Wilson v. Edward Hospital

ILLINOIS OFFICIAL REPORTS

Supreme Court

Wilson v. Edward Hospital, 2012 IL 112898

Caption in Supreme BRANDON WILSON et al., Appellants, v. EDWARD HOSPITAL et al.

Court: (Edward Hospital, Appellee).

Docket No. 112898

Filed December 13, 2012

Held A partial summary judgment that defendant doctors were not defendant

(Note: This syllabus hospital’s actual agents was not a res judicata bar when, after a voluntary

constitutes no part of dismissal, the complaint was refiled to allege apparent agency—no

the opinion of the court violation of the rule against claim splitting.

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the Second District; heard in that

Review court on appeal from the Circuit Court of Du Page County, the Hon.

Hollis L. Webster, Judge, presiding.

Judgment Appellate court judgment reversed.

Cause remanded.

Counsel on Michael W. Rathsack, of Chicago (Michael P. Cogan, of counsel), for

Appeal appellants.

Mary N. Nielsen and Hugh C. Griffin, of Hall, Prangle & Schoonveld,

LLC, of Chicago, for appellee.

Justices JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Brandon Wilson and Daphne Wilson, brought an action for medical

malpractice in the circuit court of Du Page County against defendant Edward Hospital, two

doctors and their practice groups, and a nurse for injuries allegedly caused to Brandon during

surgery to repair a broken leg. Pertinent to this appeal, plaintiffs alleged that the two doctors

were agents of the hospital. The trial court granted partial summary judgment to the hospital

on the ground that the two doctors were not the hospital’s actual agents. The court found a

question of fact to exist as to whether the doctors were the hospital’s apparent agents.

Plaintiffs voluntarily dismissed their complaint. Subsequently, they refiled their complaint,

alleging that the doctors were the hospital’s apparent agents. The hospital moved to dismiss

on the grounds that the trial court’s earlier finding that the doctors were not the hospital’s

actual agents was a final judgment on the merits and that res judicata therefore barred the

refiled action. The trial court denied the motion, but certified a question to the appellate court

pursuant to Supreme Court Rule 308 (eff. Feb. 1, 1994) on the issue of whether actual agency

and apparent agency are separate claims for purposes of res judicata and the prohibition

against claim-splitting, thereby barring the refiling of the complaint based on apparent

agency. The appellate court answered the certified question in the affirmative. 2011 IL App

(2d) 110085-U. This court granted plaintiffs leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,

2010).

¶2 BACKGROUND

¶3 In 2003, plaintiff Brandon Wilson, who was then a minor, broke his right femur in an

automobile accident. He was taken to defendant Edward Hospital, where surgery was

performed to repair the fractured bone. During surgery, Brandon aspirated vomit into his

lungs, causing cardiac arrest which resulted in an anoxic brain injury.

¶4 In 2004, Brandon and his mother, Daphne, filed a complaint for medical malpractice.

Their complaint alleged that the surgery was not of an emergency nature and that the doctors

were negligent in failing to provide for a sufficient period of fasting prior to performing

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surgery on Brandon. Plaintiffs alleged that all persons working at the hospital were

employees and/or agents of the hospital. In a single count of their second amended

complaint, plaintiffs alleged that each of the defendant doctors was an “agent in law or in

fact” of the hospital and that the hospital was liable for the wrongful acts and omissions of

the doctors. The hospital filed a motion for partial summary judgment, arguing that the

doctors were neither its actual nor its apparent agents. The trial court granted partial summary

judgment on the ground that the doctors were not actual agents of the hospital. The court

found that a question of fact existed as to whether the doctors were the apparent agents of the

hospital. In 2009, plaintiffs voluntarily dismissed their complaint pursuant to section 2-1009

of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2008)). One year later,

plaintiffs refiled their action. In their third amended complaint, they alleged, as to the

hospital, that both doctors acted as apparent agents of the hospital. The hospital moved to

dismiss, citing this court’s decision in Hudson v. City of Chicago, 228 Ill. 2d 462 (2008). The

hospital argued that plaintiffs’ refiled action was barred by res judicata because (1) a final

judgment on the merits was rendered on plaintiffs’ actual agency claim; (2) the causes of

action against the hospital pleaded in the original and refiled actions are identical; and (3)

there is an identity of parties. Thus, according to the hospital, since res judicata bars every

matter that might have been raised or determined in the first action, plaintiffs’ apparent

agency claims were barred.

¶5 The trial court denied the hospital’s motion to dismiss but granted its motion for an order

certifying the following question of law under Rule 308:

“Are actual agency and apparent agency separate claims for purposes of the res

judicata doctrine and the prohibition against claim-splitting set forth by the Supreme

Court in Hudson v. City of Chicago, 228 Ill. 2d 462 (2008) and Rein v. David A.

Noyes & Co., 172 Ill. 2d 325 (1996), so that a summary judgment entered on the

actual agency claims in plaintiff’s initial suit bars plaintiff’s apparent agency claims

in this refiled suit, even in the face of a ruling that there is a question of fact as to the

apparent agency claims?”

¶6 The appellate court answered the certified question in the affirmative, holding that actual

agency and apparent agency are separate claims subject to the bar of res judicata and the

prohibition against claim-splitting. In doing so, the appellate court followed Rein and Hudson

and an appellate decision, Williams v. Ingalls Memorial Hospital, 408 Ill. App. 3d 360

(2011). The appellate court here rejected plaintiffs’ argument that they had only a single

claim for negligence based upon vicarious liability that was supported in different ways by

allegations of actual agency and apparent agency. It also rejected their argument that the trial

court’s determination that as a matter of law, the doctors were not the actual agents of the

hospital, did not affect the unitary nature of the negligence claim. 2011 IL App (2d) 110085-

U.

¶7 ANALYSIS

¶8 A certified question under Rule 308 presents a question of law, which we review de novo.

Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010).

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¶9 The issue before us is whether res judicata and the prohibition against claim-splitting bar

plaintiffs’ refiled action due to the trial court’s order granting partial summary judgment in

the first action on plaintiffs’ allegation that the defendant doctors were actual agents of the

hospital. The doctrine of res judicata provides that a final judgment on the merits rendered

by a court of competent jurisdiction acts as an absolute bar to a subsequent action between

the same parties or their privies involving the same claim, demand, or cause of action. The

bar extends not only to all matters that were actually decided but also to those matters that

could have been decided in the prior action. Nowak v. St. Rita High School, 197 Ill. 2d 381,

389 (2001); River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998). Three

requirements must be met for res judicata to apply: (1) a final judgment on the merits

rendered by a court of competent jurisdiction; (2) identity of cause of action; and (3) identity

of parties or their privies. DeLuna v. Treister, 185 Ill. 2d 565, 572 (1999).

¶ 10 A cause of action is defined by the facts that give rise to a right to relief. Though one

group of facts may give rise to a number of different theories of recovery, there remains a

single cause of action. People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill.

2d 285, 295 (1992).

“ ‘If the same facts are essential to the maintenance of both proceedings or the same

evidence is needed to sustain both, then there is identity between the allegedly

different causes of action asserted and res judicata bars the latter action.’ ” Id.

(quoting Morris v. Union Oil Co. of California, 96 Ill. App. 3d 148, 157 (1981)).

¶ 11 In holding that res judicata barred plaintiffs’ refiled suit, the appellate court relied on two

decisions of this court, Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), and Hudson

v. City of Chicago, 228 Ill. 2d 462 (2008). In Rein, the plaintiffs’ complaint alleged

fraudulent misrepresentation concerning the nature of certain securities sold to the plaintiffs.

Their complaint sought recovery under a variety of theories, including common law fraud

and rescission. The trial court granted the defendants’ motion to dismiss the rescission counts

of the complaint on statute of limitations grounds. The trial court denied the plaintiffs’

motion for leave to amend their complaint to allege equitable estoppel and declined to make

a finding under Supreme Rule 304(a) to allow plaintiffs to appeal. The plaintiffs thereafter

voluntarily dismissed the remaining counts of their complaint and appealed the dismissal of

the rescission counts. The appellate court affirmed the dismissal. Rein, 172 Ill. 2d at 329-30.

The plaintiffs subsequently refiled their action against the defendants. The complaint in the

refiled action was virtually identical to the prior complaint, the only material difference being

that the rescission counts alleged that the defendants were equitably estopped from raising

defenses based on the statutes of limitation and repose. The defendants filed a motion to

dismiss the complaint on res judicata grounds. The trial court granted the motion. Id. at 331-

32. The appellate court affirmed, holding that the dismissal of the rescission counts of the

first complaint was a final judgment on the merits and that the plaintiffs had a single cause

of action because the same set of facts gave rise to both the rescission and common law fraud

counts. Thus, the appellate court concluded that the plaintiffs had violated the rule against

claim-splitting by attempting to litigate the rescission and common law counts in separate

suits. Id. at 332-33.

¶ 12 This court affirmed. The court initially concluded that the dismissal of the rescission

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counts was a final judgment on the merits under Supreme Court Rule 273. Thus, the final

judgment on those counts would bar subsequent actions involving the same claims or

demands. Id. at 335-36. The court rejected the plaintiffs’ argument that because there was

no identity of cause of action between the two suits, res judicata could not bar the common

law counts. The court noted that the two complaints raised the same theories of recovery and

that there was a single set of operative facts common to both suits, i.e., that the defendants

fraudulently misrepresented the nature of securities they sold to the plaintiffs. Since the same

set of facts was necessary to maintain and prove both cases, the causes of action were

identical for purposes of res judicata. The principle that res judicata prohibits a party from

later seeking relief on the basis of issues that might have been raised in the prior action also

prevents a litigant from splitting a single cause of action into more than one proceeding.

Thus, since the plaintiffs could have litigated the common law counts in the first action, the

claims were barred by res judicata. Id. at 339-40. The rule against claim-splitting is founded

on the premise that litigation should have an end and that no person should unnecessarily be

harassed with a multiplicity of lawsuits. The court noted that exceptions to the rule against

claim-splitting exist, but that none of the exceptions applied to the plaintiffs’ case. Id. at 340-

41.

¶ 13 This court in Rein also rejected the plaintiffs’ argument that sections 2-1009 and 13-217

of the Code gave them an absolute right to refile the voluntarily dismissed counts. The court

stated that these statutory sections should not be read to automatically immunize a plaintiff

against the bar of res judicata or other legitimate defenses a defendant may raise in response

to a refiled action. Accepting the plaintiffs’ argument would undermine the public policy

underlying res judicata, which is to protect the defendant from harassment and the public

from multiple litigation. In addition, plaintiffs would be able to circumvent a trial court’s

refusal to make a Rule 304(a) finding, thus emasculating the rule. Id. at 342-43.

¶ 14 Subsequently, this court found Rein controlling in Hudson v. City of Chicago, 228 Ill. 2d

462 (2008). There, the plaintiffs filed a complaint against the municipal defendants, alleging

negligence and willful and wanton misconduct in responding to an emergency call regarding

their son. The defendants moved to dismiss the negligence count, claiming immunity. The

trial court granted the motion and dismissed the negligence count with prejudice. Thereafter,

the trial court granted the plaintiffs’ motion for voluntary dismissal of the willful and wanton

misconduct count. The plaintiffs later refiled their action, alleging one count of willful and

wanton misconduct. The trial court granted the defendants’ motion to dismiss on the basis

that the refiled action was barred by res judicata. The appellate court affirmed. Id. at 464-65.

¶ 15 This court rejected the plaintiffs’ argument that res judicata did not apply because there

was no adjudication on the merits of the willful and wanton misconduct count. This court

noted that the trial court had dismissed the negligence count and that an involuntary

dismissal under Rule 273, other than for lack of jurisdiction, for improper venue, or for

failure to join an indispensable party, operates as an adjudication on the merits. Once the

voluntary dismissal was entered, the original action was terminated and all final orders

became immediately appealable. Id. at 467-68. The court found Rein to be directly applicable

and, after applying Rein’s analysis, concluded that the plaintiffs’ refiled action was barred

by res judicata. Id. at 473-74.

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¶ 16 The appellate court here also relied on Williams. In that case, the appellate court was

presented with two certified questions. One question asked whether the plaintiff’s refiled

action was barred by res judicata where summary judgment was entered in the original

action against the plaintiff on an allegation that the defendant doctor was the apparent agent

of the defendant hospital and the plaintiff thereafter voluntarily dismissed the remainder of

the case. Id. at 363. After the plaintiffs refiled their action, the defendants sought summary

judgment on res judicata grounds. The trial court denied the motion. In denying the

defendants’ motion to reconsider, the trial court noted that the order in the first action,

prepared by the defendants, only addressed the apparent agency issue and made no finding

on actual agency. Thus, the trial court opined that apparent agency was an alternative theory

for respondeat superior liability of the hospital and not a distinct claim. Id. at 367. The

appellate court disagreed, concluding that vicarious liability based on apparent agency is a

distinct claim and theory of recovery necessitating different elements of proof from

respondeat superior liability based on employment or actual agency. Thus, the grant of

summary judgment was a final order that disposed of a definite and separate portion of the

controversy. The court nonetheless found that the plaintiffs were not barred from bringing

their refiled action, invoking an exception to the rule against claim-splitting due to the

defendants’ failure to move for summary judgment on the actual agency claim. Id. at 374.

¶ 17 We now turn to the issue in this case. Plaintiffs argue that there is only one cause of

action against the hospital in this case, that of negligence based upon vicarious liability, and

proving that the doctors were agents of the hospital is just one step in the process of

establishing the hospital’s liability. Plaintiffs note that they must also prove that the doctors

violated the standard of care and that plaintiffs were injured as a result of that violation.

According to plaintiffs, agency is not in itself a cause of action; rather, it is an element of

proof that they must establish. The hospital argues that actual agency and apparent agency

are separate and distinct causes of action. In its brief, the hospital argues that there are

fundamental differences between actual agency and apparent agency. Each involves different

elements of proof and they are separate and distinct stand-alone theories of recovery.

¶ 18 To prove that the hospital is liable for the actions and omissions of the allegedly

negligent doctors, plaintiffs were required to prove that the doctors were either the actual

agents or the apparent agents of the hospital. Proof of actual agency, or respondeat superior,

requires a showing that (1) a principal/agent, master/servant, or employer/employee

relationship existed; (2) the principal controlled or had the right to control the conduct of the

alleged employee or agent; and (3) the alleged conduct of the agent or employee fell within

the scope of the agency or employment. See Oliveira-Brooks v. Re/Max International, Inc.,

372 Ill. App. 3d 127, 134 (2007). To establish apparent agency, a plaintiff must prove that

(1) the principal or its agent acted in a manner that would lead a reasonable person to

conclude that the individual who was alleged to be negligent was an employee or agent of

the principal; (2) the principal had knowledge of and acquiesced in the acts of the agent; and

(3) the plaintiff acted in reliance upon the conduct of the principal or its agent, consistent

with ordinary care and prudence. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,

525 (1993).

¶ 19 Initially, we determine whether the trial court’s summary judgment order finding that the

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defendant doctors were not the actual agents of the hospital was a final judgment on the

merits for purposes of res judicata. An order is final if it either terminates the litigation

between the parties on the merits or disposes of the rights of the parties, either on the entire

controversy or a separate branch thereof. Hull v. City of Chicago, 165 Ill. App. 3d 732, 733

(1987). The summary judgment entered by the trial court here did not end the litigation.

Thus, the question is whether the order finding that the doctors were not the hospital’s actual

agents disposed of the rights of the parties on a separate branch of the controversy. We

conclude that it did not.

¶ 20 The appellate court’s decision in Hull is instructive. There, the plaintiff’s decedent was

killed when a car crossed the median of the road and collided with the decedent’s car. The

plaintiff filed a two-count complaint against the city of Chicago, alleging a single claim of

negligence. Count I alleged negligence in maintaining and repairing the roadway. The alleged

negligent acts were described in multiple subparagraphs within a paragraph of count I. Count

II alleged that the action survived under the survivorship statute. The trial court dismissed

all but one of the subparagraphs describing alleged acts of negligence. The trial court made

a Rule 304(a) finding and the plaintiff appealed. The appellate court dismissed the appeal for

lack of jurisdiction. The court observed that the statement of a single claim in several ways

by multiple subparagraphs does not warrant a separate appeal on less than all of the

subparagraphs. The order of dismissal merely determined which allegations of negligence

would be allowed to remain. The appellate court noted that Rule 304(a) was not intended to

permit appeals from nonfinal orders that dispose of less than all of the issues in an action

involving a single party and a single claim. Hull, 165 Ill. App. 3d at 733-34.

¶ 21 In Rice v. Burnley, 230 Ill. App. 3d 987 (1992), the plaintiff filed a multicount complaint

alleging negligence in failing to install smoke detectors in a condominium unit and the

common areas of the building. Some counts alleged wrongful-death and survival actions

against the defendants. Other counts were based upon a theory of res ipsa loquitur. The trial

court dismissed four of the counts and made a Rule 304(a) finding that there was no just

reason for delaying enforcement or appeal of the order. The plaintiff appealed. Id. at 990. The

appellate court dismissed the appeal for lack of jurisdiction, concluding that the trial court’s

order of dismissal of some of the counts of the complaint did not dispose of the rights of the

parties on a separate branch of the controversy and the order was therefore not final. The

court noted that “[a]n order disposes of a separate branch of a controversy when the bases

for recovery of the counts which are dismissed are different from those which are left

standing. [Citations.] This may occur when the grounds for recovery under the various counts

arise from different statutes or common law doctrines or when different elements are

required to recover under different theories. [Citation.]” Id. at 991. The appellate court noted

that the plaintiff had advanced only one theory of recovery, i.e., negligence, and that she must

establish the same elements with respect to every count of her complaint. While the

dismissed counts and the remaining counts alleged different acts and omissions, they all

advanced the same theory of recovery. Thus, the dismissal of only some of the counts did not

determine the merits of a separate claim and was therefore not a final order. Id. at 992.

¶ 22 In Piagentini v. Ford Motor Co., 387 Ill. App. 3d 887 (2009), the plaintiff was injured

in an auto accident and sued Ford, alleging negligence and strict liability in separate counts.

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In each count, the plaintiff included allegations that his vehicle lacked an adequate seatbelt

system and was insufficiently stable and subject to rolling over. The trial court granted partial

summary judgment as to the stability/rollover allegations and granted the plaintiff leave to

file an amended complaint including only the seatbelt allegations. The plaintiff filed an

amended complaint, but later voluntarily dismissed it. He then refiled his complaint and Ford

filed a motion for summary judgment based on res judicata. The trial court granted the

motion. Id. at 888-90. The appellate court reversed, holding that the grant of partial summary

judgment as to allegations within the counts of the plaintiff’s complaint did not constitute

a final order on two grounds: no actual count of the complaint was dismissed and the order

granted the plaintiff leave to replead the remaining allegations. With respect to the first

ground, the appellate court distinguished this court’s decisions in Rein and Hudson, noting

that there, whole counts had been dismissed, whereas in Piagentini only certain allegations

had been dismissed, but both counts remained standing as bases for recovery. The dismissal

of certain allegations under one theory of recovery merely determines which allegations

under that theory are allowed to remain. Thus, the order was not final. Id. at 893-94.

¶ 23 The appellate court in the instant case distinguished Piagentini and relied instead on

Williams. We conclude that Williams was incorrectly decided. The Williams court held that

vicarious liability based upon apparent agency was a separate claim for purposes of res

judicata. The court opined that vicarious liability based upon apparent agency is a “distinct

claim and theory of recovery necessitating different elements of proof from respondeat

superior liability based on employment or actual agency.” Id. at 369. The court went on to

note the different facts necessary to prove apparent agency as opposed to actual agency, and

it observed that after the trial court granted summary judgment on the apparent agency

allegations, there were no remaining allegations supporting liability based upon apparent

agency. Thus, the order was final, as it disposed of a definite and separate portion of the

controversy. Id. at 371.

¶ 24 We conclude that actual agency and apparent agency are not causes of action and that

Williams erred in treating allegations of apparent agency as a separate and distinct cause of

action. We overrule Williams to the extent it is inconsistent with our decision here. In the

instant case, as in Williams, plaintiffs have alleged a negligence cause of action in which they

contend that the defendant doctors breached their duty of care to Brandon, thereby causing

him injury and resulting damages. Without the underlying cause of action for negligence

against the doctors, plaintiffs would have no legal claim against the hospital. Plaintiffs do not

claim that the hospital itself had any role in the allegedly negligent acts. Rather, plaintiffs

claim that the hospital is liable for the doctors’ negligence due exclusively to the hospital’s

role as principal. It is clear that plaintiffs could not sue the hospital for vicarious liability in

any of its forms because vicarious liability is not itself a claim or cause of action. Whether

one is vicariously liable for the acts of another depends upon establishing a relationship

between the allegedly negligent actor and the alleged principal. To establish that relationship,

the plaintiff must prove certain facts, just as the plaintiff must prove facts establishing duty,

breach of duty, proximate cause, and damages. Actual and apparent agency are merely part

of the duty analysis in a case where the plaintiff seeks to hold the principal liable for the

agent’s alleged negligence. In the same manner in which the plaintiff in Piagentini was

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foreclosed from grounding liability on the dismissed allegations of vehicle instability and

rollover, plaintiffs here were foreclosed from alleging that the hospital was liable based on

a theory of actual agency. If the order of partial summary judgment in this case disposed of

a separate branch of the controversy, an argument may be made that any order dismissing

only some allegations as to liability would be a final judgment for res judicata purposes. In

both scenarios, the plaintiff would be foreclosed from proving liability based upon the

dismissed allegations.

¶ 25 We reject the hospital’s argument that actual agency and apparent agency are “separate

and distinct, stand-alone legal theories of recovery,” thus each constituting a separate cause

of action. Initially, we note that the hospital appears to equate “theory of recovery” with

“claim” and “cause of action.” If the hospital is correct that actual agency and apparent

agency are separate claims, then plaintiffs did not split a single claim or cause of action when

they voluntarily dismissed their complaint and later refiled it, and the rule of Rein and

Hudson would not apply. A single cause of action may give rise to several theories of

recovery. Burris, 151 Ill. 2d at 295; River Park, 184 Ill. 2d at 311. However, a theory of

recovery is not a cause of action as this court has defined it. In this connection, we also note

that Black’s Law Dictionary defines “claim” as “[t]he aggregate of operative facts giving rise

to a right enforceable by a court.” Black’s Law Dictionary 281 (9th ed. 2009). Thus, “claim”

and “cause of action” are synonymous.

¶ 26 We hold that apparent agency and actual agency are not separate claims for purposes of

res judicata and that no final order was entered here. Plaintiffs have one claim or cause of

action against the hospital, i.e., negligence based upon the hospital’s responsibility for the

allegedly negligent acts of the defendant doctors. The trial court’s grant of partial summary

judgment on actual agency merely removed some of the allegations against the hospital from

the case. Allegations of agency remain in the case. Plaintiffs still may be able to prove the

hospital liable for negligence based upon their remaining allegations of apparent agency. The

trial court’s grant of partial summary judgment did not dispose of the rights of the parties on

a separate branch of the controversy. Therefore, the order was not final for res judicata

purposes, and plaintiffs were not barred from asserting their allegations of apparent agency

in their refiled action.

¶ 27 CONCLUSION

¶ 28 For the reasons stated, we reverse the appellate court’s judgment and remand this cause

to the circuit court for further proceedings.

¶ 29 Appellate court judgment reversed.

¶ 30 Cause remanded.

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