2018 IL App (1st) 171068
FIRST DIVISION
July 9, 2018
No. 1-17-1068
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
DAVA GRUNDHOEFER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
) No. 15 L 000361
v. )
)
JOHN SORIN and BETTE SORIN, ) Honorable
) John H. Ehrlich,
Defendants-Appellees. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Dava Grundhoefer, appeals the order of the circuit court granting summary
judgment in favor of defendants, John Sorin and Bette Sorin, on Grundhoefer’s malicious
prosecution claim. On appeal, Grundhoefer contends the trial court erred in granting summary
judgment where the court (1) failed to follow the law of the case doctrine thereby disregarding a
prior appellate court ruling on the issue of damages and (2) improperly decided contested issues
of fact regarding damages and probable cause that should have been left for a jury to determine.
For the following reasons, we affirm.
No. 1-17-1068
¶2 JURISDICTION
¶3 The trial court granted the Sorins’ motion for summary judgment on January 19, 2017.
Grundhoefer filed a motion to reconsider and vacate, which the trial court denied on April 26,
2017. Grundhoefer filed a notice of appeal on April 27, 2017. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1,
2017), governing appeals from final judgments entered below.
¶4 BACKGROUND
¶5 The following facts relevant to this appeal are taken from our opinion in Grundhoefer’s
prior appeal, Grundhoefer v. Sorin, 2014 IL App (1st) 131276. Grundhoefer, a licensed
physician, was married to the Sorins’ son David. David died on August 11, 2008, when he
suffered a fall while climbing on the outside of their residence. He died intestate, and his estate
was filed in probate. Grundhoefer was appointed administrator of the estate, and she served upon
the Sorins a citation to discover assets. A dispute between the parties arose during these
proceedings, specifically regarding the ownership of a 2007 Hyundai Santa Fe vehicle. On July
21, 2010, while the probate dispute was pending, the Sorins filed a wrongful death claim against
Grundhoefer in which they alleged that Grundhoefer prescribed Ambien to David even though a
side effect of taking the drug is sleepwalking, and she knew of David’s propensity for
sleepwalking. The complaint alleged that Grundhoefer’s actions in prescribing Ambien to David
were “negligent” or “careless,” and proximately caused David’s death.
¶6 Grundhoefer claimed she was never served with the wrongful death complaint and only
learned of its existence from a July 22, 2010, Chicago Sun-Times (Sun-Times) article discussing
the case. Grundhoefer alleged that as a result of the article, a producer from the television show
Dr. Phil contacted her to appear on a show about Ambien. Grundhoefer alleged that the wrongful
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death claim was reported to her malpractice insurance carrier, her employer, and the Illinois
Department of Financial and Professional Regulation. On August 17, 2010, an order was entered
terminating the probate dispute in favor of the Sorins. The Sorins voluntarily dismissed their
wrongful death complaint on October 28, 2010, and have not refiled.
¶7 On January 20, 2011, Grundhoefer filed her original complaint against the Sorins, and
against James J. Roche and James J. Roche Associates, the attorney and law firm representing
the Sorins in their underlying wrongful death claim. Her second amended complaint contained
five counts alleging malicious prosecution and defamation per se against defendants. On March
11, 2013, the trial court granted the defendants’ motions to dismiss pursuant to section 2-615 of
the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), finding that Grundhoefer’s claim
for malicious prosecution did not sufficiently allege an absence of probable cause, nor did it
allege a special injury. It also found that the claims for defamation per se contained allegations
based upon “information and belief,” which did not satisfy the requirement that such claims “be
pled with a heightened level of precision and particularity.”
¶8 Grundhoefer appealed, and this court affirmed dismissal of the defamation per se counts
in the complaint but reversed the dismissal of the malicious prosecution count against the Sorins.
See Grundhoefer, 2014 IL App (1st) 131276. The case was remanded and after discovery had
been conducted, the Sorins filed a motion for summary judgment. They alleged that Grundhoefer
failed to provide any evidence to support the elements of her malicious prosecution claim. After
a hearing, the trial court granted summary judgment in favor of the Sorins, and Grundhoefer filed
this timely appeal.
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¶9 ANALYSIS
¶ 10 First, Grundhoefer argues that the law of the case doctrine precludes the trial court’s
consideration of the probable cause and damages issues below. The law of the case doctrine
provides that “questions of law decided on a previous appeal are binding on the trial court on
remand as well as on the appellate court on a subsequent appeal.” Norris v. National Union Fire
Insurance Co. of Pittsburgh, 368 Ill. App. 3d 576, 580 (2006). The doctrine “merely expresses
the practice of courts generally to refuse to reopen what has been decided.” People v. Patterson,
154 Ill. 2d 414, 468-69 (1992). It applies to a court’s explicit decisions as well as issues decided
by necessary implication. CNA International, Inc. v. Baer, 2012 IL App (1st) 112174, ¶ 39. The
doctrine, however, does not apply to issues of fact or matters concerning the claim that were not
decided by the appellate court. Zokoych v. Spalding, 84 Ill. App. 3d 661, 667 (1980).
¶ 11 Grundhoefer’s prior appeal involved the trial court’s dismissal of her malicious
prosecution claim pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2016)). The question presented by a section 2-615 motion to dismiss is whether the
pleadings contain sufficient allegations which, if proven, could entitle the plaintiff to relief.
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87 (1996). In the instant appeal,
however, the trial court below ruled on a motion for summary judgment. “Upon reaching the
summary judgment stage of [the] proceedings, we have moved beyond an examination of the
sufficiency of the pleadings to a determination of whether there are any material issues of fact to
advance to a full trial.” Holland v. Arthur Andersen & Co., 212 Ill. App. 3d 645, 650 (1991). If
the moving party provides evidence that, if not contradicted, would entitle the party to judgment
as a matter of law, the nonmoving party cannot rely on her pleadings alone to raise issues of
material fact. CitiMortgage, Inc. v. Sconyers, 2014 IL App (1st) 130023, ¶ 9. In other words,
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“[t]hat which may be sufficient to plead a cause of action does not necessarily survive a
summary judgment motion.” Drinane v. State Farm Mutual Automobile Insurance Co., 222 Ill.
App. 3d 805, 810 (1991). Since the trial court did not consider the same issues in the motion to
dismiss as it did in the motion for summary judgment, the law of the case doctrine has no
application here. Therefore, we examine whether the trial court’s grant of summary judgment on
Grundhoefer’s malicious prosecution claim was proper.
¶ 12 The trial court properly grants summary judgment where the pleadings, depositions, and
admissions on file, along with any affidavits, show that no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Robidoux v. Oliphant, 201 Ill. 2d
324, 335 (2002). Although Grundhoefer need not prove her case at the summary judgment stage,
as the nonmoving party she must present a factual basis that would arguably entitled her to a
judgment. Id. We review the trial court’s grant of summary judgment de novo. Home Insurance
Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004).
¶ 13 “A malicious prosecution action is brought to recover damages suffered by one against
whom a suit has been filed maliciously and without probable cause.” Miller v. Rosenberg, 196
Ill. 2d 50, 58 (2001). To establish a claim for malicious prosecution, a party must allege facts
showing (1) the commencement or continuation of an original civil or criminal proceeding, (2)
termination of the proceeding in her favor, (3) absence of probable cause for the proceeding, (4)
presence of malice, and (5) damages resulting to her. Swick v. Liautaud, 169 Ill. 2d 504, 512
(1996). Grundhoefer contends summary judgment was improper where a question of fact exists
as to the element of probable cause.
¶ 14 Probable cause is defined as a “set of facts that would lead a person of ordinary caution
and prudence to believe that he had a justifiable claim against the defendant.” Keefe v. Aluminum
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Co. of America, 166 Ill. App. 3d 316, 317 (1988). Probable cause acts as a complete defense in
an action for malicious prosecution. Ely v. National Super Markets, Inc., 149 Ill. App. 3d 752,
758 (1986). The issue of probable cause as an element of a malicious prosecution claim is a
mixed question of law and fact. Id. Whether the circumstances proving probable cause are true is
a question of fact, but whether these circumstances amount to probable cause is a question of law
for the courts. Id.
¶ 15 In their wrongful death complaint, the Sorins alleged that Grundhoefer was negligent in
prescribing Ambien to David even though she was aware of its side effects and David’s
sleepwalking episodes. They alleged that she also breached her duty of care by failing to warn
David or the Sorins “of the potentially harmful risks and side-effects of Ambien.” In her
deposition, however, Grundhoefer testified that she did not prescribe Ambien to David; rather, it
was David’s father, Dr. Sorin, who had prescribed it to him in the past, and the family knew
David was taking Ambien. Grundhoefer stated that she got this information from David’s sister
after his death. Where the existence of probable cause to initiate the proceedings rests on the
credibility of the parties, the issue is generally one of fact for the fact finder and summary
judgment is not appropriate. Howard v. Firmand, 378 Ill. App. 3d 147, 151 (2007).
¶ 16 We find, however, that summary judgment was proper here where Grundhoefer failed to
establish the damages element of her malicious prosecution claim. Summary judgment is
appropriate where the absence of one or more of the essential elements of a malicious
prosecution claim “has been established to the point that it may fairly be said that no genuine
issue of fact as to its absence exists.” Joiner v. Benton Community Bank, 82 Ill. 2d 40, 45 (1980).
¶ 17 When the underlying lawsuit in a malicious prosecution claim is a civil proceeding,
common law requires that the plaintiff plead and prove some special injury “ ‘beyond the
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anxiety, loss of time, attorney fees, and necessity for defending one’s reputation, which are an
unfortunate incident of many (if not most) lawsuits.’ ” Stopka v. Lesser, 82 Ill. App. 3d 323, 325
(1980) (quoting Lyddon v. Shaw, 56 Ill. App. 3d 815, 818 (1978)). This requirement is based on
the premise that “the courts are open to every citizen to claim what ‘he deems to be his right
without fear of being prosecuted for heavy damages.’ ” Cult Awareness Network v. Church of
Scientology International, 177 Ill. 2d 267, 280-81 (1997) (quoting Smith v. Michigan Buggy Co.,
175 Ill. 619, 628 (1898)).
¶ 18 However, in response to what it perceived as a crisis in medical malpractice litigation, the
General Assembly enacted section 2-109 to make a suit for malicious prosecution more available
as a means to discourage and punish frivolous medical malpractice lawsuits. Miller, 196 Ill. 2d at
63-64. Section 2-109 provides:
“In all cases alleging malicious prosecution arising out of proceedings which sought
damages for injuries or death by reason of medical, hospital, or other healing art
malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause
of action.” 735 ILCS 5/2-109 (West 2016).
The parties do not dispute that section 2-109 applies. Grundhoefer, however, contends that not
only does section 2-109 exempt her from having to plead or prove special damages, but it also
presumes damages so that she need not establish that element on a motion for summary
judgment. Grundhoefer argues that requiring her to prove her career has suffered, or that she has
been financially damaged, would run counter to the legislative purpose of section 2-109.
¶ 19 We disagree with this interpretation of section 2-109. Our primary objective in
interpreting a statute is to ascertain and give effect to legislative intent as indicated by the
statutory language, given its plain and ordinary meaning. Blum v. Koster, 235 Ill. 2d 21, 29
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(2009). Section 2-109 merely states that “the plaintiff need not plead or prove special injury to
sustain his or her cause of action.” 735 ILCS 5/2-109 (West 2016). Nothing in the plain words of
section 2-109 indicates that the General Assembly intended to presume damages, or to eliminate
the need to plead or prove the element of damages in a malicious prosecution claim.
¶ 20 In her claim for malicious prosecution, Grundhoefer alleged as damages the loss of her
“professional reputation and patients.” She alleged that when the Sorins filed their wrongful
death suit against her, she had to “file a claim under professional malpractice insurance” and
“answer to the boards.” The Sorins, however, argued that Grundhoefer’s allegations of damages
“have proven to be either speculative, false, or non-existent.” They noted that they voluntarily
withdrew the suit before summons was served. They also pointed to deposition testimony in
which Grundhoefer stated that she assumed her supervisors reported the wrongful death suit to
their insurance carrier and the Department of Financial and Professional Regulation, but she did
not possess any documents showing such reports. Grundhoefer’s physician profile also contains
no reportable events in her record, and her expert witness, Dr. Atkins, confirmed that because the
wrongful death suit did not result in a judgment or settlement, Grundhoefer was not required to
report it.
¶ 21 Nevertheless, Grundhoefer, without citation to authority, claims she sufficiently
established damages. Despite the absence of supporting documentation, she contends she has no
reason to believe her supervisors at the University of Illinois at Chicago did not report the
lawsuit to their insurance carrier or the Department of Financial and Professional Regulation.
Furthermore, if a prospective employer were to ask whether a claim has ever been filed against
her, she would have to answer truthfully and list the Sorins’ suit. Grundhoefer contends she has
been damaged because Dr. Atkins opined that he would normally hire an equally-qualified
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physician who did not have a malpractice suit on his or her record. However, as discussed above,
the Sorins’ suit does not appear in Grundhoefer’s professional records and her damages claims
are based on what might have happened or may happen in the future. While we find
understandable Grundhoefer’s concerns about how colleagues and prospective employers might
view her if they knew of the lawsuit, she cannot rely on pure speculation or conjecture to
establish damages. Perfection Corp. v. Lochinvar Corp., 349 Ill. App. 3d 738, 744 (2004).
¶ 22 Grundhoefer also alleged damages in the form of lost opportunity. Specifically, she
claimed she would have liked to work at Northwestern or in Chicago but was not offered those
fellowships. She believed that John Sorin, a physician at Northwestern, may have “[done]
something affirmatively” to keep her from those opportunities. Grundhoefer, however, did not
have any information to support this claim and acknowledged that Northwestern gets “a lot of
qualified candidates.” This unsupported and self-serving deposition testimony is not sufficient to
withstand a motion for summary judgment. See id.
¶ 23 Furthermore, Grundhoefer makes no allegation that her malpractice insurance has been
affected by the suit, and when asked whether she “paid for any attorneys’ fees related” to the
wrongful death suit, Grundhoefer answered, “For this part, no.” She stated that she incurred
attorneys’ fees in connection with the probate case. Grundhoefer is presently working and does
not allege that she has had difficulty finding employment or attracting patients as a result of the
Sorins’ suit. Although she acknowledged she has not suffered monetary damages, she wonders
“where [she] would be or what [her] life would be like without [the wrongful death suit] ***.”
Again, such speculation cannot be the basis of a damages award. Id.
¶ 24 Although Grundhoefer need not prove damages at the summary judgment stage, as the
nonmoving party she must present a factual basis for damages that would arguably entitle her to
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a judgment. Robidoux, 201 Ill. 2d at 335. Since she has not established the damages element,
summary judgment in favor of the Sorins was proper. See Swick, 169 Ill. 2d at 512 (finding that a
plaintiff must establish all five elements in order to pursue a malicious prosecution claim).
¶ 25 For these reasons, the judgment of the circuit court is affirmed.
¶ 26 Affirmed.
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