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Kantner v. Waugh

Court of Appeals of Illinois, Second District

June 12, 2017

ROBERT KANTNER, Plaintiff-Appellant,
LADONNA JO WAUGH, a/k/a Ladonna Jo Bryan, a/k/a Ladonna Farrow, Individually and as Agent of Mercy Health System Corporation; MERCY HEALTH SYSTEM CORPORATION; MERCY HARVARD HOSPITAL, INC.; MERCY CENTER FOR METABOLIC AND BARIATRIC SURGERY; and MERCY ALLIANCE, INC., Defendants-Appellees.

         Appeal from the Circuit Court of McHenry County.No. 16-LA-51 Honorable Thomas A. Meyer, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.



         ¶ 1 The trial court dismissed on grounds of res judicata the medical malpractice suit filed by plaintiff, Robert Kantner, against defendants, Ladonna Jo Waugh, M.D., Mercy Health System Corporation, Mercy Harvard Hospital, Inc., Mercy Center for Metabolic and Bariatric Surgery, and Mercy Alliance, Inc. The court noted that res judicata bars claim-splitting, and it determined that plaintiff split his claims. It stated that, under the instant facts, no exception to res judicata's bar against claim-splitting applied. Plaintiff appeals, acknowledging that he split his claims, but arguing, inter alia, that the agreement-in-effect exception applied. We agree. The trial court misunderstood the law to require an express agreement. Accordingly, we reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 In 2008, plaintiff filed a multi-count medical malpractice suit against defendants based on permanent injuries following bariatric surgery. Specifically, plaintiff set forth counts alleging (1) informed consent and (2) negligence. In 2009, defendants moved to dismiss the informed-consent claim, and the trial court granted their motion. Plaintiff proceeded to trial on the negligence claim.

         ¶ 4 A. December 7, 2015

         ¶ 5 On December 7, 2015, before the first day of trial began, plaintiff moved to continue. Two business days earlier, on December 3, 2015, plaintiff's counsel had been battered by her son, a military veteran returned from Afghanistan. The court and the parties discussed the basis for the continuance off the record.

         ¶ 6 Back on the record, defense counsel objected to the continuance: "We're not unsympathetic, Judge. But we do object." Defense counsel noted that plaintiff's counsel had not given him notice that she would ask for a continuance. Defense counsel was concerned that his experts would charge a cancellation fee.

         ¶ 7 The court "tipped its hand, " stating that it would grant the continuance, provided that plaintiff assumed the associated cancellation fees. The court told plaintiff to choose the course of action, either continue the case and assume the cancellation fees or go to trial. Plaintiff's counsel stated: "I don't know what to do. I mean, am I talking $10, 000? Am I talking [$1, 000]? What am I talking?" Plaintiff's counsel complained that defense counsel sought "carte blanche" to collect an indeterminate fee amount. Defense counsel stated that he could not provide an estimate; he was just preserving his clients' rights. The court prodded, "some experts tell you what their cancellation fee is going to be." Defense counsel answered: "I don't get involved in that. That's my secretary. *** There may not be any. I don't know at this point." The court again asked plaintiff's counsel what she wanted to do:

"[Plaintiff's Counsel]: I mean, I don't know what to do, to tell you the truth. I don't.
** *
[Plaintiff's Counsel]: My-my client's certainly not going to pay any of these [cancellation fees]. I'm going to have to take this on. This is not through any of my client's fault.
** *
[Defense Counsel 1]: And I think we have offered to not object to a motion to voluntarily dismiss this case. And we would not seek any reimbursement on costs now or upon refiling.
[Plaintiff's Counsel]: So how's that any different?
THE COURT: It's cheaper.
[Plaintiff's Counsel]: But the question is[, ] how quickly can I get it back up for trial if we do that?
THE COURT: *** As soon as you got the case back in front of me, I would set it for trial because there's-there is no need for further discovery. [Vis-a-vis the continuance option, if you voluntarily dismiss and refile, ] you would go to trial probably at the same time or thirty days later ***.
[Plaintiff's counsel asked for a moment to confer with plaintiff. The court again assured plaintiff's counsel that the trial date would be approximately the same under either the continuance option or the voluntarily-dismiss-and-refile option. Based ...

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