Kantner v. Waugh

2017 IL App (2d) 160848

79 N.E.3d 892

Robert KANTNER, Plaintiff-Appellant,

v.Ladonna Jo WAUGH, a/k/a Ladonna Jo Bryan, a/k/a Ladonna Farrow, Individually and as Agent of Mercy Health System Corporation; Mercy Health System Corporation; Mercy Harvard Hospital, Inc. ; Mercy Center for Metabolic and Bariatric Surgery ; and Mercy Alliance, Inc., Defendants-Appellees.

No. 2-16-0848

Appellate Court of Illinois, Second District.

Opinion filed June 12, 2017

Cynthia J. Koroll, of Koroll Litigation Group, Ltd., of Rockford, and Nathan Reyes, of Bruning & Associates, P.C., of Crystal Lake, for appellant.

David P. Faulkner and Michael J. Orsi, of Faulkner Gustafson, LLC, of Rockford, for appellee Ladonna J. Waugh.

Philip E. Wand, of Wand Lee Wombacher, LLC, of Woodstock, for other appellees.

OPINION

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 The trial court dismissed on grounds of res judicata the medical malpractice suit filed by plaintiff, Robert Kantner, against defendants, Ladonna Jo Waugh, M.D., Mercy Health System Corporation, Mercy Harvard Hospital, Inc., Mercy Center for Metabolic and Bariatric Surgery, and Mercy Alliance, Inc. The court noted that res judicata bars claim-splitting, and it determined that plaintiff split his claims. It stated that, under the instant facts, no exception to res judicata 's bar against claim-splitting applied. Plaintiff appeals, acknowledging that he split his claims, but arguing, inter alia , that the agreement-in-effect exception applied. We agree. The trial court misunderstood the law to require an express agreement. Accordingly, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 In 2008, plaintiff filed a multi-count medical malpractice suit against defendants based on permanent injuries following bariatric surgery. Specifically, plaintiff set forth counts alleging (1) informed consent and (2) negligence. In 2009, defendants moved to dismiss the informed-consent claim, and the trial court granted their motion. Plaintiff proceeded to trial on the negligence claim.

¶ 4 A. December 7, 2015

¶ 5 On December 7, 2015, before the first day of trial began, plaintiff moved to continue. Two business days earlier, on December 3, 2015, plaintiff's counsel had been battered by her son, a military veteran returned from Afghanistan. The court and the parties discussed the basis for the continuance off the record.

¶ 6 Back on the record, defense counsel objected to the continuance: "We're not unsympathetic, Judge. But we do object." Defense counsel noted that plaintiff's counsel had not given him notice that she would ask for a continuance. Defense counsel was concerned that his experts would charge a cancellation fee.

¶ 7 The court "tipped its hand," stating that it would grant the continuance, provided that plaintiff assumed the associated cancellation fees. The court told plaintiff to choose the course of action, either continue the case and assume the cancellation fees or go to trial. Plaintiff's counsel stated: "I don't know what to do. I mean, am I talking $10,000? Am I talking [$1,000]? What am I talking?" Plaintiff's counsel complained that defense counsel sought "carte blanche " to collect an indeterminate fee amount. Defense counsel stated that he could not provide an estimate; he was just preserving his clients' rights. The court prodded, "some experts tell you what their cancellation fee is going to be." Defense counsel answered: "I don't get involved in that. That's my secretary. * * * There may not be any. I don't know at this point." The court again asked plaintiff's counsel what she wanted to do:

"[Plaintiff's Counsel]: I mean, I don't know what to do, to tell you the truth. I don't.

* * *

[Plaintiff's Counsel]: My—my client's certainly not going to pay any of these [cancellation fees]. I'm going to have to take this on. This is not through any of my client's fault.

* * *

[Defense Counsel 1]: And I think we have offered to not object to a motion to voluntarily dismiss this case. And we would not seek any reimbursement on costs now or upon refiling .

[Plaintiff's Counsel]: So how's that any different?

THE COURT: It's cheaper.

[Plaintiff's Counsel]: But the question is[,] how quickly can I get it back up for trial if we do that?

THE COURT: * * * As soon as you got the case back in front of me, I would set it for trial because there's—there is no need for further discovery. [Vis-a-vis the continuance option, if you voluntarily dismiss and refile,] you would go to trial probably at the same time or thirty days later * * *.

* * *

[Plaintiff's counsel asked for a moment to confer with plaintiff. The court again assured plaintiff's counsel that the trial date would be approximately the same under either the continuance option or the voluntarily-dismiss-and-refile option. Based on its calendar, that date would be in late September 2016.]

* * *

[Plaintiff's Counsel]: * * * [Then], I guess that we will voluntarily dismiss.

THE COURT: Okay.

[Defense Counsel 1]: We'll prepare an order.

THE COURT: Okay.

[Plaintiff's Counsel]: As long as * * * the order reflects that there would be no costs [now or upon refiling].¹

THE COURT: No costs?

[Defense Counsel 1]: We agree.

[Defense Counsel 2]: We agree." (Emphasis added.)

The court granted plaintiff's motion to voluntarily dismiss his negligence claim. The order, drafted by defendants, stated: "On plaintiff's oral motion and by agreement of the parties, the case is voluntarily dismissed pursuant to statute 735 ILCS 5/2-1009 [ (West 2014) ] with no costs assessed." The order did not include the words "upon refiling."

¶ 8 B. Plaintiff's Refiling and Defendants' Res Judicata Defense

¶ 9 On February 11, 2016, plaintiff refiled his negligence claim. On March 11, 2016, defendants moved to dismiss the refiled claim pursuant to the res judicata doctrine. They argued that plaintiff had violated the doctrine's rule against splitting claims. Hudson v. City of Chicago , 228 Ill.2d 462, 467, 321 Ill.Dec. 306, 889 N.E.2d 210 (2008). Per Hudson , defendants argued, the court's 2009 involuntary dismissal of the informed-consent claim, followed by the 2015 voluntary dismissal of the negligence claim, barred a subsequent refiling of the negligence claim.

¶ 10 On June 14, 2016, the court conducted a hearing on defendants' motion to dismiss. Plaintiff's counsel conceded that, per Hudson , she split plaintiff's claims, an action prohibited by the res judicata doctrine. She argued, however, that res judicata should not bar refiling where, in December 2015, defendants submitted "an unsolicitated offer" to accept a voluntary dismissal and to waive costs upon refiling . After that offer, she had asked, "how would that be different [from a continuance?]" The court answered that it would be "cheaper" than a continuance, but that the trial could be conducted on approximately the same date, in late September 2016. Plaintiff's counsel was given the opportunity to confer with plaintiff, and, relying on everything defendants and the court had stated, she decided to voluntarily dismiss with the intention of refiling. "It [wa]s an offer by the defense. We accepted it."

¶ 11 Defendants, citing Matejczyk v. City of Chicago , 397 Ill.App.3d 1, 10-11, 337 Ill.Dec. 166, 922 N.E.2d 24 (2009), argued that their conduct at the December 2015 hearing did not excuse the refiling from res judicata 's bar against claim-splitting. In defendants' view, Matejczyk stood for the proposition that, for an exception to res judicata 's rule against claim-splitting to apply, "the [voluntary] dismissal order must be written with an exception to claim-splitting in mind." Further, "the exception only applies when there is an express reservation," and "this exception about allowing a plaintiff to refile, it needs to be expressly reflected in the transcript or in the order." (Emphases added.) Defendants provided the court with two pages of the Matejcyzk opinion. Plaintiff objected: "I'm always uncomfortable when only two pages of a case are handed up to the court." The court stated that it had previously read the entire case.

¶ 12 The court acknowledged that, contrary to Matejczyk , it was not mindful of the res judicata doctrine when it offered the September 2016 trial date upon refiling. Plaintiff's counsel acknowledged that she had not contemplated the res judicata doctrine specifically, but she had sought repeated assurances that, upon voluntary dismissal and refiling, the case would proceed to trial. "I mean, was there any doubt that we were going to be back to trial?" She argued again that, in the "spirit of the defense's kind offer [in December 2015]," the refiling should be allowed.

¶ 13 The court disagreed. It determined that, per Matejczyk , defendants' agreement must be express: "There was no explicit agreement or offer that [defendants] would waive anticipated future defenses," and "[a]ll that [defendants did] is explicitly waiv[e] the right to reimbursement of costs on [re]filing, and I can't expand beyond what is explicitly said in order to ultimately agree with plaintiff's contention. So, I believe Matejczyk gives me the guidelines here, and * * * I must dismiss this case with prejudice." (Emphases added.)

¶ 14 Plaintiff's counsel interjected mid-pronouncement to remind the court of the December 2015 circumstances prompting her initial request for a continuance:

"I do want to get on the record it wasn't a simple matter * * *. I was battered by my son * * * and I had a head injury and a finger fracture. * * * I think you saw my head was blackened and blue. My hand was black and blue. * * * I didn't want to go forward with a severe bruising o[n] my face and hand in front of a jury. * * * [N]ot only was it a physical battery, but the emotional aspect of battery."

(Defense counsel stated that he did not remember the physical injuries.) Plaintiff's counsel further informed the court that she had consulted with a trusted, senior attorney, who told her that he "would never proceed" under similar circumstances; "It...