{ "id": 5593937, "name": "EUGENE BEAUCHAMP, Plaintiff-Appellee, v. ROBERT ZIMMERMAN, Defendant-Appellant", "name_abbreviation": "Beauchamp v. Zimmerman", "decision_date": "2005-06-30", "docket_number": "No. 1\u201404\u20141642", "first_page": "143", "last_page": "152", "citations": [ { "type": "official", "cite": "359 Ill. App. 3d 143" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "818 N.E.2d 898", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "904" }, { "page": "903" } ], "opinion_index": 0 }, { "cite": "353 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. 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ROBERT ZIMMERMAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nDefendant, Robert Zimmerman, M.D., appeals from the order of the circuit court of Cook County granting the petition for relief from judgment filed by plaintiff, Eugene Beauchamp, pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u20141401 (West 2002)). Defendant contends that the circuit court abused its discretion in granting plaintiffs petition because plaintiff failed to make the requisite showing to obtain relief under section 2 \u2014 1401. We agree and reverse.\nThe following procedural history is relevant to our determination of this appeal. Sometime in July 1998, plaintiff commenced a medical malpractice action against defendant. In his complaint, plaintiff alleged that in July 1996, defendant negligently treated him for kidney stones, resulting in the loss of his right kidney. Plaintiff attached the affidavit of his attorney, Stanley J. Heller, to his complaint. Therein, Heller stated that due to the statute of limitations on plaintiffs claim, he was unable to obtain a letter from a health care professional prior to the filing of the action. On August 7, 1998, through new counsel, James C. Harman, plaintiff filed an attorney\u2019s affidavit and physician\u2019s letter attesting that there was a reasonable and meritorious basis for the action. However, the physician\u2019s letter was unsigned and did not include the name or address of the consulting physician. The next item contained in the record discloses that on July 14, 2001, the trial court granted a motion by plaintiff to voluntarily dismiss the action pursuant to section 2 \u2014 1009 of the Code (735 ILCS 5/2\u20141009 (West 2002)).\nOn June 13, 2002, plaintiff refiled the same medical malpractice claim against defendant. Along with his complaint, plaintiff filed the \u201cAffidavit Pursuant to Supreme Court Rule 222\u201d of his third attorney, Jeffrey M. Landry. Therein, Landry stated that \u201cdue to the time constraints of re-filing this lawsuit, I have been unable to obtain a letter from a health care professional prior to the filing of this action.\u201d\nDefendant responded with a motion to dismiss plaintiffs complaint pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)), claiming that plaintiff failed to exercise diligence in serving him with process. Defendant alternatively contended that the complaint should be dismissed pursuant to section 2 \u2014 619 of the Code (735 ILCS 5/2\u2014619 (West 2002)) because plaintiff failed to attach a section 2 \u2014 622 (735 ILCS 5/2\u2014622 (West 2002)) certificate of merit to his complaint. The court denied defendant\u2019s motion to dismiss based on Rule 103(b), but continued the motion to dismiss pursuant to section 2 \u2014 619 to July 23, 2003, and gave plaintiff until June 30, 2003, to file his section 2 \u2014 622 affidavit.\nOn July 1, 2003, Landry filed a motion to withdraw as counsel for plaintiff. The court granted the motion on July 23 and gave plaintiff leave to file the appearance of new counsel by September 15, 2003, The court also set the case for status on September 22, 2003.\nOn September 16, 2003, plaintiff filed a pro se appearance. The following week, at the September 22, 2003, status conference, the court dismissed the case for want of prosecution (DWP).\nPlaintiff filed a pro se motion to vacate the court\u2019s DWP order on November 13, claiming that he was unaware he had to appear at the September 22 status conference. The court did not consider plaintiffs motion, but instead ordered plaintiff to proceed by way of a section 2 \u2014 1401 petition for relief from judgment.\nOn December 4, 2003, through yet another attorney, Sal Indomenico, plaintiff filed his section 2 \u2014 1401 petition. Therein, plaintiff alleged that after he filed his pro se appearance on September 16, he spoke with the circuit court judge\u2019s clerk, who erroneously informed him that the next status date was October 16, 2003. As a result, plaintiff was not present for the September 22 status conference and the court entered the DWP order. When plaintiff came to court on October 16, he learned that his case had been dismissed. Mistakenly believing that his case had been dismissed that day, plaintiff thought that he could file a motion to vacate the dismissal order on November 13. In response to plaintiffs petition, defendant claimed, inter alia, that plaintiff was unable to show that his medical malpractice claim was a meritorious one because he had failed to comply with section 2 \u2014 622.\nFollowing argument, the court granted plaintiffs petition and reinstated his claim. In its written order, the court found that insofar as the DWP order was entered before the section 2 \u2014 619 motion to dismiss had been ruled upon, \u201cthat factor [was] indeterminate of the viability of plaintiffs claim.\u201d The court further observed that \u201c[t]he record, and specifically the affidavit from plaintiffs counsel still indicates that the claim set forth has merit.\u201d\nDefendant now appeals, contending that the circuit court abused its discretion in granting plaintiffs petition because plaintiff failed to make the requisite showing to obtain relief under section 2 \u2014 1401. Plaintiff initially responds that this court lacks jurisdiction to entertain defendant\u2019s appeal because a DWP order is not a final order from which relief under section 2 \u2014 1401 is available.\nOur jurisdiction of this case stems from Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), which provides that a party may appeal from \u201c[a] judgment or order granting or denying any of the relief prayed in a petition under section 2 \u2014 1401\u201d without an express written finding to permit appeal under Rule 304(a). Further, our supreme court has observed that the question of the finality of the underlying DWP order is not determinative of jurisdiction to entertain an appeal from an order granting relief under section 2 \u2014 1401. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 497, 693 N.E.2d 338, 342 (1998). Therefore, we have jurisdiction to entertain defendant\u2019s appeal.\nHowever, the finality of the underlying DWP order is pivotal to the issue of whether the circuit court properly entertained plaintiffs motion to vacate the DWP order pursuant to section 2 \u2014 1401. Caldwell, 181 Ill. 2d at 497, 693 N.E.2d at 342. Section 2 \u2014 1401 provides a procedure by which final orders, judgments, and decrees may be vacated after 30 days from their entry. 735 ILCS 5/2\u20141401(a) (West 2002); Smith v. Airoom, Inc., 114 Ill. 2d 209, 220, 499 N.E.2d 1381, 1386 (1986).\nA DWP is not a final and appealable order because, pursuant to section 13 \u2014 217 of the Code, a plaintiff has an absolute right to refile his case within one year of the dismissal or within the remaining limitations period, whichever is greater. 735 ILCS 5/13\u2014217 (West 2002); Caldwell, 181 Ill. 2d at 497, 693 N.E.2d at 342; see also Mann v. Upjohn Co., 324 Ill. App. 3d 367, 375, 753 N.E.2d 452, 459 (2001). After the period for refiling under section 13 \u2014 217 expires, the DWP order effectively terminates the litigation between the parties and constitutes a final and appealable order. Caldwell, 181 Ill. 2d at 501-02, 693 N.E.2d at 344. At that point, the only vehicle plaintiff may employ to reinstate the case is a petition pursuant to section 2 \u2014 1401. Caldwell, 181 Ill. 2d at 506-07, 693 N.E.2d at 346.\nHowever, plaintiffs are only entitled to one refiling pursuant to section 13 \u2014 217, even where the applicable statute of limitations has not expired. Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163, 676 N.E.2d 634, 636 (1997). Section 13 \u2014 217 also applies to voluntary dismissals. Timberlake, 175 Ill. 2d at 164, 676 N.E.2d at 636. Thus, where, as here, a plaintiff voluntarily dismisses his cause, then refiles it, and the circuit court dismisses the refiled cause for want of prosecution, the plaintiff has no right to refile a second time. Timberlake, 175 Ill. 2d at 165, 676 N.E.2d at 637; Mann, 324 Ill. App. 3d at 376, 753 N.E.2d at 460.\nAccordingly, because plaintiff already exercised his one-time right to refile after he voluntarily dismissed his original case, the DWP order is final and appealable. Mann, 324 Ill. App. 3d at 376, 753 N.E.2d at 460. Further, because plaintiff did not seek reconsideration or appeal from that order within 30 days (Beck v. Stepp, 144 Ill. 2d 232, 238, 579 N.E.2d 824, 827 (1991)), plaintiffs only option was to seek relief from the DWP order via a section 2 \u2014 1401 petition. See Caldwell, 181 Ill. 2d at 506-07, 693 N.E.2d at 346. Therefore, the circuit court properly entertained plaintiffs petition pursuant to section 2 \u2014 1401.\nTurning to the merits of defendant\u2019s appeal, the purpose of a section 2 \u2014 1401 petition for relief from judgment is to bring before the circuit court facts not appearing in the record which, if known to the court at the time judgment was entered, would have prevented the entry of the judgment. Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 457, 736 N.E.2d 179, 190 (2000). Unlike a section 2 \u2014 1301(e) (735 ILCS 5/2\u20141301(e) (West 2002)) motion to vacate a judgment or order, where the primary concern is whether it is reasonable under the circumstances to compel the opposing party to go to trial, section 2 \u2014 1401 is a less liberal provision with stringent requirements for the petitioner. Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill. App. 3d 633, 638, 636 N.E.2d 908, 911 (1994).\nTo be entitled to relief under section 2 \u2014 1401, the petitioner must affirmatively set forth specific factual allegations showing each of the following elements by a preponderance of the evidence: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 \u2014 1401 petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986); Cruz, 264 Ill. App. 3d at 639; 636 N.E.2d at 911. In addition, the petition must be supported by affidavit or other showing of matters not of record. 735 ILCS 5/2\u20141401(b) (West 2002); Cruz, 264 Ill. App. 3d at 639, 636 N.E.2d at 911. Whether a section 2 \u2014 1401 petition should be granted lies within the discretion of the circuit court and depends upon the facts and equities presented; a reviewing court is justified in disturbing that judgment only where it finds that the circuit court abused its discretion. Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386.\nTo prove the existence of a meritorious defense or claim, a petitioner must allege facts that would have prevented entry of the judgment if they had been known by the trial court. Jennings, 316 Ill. App. 3d at 457, 736 N.E.2d at 191. It is not sufficient for the petition and supporting affidavit to merely assert the existence of a meritorious defense or claim without also pleading the relevant supporting facts, and a circuit court\u2019s grant of such a petition will be reversed on appeal. People ex rel. McGraw v. Mogilles, 136 Ill. App. 3d 67, 73, 482 N.E.2d 1114, 1118 (1985). However, where a plaintiff alleges sufficient facts to set forth a meritorious claim in the complaint, plaintiff need not repeat the allegations in the petition. Cruz, 264 Ill. App. 3d at 640, 636 N.E.2d at 912.\nIn the present case, we find that plaintiff has failed to establish a meritorious medical malpractice claim. Section 2 \u2014 622(a)(1) of the Code (735 ILCS 5/2\u2014622(a)(1) (West 2002)) requires that a plaintiff in a medical malpractice action attach to his complaint both an affidavit certifying that he, or his attorney, consulted with a qualified health care professional in whose opinion there is a reasonable and meritorious cause for the filing of the action, and a copy of the health professional\u2019s written report setting forth the reasons for that determination. See also Mueller v. North Suburban Clinic, Ltd., 299 Ill. App. 3d 568, 572-73, 701 N.E.2d 246, 250 (1998). Section 2 \u2014 622(a)(2) of the Code alternatively provides that if the plaintiff has not previously voluntarily dismissed an action based upon the same or substantially the same claim, plaintiff may file an affidavit stating that it was unable to obtain a consultation before the expiration of the statute of limitations. 735 ILCS 5/2\u2014622(a)(2) (West 2002). Plaintiff would then have 90 days in which to obtain the affidavit and report required. 735 ILCS 5/2\u2014622(a)(2) (West 2002). The failure to satisfy the affidavit and report requirements of section 2 \u2014 622 is grounds for dismissal of the action under section 2 \u2014 619 of the Code. 735 ILCS 5/2\u2014622(g) (West 2002).\nThis requirement was designed to reduce the number of frivolous medical malpractice lawsuits by forcing the plaintiff to establish at the outset that he has a meritorious claim and, therefore, reasonable grounds for pursuing the action. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 117, 806 N.E.2d 645, 656 (2004). Although the affidavit and report requirements imposed on a plaintiff under section 2 \u2014 622 of the Code do not rise to the level of substantive elements of a claim for medical malpractice, they are not to be viewed as empty formalism. Mueller, 299 Ill. App. 3d at 573, 701 N.E.2d at 250. The supreme court has thus described section 2 \u2014 622 as a \u201cpleading requirement.\u201d Gulley v. Noy, 316 Ill. App. 3d 861, 864, 737 N.E.2d 1115, 1117 (2000), citing McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188, 193, 520 N.E.2d 293, 296 (1987).\nHere, along with his original complaint, plaintiff filed a section 2 \u2014 622(a)(2) affidavit stating that he was unable to consult with a health care professional prior to the expiration of the statute of limitations. Plaintiff subsequently filed a purported section 2 \u2014 622(a)(1) affidavit and report. However, because the report failed to include the name and address of the consulting physician, plaintiffs affidavit and report were insufficient to satisfy section 2 \u2014 622. 735 ILCS 5/2\u2014622(a)(1) (West 2002) (\u201cThe report shall include the name and the address of the health professional\u201d). Plaintiff ultimately voluntarily dismissed the case pursuant to section 2 \u2014 1009 of the Code (735 ILCS 5/2\u20141009 (West 2002)).\nPlaintiff then filed another complaint with a purported section 2 \u2014 622(a)(2) affidavit, even though he had previously voluntarily dismissed the same claim. Plaintiff never obtained the required affidavit and report, and defendant filed a section 2 \u2014 619 motion to dismiss the complaint citing plaintiffs failure to comply with section 2 \u2014 622. However, before the trial court ruled on that motion, it dismissed the matter for want of prosecution. Plaintiff subsequently filed a section 2 \u2014 1401 petition, but again failed to provide the required affidavit and report, or any other matters not previously of record, to establish that he has a meritorious claim. Without the affidavit and report, we cannot say that plaintiffs complaint establishes a meritorious claim for the purposes of obtaining relief under section 2 \u2014 1401. See Sullivan, 209 Ill. 2d at 117, 806 N.E.2d at 656 (the filing of the affidavit and report establish that plaintiff has a meritorious claim); see also Calamari v. Drammis, 286 Ill. App. 3d 420, 431, 676 N.E.2d 281, 289 (1997) (observing that the elimination of the 90-day filing extension for previously voluntarily dismissed claims helps ensure that only cases with some merit are refiled). Therefore, the trial court\u2019s order granting plaintiffs petition without any such showing constitutes an abuse of discretion.\nIn reaching this conclusion, we find Cruz distinguishable from the present case. In Cruz, the trial court dismissed the plaintiffs\u2019 medical malpractice action after they repeatedly failed to disclose their experts as a sanction pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). Cruz, 264 Ill. App. 3d at 636, 636 N.E.2d at 910. In granting the plaintiffs\u2019 section 2 \u2014 1401 petition to vacate that dismissal, this court found that the plaintiffs did not need to repeat the allegations contained in their complaint to establish that they had a meritorious claim. Cruz, 264 Ill. App. 3d at 640, 636 N.E.2d at 912. The court also found it significant that at no time did the defendants move to dismiss the plaintiffs\u2019 complaint for failure to state a cause of action. Cruz, 264 Ill. App. 3d at 640, 636 N.E.2d at 912.\nHere, in contrast to Cruz, plaintiff failed to meet the pleading requirements for a medical malpractice claim. In addition, defendant filed a section 2 \u2014 619 motion to dismiss plaintiffs complaint for failure to meet the requirements of section 2 \u2014 622, and that motion remained pending when the trial court dismissed plaintiffs cause for want of prosecution.\nAccordingly, we reverse the order of the circuit court of Cook County granting plaintiffs section 2 \u2014 1401 petition for relief from the September 2, 2003, DWP order.\nReversed.\nQUINN, J., concurs.\nWe recognize that the portion of section 2 \u2014 622 limiting this provision to plaintiffs who have not already voluntarily dismissed the same or substantially the same claim, as well as the portion requiring that the consulting physician\u2019s name and address be indicated on the report, were originally enacted as part of the \u201cCivil Justice Reform Amendments of 1995\u201d (Pub. Act 89 \u2014 7, eff. March 9, 1995). In Best v. Taylor Machine Works, 179 Ill. 2d 367, 378, 689 N.E.2d 898, 1064 (1997), the supreme court found the \u201ccore provisions\u201d of Public Act 89 \u2014 7, of which the provisions relating to section 2 \u2014 622 were not a part, to be unconstitutional. The supreme court further found the noncore provisions of Public Act 89 \u2014 7 to be inseparable from the core provisions and deemed the entirety of Public Act 89 \u2014 7 unconstitutional. Best, 179 Ill. 2d at 467, 689 N.E.2d at 1104. However, the supreme court emphasized that the General Assembly was \u201cfree to reenact whatever provisions it deem[ed] desirable or appropriate\u201d of these noncore provisions. Best, 179 Ill. 2d at 471, 689 N.E.2d at 1106. As the parties to the present appeal agree, the legislature accepted that invitation in February 1998 and reenacted the pre-Best version of section 2 \u2014 622 in Public Act 90 \u2014 579, which became effective on May 1, 1998 (Pub. Act 90 \u2014 579, eff. May 1, 1998). Cargill v. Czelatdko, 353 Ill. App. 3d 654, 660, 818 N.E.2d 898, 904 (2004). However, we find a need to briefly address this point because there has been some confusion regarding the effect of Public Act 90 \u2014 579. Some have argued that Public Act 90 \u2014 579 was intended only to extend the requirements of section 2 \u2014 622 to those who practice the healing art of \u201cnaprapathy,\u201d rather than to reenact the pre-Best version of section 2 \u2014 622; however, that argument was squarely rejected by this court in Cargill, 353 Ill. App. 3d at 658, 818 N.E.2d at 903. Thus, the provisions of section 2 \u2014 622 limiting the statute of limitations exception to plaintiffs who have not already voluntarily dismissed the same or substantially the same claim, as well as the portion requiring that the consulting physician\u2019s name and address be indicated on the report, apply with full force here.", "type": "majority", "author": "JUSTICE THEIS" }, { "text": "PRESIDING JUSTICE REID,\ndissenting:\nThe issue which Zimmerman raises is the subject matter of a pending section 2 \u2014 619 motion to dismiss which he previously filed on January 10, 2003. Thereafter, on May 21, 2003, the trial court: continued Zimmerman\u2019s motion to dismiss which was based on the absence of the section 2 \u2014 622 affidavit, ordered Beauchamp to file a section 2 \u2014 622 affidavit on or before June 30, 2003, and continued the matter to July 23, 2003. However, before Beauchamp filed the section 2 \u2014 622 affidavit and before the trial court ruled on Zimmerman\u2019s motion to dismiss, Beauchamp\u2019s attorney withdrew from the case.\nOn July 23, 2003, the trial court granted Beauchamp\u2019s former attorney\u2019s motion to withdraw and set the matter for status on September 22, 2003. The trial court did not address Zimmerman\u2019s section 2 \u2014 619 motion to dismiss or the fact that Beauchamp had yet to turn in the section 2 \u2014 622 affidavit as previously ordered.\nThereafter, Beauchamp, who did not have an attorney, filed a pro se appearance. At the time that he filed his appearance, Beauchamp received improper information from a clerk of the court, which caused him to miss the September 22 status hearing, and the matter was dismissed for want of prosecution. Subsequently, Beauchamp found a new attorney who then filed a section 2 \u2014 1401 petition to have the matter reinstated, which was granted, and Zimmerman appealed.\nAt the time that the trial court was to rule on Zimmerman\u2019s section 2 \u2014 619 motion to dismiss as a result of Beauchamp\u2019s failure to file a section 2 \u2014 622 affidavit, Beauchamp\u2019s attorney withdrew. Consequently, the trial court never ruled on Zimmerman\u2019s section 2 \u2014 619 motion to dismiss. In my opinion, this issue is not properly before this court and should not be ruled upon at this time. The trial court recognized this and I believe we should allow it the opportunity to make a ruling on this issue.\nThis particular matter is one which Zimmerman should pursue in further proceedings below. Zimmerman should either re-notice or re-motion his previous section 2 \u2014 619 motion to dismiss on this particular issue and let the trial court resolve this particular matter. For these reasons, I respectfully dissent.", "type": "dissent", "author": "PRESIDING JUSTICE REID," } ], "attorneys": [ "Arthur L. Klein and Richard C. Gering, both of Arnstein & Lehr, L.L.E, of Chicago, for appellant.", "Sal Indomenico, of Sal Indomenico & Associates, EC., of Chicago, for appellee." ], "corrections": "", "head_matter": "EUGENE BEAUCHAMP, Plaintiff-Appellee, v. ROBERT ZIMMERMAN, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201404\u20141642\nOpinion filed June 30, 2005.\nModified opinion filed July 21, 2005.\nRehearing denied August 23, 2005.\nREID, EJ., dissenting.\nArthur L. Klein and Richard C. Gering, both of Arnstein & Lehr, L.L.E, of Chicago, for appellant.\nSal Indomenico, of Sal Indomenico & Associates, EC., of Chicago, for appellee." }, "file_name": "0143-01", "first_page_order": 161, "last_page_order": 170 }