Brown v. Jaimovich ( 2006 )

FIRST DIVISION
March 31, 2006
No. 1-05-0146
MICHAEL BROWN, Individually and as ) Appeal from the
Independent Administrator of the ) Circuit Court of
Estate of MICHAEL BROWN, JR., ) Cook County.
Deceased, and JEANNE BROWN, )
Individually, )
)
Plaintiffs-Appellees, )
)
v. )
)
DAVID JAIMOVICH, M.D., CRITICARE )
SYSTEMS, LTD., JAVEED AKHTER, M.D., )
and ADVOCATE CHRIST MEDICAL CENTER, )
d/b/a ADVOCATE CHRIST HOSPITAL AND )
MEDICAL CENTER and d/b/a HOPE )
CHILDREN'S HOSPITAL, )
)
Defendants-Appellants, )
)
and )
)
(George Skarpathiotis, M.D., George )
Skarpathiotis, M.D., S.C., a )
corporation, Chicago Pediatrics, )
Ltd., a corporation, Palos )
Pediatrics, Ltd., a corporation, and )
Companion Care Medical Group, Inc., )
Suburban Pediatric Pulmonology ) Honorable
Associates, S.C., Jaidid, LLC, ) Michael J. Hogan,
Defendants). ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Defendants David Jaimovich, M.D., Criticare Systems, Ltd.,
Javeed Akhter, M.D., and Advocate Medical Center, doing business as
Advocate Christ Hospital and Medical Center and doing business as
of the Hope Children's Hospital appeal from an order of the circuit
court converting them from respondents in discovery to defendants
1-05-0146
under section 2-402 of the Illinois Code of Civil Procedure (Code)
(735 ILCS 5/2-402 (West 2004)), in plaintiffs Michael Brown,
individually and as the independent administrator of the Estate of
Michael Brown, Jr., and Jeanne Brown's medical malpractice action
against defendants. This matter is before us on interlocutory
appeal pursuant to the following question certified by the trial
court:
"Whether a trial court had discretion to
extend the six-month statutory window for
conversion set forth in 735 ILCS 5/2-402 after
the September 25, 2003 decision in Robinson v.
Johnson, 346 Ill. App. 3d 895, 809 N.E.2d 123,
284 Ill. Dec. 1 (1st Dist. September 25, 2003)
(No. 1-02-2121), rehearing denied (Mar. 22,
2004), opinion supplemented on denial of
rehearing by Robinson v. Johnson, 346 Ill.
App. 3d 895, 2004 WL 594098 (1st Dist. Mar.
25, 2004), and subsequently order conversion
of respondents in discovery to defendants
after the initial six-month statutory window
had expired."
For the reasons set forth below, we answer the certified question
in the affirmative, as limited.
STATEMENT OF FACTS
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This lawsuit arose as a result of the death of plaintiffs'
eight-year-old son due to the alleged negligence of certain
entities and individuals. On April 11, 2003, plaintiffs filed
their complaint against Dr. George Skarpathitis, George
Skarpathiotis, M.D., S.C., a corporation, Chicago Pediatrics, Ltd.,
and Palo Pediatrics, Ltd. and named, inter alia, Dr. Javeed Akhter,
Companion Care Medical Group, Inc., Suburban Pediatric Pulmonology
Associates, S.C., Jaidad, LLC, Dr. David Jaimovich, Criticare
Systems, Ltd., and Advocate Christ Medical Center as respondents in
discovery. Pursuant to section 2-402, plaintiffs had until October
11 to convert respondents in discovery into defendants.
Thereafter, plaintiffs submitted discovery requests to Akhter. On
June 2, plaintiffs also submitted discovery requests to Jaimovich.
On September 3, Akhter answered plaintiffs= discovery. On
September 18, plaintiffs filed a motion to extend the time for
discovery and to extend the time to convert respondents in
discovery for 120 days to February 11, 2004, because, in part,
respondents had not answered discovery and had not appeared for
depositions.
On September 25, 2003, the Robinson court answered the
following certified question in the negative: "whether a trial
court has discretion pursuant to Illinois Supreme Court Rule 183
(134 Ill. 2d R. 183) to extend the six-month statutory period set
forth in section 2-402 *** for converting respondents in discovery
to defendants." Robinson, 346 Ill. App. 3d at 897-98.
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Subsequently, the Robinson plaintiff filed a petition for rehearing
and the court granted leave to the Illinois Trial Lawyers
Association to file an amicus curiae petition for rehearing.
Robinson, 346 Ill. App. 3d at 907.
On September 26, the trial court here, unaware of Robinson,
granted plaintiffs= motion to extend to February 11, 2004. On
October 6, Dr. Akhter cancelled his deposition that had been
previously scheduled and confirmed for this date. On October 23,
Akhter filed a motion to terminate his status as a respondent in
discovery and to reconsider the court's September 26 order based on
Robinson. Six days later, Advocate Christ Medical Center filed a
motion to terminate its status as a respondent in discovery. On
October 30, the trial court set a briefing schedule and set a
status date for December 22.
On December 2, plaintiffs filed an emergency motion for an
extension of time to file a response to Dr. Akhter=s motion to
reconsider, which the trial court granted, giving plaintiffs until
December 13 to respond, and set the case for status on January 13.
On December 12, the trial court granted plaintiffs= additional
emergency motion for an extension to respond, and continued
defendants' motion to terminate and reconsider for status on
January 13.
On January 13, 2004, the trial court continued defendants'
motions to terminate and reconsider to March 15. On February 11,
plaintiffs filed an emergency motion to extend time to convert
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respondents into defendants on the basis respondents filed motions
to reconsider and a petition for rehearing was pending in Robinson.
Plaintiffs' motion was continued to February 17. On February 12,
Dr. Jaimovich answered plaintiffs= discovery requests propounded in
June 2003. On February 17, the trial court continued plaintiffs=
emergency motion to extend time to convert to March 15. On March
15, the trial court continued defendants and plaintiffs= motions to
March 20 for status.
On March 25, the Robinson court denied the petitions for
rehearing, but supplemented and modified its opinion. On
rehearing, the Robinson court addressed the applicability of
section 2-1007 of the Code, "Extension of Time and Continuances,"
to the issue at hand as well as prospective versus retroactive
applicability of its ruling. The Robinson court held that
"our decision that Supreme Court Rule 183 does
not provide a basis to extend the six-month
time limit of section 2-402 applies only to
those cases in which plaintiffs sought and
received extensions of their section 2-402
motions beyond that section's six-month time
limit commencing after the date of our
decision in this case." Robinson, 346 Ill.
App. 3d at 911.
On April 7, plaintiffs filed a motion to convert certain
respondents in discovery into defendants, including defendants
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before this court. On April 19, a briefing schedule was set with a
status date set for June 16. On May 3, plaintiffs filed their
brief in support of probable cause for conversion. Thereafter,
defendants filed responses to plaintiffs' motion to convert.
However, on June 2, plaintiffs filed an emergency motion to strike
the briefing schedule based on the fact the plaintiff in Robinson
had filed a petition for leave to appeal (PLA) to the supreme
court, requesting that their motion to convert be continued until
the supreme court resolved the PLA. The trial court granted
plaintiffs= motion to strike the briefing schedule and set a status
date for June 30. On June 30, the trial court continued the case
to October 13.
On October 6, the supreme court denied the PLA filed in
Robinson. On October 13, the trial court in the instant case set
the matter for status on November 5 and thereafter set the case for
hearing on December 6. On December 6, the trial court granted
plaintiffs= motion to convert respondents in discovery to
defendants, denied defendants= motions to terminate status as
respondents in discovery, and denied defendants= motions to
reconsider its order of September 26, 2003. At a hearing on this
date, plaintiffs' counsel in argument indicated that the reason for
the delay in ruling on motions in this case was because the parties
and court were waiting for the Robinson issue to be decided. None
of respondents' attorneys objected to this comment, nor did they
argue to the contrary in their arguments. Thereafter, plaintiffs
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filed their amended complaint, adding respondents in discovery as
defendants.
On January 4, 2005, Dr. Akhter filed an emergency motion to
reconsider the court's December 6, 2004, order or, in the
alternative, to clarify the appellate court=s language and to
certify a legal question of law for appeal. Dr. Jaimovich and
Criticare joined this motion. The trial court denied the motion
to reconsider, but granted the motion to clarify and certify a
question for appeal. On January 13, the trial court entered an
order allowing defendants an immediate appeal and certified for
appeal the question set forth above. Thereafter, Akhter filed a
petition for leave to appeal the certified question in this court
pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), joined by
Advocate Christ Medical Center, Criticare Systems, Ltd., and
Jaimovich, which we granted.
ANALYSIS
The rules with respect to our review of certified questions
are well-settled:
" 'This court's examination in an
interlocutory appeal is strictly limited to
the questions certified by the trial court
and, as with all questions of law, is a de
novo review.' [Citation.] We will ordinarily
not expand the question under review to answer
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other questions that could have been included
but were not. [Citations.] Our task is to
answer the certified questions rather than to
rule on the propriety of any underlying order.
[Citation.] 'In the interests of judicial
economy and reaching an equitable result,
however, a reviewing court may go beyond the
certified question[s] and consider the
appropriateness of the order giving rise to
the appeal.' [Citations.]" Fosse v.
Pensabene, 362 Ill. App. 3d 172, 177, 838
N.E.2d 258 (2005).
Section 2-402 provides in pertinent part:
"A person or entity named as a respondent
in discovery in any civil action may be made a
defendant in the same action at any time
within 6 months after being named as a
respondent in discovery, even though the time
during which an action may otherwise be
initiated against him or her may have expired
during such 6 month period." 735 ILCS 5/2-402
1
(West 2004).
1
The following language had been added to the statute in 1995,
but was held unconstitutional in 1997: "No extensions of this 6
month period shall be permitted unless the plaintiff can show a
failure or refusal on the part of the respondent to comply with
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timely filed discovery." See Best v. Taylor Machine Works, 179
Ill. 2d 367, 689 N.E.2d 1057 (1997). Additionally, the statute has
again been amended, effective January 1, 2006. The paragraph now
reads:
"A person or entity named as a respondent in
discovery in any civil action may be made a
defendant in the same action at any time
within 6 months after being named as a
respondent in discovery, even though the time
during which an action may otherwise be
initiated against him or her may have expired
during such 6 month period [sic]. An
extension from the original 6-month period for
good cause may be granted only once for up to
90 days for (i) withdrawal of plaintiff's
counsel or (ii) good cause. Notwithstanding
the limitations in this Section, the court may
grant additional reasonable extensions from
this 6-month period for a failure or refusal
on the part of the respondent to comply with
timely filed discovery." 735 ILCS 5/2-402
(Supp. 2006).
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Defendants contend that the trial court erred in granting
plaintiffs' motion for an extension and in ultimately converting
them to defendants nine months after the modified decision in
Robinson because its conduct was contrary to Robinson, which,
according to clear Illinois law, became effective on September 25,
2003, not March 25, 2004, since rehearing was not granted and the
sole modification was an addition to the opinion making application
2
of its ruling prospective. Defendants also argue that plaintiffs
do not fall within the class of plaintiffs prospective application
was intended to protect because Robinson sought to only protect
plaintiffs who had received extensions before the court's ruling
and where respondents in discovery had actually been converted to
defendants, which is not the case here. Defendants also maintain
that prospective application of the Robinson holding was not
available and was unwarranted because the court did not create a
new rule of law. In this regard, defendants argue that Robinson
3
should have retroactive application.
Plaintiffs contend that the trial court did not err in
2
Defendants state on at least four occasions that the sole
modification to the Robinson opinion was adding prospective
language. This is clearly erroneous as detailed above. Robinson
also addressed the applicability of section 2-1007 to the issue at
hand.
3
We decline to address this argument. The Robinson court
concluded that prospective application was proper and defendants
have not cited any authority that we have the ability to second
guess or reverse that determination.
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granting their extension and allowing conversion because Robinson
became effective on March 25, 2004, and they had sought and
received an extension prior to this date. Plaintiffs also argue
that Robinson is ambiguous regarding the effective date of its
decision since the court failed to specify which date it was
referring to and, under principles of justice and fairness, such
ambiguity should be construed in their favor. Plaintiffs maintain
that to apply the Robinson ruling to them would result in the
inequity Robinson sought to avoid and would severely prejudice
them.
The question before us, when did the Robinson ruling,
particularly its prospective application, become effective is not
clearly answered by application of Illinois law. There is no
question that Illinois courts have held that
"the filing of a petition for rehearing does
not alter the effective date of the judgment
of a reviewing court unless that court allows
the petition for rehearing, in which event the
effective date of the judgment is the date
that the judgment is entered on rehearing.
(See 73 Ill. 2d R. 367(a).)" PSL Realty Co.
v. Granite Investment Co., 86 Ill. 2d 291,
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305, 427 N.E.2d 563 (1981). 4
See also Berg v. Allied Security, Inc., 193 Ill. 2d 186, 191-92,
737 N.E.2d 160 (2000); Hickey v. Riera, 332 Ill. App. 3d 532, 542,
774 N.E.2d 1 (2001); People v. Brooks, 173 Ill. App. 3d 153, 157,
527 N.E.2d 436 (1988). It is equally true there is no question
that Illinois courts have held that, when a petition for rehearing
has been filed, the judgment of the appellate court does not become
final until the petition is denied. Glasser v. Essaness Theatres
Corp., 346 Ill. App. 72, 89, 104 N.E.2d 510 (1952). This is so
because the "power to vacate a judgment during term is inherent in
all courts." Glasser, 346 Ill. App. at 89. See also People v.
Brown, 204 Ill. 2d 422, 425, 792 N.E.2d 788 (October 18, 2002),
modified upon denial of rehearing, March 31, 2003 (although the
supreme court issued a written decision on October 18, 2002, it
held that because the defendant had filed a petition for rehearing,
the October 18 decision was not final and was subject to
modification); Berg, 193 Ill. 2d at 192 (holding that the appellate
court's original July 1, 1999, decision was not final because the
defendants had filed petitions for rehearing).
With respect to the first rule of law above, none of the cases
4
Rule 367(a) says nothing about the effect of a petition for
rehearing on the court's decision.
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setting forth this rule dealt with a modified opinion upon denial
of rehearing that added prospective application of its ruling
analysis. In each of those cases, the supplemental opinion upon
denial of rehearing dealt with a change that did not relate to the
original holding. The forerunning case and apparently the first to
announce the rule was PSL Realty Co., relied upon by defendants.
In PSL Realty Co., the appellate court reviewed a trial court order
entering a temporary restraining order (TRO) and appointing a
receiver. PSL Realty Co., 86 Ill. 2d at 303. On July 23, 1976,
the appellate court issued its decision, dissolving the TRO and
receivership. However, the appellate court remanded the cause to
the circuit court for a determination of the proper amount of fees
and expenses to be paid to the receiver for its past work. PSL
Realty Co., 86 Ill. 2d at 304. Both parties filed petitions for
rehearing, but neither challenged the dissolution of the
receivership. PSL Realty Co., 86 Ill. 2d at 304. The appellate
court entered a supplemental opinion upon denial of rehearing on
September 23, 1976. PSL Realty Co., 86 Ill. 2d at 304. The
question before the supreme court was what was the effective date
of the judgment of the appellate court. PSL Realty Co., 86 Ill. 2d
at 304. In PSL Realty Co., the petitions for rehearing were not
allowed, but were denied. PSL Realty Co., 86 Ill. 2d at 305.
However, the original opinion was modified on denial of rehearing,
but only as to the matters to be considered on remand.
Accordingly, the PSL Realty Co. court held that the "judgment of
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the appellate court entered on July 23, 1976, was final as to the
dissolution of the receivership." PSL Realty Co., 86 Ill. 2d at
305. More specifically, the supplemental opinion "did nothing to
alter the holding of the original opinion" and "confirmed the
holding of the original opinion." PSL Realty Co., 86 Ill. 2d at
310. As such, July 23, 1976, was the effective date of the
appellate court's decision.
In Brooks, also relied upon by defendants, the question before
the court was whether the decision in People v. Zehr, 103 Ill. 2d
472, 469 N.E.2d 1062 (March 23, 1984), modified upon denial of
rehearing, September 28, 1984, applied to the voir dire examination
in Brooks that was conducted on March 31, 1984. Brooks, 173 Ill.
App. 3d at 156. The State maintained that Zehr did not apply
because, at the time of the voir dire, the petition for rehearing
in Zehr was pending and, thus, the ruling was not applicable.
Brooks, 173 Ill. App. 3d at 156. The Brooks court disagreed with
the State, finding that "the modification [in Zehr] concerned a
matter completely unrelated to the voir dire [sic] issue originally
addressed by the supreme court in the July 31, 1984, Zehr opinion.
Therefore, the modification of the unrelated issue did not
5
supersede and vacate that portion of Zehr dealing with voir dire."
Brooks, 173 Ill. App. 3d at 157. Accordingly, the Brooks court
5
How the Zehr decision was modified is not evident from the
supplemental opinion. However, it is clear that it did not involve
prospective application because the opinion contains no discussion
of prospective application.
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concluded that "the law as set forth in Zehr on July 31, was
clearly applicable to the voir dire proceeding in defendants'
case." Brooks, 173 Ill. App. 3d at 157.
The instant case is different than PSL Realty Co. and Brooks
because, although the supplemental opinion in Robinson confirmed
the court's previous ruling, the supplemental opinion added
additional analysis regarding that ruling and, therefore, related
to the original holding. Thus, PSL Realty Co. and Brooks are not
on point and do not support defendants' position here that the
effective date of Robinson was September 25, 2003.
Moreover, the supreme court cases cited by the parties and
others located through our independent research that deal with
prospective application of the court's ruling provide a date upon
which the prospective application became effective and most were
not the date of the court's original decision. Defendants rely on
Torres v. Walsh, 98 Ill. 2d 338, 456 N.E.2d 601 (September 16,
1983), modified on denial of rehearing, December 2, 1983, Sunich v.
Chicago & Northwest Transportation Co., 106 Ill. 2d 538, 478 N.E.2d
1362 (1985), and Elg v. Whittington, 119 Ill. 2d 344, 518 N.E.2d
1232 (November 16, 1987), modified upon denial of rehearing,
February 11, 1988, in support of their argument that the original
date of a decision is controlling with respect to prospective
application. In Torres, the opinion was originally silent upon the
applicability of its ruling. In the modified opinion, however, the
court added the following language:
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"[S]ince this is the first pronouncement of
this court allowing the intrastate application
of the doctrine of forum non conveniens, we
believe it is only equitable that we apply our
holding to this case *** and to all cases
filed on or after September 16, 1983, the date
on which the opinions in this case and [the
companion case] were filed." Torres, 98 Ill.
2d at 353.
See also Sunich, 106 Ill. 2d at 544-45 (confirming that Torres only
applied to the parties at issue and to cases filed on or after the
date the decision was filed (September 16, 1983)). In Elg, the
court, too, added prospective application analysis in its modified
opinion, holding that the court's interpretation of Rule 304(a)
adopted in its decision "will apply prospectively to all cases in
which the notice of appeal was filed or due to be filed on or after
our decision in this case was first announced, November 16, 1987."
Elg, 119 Ill. 2d at 359. These cases specifically and explicitly
related their prospective application back to the original filing
date. The same is not true in the instant case.
Other cases have addressed the question of the effective date
of prospective applicability with differing dates. See Alvis v.
Rebar, 85 Ill. 2d 1, 28, 421 N.E.2d 886 (April 17, 1981), modified
upon denial of rehearing, June 4, 1981 (adding in supplemental
opinion that the applicability of the rule announced in the
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1-05-0146
decision applied to the parties on appeal and "all cases in which
trial commences on or after June 8, 1981, the date on which the
mandate in this case shall issue"); Skinner v. Reed-Prentice
Division Package Machinery Co., 70 Ill. 2d 1, 17, 374 N.E.2d 437(December 17, 1977), supplemental opinion on denial of rehearing,
January 26, 1978, modified, March 1, 1978 (adding in supplemental
opinion that the court's ruling "will apply prospectively to causes
of action arising out of occurrences on and after March 1, 1978");
Stevens v. Silver Manufacturing Co., 70 Ill. 2d 41, 46, 374 N.E.2d
455 (1977) (same dates and ruling as Skinner); Robinson v.
International Harvester Co., 70 Ill. 2d 47, 50, 374 N.E.2d 458(December 12, 1977), modified, January 26, 1978 (same applicability
as Skinner, i.e., to causes of action arising after March 1, 1978);
Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 359, 367 N.E.2d 1250(August 8, 1977), rehearing denied, October 3, 1977 (holding that
the rule announced in the original decision applied to the
plaintiffs and "only to cases arising out of future conduct");
Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326,
338, 211 N.E.2d 253 (1965) (decision "given prospective effect
only, from the date upon which the opinion in this case becomes
final"); Molitor v. Kaneland Community Unit District No. 302, 24
Ill. 2d 467, 470, 182 N.E.2d 145 (1962), and Molitor v. Kaneland
Community Unit District No. 302, 18 Ill. 2d 11, 28-29, 163 N.E.2d
89 (1959) (doctrine of governmental immunity abolished with respect
to actions arising out of occurrence there and to cases arising in
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the future).
Confusing the issue even more is Brown. In Brown, the
defendant raised challenges to the supreme court's vacatur of his
death sentence and remandment for a new sentencing hearing. Brown,
204 Ill. 2d at 424-25. On October 18, 2002, the supreme court
issued its written decision, in which it vacated the defendant's
death sentence. Brown, 204 Ill. 2d at 425. Thereafter, the State
moved for a stay of the mandate pending the filing of certiorari
proceedings in the United States Supreme Court, which the supreme
court allowed. The defendant also filed a petition for rehearing
in November, which the Brown court found "prevented our decision
from being considered final." Brown, 204 Ill. 2d at 425. On
January 10, 2003, Governor Ryan commuted the defendant's death
sentence. In finding that Ryan's conduct rendered the defendant's
sentencing challenges moot, the Brown court found that "once
defendant filed a petition for rehearing in this case, the original
October 18, 2002, decision was not a final one and was subject to
modification." Brown, 204 Ill. 2d at 425. Accordingly, the court
concluded that as of January 10, 2003, "defendant remained under an
existing sentence of death." Brown, 204 Ill. 2d at 425. This case
seems to stand for the proposition that the October 18, 2002,
decision was not effective as of that date even though the supreme
court ultimately denied rehearing. Specifically, although the
supreme court had vacated the defendant's death sentence, it
nonetheless concluded that when Ryan commuted it, the defendant was
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still under an existing death sentence. Thus, in essence, the
supreme court found that its October 18, 2002, decision was not
effective as of that date.
To answer the certified question here, again, the core
question is to what cases does Robinson apply. Unlike those
reported decisions identified above, Robinson does not explicitly
state the date it was referring to as the "date of our decision,"
whether that date be the original filing date, the modified date,
some other date in the future, or some other definite event or
time. Thus, we must attempt to glean from the language used what
the Robinson court intended. With respect to the meaning of the
"date of our decision," we interpret this to mean September 25,
2003. Specifically, the Robinson court referred to the plaintiffs
who had "sought and received" extensions. This language is in the
past tense. If the Robinson court had intended for the modified
date to be the "date of our decision," we believe it would have
used the terms "seek and receive." However, this does not end our
analysis because the Robinson court included additional language,
which we find limits this date further. Specifically, the court
stated "beyond that section=s six month time limit commencing after
[September 25, 2003]." (Emphasis added.) Robinson, 346 Ill. App.
3d at 911. We find that this language means that the ruling
applies only to those cases where the six-month time limit began to
run as of September 26, 2003 (the day after the Robinson court's
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initial decision). Thus, by inference, the ruling applies only to
cases filed after September 25, 2003, because when a case is filed
naming respondents in discovery, the six-month term begins (or
commences) at that time. Commence means to "BEGIN, START,
ORIGINATE" (Webster's Third New International Dictionary 456
(1993)) and the only reasonable interpretation of this language, in
the context it was used, is that it refers to the six-month term
beginning as of September 26. There is no other logical reason to
use the term "commencing." By way of an example, a plaintiff filed
a complaint on September 26, 2003, and named John Smith as a
respondent in discovery. The plaintiff had until March 26, 2004,
to convert Smith to a defendant. However, if plaintiff knew he/she
would be unable to do so and on March 15 filed a motion for an
extension of time to convert Smith to a defendant, which was
granted to June 26, 2004, the Robinson ruling would apply.
Specifically, the six-month period commenced on September 26, 2003,
and the plaintiff sought and received an extension beyond that
limit. This extension would be controlled by Robinson and, thus,
would be improper. Based on the foregoing, we answer the certified
question in the case at bar in the affirmative, with the limitation
espoused above.
In the instant case, because plaintiffs= case does not fall
within the range of prospective application, i.e., their case was
filed before September 26, 2003, and, as such, defendants were
named as respondents in discovery prior to that date, thus the six-
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month period did not commence after the Robinson decision, the
custom and practice allowing for extensions and conversions in
existence before Robinson applied. Therefore, contrary to
defendants' argument, the trial court did not err in converting
them to defendants even though it was nine months after the
Robinson modified decision. This is particularly true given the
unique facts of this case. Accordingly, this cause is remanded to
the circuit court for proceedings consistent with our decision.
CONCLUSION
For the reasons stated, we affirm the judgment of the circuit
court of Cook County.
Certified question answered; cause remanded.
CAHILL, P.J., and GORDON, J., concur.
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