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Docket No. 96931-Agenda 23-September 2004.

JANET D. SULLIVAN, Appellant, v. ROBERT E. EICHMANN, M.D., Appellee.

Opinion filed November 18, 2004.

JUSTICE FITZGERALD delivered the opinion of the court:

In this medical malpractice case, the circuit court of WinnebagoCounty denied plaintiff's request to substitute counsel immediatelypreceding arguments on defendant's motion for summary judgment,granted defendant's motion for summary judgment, and subsequentlydenied plaintiff's motion to reconsider. Plaintiff appealed these rulings,and the appellate court affirmed. No. 2-01-1386 (unpublished orderunder Supreme Court Rule 23). We allowed plaintiff's petition forleave to appeal. 177 Ill. 2d R. 315. The principal issue we consider inthis case is whether the trial court abused its discretion in denyingsubstitution of counsel prior to arguments on defendant's motion forsummary judgment.

BACKGROUND

In September 1996, defendant, Dr. Robert Eichmann, a board-certified specialist in obstetrics and gynecology, performed abdominalsurgery on plaintiff, Janet Sullivan. Sullivan experienced complicationsfollowing surgery, including a perforated bowel. In September 1998,Sullivan filed a medical malpractice complaint against Dr. Eichmann,and alleged that Dr. Eichmann's negligent conduct caused her medicalcomplications. A letter attached to the complaint, signed by Dr.Harrith M. Hasson, provided that Dr. Eichmann deviated from thestandard of care during his treatment of Sullivan. See 735 ILCS5/2-622 (West 1998). At the time of filing her complaint, Sullivan wasrepresented by trial counsel Gregory Barrett.

Subsequently, the parties conducted discovery. Several timesduring discovery, court orders were amended to extend the time todisclose and depose fact and expert witnesses. The trial courtrepeatedly ordered Sullivan to formally disclose the name of herexpert and the expert's opinions, and to make the expert available tobe deposed. On February 15, 2001, during a routine status hearing,Barrett informed the court that Dr. Hasson was withdrawing as anexpert and was not willing to testify that Dr. Eichmann was negligent.Barrett requested additional time to seek a new expert. The courtgranted the request, and ordered Sullivan to disclose an expert andanswer all interrogatories by March 19, 2001. Sullivan did not complywith the trial court's order. On April 6, 2001, Dr. Eichmann filed his"Combined Motions to Dismiss and/or for Summary Judgment."Pursuant to Supreme Court Rule 219, Dr. Eichmann sought thedismissal of Sullivan's complaint due to Sullivan's failure to complywith the trial court's discovery orders. See 166 Ill. 2d R. 219(c).Alternatively, Dr. Eichmann sought summary judgment as a matter oflaw because Sullivan failed to identify or provide the opinion of anexpert witness who would state that Dr. Eichmann deviated from thestandard of care. See 735 ILCS 5/2-1005 (West 2002). Dr. Eichmannargued that without an expert Sullivan was not able to establish aprima facie case of medical negligence.

On May 4, 2001, the motion for summary judgment was heard bythe trial court. A court reporter was not present during the hearingand, therefore, the record does not contain a transcript. However,Sullivan's motion to reconsider and petition for leave to appeal to thiscourt, together with Dr. Eichmann's brief to this court and thetranscript from the hearing on Sullivan's motion to reconsider, providea sketch of what transpired on May 4, 2001. The transcript disclosesthat Sullivan's new counsel, Michael Holoka, provided an oralaccount of what occurred in court on May 4, 2001. Dr. Eichmann didnot contest the facts as orally detailed by Sullivan's attorney. Further,Dr. Eichmann did not contest the facts as outlined by Sullivan in herpetition for leave to appeal to this court or during oral argumentbefore this court. It is evident, therefore, that the following occurredon May 4, 2001.

Sullivan's original trial counsel, Barrett, appeared at the summaryjudgment hearing. Sullivan herself was not personally present.Additionally, a new attorney, Michael Holoka, of the law firm ofKralovec, Jambios & Schwartz, appeared at the hearing. Prior to thearguments, Holoka tendered to the court a document entitled"Substitution of Attorneys," which appears in the record. Thedocument, signed by Sullivan and a member of Holoka's law firm,designated the firm of Kralovec, Jambois & Schwartz as Sullivan'snew attorneys. The document was also signed by Barrett andpurported to withdraw Barrett's law firm from the matter. Holokainformed the court that he did not have an expert affidavit availablewith him in court, but that he had retained an expert who would testifythat Dr. Eichmann deviated from the standard of care in his treatmentof Sullivan. Holoka provided the name of the expert to both defensecounsel and the court. Holoka explained that because he was onlyretained in mid-April, and the expert was also newly retained, he wasnot able to obtain the new expert's opinion in writing prior to thehearing. Defense counsel objected to the substitution and argued that,absent an expert's counteraffidavit, substitution should be denied. Thetrial court denied Sullivan's substitution request, and proceeded tohear the motion for summary judgment. Defense counsel presented themotion, Barrett informed the court that he had no response to themotion, and the court entered summary judgment in favor of Dr.Eichmann. The order provided in part:

"There is no genuine dispute as to any material fact and thatdefendant is entitled to summary judgment as a matter of law.By reason of the granting of defendant's motion for summaryjudgment, defendant's motion to dismiss, with prejudice,pursuant to section 2-619 of the Illinois Code of CivilProcedure and SCR 219(c) is moot.

Substitution of counsel should not be allowed to delay theentry of an order allowing defendant's dispositive motion butdefendant has no objection to the substitution with respect toany post-judgment proceedings."

This same order allowed Holoka's substitution for purposes ofany postjudgment proceedings. On May 23, 2001, Sullivan filed amotion for reconsideration. The motion explained that a personaltragedy impaired Barrett's ability to represent her in the matter.Sullivan attached to the motion her own affidavit providing thatBarrett first informed her on April 11, 2001, "that he did not haveenough time to retain an expert" to oppose summary judgment andthat she immediately sought other counsel to represent her. Sullivanalso attached to the motion an amended answer to Dr. Eichmann'sSupreme Court Rule 213 interrogatories, as well as a report, affidavit,and curriculum vitae of her new expert witness, Dr. Howard Topel.Dr. Topel's affidavit stated that he received materials regardingSullivan's medical condition on April 17, 2001, reviewed thematerials, and orally communicated his opinion to Sullivan's attorneyon May 2, 2001: Dr. Topel's opinion was that Dr. Eichmann did notmeet the standard of care required in the pertinent medical field. Themotion informed defense counsel and the court that Dr. Topel wasprepared to proceed with his deposition, and dates were tendered forthe taking of his deposition.

The court denied the motion to reconsider and entered thefollowing written memorandum of decision:

"I have considered at great length the arguments of counseland tried very hard to weigh the equities involved. I will firstsay that I disagree with the procedural history as recited byMr. Holoka. I did not do so on the record because I did notsee the value in doing so in the limited time available.

However, my recollection of the history of this case is thatthe plaintiff's counsel who preceded Mr. Holoka on the fileappeared at or near the discovery cut off and indicated thathis expert now declined to testify. The clear implication wasnot that it was now inconvenient due to delays as suggestedby Mr. Holoka, but that he now declined to swear that therewas negligence. It was further suggested that counsel feltfinding an expert would be difficult but that he would like thediscovery date extended in order to try to find someone who'would be willing to testify on her behalf.' Again, theimplication was that he doubted that anyone would be foundfor that purpose. The time to disclose came and went withoutan expert having been found. The summary judgment motionwas thirty days later and there was no sworn attestation tothe availability of an expert. The motion to reconsider isdenied."

The appellate court affirmed the trial court. No. 2-01-1386(unpublished order under Supreme Court Rule 23). The appellatecourt noted that leave is not required when an attorney seeks to enteran appearance. The appellate court declined, however, to considerwhether the trial court erred in denying the motion for substitutionbecause the record on appeal was inadequate to determine "theprecise nature" of what occurred during the proceedings. Theappellate court noted Sullivan's various failures to meet discoverydeadlines and held that "lacking any record from the hearing, we mustpresume that the trial court's order denying plaintiff's request tosubstitute attorneys was in conformity with the law and supported bythe record." No. 2-01-1386, citing Webster v. Hartman, 195 Ill. 2d426, 433-34 (2001). Further, because Sullivan failed to present anaffidavit of an expert witness regarding Dr. Eichmann's standard ofcare, the trial court did not err in granting summary judgment. Thisappeal followed.

ANALYSIS We first address Dr. Eichmann's argument that the record isinsufficient to permit our review of whether the denial of substitutionof counsel constituted an abuse of the trial court's discretion. It iscorrect that on appeal the appellant must present a complete record toreview the claim of error. Webster, 195 Ill. 2d at 432. Here, asdiscussed previously, the factual circumstances are evident inSullivan's motion to reconsider summary judgment, the transcript ofthe arguments from the motion to reconsider, and the parties' briefsto this court. These facts are not refuted or contested. Accordingly,the record is sufficiently complete to review the issue.

We further address Dr. Eichmann's contention that this court"must assume the new attorney was not in any way hampered in hisappearance." Specifically, Dr. Eichmann argues that the new attorneymust have been permitted to "appear" because the record containsinformation about the newly retained expert witness, and this expertwas retained by the new attorney. Simply stated, Dr. Eichmann arguesthat if the new attorney did not appear, this information would not bein the record.

It thus appears that Dr. Eichmann equates Holoka's physicalpresence in court with an "appearance." We refuse to engage in suchlinguistic gymnastics. The record is clear: the trial court denied themotion for substitution, and Holoka was not permitted to appear.Therefore, we now address whether the trial court abused itsdiscretion in denying substitution.

Under Supreme Court Rule 13(c)(1), an "attorney shall file hiswritten appearance or other pleading before he addresses the courtunless he is presenting a motion for leave to appear by intervention orotherwise." 134 Ill. 2d R. 13(c)(1). Leave is not required when anattorney seeks to enter an appearance. Firkus v. Firkus, 200 Ill. App.3d 982, 990 (1990). We "recognize the established right of a party todischarge his attorney at any time with or without cause, and tosubstitute other counsel, for a client is entitled to be represented by anattorney in whose ability and fidelity he has confidence." Savich v.Savich, 12 Ill. 2d 454, 457-58 (1957). Further, as properly noted bythe appellate court, an attorney may enter his or her appearance evenif the client is currently represented by another law firm or attorney.See Firkus, 200 Ill. App. 3d at 990.

Despite these general principles, however, some limitations doapply. The right to substitute counsel is not absolute. People v.Franklin, 415 Ill. 514, 516-17 (1953). The trial court may denysubstitution if the "substitution of counsel would unduly prejudice theother party or interfere with the administration of justice." Filko v.Filko, 127 Ill. App. 2d 10, 17 (1970); Franklin, 415 Ill. at 516-17. Inmaking this determination, trial courts may consider the detriment tothe moving party caused by the denial of substitution. Filko, 127 Ill.App. 2d at 17. We will not reverse a trial court's decision to denysubstitution absent an abuse of discretion.

Dr. Eichmann argues that the "history of the case," referring toSullivan's failure to meet discovery deadlines, justified the trial court'sdenial of substitution. Dr. Eichmann argues that unless trial courtshave discretion to deny substitution of counsel, litigants will be ableto unfairly prolong the entry of summary judgment. The trial court'sown order conveys that this was, in fact, the basis for its decision:"[s]ubstitution of counsel should not be allowed to delay the entry ofan order allowing defendant's dispositive motion." Further, theappellate court appears to partly justify the trial court's decision todeny substitution based upon Sullivan's failure "to meet numerousdiscovery deadlines."

While we agree that trial courts must have discretion to denysubstitution, especially when substitution is used as an attempt toprolong or delay the entry of a dispositive motion, there is noindication in the record to support that this was Sullivan's motivehere. Rather, the record reveals that Barrett failed to properlyprosecute Sullivan's case, and new counsel was retained to betterrepresent her interests. Specifically, Sullivan learned on April 11, fivedays after the motion for summary judgment was filed, that Barrettwould not seek to retain another expert to support her cause, and sheimmediately sought other counsel. Six days later, Sullivan had retainednew counsel, and this attorney had contacted an expert to review thematter. The record further reveals that, immediately prior toarguments on the motion for summary judgment, Holoka orallyinformed the court that he had retained an expert, provided the nameof this expert, and stated that this expert would offer an opinion andtestify that Dr. Eichmann deviated from the standard of care. WhetherDr. Eichmann deviated from the standard of care, and whetherSullivan could offer an expert to testify on this issue, was the subjectof the motion for summary judgment, which had been filed less than30 days earlier. The record simply does not support Dr. Eichmann'scontention that the substitution of a new attorney at this stage in thelitigation would delay the administration of justice. Cf. Filko, 127 Ill.App. 2d at 17 (refusing substitution at the time a divorce decree wasto be entered was not an abuse of discretion where settlement decreehad been agreed upon and all that was required to conclude the matterwas entry of the written decree).

We further note that a trial court is obligated to consider both theprejudice to the defendant and the detriment caused to the movingparty by denial of substitution. It is clear that the retention of anexpert was relevant to the outcome of the summary judgment motion,and information regarding the expert was only available if the courtallowed Sullivan's new attorney to appear. Here, the trial courtidentified no specific undue prejudice to defendant caused bypermitting substitution. Yet, the record reveals significant prejudice toSullivan by denial of the motion. Sullivan was deprived of counselwho represented her interests, denied the attorney of her choice, androbbed of the opportunity to tender an expert opinion when the courtwas advised that one existed. The denial of counsel of her choice inthis case denied Sullivan representation by an attorney in whose"ability and fidelity" she had confidence. Without Holoka'sparticipation in the arguments, she was unable to respond to themotion for summary judgment and unable to prosecute her cause ofaction.

Dr. Eichmann asserts that Sullivan was not prejudiced by thedenial of substitution because even if the trial court had allowed thesubstitution prior to arguments, new counsel lacked an expert'scounteraffidavit to defeat summary judgment. All parties acknowledgethat Holoka did not possess a counteraffidavit on May 4, 2001, butrather only had an expert's oral opinion prior to the hearing. Dr.Eichmann further argues that even if Sullivan could not present anexpert's affidavit at the time of the hearing, she also failed to availherself of other procedural mechanisms to defeat summary judgment.Specifically, Dr. Eichmann argues that Sullivan failed to file anaffidavit pursuant to Supreme Court Rule 191(b) (134 Ill. 2d R.191(b)). Dr. Eichmann thus argues that Sullivan was not prejudicedbecause the outcome would have been the same with Holoka'sparticipation.

We disagree. We do not know what would have occurred had thetrial court allowed the substitution. As noted during oral argumentsbefore this court, it is clear that Sullivan's new counsel had thenecessary evidence to overcome summary judgment and could easilyhave provided his own affidavit to the court if called upon to do soonce his appearance was permitted. It is possible that Sullivan's newcounsel would have requested a short continuance to obtain theexpert's written affidavit and that this continuance would have beengranted. Such speculation, however, is neither appropriate nornecessary here. Under the circumstances in this case, the decision todeny substitution foreclosed the possibility of any measures toovercome summary judgment. Dr. Eichmann's assertion that Sullivanwas not prejudiced ignores the reality that the act of denyingsubstitution barred events that would have likely led to the denial ofsummary judgment or, alternatively, would now serve as evidence ofprejudice. We will not let one incorrect ruling-the denial ofsubstitution-justify another-the grant of summary judgment.

Accordingly, we find that the denial of substitution prior toarguments on Dr. Eichmann's motion for summary judgmentconstituted an abuse of discretion and that, under the facts of thiscase, this abuse of discretion constituted reversible error. For thisreason, we need not consider additional issues raised by the litigants.

CONCLUSION

For the reasons discussed above, we reverse the judgments of thecircuit and appellate courts and remand the matter to the circuit courtfor further proceedings.

Reversed and remanded.