Opinion
No. 1-17-0382
03-29-2018
PAUL A. CECCHINI, Plaintiff-Appellant, v. WILLIAM R. KUEHN; WILLISTON, McGIBBON & KUEHN; THEODORE KARVIDAS; FRANCIS M. MARTINEZ; JOHN PETER CURIELLI; GEOFFREY SHAW; JANICE A. PIELET; and RBC CAPITAL MARKETS, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
16-L-001816
Honorable Sanjay T. Tailor, Judge Presiding
JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Burke and Justice Ellis concurred in the judgment.
ORDER
Held: Where heir filed suits before and after his mother's death challenging whether she should have been helped by her daughter, attorneys, an investment advisor, and a physician, to amend her estate plan in order to equally benefit her two children, the trial court properly dismissed the son's second action on the basis of res judicata, a statute of limitations, and a statute of repose.
¶ 1 Paul A. Cecchini appeals from the dismissal of an amended complaint he filed against legal, investment, and medical professionals whom he contends conspired to "trick" his mother into reviving a prior version of her estate plan which equally benefited her two children, instead of primarily benefitting Paul. Paul sought damages for the loss of the "just apportionment" of his
mother's estate. In response to the defendants' various arguments, the trial judge found that the action Paul initiated in 2016 after his mother's death was barred by res judicata, due to a suit Paul filed in 2011 before his mother's death concerning the same revision to her estate plan, and was also barred by the running of statutes of limitations and repose for claims against medical and legal professionals. In both suits, Paul sought a determination that his mother lacked testamentary capacity or was unduly influenced by his sister to revise the estate planning documents. Paul contends the res judicata finding is in error because (1) he voluntarily withdrew and amended his complaint in the first lawsuit in order to exclude certain defendants before they could answer and "officially [become] parties," therefore the two suits do not involve the "same parties" (2) he filed the first suit as a purported trustee, rather than as an individual, therefore, the two suits do not involve the "same parties," and (3) the court's "with prejudice" dismissal of certain defendants from the first lawsuit was entered after an oral motion, instead of a written motion, so it was not "on the merits." Paul also contends that the statutory arguments regarding the timeliness of his second action were misdirected because the conspiracy against him is still ongoing and causing damage given that the professionals are defending this suit.
¶ 2 Paul and his sister, Leana, were Norma A. Cecchini's only children and became her only heirs when her husband, Dorando, died in 1974, when Norma was in her 50's. Norma's acumen at buying, selling, and managing real property in Chicago and its suburbs allowed her to accumulate significant assets. In Norma's later years, her real estate holdings included her residence in Chicago; a condominium in Longboat Key, Florida, that she co-owned with her brother, Franco, and sister-in-law, Delia; a six-unit apartment building in River Forest, Illinois; and a similar apartment building in Elmwood Park, Illinois. Norma also maintained an asset account with RBC Capital Markets, LLC, which was managed by Janice A. Pielet.
¶ 3 When Norma was 67, she executed estate planning documents on April 12, 1990 that created a revocable living trust over which she was the trustee, Paul was the successor trustee, and Leana was the next successor trustee. It appears that Norma executed other documents which are not part of the record, such as deeds or a will conveying various assets including the four pieces of real estate into the trust. Norma specified in her 1990 trust agreement that during her lifetime, she was to receive any trust income and principal necessary for her support and comfort or her best interests; and that after her death and the death of two other individuals, all the remaining trust assets were to be distributed immediately "absolutely," "unconditionally" and "equally" to Paul and Leana.
¶ 4 Norma subsequently executed two revisions which were advantageous to Paul, but her third revision restored a more equal division of assets between her two children and Paul has made numerous attempts to invalidate the document. More specifically, on February 10, 1998, Norma executed a First Amendment to her trust documents in which she shifted most of her real estate to Paul. She left Paul both of the apartment buildings and her share of the Florida condominium that she co-owned with Franco and his wife, and she directed Paul to sell her share of the condo and take the proceeds. Norma left only her Chicago residence to Leana, which was the least valuable of the four properties. A few years later, on October 3, 2000, Norma executed a First Restatement of her trust agreement. In this modification to her estate plan, Norma gifted to Paul, upon her death, "all interest" in the Florida condo, suggesting that Franco and Delia were no longer part-owners. Norma also now left 80% of the balance of the estate to Paul and only 20% to Leana. The 2000 trust document did not expressly dispose of either apartment building; however, according to Paul, Norma executed a separate document that directed Chicago Title Land Trust Company to issue a trustee's deed conveying the River Forest six-flat
to him.
¶ 5 The fourth and final version of Norma's estate planning documents was a Second Restatement which she executed on October 13, 2010. The 2010 revision was in effect 15 months later when she was declared disabled in 2012 and still in effect when she died three years after that, at the age of 92. The 2010 trust document and a will bearing the same date included an "Introduction" section and "Background" paragraph in which Norma recounted that when she designated Paul to be the joint tenant on certain bank accounts, she had done so for her own convenience and only for her lifetime and, thus, upon her death, the bank accounts were to be considered part of her estate and distributed accordingly. After her death, Paul was to take the Florida condominium, and Leana was to take the Chicago residence and the Elmwood Park apartment building. Paul and Leana were then to equally share the balance of the trust, instead of taking the 80-20 division which had been in effect for about 10 years. In other words, as of 2010, each child had received or would receive one apartment building and one private residence, and the remaining assets were equally split between the two Cecchini children. Norma no longer named either child as a successor trustee and indicated that Comerica Bank & Trustee was her only successor trustee.
¶ 6 A few months later, in February 2011, Paul sued his sister, his mother, Norma's attorney Francis M. Martinez, RBC Capital Markets where Norma maintained an investment account, RBC investment advisor Pielet, and Comerica Bank, where Norma also maintained an account, and contended the defendants were frustrating his attempts to manage his mother's assets after he and her physician had determined she was no longer competent to do so. (Norma would not be declared incompetent by a probate court judge until January 2012.) Paul's four-count action in the Chancery Division, captioned Cecchini v. Cecchini, 11-CH-06902, and entitled "Petition for
Instructions and for Other Relief" was based on the 1990, 1998, and 2000 documents only. In our summary of this pleading and Paul's other subsequent pleadings, we have included his individual paragraph numbers. Paul alleged "26. Beginning in 2009, [his sister] and [Norma's attorney Martinez] began to take steps to frustrate [Paul's] role as successor Trustee of the Trust" and "27. *** [They] move[d] property away from [Paul's] access." The 2000 trust document indicated Norma could be replaced as trustee due to "incapacity or incompetency," and that a "determination of my inability shall be made in writing, signed by my personal physician, and [Paul]." Paul alleged, "32. On or near August 2010, [he] exercised the provisions in the [2000] First Restatement for assuming responsibility as [the successor] trustee." Paul filed suit in his capacities as (1) as an individual, that is, as a beneficiary of the residue of the trust, (2) "as trustee" of the trust, and as (3) "next friend" of his mother, meaning that he was representing her interests because she was under disability or otherwise unable to maintain a suit on her own behalf and did not have a legal guardian. https://en.wikipedia.org/wiki/Next_friend (last visited Jan. 26, 2018).
¶ 7 Paul made contradictory or unclear allegations about his authority to act as successor trustee. On the one hand, Paul alleged "14. [Paul] is informed and believes that [Norma] has never revoked the Trust Agreement, *** [or] modified, restated or amended the Trust Agreement, *** so as to diminish or remove [Paul's] authority or powers." However, in subsequent paragraphs, Paul seemed to be well aware that Norma had executed the 2010 Second Restatement and removed him as a potential successor trustee, when he alleged, "46. [Paul] is informed and believes that [Leana and Martinez] have either engineered an apparent modification or restatement of the Trust by manipulating [Norma] to execute the documents necessary *** or have manipulated the actions of [Norma] to create the appearance that she is
competent to authorize the transfer of Trust property out of Respondent RBC to Respondent Comerica Bank when in fact she is not." Paul's contradictions or lack of clarity continued with allegations that Norma kept a safe deposit box which she "23. *** maintained without [Paul] but with [Leana]" and that in 2007, Leana "25. *** opened a second box with her mother, transferred the contents of the first box to the second box, and "failed to return it to [Paul's] control." Essentially, Paul alleged that Norma was being assisted to improperly revise her estate plan and frustrate his service as successor trustee. He sought an order retroactively declaring Norma incompetent to manage her person and estate, appointing a guardian over Norma's person, rescinding "any purported amendment, restatement or revocation of the trust" and any transfers of property, declaring that only the 1990, 1998, and 2000 trust documents were valid, and approving all of Paul's actions as successor trustee. Paul also sought an award of his attorney fees and expenses from the assets his mother held through the trust and/or from the parties he had sued.
¶ 8 The defendants filed motions to dismiss. Martinez, for instance, argued that the complaint lumped together various causes of actions into a single count, failed to make clear which count was directed at which defendant, and generally failed to state claims. In July 2011, the circuit court granted the dismissal motions of Martinez, RBC, and Pielet, and specified that Paul was not allowed to file any further claims against those three parties without leave of court.
¶ 9 On January 12, 2012, a Probate Division judge determined that Norma was disabled. The court appointed a guardian over her estate, and at the court's instruction, the guardian filed legal malpractice claims against attorneys Martinez, William R. Kuehn, and Theodore G. Karavidas, and their law firm Williston, McGibbon & Kuehn, P.C., or WMK. The guardian alleged that the legal documents prepared for Norma in 2010 did not accurately reflect her intention that her
estate "be divided equally between her two children," because the terms left specific pieces of real estate to each child, despite the fact that the market value of each property fluctuated. The guardian's claims, however, were later dismissed for want of prosecution.
¶ 10 In December 2012, Paul filed a first amended petition in the Chancery Division in which he continued to assert claims against Leana, Norma, and Comerica Bank; brought the three dismissed defendants back into the case (Martinez, Pielet, and RBC); and added claims against attorney John P. Curielli, Curielli's law firm, Law Offices of John P. Curielli, P.C.; attorney Karavidas, who had been Norma's initial litigation counsel in the 2011 case, and Karavidas's law firm, WMK. Paul's 14 claims against the 10 parties were based on Norma's 2010 revision to her estate planning documents and he now stated there was a wide-ranging "conspiracy" to defraud him of his inheritance.
¶ 11 Paul admitted, "140. In April 2010, Norma told Paul that Leana had convinced her that she should revise her estate plan again to provide for equal distribution of the residuary of her estate to Leana and Paul." He contended that Leana had induced this revision by exerting undue influence over their mother "14. *** with the assistance and active participation of other [(sic)] Respondents." According to Paul, "103. By April 2010, [Norma was suffering from] *** diminished *** mental capacity" and Paul and his sister disagreed as to whether their mother subsequently had testamentary capacity. Paul alleged in paragraph 135 that on October 3, 2009, Leana took Norma to see Dr. Geoffrey Shaw, who examined Norma and then gave his expert opinion that Norma had testamentary capacity. When Paul learned that Leana later took Norma to see an estate planning attorney, Paul "153. *** contacted Norma's treating neurologist and asked if she felt she could provide a certification that Norma was no longer capable of managing her own affairs." Then, "154. On or near June 29, 2010, [the neurologist] gave Paul a 'letter of
medical necessity' in which she certified that Norma had progressive dementia and seizure disorder and that, due to these illnesses Norma '[was] no longer able to make decisions concerning her property and/or healthcare.' " We note that although Paul did not name the treating neurologist, the record suggests it was Dr. Aleksandra Stobnicki. The record indicates that in connection with the Chancery case, Dr. Stobnicki was deposed on May 18, 2011. During her deposition, Dr. Stobnicki confirmed that she had read Dr. Shaw's reports as to Norma's testamentary capacity. When asked whether she agreed with Dr. Shaw, Dr. Stobnicki testified that she had never evaluated Norma to determine whether she had testamentary capacity. Paul further alleged that Dr. Shaw personally examined Norma for a second time on July 29, 2010 and again found that she had testamentary capacity. Dr. Shaw noted in his August 2010 report "161. *** that '[Norma] clearly stated to [him] that she wishes to change her Will so that her estate is equally divided between her two adult children.' " In addition, "171. On or near September 15, 2010, Leana took Norma to a clinical psychologist, [Dr.] Robert Hanlon, to have Norma evaluated." Dr. Hanlon stated in his report, " 'It is my opinion with a reasonable degree of neuropsychological and scientific certainty that Norma Cecchini possesses the cognitive and intellectual functions necessary to make independent and informed decisions regarding her estate at the present time.' " According to Paul, however, Dr. Hanlon "171. *** did not evaluate" Norma's testamentary capacity or her "ability to read normal text."
¶ 12 Although Paul did not specify the type of wrong that the various defendants "conspired" to commit, it appears Paul intended to plead a claim of tortious interference with his inheritance expectancy from his mother. Paul also directed claims of breach of fiduciary duty, legal malpractice, and other torts at the lawyers and their firms. The focus of his claims was to rescind
the 2010 documents, approve his assumption of the role of successor trustee, and award his attorney fees and expenses.
¶ 13 Paul subsequently sought leave to amend his pleading in the Chancery Division. On June 18, 2013, he filed an amended motion to file a second amended petition instanter. In the motion, Paul indicated that his proposed pleading relied on the same exhibits as his first amended complaint but would remedy a "duplication" of allegations, reduce the number of counts, and "also reduce[] the number of respondents from ten to four." More specifically, Paul proposed to voluntarily drop his claims against attorney Curielli, the Curielli firm, attorney Karavidas, WMK, investment advisor Pielet, and RBC. The only respondents named in his proposed second amended petition were Leana, Norma, attorney Martinez, and Comerica.
¶ 14 At the next court date, June 20, 2013, the Chancery court granted Paul leave to file a second amended petition but naming only Leana, Norma, and Comerica. The court ruled that Paul's claims against the seven others were dismissed with prejudice, including the claims against Martinez, Curielli, the Curielli firm, Karavidas, WMK, Pielet, and RBC, and that the dismissal with prejudice was a final order and immediately appealable pursuant to Supreme Court Rule 304(a). Paul did not take an appeal from the Chancery judge's order. The record does not disclose what became of Paul's seconded amended allegations against Leana, Norma, and Comerica; however, the claims against them have no bearing on this appeal involving the other defendants.
¶ 15 After Norma died in 2015, Paul instituted this new action in the Law Division on February 19, 2016. Paul filed suit against Dr. Shaw; attorney Kuehn, as the drafter of the 2010 documents; and Paul again sued the seven parties who had been dismissed with prejudice from his Chancery suit. In Counts I and II, Paul indicated the defendants "conspired or aided and
abetted a conspiracy to defraud [Paul] of his rights under Norma's trust agreements." Like the 2011 case filed in the Chancery Division, the complaint Paul filed in the Law Division sought damages from the parties who helped Norma revise her estate plan when she was subject to undue influence from Leana or lacked testamentary capacity. Paul summarized:
"This involved multiple attempts to alter the trust agreements by applying undue influence over Norma and/or taking advantage of Norma's lack of capacity, multiple attempts to manufacture documents supporting the conclusion that Norma had capacity to alter the trust (by involving experts for the sole purpose of establishing capacity) despite the fact that her neurologist found otherwise, by succeeding in tricking Norma to alter said trusts against her stated wishes, by actively concealing their actions from [Paul], and by personally gaining from the conspiracy."
¶ 16 Count III was a claim for legal malpractice directed at Kuehn, WMK, Karavidas, and Martinez. Paul contended they "245. *** had an attorney client relationship with Norma, her attorney in fact, and all of her beneficiaries, including [Paul]" and had breached a duty of care that they owed to Paul. According to Paul, "249. But for the negligence of Defendants, [Paul] would not have lost his ability to control Norma's assets and would have received his just apportionment of said assets" and "250. *** would not have to bear the costs of this litigation." Paul also alleged, "252. The statute of limitations on this claim did not begin to run until the death of Norma."
¶ 17 All the defendants filed motions to dismiss. Paul then sought and was granted leave to file an amended complaint in order to address the dismissal arguments. It is unclear from the record whether all of the defendants filed new motions to dismiss, or stood on their existing arguments. After oral arguments, the Law Division judge dismissed Paul's claims with prejudice.
The ruling was based primarily on a finding that res judicata was triggered by the order entered in the first action on June 20, 2013, dismissing with prejudice claims against seven of the defendants. The court was also persuaded by the physician and attorneys' arguments regarding a statute of limitations and a statute of repose. Paul now asks us to reverse the dismissal order and return the parties to the trial court for proceedings on the merits of his allegations.
¶ 18 A preliminary issue is whether we have jurisdiction over one or all the defendants, because attorney Kuehn is the only defendant specified in Paul's notice of appeal. The purpose of a notice of appeal is to inform the prevailing party that his opponent is seeking review. Nussbaum v. Kennedy, 267 Ill. App. 3d 325, 328, 642 N.E.2d 151, 154 (1994). Accordingly, Supreme Court Rule 303(c)(1)(ii) required Paul to caption his notice of appeal with the "title of the case, naming and designating the parties in the same manner as in the circuit court and adding the further designation 'appellant' or 'appellee,' e.g., "Plaintiff-Appellee." Paul was also required to "specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court." Paul captioned his notice of appeal as himself versus "William R. Kuehn, et al", and stated in the body of the notice that his appeal involved "the order entered in the Circuit Court of Cook County on January 19, 2017 and all orders dismissing any versions of the complaint with prejudice. (See attached.)" Paul attached the dismissal order which states, "Defendants William Kuehn, Williston McGibbon & Kuehn, Theodore Karavidas, Francis M. Martinez, John Peter Curielli, Geoffrey Shaw, Janice A. Pielet, and RBC Capital Markets are hereby dismissed with prejudice."
¶ 19 A notice of appeal should be considered as a whole and will be deemed sufficient to confer jurisdiction to the appellate court when the notice "fairly and adequately sets out the judgment complained of and the relief sought, thus advising the prevailing litigants of the nature
of the appeal." Nussbaum, 267 Ill. App. 3d at 328, 642 N.E.2d at 154. A notice that is deficient in form but not substance and which causes no prejudice to an appellee is not fatal. Nussbaum, 267 Ill. App. 3d at 328, 642 N.E.2d at 154. Notices of appeal are to be construed liberally. Daniels v. Anderson, 162 Ill.2d 47, 62, 642 N.E.2d 128, 135 (1994); Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 188-89, 579 N.E.2d 322, 326 (1991).
¶ 20 As a result of this liberal construction and the fact that no appellee is arguing prejudice, we find that we have jurisdiction over all of the defendants. Accordingly, we find we have jurisdiction over all the issues raised by Paul's appeal and turn to his contention that the law Division erred in finding that his claims were barred by res judicata.
¶ 21 The motions for dismissal were based on section 2-615 of Code of Civil Procedure, regarding the factual sufficiency of Paul's conspiracy allegations, and section 2-619(a) of the Code, regarding the application of res judicata and statutes of limitations and repose. 735 ILCS 5/2-615, 2-619 (West 2014)). Section 2-619.1 of the Code allows a litigant to combine section 2-615 and 2-619 arguments into a single but clear motion. 735 ILCS 2-619.1 (West 2014).
¶ 22 We will first address the section 2-619(a) arguments. An involuntary dismissal pursuant to section 2-619(a) is reviewed de novo. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 278 (2003); Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 18, 53 N.E.3d 1. Section 2-619 lists several different grounds upon which an involuntary dismissal may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2014). Under subsection (a)(4) of the statute, the subsection that applies in this case, a litigant may obtain an involuntary dismissal of a cause of action or a claim asserted against him if the action or claim is barred by a prior judgment. 735 ILCS 5/2-619(a)(4) (West 2014). Thus, subsection (a)(4) allows a litigant to raise the affirmative defenses of res judicata and collateral estoppel as a basis for granting an
involuntary dismissal. See Richter, 2016 IL 119518, ¶ 20, 53 N.E.3d 1; Yorulmazoglu v. Lake Forest Hospital, 359 Ill. App. 3d 554, 558, 834 N.E.2d 468, 471 (2005). A subsection (a)(5) motion is appropriate when an action "was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2014).
¶ 23 Res judicata is a legal doctrine that prevents repetitive litigation, in order to preserve the finality of judgments, protect litigants from the burden of retrying an identical cause of action with the same party or a privy, and conserve judicial resources. Caporale v. Shannon Plumbing Co., Inc., 20 Ill. App. 3d 511, 512, 314 N.E.2d 540, 542 (1974) (res judicata reflects the judicial policy in favor of finality of judgments and allows a party to prevent repetitive litigation on the same cause of action); People v. Kidd, 398 Ill. 405, 410, 75 N.E.2d 851, 854-55 (1947) ("Sound public policy requires that different judicial determinations shall not be made of the same cause of action"); Pratt v. Baker, 79 Ill. App. 2d 479, 485, 223 N.E.2d 865, 868 (1967) ("The law affords every [person] his day in court along with the opportunity to present his case on the issues involved; and it requires that he bring forth all grounds of recovery or defense which he may then have."); Pedigo v. Johnson, 130 Ill. App. 3d 392, 395, 474 N.E.2d 430, 433 (1985) (once litigation has concluded, all questions "relating to the same subject matter which were open for consideration and could have been presented are res judicata"); Caporale, 20 Ill. App. 3d at 513, 314 N.E.2d at 542 (" '[d]efendant litigants have just as much right to have litigation ended as plaintiffs have to begin it.' ") (quoting Bernick v. Chicago Title & Trust Co., 325 Ill. App. 495, 501, 60 N.E.2d 442, 444 (1945)); Pedigo, 130 Ill. App. 3d at 394, 474 N.E.2d at 432 (res judicata promotes judicial economy).
¶ 24 When a former suit is relied upon to bar an action, the questions are whether the cause of action is the same in both proceedings, whether the two actions are between the same parties or
their privies, and whether the former suit concluded with a final judgment on the merits rendered by a court with jurisdiction to hear the matter. Kidd, 398 Ill. at 408-09, 75 N.E.2d at 854.
¶ 25 Looking first to whether the cause of action was the same in both of Paul's suits, we point out that although he relied on different theories of relief in his Chancery and Law Division pleadings, the application of res judicata does not depend on the plaintiff's theories of recovery. A cause of action is defined by the facts which give the plaintiff the right to relief. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 310, 703 N.E.2d 883, 892 (1998). Pursuant to the "transactional test" employed by Illinois courts, pleading different theories of relief still constitutes the same cause of action if a single group of operative facts gives rise to the claims. River Park, 184 Ill. 2d at 307, 703 N.E.2d at 891. Stated another way, res judicata requires parties to litigate in one lawsuit all claims arising out of the same group of operative facts. River Park, 184 Ill. 2d at 319, 703 N.E.2d at 896; Nowak v. St. Rita High School, 197 Ill. 2d 361, 393, 757 N.E.2d 471, 479 (2001). The doctrine applies to not only what was decided in the first suit, but also to those matters that could have been decided in that suit. River Park, 184 Ill. 2d at 302, 703 N.E.2d at 889. Thus, a party who has litigated or had an opportunity to litigate will not be permitted to maintain a second suit involving the same operative facts. River Park, 184 Ill. 2d at 302, 703 N.E.2d at 889.
¶ 26 It is undeniable here that the both suits are based on the same group of operative facts which created Norma's 2010 estate plan and purportedly harmed Paul. In the Chancery and the Law Division actions, Paul complained of the assistance that Norma was given in revising her estate plan in October 2010. His original complaint in the Chancery Division concerned "an apparent modification or restatement of the Trust" which had been procured primarily through Leana's "manipulation." Paul alleged that "steps [had been taken] to frustrate [his] role as
successor Trustee" of the trust which Norma established in 1990, 1998, and 2000, before he purportedly declared his mother to be incompetent and took over as successor trustee. Paul sought to invalidate "any purported amendment, restatement or revocation of the trust," rescind any asset transfers, and award his attorney fees and costs, thus, restoring his control and the prior division of Norma's assets that favored Paul over Leana. In his first amended complaint in the Chancery Division, Paul again alleged an improper revision to Norma's estate plan and now sought its rescission due to undue influence or lack of testamentary capacity, to avoid the asset transfers from RBC to Comerica, and to be awarded compensatory damages, punitive damages, and attorney fees. Paul's second amended complaint in the Chancery Division was also based on the same document revision. The action that Paul subsequently initiated in the Law Division after Norma's death was also based on the "multiple attempts to coerce Norma to alter said Trust agreements after she lost capacity." By this time, her 2010 estate planning documents had been admitted to probate. In the Law Division, Paul no longer sought to rescind the documents and was apparently resigned to their enforcement. However, he alleged that the 2010 documents were in effect because the "Defendants either conspired or aided and abetted a conspiracy to defraud [Paul] of his rights under Norma's [former] trust agreements" and that he had "been damaged in that he did not receive the money and property that he should have received." After he was permitted to file an amended complaint in the Law Division, Paul continued to focus on the circumstances underlying Norma's revision of her estate plan and sought compensation for his perceived loss. While the two cases refer to different legal theories, it is undeniable that the Chancery and Law Division actions involve the same operative facts.
¶ 27 Furthermore, with the exception of Dr. Shaw, the various people and firms have been parties in both suits, and the second element of res judicata is satisfied. Dr. Shaw's name
appeared in the Chancery action as the doctor who examined and opined on Norma's testamentary capacity, but Paul did not name Dr. Shaw as a defendant until Paul filed in the Law Division. We will address Dr. Shaw's dismissal below when we reach the statute of limitations arguments.
¶ 28 Most telling here is the Chancery court order which dismissed seven parties with prejudice—Martinez, Curielli, the Curielli firm, Karavidas, WMK, Pielet, and RBC—and authorized Paul to take an immediate appeal pursuant to Rule 304(a). Paul subsequently named those same seven parties and Dr. Shaw in the Law Division action. Paul contends the dismissal and 304(a) language do not mean what they appear to mean. He contends that we should look to what he calls the substance of the order, not its form. For instance, Paul acknowledges that his amended complaint in the Chancery action named attorneys Kuehn, Karavidas, and Curielli, and the WMK law firm. Paul contends, however, that these lawyers and law firm "were never officially parties in the [Chancery suit]" because before these parties answered or otherwise responded to his amended complaint, Paul sought leave to file his second amended complaint, and was denied leave to include these parties in his next pleading. Paul contends that because no one filed a written motion to dismiss his first amended complaint, the Chancery court never considered the merits of his claims. Paul notes that the dismissal order indicates the court was addressing his motion for leave to amend, not any defendants' motion to dismiss. Paul contends the court only "decided that it would not grant leave to file" and then entered an "inartful" and "very confusing order" which dismissed the seven defendants with prejudice. Paul contends the court was "merely trying to make it clear that no more motions for leave should be filed" and that Paul would not be permitted to bring those claims in the Chancery Division. He contends
that because the claims were not actually adjudicated in Chancery Division, he was free to subsequently file them in the Law Division.
¶ 29 Paul cites no authority that distinguishes between "official" and "unofficial" defendants, and cites no authority indicating that defendants must answer or otherwise respond to a complaint in writing in order for the suit to trigger res judicata. Paul's failure to cite and apply relevant authority is in violation of the rule regarding the content of an appellate brief and waives consideration of this argument. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); Washington v. Caseyville Health Care Ass'n, 284 Ill. App. 3d 97, 102, 672 N.E.2d 34, 37 (1996). It is not our role to research the facts and law which might support an appeal and to develop a party's argument for them.
¶ 30 Waiver aside, Paul misconstrues the significance of the dismissal with prejudice. Even if the language in the judgment order was "inartful" or entered in error—which we are not suggesting occurred—the authority indicates that res judicata "is not dependent upon the correctness of the [prior] judgment" or on the findings or specific reasoning that underlie the first court's judgment, and will be triggered even if the first court's judgment is based on "an erroneous view of the law." Kidd, 398 Ill. at 410, 75 N.E.2d at 855. "[A] judgment does not lose its effectiveness as res judicata from the mere fact that it is irregular or erroneous." Kidd, 398 Ill. at 410, 75 N.E.2d at 855; Relph v. Board of Education of DePue Unit School Dist. No. 103 of Bureau County, 84 Ill. 2d 436, 441, 420 N.E.2d 147, 149 (1981) (the judgment of a court of competent jurisdiction, although it may be erroneous, is binding until reversed and cannot be collaterally attacked); People ex rel. First National Bank of Joliet v. Russel, 283 Ill. 520, 523, 119 N.E. 617, 618 (1918) (same). Even a manifestly erroneous judgment is binding upon all parties and privies until it is reversed on appeal. Kidd, 398 Ill. at 410, 75 N.E.2d at 855 Relph, 84
Ill. 2d at 441, 420 N.E.2d at 149; Russel, 283 Ill. at 523, 119 N.E. at 618. Thus, we need not look beyond the face of the dismissal order, determine why it was entered, or express any opinion as to whether it was correct. The dispositive facts are that the seven parties became parties to Paul's Chancery action when he named them in his original or first amended complaints, they were dismissed with prejudice in a final order, Paul did not take an appeal from the Chancery court's dismissal with prejudice, and Paul named the same seven parties in his Law Division action. Paul's inclusion of the same seven defendants in the Law Division is a collateral attack on the first judge's dismissal order. Under the doctrine of res judicata, once a cause of action has been "adjudicated by a court of competent jurisdiction, [the dispute] should be deemed conclusively settled between the parties and their privies, except in a direct proceeding to review or set aside such adjudication." Drabik v. Lawn Manor Savings & Loan Ass'n, 65 Ill. App. 3d 272, 276, 382 N.E.2d 333, 336 (1978); People ex rel. McAllister v. East, 409 Ill. 379, 382, 100 N.E.2d 746, 747 (1951) ("It is a principle universally accepted that the same issue cannot be litigated to a final conclusion between the same parties two or more times, where the first judgment is final, unappealed from, and unreversed."). If Paul believed the order was misleading or in error, then the appropriate step was to take an appeal, which he was authorized to do by the inclusion of 304(a) language in the order. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Allowing Paul to proceed in the Law Division would nullify the judgment previously entered in the Chancery Division, and will not be permitted.
¶ 31 Paul also contends that the "same parties" element is not satisfied for attorney Martinez, investment advisor Pielet, and her bank, RBC, whom he named in his original and amended complaints in the Chancery Division. Paul contends that he did not file the Chancery suit individually, but only as a trustee and "This makes perfect logical sense because when the
Petition was initially filed the Paul [(sic)] had no idea that the estate plan had been fraudulently changed." Paul contends, "In other words, the plaintiff in the instant suit, Paul, could not have filed any claims against the defendants in this case because he was unaware he had any claims [against them] until after Norma answered the [original] petition and provided documents to establish that the estate plan had been fraudulently altered." Once again, Paul's failure to cite and discuss relevant authority is in violation of the rule regarding the content of an appellate brief and waives consideration of this argument. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); Washington, 284 Ill. App. 3d at 102, 672 N.E.2d at 37.
¶ 32 Like his first argument, this second argument also fails on its merits. The record reveals that Paul captioned his original Chancery pleading as a suit brought in his capacities as an individual, a purported successor trustee, and as Norma's next friend; he captioned his first amended Chancery complaint as a suit brought in his individual capacity only, and his Law Division action was also in his individual capacity only. We were unable to find any language in his pleading which draws the fine point he now relies upon. Furthermore, one of the arguments for dismissal of his original pleading was that it lacked clarity and lumped together various causes of action. Thus, Paul is essentially arguing that he should benefit from the lack of precision in his allegations in the Chancery action. More important is that Paul, the individual, alleged in his first amended complaint in the Chancery case that Martinez, Pielet, and RBC were part of "a Conspiracy" to revise Norma's estate plan in order to diminish Paul's inheritance. He specified, "255. At a time and in manner unknown to Paul, Martinez, Pielet and Curielli conspired and agreed with Leana Cecchini or with one another to assist Leana in her plan to revise or amend Norma's estate plan to diminish the allocation to Paul which Norma made under the [2000] First Restatement, to increase Leana's allocation of the residuary of the res of the
Trust, and to put Norma's property beyond the scrutiny of Paul." Therefore, even if he failed to sue Martinez, Pielet, and RBC in his individual capacity in his original complaint before he purportedly knew of the "conspiracy," Paul did sue them in his individual capacity in his amended complaint in which he alleged they conspired. Paul cannot withhold his individual "conspiracy" claims against Martinez, Pielet, and RBC in the Chancery action in order to subsequently assert his individual "conspiracy" claims against them in a different law suit. Furthermore, Paul voluntarily withdrew all claims against Pielet and RBC when he proposed to file his second amended complaint without Pielet and RBC, and this fact is memorialized in the dismissal order dated June 20, 2013. In addition, the dismissal order does not distinguish between Paul's claims as an individual or trustee, and if Paul believed the order was overbroad or misleading, he could have appealed.
¶ 33 Having concluded that two of the three elements for res judicata are satisfied, we next turn to the third requirement, which is whether the first suit concluded with a final judgment on the merits rendered by a court with jurisdiction to hear the matter. It is undisputed that the Chancery court had subject matter jurisdiction over allegations of this nature and personal jurisdiction over the various parties. In addition, the June 20, 2013 dismissal is considered a final judgment on the merits, because Paul voluntarily withdrew his claims against Pielet and RBC, the court imposed an involuntary dismissal as to the other five defendants, and the court indicated that the dismissal of all seven was with prejudice. Mann indicates that Paul's voluntarily dismissal with prejudice of Pielet and RBC is an adjudication on the merits for purposes of res judicata. Mann v. Rowland, 342 Ill. App. 3d 827, 835-36, 795 N.E.2d 924, 931 (2003). The plaintiff in that case filed a motion to voluntarily dismiss two defendants without prejudice but the court decided to make the dismissal with prejudice, and the order was given res
judicata effect. As for the other five defendants, Supreme Court Rule 273 mandates, "Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits." Ill. S. Ct. R. 273 (eff. Jan. 1, 1967). The court's decision to deny Paul's motion for leave to amend and to dismiss the seven parties with prejudice is fairly characterized as an involuntary dismissal. Also, whether the order was intended to be final is confirmed by the express statement that it was a final and appealable within the meaning of Illinois Supreme Court Rule 304(a). Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Accordingly, we conclude the first suit concluded with a final judgment on the merits, rendered by a court of competent jurisdiction, and that the third element of res judicata was met.
¶ 34 For these reasons, res judicata was properly applied in this instance and the Law Division judge was correct in dismissing the seven legal and investment defendants who had also been named in Paul's prior action in the Chancery Division. In the trial court, and here in the appellate court, Paul commented that "even if res judicata applies[,] this Court should apply one of the exceptions [to the principle that prohibits a plaintiff from suing for part of a claim in one action and then suing for the remainder in another action]." Paul then listed the six possible exceptions, and cited "Hudson, at 472," which is apparently a reference to Hudson v. City of Chicago, 228 Ill. 2d 462, 472, 889 N.E.2d 210, 216 (2008) (discussing and responding to arguments about the exceptions to the rule against claim-splitting). This comment and citation are the full extent of his presentation, do not meet the Supreme Court Rules, and result in forfeiture. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); Washington, 284 Ill. App. 3d at 102, 672 N.E.2d at 37 (a deficient argument is a waived argument). Res judicata is controlling. In light of our conclusions
regarding res judicata, we need not address whether dismissal of the legal defendants was also warranted due to statutes of limitations and repose.
¶ 35 The next question on appeal is whether the dismissal of Dr. Shaw was correct. Dr. Shaw was not a party to the Chancery action and the claim against him in the Law Division was not subject to res judicata. Paul claimed that Dr. Shaw breached his duties as a physician by rendering a medical opinion regarding Norma's mental capacity that he knew or should have known was false and not based on reasonably accepted medical standards. Dr. Shaw's section 2-619(a)(5) motion cited the two year statute of limitations and four year statute of repose set out in section 5/13-212(a) of the Code of Civil Procedure, which governs medical malpractice actions, and the five year catch-all statute of limitations set out in section 13-205 of the Code. 735 ILCS 5/2-619(a)(5) (West 2014); 735 ILCS 5/13-212(a) (West 2014); 735 ILCS 5/13-205 (West 2014).
¶ 36 In the Chancery action, Paul alleged that he was "informed and believes" that Leana rehearsed with Norma what she was to say to Dr. Shaw and how Norma was to answer Dr. Shaw's questions, Leana's presence during the evaluation influenced Norma, and Leana "assisted" Norma with her answers. Paul also alleged that Dr. Shaw never required Norma to provide written documentation of the extent of her assets and did not learn that the assets she described were "all held by the Trust," and Dr. Shaw never gave Norma any written material to evaluate her ability to read and her reading comprehension. Paul gave no indication as to why the physician would need to know details about Norma's assets in order to assess her mental state, nor did Paul disclose why it would be significant whether Norma held the assets through her trust or as an individual, or why Norma's ability to read had any relevance. (Dr. Shaw performed his first evaluation on October 3, 2009 and his second evaluation on July 29, 2010; Norma revised
her estate documents in October 2010; and the probate court declared Norma disabled on January 12, 2012.) Paul made similar allegations regarding Dr. Shaw's second evaluation, and added that if Dr. Shaw had been paid a fee for the second evaluation, then Paul was "informed and believes" that Leana "paid that fee using her own funds." The allegations were directed at Leana's conduct, however, not Dr. Shaw's conduct.
¶ 37 In the subsequent Law Division action which included Dr. Shaw as a defendant, Paul made the same allegations regarding Dr. Shaw's patient care. Paul contended that Dr. Shaw's role in the "conspiracy" relating to the revision of his mother's estate plan was to conduct an evaluation and then "give them a phony evaluation of Norma's mental capacity" in breach of "reasonably accepted medical standards and procedures" and in breach of the duties he owed to Norma and her beneficiaries as her physician. Paul alleged that if Dr. Shaw had followed "normal reasonably accepted medical standards," he would have found Norma incompetent and that Paul was injured by Dr. Shaw's negligent or unreasonable opinion that Norma had testamentary capacity.
¶ 38 Thus, Paul alleged that Dr. Shaw's role in the "conspiracy" was to commit medical malpractice and that Paul was injured by the physician's tortious conduct. Section 13-212 of the Code provides in pertinent part:
"[N]o action for damages for injury or death against any physician, *** duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action
be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." 735 ILCS 5/13-212 (West 2014).
¶ 39 Phrased another way, pursuant to this statute, a suit arising out of patient care must be filed within two years after the plaintiff became aware or should have become aware of the provider's action or inaction, but regardless of when the harm was discovered, the opportunity to file suit closes four years after the injurious conduct. Although both time limits are commonly called a statute of limitations, it is more accurate to state that the two year period is known as a statute of limitations and the four year outer limit is known as a statute of repose. DeLuna v. Bruciaga, 223 Ill. 2d 49, 61, 857 N.E.2d 229, 237 (2006) (distinguishing between a statute of limitations and a statute of repose). The statute of repose ends the possibility of physician malpractice liability after a defined period of time regardless of a potential plaintiff's lack of knowledge. Cunningham v. Huffman, 154 Ill. 2d 398, 406, 609 N.E.2d 321, 325 (1993). It curtails the "long tail" exposure to medical malpractice claims brought about by the advent of the discovery rule. Cunningham, 154 Ill. 2d at 406. It was part of the General Assembly's response to a perceived medical malpractice insurance crisis and was intended to reduce the cost of medical malpractice insurance and to assure its continued availability to medical practitioners. Orlak v. Loyola University Health System, 228 Ill. 2d 1, 885 N.E.2d 999 (2007).
¶ 40 Paul contends that his action against Dr. Shaw is not subject to the medical malpractice statute of limitation, section 13-212(a), and is instead governed by the statute of limitations applicable to conspiracy. 735 ILCS 5/13-212(a) (West 2014). This is incorrect. When determining whether section 13-212(a) of the Code applies to a complaint, courts do not rely on labels the plaintiff has chosen, but instead look to whether the plaintiff's claims arose out of
patient care. 735 ILCS 5/13-212(a) (West 2014); Uldrych v. VHS of Illinois, 398 Ill. App. 3d 696, 699, 927 N.E.2d 82, 85 (2010). " 'Arising out of patient care' simply requires a causal connection between the patient's medical care and the injury." Uldrych, 398 Ill. App. 3d at 699, 927 N.E.2d at 85 (citing Brucker v. Mercola, 227 Ill. 2d 502, 523, 886 N.E.2d 306 (2007). Furthermore, the phrase is read broadly to include " 'any injuries that have their origin in, or are incidental to, a patient's medical care and treatment.' " Uldrych, 398 Ill. App. 3d at 699, 927 N.E.2d at 85 (quoting Brucker, 227 Ill. 2d at 523, 886 N.E.2d 306).
¶ 41 Therefore, Illinois courts have applied section 13-212(a) to bar causes of action against physicians and hospitals alleging legal theories such as negligence, breach of warranty, breach of contract, and violations of a consumer protection statute. 735 ILCS 5/13-212(a) (West 2014). In Desai, for instance, the plaintiff—whose infant daughter died after receiving a vaccination—tried to plead around the two-year statute of limitations, by amending her negligence complaint with a claim based on breach of warranty under section 2-315 of the Uniform Commercial Code or UCC. Desai v. Chasnoff, 146 Ill. App. 3d 163, 165, 496 N.E.2d 1203, 1204 (1986). The defendant physicians argued that the four-year statute of limitations provided for under the UCC did not govern, regardless of whether the plaintiff could state a valid claim for breach of warranty. Desai, 146 Ill. App. 3d at 165, 496 N.E.2d at 1204. The trial court found this persuasive, dismissed the complaint, and was affirmed on appeal, due to the plain wording of section 13-212. Desai, 146 Ill. App. 3d 163, 496 N.E.2d 1203. The appellate court reasoned, "Not only does the statute refer to causes of action based on tort or contract, but through the use of the word 'otherwise,' the legislature, we believe, clearly intended to include all malpractice claims brought against a physician in the State of Illinois, regardless of its basis." Desai, 146 Ill. App. 3d at 167, 496 N.E.2d at 1205. Similarly, in Brown, the court found that section 13-212
encompassed medical malpractice allegations that were set out in the terms of negligence and in the terms of the breach of an implied contract. Brown v. Mason, 132 Ill. App. 3d 439, 441, 477 N.E.2d 61, 63 (1985). The trial court held that the entire complaint was barred by section 13-212, because it had been filed more than four years after the plaintiff's unsuccessful surgery. Brown, 132 Ill. App. 3d at 441, 477 N.E.2d at 63. The appellate court rejected the plaintiff's argument that her implied contract count should be governed by the five-year limitations period applicable to breach of contract actions. Brown, 132 Ill. App. 3d at 441, 477 N.E.2d at 63. Similarly, in Walsh, the court ruled that the two-year medical malpractice statute of limitations trumped the three-year statute of limitations pertaining to claims relying on the Consumer Fraud and Deceptive Business Practices Act. Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 518, 649 N.E.2d 614 (1995).
¶ 42 Section 13-212 applies not only to the assorted claims in Desai, Brown, and Walsh, but also to Paul's allegations that Dr. Shaw committed medical malpractice to further a conspiracy. 735 ILCS 5/13-212(a) (West 2014). Further, because the claim against Dr. Shaw was not filed until February 19, 2016, the trial court was correct it dismissing it because it was not filed within two years of any date on which the record shows that Paul had knowledge of his alleged injury from Dr. Shaw's medical evaluations of Norma. On December 12, 2012, Paul filed his first amended complaint in the Chancery Division in which he described Dr. Shaw's participation in the chain of events that concluded with Norma revising her estate planning documents, though Paul did not name Dr. Shaw as a defendant at that time. The first amended complaint directly refers to Dr. Shaw's 2009 and 2010 evaluations and alleges that Dr. Shaw's conduct led to an unreasonable conclusion that Norma had testamentary capacity. Because Paul was aware of Dr.
Shaw's involvement in Norma's care and the injuries to Paul that purportedly resulted, Paul was required to sue Dr. Shaw within two years, by December 12, 2014.
¶ 43 Moreover, Paul knew or through the use of reasonable diligence should have known of his alleged injury when neurologist Dr. Stobnicki was deposed by Paul's lawyer on May 18, 2011. The questions that were asked disclose that Paul was aware that Norma was evaluated by Dr. Shaw for testamentary capacity on October 30, 2009 and July 26, 2010. Therefore, Paul was required to file his complaint against Dr. Shaw no later than May 18, 2013.
¶ 44 In addition, even if Paul did not know or should not have known by May 2013 or December 2014 about his injury flowing from Dr. Shaw's patient care, the statute of repose required that Paul file within four years of the termination of Dr. Shaw's patient care. Dr. Shaw's treatment of Norma concluded, at the very latest, when he issued the report entitled "Re-evaluation of Mrs. Norma Cecchini" on August 5, 2010. Therefore, the statute of repose required Paul to file against Dr. Shaw by August 5, 2014.
¶ 45 Furthermore, even if we were persuaded that Paul's allegations against Dr. Shaw are not properly categorized as medical malpractice, we would still conclude Paul's suit was untimely filed pursuant to the five-year "catch all" statute of limitations set out in section 13-205 of the Code. 735 ILCS 5/13-205 (West 2012). That statute governs, "actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued." (Emphasis supplied). 735 ILCS 5/13-205 (West 2012).
¶ 46 We also reject Paul's contention that his claim against Dr. Shaw was not actionable until Norma died. Paul sought the same damages in this Law Division suit, as he did in the earlier Chancery Division suit. This is because Paul received a vested present interest, rather than a mere expectancy, as a remainder beneficiary of Norma's trust from the moment the trust was created. In re Estate of Michalak, 404 Ill. App. 3d 75, 83, 934 N.E.2d 697, 707 (2010) ("The fact that a beneficiary's actual enjoyment of the trust res is contingent upon the settlor's death does not negate the existence of a present interest in the beneficiary during the settlor's lifetime."). The cases Paul relies upon, Wackrow v. Niemi, 231 Ill. 2d 418, 899 N.E.2d 273 (2008) and Petersen v. Wallach, 198 Ill. 2d 439, 764 N.E.2d 19 (2002), do not address the fact that a beneficiary with a remainder interest under an inter vivos revocable trust receives a vested present interest during the settlor's life.
¶ 47 Ultimately, we conclude that Paul's claims against Dr. Shaw for conspiracy and aiding and abetting a conspiracy were barred by the statute of limitation and statute of repose governing medical malpractice allegations, and were properly dismissed.
¶ 48 Given our conclusions as the arguments governed by section 2-619 of the Code, we need not reach the parties' additional arguments under section 2-615 of the Code that Paul's complaint could be dismissed because he failed to factually state claims for conspiracy, fraud, tortious inference with inheritance expectancy, and aiding and abetting. 735 ILCS 5/2-615 (West 2014).
¶ 49 Affirmed.