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                                      Appellate Court                              Date: 2018.11.01
                                                                                   16:28:31 -05'00'




                  Messmore v. Silvis Operations, LLC, 2018 IL App (3d) 170708



Appellate Court           MERTON MESSMORE, as Personal Representative of the Estate of
Caption                   Mary Messmore, Deceased, Plaintiff-Appellee, v. SILVIS
                          OPERATIONS, LLC, a Foreign Limited Liability Company, d/b/a
                          Lighthouse at Silvis, d/b/a Lighthouse of Silvis, Illinois, and
                          CYNTHIA McCOY, Individually, Defendants-Appellants.



District & No.            Third District
                          Docket No. 3-17-0708



Rule 23 order filed       March 27, 2018
Motion to publish
allowed                   April 26, 2018
Opinion filed             April 26, 2018



Decision Under            Appeal from the Circuit Court of Rock Island County, No. 15-L-150;
Review                    the Hon. Kathleen Mesich, Judge, presiding.



Judgment                  Affirmed in part and reversed in part; cause remanded.


Counsel on                David M. Macksey, Lynn M. Reid, and Matthew P. D’Avanzo, of
Appeal                    Johnson & Bell, Ltd., of Chicago, for appellants.

                          Thomas W. Dillon and Brian W. Irvin, of Konicek & Dillon, P.C., of
                          Geneva, for appellee.
     Panel                     JUSTICE SCHMIDT delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Carter and Justice Holdridge concurred in the
                               judgment and opinion.


                                                OPINION

¶1         As personal representative of his wife’s estate, plaintiff, Merton Messmore, brought
       survival claims against defendants, Silvis Operations, LLC (Silvis), and Cynthia McCoy.
       Silvis owns and operates Lighthouse of Silvis, Illinois (Lighthouse), an assisted living facility
       where McCoy works as a nurse. In a previous appeal, a panel of this court recognized Silvis’s
       contractual right to compel arbitration of plaintiff’s survival claims. Messmore v. Silvis
       Operations, LLC, 2017 IL App (3d) 160740-U.
¶2         Plaintiff later filed an amended complaint that added a wrongful death claim against Silvis.
       The trial court denied Silvis’s motion to stay the wrongful death proceedings pending
       arbitration of plaintiff’s survival claims. Silvis now appeals pursuant to Illinois Supreme Court
       Rule 307(a)(1) (eff. Nov. 1, 2016). We reverse the trial court’s judgment in part and remand for
       further proceedings consistent with this opinion.

¶3                                            BACKGROUND
¶4         Plaintiff filed his initial complaint on November 30, 2015. The complaint alleged that the
       decedent, Mary Messmore, moved into Lighthouse on November 5, 2014. Lighthouse
       employees noted that Mary suffered from “left-sided paralysis due to a recent stroke,
       degenerative joint disease, atrial fibrillation, hypertension, and was a fall risk.” Mary sustained
       two falls during her residency. After Mary’s second fall on December 1 or 2, 2014, Lighthouse
       employees found her with a “goose egg sized” hematoma on the left side of her forehead, facial
       bruising, and an abrasion on her left knee.
¶5         Lighthouse admitted Mary to Trinity Hospital on December 3. Doctors diagnosed her with
       a subdural hematoma and facial bruising. Trinity discharged her back to Lighthouse on
       December 5. Lighthouse discharged Mary on December 13. She died on January 8, 2015.
¶6         Both counts in the complaint alleged survival claims under the Probate Act of 1975
       (Probate Act) (755 ILCS 5/27-6 (West 2014)). Plaintiff claimed that defendants provided
       negligent care and negligently supervised Mary. Their negligence “directly and proximately
       caused” Mary’s injuries “and resulted in Mary experiencing injuries, pain, and suffering.”
¶7         In May 2016, defendants moved to dismiss plaintiff’s complaint. Defendants’ motion
       sought to compel mandatory mediation and, if necessary, arbitration of plaintiff’s survival
       claims pursuant to Lighthouse’s resident agreement. On August 1, the trial court granted
       defendants’ motion; the court denied plaintiff’s motion to reconsider on November 2.
¶8         On November 14, plaintiff filed an amended complaint that added a wrongful death claim
       against Silvis. The amended complaint explicitly alleged “facts common to all counts” to
       support all three causes of action. The “facts common to all counts” substantially restated the
       facts alleged in plaintiff’s initial complaint. The wrongful death claim adopted the survival
       claims’ negligence allegations but alleged defendants’ negligence proximately caused Mary’s


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       death (rather than her injuries) and caused her “lineal next of kin” (rather than Mary) to suffer
       “a loss of companionship and society, grief, sorrow, and mental suffering.”
¶9         On December 2, plaintiff filed an interlocutory appeal that challenged the trial court’s
       order dismissing the survival claims and compelling arbitration. A panel of this court, with one
       judge dissenting, affirmed the order. Messmore, 2017 IL App (3d) 160740-U. Plaintiff filed a
       petition for leave to appeal to the supreme court.
¶ 10       While plaintiff’s petition remained pending, he pursued discovery in the wrongful death
       case. Plaintiff’s counsel served Silvis with notice of plaintiff’s videotaped evidence deposition.
       When counsel sent the notice, the parties had not scheduled the arbitration date. Plaintiff is
       over 90 years old; counsel sought to secure plaintiff’s testimony in case he became ill or died
       before the case concluded. Silvis ignored plaintiff’s discovery requests and objected to taking
       his evidence deposition before the arbitration. On September 15, 2017, defendants filed a
       motion to stay the wrongful death proceedings pending resolution of the survival claims’
       arbitration. The court denied defendants’ motion: “The Court does recognize all three claims
       are identical as laid out *** in the complaint. However, [the wrongful death claim] is not
       subject to arbitration. Therefore, Defendants’ motion to stay that sole remaining claim will
       hereby be denied at this time.” This appeal followed.

¶ 11                                             ANALYSIS
¶ 12                                       I. Standard of Review
¶ 13       The parties dispute the standard of review. Normally, we review a trial court’s ruling on a
       motion to stay for an abuse of discretion. Aventine Renewable Energy, Inc. v. JP Morgan
       Securities, Inc., 406 Ill. App. 3d 757, 760 (2010). Silvis argues that the standard of review is
       de novo in cases where the parties do not dispute the facts and the trial court makes no findings
       in ruling on a motion to stay. A recent appellate court decision (Hayes v. Victory Centre of
       Melrose Park SLF, Inc., 2017 IL App (1st) 162207, ¶ 11) supports Silvis’s position.
¶ 14       We agree with defendants that our standard of review is de novo in this case but for a
       different reason. We decline to hold that we review stay rulings de novo in each case where the
       parties agree on the relevant facts and the trial court makes no findings. If the law does not
       compel a certain standard or outcome in the trial court, then no question of law exists on
       appeal.
¶ 15       This case presents a unique situation where plaintiff’s survival claims are subject to
       arbitration, his wrongful death claim is not, and he bases all three claims on the same factual
       allegations. The parties dispute whether section 2(d) of the Uniform Arbitration Act (710 ILCS
       5/2(d) (West 2016)) required the court to stay the wrongful death case proceedings as a matter
       of law. We must interpret section 2(d) to decide this case. Statutory construction presents a
       question of law subject to de novo review. Bueker v. Madison County, 2016 IL 120024, ¶ 13.
       Our standard of review is de novo in this case.

¶ 16                                 II. Construction of Section 2(d)
¶ 17       The parties disagree as to whether section 2(d) of the Uniform Arbitration Act (710 ILCS
       5/2(d) (West 2016)) applies in this case. Section 2(d) states:
                   “(d) Any action or proceeding involving an issue subject to arbitration shall be
               stayed if an order for arbitration or an application therefor has been made under this

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               Section or, if the issue is severable, the stay may be with respect thereto only. When the
               application is made in such action or proceeding, the order for arbitration shall include
               such stay.” Id.
¶ 18       Plaintiff argues that section 2(d) does not apply because no claims subject to arbitration
       remained pending in the trial court when defendants filed their September 2017 motion to stay.
       The trial court previously dismissed plaintiff’s survival claims in its order to compel
       arbitration. The parties agree that plaintiff’s wrongful death claim is not subject to arbitration.
       The trial court expressly relied on the wrongful death claim’s arbitrability (or lack thereof) in
       denying the stay.
¶ 19       Silvis argues that section 2(d) applies; it required the trial court to stay all proceedings in
       the wrongful death case. Alternatively, Silvis claims that “policies favoring arbitration” and
       “the goals of judicial economy” favor staying the wrongful death case.
¶ 20       To ascertain and effectuate the legislature’s intent in enacting section 2(d), we must
       consider the plain and ordinary meaning of its language. Bueker, 2016 IL 120024, ¶ 13.
       Section 2(d)’s language specifically addresses issues subject to arbitration, not claims. “An
       action involving an issue subject to arbitration shall be stayed with respect to that issue if
       arbitration has been ordered.” Contract Development Corp. v. Beck, 210 Ill. App. 3d 677, 679
       (1991). The statute plainly states that trial courts must stay issues subject to arbitration and may
       stay severable issues. Casablanca Trax, Inc. v. Trax Records, Inc., 383 Ill. App. 3d 183, 189
       (2008).
¶ 21       We hold that section 2(d) unambiguously requires the trial court to stay all issues subject to
       the survival claims’ arbitration. Otherwise, plaintiff could circumvent the contractual
       arbitration agreement. The remaining question is whether plaintiff’s wrongful death case
       includes issues subject to the survival claims’ arbitration.

¶ 22                                   III. Application of Section 2(d)
¶ 23       Under section 2(d), the trial court may, in its discretion, “stay the entire proceeding
       pending arbitration, or, if the [arbitrable] issue is severable, the stay may be granted with
       respect to that issue only.” Board of Managers of the Courtyards at the Woodlands
       Condominium Ass’n v. IKO Chicago, Inc., 183 Ill. 2d 66, 74-75 (1998). As a corollary, the trial
       court must stay issues that are not severable from those pending arbitration. Here, each cause of
       action relies on the same factual allegations. However, wrongful death and survival actions
       require plaintiffs to prove different elements.
¶ 24       Section 27-6 of the Probate Act (Survival Act) allows decedents’ representatives to
       maintain statutory or common law actions that accrue before the decedent’s death. See 755
       ILCS 5/27-6 (West 2014); Advincula v. United Blood Services, 176 Ill. 2d 1, 42 (1996).
       Plaintiff’s survival claims maintain Mary’s pre-death negligence claims. Plaintiff must prove
       the traditional negligence elements—that defendants breached their duty of care and that their
       negligence proximately caused Mary’s injuries during her life. The available damages
       compensate Mary’s injuries (i.e., medical bills and conscious pain and suffering). See Murphy
       v. Martin Oil Co., 56 Ill. 2d 423, 431 (1974); Ellig v. Delnor Community Hospital, 237 Ill.
       App. 3d 396, 401 (1992).
¶ 25       Wrongful death claims accrue when the decedent’s death is “caused by wrongful act,
       neglect or default” that subjects the acting party to liability. 740 ILCS 180/1 (West 2014).


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       Although wrongful death claims incorporate negligence law (see Williams v. Manchester, 228
       Ill. 2d 404, 421-22 (2008); Welch v. Davis, 410 Ill. 130, 132 (1951)), they differ from survival
       claims in two ways: (1) the proximate cause element addresses the cause of the decedent’s
       death, rather than the decedent’s pre-death injuries (Chambers v. Rush-Presbyterian-St. Luke’s
       Medical Center, 155 Ill. App. 3d 458, 464-65 (1987)) and (2) the available damages
       compensate the surviving spouse and next of kin’s pecuniary losses sustained due to the
       decedent’s death (740 ILCS 180/2 (West 2014); Glenn v. Johnson, 198 Ill. 2d 575, 583
       (2002)).
¶ 26        Plaintiff’s amended complaint alleges that the same negligent conduct caused Mary’s
       injuries and her death. To prevail on any of his claims, plaintiff must prove that defendants’
       conduct breached their duty of care to Mary. This issue is not severable. Section 2(d) of the
       Uniform Arbitration Act (710 ILCS 5/2(d) (West 2016)) therefore requires the trial court to
       stay any proceedings regarding defendants’ negligence in plaintiff’s wrongful death case,
       pending the result of the survival claims’ arbitration. This requirement also means that
       plaintiff’s wrongful death case may not proceed to trial before the survival claims’ arbitration
       concludes; neither the court nor the jury can decide the case without considering the
       negligence element.
¶ 27        Although the trial court must stay proceedings regarding defendants’ negligence in
       plaintiff’s wrongful death case, proximate cause and damages issues are severable from the
       issues pending arbitration. The trial court may exercise its sound discretion in determining
       whether to stay these severable issues. See IKO Chicago, Inc., 183 Ill. 2d at 74-75. We do not
       find that the trial court abused its discretion by declining to stay these issues. Due to plaintiff’s
       advanced age, staying all proceedings in the wrongful death case could unjustly prevent him
       from testifying or offering evidence regarding his damages. On remand, the court may allow
       discovery (including plaintiff’s deposition) on the severable proximate cause and damages
       issues in the wrongful death case.

¶ 28                                          CONCLUSION
¶ 29       Based on the foregoing, we reverse the judgment of the Rock Island County circuit court in
       part, affirm it in part, and remand for further proceedings consistent with this opinion.

¶ 30       Affirmed in part and reversed in part; cause remanded.




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