of the Illinois Code of Civil Procedure. See Ill. Rev. Stat. 1991, ch. 110, par. 2-1009.\nPlaintiffs filed a notice of appeal on August 14, 1992, appealing the following orders: (1) the August 6, 1990, order granting Depp\u2019s motion to dismiss; (2) the December 14, 1990, order denying plaintiffs\u2019 motion for reconsideration; and (3) the July 17, 1992, order \u201crendering as final the foregoing Orders.\u201d On August 25, 1992, Depp moved in this court to dismiss plaintiffs\u2019 appeal asserting that, inasmuch as plaintiffs sought review of nonappealable orders, this court lacked jurisdiction to entertain this appeal. Depp\u2019s motion to dismiss was taken with the appeal.\nOn July 15, 1993, plaintiffs Valorie and Scott Kleiman refiled a four-count complaint against the hospital, Nosek and Hoffman. As in their original complaint, plaintiffs assert claims grounded in negligence and loss of consortium. On August 6, 1993, Depp filed a motion to reconsider this court\u2019s prior order postponing disposition of Depp\u2019s motion to dismiss the appeal. Depp argues that the refiling of plaintiffs\u2019 complaint results in two cases (one in the appellate court and one in the circuit court) arising out of the same operative facts and asserting the same claims, and thus, the maintenance of plaintiffs\u2019 appeal under these circumstances violates the letter of Supreme Court Rule 304(a), which was promulgated to prevent piecemeal appeals from interlocutory rulings. Depp further argues if the fact that plaintiffs voluntarily dismissed the remaining defendants had, at one time, persuaded the court that final, appealable orders existed, then the refiling of plaintiffs\u2019 claim against those same defendants now renders that conclusion incorrect. This motion was also taken with the appeal.\nIn light of the July 15, 1993, refiling of plaintiffs\u2019 complaint, for the following reasons we must dismiss plaintiffs\u2019 appeal for want of a nonfinal order and for want of jurisdiction to hear the merits of plaintiffs\u2019 appeal.\nSubject to exceptions for appeals from interlocutory orders specified in the rules, the appellate court\u2019s jurisdiction is limited to review of final orders of a trial court. Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.\nSupreme Court Rule 304(a) provides in relevant part:\n\u201cIf multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the *** parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.\u201d (134 Ill. 2d R. 304(a).)\nAbsent the requisite finding that \u201cthere is no just reason to delay appeal,\u201d a judgment that disposes of fewer than all of the claims presented is not appealable. (Schlessinger v. Olsen (1984), 102 Ill. 2d 497, 468 N.E.2d 1158.) Neither the August 6, 1990, order, nor the December 14, 1990, order contains Rule 304(a) language. Moreover, the August 6, 1990, order preserves Matthew\u2019s ability to refile against Depp in the future, as the motion to dismiss was granted \u201cwithout prejudice\u201d as to Matthew.\nSection 2 \u2014 1009 provides that the plaintiff may voluntarily dismiss the case without prejudice \u201cat any time before trial or hearing begins.\u201d (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1009.) Section 13\u2014 217 allows the plaintiff the absolute right to refile the case within one year of a voluntary dismissal without prejudice. (Ill. Rev. Stat. 1989, ch. 110, par. 13 \u2014 217.) As a general rule a plaintiff cannot appeal an order of voluntary dismissal. (Edward E. Gillen Co. v. City of Lake Forest (1991), 221 Ill. App. 3d 5, 581 N.E.2d 739; see also Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.) This is so because \u201cthe plaintiff *** requested the order and thus is protected from prejudice by the statute of limitations which gives the plaintiff the absolute right to refile the action within one year of a voluntary dismissal without prejudice.\u201d (Edward E. Gillen Co., 221 Ill. App. 3d at 9; see also Ill. Rev. Stat. 1989, ch. 110, par. 13 \u2014 217; Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.) However, the defendant may have the right to appeal an order of voluntary dismissal, because the defendant\u2019s rights may have been prejudiced by the plaintiff\u2019s voluntary dismissal, and a defendant has no recourse unless he can appeal. Kahle, 104 Ill. 2d at 306, 472 N.E.2d at 789.\nIn Edward E. Gillen Co. v. City of Lake Forest (1991), 221 Ill. App. 3d 5, 581 N.E.2d 739, the appellate court held that a voluntary dismissal pursuant to section 2 \u2014 1009 is a final and appealable order and that the reviewing court had jurisdiction to consider the merits of the appeal. The appellate court found that until the trial court entered the order for voluntary dismissal, plaintiff could not have appealed the dismissal of count IX of its amended complaint or the judgment on the pleadings as to certain damages, absent a finding pursuant to Rule 304(a). The court held the order voluntarily dismissing the remaining counts of the complaint disposed of all matters pending before the trial court concerning the plaintiff\u2019s cause of action. Thus, the previous orders became final and appealable at that time, and, accordingly, the appellate court had jurisdiction to hear the appeal. Gillen, 221 Ill. App. 3d at 9-10.\nIn Howard v. Druckemiller (1992), 238 Ill. App. 3d 937, 940, 611 N.E.2d 1, the reviewing court acknowledged the holdings in Flores v. Dugan (1982), 91 Ill. 2d 108, 111-12, 435 N.E.2d 480, Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 305-06, 472 N.E.2d 787, Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 112, 449 N.E.2d 112, and Dillie v. Bisby (1985), 106 Ill. 2d 487, 478 N.E.2d 1338, that when a plaintiff retains an absolute right to refile his lawsuit, a dismissal does not represent a final and appealable order to support his appeal. However, the Howard court distinguished the aforementioned cases, by noting that none of those cases included a scenario, like Howard, where the trial court made a prejudicial ruling on a portion of the case before the balance of the case was dismissed without prejudice to refiling. The court felt the case of Reagan v. Baird (1985), 140 Ill. App. 3d 58, 487 N.E.2d 1028, to be more revealing for its analysis.\nIn Reagan the appellate court found it had jurisdiction to review the merits of the trial court\u2019s dismissal \u201cwith prejudice\u201d against one named defendant, despite the absence of a Rule 304(a) finding and the fact there was only a voluntary dismissal \u201cwithout prejudice\u201d as to other named defendants. The court observed that for an order of dismissal to be final and appealable, it must be entered \u201cwith prejudice\u201d as to at least some of the parties or claims. Reagan, 140 Ill. App. 3d at 61-62.\nIn Howard the plaintiff sued several defendants. One count of the four-count complaint sounded in legal malpractice. The trial court granted a motion to dismiss the legal malpractice claim for failure to state a cause of action and subsequently denied plaintiff\u2019s motion to file an amended count reasserting the malpractice claim. Plaintiff later nonsuited the remaining defendants and appealed. On consideration of a motion to dismiss the appeal for lack of jurisdiction, the reviewing court, relying on Reagan, held that because an order of dismissal had been entered with prejudice that ruling could be the subject of an appeal, without the requisite Rule 304(a) finding. Howard, 238 Ill. App. 3d at 940-41.\nDepp argues the Howard court ruling is erroneous in that the court ignored the requirements of Supreme Court Rule 304(a), thereby rendering the rule meaningless.\nFollowing the holdings in Reagan, Howard and Gillen, once the plaintiffs voluntarily dismissed the remaining defendants, the order of dismissal with prejudice as to the adult plaintiffs could be the subject of an appeal without the requisite Rule 304(a) finding. However, none of those cases involved a situation like the present case, where the plaintiffs\u2019 claim was refiled during the appeal process.\nInitially, we find since Depp\u2019s dismissal was without prejudice as to Matthew, and therefore Matthew is not precluded from refiling his claim, we lack jurisdiction to hear Matthew\u2019s appeal. Next, on July 15, 1993, the plaintiffs refiled their complaint against the hospital, Nosek and Reedy. The plaintiffs chose to take advantage of their right to refile their claim, yet at the same time seek to retain the benefit of the previous dismissal. In the present case allowing an appeal from the order of August 6, 1990, dismissing the case with prejudice as to Valorie and Scott violates the very purpose of Rule 304(a), which is to discourage piecemeal appeals and to remove the uncertainty which exists when a final judgment is entered on less than all matters in the controversy. (See Mares v. Metzler (1980), 87 Ill. App. 3d 881, 884, 409 N.E.2d 447.) As Depp argued in his motion, the result in the present case would be litigation pending in both the trial court and the appellate court. In the absence of a finding that \u201cthere is not just reason to delay enforcement or appeal\u201d pursuant to Supreme Court Rule 304(a), we conclude the order appealed from, although once final by the voluntary dismissal, became nonfinal when the adult plaintiffs refiled their complaint.\nAppeal dismissed.\nGORDON, P.J., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "Steven M. Levin, of Levin & Perconti, of Chicago, for appellants.", "Eric F. Quandt, Mary K. Periolat, and Carolyn Quinn, all of Kelley, Drye & Warren, of Chicago (James M. Perry, of Northwestern University, of counsel), for appellee." ], "corrections": "", "head_matter": "VALORIE KLEIMAN et al., Plaintiffs-Appellants, v. NORTHWESTERN MEMORIAL HOSPITAL et al., Defendants (Richard Depp, Defendant-Appellee).\nFirst District (5th Division)\nNo. 1\u201492\u20142856\nOpinion filed September 3, 1993.\nSteven M. Levin, of Levin & Perconti, of Chicago, for appellants.\nEric F. Quandt, Mary K. Periolat, and Carolyn Quinn, all of Kelley, Drye & Warren, of Chicago (James M. Perry, of Northwestern University, of counsel), for appellee." }, "file_name": "0047-01", "first_page_order": 67, "last_page_order": 73 }