Cholipski v. Bovis Lend Lease, Inc. , 16 N.E.3d 345 ( 2014 )

2014 IL App (1st) 132842
No. 1-13-2842
Fifth Division
July 25, 2014
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
RICHARD CHOLIPSKI and ) Appeal from the Circuit Court
CYNTHIA CHOLIPSKI, ) of Cook County.
)
Plaintiffs-Appellees, )
)
v. ) No. 10 L 001268
)
BOVIS LEND LEASE, INC., ) The Honorable
ALDRIDGE ELECTRIC, INC., and ) Randye A. Kogan,
VITATECH ENGINEERING, L.L.C., ) Judge, presiding.
)
Defendants-Appellants. )
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Taylor concurred in the judgment and opinion.
OPINION
¶1 On this interlocutory appeal, defendants Bovis Lend Lease, Inc. (Bovis),
Aldridge Electric, Inc. (Aldridge), and Vitatech Engineering, L.L.C. (Vitatech),
No. 1-13-2842
argue that the trial court erred in staying their contribution claim against Dr.
Kenneth Candido and his practice group.
¶2 Plaintiffs Richard Cholipski (plaintiff) and his wife, Cynthia Cholipski,
brought a negligence action against defendants for injuries which he allegedly
sustained as a result of an accident in April 2009, and her damages for loss of
consortium, when metal tubing fell on him while he was working on a
construction project. Plaintiff claims that, as a result of this accident, he suffers
pain which renders him permanently disabled.
¶3 Defendants claim that plaintiff's pain management doctor, Dr. Kenneth
Candido, committed malpractice in his diagnosis of and in his failure to treat
plaintiff, and that the doctor's malpractice is the cause of plaintiff's current pain
and incapacitation. On August 15, 2013, the trial court granted leave to
defendants to file their contribution claim but stayed the claim pending the
outcome of the trial on plaintiff's negligence claims, which was scheduled to
begin on January 13, 2014. It is this stay that defendants now appeal, pursuant
to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010).
¶4 On December 11, 2013, the appellate court granted defendant's motion to
stay the trial date of January 13, 2014, until resolution of this interlocutory
appeal.
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¶5 For the following reasons, we affirm the trial court's stay order and
vacate our order staying the negligence trial.
¶6 BACKGROUND
¶7 I. The Complaint in the Underlying Negligence Action
¶8 This case involves two complaints: (1) plaintiff's negligence complaint
against defendants; and (2) defendants' third-party complaint against plaintiff's
doctor.
¶9 Plaintiff's original complaint was filed January 28, 2010. However,
plaintiff's most recent complaint is his second amended complaint, filed
February 14, 2013, which we describe below.
¶ 10 Plaintiff's second amended complaint alleges that, on April 28, 2009,
plaintiff was employed by M & I Steel, and was working at an ongoing
construction project on the tenth floor of the Chicago Mercantile Exchange,
located at 20 South Wacker Drive in Chicago, Illinois. In connection with the
project, metal tubing was stored vertically in a vault room on the tenth floor,
and the tubing was not secured in any way other than by resting the tubing on
its ends. Plaintiff was working in the vault room when the tubing fell on his
body, causing injury.
¶ 11 Plaintiff alleged that defendant Bovis performed general contracting or
construction management functions on the project, that defendant Aldridge
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placed the tubing on its ends in the vault room, and that plaintiff's employer was
a subcontractor to defendant Vitatech, a contractor on the project. The
complaint alleged six counts: three counts by plaintiff, with one count against
each of the three defendants; and three counts by his wife, also with one count
against each of the three defendants. The counts by plaintiff alleged
construction negligence which resulted in personal injury, and the counts by his
wife alleged construction negligence which resulted in loss of consortium.
¶ 12 II. The Third-Party Complaint
¶ 13 More than three years after plaintiff filed his original complaint,
defendants moved on April 3, 2013, for leave to file their third-party complaint
for contribution from Dr. Kenneth Candido and his medical group, Advocate
Physician Partners (Advocate).
¶ 14 Defendants' one-count third-party complaint for contribution alleged that
Dr. Candido, a physician specializing in pain management and plaintiff's
treating physician, caused plaintiff to be totally and permanently disabled as a
result of his care and treatment. The complaint alleged that the doctor
misdiagnosed plaintiff with "complex regional pain syndrome" (CRPS), failed
to treat plaintiff for hypertension and for planter and peroneal neuralgias,
administered "massive doses of Decadron" despite plaintiff's hypertension, and
committed other acts of negligence. The complaint stated that, if defendants are
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found liable to plaintiff, then they are entitled to contribution from Dr. Candido
and Advocate.
¶ 15 III. Procedural History
¶ 16 On April 12, 2013, the trial court initially denied defendants leave to file
their contribution claim, without prejudice, on the ground that they could file a
separate cause of action against Dr. Candido and Advocate. On May 3, 2013,
defendants moved the trial court to reconsider its denial.
¶ 17 Plaintiff filed a response, objecting to defendants' motion for
reconsideration on the ground that adding new parties and causes of action at
this late date would delay the trial and also confuse the issues at trial. In the
alternative, if the trial granted defendants' motion, plaintiff requested that the
trial court sever the third-party medical malpractice claim from the negligence
claims and order separate trials.
¶ 18 In defendants' reply brief, defendants objected to plaintiff's request for a
severance and separate trials, arguing that severing the contribution claim
would be the same as filing the claim in a separate action, which "Illinois law
prohibits." However, defendants made no arguments based on constitutional
due process.
¶ 19 Several months later, on August 6, 2013, the trial court set a trial date of
January 13, 2014. The trial court then reconsidered its prior denial, as
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defendants had requested, and on August 15, 2013, the trial court granted
defendants leave to file their contribution claim. However, the trial court also
granted plaintiff's request for severance and separate trials by ordering a stay of
the contribution claim until after the resolution of plaintiff's negligence claims.
The trial court's written order stated that the court's "reasons [were] set forth in
the record."
¶ 20 At the hearing, the trial court explained that, in light of the January 13,
2014, trial date, the delay would be unfair to plaintiff:
"THE COURT: Counsel, this is a 2010 case. That means the case is
over three years old. It is set for trial January 13th of 2014. There is no
way that you can get discovery on a medical practice case done by
January of 2014. No way. By the time – You don't have service, there
will most likely be motions on the pleadings, discovery, motions on the
discovery *** It's not fair to the plaintiff in this case that's been
pending[.]"
¶ 21 The trial court stressed its concern about delay, stating:
"THE COURT: So another three years they should wait because
you've added a malpractice third-party? Absolutely not. And that's in
my discretion and all the cases say it's the trial court['s discretion]; and if
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the trial court wants to sever, it can sever. If the trial court wants to stay,
it can stay."
¶ 22 The trial court then held that the contribution claim was "reinstatable at
the conclusion of the trial on the merits of the case in chief," and it summed up
its decision as follows:
"THE COURT: Your motion is granted. Vacate my order, granted
leave to file the third-party complaint, summons to issue, and it's stayed.
DEFENSE COUNSEL: Okay.
PLAINTIFF'S COUNSEL: Okay."
¶ 23 Neither attorney offered any objection to the trial court's decision and, as
quoted above, both attorneys stated "okay" after the trial court stated it.
¶ 24 On September 13, 2013, defendants appealed to this court the portion of
the trial court's August 15, 2013, order, which stayed their contribution claim.
The appeal was filed pursuant to Supreme Court Rule 307(a)(1), which permits
interlocutory appeals from orders granting an injunction. Ill. S. Ct. R. 307(a)(1)
(eff. Feb. 26, 2010). On October 22, 2013, defendants moved the trial court to
continue or stay the January 13, 2014, trial date pending the resolution of their
interlocutory appeal before this court. After the trial court denied their motion
on October 29, 2013, defendants appealed the trial court's denial to stay the trial
date. On November 11, 2013, defendants filed an emergency motion in the
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appellate court to stay the trial court date, which the appellate court granted on
December 11, 2013.
¶ 25 On December 12, 2013, plaintiffs moved the appellate court to dismiss
defendants' appeal of the trial court's order refusing to stay the trial date.
Defendants then moved the appellate court to consolidate the two interlocutory
appeals, which the appellate court granted on December 30, 2013. On February
6, 2014, the appellate court dismissed the interlocutory appeal of the trial court's
order refusing to stay the trial dated but the interlocutory appeal of the trial
court's stay of the contribution claim remained pending.
¶ 26 ANALYSIS
¶ 27 In this interlocutory appeal, defendants claim that the trial court abused
its discretion by ordering a stay of their contribution claim pending the outcome
of plaintiff's negligence claims. For the following reasons, we affirm.
¶ 28 I. Jurisdiction
¶ 29 The first issue we must address is jurisdiction. Plaintiff argues that we
lack subject matter jurisdiction to hear this interlocutory appeal from the trial
court's stay order.
¶ 30 Defendants argue that we have jurisdiction pursuant to Illinois Supreme
Court Rule 307(a)(1), which provides:
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"An appeal may be taken to the Appellate Court from an interlocutory
order of court: (1) granting, modifying, refusing, dissolving, or refusing
to dissolve or modify an injunction." Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26,
2010).
¶ 31 Although Rule 307(a)(1) does not use the word "stay," our supreme court
has previously held that Rule 307 provides jurisdiction to review stays of
arbitration and administrative orders. For example, in Salsitz v. Kreiss, 198 Ill.
2d 1, 11 (2001), our supreme court held: "An order of the circuit court to
compel or stay arbitration is injunctive in nature and subject to interlocutory
appeal under paragraph (a)(1) of [Rule 307]." See also Notaro v. Nor-Evan
Corp., 98 Ill. 2d 268, 271 (1983) ("We hold that the order denying defendant's
motion to compel arbitration was an appealable order."). Similarly, in Marsh
v. Illinois Racing Board, 179 Ill. 2d 488, 489 (1998), our supreme court held
that "the issuance of a stay of an administrative order pending judicial review
constitutes an injunction for purposes of an appeal under Supreme Court Rule
307(a)(1)."
¶ 32 These holdings are not surprising considering that years before, our
supreme court had cited with approval an appellate court opinion which had
held that jurisdiction was appropriate under Rule 307 to review "an order
staying proceedings in a case pending the rendition of judgment in a related
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case." Bohn Aluminum & Brass Co. v. Barker, 55 Ill. 2d 177, 180-81 (1973)
(citing with approval Valente v. Maida, 24 Ill. App. 2d 144, 149 (1960)). In
Bohn, our supreme court also quoted with approval another appellate court
opinion holding: " 'Even if defendant had not used the open-sesame word
"enjoin" to invoke this rule (ie. Rule 307), the words "stay" and "restrain" mean
about the same and had a "stay" alone been allowed its effect would have been
to "enjoin" further proceedings.' " Bohn, 55 Ill. 2d at 181 (quoting Wiseman v.
Law Research Service, Inc., 133 Ill. App. 2d 790, 791 (1971)).
¶ 33 Relying on this supreme court precedent, the appellate court has
repeatedly held that Rule 307 permits the interlocutory appeal of a stay of court
proceedings because " '[a] stay is considered injunctive in nature, and thus an
order granting or denying a stay fits squarely within Rule 307(a).' " Aventine
Renewable Energy, Inc. v. JP Morgan Securities, Inc., 406 Ill. App. 3d 757,
759-60 (2010) (the appellate court had jurisdiction pursuant to Rule 307 to
review the trial court's grant of a stay of court proceedings) (quoting Rogers v.
Tyson Foods, Inc., 385 Ill. App. 3d 287, 288 (2008)). See also Hastings Mutual
Insurance Co. v. Ultimate Backyard, L.L.C., 2012 IL App (1st) 101751, ¶ 28
("this court has jurisdiction to hear the appeal of the lower court's order denying
the motion to stay" workers' compensation proceedings); Khan v. BDO
Seidman, L.L.P., 2012 IL App (4th) 120359, ¶ 47 ("An order granting a stay of
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proceedings is a preliminary injunction, appealable under Rule 307(a)," and
thus, the appellate court had jurisdiction to review the trial court's stay of trial
court proceedings pending the outcome of a supreme court case); Lundy v.
Farmers Group, Inc., 322 Ill. App. 3d 214, 216 (2001) ("Courts have treated the
denial of a motion to stay as a denial of a request for a preliminary injunction"
and thus the appellate court had jurisdiction pursuant to Rule 307 to review the
trial court's stay of plaintiff's cause of action); Beard v. Mount Carroll Mutual
Fire Insurance Co., 203 Ill. App. 3d 724, 727 (1990) ("The denial of a stay by a
trial court is treated as a denial of a request for a preliminary injunction, which
is appealable under Rule 307(a)(1)," and thus the appellate court had
jurisdiction to review the trial court's refusal to stay court proceedings in favor
of arbitration).
¶ 34 Despite these numerous appellate cases stretching back decades, plaintiff
cites in response two 20-year-old cases which it claims "suggest" a different
holding: In re Minor, 127 Ill. 2d 247 (1989); and In re Asbestos Cases, 224 Ill.
App. 3d 292 (1991). As plaintiff forthrightly acknowledges, neither case holds
that a stay is not appealable pursuant to Rule 307. In re Minor concerned an
injunction against newspaper publication, and In re Asbestos concerned a
registry of asbestos claims. In re Minor, 127 Ill. 2d at 263 (the interlocutory
restraint against the publication of information in a newspaper was appealable
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as an injunctive order under Rule 307(a)(1)); In re Asbestos, 224 Ill. App. 3d at
297 (the trial court's order establishing a registry for asbestos claims was not
appealable as an injunction pursuant to Rule 307(a)(1)). In addition, plaintiff
argues that we should reconsider our numerous prior holdings because
otherwise "the sluicegates will be difficult to close." We do not find this a
sufficient reason to ignore our well-established precedent.
¶ 35 Thus, we conclude that we have subject matter jurisdiction to hear this
interlocutory appeal pursuant to Supreme Court Rule 307.
¶ 36 Plaintiff also claims, without any citation to authority or legal argument,
that the proper parties are not before this court because defendants failed to
include the doctor and his group as part of this appeal. However, "[t]his court
has repeatedly held that a party waives a point by failing to argue it." Lozman
v. Putnam, 379 Ill. App. 3d 807, 824 (2008). See also People v. Ward, 215 Ill.
2d 317, 332 (2005) ("point raised in a brief but not supported by citation to
relevant authority *** is therefore forefeited"); In re Marriage of Bates, 212 Ill.
2d 489, 517 (2004) ("A reviewing court is entitled to have issues clearly defined
with relevant authority cited."); Rosier v. Cascade Mountains, Inc., 367 Ill.
App. 3d 559, 568 (2006) (by failing to offer supporting legal authority or any
reasoned argument, plaintiffs waived consideration of their theory for asserting
personal jurisdiction over defendants); Ferguson v. Bill Berger Associates, Inc.,
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302 Ill. App. 3d 61, 78 (1998) ("it is not necessary to decide this question since
the defendant has waived the issue" by failing to offer case citation or other
support as Supreme Court Rule 341 requires); Ill. S. Ct. R. 341(h)(7) (eff. Feb.
6, 2013) (argument in appellate brief must be supported by citation to legal
authority and factual record). Thus, we do not consider this argument.
¶ 37 II. No Abuse of Discretion
¶ 38 Now that we have concluded that we have subject matter jurisdiction to
hear this claim, we will consider defendants' substantive claim that the trial
court abused its discretion by issuing a stay of defendants' contribution claim.
¶ 39 Both plaintiff and defendants agree, and they are correct, that a trial
court's decision to issue or deny a stay will not be overturned on appeal unless
the trial court abused its discretion in making the decision. Khan, 2012 IL App
(4th) 120359, ¶ 58; Hastings, 2012 IL App (1st) 101751, ¶ 29; Aventine, 406
Ill. App. 3d at 760 (citing May v. SmithKline Becham Clinical Laboratories,
Inc., 304 Ill. App. 3d 242, 246 (1999)). "[O]ur standard of review – abuse of
discretion – is the most deferential standard of review recognized by law."
Khan, 2012 IL App (4th) 120359, ¶ 82. An abuse of discretion does not occur
when a reviewing court merely disagrees with the trial court, but only when the
trial court acted arbitrarily, exceeded the bounds of reason, or ignored or
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misapprehended the law. Hastings, 2012 IL App (1st) 101751, ¶ 29; Aventine,
406 Ill. App. 3d at 760.
¶ 40 With respect to a stay, a trial court does not act " 'outside its discretion' "
by staying a proceeding in favor of another proceeding "that could dispose of
significant issues." Khan, 2012 IL App (4th) 120359, ¶ 62. A stay is generally
considered "a sound exercise of discretion" if the other proceeding "has the
potential of being completely dispositive." Khan, 2012 IL App (4th) 120359,
¶ 62.
¶ 41 In the case at bar, defendants' alleged negligence in the workplace is a
significant and wholly separate issue from the doctor's alleged medical
malpractice. Even if the doctor committed medical malpractice, this malpractice
is unlikely to be dispositive of the entire case, since the doctor would not have
treated plaintiff in the first place but for the accident which caused plaintiff's
original injury. By contrast, the resolution of plaintiff's negligence claims has
the potential of being completely dispositive of the entire case because, if
defendants are not found to have been negligent then there is no need to address
their contribution claim against plaintiff's treating physician. Thus, we cannot
find that the trial court acted arbitrarily by issuing a stay of defendants'
contribution claim.
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¶ 42 If we reverse the trial court here and set a precedent that the court abused
its discretion by issuing a stay, then in every tort case with an injured plaintiff
who is hoping for a speedy resolution, the defendant can wait three years and
then bring a contribution claim against the treating physician, thereby delaying
the case in a way that brings pressure on the injured plaintiff to settle. As the
trial court so succinctly put it in the case at bar, "[s]o another three years they
should wait because you've added a malpractice third-party?"
¶ 43 For just this reason, this court has previously held that a trial court did
not abuse its discretion by severing a third-party medical malpractice claim
from the underlying negligence case for purposes of trial. Ryan v. E.A.I.
Construction Corp., 158 Ill. App. 3d 449, 465-66 (1987) (no abuse of discretion
considering the different "witnesses, parties and claims"). In Ryan, as in our
case, the plaintiff was a construction worker who was injured on the job. Ryan,
158 Ill. App. 3d at 453. In Ryan, as in our case, the plaintiff brought negligence
claims against the construction companies. Ryan, 158 Ill. App. 3d at 454. In
Ryan, as in our case, one of the defendants brought a third-party claim against
the plaintiff's treating physician. Ryan, 158 Ill. App. 3d at 453-54. In Ryan, as
in our case, the trial court severed the medical malpractice claim from the
negligence claims for purposes of trial. Ryan, 158 Ill. App. 3d at 454. In Ryan,
as in our case, the defendant claimed on appeal that the trial court abused its
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discretion by denying it a joint trial and this court held, as we do now, that it
could not find an abuse of discretion. Ryan, 158 Ill. App. 3d at 465-66.
¶ 44 In the case at bar, the trial court could have denied completely
defendants' motion for leave to file a third-party complaint. Winter v. Henry
Service Co., 143 Ill. 2d 289, 293 (1991) ("The question of allowing a third-
party complaint for contribution is clearly addressed to the sound discretion of
the trial court."). Instead of doing this, the trial court chose a middle path,
permitting defendants leave to file their third-party complaint but staying their
medical malpractice claim in order to allow plaintiff to have a timely resolution
of his negligence claims. We can find no abuse of discretion in the trial court's
choice of a middle path.
¶ 45 III. The Laue Decision
¶ 46 In addition, defendants claim that the trial court abused its discretion
because the stay violates the principles underlying section 5 of the Joint
Tortfeasor Contribution Act (740 ILCS 100/5 (West 2012)), as articulated by
our supreme court in Laue v. Leifheit, 105 Ill. 2d 191 (1984).
¶ 47 Before discussing section 5, we must first determine which version of
section 5 applies to the case before us. In 1995, the legislature amended section
5 so that it read:
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"Enforcement. Other than in actions for healing art malpractice, a cause
of action for contribution among joint tortfeasors is not required to be
asserted during the pendency of litigation brought by a claimant and may
be asserted by a separate action before or after payment of a settlement or
judgment in favor of the claimant, and may be asserted by counterclaim
or by third-party complaint in a pending action." 740 ILCS 100/5 (West
1996); Pub. Act 89-7 (eff. Mar. 9, 1995).
¶ 48 However, Public Act 89-7, which amended section 5, was then held
unconstitutional in its entirety by the Illinois Supreme Court in Best v. Taylor
Machine Works, 179 Ill. 2d 367 (1997). After Best, our supreme court
explained that: "As a result [of Best], the amended version of section 5 was
rendered void ab initio, and the version of the statute in existence prior to the
amendment remained in effect." Harshman v. DePhillips, 218 Ill. 2d 482, 489
n.1 (2006). The supreme court observed that "[a]s yet, the legislature has not
reenacted the amended version of section 5." Harshman, 218 Ill. 2d at 489 n.1.
Since the legislature has still not reenacted the amended version, the prior
version is still in effect.
¶ 49 Prior to Public Act 89-7, section 5 provided:
"Enforcement. A cause of action for contribution among joint tortfeasors
may be asserted by a separate action before or after payment, by
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counterclaim or by third-party complaint in a pending action." 740 IlCS
100/5 (West 1992).
¶ 50 In Laue, our supreme court interpreted this version of section 5. Laue,
105 Ill. 2d at 196. Since this version of section 5 is still in effect, the Laue
opinion also governs our case. The Laue court held:
"the language in section 5 providing that a contribution claim may be
asserted by a 'separate action before or after payment' covers situations
where no suit is pending which was initiated by the injured party;
however, when there is a pending action, the contribution claim should
be asserted 'by counterclaim or by third-party claim' in that action."
(Emphasis in original.) Laue, 105 Ill. 2d at 196.
As required by the holding in Laue quoted above, defendants did file their
contribution claim as a third-party claim in the pending action.
¶ 51 Neither section 5 nor the opinion in Laue say anything about a stay.
However, defendants argue that the stay issued by the trial court violated the
"principles" or dicta in Laue.
¶ 52 Specifically, defendants quote the portion of Laue in which the supreme
court stated the reasons for requiring a contribution claim to be filed in a
pending action if an action was pending:
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"One jury should decide both the liability to the plaintiff and the
percentages of liability among the defendants, so as to avoid a
multiplicity of lawsuits in an already crowded court system and the
possibility of inconsistent verdicts." Laue, 105 Ill. 2d at 197.
Our supreme court subsequently explained the above quote from Laue, stating:
"While a strong policy preference for a joint trial is implicit in [Laue], and we
now reiterate that policy, [Laue] requires only that claims for contribution be
asserted in the pending action, not that there must inevitably be a joint trial in
every case." Cook v. General Electric Co., 146 Ill. 2d 548, 556 (1992). Thus,
defendants' reference to "the Laue rule" is misleading. There is no hard and fast
rule about joint trials but rather a policy preference for a joint trial which is still
left up to the trial court's discretion to weigh among other factors. Cook, 146
Ill. 2d at 560 (applying an abuse of discretion standard of review). There is a
Laue "rule," but it is that, if an action by an injured party is pending, any
contribution claim must be made in that pending action, which was done in the
case at bar. Henry v. St. John's Hospital, 138 Ill. 2d 533, 546 (1990)
(discussing the Laue "rule").
¶ 53 Defendants assert, without any citation to authority, that the potential for
years of delay before any possibility of recovery by an injured plaintiff is not
enough of a factor to justify a stay and the lack of a joint trial. As noted above,
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points not supported by citation to relevant authority are waived. Ward, 215 Ill.
2d at 332 ("point raised in a brief but not supported by citation to relevant
authority *** is therefore forefeited"); In re Marriage of Bates, 212 Ill. 2d at
517 ("A reviewing court is entitled to have issues clearly defined with relevant
authority cited."); Rosier, 367 Ill. App. 3d at 568 (by failing to offer supporting
legal authority or any reasoned argument, plaintiffs waived consideration of
their theory for asserting personal jurisdiction over defendants); Ferguson, 302
Ill. App. 3d at 78 ("it is not necessary to decide this question since the
defendant has waived the issue" by failing to offer case citation or other support
as Supreme Court Rule 341 requires); Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)
(argument in appellate brief must be supported by citation to legal authority and
factual record).
¶ 54 In addition, the facts in the case at bar are readily distinguishable from
the facts in Laue. In Laue, Nancy Leifheit and four members of her family sued
John Laue for negligence. Laue, the defendant in the original action, was
driving a truck which collided with a vehicle driven by Leifheit, in which four
members of Leifheit's family were passengers. In the original action, the jury
returned verdicts against Laue but Leifheit's award of damages was reduced by
one-third which was the jury's assessment of her comparative negligence in
causing her own injuries. After the verdict and judgment in the original action,
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Laue filed a complaint against Leifheit for one-third of all the damages that he
had paid to her family. Laue, 105 Ill. 2d at 193-94. Thus, in Laue, the subject
of the original action and the subject of the contribution action were almost
exactly the same, namely, the collision. By contrast, in the case at bar, the
subject of plaintiff's negligence action is primarily defendants' alleged
negligence in the workplace, while the subject of defendants' contribution
action is primarily the doctor's alleged malpractice. Thus, Laue is readily
distinguishable from the case at bar.
¶ 55 For these reasons, we do not find defendants' argument persuasive and
conclude that the trial court did not abuse its discretion by issuing a stay.
¶ 56 IV. Due Process
¶ 57 Defendants next claim that the trial court's order of a stay denied them
due process, because a separate trial of their claim will hinder their ability to
develop fully their defense in the negligence trial and to defend themselves at
that trial. In response, plaintiffs make one argument: that defendants waived this
constitutional issue by failing to raise it below. We agree.
¶ 58 Issues " 'not raised in the trial court are waived and may not be raised for
the first time on appeal.' " Jackson v. Hunter, 397 Ill. App. 3d 614, 617 (2010)
(quoting Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541, 550 (1990));
IPF Recovery Co. v. Illinois Insurance Guaranty Fund, 356 Ill. App. 3d 658,
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659, 666 (2005) (" '[I]t has long been held that arguments not raised in the trial
court are considered waived on appeal.' " (quoting Illinois Tool Works, Inc. v.
Independent Machine Corp., 345 Ill. App. 3d 645, 652 (2003)). This rule
applies to interlocutory appeals (IPF Recovery Co., 356 Ill. App. 3d at 659, 666
(in an interlocutory appeal, the supreme court held that the plaintiff had waived
an issue "for purposes of this appeal" by failing to raise it before the trial
court)); to constitutional arguments (Connor v. City of Chicago, 354 Ill. App.
3d 381, 386 (2004) (since "[t]he waiver rule applies even to constitutional
issues," plaintiff waived review of his due process argument by failing to raise
it below before an administrative agency)); and to civil cases (Werner v. Botti,
Marinaccio & DeSalvo, 205 Ill. App. 3d 673, 677 (1990) (since "[t]he general
rule in civil cases is that constitutional arguments which are not raised by
objection at trial are considered waived for purposes of appeal," defendants
waived their due process arguments by failing to raise them in the trial court
(citing In re Liquidation of Reserve Insurance Co., 122 Ill. 2d 555, 567-68
(1988)))).
¶ 59 In their reply brief, defendants do not claim that they raised any
constitutional objections in the trial court. Instead, they argue that they "did not
have a realistic opportunity to raise" this issue in the court below. This is
factually incorrect.
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¶ 60 When defendants moved the trial court to reconsider its denial of leave
to file a third-party complaint, plaintiff responded by objecting to the motion on
the grounds of delay and also by requesting in the alternative that, if the trial
granted defendants' motion, then the trial court should sever the third-party
medical malpractice claim from the negligence claims and order separate trials.
¶ 61 In defendants' reply brief, defendants objected to plaintiff's request for a
severance and separate trials, arguing that severing the contribution claim
would be the same as filing the claim in a separate action, which "Illinois law
prohibits." However, defendants offered no arguments based on constitutional
due process.
¶ 62 On August 15, 2013, the trial court reconsidered its prior denial, as
defendants had requested, and granted defendants leave to file their contribution
claim. The trial court also acknowledged plaintiff's concerns about delay and
granted plaintiff's request for severance and separate trials by staying the
contribution claim until the resolution of the negligence claim. When the trial
court announced its decision in open court, defendants offered no objections –
constitutional or otherwise – and merely stated "Okay." Thus, contrary to their
argument on appeal, defendants had a realistic opportunity in both their reply
brief and at the hearing to raise a constitutional due process argument
concerning delay and separate trials, and they failed to do so.
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No. 1-13-2842
¶ 63 In addition, under the doctrine of invited error, a party " 'may not
request to proceed in one manner and then later contend on appeal that the
course of action was in error.' " People v. Harvey, 211 Ill. 2d 368, 385 (2004)
(quoting People v. Carter, 208 Ill. 2d 309, 319 (2003)). When a party
acquiesces to a trial court's ruling, even if it is improper, the party cannot
contest the ruling on appeal. Crittenden v. Cook County Comm'n on Human
Rights, 2012 IL App (1st) ¶ 61, aff'd, 2013 IL 114876. In the case at bar,
defendants requested leave to file a third-party complaint and, when the trial
court granted their request and issued a stay as part of that grant, defendants
acquiesced to the trial court's order by stating "Okay" and by failing to raise any
objections to it, including any constitutional due process objections. Thus,
defendants have waived their due process arguments for the purposes of this
appeal.
¶ 64 CONCLUSION
¶ 65 For the foregoing reasons, the trial court did not err in staying defendants'
contribution claim against plaintiff's treating physician and medical practice
group. The trial court's order was neither an abuse of discretion nor a violation
of the Laue rule. In addition, defendants waived any constitutional due process
arguments by failing to raise them in the court below.
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No. 1-13-2842
¶ 66 Since we are affirming the stay of the contribution claim and remanding
the case for further proceedings, we also vacate our prior order, dated
December 11, 2013, in which we stayed the negligence trial until the resolution
of this interlocutory appeal.
¶ 67 Affirmed and remanded.
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