SIXTH DIVISION April 11, 2008
No. 1-06-2458
JILL CAYWOOD, ) Appeal from the ) Circuit Court Plaintiff-Appellant, ) of Cook County. ) v. ) No. 03 L 15528 ) PAULL C. GOSSETT, and A.M.M. LTD., ) an Illinois Corporation, ) The Honorable ) Abishi C. Cunningham, Defendants-Appellees. ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff Jill Caywood filed suit against defendants Paull
C. Gossett, D.D.S., and A.M.M. Ltd., alleging dental malpractice.
Defendants moved to dismiss plaintiff's complaint pursuant to
section 2-619(a)(5) of the Code of Civil Procedure (Code) (735
ILCS 5/2-619(a)(5) (West 2006)), arguing that plaintiff failed to
timely bring her suit within the two-year time period delineated in section 13-212(a) of the Code. 735 ILCS 5/13-212(a) (West
2006). The circuit court found that plaintiff knew or should
have known that defendants committed malpractice more than two
years before filing her action and granted defendants' motion to
dismiss the complaint as untimely filed. For the reasons that
follow, we affirm the judgment of the circuit court.
BACKGROUND 1-06-2458
In January 1988, plaintiff and her family began treating
with defendants for general dental care. In 1994, plaintiff
complained to defendants about problems with teeth grinding.
Defendant Gossett recommended that plaintiff floss regularly and
rinse with saltwater. Defendants did not refer plaintiff to an
oral surgeon or other specialist for evaluation. Plaintiff
continued to treat with defendants for seven more years, during
which, defendants provided plaintiff with regular exams,
cleaning, bleaching, bonding and crowns.
On November 24, 2000, defendants examined and cleaned
plaintiff's teeth. Defendants' records indicated that no
abnormalities were noted. On March 2, 2001, plaintiff made an
emergency appointment with defendants complaining of severe pain
and swelling in her mouth and face. Plaintiff was diagnosed with
a parotid sialolithiasis, a blocked salivary gland, and
defendants prescribed an antibiotic and pain medication for her
condition. Defendants continued to treat plaintiff’s condition
with antibiotics for a period of five months. Defendants’ treatment initially relieved plaintiff’s symptoms; however, the
pain and swelling returned. Defendants neither referred nor re-
evaluated plaintiff during that five-month period.
On August 18, 2001, plaintiff returned to defendants, again
complaining of pain and swelling in her mouth. That same day,
defendants removed tooth number 15, a molar, from the upper left
side of plaintiff’s mouth. Following the procedure, plaintiff
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complained of increased pain and swelling in the area surrounding
tooth number 15. Defendants prescribed antibiotics and pain
medication for plaintiff’s deteriorating condition. At the end
of August 2001, plaintiff sought treatment from her physician,
Dr. Gill, relative to the condition in the upper left side of her
mouth. Plaintiff complained to Dr. Gill that following
defendants' extraction of tooth number 15, the pain and swelling
around that area worsened. Dr. Gill prescribed an antibiotic for
plaintiff.
Sometime in August 2001, plaintiff began to insert foreign
objects into her mouth in an attempt to relieve the inflamation
and pain in her gums and jaw. Plaintiff used pencil erasers,
tweezers, a make-up brush, Sharpie brand marker caps and paper
clips, in addition to her fingers. In September 2001, plaintiff
used a pair of tweezers to remove a bone or tooth fragment on her
own from the area where tooth number 15 was extracted. She
testified in her deposition that the tooth fragment caused
significant pain and irritation to her gums. Plaintiff presented the fragment along with the tweezers used to remove it to
defendants on September 12, 2001, during an appointment.
Defendants prescribed pain medication for plaintiff in September,
2001.
On the same day plaintiff presented the tooth or bone
fragment to defendants, she also visited Dr. Gill, who examined
her mouth and ordered a CT scan. The CT scan revealed that
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plaintiff suffered from a sinus infection. On September 14, Dr.
Gill informed plaintiff that the sinus infection was caused by
defendants' extraction of tooth number 15 and prescribed
antibiotics for her treatment. On October 3, 2001, Dr. Gill
admitted plaintiff to Hinsdale Hospital as a result of the
infection and her pain and swelling. An examination of plaintiff
revealed that a fistula, an opening between two cavities,
developed between plaintiff's mouth and sinus cavity. Bacteria
from plaintiff's mouth entered into her sinus cavity through the
fistula causing a severe infection in her upper left jawbone area
and severe inflamation and pain.
On October 8, 2001, plaintiff underwent an endoscopic sinus
surgery performed by Dr. Cynthia Go, an otolaryngologist. The
endoscopic procedure was performed to alleviate the swelling and
pain and treat the infection in plaintiff's mouth. A second
surgery was performed on October 10, 2001, to insert a catheter
to administer antibiotics intravenously to treat the sinus
infection. Following the surgeries, plaintiff remained at Hinsdale Hospital for two weeks and was discharged. On October
29, 2001, plaintiff was readmitted to Hinsdale Hospital because
she complained of weakness and an altered mental state.
Plaintiff's medications were regulated and she was released after
one week. Three days following her discharge, she was re-
admitted to repair a broken catheter line. On November 9, 2001,
plaintiff was diagnosed with a severe sinus infection, upper left
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jawbone infection, and chronic facial pain syndrome.
On November 19, 2001, Dr. Go and Dr. Gregory Stevens
performed a third surgery on plaintiff to repair the opening that
allowed bacteria to enter plaintiff's sinus cavity from her mouth
in the area of tooth number 15. While performing the surgery,
Drs. Go and Stevens determined that tooth number 14 was also
severely infected and they extracted the tooth. Following the
surgeries, plaintiff returned to defendants for a general
examination on December 11, 2001. Plaintiff could not recall if
she was treated by defendants on that day.
On or around February 26, 2002, plaintiff commenced
treatment with Dr. Ronald Schefdore. Dr. Schefdore cleaned
plaintiff's teeth and created a mouth guard for her to wear at
night to prevent her from grinding her teeth. Dr. Schefdore
referred plaintiff to several specialists for treatment including
a root canal specialist, gum specialist, oral surgeon and
dentists at the University of Illinois at Chicago.
On December 11, 2003, plaintiff filed this lawsuit against defendants alleging that defendants failed to perform adequate
and thorough examinations to diagnose temporomandibular disorder
(TMD) and properly treat or refer plaintiff for treatment of TMD
by a specialist. It was further alleged that defendants: failed
to diagnose and treat plaintiff's gum disease, tooth decay,
abscesses and bone loss; improperly performed the extraction of
tooth number 15; misdiagnosed plaintiff's condition as a blocked
5 1-06-2458
salivary gland; and failed to heed plaintiff's continued
complaints of pain and discomfort following the extraction of
tooth number 15. Defendants denied any negligence and discovery
commenced.
On February 8, 2006, defendants filed their motion to
dismiss pursuant to section 2-619(a)(5) of the Code. 735 ILCS
5/2-619(a)(5) (West 2006). Defendants argued that plaintiff
failed to file her complaint prior to the expiration of the
statute of limitations provided in section 13-212(a) of the Code.
735 ILCS 5/13-212(a) (West 2006). Specifically, defendants
assert that plaintiff knew, or should have known, as early as
October 3, 2001, and no later than November 19, 2001, that
defendants negligently misdiagnosed her TMD and negligently
treated her symptoms. Plaintiff responded arguing that
defendants' continuous treatment until December 11, 2001, barred
dismissal under the continuous treatment doctrine and that her
complaint was filed within two years of terminating her treatment
with defendants. The circuit court granted defendants' motion and dismissed
plaintiff's complaint with prejudice. The circuit court held
that "plaintiff's own deposition demonstrates that she knew or
should have known of her injury and its wrongful cause prior to
November 19, 2001." The court based its decision on plaintiff's
testimony that she knew that the sinus infection, for which she
was admitted to Hinsdale Hospital, was caused by defendants'
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treatment. The circuit court further rejected plaintiff's
contention that the continuing course of negligent treatment
doctrine barred the court from dismissing her complaint because
defendants treated her on December 11, 2001. The circuit court
held that the continuing course of negligent treatment doctrine
did not apply because plaintiff did not allege in her complaint
or present any evidence that defendants' treatment was negligent
on December 11, 2001.
Plaintiff filed a motion to reconsider the circuit court's
order dismissing her complaint contending that the court
misapplied the discovery rule to facts of this case. Plaintiff
argued that her statements did not equate to an admission that
she knew her injury was wrongfully caused but, rather, that the
negative results were due to the prior treatment. The circuit
court rejected this assertion, ruling that under the
circumstances, a reasonable person would have been put on inquiry
that actionable conduct may have accrued. The circuit court was
"unwilling to believe that after all of [the] problems and negative results and armed with the knowledge that the dentist's
removal of a tooth caused a sinus infection that a reasonable
person would not have sufficient information to investigate
whether Dr. Gossett's care fell below the standard of care."
Plaintiff filed this timely appeal.
ANALYSIS
I. STANDARD OF REVIEW
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Defendants' motion to dismiss plaintiff's complaint was
brought pursuant to section 2-619(a)(5) of the Code (735 ILCS
5/2-619(a)(5) (West 2006)), which provides for the dismissal of
an action that was not commenced within the time limited by law.
When ruling on a section 2-619 motion to dismiss, a court must
interpret all pleadings and supporting documents in the light
most favorable to the nonmoving party. In re Chicago Flood
Litigation, 176 Ill. 2d 179, 189 (1997); In re Parentage of M.J.,
203 Ill. 2d 526, 533 (2003). The purpose of a motion to dismiss
under section 2-619 of the Code of Civil Procedure is to afford
litigants a means to dispose of issues of law and easily proved
issues of fact at the outset of a case, reserving disputed
questions of fact for a jury trial. Zedella v. Gibson, 165 Ill.
2d 181, 185 (1995). A motion under section 2-619 of the Code
admits the legal sufficiency of the well-pleaded factual
allegations of a complaint (Neppl v. Murphy, 316 Ill. App. 3d
581, 584 (2000)); however, it allows for dismissal when the claim
asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim. Builders Bank v. Barry Finkel
& Associates, 339 Ill. App. 3d 1, 6 (2003); 735 ILCS 5/2-
619(a)(9) (West 2006). In ruling on a motion to dismiss under
section 2-619, the trial court may consider pleadings,
depositions, and affidavits.
The circuit court should deny a motion to dismiss brought
pursuant to the discovery rule and section 13-212(a) of the Code
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unless it can say, as a matter of law, that plaintiff knew or
should have known of her injury and the wrongful causation more
than two years before filing the instant lawsuit. Tuchowski v.
Rochford, 368 Ill. App. 3d 441, 443-44 (2006); 735 ILCS 5/13-212
(West 2006). The standard of review to be applied by this court
to the circuit court's dismissal of plaintiff's complaint
pursuant to section 2-619(a)(5) of the Code is de novo.
Paszkowski v. Metropolitan Water Reclamation District of Greater
Chicago, 213 Ill. 2d 1, 6 (2004).
II. THE CIRCUIT COURT'S DISMISSAL OF PLAINTIFF'S COMPLAINT
Plaintiff assigns error to the circuit court because, in her
view, the question of when she discovered that her injury was a
result of defendants' malpractice is an issue of fact precluding
dismissal. Plaintiff offers the following arguments in support
of her proposition that the circuit court's dismissal was error:
the circuit court misapplied the second prong of the discovery
rule by determining that plaintiff must have known that her
injury was a result of malpractice, thereby invading the province of the jury; the circuit court improperly determined that
November 19, 2001, was the date of discovery; and plaintiff's
testimony does not show that she was aware of defendants'
malpractice but presents a question of fact precluding dismissal.
Section 13-212 of the Code provides:
"[N]o action for damages for injury or death against any
physician, dentist, registered nurse or hospital duly
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licensed under the laws of this State, whether based upon
tort, or breach of contract, or otherwise, arising out of
patient care shall be brought more than 2 years after the
date on which the claimant knew, or through the use of
reasonable diligence should have known, or received notice
in writing of the existence of the injury or death for which
damages are sought in the action, whichever of such date
occurs first, but in no event shall such action be brought
more than 4 years after the date on which occurred the act
or omission or occurrence alleged in such action to have
been the cause of such injury or death." 735 ILCS 5/13-
212(a) (West 2006).
The discovery rule is specifically provided for in section
13-212 of the Code and it postpones the commencement of the
limitations period until a plaintiff learns or reasonably should
have learned of her injury and knows or reasonably should have
known that it was wrongfully caused. Blair v. Blondis, 160 Ill.
App. 3d 184, 184-88 (1987). However, "the term 'wrongfully caused', does not mean knowledge by plaintiff of a specific
defendant's negligent act or knowledge that an actionable wrong
was committed; rather, a person knows or reasonably should know
an injury is 'wrongfully caused' when he or she possesses
'sufficient information concerning [an] injury and its cause to
put a reasonable person on inquiry to determine whether
actionable conduct is involved.' " Hoffman v. Orthopedic
10 1-06-2458
Systems, Inc., 327 Ill. App. 3d 1004, 1011 (2002), quoting Knox
College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981); Moore v.
A.H. Robins Co., 167 Ill. App. 3d 19, 23 (1988). Once a
plaintiff is on inquiry to determine whether actionable conduct
is involved, the burden falls upon that plaintiff to inquire
further as to the existence of a cause of action. Hoffman, 327
Ill. App. 3d at 1011, citing Witherell v. Weimer, 85 Ill. 2d
146, 156 (1981).
In our view, plaintiff's testimony during her deposition
shows that she knew that her injury was caused by defendants and
that she had more than sufficient information to put her on
inquiry that actionable conduct occurred prior to November 19,
2001. Plaintiff gave the following testimony in her deposition:
"MR. GREEN: [Counsel for Defendants:] Q. So is it your
testimony that as of September 14, 2001, you were aware that
you had a sinus infection from the extraction of Tooth No.
15?
A. My understanding was yes. * * *
Q. What was your condition upon admission on October 3rd,
2001, to Hinsdale Hospital?
A. I was - - my mouth was infected and I was running a
fever. ***
Q. What was your understanding as of October 3rd, 2001,
to the cause of your medical and dental condition which you
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described as an infection in your mouth?
A. My understanding was that I had an infection in my
mouth and they needed to - - Dr. Gill then saw me and
admitted me to the hospital.
Q. As of October 3rd, what was your understanding as to
the cause of your mouth infection?
* * *
A. I believed it to be tooth 14.
Q. 14?
A. The tooth 14 - - the 14th tooth, the one that was
still intact. I believe it was that because that was the
one that was very sore and infected.
Q. So your problems as of October 3rd, 2001, at least to
your understanding from your consultation with your doctors,
was that it had nothing to do with Dr. Gossett's extraction
of Tooth No. 15 a month and a half earlier; is that correct?
A. No. That's not true.
Q. *** Was it your understanding that as of October 3rd, 2001, when you were admitted to Hinsdale Hospital, that your
medical condition was the result of Dr. Gossett's extraction
of Tooth No. 15?
A. Yes. And how long he kept me on - - yes. I believe
he kept me on antibiotics for a period of six months at the
time I went to the hospital.
Q. Did you - - as of October 3rd, 2001, did you feel in
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your mind that somehow Dr. Gossett had not been treating you
properly?
A. Say that date again?
Q. When you were admitted on October 3rd, 2001, to
Hinsdale Hospital, was it your understanding at that time
that you had not been treated properly by Dr. Gossett?
A. Um --
Q. Did you feel at that point in time that somehow he had
done something that had not been correct?
A. Well, when he took out No. 15 and it literally cracked
in half, and he took the rest of it out, and he looked a
little surprised because - - he was surprised. And I came
back and asked him - - okay - - bottom line - - ask me one
more time, I'm so tired.
Q. As of October 3rd, when you were admitted to Hinsdale
Hospital for you mouth infection and problems with infection
of your sinuses, was it because of Dr. Gossett's treatment?
A. Yes." Plaintiff's testimony further revealed that she consulted
with Dr. Gill on August 18, 2001, when her condition worsened
following defendants' treatment and that Dr. Gill told her that
she developed an infection in and around the area where Dr.
Gossett extracted tooth number 15. When asked about why she
consulted with Dr. Gill instead of going to Dr. Gossett,
plaintiff testified "[m]y perspective on it was that that tooth,
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[number 15] was in there for a good period of time and I couldn't
understand why [Dr. Gossett] would allow a tooth to be in there
infected for that long a period of time." She further testified
that following Dr. Gossett's extraction of tooth number 15, she
did not improve, she knew there was a problem, her pain and
inflamation became worse and the medication was not effective.
Moreover, she was told that an opening between her mouth and
sinus developed where Dr. Gossett extracted tooth number 15 and
that it had to be repaired with oral surgery to prevent further
infections from occurring.
After reviewing the record presented to the circuit court in
this case, we are also of the view that the evidence supports the
proposition that plaintiff knew or, at minimum, should have known
that defendants' care or lack of care was actionable before
November 19, 2001. Thus, we hold that plaintiff's complaint was
untimely filed and the circuit court properly dismissed it
pursuant to section 2-619(a)(5) of the Code.
III. CONTINUOUS COURSE OF NEGLIGENT TREATMENT Plaintiff contends that the limitations period should have
commenced on December 11, 2001, based on a continuing course of
treatment by defendants. See generally Cunningham v. Huffman,
154 Ill. 2d 398 (1993). In Cunningham, our supreme court
specifically rejected the "continuous course of treatment"
exception to the statutes of limitations and repose periods
contained in section 13-212 of the Code and held that the
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Illinois statutory scheme allows for the limitations and repose
periods to be tolled by plaintiff based on a continuing negligent
course of treatment for a specific condition. Cunningham, 154
Ill. 2d at 404-06. To prevail under a continuing negligent
course of treatment for a specific condition, a plaintiff must
demonstrate: "(1) that there was a continuous and unbroken course
of negligent treatment, and (2) that the treatment was so related
as to constitute one continuing wrong." Cunningham, 154 Ill. 2d
at 406.
Plaintiff's claim that the circuit court erred in rejecting
her continuous course of negligent treatment is without merit.
Plaintiff does not allege that the treatment received on December
11, 2001, was negligent. In fact, plaintiff's complaint merely
alleged that Dr. Gossett examined her last on December 11, 2001,
and in her deposition, she testified that she could not recall
what, if any, treatment was provided on that day. In addition,
the cases that plaintiff relies upon are distinguishable from the
facts in the instant case. In Jacobson v. Natonson, 164 Ill. App. 3d 126 (1987), the
circuit court barred evidence arising from treatment that
occurred more than four years prior to discovery of the
defendant's negligence. Jacobson, 164 Ill. App. 3d at 130. This
court held that the circuit court erred in applying section 13-
212 of the Code as a rule governing the admission of evidence and
that the statute of limitations and repose operated as a bar to
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filing a claim that was discovered more than four years prior to
bringing suit. Jacobson, 164 Ill. App. 3d at 130. Furthermore,
the plaintiff in Jacobson alleged that the defendant engaged in a
continuing course of negligent treatment, misrepresented the
seriousness of her disease and discouraged her from seeing other
specialists or getting a second opinion. Jacobson, 164 Ill. App.
3d at 128. Here, plaintiff saw several doctors and specialists
relative to her condition, some of whom actually told plaintiff
that defendants' extraction of tooth number 15 caused the
infection and fistula that required three surgeries. Moreover,
contrary to the circumstances in Jacobson, Follis v. Watkins and
Paske v. Green, the evidence in this case and plaintiff's
testimony show that she knew about defendants' negligent
treatment. Follis v. Watkins, 367 Ill. App. 3d 548, 558 (2006)
(holding that a question of fact was raised by a plaintiff who
never saw any other dentist during the relevant time period,
alleged that entire course of care by defendant was negligent,
learned first from a new dentist in a different state that her mouth was in a state of total disrepair and attributed her injury
to improper dental care by the defendant); Paske v. Green, 142
Ill. App. 3d 367 (1986) (finding that evidence supported claim
that plaintiff was not aware of injury until treatment by another
dentist even though she was dissatisfied with the results and
comfort of her treatment). In our view, based on the evidence in
the record, there is no question of fact as to when plaintiff
16 1-06-2458
knew that defendants' rendered negligent care.
IV. ISSUES RAISED FOR THE FIRST TIME IN MOTION TO RECONSIDER
Plaintiff argued, for the first time, in her motion for
reconsideration of the circuit court's dismissal of her lawsuit,
that she suffered from mental incapacitation and was unable to
appreciate that she had been injured by defendants' wrongful
treatment. Plaintiff argues on appeal that the circuit court
erred by failing to address these arguments or Joyce Wixon's
affidavit supporting this theory in its ruling on plaintiff's
motion for reconsideration. We disagree.
The purpose of a motion to reconsider is to bring to the
court's attention newly discovered evidence which was not
available at the time of the hearing, changes in the law or
errors of the court's previous application to existing law.
American National Trust Co. v. Kentucky Fried Chicken of Southern
California, Inc., 308 Ill. App. 3d 106, 120 (1999). Here,
plaintiff did not explain why the mental incapacitation argument
or Wixon's affidavit was not brought prior to her motion for reconsideration. We have previously held that circuit courts
"should not permit litigants to stand mute, lose a motion, and
then frantically gather evidentiary material to show that the
court erred in its ruling. *** [T]he interests of finality and
efficiency require that the [circuit] courts not consider such
late-tendered evidentiary material, no matter what the contents
thereof may be." (Emphasis in original.) Gardner v. Navistar
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International Transportation Corp., 213 Ill. App. 3d 242, 248-49
(1991). In addition, arguments raised for the first time in a
motion for reconsideration in the circuit court are waived on
appeal. Illinois Health Maintenance Organization Guaranty Ass'n
v. Shapo, 357 Ill. App. 3d 122, 137 (2005). Because plaintiff
failed to raise this argument in her response to defendants'
motion to dismiss, she waived her right to assert this issue.
See also Holzer v. Motorola Lighting, Inc., 295 Ill. App. 3d 963,
978 (1998) (argument raised for the first time in a motion for
reconsideration is waived).
Waiver aside, even if the circuit court or this court were
to consider plaintiff's mental incapacitation, plaintiff's claim
is supported only by the affidavit of her friend, Wixon, who is
an attorney. No medical evidence or affidavits from a doctor or
other medical professional, were offered to support a finding of
mental incapacity in the circuit court or this court. 735 ILCS
5/13-212(c) (West 2006); see Bloom v. Braun, 317 Ill. App. 3d
720, 730-31 (2000) (holding that to toll the statute of limitations under section 13-212 of the Code, "a person must be
entirely without understanding or capacity to make or communicate
decisions regarding his person and totally unable to manage his
estate or financial affairs"). Plaintiff did not testify that
she was unable to understand or communicate relative to her care
and treatment and she has offered nothing to support her
contention that she was suffering from a disability sufficient to
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toll the statute of limitations pursuant to section 13-212(c) of
the Code.
V. CONCLUSION
For the foregoing reasons, we hold that plaintiff knew or
should have known of her injury before the third surgery, which
occurred on November 19, 2001, the continuing course of negligent
treatment exception does not apply under the circumstances of
this case and all matters raised for the first time in
plaintiff's motion for consideration were properly disregarded by
the circuit court and waived by plaintiff for purposes of appeal.
Accordingly, the judgement of the circuit court is affirmed.
Affirmed.
McBRIDE, P.J., and JOSEPH GORDON, J., concur.
19 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
TITLE JILL CAYWOOD, of Case Plaintiff-Appellant,
v.
PAULL C. GOSSETT, and A.M.M. LTD., an Illinois Corporation,
Defendants-Appellees.
Docket No . 1-06-2458
COURT Appellate Court of Illinois First District, Sixth Division
Opinion April 11, 2008 Filed
JUSTICES JUSTICE O'MALLEY delivered the opinion of the court: McBRIDE, P.J. and JOSEPH GORDON, J. concur.
Appeal's Appeal from the Circuit Court of Cook County. Origination The Hon. Abishi C. Cunningham Judge Presiding.
Counsel for For Appellants, Grasso Bass & Williams, P.C., Gary A. Grasso APPELLANTS and Adam R. Bowers, Burr Ridge, IL.
Counsel for For Appellees, Querrey & Harrow, LTD., David E. Neumeister, APPELLEES Jennifer L. Medenwald, John M. Green and Sylvia Karalekas, Chicago, IL.