Madison - St. Clair Record

Sunday, September 22, 2019

Fifth District overturns Kievlan in hospitals' move for substitution

By Chandra Lye | Apr 4, 2017

The Fifth District Appellate Court has overturned the decision of St. Clair County Associate Judge Patricia Kievlan who denied St. Elizabeth's Hospital's motion to substitute her as judge in a slate of cases involving unpaid bills.

"The trial court's order denying plaintiffs' petition for substitution of judge for cause must be vacated where the trial court failed to determine whether the petition satisfied the threshold requirements under the substitution of judge statute, and improperly decided the petition on the merits," the order issued March 3 states. "Plaintiffs and their counsel were entitled to an evidentiary hearing before the trial court entered an order, sua sponte, dismissing plaintiffs' cases as a sanction for the conduct of plaintiffs' counsel, and the order of dismissal must be vacated."

The small action cases were filed by St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of Saint Francis and Protestant Memorial Medical Center, who operate Belleville Memorial Hospital.

However, the 20 cases were all dismissed by Kievlan after the attorney for the hospitals failed to show up for the initial hearing on Feb. 8, 2016.

“An order entered on Feb. 8, 2016, indicates that the cases were called for hearing that day, that the defendants appeared, that the plaintiffs did not appear, and that the trial court dismissed each case without prejudice,” Justice Judy Cates wrote in the court decision.

A few weeks later, on Feb. 24 ,the plaintiff’s attorney, Gary Apoian, filed a motion to reinstate each case that had been dismissed. He claimed that he had been on his way to the court for the initial hearing on Feb. 8 but his flight was delayed.

“His flight was delayed in New York due to heavy air traffic, and that upon arrival in St. Louis, the plane was held on the tarmac, awaiting an open gate. Mr. Apoian stated that he called his paralegal as soon as passengers were permitted to use their cellphones, and explained the reason he was not in court,” court documents indicate.

His paralegal informed the court that he could be there by 11:30 a.m. but “the court rejected this proposed delay, as it was further asserted that the court dismissed, without prejudice, the cases of those pro se defendants who had appeared and objected to further delay.”

A second hearing date was set for March 14, however before that date Apoian was asked to produce a copy of his airline ticket to verify his story.

“Mr. Apoian further indicated that he would not submit his travel documents because ‘the court has intruded upon the privacy and confidentiality of counsel, without any explanation of why the court doubts the truthfulness of counsel's account.’”

Apoian requested that Kievlant recuse herself before ruling on any of the motions, according to the court documents, “because he ‘verily believes that the trial court harbors an animus toward counsel.’”

Cates also wrote in the decision that, “Apoian proposed that if the court decided not to recuse itself, then any future proceedings should be held in open court before a court reporter.”

During the trial court’s considerations, Cates noted that the court found some errors in Apoian’s account of the morning of Feb. 8.

The court took issue with the attorney’s claims that he telephoned his paralegal as he was sitting in an airplane on the tarmac. They instead noted that it was the paralegal that was ordered by the court to phone Apoian.

It also claimed his assertion “that it was decided that those who wished to consent to judgment could do so, with the assistance of Mr. Apoian’s experienced paralegal.”

Rather the court noted that. “it was the court, not the paralegal, who prepared orders for any defendants who wished to enter a consent judgment that day.”

Regardless, the case was remanded for further proceedings.

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Illinois Fifth District Appellate Court St. Elizabeth's Hospital