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Rigoli v. Manor Care of Oak Lawn (West) IL, LLC

Court of Appeals of Illinois, First District, First Division

December 16, 2019

MICHAEL A. RIGOLI, as Independent Executor of the Estate of Lucille Therese Rigoli, Deceased, Plaintiff-Appellee,
v.
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.

          Appeal from the Circuit Court Of Cook County. No. 16 L 000877 The Honorable Patricia O'Brien Sheahan, Judge Presiding.

          James 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 and opinion.

          OPINION

          WALKER JUSTICE

         ¶ 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 said:

"[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 [consent].'"

         ¶ 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 ...

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