Kero v. Palacios

2018 IL App (1st) 172427

140 N.E.3d 789

435 Ill.Dec. 739

James KERO and Pamela Kero, Plaintiffs,

v.Sharon PALACIOS, R.N.; Northwestern Medicine; Northwestern Memorial Hospital; Northwestern Memorial Healthcare; and Symphony of Lincoln Park, LLC, Defendants,

(James Kero, Plaintiff-Appellant;

Symphony of Lincoln Park, LLC, Defendant-Appellee).

No. 1-17-2427

Appellate Court of Illinois, First District, FIRST DIVISION.

July 23, 2018

David W. Hepplewhite, of David W. Hepplewhite, P.C., and Sheldon Minkow, of Minkow Domin, both of Chicago, for appellant.

Robert Marc Chemers and Philip G. Brandt, of Pretzel & Stouffer, Chtrd., of Chicago, and Ari B. Kirshner, of McCabe Kirshner, P.C., of Lincolnwood, for appellee.

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

¶ 1 Appellant and the plaintiff in this case, James Kero, appeals from an order of the circuit court that granted a motion by one of the defendants, Symphony of Lincoln Park, LLC to compel arbitration of the negligence claims that Mr. Kero had filed against it, and denied Mr. Kero's motion to reconsider the court's prior order striking two of his claims against Symphony for intentional misconduct. On appeal, Mr. Kero argues that the court's enforcement of the arbitration agreement was wrong for two reasons: (1) Symphony was not a party to the arbitration agreement and (2) Mr. Kero signed the agreement under duress. Mr. Kero also argues that the court improperly struck the intentional misconduct claims against Symphony and his notice of appeal references another circuit court order. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On June 29, 2017, Mr. Kero and his wife, Pamela Kero, who is not a party to this appeal (collectively, the Keros), filed their fourth amended complaint and the operative complaint in this appeal against Symphony and various other defendants who are not parties to this appeal—including Sharon Palacios, R.N., Northwestern Medicine, Northwestern Memorial Hospital, Northwestern Memorial Healthcare, and Yasser Farid, M.D. The factual background relevant to this appeal is as follows.

¶ 4 The Keros alleged that Mr. Kero was a patient of Symphony's rehabilitation facility in July 2016. He was injured during his stay when, on July 19, and again on July 31, 2016, he fell out of his bed. The Keros alleged two counts of negligence and two counts of intentional misconduct against Symphony. On June 30, 2017, the circuit court struck the intentional misconduct counts.

¶ 5 On July 20, 2017, Symphony filed a motion to compel arbitration and to dismiss the negligence counts of the Keros' complaint under section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2016) ). Symphony argued that a valid arbitration agreement existed between the parties, that the agreement required Mr. Kero to arbitrate claims of negligence, and that, "using its then operative name ‘Imperial Grove Pavilion,’ " Symphony was a party to the arbitration agreement that Mr. Kero had signed.

¶ 6 Symphony attached Mr. Kero's admission packet to the motion, which included the admission contract and the arbitration agreement. The admission contract, signed by Mr. Kero on May 12, 2016, indicates that it was between Mr. Kero as the "resident" and "The Imperial Grove Pavilion" as the "facility." Mr. Kero's initials are on multiple pages of the contract and his name is printed and signed as the resident.

¶ 7 The "Health Care Arbitration Agreement" (arbitration agreement) lists "The Imperial Grove Pavilion" as the "facility," and then states that the facility "includes the particular facility where the Resident resides, its parents, affiliates, and subsidiary companies, owners, officers, directors, medical directors, employees, successors, assigns, agents, attorney and insurers." It further provides:

"In the event of any claim arising out of (1) any dispute between you and us, (2) any dispute relating to services rendered for any condition, (3) injuries alleged to have been received by patient, * * * (4) services rendered for any condition and arising out of the diagnosis, treatment or care of patient, and (5) collection proceedings in excess of $50,000.00, the claim will be submitted to binding arbitration pursuant to the provisions of this health care arbitration agreement.

* * *

Resident certifies that Resident has read this agreement and has legal representation regarding thereto or has been given the right to have this agreement reviewed by Resident's legal representation.

Resident has signed this Agreement of Resident's free will and not under duress of any nature and fully accepts the terms thereof."

¶ 8 At the bottom, just above Mr. Kero's signature, the arbitration agreement states:

"AGREEMENT TO ARBITRATE HEALTH CARE NEGLIGENCE CLAIMS

NOTICE TO PATIENT

YOU CANNOT BE REQUIRED TO SIGN THIS AGREEMENT IN ORDER TO RECEIVE TREATMENT. BY SIGNING THIS AGREEMENT, YOUR RIGHT TO TRIAL BY A JURY OR A JUDGE IN A COURT WILL BE BARRED AS TO ANY DISPUTE RELATING TO INJURIES THAT MAY RESULT FROM NEGLIGENCE DURING YOUR TREATMENT OR CARE, AND WILL BE REPLACED BY AN ARBITRATION PROCEDURE."

¶ 9 Symphony also attached affidavits from two employees: Schakota Tubbs and Laura Aranda. Ms. Tubbs averred in her affidavit that she was the former "Business Office Assistant" at Symphony. She stated that Mr. Kero executed the admission contract and arbitration agreement on May 12, 2016, and that at that time she "engaged [Mr. Kero] in conversation regarding the substance of the documents he was signing." Ms. Tubbs averred that Mr. Kero appeared to her to be "alert and oriented," "of sound mind and judgment," "capable of executing all admission documentation on his own," and "capable of understanding the terms of the admission contract and arbitration agreement." Ms. Aranda stated in her affidavit that she was the administrator of Symphony and the former administrator of Imperial Grove Pavilion. Ms. Aranda also attested that Mr. Kero executed his admission contract and arbitration agreement on May 12, 2016.

¶ 10 Both Ms. Tubbs and Ms. Aranda stated in their affidavits that: on November 1, 2015, Symphony became a licensee of the facility known as Imperial Grove Pavilion, and continued to operate under the trade name of Imperial Grove Pavilion and Imperial of Lincoln Park until May 18, 2016; that between November 1, 2015, and May 18, 2016, the facility's "building signage, marketing collateral, name badges and internal markings referred to the building as Imperial Grove Pavilion"; that on May 18, 2016, the facility announced it was changing its operating name to Symphony of Lincoln Park. Ms. Aranda also stated that on May 18, 2016, the facility signage, awnings, name tags, contracts, and marketing materials "were updated to reflect the name Symphony." Both affiants attested that they had "personal knowledge of the facts heretofore attested to and would testify to same if sworn as a witness to testify."

¶ 11 In response to Symphony's motion to enforce arbitration and to dismiss, the Keros argued that the arbitration agreement was unenforceable both because no evidence had been presented to show that Symphony was a party to the arbitration agreement and "because of duress and the unfair bargaining positions between Symphony and Mr. Kero" when the parties signed the arbitration agreement.

¶ 12 Mr. Kero attached to his motion a printout from the Secretary of State's website, titled "LLC FILE DETAIL REPORT," listing the entity name as "SYMPHONY LINCOLN PARK LLC," indicating that the file date was April 23, 2015, and stating that "SYMPHONY OF LINCOLN PARK" was the active assumed name.

¶ 13 Mr. Kero also attached his own affidavit to his response, in which he averred that he was not told he would have to sign an arbitration agreement before he arrived at Symphony. Mr. Kero further stated in his affidavit:

"When I arrived at Symphony of Lincoln Park to be a patient, I was given forms to sign and told that I needed to sign the forms in order to be taken as a patient. I signed the forms.

When I arrived at Symphony of Lincoln Park to be a patient, I had been discharged as a patient from the hospital to receive care, therapy, and assistance in order to be able to get strong enough to go home. At that time, I could not have gone home because of my condition.

I was transported by ambulance from the hospital to Symphony of Lincoln Park."

¶ 14 The circuit court entered an order on September 15, 2017 that (1) denied plaintiffs' motion to reconsider its previous order dismissing the intentional misconduct counts against Symphony, (2) granted Symphony's motion to "Dismiss and Enforce the Arbitration Agreement" and (3) made a finding under Rule 304(a), pursuant to motion, that there was "no just reason for delaying either enforcement or Appeal of this Order as to # 2, above [ (granting the motion to enforce arbitration) ], or both."

¶ 15 II. JURISDICTION

¶ 16 Mr. Kero filed his notice of appeal on October 3, 2017, specifically appealing from the circuit court's orders of September 15, 2017, the order of June 30, 2017, which had granted Symphony's motion to strike the intentional misconduct counts, and also an order from May 11, 2017, with respect to prior motions to dismiss filed by Symphony, although it is unclear from what portion of that order Mr. Kero is appealing.

¶ 17 On November 7, 2017, Symphony filed a motion in this court to dismiss this action for lack of jurisdiction. After full briefing on the motion, we granted Symphony's motion on November 29, 2017, and dismissed the case for want of jurisdiction.

¶ 18 Mr. Kero filed a petition for rehearing on December 20, 2017, which we granted with respect to the dismissal of his appeal from the circuit court's order of September 15, 2017. In our order, we stated that the appeal would "proceed as an interlocutory appeal pursuant to Illinois Supreme Court Rule 307 from the circuit court's order of September 15, 2017, directing the parties to proceed to...