Interlocutory Order Not Identified In Notice Still Appealable

Lisa Knapp claimed she received negligent medical treatment from her doctors. She sued one of the doctors and the hospital he was affiliated with for medical malpractice. In her complaint, she identified George O’Neil, another of her doctors, as a respondent in discovery.

O’Neil proved difficult to serve. Eventually though, the trial court gave Lisa a certificate of merit, concluding Lisa had a meritorious case against O’Neil. A few weeks later, the trial court granted Lisa’s request to file an amended complaint. That complaint named O’Neil as a defendant in Lisa’s medical malpractice case.

O’Neil then asked the trial court (1) to vacate the order that allowed Lisa to file an amended complaint and name O’Neil as a defendant, and (2) to dismiss the claims against him in the amended complaint. O’Neil claimed the order was improper because he had not been served properly, depriving the trial court of personal jurisdiction. The trial court agreed and granted O’Neil’s requests.

Lisa served O’Neil again. Then she asked the court to reconsider the order it issued in favor of O’Neil. In response, O’Neil asked the trial court to terminate his status as a respondent in discovery. The court ruled in favor of O’Neil, giving him a complete victory: the complaint against him was dismissed, and his status as a respondent in discovery was terminated.

Lisa appealed. O’Neil asserted the appellate court did not have jurisdiction to consider an appeal of the order that vacated the earlier order giving Lisa leave to file the amended complaint. O’Neil claimed that order was not appealable because it was “an interlocutory order that was not specifically challenged in the notice of appeal.”

The First District Illinois Appellate Court disagreed. Here’s the appellate court’s thinking.

Here, the vacatur of the May 9, 2007, order, which had granted the plaintiffs [Lisa] leave to file an amended complaint [and sue O’Neil], was a procedural step in the progression leading to the entry of the final judgment with regard to the O’Neil respondents. Thus, although the April 18, 2008, order [vacating the May 2007 order] was not a final judgment, it is subject to appeal. In addition, [O’Neil] … ha[s] not argued that [he was] … prejudiced by the plaintiffs’ failure to comply with the technical requirement that the order of April 18, 2008, be specifically referenced in the notice of appeal. Consequently, we reject the claim that the entry of that order is not subject to review.

In the end, the appellate court ruled that Lisa was not permitted to file an amended complaint against O’Neil. Read the whole case, Knapp v Bulun, No. 1-08-2299 (6/30/09), by clicking here.