Tupanjac v. SZ Orland Park, LLC

1

2024 IL App (1st) 232467-U

RADIVOJE TUPANJAC, Father and Next Friend of LUKA TUPANJAC, a minor, Plaintiff-Appellant, v. SZ ORLAND PARK, LLC, a limited liability company; ANTHONY LEMPARES, and ZACHARY FRENZEL, Defendants-Appellees.

No. 1-23-2467

Court of Appeals of Illinois, First District, Fifth Division

July 26, 2024

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

Appeal from the Circuit Court of Cook County. No. 22 L 6952 Honorable David B. Atkins, Judge, presiding.

PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Mikva and Justice Lyle concurred in the judgment.

ORDER

MITCHELL PRESIDING JUSTICE

¶ 1 Held: Plaintiff's legal arguments challenging the validity of a contract as a whole, and not specifically an arbitration clause, are themselves subject to arbitration.

¶ 2 Plaintiff Radivoje Tupanjac, father and next friend of Luka Tupanjac, a minor, appeals the circuit court's order in favor of defendants SZ Orland Park, LLC, Anthony Lempares and Zachary Frenzel. The issues on appeal are whether the circuit court erred in granting defendants' motion to compel arbitration and stay litigation and denying plaintiff's motion for summary judgment because: (1) the Sky Zone waiver agreement is invalid and unenforceable under Illinois law, and (2) the waiver agreement is perpetual in duration and thus terminable at will. For the following reasons, we vacate the circuit court's order and remand with instructions.

¶ 3 I. BACKGROUND

¶ 4 Defendant SZ Orland Park, LLC, doing business as Sky Zone Vernon Hills, owns and operates a trampoline park in Vernon Hills, Illinois. On January 29, 2022, Nada Tupanjac signed a document titled "Sky Zone Vernon Hills Waiver" on behalf of her minor son, Luka Tupanjac. The waiver agreement contained various provisions, including a provision which purported to waive Luka Tupanjac's right to a jury trial and instead set forth that any disputes were subject to arbitration:

"I understand that by agreeing to arbitrate any dispute as set forth in this section, I am waiving my right, and the right(s) of the minor child(ren) above, to maintain a lawsuit against SZ and the other Releasees for any and all claims covered by this Agreement. By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. *** ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD'S ACCESS TO AND/OR USE OF THE SKY ZONE PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE *** DETERMINED BY ARBITRATION ***"

(Emphasis in original). The waiver agreement stated that "this agreement extends forever into the future and will have full force and legal effect each and every time I or my [child] visit Sky Zone, whether at the current location or any other location or facility." However, the agreement also stated that it would expire on January 29, 2023.

¶ 5 The following day, Luka Tupanjac, accompanied by his mother, visited Sky Zone. While participating in Sky Zone's "stunt zone" attraction, Luka Tupanjac was injured when another patron collided with him. In August 2022, plaintiff Radivoje Tupanjac, father and next friend of Luka Tupanjac, filed a complaint against Sky Zone, and Sky Zone employees Anthony Lempares and Zachary Frenzel. Plaintiff alleged that defendants were negligent, and that Sky Zone's conduct was willful and wanton. Plaintiff also sought declaratory relief that the Sky Zone waiver agreement was void and unenforceable as a matter of Illinois law.

¶ 6 Defendants filed a motion to compel arbitration and stay litigation, pursuant to the arbitration provision of the Sky Zone waiver agreement. The following day, plaintiff filed a motion for summary judgment. Plaintiff sought summary judgment on his declaratory relief claim, and additionally asked the circuit court to summarily determine that the waiver agreement was not a bar to plaintiff's negligence claims. After hearing the parties' arguments, the circuit court entered an order that granted defendants' motion to compel arbitration and stay litigation, and denied plaintiff's motion for summary judgment. This timely appeal followed. Ill. S.Ct. R.307(a)(1) (eff. Nov. 1, 2017).

¶ 7 II. ANALYSIS

¶ 8 Plaintiff argues the circuit court erred in granting defendants' motion to compel arbitration and denying plaintiff's motion for summary judgment because the Sky Zone waiver agreement is invalid and unenforceable under Illinois law, and because the waiver agreement is perpetual in duration and thus terminable at will. Plaintiff argues that the waiver agreement is unenforceable because it violates the Physical Fitness Services Act (815 ILCS 645/1 et seq. (West 2022)), and because it violates public policy by allowing a parent to waive his or her child's right to jury trial in favor of arbitration. Defendants argue that the waiver agreement is not governed by the Act, does not violate public policy, and is not terminable at will.

¶ 9 The parties dispute the applicable standard of review. Defendants argue that the standard of review for defendants' motion to compel arbitration is abuse of discretion. Vassilkovska v. Woodfield Nissan, Inc., 358 Ill.App.3d 20, 24 (2005) ("Generally, interlocutory appeals are reviewed under an abuse of discretion standard to determine whether the trial court was correct in granting or denying the relief requested." (Internal quotation marks omitted.)). However, where the circuit court "grants a motion to compel arbitration without an evidentiary hearing and bases its decision on a purely legal analysis, the applicable standard of review is de novo." (Internal quotation marks omitted.) Parker v. Symphony of Evanston Healthcare, LLC, 2023 IL App (1st) 220391, ¶ 24.

¶ 10 Here, no evidentiary hearing occurred before the circuit court entered its order. Defendants argue that the court made two factual findings, that Sky Zone is not a physical fitness center offering physical fitness services as defined by the Act, and that Luka Tupanjac derived a benefit from the arbitration agreement. However, these are rulings of statutory and contractual construction and thus are legal conclusions, not factual findings. Accordingly, our review is de novo. Id.

¶ 11 The parties also dispute whether we have jurisdiction on appeal to consider the circuit court's denial of plaintiff's motion for summary judgment. Generally, orders denying summary judgment are not appealable. In re Estate of Funk, 221 Ill.2d 30, 85 (2006). However, a ruling not otherwise appealable under Rule 307(a) may be reviewed by an appellate court if it is sufficiently "intertwined" with the lower court's ruling as to injunctive relief. Weiss v. Waterhouse Securities, Inc., 208 Ill.2d 439, 448 (2004); Glazer's Distributors of Illinois, Inc. v. NWS-Illinois, LLC, 376 Ill.App.3d 411, 420 (2007). Here, both motions dealt exclusively with the same issue: whether the Sky Zone waiver agreement containing an arbitration provision was valid and enforceable. Additionally, the circuit court heard oral arguments and issued rulings as to both motions simultaneously. The circuit court's ruling on one motion would cause any ruling on the other motion to be a "foregone conclusion." Weiss, 208 Ill.2d at 449. Plaintiff's motion for summary judgment was sufficiently "intertwined" with defendants' motion to compel arbitration and stay litigation such that we have jurisdiction to review the summary judgment ruling. Id. at 448; Glazer's Distributors, 376 Ill.App.3d at 420. A summary judgment ruling is reviewed de novo. Aasen v. Rickert, 2018 IL App (2d) 170036, ¶ 20.

¶ 12 A. Combined Motion to Dismiss

¶ 13 As an initial matter, plaintiff argues that defendants' motion to compel arbitration and stay litigation violated the Code of Civil Procedure because defendants' motion improperly raised arguments under both section 2-619 and 2-615 of the Code and did not separate these arguments as required under section 2-619.1 of the Code. Therefore, plaintiff contends the circuit court erred in considering the motion on its merits. A motion to dismiss under section 2-615 "challenges the legal sufficiency of a complaint based on defects apparent on its face." Marshall v. Burger King Corp., 222 Ill.2d 422, 429 (2006). Meanwhile, "[a] motion to dismiss under section 2-619 admits the legal sufficiency of the complaint but asserts a defense that defeats it." Doe v University of Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 35. A party may combine a section 2-615 motion and a section 2-619 motion into one pleading, but the combined motion must be separated into parts, and "each part shall be limited to and shall specify that it is made under" section 2-615 or 2-619. 735 ILCS 5/2-619.1 (West 2022). A movant's failure to specifically designate whether a motion to dismiss is brought pursuant to section 2-615 or section 2-619 is fatal if it results in prejudice to the nonmovant. Mareskas-Palcek v. Schwartz, Wolf &Bernstein, LLP, 2017 IL App (1st) 162746, ¶ 22.

¶ 14 Regardless of whether defendants' motion here was procedurally improper, plaintiff was not prejudiced. Defendants clarified in their reply brief and in oral argument that they were making no claim for dismissal under section 2-615 and that the basis for their motion was section 2-619(a)(9). The circuit court's decision to grant defendants' motion to compel was not based on any argument concerning the legal sufficiency of the complaint under section 2-615. Because plaintiff was not prejudiced the circuit...