Curtis v. Lofy, 4-08-0750.

Citation914 N.E.2d 248
Decision Date02 September 2009
Docket NumberNo. 4-08-0750.,4-08-0750.
PartiesBonnie CURTIS, Plaintiff-Appellant, v. Philip G. LOFY and Margaret Lofy, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

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. In May 2005, Bonnie voluntarily dismissed the 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 dismissed 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, 190 Ill. Dec. 713, 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 violation 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 Margaret'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, 82 Ill.Dec. 126, 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 presumption.

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.

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 5/2-619 (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 trial court denied the motion to dismiss by written order. No 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. No 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 granted the motion to bar "as to paragraphs C & D." The record is unclear whether the court resolved the remaining issues. No 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 December 2007, but counsel for Bonnie did not appear. The docket entry for the hearing provides as follows: "Sanctions of $253.00 awarded to the [p]laintiff [sic] for [t]ravel [t]ime." The hearing was rescheduled.

On January 24, 2008, additional counsel for Bonnie entered his appearance. On January 25, 2008, counsel for Bonnie filed a motion for substitution of judge. On January 28, 2008, the trial court denied the motion for substitution of judge and denied Philip's motion for summary judgment. The court set the matter for a May 2008 trial.

In February 2008, Philip filed another motion for summary judgment. This motion was based on res judicata pursuant to the recent decision in Hudson v. City of Chicago, 228 Ill.2d 462, 467, 321 Ill.Dec. 306, 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 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]ourt 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,...

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