Wofford v. Tracy
| Decision Date | 07 October 2015 |
| Docket Number | No. 2–14–1220.,2–14–1220. |
| Citation | 48 N.E.3d 1109 |
| Parties | Estella WOFFORD and Leo Seay, Plaintiffs–Appellants, v. Kevin TRACY, Defendant (Rockford Mutual Insurance Company; TDE Consulting Group, LLC; Service Construction Company, Inc.; and Tim Erickson, Defendants–Appellees). |
| Court | United States Appellate Court of Illinois |
Adam David Ingber, of Law Offices of Adam David Ingber PC, of Chicago, for appellants.
Michael Resis, of SmithAmundsen LLC, of Chicago, for appellees Tim Erickson and TDE Consulting Group, LLC.
Bryan G. Schumann, of Lewis Brisbois Bisgaard & Smith, LLP, of Chicago, for appellee Service Construction Company, Inc.
Peter W. Schoonmaker and Daniel R. Woods, both of Condon & Cook LLC, of Chicago, for appellee Rockford Mutual Insurance Company.
delivered the judgment of the court, with opinion.
¶ 1 Following a house fire during which they sustained personal injuries, plaintiffs, Estella Wofford and Leo Seay, sued defendants, Kevin Tracy, the property owner; Rockford Mutual Insurance Company (Rockford), Tracy's insurer; TDE Consulting Group, LLC (TDE), Rockford's retained investigator; Service Construction Company, Inc. (SCCI), Rockford's fire damage remover and rehabber; and Tim Erickson, TDE's employee. In an 18–count amended complaint, with respect to post-fire conduct, plaintiffs alleged negligence, spoliation, conspiracy, conversion, and res ipsa loquitur (based on spoliation). The trial court dismissed, with leave to amend, the spoliation counts as time-barred with respect to Rockford. Subsequently, as to plaintiffs' second amended complaint, it dismissed, with prejudice, the spoliation and res ipsa loquitur counts as time-barred with respect to Rockford, TDE, Erickson, and SCCI. It also dismissed the conversion and conspiracy counts for failure to state a claim. The court denied plaintiffs' motion to reconsider and, pursuant to Illinois Supreme Court Rule 304(a)
(eff. Feb. 26, 2010), found that there was no just reason to delay enforcement or appeal of the orders dismissing the spoliation counts. Plaintiffs appeal, arguing that the trial court erred in dismissing their: (1) spoliation counts (with prejudice)
as time-barred; and (2) conversion and conspiracy counts for failure to state a claim. We affirm, concluding that: (1) the spoliation counts were properly dismissed as time-barred; (2) alternatively, the spoliation counts were properly dismissed for failure to state a claim; and (3) we lack jurisdiction to review the dismissal of the remaining counts, because, even if the orders dismissing them were all final orders, they were not the subject of the trial court's Rule 304(a)
finding and, therefore, are not appealable.
¶ 3 On January 5, 2011, plaintiffs filed a two-count complaint against Tracy, seeking to recover damages for bodily injuries they sustained while escaping from an October 9, 2010, fire at a house they rented from Tracy at 460 Pennsylvania Avenue in Aurora. They alleged that the fire was caused by faulty wiring and that Tracy had notice of the electrical problems, was negligent in failing to repair the wiring, and created a fire hazard by failing to provide a safe and adequate fire exit. Tracy denied the allegations.
¶ 4 In a January 22, 2011, order, the trial court allowed plaintiffs' counsel reasonable access to inspect and photograph, but not alter, the premises. In February 2011, plaintiff Seay (presumably, because the order is drafted using the masculine pronoun) accessed the premises with “his” fire and electrical experts and directed the preservation of two electrical receptacles. On March 2, 2011, plaintiffs and Tracy entered into an agreed order to preserve the premises and any items or artifacts taken from the premises. The order remained in effect until the trial court lifted it on November 16, 2011.
¶ 5 On March 29, 2011, Tracy filed for Chapter 7 bankruptcy. A June 16, 2011, bankruptcy court order provided that Tracy's liability was limited to the proceeds of his policy with Rockford. On July 25, 2011, Tracy was discharged from bankruptcy.
¶ 7 On July 25, 2013, plaintiffs filed their 18–count first amended complaint against Tracy and the other defendants, based on alleged post-fire conduct. In counts I and II, plaintiffs realleged negligence against Tracy. In counts III through VI, they alleged negligent and intentional spoliation of evidence against Tracy, Rockford, Erickson, and SCCI, respectively. Counts VII through X alleged conversion and counts XI through XIV alleged conspiracy in the same fashion. In count XV, plaintiffs alleged res ipsa loquitur against Rockford and Tracy. Finally, in counts XVI through XVIII, they alleged respondeat superior against TDE for spoliation, conversion, and conspiracy (based on the conduct of Erickson).
¶ 8 Pursuant to section 2–619(a)(5) of the Code of Civil Procedure
(Code) ( 735 ILCS 5/2–619(a)(5) (West 2014)), Rockford moved to dismiss the spoliation and res ipsa loquitur counts (IV and XV) as time-barred, because they were not brought within two years of the fire (735 ILCS 5/13–202 (West 2014) ()). It also sought to dismiss all the counts against it under sections 2–603 and 2–615 of the Code (735 ILCS 5/2–603, 2–615 (West 2014) (form of pleadings; motions with respect to pleadings)).
¶ 9 Tracy moved to dismiss the counts against him under section 2–619
, based on his bankruptcy discharge. On January 24, 2014, the trial court granted, with prejudice, Tracy's motion to dismiss, except as to counts I and II. The court also gave plaintiffs 28 days to file a second amended complaint.
¶ 10 On January 29, 2014, the trial court granted Rockford's motion to dismiss counts IV (spoliation), VIII (conversion), XII (conspiracy), and XV (res ipsa loquitur ), for failure to set forth sufficiently comprehensible allegations, and it allowed plaintiffs leave to amend to comply with those provisions. 735 ILCS 5/2–603(b)
, 2–615 (West 2014). It also granted Rockford's section 2–619(a)(5) motion to dismiss, finding that the spoliation and res ipsa loquitur counts, as they pertained to personal injury, were subject to the two-year statute of limitations for personal injuries, rather than the five-year property-damage and catch-all statute of limitations (735 ILCS 5/13–205 (West 2014) ), and therefore were time-barred.
¶ 12 On February 27, 2014, plaintiffs filed a 78–page, second amended complaint, raising essentially the same allegations as in their first amended complaint.
¶ 13 In the complaint, plaintiffs alleged that Tracy had failed to repair or improperly repaired the faulty wiring and that, as a result, a fire occurred on October 9, 2010, at 5:15 a.m., on the first floor, spreading throughout the house and causing personal injuries to plaintiffs. They further alleged that Wofford, who fell from the second story to the ground, was severely burned and suffered lacerations, broken bones, and disfigurement and that Seay suffered from lacerations and permanent disfigurement.
¶ 14 Plaintiffs also alleged that the Aurora fire department determined that the cause of the fire was not arson and that it appeared to be an electrical fire. They further contended that defendants had a duty to preserve the fire scene and all other evidence, that this duty arose from the circumstances surrounding the fire that made it foreseeable that a lawsuit might be filed with respect to the incident, that the evidence was material to a potential civil action, and that defendants were the likely responsible parties. According to plaintiffs, defendants had authority to control the scene and investigate the fire and secure evidence; but each defendant, they alleged, gave permission and instruction to destroy the evidence at the scene. (Plaintiffs' complaint raised additional allegations, the details of which we discuss below.)
¶ 15 Tracy filed an answer to counts I and II. As to the remaining counts, Rockford, SCCI, TDE, and Erickson moved to dismiss the spoliation and res ipsa loquitur counts under section 2–615(a)(5)
and all counts under section 2–615.
¶ 16 On July 1, 2014, pursuant to section 2–619(a)(5)
, the trial court dismissed with prejudice the spoliation and res ipsa loquitur counts as time-barred under the two-year statute of limitations. Pursuant to section 2–615, it dismissed the conversion counts without prejudice and it dismissed the conspiracy counts without specifying whether it was doing so with or without prejudice.
¶ 17 On November 7, 2014, the trial court denied plaintiffs' motion to reconsider, which addressed the dismissal of only the spoliation counts. “Plaintiff[s] may not replead spoliation claims.” It also found “no just reason for delaying appeal as per” Illinois Supreme Court Rule 304(a)
(eff. Feb. 26, 2010).
¶ 19 In their notice of appeal, plaintiffs state that, pursuant to Rule 304(a)
, they appeal to this court from the trial court's orders ruling on their first amended complaint and their second amended complaint (i.e., the orders dated January 29, July 1, and November 7, 2014). They request that “the Spoliation counts be reversed, [t]hat plaintiff be permitted to prosecute her [ 1 ] spoliation claims, and that the matter be returned to the trial court for further proceedings.”
¶ 20 In their opening brief, plaintiffs argue that: (1) the limitations period for spoliation claims is five years and, thus, the section 2–619(a)(5)
dismissal with prejudice of their spoliation and res ipsa loquitur counts was error; and (2) they properly pleaded claims for conversion and conspiracy and, therefore, the section 2–615 dismissal of these claims was error.
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