Messmore v. Silvis Operations, LLC , 110 N.E.3d 216 ( 2018 )

2018 IL App (3d) 170708
Opinion filed April 26, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
MERTON MESSMORE, as Personal ) Appeal from the Circuit Court
Representative of the Estate of Mary ) of the 14th Judicial Circuit,
Messmore, Deceased, ) Rock Island County, Illinois.
)
Plaintiff-Appellee, )
)
v. ) Appeal No. 3-17-0708
) Circuit No. 15-L-150
SILVIS OPERATIONS, LLC, a Foreign )
Limited Liability Company, d/b/a )
Lighthouse at Silvis, d/b/a )
Lighthouse of Silvis, Illinois, and )
CYNTHIA McCOY, Individually, )
) Honorable Kathleen Mesich,
Defendants-Appellants. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.
OPINION
¶1 As personal representative of his wife’s estate, plaintiff, Merton Messmore, brought
survival claims against defendants, Silvis Operations, LLC (Silvis), and Cynthia McCoy. Silvis
owns and operates Lighthouse of Silvis, Illinois (Lighthouse), an assisted living facility where
McCoy works as a nurse. In a previous appeal, a panel of this court recognized Silvis’s
contractual right to compel arbitration of plaintiff’s survival claims. Messmore v. Silvis
Operations, LLC, 2017 IL App (3d) 160740-U.
¶2 Plaintiff later filed an amended complaint that added a wrongful death claim against
Silvis. The trial court denied Silvis’s motion to stay the wrongful death proceedings pending
arbitration of plaintiff’s survival claims. Silvis now appeals pursuant to Illinois Supreme Court
Rule 307(a)(1) (eff. Nov. 1, 2016). We reverse the trial court’s judgment in part and remand for
further proceedings consistent with this opinion.
¶3 BACKGROUND
¶4 Plaintiff filed his initial complaint on November 30, 2015. The complaint alleged that the
decedent, Mary Messmore, moved into Lighthouse on November 5, 2014. Lighthouse employees
noted that Mary suffered from “left-sided paralysis due to a recent stroke, degenerative joint
disease, atrial fibrillation, hypertension, and was a fall risk.” Mary sustained two falls during her
residency. After Mary’s second fall on December 1 or 2, 2014, Lighthouse employees found her
with a “goose egg sized” hematoma on the left side of her forehead, facial bruising, and an
abrasion on her left knee.
¶5 Lighthouse admitted Mary to Trinity Hospital on December 3. Doctors diagnosed her
with a subdural hematoma and facial bruising. Trinity discharged her back to Lighthouse on
December 5. Lighthouse discharged Mary on December 13. She died on January 8, 2015.
¶6 Both counts in the complaint alleged survival claims under the Probate Act of 1975
(Probate Act) (755 ILCS 5/27-6 (West 2014)). Plaintiff claimed that defendants provided
negligent care and negligently supervised Mary. Their negligence “directly and proximately
caused” Mary’s injuries “and resulted in Mary experiencing injuries, pain, and suffering.”
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¶7 In May 2016, defendants moved to dismiss plaintiff’s complaint. Defendants’ motion
sought to compel mandatory mediation and, if necessary, arbitration of plaintiff’s survival claims
pursuant to Lighthouse’s resident agreement. On August 1, the trial court granted defendants’
motion; the court denied plaintiff’s motion to reconsider on November 2.
¶8 On November 14, plaintiff filed an amended complaint that added a wrongful death claim
against Silvis. The amended complaint explicitly alleged “facts common to all counts” to support
all three causes of action. The “facts common to all counts” substantially restated the facts
alleged in plaintiff’s initial complaint. The wrongful death claim adopted the survival claims’
negligence allegations but alleged defendants’ negligence proximately caused Mary’s death
(rather than her injuries) and caused her “lineal next of kin” (rather than Mary) to suffer “a loss
of companionship and society, grief, sorrow, and mental suffering.”
¶9 On December 2, plaintiff filed an interlocutory appeal that challenged the trial court’s
order dismissing the survival claims and compelling arbitration. A panel of this court, with one
judge dissenting, affirmed the order. Messmore v. Silvis Operations, LLC, 2017 IL App (3d)
160740-U. Plaintiff filed a petition for leave to appeal to the supreme court.
¶ 10 While plaintiff’s petition remained pending, he pursued discovery in the wrongful death
case. Plaintiff’s counsel served Silvis with notice of plaintiff’s videotaped evidence deposition.
When counsel sent the notice, the parties had not scheduled the arbitration date. Plaintiff is over
90 years old; counsel sought to secure plaintiff’s testimony in case he became ill or died before
the case concluded. Silvis ignored plaintiff’s discovery requests and objected to taking his
evidence deposition before the arbitration. On September 15, 2017, defendants filed a motion to
stay the wrongful death proceedings pending resolution of the survival claims’ arbitration. The
court denied defendants’ motion: “The Court does recognize all three claims are identical as laid
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out *** in the complaint. However, [the wrongful death claim] is not subject to arbitration.
Therefore, Defendants’ motion to stay that sole remaining claim will hereby be denied at this
time.” This appeal followed.
¶ 11 ANALYSIS
¶ 12 I. Standard of Review
¶ 13 The parties dispute the standard of review. Normally, we review a trial court’s ruling on a
motion to stay for an abuse of discretion. Aventine Renewable Energy, Inc. v. JP Morgan
Securities, Inc., 406 Ill. App. 3d 757, 760 (2010). Silvis argues that the standard of review is
de novo in cases where the parties do not dispute the facts and the trial court makes no findings
in ruling on a motion to stay. A recent appellate court decision (Hayes v. Victory Centre of
Melrose Park SLF, Inc., 2017 IL App (1st) 162207, ¶ 11) supports Silvis’s position.
¶ 14 We agree with defendants that our standard of review is de novo in this case but for a
different reason. We decline to hold that we review stay rulings de novo in each case where the
parties agree on the relevant facts and the trial court makes no findings. If the law does not
compel a certain standard or outcome in the trial court, then no question of law exists on appeal.
¶ 15 This case presents a unique situation where plaintiff’s survival claims are subject to
arbitration, his wrongful death claim is not, and he bases all three claims on the same factual
allegations. The parties dispute whether section 2(d) of the Uniform Arbitration Act (710 ILCS
5/2(d) (West 2016)) required the court to stay the wrongful death case proceedings as a matter of
law. We must interpret section 2(d) to decide this case. Statutory construction presents a question
of law subject to de novo review. Bueker v. Madison County, 2016 IL 120024, ¶ 13. Our standard
of review is de novo in this case.
¶ 16 II. Construction of Section 2(d)
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¶ 17 The parties disagree as to whether section 2(d) of the Uniform Arbitration Act (710 ILCS
5/2(d) (West 2016)) applies in this case. Section 2(d) states:
“(d) Any action or proceeding involving an issue subject to
arbitration shall be stayed if an order for arbitration or an
application therefor has been made under this Section or, if the
issue is severable, the stay may be with respect thereto only. When
the application is made in such action or proceeding, the order for
arbitration shall include such stay.” Id.
¶ 18 Plaintiff argues that section 2(d) does not apply because no claims subject to arbitration
remained pending in the trial court when defendants filed their September 2017 motion to stay.
The trial court previously dismissed plaintiff’s survival claims in its order to compel arbitration.
The parties agree that plaintiff’s wrongful death claim is not subject to arbitration. The trial court
expressly relied on the wrongful death claim’s arbitrability (or lack thereof) in denying the stay.
¶ 19 Silvis argues that section 2(d) applies; it required the trial court to stay all proceedings in
the wrongful death case. Alternatively, Silvis claims that “policies favoring arbitration” and “the
goals of judicial economy” favor staying the wrongful death case.
¶ 20 To ascertain and effectuate the legislature’s intent in enacting section 2(d), we must
consider the plain and ordinary meaning of its language. Bueker, 2016 IL 120024, ¶ 13. Section
2(d)’s language specifically addresses issues subject to arbitration, not claims. “An action
involving an issue subject to arbitration shall be stayed with respect to that issue if arbitration has
been ordered.” Contract Development Corp. v. Beck, 210 Ill. App. 3d 677, 679 (1991). The
statute plainly states that trial courts must stay issues subject to arbitration and may stay
severable issues. Casablanca Trax, Inc. v. Trax Records, Inc., 383 Ill. App. 3d 183, 189 (2008).
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¶ 21 We hold that section 2(d) unambiguously requires the trial court to stay all issues subject
to the survival claims’ arbitration. Otherwise, plaintiff could circumvent the contractual
arbitration agreement. The remaining question is whether plaintiff’s wrongful death case
includes issues subject to the survival claims’ arbitration.
¶ 22 III. Application of Section 2(d)
¶ 23 Under section 2(d), the trial court may, in its discretion, “stay the entire proceeding
pending arbitration, or, if the [arbitrable] issue is severable, the stay may be granted with respect
to that issue only.” Board of Managers of the Courtyards at the Woodlands Condominium Ass’n
v. IKO Chicago, Inc., 183 Ill. 2d 66, 74-75 (1998). As a corollary, the trial court must stay issues
that are not severable from those pending arbitration. Here, each cause of action relies on the
same factual allegations. However, wrongful death and survival actions require plaintiffs to
prove different elements.
¶ 24 Section 27-6 of the Probate Act (Survival Act) allows decedents’ representatives to
maintain statutory or common law actions that accrue before the decedent’s death. See 755 ILCS
5/27-6 (West 2014); Advincula v. United Blood Services, 176 Ill. 2d 1, 42 (1996). Plaintiff’s
survival claims maintain Mary’s pre-death negligence claims. Plaintiff must prove the traditional
negligence elements—that defendants breached their duty of care and that their negligence
proximately caused Mary’s injuries during her life. The available damages compensate Mary’s
injuries (i.e., medical bills and conscious pain and suffering). See Murphy v. Martin Oil Co., 56
Ill. 2d 423, 431 (1974); Ellig v. Delnor Community Hospital, 237 Ill. App. 3d 396, 401 (1992).
¶ 25 Wrongful death claims accrue when the decedent’s death is “caused by wrongful act,
neglect or default” that subjects the acting party to liability. 740 ILCS 180/1 (West 2014).
Although wrongful death claims incorporate negligence law (see Williams v. Manchester, 228
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Ill. 2d 404, 421-22 (2008); Welch v. Davis, 410 Ill. 130, 132 (1951)), they differ from survival
claims in two ways: (1) the proximate cause element addresses the cause of the decedent’s death,
rather than the decedent’s pre-death injuries (Chambers v. Rush-Presbyterian-St. Luke’s Medical
Center, 155 Ill. App. 3d 458, 464-65 (1987)) and (2) the available damages compensate the
surviving spouse and next of kin’s pecuniary losses sustained due to the decedent’s death (740
ILCS 180/2 (West 2014); Glenn v. Johnson, 198 Ill. 2d 575, 583 (2002)).
¶ 26 Plaintiff’s amended complaint alleges that the same negligent conduct caused Mary’s
injuries and her death. To prevail on any of his claims, plaintiff must prove that defendants’
conduct breached their duty of care to Mary. This issue is not severable. Section 2(d) of the
Uniform Arbitration Act (710 ILCS 5/2(d) (West 2016)) therefore requires the trial court to stay
any proceedings regarding defendants’ negligence in plaintiff’s wrongful death case, pending the
result of the survival claims’ arbitration. This requirement also means that plaintiff’s wrongful
death case may not proceed to trial before the survival claims’ arbitration concludes; neither the
court nor the jury can decide the case without considering the negligence element.
¶ 27 Although the trial court must stay proceedings regarding defendants’ negligence in
plaintiff’s wrongful death case, proximate cause and damages issues are severable from the
issues pending arbitration. The trial court may exercise its sound discretion in determining
whether to stay these severable issues. See IKO Chicago, Inc., 183 Ill. 2d at 74-75. We do not
find that the trial court abused its discretion by declining to stay these issues. Due to plaintiff’s
advanced age, staying all proceedings in the wrongful death case could unjustly prevent him
from testifying or offering evidence regarding his damages. On remand, the court may allow
discovery (including plaintiff’s deposition) on the severable proximate cause and damages issues
in the wrongful death case.
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¶ 28 CONCLUSION
¶ 29 Based on the foregoing, we reverse the judgment of the Rock Island County circuit court
in part, affirm it in part, and remand for further proceedings consistent with this opinion.
¶ 30 Affirmed in part and reversed in part; cause remanded.
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