{ "id": 1096663, "name": "JASON M. GULLEY, Plaintiff-Appellant, v. YIGAL NOY et al., Defendants-Appellees", "name_abbreviation": "Gulley v. Noy", "decision_date": "2000-10-19", "docket_number": "No. 4-00-0515", "first_page": "861", "last_page": "867", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 861" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "681 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "171-72", "parenthetical": "discussion and cases cited therein" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596947 ], "year": 1997, "pin_cites": [ { "page": "1059-61", "parenthetical": "discussion and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1053-01" ] }, { "cite": "588 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "320", "parenthetical": "by their conduct, individuals may forfeit their statutory rights" } ], "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 444", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5244329 ], "year": 1992, "pin_cites": [ { "page": "449", "parenthetical": "by their conduct, individuals may forfeit their statutory rights" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0444-01" ] }, { "cite": "418 N.E.2d 729", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "733-34" } ], "opinion_index": 0 }, { "cite": "84 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045185 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "321-22" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0312-01" ] }, { "cite": "510 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543036 ], "year": 1987, "pin_cites": [ { "page": "380-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0377-01" ] }, { "cite": "514 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 218", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466338 ], "year": 1987, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0218-01" ] }, { "cite": "459 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 219", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558922 ], "year": 1984, "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0219-01" ] }, { "cite": "596 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202507 ], "year": 1992, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0578-01" ] }, { "cite": "603 N.E.2d 1314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1322" } ], "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 240", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5163859 ], "year": 1992, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0240-01" ] }, { "cite": "470 N.E.2d 1083", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "1088" }, { "page": "1088" } ], "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3526318 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "444" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0437-01" ] }, { "cite": "442 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2999041 ], "year": 1982, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0569-01" ] }, { "cite": "257 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "482-83", "parenthetical": "in this personal injury case, the court stated the general rule that \"objections to a pleading may be waived by failure to urge the objection at the proper time and in the proper manner or by any act which, in legal contemplation, implies an intention to overlook it\"" } ], "opinion_index": 0 }, { "cite": "121 Ill. App. 2d 371", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582671 ], "year": 1970, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0371-01" ] }, { "cite": "578 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1346", "parenthetical": "one party to a contract may not lull another into a false assurance that strict compliance with a contract duty will not be required and then sue for noncompliance" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5801847 ], "year": 1991, "pin_cites": [ { "page": "45", "parenthetical": "one party to a contract may not lull another into a false assurance that strict compliance with a contract duty will not be required and then sue for noncompliance" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0032-01" ] }, { "cite": "705 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352932 ], "year": 1998, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0378-01" ] }, { "cite": "554 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1075-76" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484044 ], "year": 1990, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0625-01" ] }, { "cite": "727 N.E.2d 1052", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1055" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411622 ], "year": 2000, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0553-01" ] }, { "cite": "729 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "39" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 1087", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411612 ], "year": 2000, "pin_cites": [ { "page": "1090" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/1087-01" ] }, { "cite": "587 N.E.2d 1115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 598", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5244253 ], "year": 1992, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0598-01" ] }, { "cite": "658 N.E.2d 1239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927688 ], "year": 1995, "pin_cites": [ { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/1038-01" ] }, { "cite": "701 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "250" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221437 ], "year": 1998, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0568-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "296" }, { "page": "296" } ], "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "193" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "588 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1142" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "year": 1992, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] } ], "analysis": { "cardinality": 789, "char_count": 14973, "ocr_confidence": 0.783, "pagerank": { "raw": 7.466263130342792e-08, "percentile": 0.44505374637671924 }, "sha256": "90a1e6614a2323bb52d9cf600ca917fc14e94a2d116f9a22996508a991c5cebd", "simhash": "1:83bfccb4a74b9944", "word_count": 2504 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JASON M. GULLEY, Plaintiff-Appellant, v. YIGAL NOY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn July 1997, plaintiff, Jason M. Gulley, filed a medical malpractice lawsuit against defendants, Yigal Noy, M.D. and Noy\u2019s employer, Emergency Medical Care Incorporated (EMCI). In March 2000, defendants filed a motion to dismiss Gulley\u2019s complaint, alleging that Gulley failed to file a health professional\u2019s report with his complaint in accordance with section 2 \u2014 622 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 622 (West 1998)). In May 2000, the trial court granted defendants\u2019 motion and dismissed Gulley\u2019s complaint with prejudice.\nGulley appeals, arguing that (1) defendants forfeited their right to a dismissal under section 2 \u2014 622 of the Code by failing to object to Gulley\u2019s noncompliance in a timely manner; and (2) the trial court abused its discretion by dismissing his complaint with prejudice. Because we agree with Gulley\u2019s first argument, we reverse and remand.\nI. BACKGROUND\nIn July 1995, Gulley was treated in the emergency room of St. Mary\u2019s Hospital in Decatur. EMCI had a contract with St. Mary\u2019s Hospital to staff the emergency room with physicians. Noy worked for EMCI in St. Mary\u2019s Hospital emergency room and provided medical care to Gulley.\nIn July 1997, Gulley filed this lawsuit, alleging that defendants were negligent in providing him medical care at St. Mary\u2019s Hospital emergency room in July 1995. Gulley\u2019s attorney attached an affidavit to the complaint, pursuant to section 2 \u2014 622(a)(2) of the Code, averring that he was unable to obtain a health professional\u2019s report as required by section 2 \u2014 622(a)(1) of the Code, before the applicable statute of limitations would expire. (Pursuant to section 2 \u2014 622(a)(2) of the Code, upon the filing of such an affidavit, the deadline for fifing a health professional\u2019s report is extended 90 days, and a defendant is not required to file an answer to the complaint until 30 days after being served with the health professional\u2019s report. 735 ILCS 2 \u2014 622(a)(2) (West 1998).)\nGulley still had not filed a health professional\u2019s report in September 1997, when defendants filed an answer to his complaint. At that time, defendants also served Gulley with a discovery request for production of documents and a set of interrogatories.\nIn January 1998, Noy moved for a 90-day stay of proceedings because Noy\u2019s malpractice insurance company had been placed under an order of rehabilitation and consequently could no longer provide Noy with an attorney. In February 1998, the trial court denied Noy\u2019s motion.\nIn January 2000, Gulley complied with defendants\u2019 discovery requests.\nIn March 2000, defendants filed a motion to dismiss Gulley\u2019s complaint for failure to file a health professional\u2019s report in accordance with section 2 \u2014 622(a)(1) of the Code (735 ILCS 5/2 \u2014 622(a)(1) (West 1998)). At an April 2000 hearing, the trial court heard arguments on defendants\u2019 motion, and in May 2000, the court dismissed Gulley\u2019s complaint with prejudice. This appeal followed.\nII. ANALYSIS\nA. Section 2 \u2014 622 of the Code\nSection 2 \u2014 622 of the Code provides that in any medical malpractice action, the plaintiffs attorney must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a \u201creasonable and meritorious cause\u201d for the fifing of the action. Attached to the affidavit, the plaintiff must file a written report prepared by that health professional indicating the basis for his determination. 735 ILCS 2 \u2014 622(a)(1) (West 1998). Section 2 \u2014 622(a)(2) of the Code allows for a 90-day extension of time for the filing of the affidavit and report if the statute of limitations is near expiration. 735 ILCS 5/2 \u2014 622(a)(2) (West 1998). In addition, section 2 \u2014 622(g) of the Code provides that \u201cfailure to file a certificate required by this [sjection shall be grounds for dismissal under [section 2 \u2014 619 [of the Code (735 ILCS 5/2 \u2014 619 (West 1998))].\u201d 735 ILCS 5/2 \u2014 622(g) (West 1998).\nSection 2 \u2014 622 of the Code is designed to (1) reduce the number of frivolous medical malpractice lawsuits, and (2) eliminate such actions at an early stage, before litigation expenses mount. DeLuna v. St. Elizabeth\u2019s Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 1142 (1992). In McCastle v. Sheinkop, 121 Ill. 2d 188, 193, 520 N.E.2d 293, 296 (1987), the supreme court described section 2 \u2014 622 of the Code as a \u201cpleading requirement,\u201d not a \u201csubstantive defense\u201d that would forever bar a plaintiffs complaint after an initial failure to comply with that section. In Mueller v. North Suburban Clinic, Ltd., 299 Ill. App. 3d 568, 573, 701 N.E.2d 246, 250 (1998), the court described the nature of section 2 \u2014 622 requirements as follows:\n\u201c[Section 2 \u2014 622 of the Code] was not intended to deprive plaintiffs with legitimate claims of their right to a trial on the merits by creating insurmountable pleading hurdles. See Steinberg v. Dunseth, 276 Ill. App. 3d 1038, 1042, 658 N.E.2d 1239[, 1244] (1995); Ebbing v. Prentice, 225 Ill. App. 3d 598, 601, 587 N.E.2d 1115[, 1117] (1992). The requirements of section 2 \u2014 622 should be liberally construed so that controversies may be determined according to the substantive rights of the parties. While the affidavit and report requirements imposed on plaintiffs under section 2 \u2014 622 of the Code do not rise to the level of substantive elements of a claim for medical malpractice, neither should they be viewed as empty formalism.\u201d\nOrdinarily a section 2 \u2014 619 motion to dismiss is reviewed de novo. Hapag-Lloyd (America), Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087, 1090, 729 N.E.2d 36, 39 (2000). In McCastle, however, the court held that whether to dismiss a complaint pursuant to section 2 \u2014 622 of the Code with or without prejudice is a matter for the trial court\u2019s discretion. McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296. Likewise, whether to grant parties leave to amend their pleadings is also a discretionary call on the part of the trial court. Savage v. Pho, 312 Ill. App. 3d 553, 556, 727 N.E.2d 1052, 1055 (2000). In Premo v. Falcone, 197 Ill. App. 3d 625, 630, 554 N.E.2d 1071, 1075-76 (1990), this court held that a trial court could consider whether a plaintiff could show \u201cgood cause\u201d for a late filing of documents pursuant to section 2 \u2014 622 of the Code. In Ingold v. Irwin, 302 Ill. App. 3d 378, 384, 705 N.E.2d 135, 139 (1998), this court explained that we will consider whether the trial court took the particular facts and unique circumstances of the case into consideration before determining that a complaint should be dismissed with or without prejudice for failure to meet the requirements of section 2 \u2014 622 of the Code. Therefore, in light of the discretion that trial courts employ under 2 \u2014 622 of the Code, we will apply an abuse of discretion standard of review here.\nB. Forfeiture\nGulley argues that defendants have forfeited their right to dismissal under section 2 \u2014 622 of the Code by waiting over 2xh years to raise the issue. We agree.\nWhether a defendant\u2019s right to dismissal under section 2 \u2014 622 of the Code can be forfeited is a question of first impression. To support his argument that forfeiture can apply, Gulley first emphasizes that section 2 \u2014 622\u2019s purpose is to eliminate frivolous lawsuits at the pleadings stage. While none of the many decisions applying section 2 \u2014 622 of the Code have addressed forfeitability, in other legal contexts courts have held that forfeiture of a legal right arises when conduct of the person against whom forfeiture is asserted is inconsistent with an intent to enforce that right. See, e.g., Wells v. Minor, 219 Ill. App. 3d 32, 45, 578 N.E.2d 1337, 1346 (1991) (one party to a contract may not lull another into a false assurance that strict compliance with a contract duty will not be required and then sue for noncompliance); Chimerofsky v. School District No. 63, 121 Ill. App. 2d 371, 374, 257 N.E.2d 480, 482-83 (1970) (in this personal injury case, the court stated the general rule that \u201cobjections to a pleading may be waived by failure to urge the objection at the proper time and in the proper manner or by any act which, in legal contemplation, implies an intention to overlook it\u201d).\nGulley also cites a line of cases in which defendants have sought dismissal by attacking the plaintiffs pleadings after filing an answer. In sum, those cases hold as follows:\n\u201cGenerally, where a complaint substantially!,] although imperfectly!,] alleges a cause of action, the defendant waives any defect by answering it without objection. [Citations.] The only exception to this rule is where the complaint wholly fails to state a cause of action.\u201d Burks Dry wall, Inc. v. Washington Bank & Trust Co., 110 Ill. App. 3d 569, 572, 442 N.E.2d 648, 651 (1982).\nAccord Pieszchalski v. Oslager, 128 Ill. App. 3d 437, 444, 470 N.E.2d 1083, 1088 (1984). This general rule is especially applicable when the defect in the pleadings can be remedied by amendment. Meadows v. State Farm Mutual Automobile Insurance Co., 237 Ill. App. 3d 240, 253, 603 N.E.2d 1314, 1322 (1992).\nThus, Gulley concludes that since the Supreme Court of Illinois has established that section 2 \u2014 622 requirements are pleading requirements, we should apply the rule of law set forth in these pleadings cases to the present case.\nDefendants counter that because section 2 \u2014 622(g) of the Code provides that dismissal for noncompliance shall be pursuant to section 2 \u2014 619 of the Code, Gulley\u2019s cases \u2014 all of which rest on common-law principles rather than statutory mandates \u2014 are inapposite. Defendants cite Thompson v. Heydemann, 231 Ill. App. 3d 578, 581, 596 N.E.2d 664, 667 (1992), in which the defendant filed a motion to dismiss pursuant to section 2 \u2014 622 of the Code three months after filing an answer to the complaint. There, the court held that filing an answer does not preclude the subsequent filing of a section 2 \u2014 619 motion to dismiss unless there is a showing that the plaintiff would be unfairly prejudiced by the untimely filing. See also Worner Agency, Inc. v. Doyle, 121 Ill. App. 3d 219, 223, 459 N.E.2d 633, 636 (1984); Outlaw v. O\u2019Leary, 161 Ill. App. 3d 218, 220, 514 N.E.2d 208, 210 (1987).\nWhile the two lines of cases cited by the parties appear to be in direct conflict, section 2 \u2014 622 and section 2 \u2014 619 actually share a common purpose and our holding here \u2014 that a motion to dismiss under section 2 \u2014 622 can be forfeited if not timely filed \u2014 furthers that purpose. Both sections are designed to streamline litigation at the earliest possible point in proceedings \u2014 that is, during the pleadings phase. We recognize that in some cases the \u201cpleadings phase\u201d is drawn out and a section 2 \u2014 619 motion to dismiss will be proper even though filed sometime after the lawsuit commenced. Nevertheless, a motion to dismiss pursuant to section 2 \u2014 619 or 2 \u2014 622 of the Code is intended to be heard and decided before the expense and inconvenience of litigation has been borne by either party or the trial court. Although the trial court may entertain a section 2 \u2014 619 motion to dismiss that is filed outside the pleadings phase, whether to do so is left to the court\u2019s discretion. See In re Custody of McCarthy, 157 Ill. App. 3d 377, 380-81, 510 N.E.2d 555, 557 (1987).\nIn this case, prior to filing their motion to dismiss, defendants filed an answer, initiated discovery, and filed a motion for a stay of proceedings. By their affirmative acts, which manifested an intent to move the case forward, and their omission \u2014 their failure to raise their section 2 \u2014 622 objection for over 2xh years \u2014 defendants manifested an intention to overlook Gulley\u2019s failure to file the health professional\u2019s report. We therefore conclude that because defendants forfeited their right to seek dismissal under section 2 \u2014 622 of the Code, the trial court abused its discretion by dismissing Gulley\u2019s complaint. (As an aside, we note that, as a matter of procedure, defendants should have moved for leave to withdraw their answer before filing their section 2 \u2014 619 motion to dismiss.)\nWe do not agree with Gulley, however, that by merely answering his complaint defendants forfeited their right to subsequently move for dismissal pursuant to section 2 \u2014 622 of the Code. We need not say, definitively, at what point a defendant has forfeited the right to a dismissal under section 2 \u2014 622 of the Code. On this record, however, wherever that point may be, we are satisfied it has been reached.\nGranting a motion to dismiss under the facts of this case does nothing to further the goals of section 2 \u2014 622. Rather, doing so might encourage defendants to sit on their right to seek a dismissal, an outcome precisely opposite to that intended by sections 2 \u2014 622 and 2 \u2014 619 of the Code.\nWe also agree with the Fifth District Appellate Court that it would be a complete waste of judicial manpower and court resources to permit defendants to sit by and acquiesce in a plaintiffs prosecution of his claim, with the attendant expenditure of time and money, and then allow them to later attack pleadings that they contend should be dismissed, even though the ground for dismissal was present all along. See Pieszchalski, 128 Ill. App. 3d at 444, 470 N.E.2d at 1088.\nFinally, concluding that a statutorily mandated pleading requirement can be forfeited is not unprecedented. In In re Custody of Sexton, 84 Ill. 2d 312, 418 N.E.2d 729 (1981), the supreme court considered whether the affidavit requirement of section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(a) (now 750 ILCS 5/610(a) (West 1998))) was jurisdictional. (That section requires the filing of certain affidavits along with any motion to modify custody that is filed within two years of a custody judgment.) The court concluded that even though the affidavit requirement of section 610(a) was mandatory, the defendants forfeited the requirement by failing to raise a timely objection to the plaintiffs failure to produce the affidavits. Sexton, 84 Ill. 2d at 321-22, 418 N.E.2d at 733-34; see also Aufox v. Board of Education of Township High School District No. 113, 225 Ill. App. 3d 444, 449, 588 N.E.2d 316, 320 (1992) (by their conduct, individuals may forfeit their statutory rights); In re Marriage of Fields, 288 Ill. App. 3d 1053, 1059-61, 681 N.E.2d 166, 171-72 (1997) (discussion and cases cited therein).\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand for further proceedings.\nReversed and remanded.\nMcCULLOUGH and MYERSCOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Donald E. Brilley (argued), of Brilley Law Office, of Decatur, for appellant.", "Robert C. Seibel (argued) and Nancy D. Koors, both of Seibel & Eckenrode, PC., of St. Louis, Missouri, for appellees." ], "corrections": "", "head_matter": "JASON M. GULLEY, Plaintiff-Appellant, v. YIGAL NOY et al., Defendants-Appellees.\nFourth District\nNo. 4-00-0515\nArgued September 19, 2000.\n\u2014 Opinion filed October 19, 2000.\nDonald E. Brilley (argued), of Brilley Law Office, of Decatur, for appellant.\nRobert C. Seibel (argued) and Nancy D. Koors, both of Seibel & Eckenrode, PC., of St. Louis, Missouri, for appellees." }, "file_name": "0861-01", "first_page_order": 881, "last_page_order": 887 }