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Grundhoefer v. Sorin

Court of Appeals of Illinois, First District, First Division

October 27, 2014

DAVA GRUNDHOEFER, Plaintiff-Appellant,
v.
JOHN SORIN, BETTE SORIN and JAMES J. ROCHE, Individually, and JAMES J. ROCHE ASSOCIATES, Defendants-Appellees

Page 776

[Copyrighted Material Omitted]

Page 777

Appeal from the Circuit Court of Cook County. No. 11 L 000736. Honorable Randye A. Kogan, Judge Presiding.

SYLLABUS

The appellate court reversed the dismissal of plaintiff's malicious prosecution complaint based on the wrongful death action filed against her by the parents of her husband following her husband's death in a fall while climbing on the outside of their house, since the parents lacked probable cause to bring the malicious prosecution action, notwithstanding their allegations that plaintiff, a licensed physician, proximately caused her husband's death by negligently prescribing Ambien for him, even though a side effect of the drug is sleepwalking and she knew he had a propensity for sleepwalking, since plaintiff alleged that the wrongful death action, which was dismissed after the conclusion of the deceased husband's contentious probate proceedings, was filed to gain leverage in those proceedings and the claim that the wrongful death action was filed for improper reasons should have been left to be decided by the jury rather than being resolved on a motion to dismiss, and, with respect to the defamation claim, plaintiff sufficiently pled the absence of probable cause, and pursuant to section 2-109 of the Code of Civil Procedure, she was not required to plead a special injury where defendants' wrongful death action was based on medical malpractice, but plaintiff's pleadings did not allege sufficient facts to state a cause of action for defamation per se.

Novoselsky Law Offices, of Chicago (David A. Novoselsky and Ryan A. Navarra, of counsel), for appellant.

Ruberry, Stalmack & Garvey, LLC, of Chicago (Edward F. Ruberry and David S. Allen, of counsel), for appellees James J. Roche and James J. Roche & Associates.

Meckler Bulger Tilson Marick & Pearson LLP, of Chicago (Richard A. Devine and Seth E. Darmstadter, of counsel), for appellees John Sorin and Bette Sorin.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.

OPINION

HARRIS, JUSTICE.

Page 778

[¶1] Plaintiff, Dava Grundhoefer, appeals the order of the circuit court granting the motions of defendants, John Sorin and Bette Sorin (Sorins), and James J. Roche and James J. Roche Associates (collectively " Roche" ), to dismiss with prejudice Grundhoefer's second amended complaint alleging malicious prosecution and defamation per se pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On appeal, Grundhoefer contends the trial court erred in dismissing her complaint where (1) regarding her malicious prosecution claim, she alleged sufficient facts showing the Sorins lacked probable cause to bring the underlying wrongful death suit against her; and (2) regarding her defamation per se claim, she sufficiently pled the publication element against all defendants. For the following reasons, we affirm the trial court's dismissal of the defamation per se counts, but reverse the dismissal of the count pertaining to malicious prosecution and remand for further proceedings.

[¶2] JURISDICTION

[¶3] The trial court granted defendants' motions to dismiss, with prejudice, on April 15, 2013. Plaintiff filed the notice of appeal on April 17, 2013. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

[¶4] BACKGROUND

[¶5] Grundhoefer, a licensed physician, was married to the Sorins' son David. David died on August 11, 2008, when he suffered a fall while climbing on the outside of their residence. David died intestate and his estate was filed in probate. Grundhoefer was appointed administrator of the estate and she served upon the Sorins a citation to discover assets. A dispute between the parties arose during these proceedings, specifically regarding the ownership of a 2007 Hyundai Santa Fe vehicle. On July 21, 2010, while the probate dispute was pending, the Sorins filed a wrongful death suit against Grundhoefer in which they alleged that Grundhoefer prescribed Ambien to David even though a side effect of taking the drug is sleepwalking, and Grundhoefer knew of David's ...


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