Victim A. v. Song

• Decision Date: 30 September 2020
• Docket Number: No. 1-20-0654,1-20-0654
• Citation: 2020 IL App (1st) 200654 -U
• Court: United States Appellate Court of Illinois
• Parties: VICTIM A, Plaintiff-Appellee, v. CHUNG SONG, M.D., Defendant-Appellant.

2020 IL App (1st) 200654-U

VICTIM A, Plaintiff-Appellee,
v.
CHUNG SONG, M.D., Defendant-Appellant.

No. 1-20-0654

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

September 30, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 17 L 4999

Honorable Joan Powell and Patrick J. Heneghan, Judges Presiding.

JUSTICE McBRIDE delivered the judgment of the court.
Justices Ellis and Burke concurred in the judgment.

ORDER

¶ 1 Held: Defendant could not seek review of the underlying merits of a proceeding under the limited scope of review permitted by Illinois Supreme Court Rule 307(a)(1). Moreover, defendant failed to provide any reviewable basis to support his claim that the court's denial of his motion to stay was an abuse of discretion, and accordingly, that argument was forfeited on appeal.

¶ 2 This appeal arises from post-trial matters following a jury verdict in favor of plaintiff, Victim A, and against defendant, Chung Song, M.D., for $300,000. Substantial post-trial litigation ensued regarding whether defendant was jointly and severally liable to plaintiff for that amount,

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or only severally liable with a third-party defendant. The circuit court concluded that defendant was jointly and severally liable and entered a memorandum of judgment to that effect. Defendant, however, filed a motion to reconsider, and requested that the court stay execution of the memorandum of judgment pending its decision on defendant's motion to reconsider entering the memorandum of judgment. The court denied defendant's motion to stay, and defendant appealed pursuant to Illinois Supreme Court Rule 307(a)(1), which provides that an appeal may be taken from an interlocutory order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." Ill. S. Ct. R. 307(a)(1) (eff. Jan. 1, 2016).

¶ 3 This court will set out the relevant facts as necessary to provide context and resolve this appeal.

¶ 4 The record shows that plaintiff filed a two-count complaint against defendant on May 17, 2017, and an amended two-count complaint on December 26, 2017. Plaintiff alleged that defendant is a licensed medical doctor practicing in Chicago, and that plaintiff was a patient under his care. Plaintiff further alleged that in July of 2016, defendant left plaintiff's medical records open in defendant's clinic, which allowed those medical records to be photographed by another patient, Charon Harper, who subsequently posted plaintiff's medical records on a social media website. Plaintiff alleged that defendant's actions amounted to negligence and invasion of privacy.

¶ 5 The matter proceeded to a jury trial before Judge Joan Powell in May 2019. After hearing the evidence, the jury returned a verdict for plaintiff and against defendant for negligence in the amount of $300,000. Judgment was entered on the verdict on May 28, 2019.

¶ 6 Meanwhile, on February 20, 2018, defendant filed a two-count third-party complaint for contribution pursuant to the Contribution Act, 740 ILCS 100/0.01 et seq., against Charon Harper, for negligence and intentional tort. Defendant alleged that it was Harper who photographed and

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disseminated plaintiff's medical records, and that she did so without defendant's knowledge. Defendant alleged that if plaintiff prevailed in her action against defendant, defendant was entitled to receive contribution from Harper based on Harper's relative degree of fault.

¶ 7 Harper failed to appear, and she was found in default on November 19, 2018.

¶ 8 On June 11, 2019, after the conclusion of the jury trial, Judge Powell held a hearing for prove-up on the third-party complaint against Harper. Counsel for defendant stated, without identifying the authority upon which counsel was relying, that depending on the percentage of liability apportioned between defendant and Harper, it would "affect [defendant's] ultimate responsibility to the Plaintiff *** on the verdict." The court questioned that assertion, stating that it did not "think that that would negate the jury verdict against [defendant]." The court further indicated its belief that plaintiff did not have standing to participate in the hearing on the third-party complaint. Counsel for plaintiff, who was in attendance, also confirmed that he was "told I had no standing." The court asked counsel for defendant if the suggestion that the jury award could be affected by the court's order would "give [plaintiff] standing now to intercede in this and comment on this." Counsel for defendant stated that plaintiff had not moved to intercede, and nonetheless that "this is a separate case. This is [defendant]'s case again[st] Charon Harper." The court agreed that the third-party complaint was "a separate case" and the court did not "see how my determining what [defendant] can pursue from Charon Harper is going to diminish his liability to the Plaintiff." Counsel for defendant reiterated that "depending what the percentage that you say, that could affect the damages that the jury awarded to" plaintiff. The court then stated that counsel for defendant's "recommendation" was "90 percent, that Charon Harper is 90 percent liable in this case" and the court agreed with that percentage.

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¶ 9 The court then read through various sections of the Joint Tortfeasor Contribution Act, specifically that " 'where two or more persons are subject to liability [in] tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.' " The court then stated, "Okay. So I've got that against Charon Harper. A judgment had not been entered against her." The court next read that a " 'plaintiff's right to recover the full amount of his judgment from any one or more defendants, subject to liability [in] tort for the same injury to person or property, or [for] wrongful death, is not affected by the provisions of this Act.' " The court then stated:

"That's where we are with this. So, by the third-party complaint here, [defendant] is asking the Court to determine the amount that Charon Harper is liable for in his suit for contribution for her intentional tort under Count II.

So now that I've read this part of the Act, *** this is a separate action, so *** I'm thinking that [plaintiff] do[es] not have standing to be involved in this determination today, which is a prove-up of Charon Harper."

¶ 10 Following the hearing, the court entered a written order on the prove-up, finding that Harper "is 90% at fault for contribution and [defendant] is 10% at fault plus court costs."

¶ 11 Thereafter, on July 2, 2019, defendant, through his insurer, tendered a check in the amount of $30,658.00 to plaintiff, apparently claiming the amount to be full satisfaction of his obligation to plaintiff.

¶ 12 That same day, plaintiff filed a notice of citation and citation to discover assets against defendant, noting that a judgment of $300,000 had been entered against defendant, and $270,000 plus judgment interest remained unsatisfied. The matter was assigned to Judge Patrick J. Heneghan

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in the Tax and Miscellaneous Remedies section of the Law Division, not Judge Powell, who had primarily presided over the matter thus far.

¶ 13 On July 25, 2019, defendant filed a motion to dismiss the citation to discover assets, claiming he satisfied the judgment. On August 9, 2019, defendant filed a memorandum of law in support of his motion to dismiss. Defendant alleged that, based on the Court's ruling on June 11, 2019, defendant was only severally liable for the judgment rendered against him by operation of Section 2-1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West 2018)), which provided the following:

"in actions on account of bodily injury or death or physical damage to property, based on negligence, *** all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant except the plaintiff's employer, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants except the plaintiff's employer, shall be jointly and severally liable for all other damages."

¶ 14 Defendant alleged that because plaintiff did not appeal the July 11, 2019 order, defendant's several liability for the obligation to plaintiff was "law of the case."

¶ 15 Plaintiff responded to the motion to dismiss the citation to discover assets on September 12, 2019. Plaintiff alleged that the third-party contribution claim against Harper was separate from plaintiff's case, and did not "affect in any way what [defendant] owes plaintiff." Plaintiff pointed

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out that Section 2-1117 "does not apply to intentional torts and only applies to cases of bodily injury," neither of which applied in this case, where Harper committed an intentional tort and where plaintiff did not suffer a bodily injury. Plaintiff also contended that the June 11, 2019 order on defendant's third-party contribution claim did not find him only severally liable, reduce defendant's liability to plaintiff, or refer to Section 2-1117 in any way. Plaintiff further alleged that defendant did not appeal the judgment of May 28, 2019 on the jury verdict, and accordingly, it became final and enforceable for the entire $300,000.

¶ 16 On January 10, 2020, plaintiff filed a motion for entry of a memorandum of judgment pursuant to 735 ILCS...