                                                                              THIRD DIVISION
                                                                             September 10, 2008



No. 1-08-0342



JOSEPH KAMELGARD,                                   )       Appeal from the Circuit Court of
                                                    )       Cook County, Illinois
                Petitioner-Appellant,               )
                                                    )       No. 07 L 3322
       v.                                           )
                                                    )       Honorable Randye Kogan,
AMERICAN COLLEGE OF SURGEONS,                       )       Judge Presiding
                                                    )
                Respondent-Appellee.                )




       PRESIDING JUSTICE MURPHY delivered the opinion of the court:

       On March 30, 2007, petitioner, Joseph Kamelgard, M.D., filed a petition 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 court dismissed the petition after conducting an in camera

review of certain documents. On appeal, petitioner argues that the dismissal should be reversed

because (1) the court initiated an unlawful ex parte communication and (2) he was entitled to the

identities of the three surgeons.

                                        I. BACKGROUND

       Respondent is an association of surgeons that was founded in 1913 to promote the quality

of care for surgical patients. In April 2006, respondent informed petitioner, a member of the

College since 1996, that it had received a complaint regarding his expert testimony in a New
No. 1-08-0342

York medical-malpractice case. Respondent referred the complaint to its Central Judiciary

Committee, who then engaged three surgeons specializing in bariatric surgery to review the

complaint. In October 2006, the Central Judiciary Committee, having reviewed the complaint

and the consulting experts’ findings, charged petitioner with a violation of the College’s bylaws.

However, the Central Judiciary Committee met in February 2007 and summarily decided to take

no further action.

       On March 30, 2007, petitioner filed a petition for discovery before suit pursuant to

Supreme Court Rule 224 seeking (1) the names and contact information of the physicians

delegated by respondent to investigate the complaint and (2) any documentation generated by

these physicians containing their findings, recommendations, conclusion, and investigation. The

petition alleged that petitioner was damaged “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 ILCS 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, which reiterated its argument regarding the Medical Studies Act. The trial court 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 clerk, Gloria Gibbs, left a voice message for

respondent’s lawyer, Marc Silver, indicating that the judge wanted to conduct an in camera

review of the documents that were requested by petitioner. Gibbs requested that Silver deliver


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the documents on Monday or early Tuesday 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 attorney

that worked on the case. She requested that the documents be delivered promptly and before

Wednesday’s status hearing. When Silver arrived at his office, he gathered the complaint and the

documents exchanged between respondent’s Central Judiciary Committee and the three advising

bariatric surgeons. An independent messenger company delivered the documents to the judge’s

chambers late Monday afternoon. After the messenger left with the documents, Silver called the

judge’s docket clerk to advise that the documents were on their way. No other communications

occurred in connection with the submission of the documents.

        Included with the documents was a cover letter, which stated, “Pursuant to your request

for an in camera review, please find” the enclosed documents, “which are the documents we

understand Dr. Kamelgard to be seeking.” Silver copied petitioner’s attorney without the

enclosures and sent it to him by United States mail that day.

        Counsel for both parties appeared at the January 16 status hearing, where the judge

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 camera 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 names


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and addresses of the three consultant physicians and that he was not informed that the court

would be examining documents in camera. Upon discovering that the trial court had indeed

conducted an in camera inspection of the documents, petitioner filed a motion requesting that the

court vacate the judgment, recuse itself, and stay consideration of his motion to reconsider.

Petitioner argued that the trial court had engaged in ex parte communications with respondent’s

attorney, in violation of Supreme Court Rules 62 (155 Ill. 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 and that petitioner’s

counsel was sent a copy of the transmittal letter. Therefore, the court denied petitioner’s motion

to vacate.

                                          II. ANALYSIS

                                    A. Ex Parte Communication

       Petitioner argues that the trial court should have recused itself pursuant to Rule 63(C)

(210 Ill. 2d R. 63(C)) and vacated the dismissal because the communications between the judge’s

staff and respondent’s attorneys regarding the in camera inspection were ex parte. He concludes

that because the trial court engaged in “unlawful and unethical judicial conduct,” his petition for

discovery must be reinstated. When reviewing a trial court’s recusal decision, we must

determine whether the decision was an abuse of discretion. Barth v. State Farm Fire & Casualty

Co., 228 Ill. 2d 163, 175 (2008).

       Supreme Court Rule 62(A) provides that a “judge should respect and comply with the law

and should conduct himself or herself at all times in a manner that promotes public confidence in


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the integrity and 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 Ill. 2d R. 63(A)(4). See also 134 Ill. 2d R. 3.5 (eff. August 1, 1990)

(Rules of Professional Conduct) (a lawyer 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 shall 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 and 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 hearing is not scheduled within two full court days of the communication,

the lawyer who initiated the communication must promptly serve a written summary 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 underscores, that the judge herself did not contact

petitioner’s attorney. The judge stated, “I did not communicate with opposing counsel. I had my

law clerk call. *** It was my law clerk that merely requested the documents that were referred to

in the motion.” Rule 63(B) is clear, however, that the judge’s law clerk is an extension of the

judge. “A judge should require staff, court officials and others subject to the judge’s discretion

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 clerk called respondent’s attorney but not petitioner’s attorney.


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Therefore, these calls constituted ex parte communications. See Black’s Law 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 been given notice, he might have

objected to the in camera review or requested additional evidence.

       An exception to Rule 63 authorizes ex parte communications “for scheduling,

administrative purposes or emergencies that do not deal 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 communication” and “the judge makes provision promptly

to notify all other parties of the substance of the ex parte communication and allows an

opportunity to respond.” 210 Ill. 2d R. 63(A)(4)(a). Respondent contends that “the trial court’s

arrangement for receiving disputed documents for its own review” was merely an administrative

matter that had nothing to do with the substance of the dispute. We consider the clerk’s calls to

respondent’s attorney to be “on the merits” where the trial court requested documents and

dismissed the petition based upon 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 camera

review. See People v. Dunigan, 96 Ill. App. 3d 799, 812 (1981).

       That respondent hand-delivered the letter to the judge but mailed it to petitioner is


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suspect. Time was of the essence in this case, since respondent sent the letter and documents

Monday in preparation for Wednesday’s hearing. Respondent knew or should have known that

the mail could well be delayed until after the hearing. In this case, it was. Petitioner cites a

number of out-of-state authorities in support of his argument that respondent was required to

hand-deliver the letter to him, as it did to the trial court. However, Supreme Court Rule 11 (145

Ill. 2d R. 11) specifically provides that one option for serving papers to opposing counsel is to

deposit them in a United States mailbox. 145 Ill. 2d R. 11(b)(3). While perhaps this rule should

be revisited, Rule 11 does not forbid hand-delivering a letter to the court and mailing a copy to

the opposing party.

       In his petition to vacate, petitioner requested that the court recuse itself and vacate the

judgment. Under Rule 63(C), a judge shall recuse herself in a proceeding in which “the judge’s

impartiality might reasonably be questioned,” including instances where the judge has a personal

bias concerning a party or a lawyer, or when the judge has served as a lawyer in the matter in

controversy. 210 Ill. 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 judge for

determination. People v. Antoine, 335 Ill. App. 3d 562, 570 (2002). On the contrary, “the trial

judge is in the best position to determine whether he or she is prejudiced against” a litigant.

People v. Kliner, 185 Ill. 2d 81, 169 (1998). The trial judge, who was in the best position to

determine whether she was prejudiced against petitioner, denied the motion for recusal, and we

see no indication in the record to the contrary.


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No. 1-08-0342

       Petitioner also moved to vacate the order. Although the January 18 letter delivery

precluded petitioner from opposing the court’s in camera review before it terminated the petition,

during the February 4, 2008, hearing, the court offered twice to grant petitioner’s motion for

reconsideration and to allow him to brief the in camera review issue:

                 “THE COURT: If you feel that you wish to address the in camera

       inspection, fine, I will vacate the order and I’ll give you a chance to write anything

       you wish to write about the in camera inspection.

                 MR. ZAREMSKI [petitioner’s attorney]: I’m asking the court to recuse

       itself.

                 ***

                 MR. ZAREMSKI: *** Are you denying our motion to reconsider as well?

                 THE COURT: I will grant the motion to reconsider. I will vacate my

       order, and I will allow you to address the in camera inspection if you wish to do

       so.

                 MR. ZAREMSKI: Your Honor, my first--that motion was never

       presented, the motion to reconsider. The only motion before your Honor is a

       motion to vacate the January 16th order and to recuse based upon violations of the

       Illinois Supreme Court Rules.

                 THE COURT: Your motion is denied. Thanks very much.”

       “A primary purpose of the waiver rule is to ensure that the trial court has the opportunity

to correct the error.” York v. El-Ganzouri, 353 Ill. App. 3d 1, 10 (2004). In Meyers v. Woods,


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374 Ill. App. 3d 440 (2007), the defendant argued that the trial court erred in allowing the

plaintiff’s amended prayer for relief on the day of trial. The trial court asked the defendant if he

wanted a continuance to reconstruct his case, but he “eschewed” that option and elected to

proceed with trial. On appeal, the court stated, “If there was any error here, defendant consented

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 defendant waived his objection to the plaintiff’s

violation of an in limine order when he rejected the trial court’s offer to give a contemporary

curative instruction or one at the end of the evidence and instead opted to proceed without an

instruction. Here, where petitioner refused the very relief that he now seeks on appeal, he waived

his argument that the order should be vacated. Meyers, 374 Ill. App. 3d at 453; Janisco, 261 Ill.

App. 3d at 967.

       Petitioner claims that he did not waive his request for reversal of the January 16 order,

because “why would Kamelgard expect fairness and equity from a trial court who invites him” to

reargue his case after dismissing it based on ex parte communications? He argues that the trial

judge engaged in “despicable, unethical conduct” and analogizes her to “a fox guarding the

chicken coop” that was “caught with its hand in the cookie jar.” Petitioner cites no authority for

this argument. We therefore conclude that, by rejecting the exact relief that he seeks on appeal,

petitioner has waived his arguments.

       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 cites in support of his argument that

the dismissal order must be vacated, are distinguishable. In Wheatley, the trial court received a


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letter from a congressman discussing the merits of a divorce case pending before him and

advocating that custody be granted to the wife. Although the trial judge insisted that he did not

read the letter, he did not inform the parties about the letter until eight days later, after he had

prepared the custody order. “The trial judge did not disclose the receipt of this improper

communication but kept it in his office on his desk during the trial of the matter, during his

deliberations on the case, and while drafting his judgment 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 recommendations of both the guardian ad litem and the home-study report

that custody be granted 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 deputy sheriff wanted to see him. He

adjourned and met the deputy in his chambers, only to discover that the deputy was the victim’s

mother. The judge stated that after he ascertained the deputy’s relationship to the case, he ended

the conversation. On appeal, the court held that the appearance of impropriety had been created,

regardless of whether the judge terminated the conversation when he learned of the deputy’s

identity. Bradshaw, 171 Ill. App. 3d at 976. Furthermore, the judge did 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 concluded 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 applicable.

In Bauer, the trial court conducted an ex parte communication with the plaintiffs’ attorney about


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the propriety of allowing the defendants’ attorney to testify. On appeal, the Fifth District ruled

that the ex parte communication was improper because it was not for scheduling, administrative

purposes, or an emergency; the judge could not have reasonably believed that no party would

gain a procedural or tactical advantage as a result of the communication; and the judge did not

promptly notify the other parties of the communication and allow them an opportunity to

respond. Bauer, 377 Ill. App. 3d at 911. Nevertheless, the court 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 judge, i.e., there is no suggestion that there was any

outside influence or that the case was decided on any basis other than the evidence presented in

the case.” Bauer, 377 Ill. App. 3d at 912. Accordingly, the court found that any error committed

by the trial court was harmless. Bauer, 377 Ill. App. 3d at 912.

       Similar to the Bauer court, we note that petitioner had received a copy of the letter to the

judge and the court’s January 16 opinion, which referenced the in camera review. See Bauer,

377 Ill. App. 3d at 912. Although petitioner received the letter after the court made its decision,

the trial court offered to allow him to brief the in camera issue. Furthermore, while petitioner

decries the trial court’s conduct as “unlawful and unethical,” “there is no suggestion that there

was any outside influence or that the case was decided on any basis other than the evidence

presented in the case.” Bauer, 377 Ill. App. 3d at 912; People v. Moffat, 265 Ill. App. 3d 469,

472 (1994) (there was no evidence suggesting that the judge was influenced by the alleged ex


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parte communication). We conclude that, even if petitioner had not waived this argument on

appeal, any error committed by the trial court was harmless. Bauer, 377 Ill. App. 3d at 912.

       Petitioner further claims that In re Cosgrove, Att’y Registration & Disciplinary Comm’n

No. 01 CH 76 (June 24, 2004), mandates that we reverse the dismissal of his petition. In

Cosgrove, the police issued an overweight-truck citation to an employee of a trucking company.

The owners of the trucking company were friends with Judge Buoscio and asked him to “find

out” about the citation. Judge Buoscio contacted Judge Sheridan, in whose courtroom the case

was to be heard, and asked him to ask the assigned assistant State’s Attorney to “help” the

owners. Before the case was heard, Judge Sheridan told Thomas Cosgrove, the assistant State’s

Attorney assigned to that courtroom, that a judge friend of his had called him about the case and

asked him to strike the citation with leave to reinstate. When the case was called, the defendant’s

attorney presented 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 reinstate. 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 camera review. While the court dismissed

the petition before petitioner had the opportunity to oppose the in camera review, the trial court

twice offered to allow petitioner to brief the in camera review issue. Petitioner declined.


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       Therefore, we hold that the trial court did not abuse its discretion when it refused 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 bariatric surgeons who

consulted with the Central Judiciary Committee. Respondent contends that the trial court

properly dismissed the petition because the requested discovery went beyond the scope of Rule

224 and into the details of actual wrongdoing.

       Rule 224 allows a person to file an independent action for discovery “for the sole purpose

of ascertaining the identity of one who may be responsible in damages.” 134 Ill. 2d R.

224(a)(1)(i). “The order allowing 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 standard. Beale v. EdgeMark

Financial Corp., 279 Ill. App. 3d 242, 253-54 (1996); Gaynor v. Burlington Northern & Santa

Fe Ry., 322 Ill. App. 3d 288, 289, 297 (2001).

       The trial court conducted an in camera review of the complaint filed against petitioner, as

well as the documents exchanged between the Central Judiciary Committee and the three

consulting surgeons, and dismissed the petition because “that information goes to establish

liability and not to identify potential defendants.” Citing Beale, the trial court noted that a Rule

224 petition cannot be used to build a case; it may only be used to determine the identity of one

who may be potentially liable. Accordingly, the trial court terminated the petition on the basis

that the discovery that petitioner sought went beyond the scope of Rule 224.


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       The letter drafted by respondent’s counsel to the trial court hints that the documents

contain the names of the consulting surgeons, which petitioner would have been entitled to under

Rule 224. See 134 Ill. 2d R. 224(a)(1)(i). After all, it seems unlikely that “documents exchanged

between the *** Central Judiciary Committee and the three bariatric surgeons who served as

experts” would not contain the names of those consulting surgeons. However, the documents

examined by the trial court in camera were not made part of the record, a burden borne by the

appellant. Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). Because we do not have before us the

documents that the trial court reviewed in camera, we cannot determine whether the trial court

was correct in concluding that they “go to establish liability and not to identify potential

defendants.”

       Assuming that the documents reviewed in camera merely “establish liability” instead of

the identities of potential defendants, the trial court was correct in denying petitioner access to

them. Rule 224 provides that it is for “the sole purpose of ascertaining the identity of one who

may be responsible.” (Emphasis added.) 134 Ill. 2d R. 224(a)(1)(i). As the Fifth District held 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 identified.”

       In Beale, the petitioner filed a petition for presuit discovery against EdgeMark Financial

alleging that EdgeMark and certain of its officers and directors committed fraud and violated

securities laws. The petition sought discovery of all information provided in response to a letter

from the National Association of Securities Dealers, the production of board-meeting minutes,

and discovery into the transfer of certain stock to an unknown party. The trial court granted the


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first request and limited discovery concerning the second and third requests to the identity of the

unknown transferee and the names of certain officers and directors. EdgeMark moved to modify

the first request; after an in camera review, the trial court ordered EdgeMark 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 potential defendants, the

petitioner may not seek further discovery of facts pertaining to any actual wrongdoing.” Beale,

279 Ill. App. 3d at 252. “When in the trial court’s discretion the petitioner seeks to establish

actual liability or responsibility rather than potentiality for liability, discovery should be denied.”

Beale, 279 Ill. App. 3d at 253.

        Finally, petitioner contends that a hearing is required for a Rule 224 petition. 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 Ill.

App. 3d at 346. Respondent contends that this statement was dicta because it was within the

court’s explanation that the involvement of the circuit court protects against abuses of the

discovery process. See Shutes, 223 Ill. App. 3d at 346. We note, however, that the substance of

the summons for discovery form described in Rule 224 states, “Pursuant to law a hearing will be

held to determine whether such an order shall be entered in this case.” 134 Ill. 2d R. 224(a)(2).

We hold, therefore, that petitioner was entitled to a hearing before the trial court dismissed 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 trial


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court conducted a hearing on respondent’s renewed motion to dismiss, the motion and hearing

were strictly confined to the application of the Medical Studies Act. Respondent argued 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, although the trial court

offered to vacate its judgment and allow petitioner to file additional briefs, the trial court’s offer

was restricted to the in camera inspection issue, not whether the petition was outside the scope of

Rule 224.

       Therefore, we conclude that the trial court erred when it dismissed petitioner’s petition.

                                         III. CONCLUSION

       For the foregoing reasons, we reverse the trial court’s order.

       Reversed and remanded.

       NEVILLE and CAMPBELL, JJ., concur.




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