Curtis v. Lofy

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Curtis v. Lofy

State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0750 Rel

Case Date: 09/02/2009

Preview:NO. 4-08-0750 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT BONNIE CURTIS, Plaintiff-Appellant, v. PHILIP G. LOFY and MARGARET LOFY, Defendants-Appellees.

Filed 9/2/09

) Appeal from ) Circuit Court of ) Sangamon County ) No. 06L140 ) ) Honorable ) Leslie J. Graves, ) Judge Presiding. _________________________________________________________________ JUSTICE MYERSCOUGH delivered the opinion of the court: In July 2001, plaintiff, Bonnie Curtis (Bonnie), filed suit against defendants, Philip G. Lofy and his mother Margaret Lofy, in Sangamon County case No. 01-L-249 (Curtis I). The

lawsuit arose out of an accident that occurred in December 2000. In March 2005, the trial court granted Margaret's motion for summary judgment. suit. In May 2006, Bonnie refiled her lawsuit against Philip and Margaret in Sangamon County case No. 06-L-140 (Curtis II). In June 2006, the trial court dismissed the suit against Margaret on grounds of res judicata. In September 2008, the court disIn May 2005, Bonnie voluntarily dismissed the

missed the suit against Philip on grounds of res judicata. Bonnie appealed. On appeal, Bonnie argues the trial court erred by (1) denying her motion for substitution of judge as of right, (2)

granting summary judgment to Philip on grounds of res judicata, and (3) assessing sanctions of $253 against her attorney for failing to appear at a hearing. We affirm in part, reverse in

part, and remand for further proceedings. I. BACKGROUND This case arose out of a accident that occurred in the early morning hours of December 26, 2000. Bonnie was injured

when she was struck on a public roadway by a vehicle owned by Margaret and driven by Philip. When struck, Bonnie was standing

near a stalled vehicle belonging to Darrell Wilson. A. Bonnie's Original Lawsuit--Curtis I In July 2001, Bonnie filed Curtis I. Although the

record on appeal did not contain the record for Curtis I, this court took judicial notice of the record in Curtis I and supplemented the record on appeal. See, e.g., N B D Highland Park

Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 520-21, 622 N.E.2d 123, 130 (1993) (noting that public documents, including court records, are subject to judicial notice). Count I of Bonnie's first amended complaint alleged that Philip, acting as an agent and for the benefit of Margaret, owed a duty to Bonnie to exercise ordinary care for her safety. Bonnie alleged Philip breached that duty of care by (1) driving the vehicle with cannabis in his system, (2) failing to reduce speed to avoid an accident, (3) operating the vehicle in viola- 2 -

tion of a restriction for daylight driving only, (4) failing to apply the brakes when he saw or should have seen Wilson's vehicle and persons on the highway, (5) failing to alter course when he saw or should have seen Wilson's vehicle and persons on the highway, (6) failing to equip the vehicle with adequate brakes, and (7) failing to maintain a proper lookout. Bonnie alleged

that as a result of Philip's negligent acts or omissions, she suffered severe injuries. Count II incorporated the allegation that Philip was acting as Margaret's agent. Count II further alleged that

Margaret knew or should have known that Philip was "under the influence of alcohol" and operating a vehicle at night in violation of the driving restriction listed on his driver's license. In October 2004, Philip and Margaret filed a motion for summary judgment asserting that Bonnie had no evidence to support her allegations of negligent conduct, breach of duty, or proximate cause. Thereafter, in October 2004, Philip and Margaret

filed motions in limine seeking to prohibit Bonnie from eliciting testimony or evidence that Philip (1) was driving at night notwithstanding a restriction on his driver's license limiting Philip to daytime driving only and (2) tested positive for cannabis in his bloodstream. In November 2004, Sangamon County circuit judge Donald M. Cadagin entered a written order granting Philip's and Marga- 3 -

ret's motions in limine regarding evidence of Philip's "use of cannabis" and driving on a restricted license. The trial court's

order also granted Philip and Margaret's motion for summary judgment on Bonnie's allegations regarding Philip's "use of cannabis" and violation of a driving restriction. The court

granted Bonnie's request to file an amended complaint to conform to discovered facts. (Although the docket entry indicates the

motions in limine were granted and the motion for summary judgment was denied, the written order controls. See, e.g., First

National Bank of Sullivan v. Bernius, 127 Ill. App. 3d 193, 196, 468 N.E.2d 188, 192 (1984) ("a docket entry is not the ultimate entry of the court's judgment in a civil case, at least when there is an additional entry to be made").) In December 2004, Bonnie filed her amended complaint. Bonnie's amended complaint alleged that Margaret, as owner of the vehicle, and Philip, as her authorized agent operating the vehicle, did negligently operate the vehicle by (1) operating the vehicle too fast for conditions (count I), (2) failing to reduce speed to avoid an accident (count II), and (3) failing to take necessary evasive action to avoid an accident (count III). In February 2005, Margaret filed a motion for summary judgment on the agency theory. Margaret asserted that even

though her ownership of the vehicle created a rebuttable presumption of agency, the uncontested evidence rebutted that presump- 4 -

tion. In March 2005, Judge Cadagin granted Margaret's motion for summary judgment "as to [the] [a]gency theory." In May 2005,

after the trial court denied Bonnie's request for a continuance of trial, Bonnie voluntarily dismissed the cause of action. B. Bonnie's Second Lawsuit--Curtis II In May 2006, plaintiff refiled her complaint in Curtis II. Count I alleged that Philip negligently and recklessly

operated a motor vehicle by failing to (1) reduce speed, (2) timely apply brakes, (3) alter course and speed, and (4) maintain a proper lookout. Count II alleged that Margaret failed to

provide proper supervision of her vehicle by allowing Philip, while acting on her behalf, to recklessly and negligently operate the motor vehicle. Count II further alleged that Margaret owed a

duty to ensure safe operation of her vehicle by her agent, Philip. In June 2006, Margaret filed a motion to dismiss pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2006)) asserting that in Curtis I, the trial court granted summary judgment in favor of Margaret. In July 2006, Sangamon County circuit judge Leslie Graves granted Margaret's motion to dismiss by way of docket entry. No written

order, transcript, or bystander's report of the hearing is contained in the record on appeal. - 5 -

Philip was not served with the summons in Curtis II until November 27, 2006. In December 2006, Philip filed a motion

to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2619 (West 2006)) and Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)) asserting that Bonnie failed to exercise reasonable diligence in obtaining service on him. In February 2007, the No

trial court denied the motion to dismiss by written order.

transcript or bystander's report of the hearing is contained in the record on appeal. In May 2007, Philip filed a motion to compel asserting that Bonnie failed to answer interrogatories and a request to produce served upon her. In July 2007, following a hearing, the

trial court entered a written order ordering Bonnie to produce, by July 26, 2007, all medical records after December 1, 2004. transcript or bystander's report of the hearing is contained in the record on appeal. In July 2007, Philip filed a motion to bar (1) evidence that Philip operated the vehicle with cannabis in his system, (2) evidence that Philip operated the vehicle in violation of the restriction that he only drive during the day, (3) testimony from witnesses not disclosed prior to the voluntary dismissal in May 2005, and (4) evidence of medical records or testimony from Dr. Steven Pineda regarding plaintiff's back surgery in 2004. In September 2007, following a hearing, the trial court - 6 No

granted the motion to bar "as to paragraphs C & D."

The record No

is unclear whether the court resolved the remaining issues.

transcript or bystander's report of the hearing is contained in the record on appeal. Also in September 2007, Philip filed a motion for summary judgment asserting that Bonnie had no evidence that Philip breached a duty or that the breach was a proximate cause of Bonnie's injury. The motion was called for hearing in DecemThe docket

ber 2007, but counsel for Bonnie did not appear.

entry for the hearing provides as follows: "Sanctions of $253.00 awarded to the [p]laintiff [sic] for [t]ravel [t]ime." hearing was rescheduled. On January 24, 2008, additional counsel for Bonnie entered his appearance. On January 25, 2008, counsel for Bonnie On January 28, 2008, The

filed a motion for substitution of judge.

the trial court denied the motion for substitution of judge and denied Philip's motion for summary judgment. matter for a May 2008 trial. In February 2008, Philip filed another motion for summary judgment. This motion was based on res judicata pursuant The court set the

to the recent decision in Hudson v. City of Chicago, 228 Ill. 2d 462, 467, 889 N.E.2d 210, 213 (2008) (holding that involuntary dismissal of the plaintiff's negligence claim and the plaintiff's subsequent voluntary dismissal of the remaining willful and - 7 -

wanton claim barred refiling of the willful and wanton claim under the doctrine of res judicata). In July 2008, the trial

court granted the motion for summary judgment by docket entry: "Plaintiff filed suit against [d]efendant in [case No.] 01-L-249 on July 30, 2001. The cause of action and the parties in the instant case and [case No.] 01-L-249 are identical. In [case No.] 01-L-249 the [c]ou-

rt granted two separate [m]otions for [s]ummary [j]udgment in favor of [d]efendant. Plaintiff voluntarily dismissed [case No.] 01-L-249 on May 23, 2005. Plaintiff's volun-

tary dismissal of [case No.] 01-L-249 transformed these two rulings from nonappealable to final and appealable [o]rders. Plaintiff

failed to timely appeal those adverse rulings subsequent to her voluntary dismissal. Under

the [d]octrine of [r]es [j]udicata, any attempt to relitigate those issues as well as any other claims arising out of the accident are barred." In September 2008, the trial court denied plaintiff's motion to reconsider. This appeal followed. - 8 -

II. ANALYSIS On appeal, Bonnie argues the trial court erred by (1) denying her motion to substitute judge as of right, (2) granting summary judgment to Philip on grounds of res judicata, and (3) assessing sanctions of $253 against her attorney. A. Trial Court Properly Denied Motion for Substitution of Judge Bonnie argues the trial court erred when it denied her motion for substitution of judge as of right. Philip argues the

trial court made multiple rulings on substantial issues prior to denying the motion. Section 2-1001(a)(2) of the Code provides, in relevant part, as follows: "(a) A substitution of judge in any civil action may be had in the following situations: *** (2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2). (i) Each party shall be entitled to one substitution of judge with- 9 -

out cause as a matter of right. (ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties." 735 ILCS 5/2-1001(a)(2) (West 2006). A petition for substitution of judge as of right is untimely if filed after the judge has ruled on a substantive issue in the case. In re Daniel R., 291 Ill. App. 3d 1003, 1014 The purpose of the rule is to

684 N.E.2d 891, 898 (1997).

prevent a litigant from "judge shopping" after forming an opinion that the judge may be unfavorably disposed toward her cause. Daniel R., 291 Ill. App. 3d at 1014, 684 N.E.2d at 898. - 10 A ruling

on a substantive issue is one that directly relates to the merits of the case. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, A motion for substitution

350-51, 722 N.E.2d 326, 330 (1999).

may also be denied, in the absence of substantive ruling, if the movant had the opportunity to form an opinion as to the judge's reaction to her claims. In re Estate of Gay, 353 Ill. App. 3d

341, 343, 818 N.E.2d 860, 863 (2004). The trial court has no discretion to deny a proper motion for substitution of judge as of right. App. 3d at 350, 722 N.E.2d at 329. Rodisch, 309 Ill.

This court reviews a ruling

on a motion to substitute de novo, and such review "should lean toward favoring rather than defeating a substitution of judge." Rodisch, 309 Ill. App. 3d at 350, 722 N.E.2d at 329. "Orders

entered after a motion for substitution of judge has been improperly denied are void." Illinois Licensed Beverage Ass'n v.

Advanta Leasing Services, 333 Ill. App. 3d 927, 932, 776 N.E.2d 255, 260 (2002). Bonnie asserts that only procedural rulings and not substantive rulings were made prior to the motion for substitution of judge. Philip points to several rulings he claims

constituted a ruling on a substantial issue, including the following: (1) the July 2006 order granting Margaret's motion to dismiss on grounds of res judicata, (2) the February 2007 order denying Philip's motion to dismiss for lack of due diligence, (3) - 11 -

the July 2007 order granting Philip's motion to compel, and (4) the September 2007 order granting Philip's motion to bar testimony from witnesses not disclosed and evidence of medical records or testimony from Dr. Pineda regarding Bonnie's back surgery. This court agrees that the trial court's order granting Margaret's motion to dismiss on grounds of res judicata was a ruling on a substantial issue. See Partipilo v. Partipilo, 331

Ill. App. 3d 394, 398, 770 N.E.2d 1136, 1140 (2002) (holding that "[e]xamples of rulings on substantial issues include situations in which the trial court has ruled on a motion to dismiss, made pretrial rulings of law[,] or where the party moving for a substitution of judge has discussed issues with the trial judge, who then indicated a position on a particular point"). In fact,

the ruling on that issue clearly alerted Bonnie to the trial court's position on res judicata, the basis on which the court ultimately dismissed Bonnie's case against Philip. See, e.g.,

Bonnie Owen Realty, Inc. v. Cincinnati Insurance Co., 283 Ill. App. 3d 812, 821, 670 N.E.2d 1182, 1188 (1996) (holding that trial court's order denying a motion to compel was a motion on a substantial issue where the order indicated the court's opinion that extrinsic evidence would not be admissible to prove whether the insurer had a duty to defend; that decision foreshadowed the court's subsequent ruling "that extrinsic evidence would not be admissible for purposes of construing the insurance policies or - 12 -

determining whether [the] defendant had a duty to defend [the] plaintiff"). Consequently, the trial court did not err by

denying Bonnie's motion for substitution of judge. B. Trial Court Erred by Granting Summary Judgment in Favor of Philip on Res Judicata Grounds Bonnie next argues the trial court erred by granting summary judgment in favor of Philip on grounds of res judicata. We agree. 1. Standard of Review Is De Novo Whether a claim is barred by res judicata is a question of law that we review de novo. Northeast Illinois Regional

Commuter R.R. Corp. v. Chicago Union Station Co., 358 Ill. App. 3d 985, 1000, 832 N.E.2d 214, 227 (2005); see also Myers v. Illinois Central R.R. Co., 323 Ill. App. 3d 780, 783-84, 753 N.E.2d 560, 563 (2001) (the appellate court reviews grants of summary judgment de novo). 2. History of the Interplay of Voluntary Dismissal and Res Judicata Section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2004)) generally provides that a plaintiff may, at any time before trial or hearing begins, dismiss her action without prejudice. Section 13-217 of the Code permits a plaintiff who

voluntarily dismissed her claim to refile the claim within the greater of one year or the remaining period of limitations. 735

ILCS 5/13-217 (West 1994); see Hudson, 228 Ill. 2d at 469 n.1, - 13 -

889 N.E.2d at 214 n.1 (the version of section 13-217 in effect is the version that preceded the amendments of Public Act 89-7, which the Illinois Supreme Court found unconstitutional in its entirety). Pursuant to the doctrine of res judicata, "a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand[,] or cause of action." Nowak v. St. Rita High School, 197 Ill. 2d 381, 389, Three requirements must be satisfied

757 N.E.2d 471, 477 (2001).

for res judicata to apply: (1) a final judgment on the merits rendered by a court of competent jurisdiction, (2) identity of cause of action, and (3) identity of parties or their privies. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335, 665 N.E.2d 1199, 1204 (1996). Res judicata bars not only the same claim in

a subsequent suit but every matter that could have been offered to sustain the claim or demand. N.E.2d at 1204. A series of cases addressing the interplay between voluntary dismissal and res judicata affect the analysis of this case. Therefore, a summary of those cases is provided herein. a. Rein v. David A. Noyes & Co. The Illinois Supreme Court addressed the interplay - 14 Rein, 172 Ill. 2d at 334-35, 665

between voluntary dismissal and res judicata in Rein, 172 Ill. 2d 325, 665 N.E.2d 1199. various theories. In Rein, the plaintiff filed suit under

The trial court dismissed the plaintiffs'

rescission counts with prejudice on the ground that they were barred by the limitation period in section 13(D) of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121 1/2, par. 137.13(D)). Rein, 172 Ill. 2d at 329, 665 N.E.2d at 1202. The

plaintiffs later voluntarily dismissed the remaining counts and appealed the dismissal of the rescission counts. 2d at 330, 665 N.E.2d at 1202. Rein, 172 Ill.

The appellate court affirmed the Rein, 172 Ill. 2d at 330,

dismissal of the rescission counts.

665 N.E.2d at 1202, citing Rein v. David A. Noyes & Co., 230 Ill. App. 3d 12, 13, 595 N.E.2d 565, 567 (1992). Approximately 19 months after the voluntary dismissal, the plaintiffs refiled their action, almost identical to the previous complaint, raising rescission claims and common-law claims. Rein, 172 Ill. 2d at 331, 665 N.E.2d at 1202. The trial

court granted the defendant's motion to dismiss the entire complaint on grounds of res judicata. 665 N.E.2d at 1203. Rein, 172 Ill. 2d at 332, Rein, 172

The appellate court affirmed.

Ill. 2d at 333, 665 N.E.2d at 1203. The Illinois Supreme Court granted leave to appeal and affirmed, holding that res judicata barred the claims that were raised and could have been raised in the first lawsuit. - 15 Rein,

172 Ill. 2d at 336, 665 N.E.2d at 1205.

The supreme court first

examined the dismissal of the rescission counts on grounds of res judicata. The court found the second and third requirements for

res judicata--same parties and same cause--were clearly met. Rein, 172 Ill. 2d at 335, 665 N.E.2d at 1204. The court noted

that determining whether the first requirement for res judicata was met required a determination of whether the dismissal of the rescission counts in the first action was a final judgment. Rein, 172 Ill. 2d at 335, 665 N.E.2d at 1204. The supreme court examined Supreme Court Rule 273 (134 Ill. 2d R. 273), which provides, subject to certain exceptions not applicable here, that an involuntary dismissal operates as an adjudication on the merits. The supreme court found, pursuant to

Rule 273, that the order dismissing the rescission counts on statute-of-limitations grounds was a final judgment on the merits. Rein, 172 Ill. 2d at 336, 665 N.E.2d at 1204-05. As a

result, the final judgment in the first action barred any "subsequent actions involving the same claims or demands by the same parties or their privies," including matters which might have been--but were not--raised in the earlier suit. 2d at 336, 665 N.E.2d at 1205. The Rein court also examined the dismissal of the common-law counts on grounds of res judicata and found all three elements met: (1) the adjudication on the merits of the rescis- 16 Rein, 172 Ill.

sion count operated as an adjudication on the merits for purposes of res judicata even though there was no adjudication on the merits of the common-law counts (Rein, 172 Ill. 2d at 338, 665 N.E.2d at 1205); (2) identity of the cause of action existed because the common-law counts arose out of the same operative facts as the rescission counts (Rein, 172 Ill. 2d at 339, 665 N.E.2d at 1206); and (3) identity of the parties in both suits existed (Rein, 172 Ill. 2d at 338, 665 N.E.2d at 1206). The Rein court also examined the doctrine against claim-splitting, explaining that "[t]he principle that res judicata prohibits a party from later seeking relief on the basis of issues which might have been raised in the prior action also prevents a litigant from splitting a single cause of action into more than one proceeding." at 1206. Rein, 172 Ill. 2d at 339, 665 N.E.2d

The court noted that the rule against claim-splitting

may be "relaxed where there has been an omission due to ignorance, mistake[,] or fraud, or where it would be inequitable to apply that rule." Rein, 172 Ill. 2d at 341, 665 N.E.2d at 1207.

The court found nothing in the record alleging ignorance, mistake, or fraud in refiling the common-law counts in the second suit. Rein, 172 Ill. 2d at 341-42, 665 N.E.2d at 1207. The Rein

court also examined whether any of the exceptions to the rule against claim-splitting identified in section 26(1) of the Restatement (Second) of Judgments applied. - 17 The court noted:

"This section provides that the rule against claim-splitting does not apply to bar an independent claim of part of the same cause of action if: (1) the parties have agreed in terms or in effect that [the] plaintiff may split his claim or the defendant has acquiesced therein; (2) the court in the first action expressly reserved the plaintiff's right to maintain the second action; (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action; (4) the judgment in the first action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involves a continuing or recurrent wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason." Rein, 172 Ill.

2d at 341, 665 N.E.2d at 1207, citing Restatement (Second) of Judgments

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