Presberry v. McMasters

2021 IL App (2d) 200538

173 N.E.3d 1010

447 Ill.Dec. 367

Kinnie PRESBERRY, Plaintiff-Appellant,

v.Elizabeth K. MCMASTERS, Defendant-Appellee.

No. 2-20-0538

Appellate Court of Illinois, Second District.

Opinion filed May 25, 2021

Jeffrey S. Deutschman, of Deutschman & Skafish, P.C., of Chicago, for appellant.

John T. Schriver, Neville M. Bilimoria, and Keith M. St. Aubin, of Duane Morris LLP, of Chicago, for appellee.

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

¶ 1 In 2019, the plaintiff, Kinnie Presberry, filed a one-count complaint in the circuit court of Cook County alleging that in 1994, before she turned 18 years old, the defendant, Elizabeth K. McMasters, a resident of McHenry County, had sexually abused her in Du Page County. The circuit court of Cook County granted the defendant's motion to transfer venue to Du Page County and also ordered the plaintiff to pay the defendant's fees and costs for having filed her action in an improper venue. The circuit court of Du Page County subsequently dismissed the plaintiff's one-count complaint as being barred by the applicable statute of limitations. The plaintiff appeals from all of those orders. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On February 6, 2019, the plaintiff filed against the defendant a one-count complaint for child sexual abuse, pursuant to section 13-202.2 of the Code of Civil Procedure (Code) ( 735 ILCS 5/13-202.2 (West 1994) ). The plaintiff filed her complaint in the circuit court of Cook County and alleged that the defendant, a McHenry County resident, had sexually abused her prior to the plaintiff turning 18 on October 11, 1994 (the childhood sexual abuse case). The plaintiff alleged that the abuse occurred between January 1994 and August 1995 when she was confined at the juvenile detention center in Warrenville, which is in Du Page County. After the plaintiff was discharged from the juvenile detention center, she went to live at a group home in Chicago and later moved to Bartlett. (Both Chicago and Bartlett are in Cook County.) The plaintiff further alleged that the defendant had sexual relations with her in both Chicago and Bartlett.

¶ 4 On April 15, 2019, the defendant filed a motion to transfer venue to Du Page County and for fees and costs because the plaintiff had filed the action in Cook County in bad faith and without probable cause.

¶ 5 On August 15, 2019, the circuit court of Cook County granted the motion to transfer the case to Du Page County and awarded fees and costs pursuant to section 2-107 of the Code ( 735 ILCS 5/2-107 (West 2018) ). On January 7, 2020, the circuit court denied the plaintiff's motion to reconsider and awarded the defendant $12,441, the full amount of fees and costs that she had requested.

¶ 6 On March 5, 2020, the defendant filed in the circuit court of Du Page County a motion to dismiss the plaintiff's complaint, arguing that it was barred by the applicable two-year statute of limitations. On June 8, 2020, the circuit court dismissed the plaintiff's complaint without prejudice, finding that it "appear[ed] clear, based on the pleadings *** that she was always aware of the abuse."

¶ 7 On July 6, 2020, the plaintiff filed an amended one-count complaint. She alleged that, although she was aware of the sexual conduct by the defendant when it occurred, she was not aware that the sexual activity with the defendant constituted sexual abuse and had caused her significant harm and injury until she "broke through" her repressed memory during a therapy session on June 26, 2018. On July 10, 2020, the defendant filed a motion to dismiss, again arguing that the case was barred by the applicable statute of limitations because the plaintiff always knew about the alleged abuse. On September 15, 2020, the circuit court dismissed the plaintiff's amended complaint with prejudice, finding that it was barred by the statute of limitations. On September 17, 2020, the plaintiff filed a timely notice of appeal.

¶ 8 On October 6, 2020, the plaintiff filed a new complaint against the defendant in Cook County (the oral contract case). The complaint alleged that, in February or March 2018, the plaintiff and the defendant entered into an oral contract whereby the defendant would pay the plaintiff $60,000 a year for the rest of the plaintiff's life in exchange for the plaintiff remaining silent about the defendant's alleged sexual abuse of her. The complaint asserted that the defendant had breached the agreement by not making the required payments to the plaintiff.

¶ 9 II. ANALYSIS

¶ 10 Prior to addressing the merits of the plaintiff's appeal, we first consider the defendant's argument that this case should be dismissed based on the doctrine of judicial estoppel. The defendant argues that the doctrine applies because the plaintiff alleged inconsistent material facts in the childhood sexual abuse case and the oral contract case. Specifically, the plaintiff argued in the childhood sexual abuse case that she did not recover her repressed memories of her alleged injuries until June 26, 2018, while in the oral contract case she alleged that three or four months earlier she had entered into an agreement with the defendant to keep silent about the alleged abuse in exchange for annual payments. The defendant insists that we dismiss the plaintiff's appeal so as not to condone the plaintiff's duplicitous behavior and undermine the integrity of the judicial process.

¶ 11 Judicial estoppel is an equitable doctrine invoked by the court at its discretion. Seymour v. Collins , 2015 IL 118432, ¶ 36, 396 Ill.Dec. 135, 39 N.E.3d 961. As the United States Supreme Court has observed, the uniformly recognized purpose of the doctrine is to protect the integrity of the judicial process by prohibiting parties from "deliberately changing positions" according to the exigencies of the moment. (Internal quotation marks omitted.) New Hampshire v. Maine , 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Judicial estoppel applies in a judicial proceeding when litigants take a position, benefit from that position, and then seek to take a contrary position in a later proceeding. Barack Ferrazzano Kirschbaum Perlman & Nagelberg v. Loffredi , 342 Ill. App. 3d 453, 460, 277 Ill.Dec. 111, 795 N.E.2d 779 (2003). This court is permitted to "take judicial notice of public documents which are included in the records of other courts." Seymour , 2015 IL 118432, ¶ 6 n.1, 396 Ill.Dec. 135, 39 N.E.3d 961.

¶ 12 Our supreme court has identified five prerequisites as "generally required" before a court may invoke the doctrine of judicial estoppel. The party to be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it. Id. ¶ 37.

¶ 13 We note that the defendant's argument is in an unusual posture because she is seeking to invoke the doctrine of judicial estoppel in order to terminate the proceedings in the plaintiff's original action. Normally, a defendant invokes this doctrine only to estop the plaintiff from pursuing a second action. See Loffredi, 342 Ill. App. 3d at 460, 277 Ill.Dec. 111, 795 N.E.2d 779. Nonetheless, we need not determine whether the doctrine can be invoked here because, based on the facts of this case, it is not applicable anyway.

¶ 14 We reach this conclusion even though the first four prerequisites of judicial estoppel are clearly met. The plaintiff has taken two factually inconsistent positions before two different courts, which we infer that she intended the courts to take as true, as to when she was fully aware of all the harm that the defendant's alleged abuse had caused. In the childhood sexual abuse case, she alleged that she did not make the connection between the sexual conduct and the harm until June 26, 2018. It is therefore incomprehensible how, in the oral contract case, she could have entered into an agreement with the defendant to keep silent about the alleged abuse in February or March 2018 when she was not yet aware of how that abuse had harmed her. However, the fifth prerequisite—that she received some benefit in the first proceeding—is not present, as her cause of action was dismissed at the pleading stage.

¶ 15 We note that all of the five prerequisites need not be present in order for judicial estoppel to apply. See id. However, the Supreme Court has suggested that achieving success in the first proceeding is a key aspect of judicial estoppel because, "[a]bsent success in a prior proceeding, a party's later inconsistent position introduces no risk of inconsistent court determinations [citation], and thus poses little threat to judicial integrity." (Internal quotation marks omitted.) New Hampshire , 532 U.S. at 750-51, 121 S.Ct. 1808.

¶ 16 The defendant argues that the plaintiff achieved some success because the circuit court allowed her to file an amended complaint before ultimately dismissing her action. In other terms, the defendant contends that the plaintiff achieved some success because the circuit court dismissed her original complaint without prejudice instead of with prejudice. We do not believe that obtaining a dismissal without prejudice is sufficient to constitute success for purposes of judicial estoppel. Accordingly, absent any success in the prior proceeding, the doctrine of judicial estoppel is not applicable. We therefore decline to dismiss the plaintiff's appeal or impose sanctions on that basis.

¶ 17 We next turn to the issue of whether the circuit court properly granted the motion to transfer venue from Cook County to Du Page County. "Proper venue is an important statutory privilege" ( Bucklew v. G.D. Searle & Co. , 138 Ill. 2d 282, 288, 149 Ill.Dec. 722, 562 N.E.2d 186 (1990) ), and the defendant is entitled to have a lawsuit proceed in a proper venue so long...