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    MICHIGAN WACKER ASSOCIATES, LLC, Plaintiff and Counterdefendant-Appellant, v. CASDAN, INC., Defendant and Counterplaintiff-Appellee.
    No. 1-17-1222
    Appellate Court of Illinois, First District, THIRD DIVISION.
    February 28, 2018 Rehearing denied March 30, 2018
    Lawrence M. Benjamin, of Neal, Gerber & Eisenberg, LLP, of Chicago, for appellant.
    Robert P. Conlon, Robert P. Arnold, and Cassandra L. Jones, of Walker Wilcox Matousek, LLP, of Chicago, for appellee.
   JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 This dispute arises from a lease entered into between landlord Michigan Wacker Associates, LLC (landlord), and tenant Casdan, Inc. (tenant). Landlord maintains that tenant failed to exercise its option to extend the lease term while tenant asserts the opposite. Before the trial court, both parties sought declarations supporting their respective positions and filed cross-motions for summary judgment. The trial court entered judgment in favor of tenant, and landlord now appeals. For the following reasons, we reverse the trial court's judgment and remand for the court to enter judgment in favor of landlord.

¶ 2 I. Background

¶ 3 A. The Lease

¶ 4 In 2001, the parties entered into a lease for landlord's property located at 75 East Wacker Drive in Chicago. Tenant was to operate a restaurant under the name Bella! Bacino's. The lease was to expire on December 31, 2011, but provided two options to extend the lease:

"Tenant shall have the option to extend the term of this Lease for two additional five (5) year periods (the first five (5) year extension option shall hereinafter be referred to as the 'First Extension Option' and the second five (5) year extension option shall hereinafter be referred to as the 'Second Extension Option'). * * * The option to renew shall be exercised with respect to the entire Demised Premises only and shall be exercisable by Tenant delivering the Extension Notice to Landlord, in the case of the First Extension Option, on or prior to January 1, 2011 and in the case of the Second Extension Option, on or prior to January 1, 2016, in all cases, time being of the essence."

Additionally, the parties would determine the rent amount for any extension by considering the fair market rent for comparable restaurants at that time. If the parties could not agree on such amount within 10 days of tenant's exercise of an option, either party could demand arbitration.

¶ 5 Article 27 of the lease governed notice:

"Except as otherwise expressly provided in this Lease, any * * * notices * * * or other communications given or required to be given under this Lease * * * shall be deemed sufficiently given or rendered only if in writing, * * * sent by registered or certified mail (return receipt requested) addressed to Landlord at Landlord's address set forth in this Lease, with a copy to Masterworks Development Corporation, 56 West 45th Street, 4th Floor, New York, New York 10036, Attention: Jon D. Horowitz, Esq.; or * * * to such other address as * * * Landlord * * * may designate as its new address for such purpose by notice given to the other in accordance with the provisions of this Article 27."

Landlord's address was Michigan Wacker Associates, LLC, "c/o Masterworks Development Corporation at 555 Fifth Avenue, Suite 1400, New York, New York, 10017." We note that Masterworks Development Corporation (Masterworks) controlled landlord's operations.

¶ 6 The lease also contained two sections limiting landlord's ability to waive lease terms (collectively referred to as the no-waiver clause). In short, the lease provided that landlord could waive strict performance of a lease term only by executing a written instrument to that effect and, even then, waiver of one breach would not result in the waiver of subsequent breaches.

¶ 7 B. The Parties' Correspondence

¶ 8 On November 9, 2010, tenant, through attorney Harold Rosen, sent landlord a letter labeled, "Extension Notice for First Extension Term & Notice of Change of Additional Addresses for purpose of Notice." The letter stated, "Tenant hereby gives landlord this Extension Notice that Tenant has elected to exercise the First Extension Option granted in the Lease and does so with respect to the entire Demised Premises." Notwithstanding that the notice was sent via Federal Express rather than registered or certified mail, landlord did not dispute that tenant effectively exercised the first option to extend the lease to December 31, 2016. As of 2012, well after the first extension option was exercised, the parties were still negotiating the rent amount for that period.

¶ 9 On August 16, 2012, tenant, through Rosen, e-mailed Horowitz, who was landlord's representative and Masterworks' general counsel. The e-mail addressed matters tenant "would like to discuss," "would like to resolve" or "would propose." Rosen stated that he "would like to discuss" reaching an agreement for the rent amount and "would also like to discuss with you the improvements that the tenant would like to make with assistance from the Landlord." Additionally, "[t]enant would propose" that landlord match tenant's contributions to construction. A list of "[o]ther points tenant would like to resolve" included the following:

"We are now in the first of two (2) five (5) year options. Tenant would like to exercise the second option now, so we don't have to do this again as soon. It may be better to simply convert both options to a ten (10) year extension term. The ten (10) year period will better enable amortization of Landlord's contribution to improvements. We would also like to add a five (5) year option at the end of the lease."

Rosen concluded, "Please contact me to discuss the tenant's proposal."

¶ 10 Rosen identified the proposal e-mail as tenant's exercise of the second option. In his deposition, he testified that the notice "wasn't pretty" but it was "sufficient." He also testified that the parties had previously deviated from the lease's notice provisions. According to Rosen, it did not make sense to tender the same type of notice as he had with the first option because landlord did not insist on formal notice and the parties were discussing other things. Rosen was looking for a comprehensive solution to all outstanding issues and clarified that tenant had wanted to exercise the second option immediately so that the parties would not have to negotiate rent again, which would benefit both parties. Rosen further testified it was beneficial to tenant to exercise the second extension option in 2012 and determine the rent for that period, in order to amortize tenant's contribution to improvements over a longer period.

¶ 11 Tenant's CEO, Linda Bacin, testified in her deposition that she exercised the second extension option in 2012 as part of a larger plan. Tenant planned on investing in improvements to the property, which would have warranted more than one five-year option. Bacin testified that she asked Rosen to exercise the second option in 2012 and never doubted tenant's right to continue operating at that location until December 31, 2021.

¶ 12 In contrast, Horowitz testified that while tenant could exercise the option at any time before January 1, 2016, it was not clear from the proposal e-mail that tenant was purporting to do so because the e-mail repeatedly identified items that tenant or Rosen "would like." Horowitz also observed that Rosen referred to the letter as a proposal and required changes to the current lease. Similarly, Masterworks employee Adam Bahna testified in his deposition that he viewed the proposal e-mail only as an informal proposal. Adam testified, "This is a letter asking for a bunch of stuff as part of a rent negotiation for the first extension." He testified that the proposals were "all part of a package."

¶ 13 On October 16, 2012, Adam wrote an e-mail to Ralph Bahna, Masterworks' CEO, and sent a copy to Horowitz. The e-mail addressed the unresolved rent amount and stated that landlord would deny tenant's request for landlord to pay for half of the improvements to the property. Adam stated, "They want to exercise their 2nd option now. The answer is no. They want to add another 5 year option to the lease. The answer is no." According to Adam, he did not intend for his comments to indicate he believed that tenant had exercised the second option.

¶ 14 Six days later, on October 22, 2012, Horowitz wrote to Rosen on landlord's behalf. "Your letter dated August 16, 2012 covers a number of points which I am responding to in order." Horowitz addressed, among other things, the unresolved rent amount and tenant's request for landlord to contribute toward improvements. Horowitz also stated:

"Option Periods: The Landlord wants to follow the existing lease and not have the Tenant exercise their 2nd option now. The Landlord is also unwilling to add an additional 5 year option period to the lease."

Horowitz testified that his statement was a response to only one of several requests made in the proposal e-mail, not an acknowledgment that tenant was purporting to exercise the second option. Tenant took the opposite position, however. Moreover, Bacin testified that Rosen told her the lease did not allow landlord to reject her exercise of the option.

¶ 15 According to Rosen, he subsequently spoke to Horowitz on the telephone:

"I * * * pointed out that the landlord didn't have a choice in the matter, but that I could understand. If he didn't want to negotiate the rent with the second extension now, that would be okay with me as long as I didn't have to serve another notice. And my recollection is, he said okay. Because if I had insisted that it be now and not yielded to his desire to negotiate it later, then, according to the lease, he would have like ten days to start something with respect to the rent that would ultimately put us in arbitration if-if we couldn't agree."

Horowitz, however, submitted an affidavit denying that such conversation occurred or that he told Rosen additional notice was unnecessary. On November 26, 2012, Horowitz e-mailed Rosen, stating, "the rent and the term of the lease are, and must be, kept as two separate issues."

¶ 16 Almost three years later, on October 7, 2015, Bacin e-mailed Horowitz, asking him to advise her "of the process for notifying Masterworks of my intent to exercise the next option on our lease at 75 East Wacker Drive." Horowitz responded the same day: "A letter on company stationery to me should suffice. I'll need to see how we calculate rent." Horowitz testified that it would no longer make sense for Bacin to send a letter to the address in the lease, which was Ralph's address. Ralph died in 2014. Despite Horowitz advising Bacin of an acceptable process, tenant did not tender a letter to Horowitz on company stationery.

¶ 17 Meanwhile, Masterworks' manager, Francis Longo, asked Adam if tenant had notified landlord that it would extend the lease. Longo stated, "Per the Lease Precis, they have to notify us by January 1st, 2016. The expiration Date of First Extension Term is 12/31/16." Adam responded that he had not been notified.

¶ 18 Bacin testified that in May 2016, which we note was after the deadline for exercising the second option, landlord began showing the property to potential lessees. She had not thought about the second option again until then. Bacin e-mailed Horowitz on May 10, 2016. After discussing recent personal difficulties, she stated as follows:

"Please know that I do want to stay as a tenant it was my understanding that we had exercised the options in our lease in the letter prior. If that is not the case please know that I still do want to stay. * * * I understand that it's likely the rent may increase and I fully understand the need for renovation as I had hoped we would've extended the lease the last time and fully renovated at that time."

Horowitz responded within the hour, telling her to call at her convenience.

¶ 19 Three days later, Horowitz told Bacin to have Rosen call him. She responded that Rosen would meet with her the following week but asked Horowitz to "[p]lease let me know [sic ] next steps." On June 1, 2016, Bacin apologized to Horowitz for not responding the week before. She stated, "My position has not changed. I want to renew my lease, I am interested and wanting to reinvest in the space and will work with you to assure that Bacinos is a long term asset to the building." Meanwhile, Bacin learned landlord was informing other individuals who worked in the building that tenant had not renewed its lease, and she engaged Donald Manikas to represent tenant. On July 18, 2016, Manikas wrote to Horowitz, asserting that tenant had already exercised the second option.

¶ 20 Horowitz responded the next day. He stated that landlord was surprised to learn that tenant believed it had exercised the second extension option, thereby extending the lease to December 31, 2021, because landlord had not received written notice complying with the lease. "In accordance with Article 27 of the Lease, please provide us with evidence that such notice has been delivered to Landlord as required under the clear and unambiguous terms of the Lease." Approximately one month later, Manikas responded that Rosen tendered written notice in 2012.

¶ 21 C. The Pleadings

¶ 22 Landlord then commenced this action, seeking a declaration that tenant did not exercise the second extension option and that, consequently, the lease would expire on December 31, 2016. Landlord later added counts for breach of contract as well as forcible entry and detainer.

¶ 23 In response, tenant filed a counterclaim seeking a declaration that it effectively exercised the second extension option, thereby extending the lease until December 31, 2021. Tenant also filed an answer identifying Rosen's proposal e-mail as tenant's exercise of the second extension option. Tenant added that landlord waived the right to assert that the option was not exercised because (1) landlord knew of tenant's intent to exercise it and (2) did not notify tenant until July 2016 that landlord believed the second option was not exercised. Furthermore, "tenant relied on [landlord's] words and actions that [landlord] knew and accepted that [tenant] exercised its rights regarding the Second Extension Option to its detriment." Tenant raised equitable estoppel based on the same facts.

¶ 24 We note that, contrary to tenant's suggestion, neither its counterclaim nor its answer alleged landlord had established a practice of accepting notice that deviated from the method prescribed by the lease or that landlord had waived the right to strict compliance as a result. We further note that tenant's pleadings did not refer to the alleged telephone conversation between Rosen and Horowitz.

¶ 25 In reply, landlord denied tenant's affirmative defenses and denied that tenant provided proper notice exercising the second option. Landlord also stated that it had no obligation to notify tenant of its failure to exercise the option. Landlord's pleadings did not, however, mention the no-waiver clause.

¶ 26 The parties filed cross-motions for summary judgment with respect to the second extension option. Landlord argued, among other things, that it was entitled to strict compliance with the terms of the option but tenant failed to send the proposal e-mail to landlord's address and did not send notice via certified or registered mail. In any event, the proposal e-mail did not constitute a definite, unequivocal, and unconditional exercise of the option to renew for a second five-year period because that proposal was sent as part of negotiations over the rent amount for the first extension period, which landlord construed as an argument toward establishing a better deal. Landlord further argued that additional matters were raised in the proposal e-mail and tenant stated only that it "would like" to exercise the option. Once again, landlord did not mention the no-waiver clause.

¶ 27 In contrast, tenant maintained that the proposal e-mail was clear, unconditional, and sufficient to exercise the second option. Additionally, Adam and Horowitz were aware of that email, and actual notice was sufficient. Tenant further argued that equitable considerations warranted summary judgment. While tenant observed that landlord only recently asserted that notice was ineffective due to technical deficiencies, we note that tenant's summary judgment pleadings did not assert waiver on that basis. Moreover, tenant did not attempt to rely on the disputed telephone conversation.

¶ 28 Following a hearing, the trial court entered summary judgment in favor of tenant on its counterclaim and landlord's declaratory judgment count, finding that the proposal e-mail was a clear and unambiguous exercise of the second option. The court also found that Bacin's subsequent e-mail asking how to exercise the second option did not negate that. We note that while tenant had argued at this hearing that landlord had a practice of forgoing strict compliance and had "abandoned" it, tenant did not specifically raise "waiver" on that basis. Nonetheless, the court determined that landlord waived strict compliance with the requisite method of notice based on the same reasoning. Despite that determination, landlord did not bring the lease's no-waiver clause to the court's attention.

¶ 29 II. ANALYSIS

¶ 30 On appeal, landlord challenges the trial court's summary judgment ruling, asserting among other things that tenant failed to strictly comply with the lease's notice requirements and that the proposal e-mail did not constitute an unequivocal exercise of the second option. Both parties have also raised numerous instances of waiver.

¶ 31 We review the trial court's summary judgment ruling de novo . Genesco, Inc. v. 33 North LaSalle Partners, L.P. , 383 Ill. App. 3d 115, 118, 321 Ill.Dec. 504, 889 N.E.2d 769 (2008). Accordingly, we review the court's judgment, not its reasoning. Morningside North Apartments I, LLC, v. 1000 N. La Salle, LLC , 2017 IL App (1st) 162274, ¶ 10, 412 Ill.Dec. 433, 75 N.E.3d 413. Summary judgment is appropriate where the pleadings, admissions, depositions, and affidavits reveal no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Id.

¶ 32 A. Strict Compliance v. Actual Notice

¶ 33 Our supreme court's seminal decision in Dikeman v. Sunday Creek Coal Co. , 184 Ill. 546, 56 N.E. 864 (1900), remains the leading authority on this options matter. The contractually mandated time for performance is generally an essential term of a contract. Id. at 550, 56 N.E. 864. Unless that term is waived, an option is lost due to untimeliness. Id. Discussing the nature of the option before it, Dikeman stated, "[t]he agreement was purely a privilege given to the lessee without any corresponding right or privilege of the lessor, and the only stipulation was that the right should be exercised at a certain time." Id. at 551, 56 N.E. 864.

¶ 34 Since Dikeman , courts have generally required strict compliance with options. See Genesco, Inc. , 383 Ill. App. 3d at 119, 321 Ill.Dec. 504, 889 N.E.2d 769 ; see also T.C.T. Building Partnership v. Tandy Corp. , 323 Ill. App. 3d 114, 115, 119, 120, 256 Ill.Dec. 82, 751 N.E.2d 135 (2001) (treating the method for exercising an option as a condition precedent requiring strict compliance). Strict compliance is dictated not only by precedent, but by the needs of commercial transactions and fairness. Thomson Learning, Inc. v. Olympia Properties, LLC , 365 Ill. App. 3d 621, 629, 302 Ill.Dec. 877, 850 N.E.2d 314 (2006). Options to cancel or extend commercial leases are invaluable to a lessee, and a lessor generally does not receive consideration for the lessor's agreement to be bound by an exercise of the option. Id. Thus, a lessor may insist on a writing to further certainty as the lessor forgoes other opportunities to lease the space. Id. at 630, 302 Ill.Dec. 877, 850 N.E.2d 314. Courts have also recognized that a lessee should be strictly held to the agreed terms because the parties to commercial leases are usually sophisticated. Genesco, Inc. , 383 Ill. App. 3d at 119, 321 Ill.Dec. 504, 889 N.E.2d 769.

¶ 35 Consequently, actual or oral notice is insufficient to exercise an option where a party has failed to provide timely written notice. Id. ; Thomson Learning, Inc. , 365 Ill. App. 3d at 627, 302 Ill.Dec. 877, 850 N.E.2d 314. Instead, such notice "is just another way of highlighting Tenant's failure to strictly comply." (Internal quotation marks omitted.) Genesco, Inc. , 383 Ill. App. 3d at 119-20, 321 Ill.Dec. 504, 889 N.E.2d 769 (quoting Thomson Learning, Inc. , 365 Ill. App. 3d at 633, 302 Ill.Dec. 877, 850 N.E.2d 314 ). Furthermore, cases finding actual notice to be sufficient outside the options context have no bearing on notice in options cases. Thomson Learning, Inc. , 365 Ill. App. 3d at 629, 302 Ill.Dec. 877, 850 N.E.2d 314 ; Epton v. CBC Corp. , 48 Ill. App. 2d 274, 281, 197 N.E.2d 727 (1964) (observing that "[a]n option agreement is a unilateral agreement governed by rules of law entirely distinct from those applicable to bilateral contracts"); cf. Vole, Inc. v. Georgacopoulos , 181 Ill. App. 3d 1012, 1019, 131 Ill.Dec. 17, 538 N.E.2d 205 (1989) (where a tenant admittedly received his landlord's notification that the landlord objected to the tenant's signage, the reviewing court stated that "[i]n general, the object of notice is to inform the party notified, and if the information is obtained in any way other than formal notice, the object of notice is attained").

¶ 36 Here, no one suggests that landlord waived the deadline for exercising the second option. In addition, tenant does not dispute that it failed to strictly comply with the method of notice prescribed by the lease. Instead, tenant argues that actual notice is a sufficient substitute for the lease requirements and landlord waived strict compliance with the requisite method of notice. See T.C.T. Building Partnership , 323 Ill. App. 3d at 120, 256 Ill.Dec. 82, 751 N.E.2d 135 (stating that conditions in the form of a notice required can be waived by the party whom the requirement was intended to benefit).

¶ 37 Dikeman and its progeny clearly defeat tenant's assertion that actual notice is sufficient. In any event, landlord disputes that it had actual notice. We also categorically reject any reliance on Rosen's testimony that Horowitz orally agreed to waive notice. As tenant recognizes, a party waives any theories not raised before the court during summary judgment proceedings. US Bank, National Ass'n v. Avdic , 2014 IL App (1st) 121759, ¶ 34, 381 Ill.Dec. 254, 10 N.E.3d 339 ; see also Frederick v. Professional Truck Driver School, Inc. , 328 Ill. App. 3d 472, 479, 262 Ill.Dec. 535, 765 N.E.2d 1143 (2002) (finding on appeal from summary judgment for the defendant that the plaintiff waived an issue by failing to raise it in his complaint or otherwise raise it before the trial court). In addition, none of tenant's pertinent pleadings addressed the alleged conversation. Rosen's testimony was also contradicted by Horowitz, creating a factual dispute that would preclude summary judgment on that basis.

¶ 38 Assuming, without deciding, that (1) tenant did not waive its assertion that landlord waived strict compliance through a practice of forgoing lease requirements, (2) landlord did in fact waive strict compliance with the method of notice prescribed by the lease, and (3) landlord waived reliance on the no-waiver clause, we would nonetheless find the proposal e-mail did not constitute an effective exercise of the second option. Any notice found in the proposal e-mail was equivocal at best.

¶ 39 The acceptance of an offer contained in an option must be specific, certain, and unconditional. See Wentcher v. Busby , 98 Ill. App. 3d 775, 783, 53 Ill.Dec. 860, 424 N.E.2d 651 (1981). In determining whether an option was effectively exercised, we must construe the purported exercise in context. See Morris v. Goldthorp , 390 Ill. 186, 196, 60 N.E.2d 857 (1945) (stating that "[i]n construing this sentence, those words obviously must be considered, not only with the balance of the sentence in which they are found, but with all the language which follows them"); Department of Public Works & Buildings v. Halls , 35 Ill. 2d 283, 286-87, 220 N.E.2d 167 (1966) (considering a purported exercise of an option in its entirety). When considered in context, no landlord would have reasonably understood the proposal e-mail and tenant's statement that it "would like to exercise the second option now" as purporting to contemporaneously and unconditionally exercise the second option.

¶ 40 As stated, the proposal e-mail referred to matters tenant "would like to discuss," "would like to resolve," or "would propose." Tenant stated that it "would like" to exercise the second option now, not that it was purporting to do so. Compare Department of Public Works & Buildings , 35 Ill. 2d at 284, 286, 220 N.E.2d 167 (finding a purported acceptance of an option was equivocal and added a new condition even where the acceptance stated, " 'YOU ARE HEREBY NOTIFIED that I have elected to exercise the option to purchase the real estate' "), with Gaskins v. Walz , 409 Ill. 40, 44, 97 N.E.2d 798 (1951) (finding acceptance of an option to be unequivocal where it stated, " 'You are hereby notified that the option contained in said lease to purchase said property for the sum of $17,500.00 is hereby exercised' "). Furthermore, the e-mail arose in the course of lengthy negotiations over the rent amount for the first extension period and proposed that landlord contribute toward improvements as well as grant a third option to extend the lease. The e-mail concluded by collectively referring to the matters therein as one proposal. Rosen testified it was accurate to say he was looking for a comprehensive solution to all of the parties' outstanding issues. That is precisely how one would understand the e-mail.

¶ 41 Rosen testified it was beneficial to tenant to exercise the second extension option in 2012 in order to amortize contribution improvements over a longer period. Bacin testified that tenant planned on investing in improvements to property, which would have warranted more than one five-year option. A landlord reading the proposal e-mail would not comprehend that tenant intended to exercise the option even if tenant's other proposals were rejected. While Bacin denied that tenant wanted to exercise the second option only if the parties could set a rent amount for that second period, a landlord examining the e-mail in question would have no means of deducing that. Cf. Oliva v. Amtech Reliable Elevator Co. , 366 Ill. App. 3d 148, 152-53, 303 Ill.Dec. 358, 851 N.E.2d 256 (2006) (finding that where the parties' agreement setting forth the option was silent as to notice, the law did not require any and the tenant exercised the option by remaining in possession of the property). To be clear, we do not find the proposal e-mail was equivocal for the reason that it deviated from the notice exercising the first extension option. Indeed, different language may have permitted tenant to unequivocally exercise the second option. The language that tenant used in the proposal e-mail, however, did not.

¶ 42 Contrary to tenant's suggestion, Adam's subsequent statement-that tenant and its representatives wanted to "exercise their 2nd option now"-was entirely consistent with an understanding that tenant was informally proposing to exercise the second option as part of a larger plan. Adam stated only that tenant wanted to exercise the option, not that tenant had done so. Furthermore, Horowitz's statement to Rosen-that "The Landlord wants to follow the existing lease and not have the Tenant exercise their 2nd option now"-did not constitute an improper attempt to reject tenant's exercise of the option. Tenant had to have exercised the option before landlord could attempt to reject it. Moreover, tenant has cited no legal authority supporting its suggestion that landlord had a duty to notify tenant that it had failed to exercise the option. Surely, tenant, rather than landlord, was in the best position to proactively protect its contractual rights.

¶ 43 B. Equitable Relief

¶ 44 Finally, the record does not show that equitable relief would be appropriate under these circumstances. Equitable relief is available where time is not of the essence, but where time is of the essence, courts will hold parties to their agreement. Dikeman , 184 Ill. at 550, 56 N.E. 864. In addition, Dikeman observed that neither fraud, mistake, nor accident led the lessee in that case to fail to timely avail itself of its option; instead, the lessee identified only the negligence of its agent. Id. at 551, 56 N.E. 864 ; see also Genesco, Inc. , 383 Ill. App. 3d at 128, 321 Ill.Dec. 504, 889 N.E.2d 769 (Theis, J., specially concurring) (stating that "the holding of Dikeman , that Illinois courts will never exercise their equitable powers to relieve negligent or careless failures to timely and properly comply with the terms of an option, is still the law"); but see Ceres Terminals, Inc. v. Chicago City Bank & Trust Co. , 117 Ill. App. 3d 399, 402, 405, 72 Ill.Dec. 860, 453 N.E.2d 735 (1983) (stating that Dikeman held only that undue hardship must be shown before equity will assist the negligent and that no undue hardship was established in Dikeman ). The supreme court concluded, "[the lessee] lost its legal right by failing to comply with the condition precedent, and we do not see how equity can relieve against mere forgetfulness." Dikeman , 184 Ill. at 551, 56 N.E. 864.

¶ 45 After Dikeman , other panels of this court have applied a three-part test to determine if equitable relief may cure the ineffective exercise of an option. See Thomson Learning, Inc. , 365 Ill. App. 3d at 633, 302 Ill.Dec. 877, 850 N.E.2d 314 ; but see Genesco, Inc. , 383 Ill. App. 3d at 126-28, 321 Ill.Dec. 504, 889 N.E.2d 769 (Theis, J., specially concurring) (expressing doubt as to whether Illinois has adopted the aforementioned three-part test for determining whether equity can relieve a party from failing to strictly comply). Yet, we find Dikeman 's clear language precludes equitable relief where an option contract indicates that time is of the essence or where a contracting party loses its legal right through the negligence of its agent or mere forgetfulness. But see Linn Corp. v. LaSalle National Bank , 98 Ill. App. 3d 480, 481, 483-84, 53 Ill.Dec. 885, 424 N.E.2d 676 (1981) (finding equitable relief to be appropriate where renewal options were granted in return for the tenant making substantial improvements and untimely notice of renewal would not cause substantial hardship, despite that the untimeliness resulted from the tenant's carelessness).

¶ 46 Here, the lease stated that time was of the essence. This alone would foreclose equitable relief. Although credibility judgments are inappropriate at the summary judgment stage, we further note that a trier of fact could find that tenant failed to timely exercise the second option due to inattention on the part of Bacin and/or Rosen.

¶ 47 III. Conclusion

¶ 48 Tenant's proposal e-mail did not constitute unequivocal, unconditional notice that tenant was exercising the option. Additionally, equitable relief was unavailable where the lease provided that time was of the essence. Because tenant failed to provide timely notice that it was exercising the second option to extend the lease term, the lease expired. Accordingly, landlord, rather than tenant, is entitled to summary judgment.

¶ 49 For the foregoing reasons, we reverse and remand for the trial court to enter summary judgment in favor of landlord, and against tenant, and to address landlord's remaining counts.

¶ 50 Reversed and remanded.

Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the judgment and opinion.

      Tenant's fact section is argumentative and at times inaccurate, in violation of Illinois Supreme Court Rule 341(h)(6) (eff. Nov. 1, 2017). While we decline to take any action here, we remind tenant that reviewing courts may strike an improper statement of facts or dismiss an appeal where warranted. Szczesniak v. CJC Auto Parts, Inc. , 2014 IL App (2d) 130636, ¶ 8, 386 Ill.Dec. 723, 21 N.E.3d 486.

      The trial court entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

      The parties have failed to differentiate between the concepts of waiver and forfeiture. Notwithstanding this inaccuracy, we follow suit and use the term "waiver" throughout. See Gallagher v. Lenart , 226 Ill. 2d 208, 229, 314 Ill.Dec. 133, 874 N.E.2d 43 (2007) (stating that waiver is an intentional relinquishment of a known right whereas forfeiture constitutes the failure to timely assert a right).


source: Caselaw Access Project

license: Public Domain

text:
    Kelli Ritschel BOEHLE, Individually and as Administrator of the Estate of Nikolas Ritschel, Deceased, Plaintiff-Appellee, v. OSF HEALTHCARE SYSTEM, d/b/a Saint Anthony Medical Center-Rockford and d/b/a OSF Medical Group; Bernard E. O'Malley, M.D.; Roy K. Werner, M.D.; Rockford Radiology Associates, P.C. ; Joseph P. Micho, M.D.; Michael G. Myers, M.D., Eric Trefelner, M.D., Inc., d/b/a Nightshift Radiology; and Marshall P. Mallory, M.D., Defendants-Appellants.
    No. 2-16-0975
    Appellate Court of Illinois, Second District.
    Opinion filed March 7, 2018
    Julie A. Teuscher, of Cassiday Schade LLP, of Chicago, for appellants Michael G. Myers, M.D., Eric Trefelner, M.D., Inc., and Marshall P. Mallory, M.D.
    Hinshaw & Culbertson LLP, of Chicago (Joshua G. Vincent, Jeffry S. Spears, Daniel E. Wiesch, and Carson R. Griffis, of counsel), for appellants OSF Healthcare System, Bernard O'Malley, M.D., and Roy K. Werner, M.D.
    Cunningham, Meyer & Vedrine, PC, of Warrenville (Kevin J. Vedrine, Thomas J. Tomasik, and Robert L. Larsen, of counsel), for other appellants.
    Robert P. Sheridan, Keith A. Hebeisen, Bradley M. Cosgrove, and Susan A. Capra, of Clifford Law Offices, P.C., of Chicago, for appellee.
   JUSTICE SPENCE delivered the judgment of the court, with opinion.

¶ 1 In this appeal involving a medical malpractice case, we address the following questions certified pursuant to Illinois Supreme Court Rule 308 (eff. July 1, 2017):

"(1) Does Supreme Court Rule 219(e) prevent the use of a voluntary dismissal to avoid the consequences of a court order denying plaintiff's motion to disclose an additional Supreme Court Rule 213(f)(3) witness as untimely, or does it only prevent the use of a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery violations or other misconduct?
(2) Does Supreme Court Rule 219(e) prevent a party from disclosing new expert witnesses in a refiled action who were not identified in Rule 213(f)(3) disclosures by a court-ordered deadline in an original action as an abuse of the voluntary dismissal process in order to avoid the consequences of orders in the original action?"

¶ 2 Although the questions seem to call for straightforward answers through their either/or and yes/no phrasing, our interpretation of Illinois Supreme Court Rule 219(e) (eff. July 1, 2002) and consideration of relevant case law preclude such a result. Regarding the first question, we conclude that nothing in Rule 219(e) prevents a plaintiff from attempting to use a voluntary dismissal to avoid the consequences of a court order denying the plaintiff's motion to disclose an additional witness, or to avoid the effect of court-ordered sanctions for discovery violations or other misconduct. However, the trial court has the discretion to sanction the plaintiff for misconduct or unreasonable noncompliance by ordering expenses paid to the defendant as a condition of granting the voluntary dismissal, and the trial court could additionally or alternatively bar or limit witnesses and/or evidence in the refiled action. As to the second question, we conclude that Rule 219(e) does not prevent the plaintiff from disclosing a new expert witness in a refiled action. Still, it is within the trial court's discretion whether to bar or otherwise limit that witness's testimony in the refiled case.

¶ 3 I. BACKGROUND

¶ 4 On February 4, 2011, plaintiff, Kelli Ritschel Boehle, and her son, Nikolas Ritschel, filed a medical negligence lawsuit against several defendants for allegedly failing to timely diagnose and treat Nikolas's sarcoma of the spine, allegedly resulting in the spread of the cancer and the increased likelihood of premature death. The trial court initially set a trial date of July 9, 2012. Nikolas passed away on March 9, 2012, and on May 29, 2012, plaintiff filed a first amended complaint, individually and on behalf of Nikolas's estate. She thereafter disclosed four expert witnesses, pursuant to defendants' Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) interrogatories, who would each opine that defendants' alleged deviations from the standard of care proximately caused Nikolas's death.

¶ 5 Plaintiff retained new counsel, and on January 16, 2014, the trial court granted plaintiff's motion for leave to supplement her Rule 213(f)(3) disclosures, over defendants' objections; she was to disclose her new experts by March 1, 2014. Plaintiff's supplemental Rule 213(f)(3) disclosures named two additional witnesses who would testify as to causation.

¶ 6 On August 7, 2014, the trial court rescheduled the trial date to September 14, 2015. It ordered that all of plaintiff's expert witnesses be deposed by September 18, 2014. Defendants were to disclose their expert witnesses by November 18, 2014, and their depositions were to be completed by February 18, 2015. Defendants later disclosed a total of 12 expert witnesses.

¶ 7 On June 25, 2015, plaintiff mailed notice of a motion to supplement her Rule 213(f)(3) disclosures to add Leonard Wexler, a pediatric oncologist, to testify as to causation. Defendants objected, and the trial court denied plaintiff's motion on July 23, 2015. It stated that, when plaintiff had switched law firms earlier, she had been given leave to name two new experts. However, the case had now been pending for four years, all of the experts had been deposed, and trial was two months away. The alleged failure to diagnose Nikolas's cancer was the theory of the case from the beginning, and plaintiff had chosen to name surgeons and neurosurgeons, as opposed to oncologists, as experts, which was a matter of trial strategy. The trial court noted that plaintiff previously had ample opportunity to name an oncology expert if she felt that one was needed, but "now it's too late, trial is upon us."

¶ 8 Less than one month later, on August 19, 2015, the trial court granted plaintiff's motion to voluntarily dismiss the suit without prejudice.

¶ 9 On December 9, 2015, plaintiff refiled her case against the same defendants. She subsequently moved to disclose 10 experts, including Dr. Wexler and 4 other experts not named in the original action. Defendants moved to strike the motion, arguing that Rule 219(e) prohibited plaintiff from using a voluntary dismissal to avoid compliance with the trial court's July 23, 2015, discovery order, which denied her leave to name Dr. Wexler as a witness. Defendants argued that plaintiff should also not be allowed to name the other new expert witnesses.

¶ 10 On June 22, 2016, the trial court denied defendants' motion to strike. It stated as follows. Plaintiff dismissed her original action as "a strategic voluntary dismissal * * * because [she] was not allowed to disclose Dr. Wexler * * * because we were too close to trial." Plaintiff dismissed her initial action in order to be able to name her choice of experts in the refiled action, including Dr. Wexler. However, Rule 219(e) did not prohibit "dismissing a case for strategic reasons and then naming a new or additional expert upon re-filing." To bar plaintiff's new expert witnesses under Rule 219(e), the trial court would have to find "discovery violations in the prior case," "misconduct in the prior case," or "a deliberate disregard of the court's authority in the underlying case," none of which was present. It did "not see any reason under Supreme Court Rule 219(e) to bar the plaintiffs [sic ] from viewing this as a new case and for strategic reasons naming some new and additional expert witnesses." To rule otherwise would be to read conditions into section 2-1009 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1009 (West 2016) (allowing voluntary dismissals) ). However, the trial court would reserve ruling on whether two of the newly named experts, a radiologist and a neurosurgeon, were cumulative witnesses.

¶ 11 Defendants then sought to certify the aforementioned questions for immediate appeal under Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016). At the hearing on the motion to certify, the trial court stated that the situation at hand involved a recurring issue. It stated:

"[Plaintiff] voluntarily dismissed [her] case when I denied [her] request to name a new additional expert witness, this oncologist. I made that ruling at the time and I stand by it because it was too late. We were very close to the final pretrial conference. * * * I denied it in my discretion. And then [she] made [her] motion for voluntary dismissal.
I have no doubt and I've even said it on the record * * * I call it a strategic voluntary dismissal. * * * [She] wants to name a couple of new experts in this newly filed case and so I have to look at where, where it was in the litigation and I felt like, again, in my discretion, after reviewing Supreme Court Rule 219(e), * * * there was nothing preventing [her] from doing that. I don't think [she] was violating any orders that I had entered in the previous case. In particularly [sic ], * * * it's important to the Court that [she] wasn't doing anything that was going to save [her] case from an imminent defeat and by that I mean summary judgment or directed verdict.
* * *
And so, I, in every case, look at where * * * are we along the path to trial?
And in this particular case I didn't feel that we were far enough long [sic ] the path to trial in the prior case to say that [plaintiff] could not voluntarily dismiss, refile, and name a couple of new experts. I felt that was in my discretion. I allowed it."

The trial court stated that the issue defendants raised in their proposed certified questions was whether its ruling improperly allowed plaintiff to avoid the effects of its order denying her motion for leave to add Dr. Wexler as an expert witness. The issue involved the interplay of section 2-1009, Rule 219(e), and a trial court's discretion to make discovery rulings when a case is refiled. Therefore, the trial court granted the motion to certify, over plaintiff's objection.

¶ 12 We initially denied defendants' application for leave to appeal. However, on May 24, 2017, our supreme court issued a supervisory order directing us to vacate our denial of defendants' application and to consider the questions certified by the trial court. We followed the supreme court's directive and granted defendants leave to appeal.

¶ 13 II. ANALYSIS

¶ 14 Rule 308 allows for the permissive interlocutory appeal of an order involving "a question of law as to which there is substantial ground for difference of opinion" and where "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Ill. S. Ct. R. 308 (eff. July 1, 2017). Our review is generally limited to answering the questions certified, as opposed to examining the propriety of an underlying trial court order. Combs v. Schmidt , 2015 IL App (2d) 131053, ¶ 6, 400 Ill.Dec. 734, 48 N.E.3d 1174. Because a certified question under Rule 308 presents a question of law, our review is de novo . Bowman v. Ottney , 2015 IL 119000, ¶ 8, 400 Ill.Dec. 640, 48 N.E.3d 1080.

¶ 15 Section 2-1009(a) of the Code ( 735 ILCS 5/2-1009(a) (West 2016) ) allows a plaintiff to voluntarily dismiss his or her action without prejudice at any time before trial or hearing begins, provided that the plaintiff provides notice to each party and pays costs. "When a party complies with the requirements of section 2-1009(a), her right to a voluntary dismissal without prejudice is, with very limited exceptions, unfettered." Smith v. Bartley , 364 Ill. App. 3d 725, 727, 301 Ill.Dec. 632, 847 N.E.2d 642 (2006). Section 13-217 of the Code ( 735 ILCS 5/13-217 (West 2016) ) permits a plaintiff to refile a voluntarily dismissed action within one year of the dismissal date.

¶ 16 Defendants do not dispute that a plaintiff has the right to voluntarily dismiss and refile his or her action. Rather, the parties disagree about a plaintiff's ability to name witnesses in a refiled action who were not previously named or were named untimely. This question involves the interpretation of Rule 219(e), which is titled "Voluntary Dismissals and Prior Litigation" and provides:

"A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, expert witness fees, reproduction costs, travel expenses, postage, and phone charges." Ill. S. Ct. R. 219(e) (eff. July 1, 2002).

The committee comments to the rule state:

"Paragraph (e) addresses the use of voluntary dismissals to avoid compliance with discovery rules or deadlines, or to avoid the consequences of discovery failures, or orders barring witnesses or evidence. This paragraph does not change existing law regarding the right of a party to seek or obtain a voluntary dismissal. However, this paragraph does clearly dictate that when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred. The consequences of noncompliance with discovery deadlines, rules or orders cannot be eliminated by taking a voluntary dismissal. Paragraph (e) further authorizes the court to require the party taking the dismissal to pay the out-of-pocket expenses actually incurred by the adverse party or parties. * * * Paragraph (e) does not provide for the payment of attorney fees when an action is voluntarily dismissed." Ill. S. Ct. R. 219(e), Committee Comments (rev. June 1, 1995).

¶ 17 We construe supreme court rules according to the same principles that govern the interpretation of statutes. Ferris, Thompson & Zweig, Ltd. v. Esposito , 2017 IL 121297, ¶ 22, 418 Ill.Dec. 242, 90 N.E.3d 400. Our primary goal is to ascertain and give effect to the drafters' intent, which is best indicated by the plain and ordinary meaning of the language used. Id. We will interpret a rule such that no part of it is rendered meaningless or superfluous, and we will not depart from the rule's plain language by reading into it exceptions, limitations, or conditions that conflict with the drafters' expressed intent. Id. If the rule's language is ambiguous or susceptible to more than one reasonable interpretation, we may look to the committee comments for guidance in ascertaining the reason and purpose for the rule. A.M. Realty Western L.L.C. v. MSMC, L.L.C. , 2016 IL App (1st) 151087, ¶ 73, 402 Ill.Dec. 681, 52 N.E.3d 602. The interpretation of a rule presents a question of law, which we review de novo . Doe v. Coe , 2017 IL App (2d) 160875, ¶ 10, 416 Ill.Dec. 114, 83 N.E.3d 612.

¶ 18 Defendants OSF Healthcare System; Bernard E. O'Malley, M.D.; and Roy K. Werner, M.D. (collectively OSF defendants), argue that Rule 219(e)'s plain language prohibits a party from avoiding compliance with discovery deadlines or orders by voluntarily dismissing a lawsuit and that the committee comments likewise state that the rule prohibits the use of voluntary dismissals to avoid complying with discovery orders.

¶ 19 OSF defendants cite Jones v. Chicago Cycle Center , 391 Ill. App. 3d 101, 330 Ill.Dec. 298, 908 N.E.2d 150 (2009), and Valdovinos v. Luna-Manalac Medical Center, Ltd. , 328 Ill. App. 3d 255, 271, 262 Ill.Dec. 147, 764 N.E.2d 1264 (2002), as examples of cases where the appellate court held that Rule 219(e) allows a court to impose sanctions or bar evidence when a plaintiff uses the right to voluntarily dismiss the lawsuit as a means to avoid the consequences of an order excluding evidence. In Jones , the plaintiffs sought to obtain additional opinion testimony from one of their experts, based on the decline in the primary plaintiff's condition. Jones , 391 Ill. App. 3d at 103-04, 330 Ill.Dec. 298, 908 N.E.2d 150. The trial court questioned why the plaintiffs had not previously disclosed the decline or their plan to elicit new opinion testimony from an expert last deposed two years before. Id. at 104, 330 Ill.Dec. 298, 908 N.E.2d 150. The trial court stated that based on the trial date it was "too late" to disclose additional opinion testimony, but it continued the defendants' motion in limine to bar the testimony until after the deposition. Id. The plaintiffs moved to voluntarily dismiss their case the next day. Id. The trial court found that the plaintiffs sought a voluntary dismissal in order to avoid the trial court's rulings on motions in limine and to avoid witnesses and evidence being barred as untimely. Id. at 114, 330 Ill.Dec. 298, 908 N.E.2d 150. The trial court ordered the plaintiffs to pay costs of over $180,000 as a condition of granting their motion for a voluntary dismissal. Id. at 106, 330 Ill.Dec. 298, 908 N.E.2d 150. The appellate court affirmed, stating that, although the record did not show "that plaintiffs deliberately violated case management, preservation or protective orders or failed to comply with the court's discovery orders or deadlines," the trial court clearly found that they were using the voluntary dismissal " 'to avoid the consequences of discovery failures or orders barring witnesses or evidence.' " (Emphasis omitted.) Id. at 114, 330 Ill.Dec. 298, 908 N.E.2d 150 (quoting Ill. S. Ct. R. 219(e), Committee Comments (rev. June 1, 1995) ).

¶ 20 In Valdovinos , the trial court similarly granted the plaintiffs' motion for a voluntary dismissal but ordered them to pay costs of over $100,000 to the defendants. Valdovinos , 328 Ill. App. 3d at 263-64, 262 Ill.Dec. 147, 764 N.E.2d 1264. The appellate court affirmed, stating that the assessment of expenses was proper "where the plaintiffs exercised their right to voluntarily dismiss the action without prejudice in order to avoid the effects of pretrial evidentiary rulings based on their own failure to comply with discovery deadlines." Id. at 271, 262 Ill.Dec. 147, 764 N.E.2d 1264. In particular, due to untimely disclosures, the plaintiffs were barred from presenting certain witnesses and from using a computer animated videotape. Id.

¶ 21 OSF defendants note that, like the trial courts in Jones and Valdovinos , the trial court here originally excluded Dr. Wexler's testimony because plaintiff had disclosed him "too late" and it found that plaintiff had voluntarily dismissed her lawsuit to avoid the consequences of that discovery order. OSF defendants argue that the trial court wrongly believed that it could bar Dr. Wexler's testimony under Rule 219(e) only if it found that plaintiff had committed "discovery violations in the prior case," "misconduct in the prior case," or "a deliberate disregard of the court's authority in the underlying case." OSF defendants argue that, although Rule 219(e) requires the trial court to consider "any misconduct" in the prior case ( Ill. S. Ct. R. 219(e) (eff. July 1, 2002) ), it does not require misconduct before relief may be imposed. OSF defendants maintain that case law provides that "unreasonable noncompliance" or "misconduct" is sufficient to justify imposing costs or other sanctions under Rule 219(e). See Jones , 391 Ill. App. 3d at 115, 330 Ill.Dec. 298, 908 N.E.2d 150 ; see also Ramos v. Kewanee Hospital , 2013 IL App (3d) 120001, ¶ 112, 372 Ill.Dec. 564, 992 N.E.2d 103 ; Scattered Corp. v. Midwest Clearing Corp. , 299 Ill. App. 3d 653, 659, 234 Ill.Dec. 1, 702 N.E.2d 167 (1998). OSF defendants point out that in Jones the trial court equated unreasonable noncompliance with the plaintiffs voluntarily dismissing their case to avoid the consequences of discovery orders. Jones , 391 Ill. App. 3d at 115, 330 Ill.Dec. 298, 908 N.E.2d 150.

¶ 22 OSF defendants argue that those cases in which Rule 219(e) relief was found to be inappropriate involved situations where either there was no discovery order that the plaintiff sought to avoid through voluntary dismissal or the trial court did not find that the dismissal was designed to avoid an adverse discovery ruling. See In re Marriage of Webb , 333 Ill. App. 3d 1104, 1106, 267 Ill.Dec. 640, 777 N.E.2d 443 (2002) (trial court erred in assessing expenses against the plaintiff as a condition for allowing her to voluntarily dismiss her action, because it did not make a preliminary determination that she engaged in discovery misconduct); Scattered Corp. , 299 Ill. App. 3d at 660-61, 234 Ill.Dec. 1, 702 N.E.2d 167 (trial court erred in imposing expenses for voluntary dismissal, because it made no finding of misconduct or unreasonable noncompliance with any court order).

¶ 23 OSF defendants argue that the trial court's ruling in this case contradicts Rule 219(e)'s express purpose, as the rule states that a party "shall not be permitted to avoid compliance with discovery * * * orders * * * by voluntarily dismissing a lawsuit." Ill. S. Ct. R. 219(e) (eff. July 1, 2002). They argue that, by imposing the additional requirement of violations or misconduct, the trial court inadvertently encouraged the very gamesmanship that Rule 219(e) seeks to prohibit. See Scattered Corp. , 299 Ill. App. 3d at 660, 234 Ill.Dec. 1, 702 N.E.2d 167 (" Rule 219(e) targets those strategic and tactical litigation decisions which, having crossed the line of vigorous advocacy, become decisions aimed no longer at besting the opposing party but rather at undermining the integrity of the judicial system."). OSF defendants contend that we should answer both certified questions by holding that Rule 219(e) prohibits a strategic voluntary dismissal designed to avoid the effect of an order denying as untimely a plaintiff's motion to disclose an expert witness in prior litigation.

¶ 24 Defendants Michael G. Myers, M.D.; Eric Trefelner, M.D., Inc., d/b/a Nightshift Radiology; and Marshall P. Mallory, M.D. (Nightshift defendants), present arguments similar to those of OSF defendants. They argue that Rule 219(e)'s plain language prohibits a party from avoiding compliance with discovery deadlines and court orders by voluntarily dismissing a lawsuit and that the rule is not limited to circumstances where a party is guilty of misconduct. They argue that Rule 219(e)'s committee comments are similarly unambiguous. Nightshift defendants argue that the trial court's order denying defendants' motions to bar Dr. Wexler and the other new expert witnesses in the refiled action allowed plaintiff to accomplish precisely what Rule 219(e) prohibits, i.e. , avoiding compliance with discovery deadlines and court orders by voluntarily dismissing a lawsuit. Nightshift defendants cite our supreme court's statement that, "[i]nstead of limiting a party's right to voluntarily dismiss his claims without prejudice prior to trial, Rule 219(e) prevents voluntary dismissals from being used as an artifice for evading discovery requirements" ( Morrison v. Wagner , 191 Ill. 2d 162, 166, 246 Ill.Dec. 113, 729 N.E.2d 486 (2000) ) and its statement that a plaintiff "cannot use the voluntary dismissal and refiling provisions to accomplish in the [refiled] suit what she was precluded from doing in the [original] suit" ( Bowman , 2015 IL 119000, ¶ 25, 400 Ill.Dec. 640, 48 N.E.3d 1080 ).

¶ 25 Nightshift defendants further argue that, even if Rule 219(e) requires a finding of misconduct, plaintiff's failure to disclose Dr. Wexler and the other new expert witnesses by the discovery deadline was a discovery violation. Nightshift defendants maintain that the trial court conceded that its ruling allowed plaintiff to "get around" or "avoid" its prior orders. Nightshift defendants argue that this consideration distinguishes the instant case from Webb and Scattered Corp. Nightshift defendants argue that this case is far more analogous to Jones , where the plaintiffs' failure to timely disclose Rule 213(f) witnesses and their opinions was misconduct sufficient to invoke Rule 219(e).

¶ 26 Defendants Rockford Radiology Associates, P.C.; and Joseph P. Micho, M.D. (Rockford Radiology defendants), adopt the arguments set forth by OSF defendants and Nightshift defendants.

¶ 27 Plaintiff responds that, although certified questions are supposed to present questions of law, defendants are actually seeking to have us review the propriety of the trial court's order denying their motions to bar Dr. Wexler and the other new expert witnesses. Plaintiff argues that, given the trial court's discretion under Rule 219(e), both parts of the first certified question, as well as the second certified question, should be answered in the negative.

¶ 28 Plaintiff contends that defendants wrongly describe Dr. Wexler as having been barred in the original case. She argues that instead she simply asked for leave to disclose him after discovery was closed, and the trial court denied the motion solely because it was too close to trial. Plaintiff argues that, although the trial court described her voluntary dismissal as "strategic," all such dismissals are strategic and the trial court explicitly stated that she had done nothing improper or sanctionable. Plaintiff maintains that she had the right not only to dismiss her case but also to refile it and that it is well established that a refiled case is not a continuation of the original case but instead a new action. See Dubina v. Mesirow Realty Development, Inc. , 178 Ill. 2d 496, 504, 227 Ill.Dec. 389, 687 N.E.2d 871 (1997) ("We note that the refiled action is an entirely new and separate action, not a reinstatement of the old action."). Plaintiff argues that, aside from exceptions not applicable here, a refiled case should not be treated as a continuation of the old case and should therefore not be burdened with the proceedings of the old case, or else the right to dismiss and refile would be pointless. Plaintiff contends that, although defendants focus on Rule 219(e)'s language that parties "shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit," such policy language is ordinarily not considered in determining the scope of an enactment. See Brown v. Kirk , 64 Ill. 2d 144, 152, 355 N.E.2d 12 (1976). She also points out that the rule further specifies that the trial court shall consider discovery undertaken, any misconduct, and the orders entered. Plaintiff argues that the trial court was not required to apply previous orders in the refiled case, as there is no rule that such orders must be reinstated upon refiling.

¶ 29 Plaintiff further argues that the cases cited by defendants do not support their position. Plaintiff argues that Morrison does not hold that the trial court is required to bar evidence, particularly considering that Rule 219(e) states that the trial court "may" require the plaintiff to pay expenses ( Ill. S. Ct. R. 219(e) (eff. July 1, 2002) ). Plaintiff argues that in Jones the trial court found that the plaintiffs engaged in "egregious" discovery misconduct that warranted the imposition of costs and expenses under Rule 219(e) ( Jones , 391 Ill. App. 3d at 112, 330 Ill.Dec. 298, 908 N.E.2d 150 ), whereas here the trial court found that plaintiff had not engaged in any discovery misconduct. Plaintiff cites the Jones court's statement: "In order for Rule 219(e) to apply, there must be some misconduct on the plaintiff's part." Id. at 111, 330 Ill.Dec. 298, 908 N.E.2d 150. Plaintiff argues that Jones is also distinguishable because there the trial court's finding of misconduct was affirmed, whereas here defendants seek to reverse the trial court's ruling, and because Jones involved assessing costs as opposed to barring witnesses.

¶ 30 Plaintiff also argues that defendants focus on the language of Rule 219(e) without considering the remainder of the rule. Plaintiff cites Rule 219(c), which relates to, among other things, the unreasonable failure to comply with discovery and allows the trial court to impose remedies, including sanctions. Ill. S. Ct. R. 219(c) (eff. July 1, 2002). Plaintiff argues that Rule 219(e) clearly aims to carry that remedy provision into refiled cases and that both provisions require a preliminary finding of misconduct. See Jones , 391 Ill. App. 3d at 111, 330 Ill.Dec. 298, 908 N.E.2d 150 (trial court must make a preliminary finding of misconduct before imposing expenses under Rule 219(e) ).

¶ 31 Plaintiff argues that Scattered Corp. controls. There, the court stated that " Rule 219(e)'s reference to voluntary dismissals taken to 'avoid compliance' with 'discovery deadlines, orders, or applicable rules' (166 Ill. 2d R. 219(e) ) requires the circuit court to make a preliminary finding of misconduct, analogous to the 'unreasonable noncompliance' standard invoked in Rule 219(c) cases (166 Ill. 2d R. 219(c) ), before imposing expenses pursuant to Rule 219(e)." Scattered Corp. , 299 Ill. App. 3d at 659, 234 Ill.Dec. 1, 702 N.E.2d 167. The court stated that unreasonable noncompliance occurs where "the noncomplying party shows a deliberate, contumacious or unwarranted disregard for the court's authority." Id. Plaintiff points out that the supreme court cited Scattered Corp. with approval in Morrison , 191 Ill. 2d at 166, 246 Ill.Dec. 113, 729 N.E.2d 486, and that the appellate court has cited it with approval in other cases. See Ramos , 2013 IL App (3d) 120001, ¶¶ 110-13, 372 Ill.Dec. 564, 992 N.E.2d 103 ; Jones , 391 Ill. App. 3d at 111-12, 330 Ill.Dec. 298, 908 N.E.2d 150 ; Webb , 333 Ill. App. 3d at 1111-12, 267 Ill.Dec. 640, 777 N.E.2d 443.

¶ 32 Plaintiff next argues that defendants ignore the fact that Rule 219(e) sanctions are discretionary. "Just as is the case with any sanction imposed under Rule 219, only a clear abuse of discretion justifies a reversal on appeal of the trial court's decision to bar evidence or the testimony in a refiled case by reason of a party's misconduct in his original action." Smith v. P.A.C.E. , 323 Ill. App. 3d 1067, 1075, 257 Ill.Dec. 158, 753 N.E.2d 353 (2001). Therefore, according to plaintiff, defendants wrongly seek to have her experts barred as a matter of law. Plaintiff argues that trial courts generally have discretion regarding whether to bar witnesses and that Illinois courts recognize that such action is a drastic sanction to be used sparingly.

¶ 33 OSF defendants reply that, although plaintiff concedes that Rule 219(e) applies to unreasonable noncompliance in addition to misconduct, she never explains why an untimely witness disclosure is not unreasonable noncompliance with a discovery order. OSF defendants and Nightshift defendants argue that the only issue here is whether a voluntary dismissal designed to avoid an order denying the untimely disclosure of a witness is subject to Rule 219(e) relief, despite the trial court's belief here that it lacked discretion to provide such relief absent a discovery sanction in the original lawsuit. Rockford Radiology defendants argue, among other things, that plaintiff's analysis is flawed because Ramos , Jones , Webb , and Scattered Corp. all involved whether the trial courts properly imposed monetary sanctions, which the third sentence of Rule 219(e) addresses, whereas here the issue is whether the trial court should enforce its prior order denying leave to disclose additional expert witnesses after the deadline had long passed, which the first sentence of Rule 219(e) addresses.

¶ 34 Having summarized the parties' arguments, we now begin our own commentary. After briefing in this case was completed, this court decided Freeman v. Crays , 2018 IL App (2d) 170169, 420 Ill.Dec. 954, 98 N.E.3d 571, which touches upon many of the issues central to this case. There, the plaintiff brought suit against the defendant doctor, alleging that his negligent treatment of her husband's cardiovascular disease proximately caused her husband's death. Id. ¶ 1. Shortly before the trial, the trial court ruled that the plaintiff's only medical expert witness was unqualified to offer an opinion on causation, which would have prevented the plaintiff from proving her case. Id. The plaintiff voluntarily dismissed and refiled her action, and she disclosed her intent to name an additional medical expert witness to testify on causation. Id. The defendant then moved to adopt the rulings from the original case and bar the testimony of any newly disclosed experts, under Rule 219(e). Id. The trial court granted the defendant's motion, leading the defendant to request and receive summary judgment in his favor. Id. The plaintiff appealed, arguing that (1) the trial court abused its discretion by barring her original medical expert witness from testifying on causation and (2) the trial court improperly applied Rule 219(e) by barring her from disclosing a new expert witness in the refiled action. Id.

¶ 35 We first concluded that the trial court acted within its discretion in barring the original expert witness's causation opinion. Id. ¶ 36. In addressing the second issue, we rejected the plaintiff's argument that, because she was not sanctioned or found to have committed misconduct in the original action, it was improper for the trial court to apply Rule 219(e) in the refiled action. Id. ¶¶ 44, 46, 50. We recognized that Jones stated that, " '[i]n order for Rule 219(e) to apply, there must be some misconduct on the plaintiff's part.' " Id. ¶ 44 (quoting Jones , 391 Ill. App. 3d at 111, 330 Ill.Dec. 298, 908 N.E.2d 150 ). However, we noted that Jones and the cases it relied on, namely Scattered Corp. and Webb , involved the imposition of expenses associated with a voluntary dismissal, as opposed to the application of Rule 219(e) in a refiled case. Id. We instead looked to Smith , 323 Ill. App. 3d at 1074, 257 Ill.Dec. 158, 753 N.E.2d 353, which did involve barring witnesses in a refiled action, under Rule 219(e). We agreed with Smith 's holding that a party's misconduct in the original action is just one factor for the trial court to consider in the refiled action in determining what evidence will be permitted. Freeman , 2018 IL App (2d) 170169, ¶ 49, 420 Ill.Dec. 954, 98 N.E.3d 571. We further agreed with Smith that in such a situation the trial court should look to the same factors that are used to determine whether barring a witness is an appropriate sanction in the original action, namely (1) surprise to the adverse party, (2) the prejudicial effect of the witness's testimony, (3) the nature of the testimony, (4) the adverse party's diligence, (5) the timeliness of the objection to the testimony, and (6) the good faith of the party calling the witness. Id. ¶ 52 (citing Smith , 323 Ill. App. 3d at 1076, 257 Ill.Dec. 158, 753 N.E.2d 353 ).

¶ 36 We ultimately held that the trial court abused its discretion in barring the plaintiff's new expert witness in the refiled action, because the trial court improperly applied the standards in Jones governing the imposition of expenses associated with a voluntary dismissal, instead of the framework set out in Smith for a refiled action. Id. ¶ 60. We remanded the cause for the trial court to reconsider the issue according to the proper standards. Id. ¶ 61.

¶ 37 Returning to the instant case, we look to the language of Rule 219. Rule 219 is titled "Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial Conferences." Ill. S. Ct. R. 219 (eff. July 1, 2002); see Michigan Avenue National Bank v. County of Cook , 191 Ill. 2d 493, 506, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000) (titles and headings cannot limit the plain meaning of the text of a statute, but they can be considered if they shed light on an ambiguous word or phrase within the text). As plaintiff points out, Rule 219(c) allows the trial court to impose sanctions if a party "unreasonably" fails to comply with discovery orders or rules. Ill. S. Ct. R. 219(c) (eff. July 1, 2002). Rule 219(e) extends the trial court's enforcement of discovery orders to refiled cases. See Scattered Corp. , 299 Ill. App. 3d at 659, 234 Ill.Dec. 1, 702 N.E.2d 167 (purposes behind Rule 219(c) and Rule 219(e) are similar).

¶ 38 Rule 219(e) begins: "A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit." (Emphasis added.) Ill. S. Ct. R. 219(e) (eff. July 1, 2002). Plaintiff frames Rule 219(e)'s first sentence as policy language that is largely irrelevant (see supra ¶28), but, unlike in the case she cites (see Brown , 64 Ill. 2d at 152, 355 N.E.2d 12 ), this language is not a separate policy section or preamble of a statute, but rather part of a supreme court rule. Scattered Corp. found that the phrase "avoid compliance" rendered the rule ambiguous, thereby allowing consideration of the committee comments to the rule. Scattered Corp. , 299 Ill. App. 3d at 658, 234 Ill.Dec. 1, 702 N.E.2d 167 ; see also Webb , 333 Ill. App. 3d at 1112, 267 Ill.Dec. 640, 777 N.E.2d 443 (agreeing with Scattered Corp. that the phrase was ambiguous); Wright v. Desate, Inc. , 292 Ill. App. 3d 952, 954, 227 Ill.Dec. 43, 686 N.E.2d 1199 (1997) (finding rule to be ambiguous). Scattered Corp. determined that the statement in the committee comments that "[t]he consequences of noncompliance with discovery deadlines, rules or orders cannot be eliminated by taking a voluntary dismissal" ( Ill. S. Ct. R. 219(e), Committee Comments (rev. June 1, 1995) ) indicated that the voluntary dismissal had to involve some disobedience by the plaintiff. Scattered Corp. , 299 Ill. App. 3d at 659, 234 Ill.Dec. 1, 702 N.E.2d 167. It held that the inclusion of the phrase "avoid compliance" required the trial court "to make a preliminary finding of misconduct, analogous to the 'unreasonable noncompliance' standard invoked in Rule 219(c) cases * * * before imposing expenses pursuant to Rule 219(e)." Id. Unreasonable noncompliance occurs where the party shows a deliberate, contumacious, or unwarranted disregard for the court's authority. Id. ; see also Shimanovsky v. General Motors Corp. , 181 Ill. 2d 112, 120, 229 Ill.Dec. 513, 692 N.E.2d 286 (1998) (unreasonable noncompliance warranting sanctions occurs where there has been a deliberate and pronounced disregard for a discovery rule). Whether unreasonable noncompliance or misconduct occurred is a factual determination for the trial court. Jones , 391 Ill. App. 3d at 115, 330 Ill.Dec. 298, 908 N.E.2d 150. In Scattered Corp. , the court stated that its construction of Rule 219(e) was "consistent with the language and spirit of the authority vested in the circuit court pursuant to Supreme Court Rule 219 generally and Rule 219(c) in particular." Scattered Corp. , 299 Ill. App. 3d at 659, 234 Ill.Dec. 1, 702 N.E.2d 167.

¶ 39 We next consider the second sentence of Rule 219(e), which states: "In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party." Ill. S. Ct. R. 219(e) (eff. July 1, 2002). This sentence clearly applies to discovery in the refiled action. See also Quintas v. Asset Management Group, Inc. , 395 Ill. App. 3d 324, 335, 334 Ill.Dec. 503, 917 N.E.2d 100 (2009) (stating the same). Although plaintiff argues that her refiled case is an entirely new action (see supra ¶28), this portion of the rule allows the trial court to consider the prior action. The committee comments support this conclusion, as they state that, "when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred." Ill. S. Ct. R. 219(e), Committee Comments (rev. June 1, 1995). Our supreme court has also held that a refiled case is not an entirely new and unrelated action for purposes of Rule 219(e). Bowman , 2015 IL 119000, ¶ 24, 400 Ill.Dec. 640, 48 N.E.3d 1080.

¶ 40 We agree with defendants that, according to the second sentence of Rule 219(e), misconduct in the prior action is just one factor to consider when ruling on discovery issues in the refiled action. As discussed, we arrived at this very conclusion in Freeman : "[T]he misconduct of a party in the original action is merely a factor to be considered by the trial court in the refiled action when it determines what witnesses and evidence will be permitted." Freeman , 2018 IL App (2d) 170169, ¶ 49, 420 Ill.Dec. 954, 98 N.E.3d 571. In Freeman , we adopted the framework set forth in Smith for the trial court to determine whether to bar a witness in the refiled action, that being consideration of the same factors used to determine whether barring a witness is an appropriate sanction in the original action. See supra ¶ 35. These factors are applied in imposing any sanction under Rule 219(c) (see Enbridge Energy, Ltd. Partnership v. Fry , 2017 IL App (3d) 150765, ¶ 62, 413 Ill.Dec. 897, 79 N.E.3d 246), thus reinforcing the relationship between Rules 219(c) and 219(e). Such an analysis includes consideration of " 'the misconduct of a party in the original action and any sanctions entered against him therein.' " Freeman , 2018 IL App (2d) 170169, ¶ 53, 420 Ill.Dec. 954, 98 N.E.3d 571 (quoting Smith , 323 Ill. App. 3d at 1074, 257 Ill.Dec. 158, 753 N.E.2d 353 ).

¶ 41 The third sentence of Rule 219(e) allows the trial court to impose expenses on the party dismissing the action, and it is not debated here.

¶ 42 With these considerations in mind, we return to the first certified question, which states:

"(1) Does Supreme Court Rule 219(e)prevent the use of a voluntary dismissal to avoid the consequences of a court order denying plaintiff's motion to disclose an additional Supreme Court Rule 213(f)(3) witness as untimely, or does it only prevent the use of a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery violations or other misconduct?" (Emphases added.)

As mentioned, the phrasing of this question is problematic because it presents either/or scenarios, neither of which is entirely correct. Rule 219(e) does not limit or "prevent" a plaintiff's ability to voluntarily dismiss an action without prejudice prior to trial. Morrison , 191 Ill. 2d at 166, 246 Ill.Dec. 113, 729 N.E.2d 486 ; Scattered Corp. , 299 Ill. App. 3d at 660, 234 Ill.Dec. 1, 702 N.E.2d 167. The rule does, however, make the party subject to paying costs as a condition of the voluntary dismissal and/or suffering adverse consequences if the party chooses to refile. Morrison , 191 Ill. 2d at 166, 246 Ill.Dec. 113, 729 N.E.2d 486. That is, the rule "alters the consequences of taking a voluntary dismissal rather than restricting a party's right to obtain such a dismissal." Id. at 167, 246 Ill.Dec. 113, 729 N.E.2d 486.

¶ 43 Moreover, case law holds that "[t]he Rule does not require, as a condition precedent to voluntary dismissal, that the plaintiff agree to be bound by prior discovery orders upon refiling the case" ( Wright , 292 Ill. App. 3d at 955, 227 Ill.Dec. 43, 686 N.E.2d 1199 ) and that Rule 219(e)"permits a voluntary dismissal even when the dismissal is prompted by discovery sanctions" ( id. at 953, 227 Ill.Dec. 43, 686 N.E.2d 1199 ). In Gibellina v. Handley , 127 Ill. 2d 122, 134, 129 Ill.Dec. 93, 535 N.E.2d 858 (1989), the defendants argued that voluntary dismissals were being used to evade the consequences of a failure to comply with discovery rules. Our supreme court noted that the plaintiff had a limited opportunity to refile, would have to comply with current statutes, and would be subject to various types of sanctions. Id. at 135, 129 Ill.Dec. 93, 535 N.E.2d 858.

¶ 44 In sum, regarding the first half of the question, a plaintiff could use a voluntary dismissal to attempt to avoid the consequences of a court order denying as untimely a plaintiff's motion to disclose an additional witness. Regarding the second half of the question, a plaintiff could attempt to use a voluntary dismissal to avoid the effect of court-ordered sanctions for discovery violations or other misconduct. Still, upon a voluntary dismissal, the trial court would have the discretion to sanction the plaintiff through expenses paid to the defendant, and the trial court would also have the discretion to bar or otherwise limit certain witnesses and/or evidence in the refiled action using the same standards applicable to sanctions under section 219(c).

¶ 45 The second certified question states:

"Does Supreme Court Rule 219(e)prevent a party from disclosing new expert witnesses in a refiled action who were not identified in Rule 213(f)(3) disclosures by a court-ordered deadline in an original action as an abuse of the voluntary dismissal process in order to avoid the consequences of orders in the original action?" (Emphasis added.)

Again, nothing in Rule 219(e) would prevent the plaintiff from disclosing a new expert witness in the refiled action. See Wright , 292 Ill. App. 3d at 955, 227 Ill.Dec. 43, 686 N.E.2d 1199. Rather, "[w]hen a case is refiled, the rule requires the court to consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred." Morrison , 191 Ill. 2d at 167, 246 Ill.Dec. 113, 729 N.E.2d 486. This concept is perfectly illustrated in Freeman , as the plaintiff sought to name a new medical expert witness in her refiled action, and the defendant objected. Freeman , 2018 IL App (2d) 170169, ¶ 11, 420 Ill.Dec. 954, 98 N.E.3d 571. We held that it was within the trial court's discretion whether to bar a witness in a refiled action ( id. ¶ 39 ) and that the trial court should apply the same factors used to determine whether barring a witness is an appropriate sanction in an original action ( id. ¶ 52 ). As discussed, these are the same considerations that apply to sanctions under Rule 219(c).

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, we answer the certified questions as detailed above, and we remand the cause for further proceedings consistent with this opinion.

¶ 48 Certified questions answered; cause remanded.

Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.

      Scattered Corp. was interpreting the first sentence of Rule 219(e) in ruling on an award of expenses, undermining Rockford Radiology defendants' argument that an award of such expenses relates only to the third sentence of the rule. See supra ¶33.

      Correspondingly, Rule 219(e) does not require the trial court to reimpose any sanctions that were entered against the plaintiff in the original case. Smith , 323 Ill. App. 3d at 1074, 257 Ill.Dec. 158, 753 N.E.2d 353.