Gray v. Hopp

1

2024 IL App (2d) 210300-U

MALLORY GRAY, Plaintiff-Appellant, v. CHRISTOPHER HOPP, Defendant-Appellee.

No. 2-21-0300

Court of Appeals of Illinois, Second District

June 4, 2024

This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of McHenry County. No. 16-CH-746 Honorable Michael J. Chmiel, Judge, Presiding.

PRESIDING JUSTICE McLAREN delivered the judgment of the court. Justices Birkett and Kennedy concurred in the judgment.

ORDER

McLAREN PRESIDING JUSTICE

¶ 1 Held: (1) Trial court erred in dismissing plaintiff's amended complaint pursuant to section 2-619 because neither the doctrine of res judicata nor the general release contained in parties' marital settlement agreement was an affirmative matter that barred plaintiff's causes of action; (2) trial court's dismissal of plaintiff's motion to compel discovery could not be found to be an abuse of discretion where plaintiff's contention was undeveloped; (3) because dismissal of plaintiff's amended complaint is reversed trial court's award of Supreme Court Rule 137 sanctions is vacated; (4) plaintiff's request for remand to a different trial judge is deficient and found to be forfeited.

¶ 2 Plaintiff, Mallory Gray, appeals from the trial court's orders: (1) dismissing with prejudice her amended verified complaint, (2) dismissing her motion to compel discovery, and (3) awarding sanctions pursuant to Supreme Court Rule 137 (eff Jan. 1, 2018) to defendant, Christopher Hopp. We affirm in part, reverse in part, vacate in part, and remand.

¶ 3 I. BACKGROUND

¶ 4 The marriage of Gray and Hopp was dissolved in September 2014. The judgment of dissolution incorporated a marital settlement agreement ("MSA") in which Gray and Hopp "voluntarily waived their rights to further discovery relative to the wealth, property, estate, and income of the other." Each party was to be awarded the personal property in his or her possession with the exception of missing items placed on an extensive four-page list created by Gray. Hopp was to return any items from the list that he possessed and were Gray's property; items on the list that were Hopp's property or joint marital property were to be split equitably.

¶ 5 Further, the parties agreed:

"Except as otherwise provided in this Agreement, each of the parties hereto covenants and agrees that each such party shall have and retain sole and exclusive right, title and interest, respectively, in and to each and all of the property in his or her respective possession or under his or her respective control upon the date of this Agreement, including in said property all choses in action, real estate, personalty, interests as beneficiaries of trusts, pensions or retirement or profit-sharing plans, checking and savings accounts, royalties, bonds, stocks and securities."

The MSA was "predicated on the full and complete mutual waiver of discovery made by each of the parties to the other relative of [sic] their respective sources of income both earned and unearned, and of their respective assets and liabilities." The MSA also contained a "MUTUAL AND GENERAL RELEASE" that provided:

"To the fullest extent by law permitted to do so, and except as herein otherwise provided, each of the parties does hereby forever relinquish, release, waive and forever quitclaim and grant to the other***all rights of support, maintenance, dower, inheritance, decent [ sic ], distribution. community interest and all other right, title, claim, interest, and estate as HUSBAND and WIFE, widow or widower, or otherwise by reason of the marital relations existing between the said parties hereto, under any present or future law, or which he or she otherwise has or might have or be entitled to claim in, or against the-property and assets of the other, real, personal or mixes [ sic ], or his or her estate, whether now owned or hereafter in any manner acquired by the other party, and whether in possession or in expectancy, and whether vested or contingent, and each party further covenants and agrees for himself or herself *** for the purpose of enforcing any or all of the rights specified in and relinquished under this paragraph; and further agrees that in the event any suit shall be commenced this release, when pleaded, shall be and constitute a complete defense to any such claim or suit or instituted by either party hereto ***."

¶ 6 In September 2016, Gray filed a six-count complaint against Hopp, with counts alleging assault, battery, false imprisonment, intentional infliction of emotional distress, conversion, and seeking injunctive relief, based mostly on events that occurred during the marriage, including multiple instances of forced, non-consensual sexual activity. In Count IV, alleging intentional infliction of emotional distress, Gray alleged that Hopp possessed "explicit sexually graphic videos and/or photographs" of her, "some of which were taken with neither the knowledge [n]or consent of [Gray]." Gray alleged that she knew that Hopp was "capable and would use such videos against her in a revengeful way because he used the same type of video of him and his ex-girlfriend to in fact harass [Gray]" in the early days of their marriage. In Count, VII, seeking estoppel and injunctive relief, Gray alleged that Hopp possessed "numerous videos of Plaintiff and Defendant engaging in sexual intercourse or otherwise [ sic ] sexual acts," including videos that Gray had never seen before and videos, the making of which and the acts depicted therein she had not consented to. Gray attached as exhibits an e-mail and a transcript from Hopp's court martial from the Coast Guard (involving charges of embezzlement and sexual assault) that referenced "possible hours upon hours" of such videos. Gray sought to enjoin Hopp from distributing such videos and to require him to turn over to the trial court the originals and all copies of such videos "for proper return to [Gray] or oversee the manner of its destruction."

¶ 7 Hopp filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure ("Code") (735 ILCS 5/2-619 (West 2016)), arguing that all allegations in the complaint related to events that occurred before the dissolution of the marriage and that "the parties therefore resolved all issues emanating from matters occurring during the marriage of the parties." As to Count VI, Hopp argued that the existence of the videos/photos was discussed directly with the trial court on several occasions during the dissolution proceedings. Any attempt to obtain copies of these materials would be an attempt to re-litigate the property distribution of the dissolution judgment. Thus, Gray's action was barred by the prior judgment.

¶ 8 The trial court granted without prejudice the motion to dismiss, finding that Gray's allegations were "based upon what happened before the parties agreed to settle such issues through the dissolution of their marriage through previous proceedings." The court denied Gray's motion to reconsider but granted leave to file an amended petition.

¶ 9 Gray filed a notice of appeal to this court, then changed attorneys. Hopp timely filed in the circuit court a motion for sanctions pursuant to Rule 137, which returned jurisdiction to the trial court. The trial court subsequently granted a joint motion to set dates for a pretrial settlement conference and continued the motion for sanctions. Between October 2017 and June 2018, the parties engaged in court-authorized efforts to settle. In June 2018, the trial court suggested to Gray's substitute counsel that he could file an amended complaint or dismiss the case and file a new complaint. The parties also attempted to reach an agreement on a protocol for the trial court to perform an in camera review of the flash drive.

¶ 10 Gray then sought leave to file an amended complaint. After briefing by the parties and a hearing, the trial court granted leave, and Gray filed a three-count amended verified complaint. Gray alleged that Hopp's court martial proceedings began in March 2014. Allegations in the court martial included charges of abuse of Gray and another woman. In May 2015, after the 2014 judgment of dissolution had been entered, Hopp's court martial counsel advised the military judge that he had "possible hours upon hours of video," including graphic images and recordings of sexual activity between Gray and Hopp and Hopp with other women, that they intended to use in Hopp's defense that the sex was consensual. Gray recalled several occasions when Hopp sought to record the two of them engaged in sexual activity, but Gray did not know whether Hopp preserved, deleted, or modified these recordings after they were recorded.

¶ 11 Gray alleged that Hopp presented three clips of sexual activity between Gray and Hopp, totaling roughly twenty minutes in length, to the court martial judge, who remarked that, in one of the videos, Gray's speech was slurred and that it was unclear whether Gray and/or Hopp was under the influence of alcohol or other intoxicants. Gray alleged that she saw that clip during the court martial trial and noted a date stamp on the video; the date fell within the period in which she had been pregnant, and she "was adamant during her pregnancy that she did not and would not drink alcohol or ingest any other intoxicants for fear of damaging the fetus." She alleged that she was too intoxicated or impaired to have consented to the sexual activity depicted or to the videotaping of that activity; further, since she was pregnant at that time, she believed that she had been unknowingly plied with some sort of intoxicant that robbed her of her ability to consent to the...