Court of Appeals of Illinois, First District, First Division
MICHAEL A. RIGOLI, as Independent Executor of the Estate of Lucille Therese Rigoli, Deceased, Plaintiff-Appellee,
MANOR CARE OF OAK LAWN (WEST) IL, LLC, a Delaware Limited Liability Company d/b/a Manorcare Health Services-Oak Lawn West, and HEARTLAND EMPLOYMENT SERVICES, LLC, an Ohio Limited Liability Company, Defendants-Appellants.
from the Circuit Court Of Cook County. No. 16 L 000877 The
Honorable Patricia O'Brien Sheahan, Judge Presiding.
M. Bream and Shana A. O'Grady, of Lowis & Gellen LLP,
of Chicago, for appellants.
Michael W. Rathsack, Daisy Ayllon, and Michael F. Bonamarte
IV, all of Chicago, for appellee.
JUSTICE WALKER delivered the judgment of the court, with
opinion. Justices Hyman and Pierce concurred in the judgment
1 The estate of Lucille Rigoli (Lucille) sued the owners and
operators of a nursing home for negligently causing
Lucille's wrongful death and suffering before her death.
The Cook County circuit court initially granted the
defendants' motion to compel arbitration. However, on the
estate's motion to reconsider, the court allowed the
estate to file the affidavit of a doctor who opined that
Lucille likely would not have understood the arbitration
agreement she signed. Defendants now appeal from the circuit
court's decision to grant the motion to reconsider and
deny the motion to compel arbitration. Defendants contest
both the decision to allow the belated filing of the
doctor's affidavit and the court's reliance on the
opinion about Lucille's mental condition from a doctor
who never met Lucille. We hold that the court did not abuse
its discretion by allowing the late filing of the affidavit,
and the court could rely on the expert opinion concerning
Lucille's mental condition. Accordingly, we affirm the
denial of the motion to compel arbitration.
2 I. BACKGROUND
3 Lucille Rigoli died on May 10, 2016. The court appointed
Michael Rigoli (Michael) to serve as independent executor of
her estate. On March 13, 2018, Michael, as executor, filed a
complaint against Manor Care of Oak Lawn (West) and Heartland
Employment Services, alleging that they failed to provide
adequate medical care to Lucille and their failures led her
to fall and break her hip on March 15, 2016. The complaint
included separate counts against each defendant for wrongful
death and for the pain Lucille suffered before her death
under the Probate Act of 1975 (755 ILCS 5/27-6 (West 2016)
(commonly known as the Survival Act)).
4 Defendants filed a motion to dismiss the complaint and
compel arbitration. They attached to the motion a copy of a
"Voluntary Arbitration Agreement" that Lucille
signed on January 12, 2016. Michael argued that Lucille
lacked the capacity to enter into the agreement. In an order
dated November 6, 2018, the circuit court rejected
Michael's argument and compelled arbitration of the
Survival Act claims, but the court denied the motion to
dismiss as to the wrongful death claims. The court stayed
proceedings on the wrongful death claims pending arbitration.
5 Michael filed a motion to reconsider the dismissal of the
Survival Act claims. He appended to the motion medical
records that included diagnoses of several ailments Lucille
suffered and lists of her medications.
6 At a hearing on the motion to reconsider, the circuit court
"[T]he plaintiff *** in effect is asking the
Court to take judicial notice of some medical conditions that
are referenced in those documents and come to the conclusion
that they establish factually that there's some question
about the individual's cognitive deficiencies.
* * *
*** So you're asking the Court to look at those
drugs, make a determination that they are mind altering, and
I don't think I could do that.
* * *
*** [W]hat I need is some sort of facts or
affidavits or testimony admissible at trial to say, 'In
my professional opinion looking at the kind of medications
this person had she could not have given
7 The court entered an order dated March 11, 2019, stating:
"The motion of Plaintiff for Reconsider[ation of] the
Court's 11/6/18 Order is hereby *** Denied
*** in part; the Court will take under advisement
the substantive unconscionability argument. Plaintiff granted
leave to file ...