Williams v. McAllister Nursing & Rehab, LLC

2024 IL App (1st) 231805

• Court: Appellate Court of Illinois
• Decided: December 6, 2024
• Docket: 1-23-1805
• Status: Published

Opinion

2024 IL App (1st) 231805 No. 1-23-1805 Opinion filed December 6, 2024 Sixth Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

YVONNE WILLIAMS, ) ) Plaintiff-Appellee, ) ) v. ) ) Appeal from the Circuit Court McALLISTER NURSING AND REHAB, LLC, ) of Cook County. an Illinois Limited Liability Company; ) WINDSOR ESTATES NURSING AND REHAB ) CENTRE, LLC, an Illinois Limited Liability ) No. 2023 L 1231 Company; and INNOVATIVE MANAGEMENT ) ASSOCIATES, INC., an Illinois Corporation, ) ) The Honorable Defendants ) Scott D. McKenna, ) Judge, presiding. (Elevate Care Country Club Hills, LLC, ) ) Respondent-in-Discovery-Appellant). ) )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Tailor and Justice C.A. Walker concurred in the judgment and opinion.

OPINION

¶1 Does Illinois’s respondent in discovery statute, section 2-402 of the Code of Civil

Procedure (735 ILCS 5/2-402 (West 2022)), allow a plaintiff to name as a respondent in 1-23-1805

discovery a person or entity believed in good faith to have information that may lead to

additional defendants other than the respondent in discovery?

¶2 We hold that section 2-402 does not limit additional defendants to only the respondent in

discovery.

¶3 Yvonne Williams developed pressure ulcers while a resident at Windsor Estate Nursing

and Rehab Centre, LLC (Windsor Estate). She sued Windsor Estate and other entities involved

with the nursing home’s ownership and operations, alleging negligence and Nursing Home

Care Act violations. Williams also named Elevate Care Country Club Hills, LLC (Elevate

Care), as a respondent in discovery under section 2-402 (id.) to obtain medical records she

contends Elevate Care possessed after it became the sole operator of the nursing home several

months after her discharge.

¶4 Elevate Care moved to terminate its status as a respondent in discovery, arguing that

Williams improperly used section 2-402, as it could not be converted to a defendant. The trial

court denied the motion and ordered production. After Elevate Care refused to comply, it was

found in friendly contempt and fined.

¶5 Elevate Care appeals, asking us to reverse and terminate its status as a respondent in

discovery. We affirm and remand for further proceedings, reversing the contempt order due to

elevate Care’s good faith belief that the trial court had erred.

¶6 Background

¶7 After suffering a spinal cord injury resulting in quadriplegia, Yvonne Williams resided at

Windsor Estate, a nursing and rehabilitation center, from January 6 to February 2, 2021.

Williams claims that while at Windsor Estate, she developed pressure ulcers that required

multiple medical procedures.

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¶8 After Williams’s discharge, Elevate Care entered into an operations transfer agreement

with McAllister Nursing & Rehab, LLC, the owner of Windsor Estate, to become the sole

operator of the facility. The transfer agreement specified that Elevate Care was not liable for

“debts, liabilities or obligations” incurred by Windsor Estate before the closing date. Later that

month, Williams’s cousin filed a complaint with the Illinois Department of Public Health. After

investigating, the Department found that the facility had violated the Nursing Home Care Act

(210 ILCS 45/1-101 et seq. (West 2022)) and the Administrative Code.

¶9 On February 6, 2023, Williams filed a three-count complaint against McAllister Nursing

and Rehab, LLC, Windsor Estate Nursing and Rehab Centre, LLC, and Innovative

Management Associates, Inc., alleging negligence in providing her care. Count III named

Elevate Care as a respondent in discovery under section 2-402, which allows a plaintiff to

designate as a respondent in discovery individuals or entities believed to possess information

essential to determining potential additional defendants. A respondent in discovery must

respond to discovery requests as would a named defendant and can be added as a defendant by

motion within six months.

¶ 10 In a signed affidavit attached to her complaint, Williams stated that she requested Elevate

Care to produce all records related to her care. In response, Elevate Care turned over 64 pages

of progress notes from her time at Windsor Estate. Williams claimed Elevate Care had more

records essential for identifying additional defendants. The complaint included a request under

Illinois Supreme Court Rule 214 (eff. July 1, 2018) for multiple categories of records, including

photographs of Williams, communications between the defendants about her care, and

employee contact information.

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¶ 11 Elevate Care moved to terminate its status as a respondent in discovery, arguing that to be

named under the statute, the plaintiff must genuinely believe or strongly suspect that the

respondent in discovery is responsible for the injury and Williams used the section

inappropriately. Elevate Care contended that it became the operator of Windsor Estate after

Williams was injured, and she knew that, under the transfer agreement, Elevate Care could not

be liable for past misconduct and thus, she had no basis for believing Elevate Care could be

added as a party.

¶ 12 In addition, Elevate Care filed a motion to strike Williams’s Rule 214 request for

production of documents, using the same arguments as in its motion to terminate. It argued

that the discovery pertained only to Windsor Estate and would not give probable cause to add

Elevate Care as a defendant.

¶ 13 Williams then moved for leave to file a first amended complaint. Count III of the proposed

amended complaint referred to a transfer agreement, one of the few documents that Elevate

Care had produced after being named as a respondent in discovery. Williams alleged that under

a provision in the transfer agreement, Elevate Care had to maintain certain records received

from McAllister Nursing. Count IV continued to name Elevate Care as a respondent in

discovery and requested a response to her Rule 214 requests.

¶ 14 The trial court conducted a hearing on both Williams’s motion for leave to amend

complaint and Elevate Care’s motion to strike discovery requests. The court denied Williams’s

motion and entertained arguments about the discovery requests. Williams argued that the

statute allowed “any entity or person [to be] named as a respondent in discovery if they have

information that may lead to the discovery of potential defendants.” Elevate Care countered

that the statute allows a person or entity to be named as a respondent in discovery only if there

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is “some potential” they could be converted to a defendant. Elevate Care asserted that Williams

was “not truly seeking information that may lead to the discovery of potential defendants” but

was using the statute to make a general discovery request. The trial court sided with Williams

and ordered compliance.

¶ 15 Elevate Care filed objections to what it considered Williams’s improper use of the

respondent in discovery statute. Williams, in turn, moved to compel. At the hearing, Elevate

Care argued that the complaint identified the proper defendants, so a subpoena provided the

appropriate method for obtaining records possessed by Elevate Care’s.

¶ 16 The trial court again ordered Elevate Care to produce the documents. Williams orally

requested sanctions against Elevate Care, which the trial court declined, stating, “Well, I think

[Elevate Care] ha[s] a good faith argument here. I just disagree with it and I want to try to be

as efficient as possible.”

¶ 17 After Elevate Care continued refusing to comply, the trial court denied its motion to

terminate its status as a respondent in discovery and held Elevate Care in friendly contempt,

imposing a $1,000 fine.

¶ 18 Analysis

¶ 19 Elevate Care asks us to reverse and vacate all the orders and remand with instructions to

remove it as a respondent in discovery.

¶ 20 Statutory construction gives effect to the legislature’s intent expressed by the plain and

ordinary meaning of the statute’s words. Maksym v. Board of Election Commissioners of

Chicago, 242 Ill. 2d 303, 318 (2011). When the language is clear and unambiguous, we apply

it as written, without resorting to extrinsic aids of statutory construction. Blum v. Koster, 235

Ill. 2d 21, 44 (2009). A court may not append new provisions, change existing ones, or

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assume exceptions, limitations, or conditions unexpressed by the legislature. Hines v.

Department of Public Aid, 221 Ill. 2d 222, 230 (2006). Because the construction of a statute

presents a legal question, our review is de novo. Maksym, 242 Ill. 2d at 318.

¶ 21 Section 2-402: Respondent in Discovery Status

¶ 22 Elevate Care argues that, under section 2-402, a party can be named as a respondent in

discovery only when the plaintiff has a good faith belief that the respondent itself, and only

the respondent, can be converted to a defendant. Elevate Care contends Williams lacked a

good faith belief because Elevate Care was not the nursing home operator of the nursing

home during Williams’s care. Elevate Care refers to the transfer agreement, which states that

Elevate Care could not be held liable if Windsor Estate is found negligent. Elevate Care

asserts Williams is improperly using the statute to obtain discovery it could not obtain from

the named defendants, and instead she should issue subpoenas.

¶ 23 The statute proceeds chronologically. The first paragraph of section 2-402 states:

“The plaintiff in any civil action may designate as respondents in discovery in his or her

pleading those individuals or other entities, other than the named defendants, believed by

the plaintiff to have information essential to the determination of who should properly be

named as additional defendants in the action.

Persons or entities so named as respondents in discovery shall be required to respond

to discovery by the plaintiff in the same manner as are defendants and may, on motion of

the plaintiff, be added as defendants if the evidence discloses the existence of probable

cause for such action.” 735 ILCS 5/2-402 (West 2022).

¶ 24 Under the statute’s plain language, the plaintiff only needs to “believe[ ]” that the

respondent has “information essential to the determination of who should properly be named

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as additional defendants in the action.” (Emphasis added.) Id. Nothing in the wording

restricts what this “information” can be, besides concerning the identification of additional

defendants. But, only the respondent “may” be converted to a defendant by motion.

¶ 25 Elevate Care refused to respond to Williams’s Rule 214 request for additional

information, despite having her medical records from Windsor Estate.

¶ 26 Elevate Care presents a Catch-22 argument. Elevate Care would prevent Williams from

receiving the information she needs to name all culpable parties unless she can demonstrate

that Elevate Care could be converted into a defendant without having her complete medical

records. Elevate Care contends that the transfer agreement and the findings of the Illinois

Department of Public Health preclude the possibility of adding it as a named defendant. This

is incorrect.

¶ 27 Williams’s Rule 214 request could reveal pertinent details to decide if Elevate Care or

others should be named as defendants. Thus, Williams’s use of the respondent in discovery

statute was appropriate.

¶ 28 Elevate Care’s reference to the transfer agreement is a nonstarter, regardless of whether

the transfer agreement shields it from liability. First, Williams did not know the contents of

the transfer agreement until after it filed the complaint with Elevate Care as a respondent in

discovery. Second, nothing in the agreement prevents Williams from naming Elevate Care as

a respondent in discovery or as a defendant. Nor would principles of contract law prevent her

from suing Elevate Care, as she was not a party to the transfer agreement.

¶ 29 According to Williams, the Department’s letter contradicted the transfer agreement when

it named “Elevate Care Country Club Hill” as responsible for Williams’s improper nursing

care. This led her believe that Elevate Care, as the “provider or supplier,” possessed her

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medical records, which might contain information that could lead her to identifying

additional defendants.

¶ 30 Elevate Care relies on cases that are factually distinguishable or that deal with a separate

question about the application of section 2-402. For instance, in Westwood Construction

Group, Inc. v. IRUS Property, LLC, 2016 IL App (1st) 142490, ¶¶ 7, 17, this court concluded

that section 2-402 allows a plaintiff to designate a party as a respondent in discovery in an

amended complaint after naming them as a defendant in a dismissed complaint. Although the

plaintiffs in Westwood used section 2-402 to name as respondents in discovery parties they

previously attempted to name as defendants, the court did not address the issue here. Indeed,

Westwood states that the “only limitation is that the designated persons or entities be

‘believed by the plaintiff to have information essential to the determination of who should

properly be named as additional defendants in the case.’ ” Id. ¶ 17 (quoting 735 ILCS 5/2-

402 (West 2012)).

¶ 31 Elevate Care relies on Ingram v. Angela Intili, M.D., Ltd., 2022 IL App (1st) 210656, to

illustrate the legislative intent behind section 2-402. But we do not consider the legislature’s

intent when the statute’s language is clear and unambiguous. Blum, 235 Ill. 21 at 44. Elevate

Care focuses on language that the legislature intended to “allow[ ] plaintiffs to name as

respondents in discovery those persons or entities whose culpability cannot be determined at

the time the complaint is filed.” Ingram, 2022 IL App (1st) 210656, ¶ 15. But this is just one

of several benefits of section 2-402 described in Ingram, including that the section “allows

plaintiffs to obtain relevant information from those who possess it in order to determine

whether a claim can be stated against potential defendants.” (Emphasis added.) Id.

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¶ 32 Likewise, the probable cause threshold in Cleeton v. SIU Healthcare, Inc., 2023 IL

128651, does not apply here. Williams is not attempting to convert Elevate Care from a

respondent in discovery to a defendant. In Cleeton, the plaintiff, the administrator of

decedent’s estate, filed a wrongful death suit and named the medical center and several

medical professionals respondents in discovery. Id. ¶ 1. After receiving discovery, plaintiff

moved to convert a doctor from respondent in discovery to defendant. Id. ¶ 15. The court

stated that the plaintiff must have “an honest and strong suspicion that the purported

negligence of the respondent in discovery was a proximate cause of plaintiff’s injury.” Id.

¶ 31. Williams, though, has not moved to convert Elevate Care to a defendant because she

awaits information Elevate Care has refused to turn over. So, the probable cause standard is

irrelevant.

¶ 33 At oral argument, Elevate Care’s attorney raised an argument not included in its briefs

and, thus, forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are

forfeited and shall not be raised in the reply brief, in oral argument, or on petition for

rehearing.”). Elevate Care asserted that under rules of grammar, our interpretation of the

respondent in discovery statute hinges on the word “who” in section 2-402. (Plaintiff may

name as respondents in discovery individuals or entities “believed by the plaintiff to have

information essential to the determination of who should properly be named as additional

defendants.” (Emphasis added.) 735 ILCS 5/2-402 (West 2022). Elevate Care considers

“who” as referring to the respondent in discovery and not other persons or entities that could

be named as a defendant.

¶ 34 Because the forfeiture rules are admonitions to the litigants rather than a limitation on our

jurisdiction, we may override considerations of waiver and forfeiture to achieve a just result

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and maintain a sound and uniform body of precedent. Pinske v. Allstate Property & Casualty

Insurance Co., 2015 IL App (1st) 150537, ¶ 19. Therefore, we will address the argument.

¶ 35 Elevate Care’s attorney did not specify a rule of grammar supporting his argument, and

we have found none. Regardless, as noted, a plain reading of the statute demonstrates that

“who” can be read to include persons or entities with information essential to discovering

potential defendants. Indeed, if the legislature intended to limit the statute to respondents in

discovery, it could have used terms like “respondents in discovery” or “they,” instead of

“who.” Moreover, Elevate Care’s attorney agreed that the statute is unambiguous; thus, we

need not look to extrinsic aids of statutory construction like rules of grammar. See Blum, 235

Ill. 2d at 44.

¶ 36 Rules of grammar aside, if “who” is synonymous with “respondent in discovery,” then

what happens when discovery reveals potential defendants other than the respondent in

discovery? Surely, the plaintiff could sue them, just that the provisions of section 2-402 would

not apply.

¶ 37 The trial court correctly found that Williams named Elevate Care as a respondent in

discovery under section 2-402. Contrary to what Elevate Care contends, the statute does not

require that a plaintiff have probable cause or intend to convert a respondent in discovery to a

defendant. Thus, we affirm the order granting Williams’s motion to compel production and

remand for proceedings, including the production of all documents that the trial court had

ordered produced.

¶ 38 Civil Contempt

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¶ 39 Elevate Care asks that the civil contempt finding be reversed and it be dismissed from the

case because the six-month time limit for converting a respondent in discovery to a defendant

expired without Williams seeking an extension.

¶ 40 Williams counters that Elevate Care’s absolute refusal to comply with the timely filed

discovery obviated the need to seek an extension. See 735 ILCS 5/2-402 (West 2022). We

agree and deny dismissal. The statute contemplates this situation when it states

“[n]otwithstanding the limitations in this Section,” the trial court “may grant additional

reasonable extensions from this 6-month period for a failure or refusal on the part of the

respondent to comply with timely filed discovery.” Id. There is no time requirement for filing

the motion for extension when the respondent has failed or refused to comply. And for good

reason. When a respondent fails or refuses to comply, neither the plaintiff nor the court can

predict when the discovery might be completed. Elevate Care’s interpretation could easily

require multiple extensions, which, considering the failure or refusal to produce the

information, would be a waste of time.

¶ 41 Concerning the contempt order, submitting oneself to a finding of contempt can be an

appropriate way of challenging the validity of a court order. Buckholtz v. MacNeal Hospital,

313 Ill. App. 3d 521, 527 (2000). Appellate courts typically vacate contempt orders when the

contemnor’s refusal stems from a good faith effort to clarify an issue lacking clear precedent.

In re Marriage of Rosenbaum-Golden, 381 Ill. App. 3d 65, 82 (2008).

¶ 42 Elevate Care’s attorney informed the trial court that his client sought a “friendly

contempt order” to obtain appellate review, and the record supports a finding of good faith.

¶ 43 We vacate the contempt order and associated sanction.

¶ 44 Affirmed and remanded.

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Williams v. McAllister Nursing & Rehab, LLC, 2024 IL App (1st) 231805

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2023-L- 1231; the Hon. Scott D. McKenna, Judge, presiding.

Attorneys Joshua G. Vincent and Richard C. Harris, of Hinshaw & for Culbertson LLP, of Chicago, for appellant. Appellant:

Attorneys Lawrence B. Finn, of The Finn Law Firm, of Chicago, for for appellee. Appellee:

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