Cholipski v. Bovis Lend Lease, Inc.
| Decision Date | 25 July 2014 |
| Docket Number | No. 1–13–2842.,1–13–2842. |
| Citation | 16 N.E.3d 345 |
| Parties | Richard CHOLIPSKI and Cynthia Cholipski, Plaintiffs–Appellees, v. BOVIS LEND LEASE, INC., Aldridge Electric, Inc., and Vitatech Engineering, L.L.C., Defendants–Appellants. |
| Court | United States Appellate Court of Illinois |
Mark E. Christensen and Rachel M. Driscoll, both of Christensen & Ehret, LLP, of Chicago, for appellants.
David C. Wise and David J. Rashid, both of Burke Wise Morrissey & Kaveny, LLC, of Chicago, for appellees.
delivered the judgment of the court, with opinion.
¶ 1 On this interlocutory appeal, defendants Bovis Lend Lease, Inc. (Bovis), Aldridge Electric, Inc. (Aldridge), and Vitatech Engineering, L.L.C. (Vitatech), argue that the trial court erred in staying their contribution claim against Dr. Kenneth Candido and his practice group.
¶ 2 Plaintiffs Richard Cholipski (plaintiff) and his wife, Cynthia Cholipski, brought a negligence action against defendants for injuries which he allegedly sustained as a result of an accident in April 2009, and her damages for loss of consortium, when metal tubing fell on him while he was working on a construction project. Plaintiff claims that, as a result of this accident, he suffers pain which renders him permanently disabled.
¶ 3 Defendants claim that plaintiff's pain management doctor, Dr. Kenneth Candido, committed malpractice in his diagnosis of and in his failure to treat plaintiff, and that the doctor's malpractice is the cause of plaintiff's current pain and incapacitation. On August 15, 2013, the trial court granted leave to defendants to file their contribution claim but stayed the claim pending the outcome of the trial on plaintiff's negligence claims, which was scheduled to begin on January 13, 2014. It is this stay that defendants now appeal, pursuant to Illinois Supreme Court Rule 307(a)(1)
(eff. Feb. 26, 2010).
¶ 4 On December 11, 2013, the appellate court granted defendant's motion to stay the trial date of January 13, 2014, until resolution of this interlocutory appeal.
¶ 5 For the following reasons, we affirm the trial court's stay order and vacate our order staying the negligence trial.
¶ 8 This case involves two complaints: (1) plaintiff's negligence complaint against defendants; and (2) defendants' third-party complaint against plaintiff's doctor.
¶ 9 Plaintiff's original complaint was filed January 28, 2010. However, plaintiff's most recent complaint is his second amended complaint, filed February 14, 2013, which we describe below.
¶ 10 Plaintiff's second amended complaint alleges that, on April 28, 2009, plaintiff was employed by M & I Steel, and was working at an ongoing construction project on the tenth floor of the Chicago Mercantile Exchange, located at 20 South Wacker Drive in Chicago, Illinois. In connection with the project, metal tubing was stored vertically in a vault room on the tenth floor, and the tubing was not secured in any way other than by resting the tubing on its ends. Plaintiff was working in the vault room when the tubing fell on his body, causing injury.
¶ 11 Plaintiff alleged that defendant Bovis performed general contracting or construction management functions on the project, that defendant Aldridge placed the tubing on its ends in the vault room, and that plaintiff's employer was a subcontractor to defendant Vitatech, a contractor on the project. The complaint alleged six counts: three counts by plaintiff, with one count against each of the three defendants; and three counts by his wife, also with one count against each of the three defendants. The counts by plaintiff alleged construction negligence which resulted in personal injury, and the counts by his wife alleged construction negligence which resulted in loss of consortium.
¶ 13 More than three years after plaintiff filed his original complaint, defendants moved on April 3, 2013, for leave to file their third-party complaint for contribution from Dr. Kenneth Candido and his medical group, Advocate Physician Partners (Advocate).
¶ 14 Defendants' one-count third-party complaint for contribution alleged that Dr. Candido, a physician specializing in pain management and plaintiff's treating physician, caused plaintiff to be totally and permanently disabled as a result of his care and treatment. The complaint alleged that the doctor misdiagnosed plaintiff with “complex regional pain syndrome
” (CRPS), failed to treat plaintiff for hypertension and for plantar and peroneal neuralgias, administered “massive doses of Decadron ” despite plaintiff's hypertension, and committed other acts of negligence. The complaint stated that, if defendants are found liable to plaintiff, then they are entitled to contribution from Dr. Candido and Advocate.
¶ 16 On April 12, 2013, the trial court initially denied defendants leave to file their contribution claim, without prejudice, on the ground that they could file a separate cause of action against Dr. Candido and Advocate. On May 3, 2013, defendants moved the trial court to reconsider its denial.
¶ 17 Plaintiff filed a response, objecting to defendants' motion for reconsideration on the ground that adding new parties and causes of action at this late date would delay the trial and also confuse the issues at trial. In the alternative, if the trial granted defendants' motion, plaintiff requested that the trial court sever the third-party medical malpractice claim from the negligence claims and order separate trials.
¶ 18 In defendants' reply brief, defendants objected to plaintiff's request for a severance and separate trials, arguing that severing the contribution claim would be the same as filing the claim in a separate action, which “Illinois law prohibits.” However, defendants made no arguments based on constitutional due process.
¶ 19 Several months later, on August 6, 2013, the trial court set a trial date of January 13, 2014. The trial court then reconsidered its prior denial, as defendants had requested, and on August 15, 2013, the trial court granted defendants leave to file their contribution claim. However, the trial court also granted plaintiff's request for severance and separate trials by ordering a stay of the contribution claim until after the resolution of plaintiff's negligence claims. The trial court's written order stated that the court's “reasons [were] set forth in the record.”
¶ 20 At the hearing, the trial court explained that, in light of the January 13, 2014, trial date, the delay would be unfair to plaintiff:
¶ 21 The trial court stressed its concern about delay, stating:
¶ 22 The trial court then held that the contribution claim was “reinstatable at the conclusion of the trial on the merits of the case in chief,” and it summed up its decision as follows:
¶ 23 Neither attorney offered any objection to the trial court's decision and, as quoted above, both attorneys stated “okay” after the trial court stated it.
¶ 24 On September 13, 2013, defendants appealed to this court the portion of the trial court's August 15, 2013, order that stayed their contribution claim. The appeal was filed pursuant to Supreme Court Rule 307(a)(1)
, which permits interlocutory appeals from orders granting an injunction. Ill. S.Ct. R. 307(a)(1) (eff. Feb. 26, 2010). On October 22, 2013, defendants moved the trial court to continue or stay the January 13, 2014, trial date pending the resolution of their interlocutory appeal before this court. After the trial court denied their motion on October 29, 2013, defendants appealed the trial court's denial to stay the trial date. On November 11, 2013, defendants filed an emergency motion in the appellate court to stay the trial court date, which the appellate court granted on December 11, 2013.
¶ 25 On December 12, 2013, plaintiffs moved the appellate court to dismiss defendants' appeal of the trial court's order refusing to stay the trial date. Defendants then moved the appellate court to consolidate the two interlocutory appeals, which the appellate court granted on December 30, 2013. On February 6, 2014, the appellate court dismissed the interlocutory appeal of the trial court's order refusing to stay the trial dated but the interlocutory appeal of the trial court's stay of the contribution claim remained pending.
¶ 27 In this interlocutory appeal, defendants claim that the trial court abused its discretion by ordering a stay of their contribution claim pending the outcome of plaintiff's negligence claims. For the following reasons, we affirm.
¶ 29 The first issue we must address is jurisdiction. Plaintiff argues that we lack subject matter jurisdiction to hear this interlocutory appeal from the trial court's stay order.
¶ 30 Defendants argue that we have jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(1)
, which provides:
“An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing,...
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...this argument further. Failure to support a contention with relevant authority results in waiver of the argument. Cholipski v. Bovis Lend Lease, Inc. , 2014 IL App (1st) 132842, ¶ 53, 384 Ill.Dec. 249, 16 N.E.3d 345. ¶ 33 We need not address Kane's argument that even "if this Court finds th......
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...not include any affidavits or other support for the request. Id. ¶¶ 32–33. Canulli also cites Cholipski v. Bovis Lend Lease, Inc. , 2014 IL App (1st) 132842, 384 Ill.Dec. 249, 16 N.E.3d 345, but notably absent from that case is any discussion of attorney fees. Finally, he cites McHenry Savi......
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...section 2–206 in their brief to the court below, defendants waived the issue for our consideration on appeal. Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 58, 384 Ill.Dec. 249, 16 N.E.3d 345 (issues not raised in the trial court are waived and may not be raised for the f......
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