THIRD DI VISI ON September 10, 2008

No. 1-08-0342

JOSEPH KAMELGARD, ) Appeal from the Circuit Court of ) Cook County

, Illi nois Petitioner -Appella nt, )

) No. 07 L 3322 v. ) ) Honorable Randye Kogan, AMERI CAN COL

LEGE OF SURGEO

NS, ) Judge Presiding

) Respondent-Appellee. )

PRESID ING

JUSTICE

MURPHY de livered

the opinion of the c ourt: On March 30, 2007, petitioner, Joseph Kamelgard, M.D., filed a pe tition for discovery pursuant to Supreme Court Rule 224 (134 Ill. 2d R. 224) seeking the identities of three surgeons who investigated a complaint about petitioner received by respondent, the American College of Surgeons (the College). The trial cour t dismissed the petition after conducting an in camer a review of certain documents. On appea l, petitioner argues that the dismissal should be reversed because (1) the c ourt initia

ted an unl awful ex parte

communication and (2) he was entitled to the identities of the three surgeons. I. BACKGROUND Responde nt is an as sociation

of surg eons that

was foun ded in 191 3 to promot

e the qua lity of care for surgica

l patients. In April 2006, respondent informed petitioner, a member of the College since 1996, that it had received a complaint re garding his expert testimony in a NewNo. 1-08-0342

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York medical-malpractice case. Responde nt referred the complaint to its Central Judiciary Committee, who then engaged three sur geons specializing in bariatric surg ery to re view the complaint. In October 2006, the Centra l Judiciary Committee, having reviewed the complaint and the consulting experts’ findings, charg ed petitioner with a violation of the College’s by laws. However, the Central Judiciary Committee met in February 2007 and summarily decide d to take no further action. On March 30, 2007, petitione r filed a petition f or discov ery

before suit pursuant to Supreme Court Rule 224 seeking (1) the names and contac t information of the physicians delegated by

respondent to investigate the complaint and (2) any documentation generated by these physicians conta

ining their findings, recommendations, conclusion, and investiga tion. The petition alleged that petitioner was damage d “as a result of the complaint” and “the potential adverse findings of such a complaint.” Respondent filed a motion to dismiss arguing that the information that petitioner sought was protected by

section 8-2101 of the Code of Civil Procedure, commonly known as the Medical Studies Act (735 IL CS 5/8-2101 (West 2004)) and that the petition exceeded the scope of Rule 224. The motion was dismissed without prejudice. Respondent filed a renewed motion to dismiss, w

hich rei terated its arg ument re gardin

g the Me dical Stud

ies Act. T

he trial c ourt held a hearing on the motion and set the case for status on January 16, 2008. On Friday , January 11, 2008, the trial court’s c lerk, Gloria Gibbs, left a voice message f or respondent’s lawy

er, Marc Silver, indicating that the judge wanted to conduct an in camer a review of the documents that were reque sted by petitioner. Gibbs reque sted that Silver deliverNo. 1-08-0342

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the documents on Monday or e arly Tuesda y so the judge

could review them before the status hearing scheduled for Wednesday . Silver did not return Gibbs’s call or otherwise speak to her. On Monday, January

14, 2008, Gibbs called Silver again and spoke to another attorne y that worked on the case. She requested that the docume nts be delivered promptly a nd before Wednesday’s status hea

ring. When Silver arrived at his office, he g athered the complaint and the documents exchanged between respondent’ s Central Judiciary Committee and the three a dvising bariatric surgeons. An independent messenger company delivered the documents to the judge’s chambers late Monday

afternoon. After the messenge r left with the documents, Silver called the judge’s docket clerk to advise that the documents we re on their way . No other communications

occurr ed in connection wi

th the subm

ission of the docume

nts. Inc luded with

the documents was a

cover le tter, whi ch state d, “Pursuant to y our requ est for an in camer

a review, please find” the enclosed docume nts, “which are the documents we understand Dr. Kamelgard to be see king.” Silver copied petitioner’s attorney without the

en cl os ur es an d s en t i t t o h im by U ni te d S ta te s m ai l t ha t d ay. Coun sel fo r both parti es app eared at the J anuary 16 s tatus hearin g, where the ju dge announced that she was dismissing the petition and distributed a memorandum opinion to the parties. In the opinion, the court found that, having reviewed the briefs and exhibits, heard oral argument, and conducted an in camer a of the submitted documents, it was terminating the petition. Petitioner did not receive respondent’s January 14 letter until January 18. On January 17, 2008, petitioner filed a motion to reconsider arguing , inter alia , that he was entitled to the namesNo. 1-08-0342

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and addresses of the three consultant phy sicians and that he was not informed that the court would be e

xamining d

ocuments in camer

a . Upon discovering that the trial court had indeed conducted an in camer

a inspection of the documents, petitioner filed a motion requesting that the court vacate the judgment, recuse itself, and stay consider

ation of his motion to reconsider. Petitioner argued that the trial court had eng aged in ex parte communications with respondent’s attorney, in violation of Supreme Court Rules 62 (155 I ll. 2d R. 62) and 63 (210 Ill. 2d R. 63) and Cook County Circuit Court Rule 17.1 (Cook Co. Cir. Ct. R. 17.1 (eff. February 1, 1985)). The judge noted that she did not communicate with respondent’s counsel a nd that petitioner’s counsel was sent a copy

of the transmittal letter. Therefore, the court denie d petitioner’s motion to vacate. II. AN ALYS IS A. Ex Parte

Communication Petitioner argue s that the t

rial cou rt should h ave rec

used itse lf pursua

nt to Rule 63 (C) (210 Ill. 2d R. 63(C)) and vacate d the dismissal because the communications between the judge’ s staff and respondent’s attorney s regarding the in camer

a inspection were ex parte . He concludes that because the trial court engaged in “unlawful and unethical judicial conduct,” his petition for discover y mu st be rein stated. Wh en revie wing a t rial cou rt’s rec usal dec ision, we m

ust determine whether the decision was an abuse of discretion. Barth v. S

tate Farm Fire &

Casualty Co. , 228 Ill. 2d 163, 175 (2008). Supreme Court Rule 62(A) provides that a “judge should respec t and comply with the law and should

conduct h

imself or herself at all time s in a manner that promotes p ublic confidence

inNo. 1-08-0342

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the integrity a

nd impartiality of the judiciary .” 155 Ill. 2d R. 62(A). Pursuant to Rule 63(A)(4), a “judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” 210 I ll. 2d R. 63(A)(4). See also 134 Ill. 2d R. 3.5 (eff. A ugust 1, 1990) (Rules of Professional Conduct) (a lawy er shall not communicate ex parte with a judge). Petitioner also argues that the trial court violated Cook County Circuit Court Rule 17.1 (Cook Co. Cir. Ct. R. 17.1 (eff. February 1, 1985)), which provides that “[n]o judge shall permit and no lawyer sha

ll engage in ex parte communications, unless allowed by law, in connection with any matter pending before said judge .” Cook Co. Cir. Ct. R. 17.1 (eff. February 1, 1985). If an ex parte communication occurs, the judge must disclose the circumstances a nd substance of the communication to all parties of record at the next hearing. Cook Co. Cir. Ct. R. 17.2 (eff. February 1, 1985). If a hear

ing is not scheduled within two full court day s of the communication, the lawy er who in itiated the communi cation mu st promptly serve a written s ummary of its contents on all parties of record and the judge . Cook Co. Cir. Ct. R. 17.2 (eff. February 1, 1985). The trial court ruled, and respondent underscore s, that the judge herself did not contact petitione r’s attor ney . The judg e stated , “I

did not com

municate with oppos ing cou

nsel. I had my law cler k call. ** * It w as my

law cler k that mer

ely request ed the doc

uments tha

t were r eferr ed to in the motion.” Rule 63(B) is clear, however, that the judg e’s law clerk is an extension of the judge. “A judge should require staf f, court officials and others subject to the judge’s discr etion and control to observe the standards of fidelity and diligence that apply

to the judge.” 210 Ill. 2d R. 63(B)(2). The judge’s cler k called respondent’s attorney but not petitioner’s attorney.No. 1-08-0342

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Therefore, these calls constituted ex parte communications. See Black’s La w Dictionary 597 (7th ed. 1999) (an ex parte communication is a “communication between counsel and the court when opposing counsel is not present”). Had petitioner bee n given notice, he might have objected to the in camer

a review or requested additional evidence. An except

ion to Rule 6 3 authori zes ex parte commu nicat ions “for sc hedul ing, administrative purposes or emergencies that do not dea l with substantive matters or issues,” provided that “the judge reasonably believes that no party

will gain a procedural or tactical advantage as a result of the ex parte communic ation” a

nd “the ju dge mak es provis ion prompt

ly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.” 210 I ll. 2d R. 63(A)(4)(a). Respondent contends that “the trial court’s arrangement for rec eiving disputed documents for its own review” was mere ly an administrative matter th at had not

hing to do

with the su

bstance of the dis pute. We c onsider t

he cler k’s calls to respondent’s attorney

to be “on the merits” where the trial court reque sted documents and dismissed t

he petition based u

pon them. Under Rule 63, the judge who participates in an ex parte communication must make “provision promptly to notify all other parties of the substance of the ex parte communication and allow[] an opportunity to respond.” 210 Ill. 2d R. 63(A)(4)(a)(ii). Petitioner was notified of the communication both when respondent’s counsel provided him with a copy of the January 14 letter to the court and when the trial court’s January 16 memorandum discussed the in camer a review. See People v. Dunigan , 96 Ill. App. 3d 799, 812 (1981). That res pondent h and-del ivered t

he letter to the judg e but maile d it to petit ioner isNo. 1-08-0342

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suspect. Time was o f the ess ence in t his case , since r

esponde nt sent the

letter a nd docume

nts Monday in prepa

ration for Wednesday ’s hearing. Respondent knew or should have known that the mail c ould well b e delay ed until after the

hearing . In th

is case, it was. Pet

itioner c ites a number of

out-of- state au

thorities in support

of his ar gument t hat resp ondent wa s requir ed to hand-deliver the letter to him, as it did to the trial court. However, Supreme Court Rule 11 (145 Ill. 2 d R. 11) spe cifical ly provides t hat one option for se

rving pa pers to op posing c ounsel is to deposit th em in a Uni

ted State s mailbox. 14 5 Ill. 2d R. 11(b) (3). While perhaps this rule should be revis ited, Rule

11 does no t forbid h and-del ivering a letter to the cou

rt and ma iling a c opy

to the opposing party

. In his petition to vacate, petitioner reque sted that the court recuse itself and vacate the judgment. Under Rule 63(C), a judge shall rec use herself in a proceeding in which “ the judge’s impartiality might rea sonably be questioned,” including instances where the judge ha s a personal bias conc erning

a party or a lawy er, or w hen the ju dge ha s served

as a lawy er in the matter in controversy. 210 I

ll. 2d R. 63(C)(1). A motion for recusal is not the same as a motion for substitution of judge. Unlike a motion for substitution of judge, a motion for recusal does not trigger a duty

on the part of the trial judge to transfer the motion to another judg e for determination. People v. Antoine , 335 Ill. App. 3d 562, 570 (2002). On the contrar y, “the trial judge is in the best position to determine whether he or she is prejudiced a gainst” a litigant. People v. Kliner , 185 I ll. 2d 81, 16 9 (1998). The tria l judge, who was in

the best p osition to determine whether she was prejudiced a gainst petitioner, denied the motion for recusal, and we see no indication in the record to the contrary

.No. 1-08-0342

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Petitioner also moved to vacate the order. Although the January 18 letter delivery preclud ed petitioner fro m opposing the cour t’s in camer

a review before it terminated the petition, during the February

4, 2008, hearing, the court offere d twice to grant petitioner’s motion for reconsideration and to allow him to brief the in camer a review issue: “THE COURT: If y

ou feel that you wish to addr ess the in camer

a inspection, fine, I will vacate the or der and I’ll give you a cha nce to write any

thing you wish to write about the in camer a inspection. MR. ZAREMSKI [p etitioner ’s attorney]: I’m a sking the court to r ecuse itself.

*** MR. ZAREMSKI: *** Are y ou deny ing our m otion to re consider

as well? THE COURT : I wil l grant the motion t

o recons ider. I

will vaca te my order, and I will allow y

ou to address the in camer a inspection if you wish to do

so. MR. ZAREMSKI: Your Honor, my first--that motion was never present ed, the mo tion to rec onsider. The only motion bef

ore y our Honor

is a motion to vacate the January 16th orde r and to recuse based upon violations of the Illinois Supreme Court Rul es. THE COURT: Your motion is denied. Thanks very much.” “A prima ry purpose o f the wai

ver rule is to ensur

e that the trial cou rt has the opportuni

ty to correct the error.” York v. El-G anzouri , 353 Ill. App. 3d 1, 10 (2004). I n Meyers v. Woods ,No. 1-08-0342

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374 Ill. App. 3d 440 (2007), the defenda nt argued that the trial court erred in a llowing the plaintiff’s amended pray

er for relief on the day

of trial. The trial court asked the defendant if he wanted a continua nce to re construc

t his case , but he “e schewe d” that op tion and e lected to proceed with trial. On appeal, the court stated, “If there was any error here, defendant conse nted to it by refusing the

continuance.” Meyers , 374 Ill. App. 3d at 453. Similarly , in Janisco v. Kozloski , 261 Ill. App. 3d 963, 967 (1994), the defenda nt waived his objection to the plaintiff’s violation of an in limine order when he rejected the trial c ourt’s offer to give a contemporar y curative instruction or one at the end of the evidence and instead opted to proceed without an instruction. Here, where petitioner refused the very re lief that he now seeks on appeal, he waived his argument that the order should be vacated. Meyers , 374 I ll. App. 3d at 453; Janisco , 261 I ll. App. 3d at 967. Petitioner claims that he did not waive his request for reversal of the January 16 order, because “why would Kamelgar

d expect f airness and equit y f rom a tria l court who invites h

im” to reargue his case af

ter dismissing it based on ex parte communications? He argues that the trial judge engage d in “despicable, unethical conduct” and analog izes her to “a fox guarding the chicken coop” that was “caug ht with its hand in the cookie jar.” Petitioner cites no authority for this arg ument. We therefor

e conclu de that, by r

ejecting the exact relief t hat he se eks on ap

peal, petitione r has wa ived his a rgumen ts. Furthermore, In re Marriage of Wheatley , 297 Ill. App. 3d 854 (1998), and People v. Bradshaw , 171 Ill. App. 3d 971 (1988), cases that petitioner c ites in support of his argument that the dismissal order must be vacated, are distinguishable. I n Wheatley , the trial court received aNo. 1-08-0342

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letter from a congressman discussing the merits of a divorce case pending be fore him and advocating that custody

be granted to the wife. Although the tria l judge insisted that he did not read the letter, he did not inform the parties about the letter until eig ht days later, a

fter he had prepared the custody

order. “The trial judge did not disclose the rec eipt of this improper communic ation but k

ept it in his

office on his desk

during t he trial o f the matt

er, duri ng his deliberations on the case, and while drafting his judg ment on the case.” Wheatley , 297 Ill. App. 3d at 858. The appearance of impropriety was bolstered by the

fact that the mother was granted custody despite the re commendations of both the guardian ad litem and the home-study re port that custody be g

ranted to the father. Wheatley , 297 Ill. App. 3d at 858. Therefore , the trial court erred in refusing to vacate the judgment. Wheatley , 297 Ill. App. 3d at 859. In Bradshaw , the judge received a note that a de puty sheriff wa

nted to see him. He adjourned and met the deputy in his chambers, only to discover tha t the deputy was the victim’s mother. The judge stated that after he a scertained the deputy ’s relationship to the case, he ended the conversation. On appeal, the court held that the appe arance of impropriety had been created, regardless of whether the judg e terminated the conversation when he lear ned of the deputy’ s identity. Bradshaw , 171 I ll. App. 3d at 976. Furthermore, the j udge di d not make this communication part of the record until the defendant made a motion for substitution of judge. Bradshaw , 171 Ill. App. 3d at 976. The court conclude d that the trial judge should have recused himself. Bradshaw , 171 Ill. App. 3d at 976. We find Bauer v. Memorial Hospital , 377 Ill. App. 3d 895 (2007), to be more applica ble. In Bauer , the trial court conducted an ex parte communication with the plaintiffs’ attorney aboutNo. 1-08-0342

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the propriety of a

llowing the defendants’ attorney to testify. On appea

l, the Fifth District ruled that the ex parte

communication was improper because it was not for scheduling , administrative purposes , or an emergen

cy ; the judg e could not have re asonably believe d that no pa

rty would gain a procedural or tactica l advantage as a result of the communica tion; and the judge did not promptly notify the other parties o f the com

munication and allow them an o pportunit y to respond. Bauer , 377 Ill. App. 3d at 911. Nevertheless, the c ourt distinguished that case from Wheatley and Bradshaw because “it was no secret that an ex parte communication occurred, nor was the subject of the ex parte communication a secret.” Bauer , 377 Ill. App. 3d at 912. Furthermore, unlike Wheatley and Bradshaw , reversal was unnecessary because “there is no suggestion of bias *** on the part of the trial judg e, i.e. , there is no suggestion that there was a ny outside in fluence

or that the

case wa s decide d on any basis othe

r than the evidenc e prese

nted in the case.” Bauer , 377 Ill. App. 3d at 912. Accordingly, the court found that a ny error committed by the trial court wa s harmless. Bauer , 377 Ill. App. 3d at 912. Similar to the Bauer

court, we note that petitioner had received a c opy of the letter to the judge and the court’s January 16 opinion, which referenced the in camer a review. See Bauer , 377 Ill. App. 3d at 912. Although petitioner rec eived the letter after the court made its decision, the trial court offered to allow him to brief the in camer a issue. Furthermore, while petitioner decries the trial court’s conduct as “unlawf ul and unethical,” “there is no sugge stion that there was any outside influenc e or that the case was decided on any basis other than the evidence presented in the case.” Bauer , 377 I ll. App. 3d at 912; People v. Moffat , 265 Ill. App. 3d 469, 472 (1994) (there was no evidence suggesting that the judge was influenc ed by the alleg ed exNo. 1-08-0342

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parte communication). We conclude that, even if petitioner had not waived this arg ument on appeal, any

error committed by the

trial court was harmless. Bauer , 377 Ill. App. 3d at 912. Petitioner further claims tha

t In re Cosgrove , Att’y Reg istration & Disciplinary Comm’n No. 01 C H 76 (J une 24, 200 4), man dat es t hat we r eve rse th e di sm is sal of h is pet it io n. In Cosgrove , the police issued an overweight-truck citation to an e mployee of a tr

ucking company

. The owners of the trucking company were friends with Judge Buoscio and asked him to “find out” abou t the cita tion. Judge

Buoscio contact ed Judge Sheridan , in whose

courtro om the ca se was to be heard, and asked him to ask the assigne d assistant State’s Attorney to “he lp” the owners. Before the case

was heard, Judge Sheridan told Thomas Cosgrove, the assistant State’s Attorney assig

ned to that courtroom, that a judge friend of his had ca lled him about the case and asked him to strike the citation with leave to reinstate. When the case was ca lled, the defendant’s attorney pre sented a motion to quash; however, Cosgrove told the court that did not think he could meet his burden of proof and moved to strike with leave with leave to r einstate. The review board concluded that the administrator failed to prove a violation of Rule 8.4(a)(7), which provides that a lawyer shall not assist a judge in conduct that he knows is a violation of the Code of Judicial

Conduct. While petitioner attempts to compare Cosgrove to respondent’s attorney , we reiterate that respondent mailed petitioner a copy of the letter in question, and in its memorandum opinion, the court specifically

stated that it had conducted an in camer a review. While the court dismissed the petition before petitioner had the opportunity to oppose the in camer

a review, the trial court twice offered to allow petitioner to brief the in camer a review issue. Petitioner declined.No. 1-08-0342

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Theref ore, we hold that the trial c ourt did no t abuse its discreti on when it

refuse d to recuse itself and vacate the January 16, 2008, order. B. Dismissal of Rule 224 Petition Petitioner argues that he was entitled to the identities of the three ba riatric surgeons who consulted with the Central Judiciary Committee. Respondent contends that the trial c ourt properl y di smissed the

petition be cause the reque sted disc overy went bey ond the sc ope of Rul e 224 and into the details of actual wrongdoing. Rule 224 a

llows a pe

rson to fil e an inde

pendent a ction for discover y “ for the s ole purpo se of asce rtaining the ident ity o f one who

may be responsible in d

amage s.” 134 I

ll. 2d R. 224(a)(1)(i). “The order a llowing the petition will limit discovery to the identification of responsible persons and entities ***.” 134 Ill. 2d R. 224(a) (1)(ii). We review the trial court’s decision to terminate the petition under an abuse-of-discretion standa rd. Beale v. EdgeMar

k Financial Corp. , 279 I ll. App. 3d 242, 253- 54 (1996) ; Gaynor v . Burlingto n Northern& Santa Fe Ry. , 322 Ill. App. 3d 288, 289, 297 (2001). The trial court conducted an in camer a review of the complaint filed against petitioner, as well as the documents exchanged between the Centr al Judiciary Committee and the three consultin g surg eons, and dismissed the petiti on beca

use “tha t informa tion goe s to estab lish liabi lity and not t o iden tify pot entia l defen dants .” Cit ing Beale , the tria l court no ted that a

Rule 224 petition cannot be used to build a case; it may only be used to deter

mine the identity of one who may be potent ially liable. A ccordin

gly , the tria

l court te rminated the petiti on on the b asis that the discovery tha

t petitioner sought went bey ond the scope of Rule 224.No. 1-08-0342

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The lette r drafte d by

responde nt’s coun sel to the t

rial cou rt hints tha

t the docu ments contain the names of the consulting surgeons, whic h petitioner would have been entitled to under Rule 224. See 134 Ill. 2d R. 224(a)(1)(i). Af ter all, it seems unlikely that “docume nts exchanged between the *** Central Judiciary Committee and the three bariatric surgeons who se rved as experts” would not c ontain the

names of those con sulting s

urgeons. Howe

ver, the document s examined by th e trial c ourt in camer a were not made part of the record, a burden borne by

the appellant. Foutch v. O’Bryant , 99 Ill. 2d 389, 392 (1984). Beca use we do not have before us the documents that the trial court reviewed in camer a , we cannot determine whether the trial cour t was correct in concluding that they “go to establish liability and not to identify potential defendants.” Assuming that the documents reviewed in camer a merely “e stablish liability” instead of the ident ities of po tential de fendant s, the tria l court wa s corre ct in deny ing peti tioner a ccess to them. Rule 224 provides that it is for “the sole purpose of ascertaining the identity of one who may be responsible.”

(Emphasi s added. ) 134 I ll. 2d R. 224 (a)(1) (i). As th e Fifth D istrict he ld in Roth v. St. Elizabeth’s Hospital , 241 Ill. App. 3d 407, 414 (1993), “the focus is on identity and not on the determination of the responsibility of those identifie d.” In Beale , the petitioner filed a petition for presuit discovery against EdgeMark Fina

ncial alleging that EdgeMar

k and certain of its officers and directors c ommitted fraud and violated securities laws. The petition sought discovery of all information provided in response to a letter from the N ational A ssociation of Secu rities De alers, the production of boa rd-meeting minu

tes, and discovery

into the transfer of certain stock to an unknown party . The trial court granted theNo. 1-08-0342

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first request and limited discovery concerning the second and third re quests to the identity of the unknown transferee and the names of c ertain officers and directors. Edg eMark moved to modify the first request; after an

in camer a review, the trial court ordered Edg eMark to turn over the document. On appeal, we held that “[w]here the petitioner is apprised of a sufficient connection to the injury by

an individual or entity *** within the universe of pote ntial defendants, the petitioner may not seek f

urther discovery

of facts pertaining to any actual wrongdoing.” Beale , 279 I ll. App. 3d

at 252. “When in the t

rial cou rt’s discretion the

petitione r seeks t o establish actual liability or responsibility rather than potentiality f

or liability, discovery

should be denied.” Beale , 279 Ill. App. 3d at 253. Finally, petitioner conte

nds that a hearing is required for a Rule 224 pe tition. Petitioner relies on Shutes v. Fowler , 223 Ill. App. 3d 342 (1991), which noted, “The rule requires a hearing on the petition for discovery and thus involves the trial court in the process.” Shutes , 223 I ll. App. 3d at

346. Respondent con

tends tha t this state

ment was dicta because it was within the court’s explanation that the involvement of the circuit court protects aga inst abuses of the discovery proc ess. See Shutes , 223 Ill. App. 3d at 346. We note, however, that the substanc e of the summons for discovery f orm described in Rule 224 states, “Pursuant to law a hearing w ill be held to determine whether such an order shall be e ntered in this case.” 134 Ill. 2d R. 224(a) (2). We hold, the

refore , that pet

itioner w as entitle d to a hea ring be fore the

trial cou rt dismisse d his petition. Respondent argues that the trial court did in fact conduct a hearing on whether petitioner’s discovery

was outside the scope of Rule 224. We disagree. First, while the trialNo. 1-08-0342

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court conducted a hearing on re spondent’s renewed motion to dismiss, the motion and hearing were strictly c onfined to the application of the Medical Studies Act. Respondent argue d that petitioner’s discovery

was outside the scope of Rule 224 in its initial motion to dismiss, which was denied, but did not raise it again in its renewed motion. Second, althoug h the trial court offered to vacate its judgment and allow pe titioner to file additional briefs, the trial court’s offer was restricted to the in camer a inspection issue, not whether the petition was outside the scope of Rule 224. Therefore, we conclude that the tria l court erred when it dismissed petitioner’s petition. III. CONCL

USION For the foregoing r

easons, we reverse the trial court’s or der. Reversed and remanded. NEVIL LE and CAMPBEL

L, JJ., concur.