Goncaves v. Saab , 184 Ill. App. 3d 952 ( 1989 )

PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

On July 29, 1988, we filed our original opinion in this matter. Subsequently, we granted plaintiff-appellant’s motion for rehearing. The parties submitted additional briefs and we allowed additional oral argument on the motion.

This appeal involves a grant of post-judgment relief (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) vacating an order for summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005) which dismissed Salim B. Saab, M.D., as a party defendant in a medical malpractice action.

We reverse, vacate the trial court’s order granting post-judgment relief, and direct the trial court to reinstate the order of summary judgment.

The following chronology is pertinent to our disposition.

On December 10, 1982, Altair Goncaves was taken to the emergency room of St. Anne’s Hospital in Chicago, Illinois, following an automobile collision from which he suffered serious injuries and later died. Dr. David C. Mayor was the emergency room physician who treated the decedent. Dr. Salim B. Saab was the on-call thoracic surgeon that night.

On November 17, 1983, Eugenia Goncaves, individually and in representative capacities, and Tony Goncaves (plaintiffs) filed their original complaint for medical malpractice in this cause in the circuit court of Cook County. The complaint named several respondents in discovery and included Saab and St. Anne’s Hospital as party defendants. The complaint did not name Mayor.

On February 6, 1984, Saab was deposed. Relevant here, Saab testified he had no recollection of ever seeing the decedent or of being consulted over the telephone on December 10, 1982, regarding the decedent’s treatment. Saab maintained this assertion even though plaintiffs’ attorney pointed out that the emergency room chart contained both a notation to call Saab as well as included Saab’s name within a box labeled “referral” and that the emergency room physician’s orders sheet contained two notations to consult with Saab.

On February 24, 1984, by agreed order, Saab was granted leave to file a motion for summary judgment on the ground that he did not care for, examine, or treat plaintiffs’ decedent. The motion was supported with Saab’s affidavit to that effect. Hearing on the matter was continued to April 9, 1984. (Pursuant to several subsequent orders entered upon agreement of the parties, the date for hearing on the motion was set for September 25, 1984.)

On March 2, 1984, plaintiffs’ expert, Dr. Kenneth Chessick, rendered his report to plaintiffs’ attorney. The report detailed a review of previously unsupplied medical records and set forth Chessick’s opinions as a basis for establishing malpractice. The report concluded several actors were negligent in the treatment of plaintiffs’ decedent, including emergency room personnel for their failure to promptly contact a surgeon. Significantly, the first page of the report, containing what appears to be typewritten reproductions of hospital records, twice refers to Mayor. At the second reference, his name is contained in underscored text.

On April 13, 1984, plaintiffs amended their original complaint. At that time, Mayor was also added as a party defendant. Plaintiffs’ single effort to serve Mayor by delivering a copy of the complaint to St. Anne’s Hospital was unsuccessful.

On September 24, 1984, one day prior to the scheduled hearing on Saab’s motion, plaintiffs filed a separate action against Mayor. Mayor was successfully served with summons in that action on the following day.

On September 25, 1984, without opposition from plaintiffs, Saab’s motion for summary judgment was granted.

On September 3, 1985, Mayor was deposed. Mayor testified, inter alia, that he had consulted with Saab over the telephone regarding treatment of plaintiffs’ decedent on December 10, 1982. He stated that he contacted Saab because Saab was the on-call thoracic surgeon.

On November 8, 1985, plaintiffs filed their petition for post-judgment relief, the subject of this appeal. Plaintiffs sought thereby to vacate the judgment rendered in favor of Saab in light of Mayor’s deposition testimony. The petition stated that the testimony of Mayor “was not available” at the time Saab’s motion for summary judgment was heard. Referring to Saab’s statements concerning the telephone call, plaintiffs contended that that judgment was procured by fraud on the part of Saab which was “not discoverable” until Mayor was “served with process and depositions taken.”

On September 30, 1986, the trial court granted plaintiffs’ petition and vacated the order of summary judgment in favor of Saab. A timely notice of appeal was filed on October 28,1986.

Opinion

Pursuant to section 2 — 1401, the Code of Civil Procedure provides a simple petition process affording parties, when appropriate, “[rjelief from final orders and judgments, after 30 days from the entry thereof.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401.) A section 2 — 1401 petition is addressed to the equitable powers of the trial court (People v. Alfano (1981), 95 Ill. App. 3d 1026, 420 N.E.2d 1114) and allows a party to bring before the court matters unknown to both the parties and the court at the time of judgment which would have precluded its entry. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 449 N.E.2d 560.) Because a petition under section 2— 1401 constitutes a new proceeding separate from that in which the judgment challenged was rendered (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401(b)), the petitioner must allege and prove a right to the relief sought as in any other civil action. Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 398 N.E.2d 972.

Generally, to prevail under section 2 — 1401, petitioner must show both that if the grounds for relief had been known when the judgment complained of was rendered, entry thereof would have been precluded, and that the failure to discover and present the ground for relief was not the result of the petitioner’s own lack of diligence. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) In determining diligence, courts examine whether the petitioner, at the time of entry of the judgment and after making every effort in his power, failed to raise or discover the grounds asserted through no fault or neglect of his own. (Crane Co. v. Parker (1922), 304 Ill. 331, 136 N.E. 733; Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) The requirement of diligence effectively denies petitioners new opportunity to do that which should have been done at the earlier proceeding. (Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 272 N.E.2d 805.) Satisfaction of that requirement, however, does not demand that the petitioner anticipate improper conduct. Thus, where actual fraud or unconscionable conduct has played a part in the rendering of the judgment from which relief is sought, the requirement of diligence is not rigidly enforced. (Department of Public Works & Buildings v. O’Hare International Bank (1976), 44 Ill. App. 3d 934, 358 N.E.2d 1308.) Therefore, while operation of section 2 — 1401 may relieve petitioners from adverse judgments because of discovery of matter not previously appearing in the record, relief is not afforded when that matter should have been presented and the petitioner reasonably could have done so.

On appeal, Saab does not dispute that Mayor’s deposition testimony, had it been presented, would have prevented the entry of summary judgment. Rather, Saab contends that evidence could easily have been discovered prior to entry of the judgment and, therefore, because plaintiffs were not diligent, it was an abuse of discretion for the court below to grant the petition for relief.

We agree. In our opinion, the failure to generate discovery to procure Mayor’s testimony, and thereby create an issue of fact precluding summary judgment, occurred because Saab’s motion was not earnestly contested through means which were readily available prior to entry of the judgment. Plaintiffs’ counsel did not oppose the motion for summary judgment on the basis of Saab’s deposition testimony in which Saab stated he did not remember receiving a telephone call from the emergency room regarding treatment of plaintiffs’ decedent on December 10, 1982. Had plaintiffs’ counsel contested the accuracy of Saab’s recollections, rather than accept Saab’s statements at face value, the only and obvious way to do so would be to interview emergency room personnel present on that date to determine whether such a telephone call was, in fact, made.

Review of the record indicates that the identity of Mayor as a material witness for that purpose should have been clear when Saab was deposed on February 6, 1984, more than seven months prior to entry of summary judgment. It was apparent that Mayor was the emergency room physician on December 10, 1982. Although never served with process, the amended complaint names Mayor as a party defendant in that capacity. The emergency room chart and physician’s orders sheet for that night contain references to Saab. The significance of both documents was not lost on plaintiffs’ counsel. During the deposition of Saab, plaintiffs’ counsel, referring to those documents, repeatedly questioned Saab as to whether he received a telephone call from the emergency room regarding treatment of plaintiffs’ decedent. Although the documents contain similar signatures, both of which are illegible to this court, plaintiffs have not contested assertions contained in the brief for Saab that both documents were signed by Mayor.

However, any doubt of Mayor’s identity as a material witness is dispelled by the inclusion of Mayor’s name in the report prepared by plaintiffs’ expert in anticipation of litigation. The report specifically recites that the failure of the emergency room personnel, including the emergency room physician, to contact a surgeon regarding treatment of plaintiffs’ decedent constituted negligence. Mayor’s name appears twice on the first page of the report. At the second reference, Mayor’s name is contained in underscored text.

Despite the possession of that material, the record indicates that from April 13, 1984, when Mayor was added as a party defendant, until entry of summary judgment on September 25, 1984, no attempt was made to depose Mayor. In our opinion, reasonable diligence in opposing Saab’s motion for summary judgment dictated discovery should have been generated for the purpose of securing a statement from Mayor pertaining to the telephone call.

Plaintiffs’ counsel contends that the failure to depose Mayor was attributable solely to the “deceptive conduct” of Saab during his deposition rather than a lack of diligence on the part of plaintiffs’ counsel. Reliance is placed principally on Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955, and Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.

We find neither decision applicable. As this court pointed out in a thorough discussion of those cases in Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 504 N.E.2d 893, both Lubbers and Ostendorf involved situations in which defendants actively concealed evidence. That act of concealment, in each case, precluded discovery of the evidence through other reasonable means.

Here, although plaintiffs claim Saab intentionally misrepresented that he did not receive the telephone call, we find nothing in the record to support that contention. Moreover, such a misrepresentation, even if substantiated, in no way prevented plaintiffs from discovering the evidence necessary to refute those statements and thereby raise an issue of fact to avoid summary judgment. Plaintiffs merely had to depose Mayor to determine the accuracy of Saab’s recollection. Instead, plaintiffs elected to rely on Saab’s memory and allowed summary judgment to be entered.

Relaxation of the diligence requirement is not justified under such circumstances. Section 2 — 1401 was not designed to relieve petitioners of their responsibilities to avoid the consequences of adverse judgments occasioned through their own neglect in the prosecution of an action. (Malek v. Lederly Laboratories (1987), 152 Ill. App. 3d 493, 504 N.E.2d 893.) Because plaintiffs could readily have discovered the matter asserted as the basis for the instant petition, there exists no reason to lessen the diligence burden. For the same reasons, we are likewise unpersuaded by plaintiffs’ contentions that entry of summary judgment in the instant case was predicated on unconscionable circumstances- such as might excuse that requisite showing.

We therefore conclude that it was an abuse for the court below to disturb the finality of the judgment which dismissed Saab as a party defendant.

Accordingly, we reverse, vacate the trial court’s order granting post-judgment relief, and direct the trial court to reinstate the order of summary judgment.

Reversed and remanded with directions.

COCCIA, J.,^* concurs.

* Justice John J. Sullivan originally participated in the majority opinion. Following Justice Sullivan’s resignation from the court, Justice Michael A. Coccia was designated the third member of the panel and participated in this disposition.