Williams v. Ingalls Mem'l Hosp.

• Decision Date: 17 February 2011
• Docket Number: No. 1–10–0334.,1–10–0334.
• Citation: 944 N.E.2d 421,408 Ill.App.3d 360,348 Ill.Dec. 468
• Parties: Marsae WILLIAMS, a Minor, by Jenel BEATON, His Mother and Next Friend, and Jenel Beaton, Individually, Plaintiffs–Appellees,v.INGALLS MEMORIAL HOSPITAL, Imre Hidvegi, Stephen Daube, and Theresa Yaeger, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

408 Ill.App.3d 360

944 N.E.2d 421

348 Ill.Dec. 468

Marsae WILLIAMS, a Minor, by Jenel BEATON, His Mother and Next Friend, and Jenel Beaton, Individually, Plaintiffs–Appellees,

v.INGALLS MEMORIAL HOSPITAL, Imre Hidvegi, Stephen Daube, and Theresa Yaeger, Defendants–Appellants.

No. 1–10–0334.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 17, 2011.

Barker & Castro, LLC, Chicago, IL (Krista R. Frick, Anne S. Kuban) and Chuhak & Tecson, P.C. (Dennis Ferraro, Alan B. Ronson), for appellants.Paul B. Episcope, LLC, Chicago, IL (Michael T. Mullen, Richard J. Schroeder), for appellees.

OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

In this appeal, we answer two certified questions and determine: (1) whether plaintiffs abandoned their spoliation claims for purposes of res judicata where those claims are dismissed with leave to replead but the claims are never replead prior to plaintiff's voluntary dismissal of the entire cause of action; and (2) whether a grant of summary judgment in favor of the hospital defendant on a claim for respondeat superior based on the apparent agency of a doctor, with a subsequent voluntary dismissal of the remainder of the case, operates

[944 N.E.2d 425 , 348 Ill.Dec. 472]

as a res judicata bar against refiling the action against both the hospital and the doctor. We answer the first question in the negative, as the order granted plaintiffs leave to replead and was not a final judgment on the merits of those claims and, therefore, was not subsequently rendered final by the voluntary dismissal. We answer the second question in the affirmative as to the hospital, except as to a claim for respondeat superior based on actual agency, but in the negative as to the defendant doctor and remaining defendants.

BACKGROUND

On April 17, 1998, plaintiff Jenel Beaton gave birth to minor plaintiff Marsae Williams at defendant Ingalls Memorial Hospital (Ingalls). Marsae suffered a brachial plexus injury during the course of his birth. On July 30, 2003, plaintiffs filed a complaint alleging that individual defendants Dr. Imre Hidvegi, Dr. Stephen Daube, and nurse Theresa Yaeger were negligent in the delivery of Marsae. We will refer to this original action as Williams I. Plaintiffs alleged that Ingalls was vicariously liable for the negligence of Dr. Hidvegi on the basis that he “was a duly authorized agent and/or employee of” Ingalls and “was acting within the course and scope of that employment and/or agency.” Plaintiffs further alleged negligent and intentional spoliation of evidence regarding fetal monitor strips.

On January 10, 2007, Ingalls filed a motion to dismiss counts V and VI of plaintiff's complaint alleging negligence and intentional spoliation, pursuant to section 2–615 of the Illinois Code of Civil Procedure (735 ILCS 5/2–615 (West 2008)). The court initially denied the motion but, on February 28, 2007, granted Ingalls' motion to reconsider and dismissed counts V and VI, but granted plaintiffs leave to file a second amended complaint “pleading spoliation as an allegation(s).” Subsequently, witness and expert disclosures were completed and the action was scheduled for trial on March 10, 2008. Plaintiffs never filed a second amended complaint and never repled the negligent or intentional spoliation of evidence claims.

On February 20, 2007, Ingalls also filed a motion for partial summary judgment on the claim for liability against it based on the apparent agency of Dr. Hidvegi. On March 30, 2007, the circuit court granted Ingalls' motion. On March 10, 2008, the day of trial, plaintiffs appeared and orally moved to voluntarily dismiss the remaining claims of their complaint, which the court granted without prejudice.

On March 6, 2009, plaintiffs refiled the instant cause of action, which we will refer to as Williams II. Plaintiffs' complaint is identical to the first amended complaint in Williams I and includes the same parties and allegations, including the negligent and intentional spoliation of evidence claims and the claim for vicarious liability of Ingalls based on the allegation that Dr. Hidvegi “was a duly authorized agent and/or employee of” Ingalls and “was acting within the course and scope of that employment and/or agency.”

On July 7, 2009, defendants filed a motion to dismiss plaintiffs' refiled cause of action based on res judicata, arguing that both the dismissal order of February 28, 2007, and the entry of summary judgment on apparent agency on March 30, 2007, were adjudications on the merits. The circuit court denied the motion on September 24, 2009, and also denied the defendants' motion to reconsider on November 18, 2009.

Thereafter, defendants jointly presented two certified questions, which the circuit court certified for our review on January 20, 2010. Defendants filed a timely application

[944 N.E.2d 426 , 348 Ill.Dec. 473]

for leave to appeal pursuant to Illinois Supreme Court Rule 308 (Ill. S.Ct. R. 308 (eff.Feb.1, 1994)), which we granted. The instant appeal followed.

ANALYSIS

On appeal, defendants Ingalls Memorial Hospital, Dr. Imre Hidvegi, Dr. Stephen Daube, and Theresa Yaeger seek an answer to the following certified questions:

“1. Does abandonment occur, for purposes of res judicata, where a plaintiff brings Counts for spoliation of evidence; the Counts are involuntarily dismissed with leave to re-plead, and the Counts are not re-pled prior to plaintiff's voluntary dismissal of the cause of action on the morning of trial?

2. Where summary judgment is entered against plaintiff on an allegation that the defendant physician is the apparent agent of the defendant hospital, and plaintiff then voluntarily dismisses the remainder of the case, does that order of summary judgment act as a res judicata bar to re-filing the case against the hospital and the defendant doctor?”

We apply a de novo standard of review to legal questions presented in an interlocutory appeal brought pursuant to Supreme Court Rule 308(a). Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 398 Ill.App.3d 773, 778, 343 Ill.Dec. 721, 935 N.E.2d 949, 954 (2009) (citing Anthony v. City of Chicago, 382 Ill.App.3d 983, 987, 321 Ill.Dec. 202, 888 N.E.2d 721, 725 (2008)).

I. Dismissal of Intentional and Negligent Spoliation Claims

As to the first certified question, defendants argue that the plaintiffs abandoned their spoliation counts in Williams I where those counts were dismissed by the court with leave to replead and were not repled prior to plaintiffs' voluntary dismissal of their cause of action. Although defendants first argue that plaintiffs effectively abandoned their spoliation claims, abandonment is a concept typically applied when a further amended pleading is filed but certain former allegations are not realleged. Under the principle of abandonment, where an amended pleading is complete in itself and does not refer to or adopt a prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. Pfaff v. Chrysler Corp., 155 Ill.2d 35, 61, 182 Ill.Dec. 627, 610 N.E.2d 51, 63 (1992) (citing Bowman v. County of Lake, 29 Ill.2d 268, 272, 193 N.E.2d 833, 835 (1963)). Thus, when a party files such an amended complaint, he thereby waives any objection to the trial court's ruling on the former complaint. Pfaff, 155 Ill.2d at 61, 182 Ill.Dec. 627, 610 N.E.2d at 63 (citing Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150, 153, 70 Ill.Dec. 251, 449 N.E.2d 125, 126 (1983), citing Bowman, 29 Ill.2d at 272, 193 N.E.2d at 835). Here, plaintiffs never filed a second amended complaint in their original action. The principles of res judicata more appropriately apply.

Plaintiffs argue that the court's prior dismissal of the counts with leave to replead was not a final adjudication of their spoliation counts because they subsequently voluntarily dismissed their action without prejudice, and thus those counts are not barred by res judicata. Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of causes of action exists; and (3) the parties or their privies are identical in both actions. Hudson v. City of Chicago, 228 Ill.2d 462, 467, 321 Ill.Dec. 306, 889 N.E.2d 210, 213 (2008) (citing

[944 N.E.2d 427 , 348 Ill.Dec. 474]

Downing v. Chicago Transit Authority, 162 Ill.2d 70, 73–74, 204 Ill.Dec. 755, 642 N.E.2d 456, 458 (1994)). “ ‘A final order is one that “disposes of the rights of the parties either with respect to the entire controversy or some definite and separate portion thereof.” ’ ” Jackson v. Victory Memorial Hospital, 387 Ill.App.3d 342, 351, 326 Ill.Dec. 673, 900 N.E.2d 309, 318 (2008) (quoting In re Estate of Yucis, 382 Ill.App.3d 1062, 1069, 322 Ill.Dec. 45, 890 N.E.2d 964, 970 (2008), quoting Arachnid, Inc. v. Beall, 210 Ill.App.3d 1096, 1103, 155 Ill.Dec. 662, 569 N.E.2d 1273, 1277 (1991)).

Regarding whether a dismissal operates as a final adjudication, Supreme Court Rule 273 provides the following:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” Ill. S.Ct. R. 273 (eff.Jan. 1, 1967).

Ordinarily, a dismissal for failure to state a claim is an involuntary dismissal and is an adjudication on the merits. 735 ILCS 5/2–619 (West 2008); Ill. S.Ct. R. 273 (eff.Jan. 1, 1967); Doe v. Gleicher, 393 Ill.App.3d 31, 36, 331 Ill.Dec. 711, 911 N.E.2d 532, 538 (2009). However, an order dismissing a complaint but granting leave to replead is not a final order for purposes of res judicata until the trial court enters an order dismissing the suit with prejudice. Smith v. Central Illinois Regional Airport, 207 Ill.2d 578,...