Wagner v. Eagle Food Centers, Inc.

925 N.E.2d 243, 398 Ill. App. 3d 354, 2010 WL 522327
CourtAppellate Court of Illinois
DecidedFebruary 10, 2010
Docket1-08-3213
StatusPublished
Cited by10 cases

This text of 925 N.E.2d 243 (Wagner v. Eagle Food Centers, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wagner v. Eagle Food Centers, Inc., 925 N.E.2d 243, 398 Ill. App. 3d 354, 2010 WL 522327 (Ill. Ct. App. 2010).

Opinion

PRESIDING JUSTICE MURPHY

delivered the opinion of the court:

In January 1999, plaintiff Craig Wagner slipped and fell at an Eagle Food Center in Joliet, Illinois. Craig Wagner and his wife, Mary Wagner, filed a premises liability claim against Eagle and, later, products liability claims against Clorox in Will County, Illinois. Plaintiffs voluntarily dismissed their seventh amended complaint in Will County and refiled their case in Cook County. Defendants filed a motion to dismiss or transfer based on the doctrine of forum non conveniens, which the trial court denied. On appeal, defendants argue that the trial court abused its discretion in denying the motion because, by refiling their case in Cook County, plaintiffs were forum shopping in an effort to avoid the Will County court’s discovery orders.

I. BACKGROUND

In August 1999, Craig filed a lawsuit against Eagle in Will County alleging premises liability for Eagle’s failure to remove an unidentified “slippery substance” on the floor, causing him to slip and fall. Plaintiffs amended their complaint seven times over the almost seven years that the case was pending in Will County to add allegations that the substance that Craig slipped on was Tilex, a product manufactured by Clorox, that the bottle was defective, and that Clorox and Eagle were acting in concert. A loss of consortium claim was also added on Mary Wagner’s behalf. Count I of the seventh amended complaint alleged premises liability against Eagle; counts III and V alleged strict and negligent products liability; and counts II, IY and VI alleged in-concert liability.

Plaintiffs filed a separate medical-malpractice complaint in Will County against Dr. Surrender Dhiman, who performed surgery on Craig Wagner’s elbow. It appears that Clorox filed a third-party complaint against Dhiman in 2001. In 2003, Clorox also filed a third-party complaint against Top Seal Corporation, the manufacturer of the Tilex cap at issue, and Novapak Corporation, the manufacturer of the Tilex bottle. In August 2003, plaintiffs settled their claims against Dhiman for $930,000, and the court ordered that the settlement amount constituted a setoff in plaintiffs’ case against Eagle and Clorox.

On November 16, 2005, Clorox propounded supplemental interrogatories to plaintiffs requesting information about plaintiffs’ factual basis for their claims that the Tilex bottle “leaked” or “had insufficient tamper resistance.” When plaintiffs did not answer, Clorox filed a motion to compel, which the trial court granted. On April 21, 2006, plaintiffs objected to the supplemental interrogatories, claiming that they called for a “statement of the mind of another” and that the information would be the subject of “later discovery.” Clorox and plaintiffs each filed additional motions to compel answers to discovery. At the hearing on the cross-motions to compel, the trial court stated that it found plaintiffs’ April 21, 2006, interrogatory answers “disingenuous.” On April 25, 2006, the trial court ordered plaintiffs to respond to defendants’ supplemental interrogatories by May 9, 2006, and ordered Clorox to respond to certain of plaintiffs’ interrogatories.

On April 26, 2006, plaintiffs filed a motion to voluntarily dismiss their complaint. Clorox objected and sought Supreme Court Rule 219 (210 Ill. 2d R. 219) sanctions. The Will County court found that a plaintiff has an “absolute right” to voluntarily dismiss its cause of action and concluded that plaintiffs’ motion was not intended “to simply avoid discovery deadlines.” The court also refused to award Clorox fees and expenses. On appeal, the Third District affirmed the denial of fees based on the voluntary dismissal. Wagner v. Clorox Products Manufacturing, No. 3 — 06—0460 (June 28, 2007) (unpublished order under Supreme Court Rule 23). It continued:

“The trial court also noted the day before plaintiffs filed their voluntary motion to dismiss that their discovery answers were ‘disingenuous.’ Furthermore, one month prior to their voluntary motion to dismiss, the court found that plaintiffs had provided no factual basis in the seven complaints or their discovery responses to establish that the Tilex bottle leaked, had insufficient tamper resistance, or was otherwise defective. Based on the record, we may have found that Supreme Court Rule 219(e) applied to plaintiffs’ dismissal and awarded expenses. However, we are not the trial court.” Wagner, slip op. at 13.

Accordingly, the Third District affirmed. Wagner, slip op. at 14.

One year after dismissing their complaint in Will County, plaintiffs refiled their case in Cook County. The seven-count refiled complaint alleged the same causes of action against the same defendants as did the seventh amended complaint filed in Will County. Defendants filed motions to dismiss plaintiffs’ case or, in the alternative, to transfer it hack to Will County. 1 Citing Czarnecki v. Uno-Ven Co., 339 Ill. App. 3d 504 (2003), they argued that by refiling their case in Cook County, plaintiffs were forum shopping in an effort to avoid the Will County court’s discovery orders. In their motions, defendants established that plaintiffs are residents of Will County and that the incident occurred in Will County. Martin Snider, the former district manager for Eagle; Sheila Piontek, a former Eagle employee; and Lester Nelson, a former manager of the Eagle store, provided affidavits stating that they reside in Will County. They further averred that it would be inconvenient to travel to Cook County for the trial of this matter and that it would be more convenient to travel to Will County. Defendants noted that while the case was pending in Will County, the parties had taken the statements of 23 witnesses and 6 depositions, the court entered 28 discovery orders, and plaintiffs settled their medical-malpractice suit.

In their response, plaintiffs contended that while the Will County case was pending for seven years before the voluntary dismissal, it was still in its “infancy” because Eagle filed for bankruptcy, which caused the case to be placed on the bankruptcy stay calendar. Further, plaintiffs filed a medical-malpractice case against a surgeon who treated Craig Wagner, and defendants filed a third-party complaint against the surgeon. Plaintiffs argued that they did not learn of the existence of Novapak or Top Seal until Clorox filed a third-party complaint on February 3, 2003, nor did they discover that the product was filled and capped by CCL Custom Manufacturing in Cook County until plaintiffs received Clorox’s supplemental interrogatory answers on October 4, 2005. They pointed out that discovery in the Will County case was not completed or closed, and only two witness depositions and half of Craig Wagner’s deposition had been taken. Plaintiffs argued that their case evolved over the years from one involving premises liability to one involving products liability.

Plaintiffs noted that in August 1999, Clorox Products Manufacturing Company had two manufacturing facilities in Cook County, and it still has a plant in Cook County. Clorox Company is headquartered in California and has no offices, plants, or facilities in Will County. Eagle was headquartered in Rock Island County, Illinois, before it filed for bankruptcy.

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Bluebook (online)
925 N.E.2d 243, 398 Ill. App. 3d 354, 2010 WL 522327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-eagle-food-centers-inc-illappct-2010.