No. 1-13-2842 Fifth Division July 25, 2014

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) RICHARD CHOLIPSKI and ) Appeal from the Circuit Court CYNTHIA CHOLIPSKI, ) of Cook County. ) Plaintiffs-Appellees, ) ) v. ) No. 10 L 001268 ) BOVIS LEND LEASE, INC., ) The Honorable ALDRIDGE ELECTRIC, INC., and ) Randye A. Kogan, VITATECH ENGINEERING, L.L.C., ) Judge, presiding. ) Defendants-Appellants. )

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

¶1 On this interlocutory appeal, defendants Bovis Lend Lease, Inc. (Bovis),

Aldridge Electric, Inc. (Aldridge), and Vitatech Engineering, L.L.C. (Vitatech), No. 1-13-2842

argue that the trial court erred in staying their contribution claim against Dr.

Kenneth Candido and his practice group.

¶2 Plaintiffs Richard Cholipski (plaintiff) and his wife, Cynthia Cholipski,

brought a negligence action against defendants for injuries which he allegedly

sustained as a result of an accident in April 2009, and her damages for loss of

consortium, when metal tubing fell on him while he was working on a

construction project. Plaintiff claims that, as a result of this accident, he suffers

pain which renders him permanently disabled.

¶3 Defendants claim that plaintiff's pain management doctor, Dr. Kenneth

Candido, committed malpractice in his diagnosis of and in his failure to treat

plaintiff, and that the doctor's malpractice is the cause of plaintiff's current pain

and incapacitation. On August 15, 2013, the trial court granted leave to

defendants to file their contribution claim but stayed the claim pending the

outcome of the trial on plaintiff's negligence claims, which was scheduled to

begin on January 13, 2014. It is this stay that defendants now appeal, pursuant

to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010).

¶4 On December 11, 2013, the appellate court granted defendant's motion to

stay the trial date of January 13, 2014, until resolution of this interlocutory

appeal.

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¶5 For the following reasons, we affirm the trial court's stay order and

vacate our order staying the negligence trial.

¶6 BACKGROUND

¶7 I. The Complaint in the Underlying Negligence Action

¶8 This case involves two complaints: (1) plaintiff's negligence complaint

against defendants; and (2) defendants' third-party complaint against plaintiff's

doctor.

¶9 Plaintiff's original complaint was filed January 28, 2010. However,

plaintiff's most recent complaint is his second amended complaint, filed

February 14, 2013, which we describe below.

¶ 10 Plaintiff's second amended complaint alleges that, on April 28, 2009,

plaintiff was employed by M & I Steel, and was working at an ongoing

construction project on the tenth floor of the Chicago Mercantile Exchange,

located at 20 South Wacker Drive in Chicago, Illinois. In connection with the

project, metal tubing was stored vertically in a vault room on the tenth floor,

and the tubing was not secured in any way other than by resting the tubing on

its ends. Plaintiff was working in the vault room when the tubing fell on his

body, causing injury.

¶ 11 Plaintiff alleged that defendant Bovis performed general contracting or

construction management functions on the project, that defendant Aldridge

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placed the tubing on its ends in the vault room, and that plaintiff's employer was

a subcontractor to defendant Vitatech, a contractor on the project. The

complaint alleged six counts: three counts by plaintiff, with one count against

each of the three defendants; and three counts by his wife, also with one count

against each of the three defendants. The counts by plaintiff alleged

construction negligence which resulted in personal injury, and the counts by his

wife alleged construction negligence which resulted in loss of consortium.

¶ 12 II. The Third-Party Complaint

¶ 13 More than three years after plaintiff filed his original complaint,

defendants moved on April 3, 2013, for leave to file their third-party complaint

for contribution from Dr. Kenneth Candido and his medical group, Advocate

Physician Partners (Advocate).

¶ 14 Defendants' one-count third-party complaint for contribution alleged that

Dr. Candido, a physician specializing in pain management and plaintiff's

treating physician, caused plaintiff to be totally and permanently disabled as a

result of his care and treatment. The complaint alleged that the doctor

misdiagnosed plaintiff with "complex regional pain syndrome" (CRPS), failed

to treat plaintiff for hypertension and for planter and peroneal neuralgias,

administered "massive doses of Decadron" despite plaintiff's hypertension, and

committed other acts of negligence. The complaint stated that, if defendants are

4 No. 1-13-2842

found liable to plaintiff, then they are entitled to contribution from Dr. Candido

and Advocate.

¶ 15 III. Procedural History

¶ 16 On April 12, 2013, the trial court initially denied defendants leave to file

their contribution claim, without prejudice, on the ground that they could file a

separate cause of action against Dr. Candido and Advocate. On May 3, 2013,

defendants moved the trial court to reconsider its denial.

¶ 17 Plaintiff filed a response, objecting to defendants' motion for

reconsideration on the ground that adding new parties and causes of action at

this late date would delay the trial and also confuse the issues at trial. In the

alternative, if the trial granted defendants' motion, plaintiff requested that the

trial court sever the third-party medical malpractice claim from the negligence

claims and order separate trials.

¶ 18 In defendants' reply brief, defendants objected to plaintiff's request for a

severance and separate trials, arguing that severing the contribution claim

would be the same as filing the claim in a separate action, which "Illinois law

prohibits." However, defendants made no arguments based on constitutional

due process.

¶ 19 Several months later, on August 6, 2013, the trial court set a trial date of

January 13, 2014. The trial court then reconsidered its prior denial, as

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defendants had requested, and on August 15, 2013, the trial court granted

defendants leave to file their contribution claim. However, the trial court also

granted plaintiff's request for severance and separate trials by ordering a stay of

the contribution claim until after the resolution of plaintiff's negligence claims.

The trial court's written order stated that the court's "reasons [were] set forth in

the record."

¶ 20 At the hearing, the trial court explained that, in light of the January 13,

2014, trial date, the delay would be unfair to plaintiff:

"THE COURT: Counsel, this is a 2010 case. That means the case is

over three years old. It is set for trial January 13th of 2014. There is no

way that you can get discovery on a medical practice case done by

January of 2014. No way. By the time – You don't have service, there

will most likely be motions on the pleadings, discovery, motions on the

discovery *** It's not fair to the plaintiff in this case that's been

pending[.]"

¶ 21 The trial court stressed its concern about delay, stating:

"THE COURT: So another three years they should wait because

you've added a malpractice third-party? Absolutely not. And that's in

my discretion and all the cases say it's the trial court['s discretion]; and if

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the trial court wants to sever, it can sever. If the trial court wants to stay,

it can stay."

¶ 22 The trial court then held that the contribution claim was "reinstatable at

the conclusion of the trial on the merits of the case in chief," and it summed up

its decision as follows:

"THE COURT: Your motion is granted. Vacate my order, granted

leave to file the third-party complaint, summons to issue, and it's stayed.

DEFENSE COUNSEL: Okay.

PLAINTIFF'S COUNSEL: Okay."

¶ 23 Neither attorney offered any objection to the trial court's decision and, as

quoted above, both attorneys stated "okay" after the trial court stated it.

¶ 24 On September 13, 2013, defendants appealed to this court the portion of

the trial court's August 15, 2013, order, which stayed their contribution claim.

The appeal was filed pursuant to Supreme Court Rule 307(a)(1), which permits

interlocutory appeals from orders granting an injunction. Ill. S. Ct. R. 307(a)(1)

(eff. Feb. 26, 2010). On October 22, 2013, defendants moved the trial court to

continue or stay the January 13, 2014, trial date pending the resolution of their

interlocutory appeal before this court. After the trial court denied their motion

on October 29, 2013, defendants appealed the trial court's denial to stay the trial

date. On November 11, 2013, defendants filed an emergency motion in the

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appellate court to stay the trial court date, which the appellate court granted on

December 11, 2013.

¶ 25 On December 12, 2013, plaintiffs moved the appellate court to dismiss

defendants' appeal of the trial court's order refusing to stay the trial date.

Defendants then moved the appellate court to consolidate the two interlocutory

appeals, which the appellate court granted on December 30, 2013. On February

6, 2014, the appellate court dismissed the interlocutory appeal of the trial court's

order refusing to stay the trial dated but the interlocutory appeal of the trial

court's stay of the contribution claim remained pending.

¶ 26 ANALYSIS

¶ 27 In this interlocutory appeal, defendants claim that the trial court abused

its discretion by ordering a stay of their contribution claim pending the outcome

of plaintiff's negligence claims. For the following reasons, we affirm.

¶ 28 I. Jurisdiction

¶ 29 The first issue we must address is jurisdiction. Plaintiff argues that we

lack subject matter jurisdiction to hear this interlocutory appeal from the trial

court's stay order.

¶ 30 Defendants argue that we have jurisdiction pursuant to Illinois Supreme

Court Rule 307(a)(1), which provides:

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"An appeal may be taken to the Appellate Court from an interlocutory

order of court: (1) granting, modifying, refusing, dissolving, or refusing

to dissolve or modify an injunction." Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26,

2010).

¶ 31 Although Rule 307(a)(1) does not use the word "stay," our supreme court

has previously held that Rule 307 provides jurisdiction to review stays of

arbitration and administrative orders. For example, in Salsitz v. Kreiss,

(2001), our supreme court held: "An order of the circuit court to

compel or stay arbitration is injunctive in nature and subject to interlocutory

appeal under paragraph (a)(1) of [Rule 307]." See also Notaro v. Nor-Evan

Corp.,

(1983) ("We hold that the order denying defendant's

motion to compel arbitration was an appealable order."). Similarly, in Marsh

v. Illinois Racing Board,

(1998), our supreme court held

that "the issuance of a stay of an administrative order pending judicial review

constitutes an injunction for purposes of an appeal under Supreme Court Rule

307(a)(1)."

¶ 32 These holdings are not surprising considering that years before, our

supreme court had cited with approval an appellate court opinion which had

held that jurisdiction was appropriate under Rule 307 to review "an order

staying proceedings in a case pending the rendition of judgment in a related

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case." Bohn Aluminum & Brass Co. v. Barker,

(1973)

(citing with approval Valente v. Maida,

(1960)). In

Bohn, our supreme court also quoted with approval another appellate court

opinion holding: " 'Even if defendant had not used the open-sesame word

"enjoin" to invoke this rule (ie. Rule 307), the words "stay" and "restrain" mean

about the same and had a "stay" alone been allowed its effect would have been

to "enjoin" further proceedings.' " Bohn,

(quoting Wiseman v.

Law Research Service, Inc.,

(1971)).

¶ 33 Relying on this supreme court precedent, the appellate court has

repeatedly held that Rule 307 permits the interlocutory appeal of a stay of court

proceedings because " '[a] stay is considered injunctive in nature, and thus an

order granting or denying a stay fits squarely within Rule 307(a).' " Aventine

Renewable Energy, Inc. v. JP Morgan Securities, Inc.,

(2010) (the appellate court had jurisdiction pursuant to Rule 307 to

review the trial court's grant of a stay of court proceedings) (quoting Rogers v.

Tyson Foods, Inc.,

(2008)). See also Hastings Mutual

Insurance Co. v. Ultimate Backyard, L.L.C.,

("this court has jurisdiction to hear the appeal of the lower court's order denying

the motion to stay" workers' compensation proceedings); Khan v. BDO

Seidman, L.L.P.,

("An order granting a stay of

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proceedings is a preliminary injunction, appealable under Rule 307(a)," and

thus, the appellate court had jurisdiction to review the trial court's stay of trial

court proceedings pending the outcome of a supreme court case); Lundy v.

Farmers Group, Inc.,

(2001) ("Courts have treated the

denial of a motion to stay as a denial of a request for a preliminary injunction"

and thus the appellate court had jurisdiction pursuant to Rule 307 to review the

trial court's stay of plaintiff's cause of action); Beard v. Mount Carroll Mutual

Fire Insurance Co.,

(1990) ("The denial of a stay by a

trial court is treated as a denial of a request for a preliminary injunction, which

is appealable under Rule 307(a)(1)," and thus the appellate court had

jurisdiction to review the trial court's refusal to stay court proceedings in favor

of arbitration).

¶ 34 Despite these numerous appellate cases stretching back decades, plaintiff

cites in response two 20-year-old cases which it claims "suggest" a different

holding: In re Minor,

(1989); and In re Asbestos Cases,

(1991). As plaintiff forthrightly acknowledges, neither case holds

that a stay is not appealable pursuant to Rule 307. In re Minor concerned an

injunction against newspaper publication, and In re Asbestos concerned a

registry of asbestos claims. In re Minor,

(the interlocutory

restraint against the publication of information in a newspaper was appealable

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as an injunctive order under Rule 307(a)(1)); In re Asbestos,

(the trial court's order establishing a registry for asbestos claims was not

appealable as an injunction pursuant to Rule 307(a)(1)). In addition, plaintiff

argues that we should reconsider our numerous prior holdings because

otherwise "the sluicegates will be difficult to close." We do not find this a

sufficient reason to ignore our well-established precedent.

¶ 35 Thus, we conclude that we have subject matter jurisdiction to hear this

interlocutory appeal pursuant to Supreme Court Rule 307.

¶ 36 Plaintiff also claims, without any citation to authority or legal argument,

that the proper parties are not before this court because defendants failed to

include the doctor and his group as part of this appeal. However, "[t]his court

has repeatedly held that a party waives a point by failing to argue it." Lozman

v. Putnam,

(2008). See also People v. Ward,

(2005) ("point raised in a brief but not supported by citation to

relevant authority *** is therefore forefeited"); In re Marriage of Bates,

(2004) ("A reviewing court is entitled to have issues clearly defined

with relevant authority cited."); Rosier v. Cascade Mountains, Inc.,

(2006) (by failing to offer supporting legal authority or any

reasoned argument, plaintiffs waived consideration of their theory for asserting

personal jurisdiction over defendants); Ferguson v. Bill Berger Associates, Inc.,

12 No. 1-13-2842

(1998) ("it is not necessary to decide this question since

the defendant has waived the issue" by failing to offer case citation or other

support as Supreme Court Rule 341 requires); Ill. S. Ct. R. 341(h)(7) (eff. Feb.

6, 2013) (argument in appellate brief must be supported by citation to legal

authority and factual record). Thus, we do not consider this argument.

¶ 37 II. No Abuse of Discretion

¶ 38 Now that we have concluded that we have subject matter jurisdiction to

hear this claim, we will consider defendants' substantive claim that the trial

court abused its discretion by issuing a stay of defendants' contribution claim.

¶ 39 Both plaintiff and defendants agree, and they are correct, that a trial

court's decision to issue or deny a stay will not be overturned on appeal unless

the trial court abused its discretion in making the decision. Khan,

; Hastings,

; Aventine,

(citing May v. SmithKline Becham Clinical Laboratories,

Inc.,

(1999)). "[O]ur standard of review – abuse of

discretion – is the most deferential standard of review recognized by law."

Khan,

. An abuse of discretion does not occur

when a reviewing court merely disagrees with the trial court, but only when the

trial court acted arbitrarily, exceeded the bounds of reason, or ignored or

13 No. 1-13-2842

misapprehended the law. Hastings,

; Aventine,

.

¶ 40 With respect to a stay, a trial court does not act " 'outside its discretion' "

by staying a proceeding in favor of another proceeding "that could dispose of

significant issues." Khan,

. A stay is generally

considered "a sound exercise of discretion" if the other proceeding "has the

potential of being completely dispositive." Khan,

.

¶ 41 In the case at bar, defendants' alleged negligence in the workplace is a

significant and wholly separate issue from the doctor's alleged medical

malpractice. Even if the doctor committed medical malpractice, this malpractice

is unlikely to be dispositive of the entire case, since the doctor would not have

treated plaintiff in the first place but for the accident which caused plaintiff's

original injury. By contrast, the resolution of plaintiff's negligence claims has

the potential of being completely dispositive of the entire case because, if

defendants are not found to have been negligent then there is no need to address

their contribution claim against plaintiff's treating physician. Thus, we cannot

find that the trial court acted arbitrarily by issuing a stay of defendants'

contribution claim.

14 No. 1-13-2842

¶ 42 If we reverse the trial court here and set a precedent that the court abused

its discretion by issuing a stay, then in every tort case with an injured plaintiff

who is hoping for a speedy resolution, the defendant can wait three years and

then bring a contribution claim against the treating physician, thereby delaying

the case in a way that brings pressure on the injured plaintiff to settle. As the

trial court so succinctly put it in the case at bar, "[s]o another three years they

should wait because you've added a malpractice third-party?"

¶ 43 For just this reason, this court has previously held that a trial court did

not abuse its discretion by severing a third-party medical malpractice claim

from the underlying negligence case for purposes of trial. Ryan v. E.A.I.

Construction Corp.,

(1987) (no abuse of discretion

considering the different "witnesses, parties and claims"). In Ryan, as in our

case, the plaintiff was a construction worker who was injured on the job. Ryan,

. In Ryan, as in our case, the plaintiff brought negligence

claims against the construction companies. Ryan,

. In

Ryan, as in our case, one of the defendants brought a third-party claim against

the plaintiff's treating physician. Ryan,

. In Ryan, as

in our case, the trial court severed the medical malpractice claim from the

negligence claims for purposes of trial. Ryan,

. In Ryan,

as in our case, the defendant claimed on appeal that the trial court abused its

15 No. 1-13-2842

discretion by denying it a joint trial and this court held, as we do now, that it

could not find an abuse of discretion. Ryan,

.

¶ 44 In the case at bar, the trial court could have denied completely

defendants' motion for leave to file a third-party complaint. Winter v. Henry

Service Co.,

(1991) ("The question of allowing a third-

party complaint for contribution is clearly addressed to the sound discretion of

the trial court."). Instead of doing this, the trial court chose a middle path,

permitting defendants leave to file their third-party complaint but staying their

medical malpractice claim in order to allow plaintiff to have a timely resolution

of his negligence claims. We can find no abuse of discretion in the trial court's

choice of a middle path.

¶ 45 III. The Laue Decision

¶ 46 In addition, defendants claim that the trial court abused its discretion

because the stay violates the principles underlying section 5 of the Joint

Tortfeasor Contribution Act (740 ILCS 100/5 (West 2012)), as articulated by

our supreme court in Laue v. Leifheit,

(1984).

¶ 47 Before discussing section 5, we must first determine which version of

section 5 applies to the case before us. In 1995, the legislature amended section

5 so that it read:

16 No. 1-13-2842

"Enforcement. Other than in actions for healing art malpractice, a cause

of action for contribution among joint tortfeasors is not required to be

asserted during the pendency of litigation brought by a claimant and may

be asserted by a separate action before or after payment of a settlement or

judgment in favor of the claimant, and may be asserted by counterclaim

or by third-party complaint in a pending action." 740 ILCS 100/5 (West

1996); Pub. Act 89-7 (eff. Mar. 9, 1995).

¶ 48 However, Public Act 89-7, which amended section 5, was then held

unconstitutional in its entirety by the Illinois Supreme Court in Best v. Taylor

Machine Works,

(1997). After Best, our supreme court

explained that: "As a result [of Best], the amended version of section 5 was

rendered void ab initio, and the version of the statute in existence prior to the

amendment remained in effect." Harshman v. DePhillips,

, 489

n.1 (2006). The supreme court observed that "[a]s yet, the legislature has not

reenacted the amended version of section 5." Harshman,

n.1.

Since the legislature has still not reenacted the amended version, the prior

version is still in effect.

¶ 49 Prior to Public Act 89-7, section 5 provided:

"Enforcement. A cause of action for contribution among joint tortfeasors

may be asserted by a separate action before or after payment, by

17 No. 1-13-2842

counterclaim or by third-party complaint in a pending action." 740 IlCS

100/5 (West 1992).

¶ 50 In Laue, our supreme court interpreted this version of section 5. Laue,

. Since this version of section 5 is still in effect, the Laue

opinion also governs our case. The Laue court held:

"the language in section 5 providing that a contribution claim may be

asserted by a 'separate action before or after payment' covers situations

where no suit is pending which was initiated by the injured party;

however, when there is a pending action, the contribution claim should

be asserted 'by counterclaim or by third-party claim' in that action."

(Emphasis in original.) Laue,

.

As required by the holding in Laue quoted above, defendants did file their

contribution claim as a third-party claim in the pending action.

¶ 51 Neither section 5 nor the opinion in Laue say anything about a stay.

However, defendants argue that the stay issued by the trial court violated the

"principles" or dicta in Laue.

¶ 52 Specifically, defendants quote the portion of Laue in which the supreme

court stated the reasons for requiring a contribution claim to be filed in a

pending action if an action was pending:

18 No. 1-13-2842

"One jury should decide both the liability to the plaintiff and the

percentages of liability among the defendants, so as to avoid a

multiplicity of lawsuits in an already crowded court system and the

possibility of inconsistent verdicts." Laue,

.

Our supreme court subsequently explained the above quote from Laue, stating:

"While a strong policy preference for a joint trial is implicit in [Laue], and we

now reiterate that policy, [Laue] requires only that claims for contribution be

asserted in the pending action, not that there must inevitably be a joint trial in

every case." Cook v. General Electric Co.,

(1992). Thus,

defendants' reference to "the Laue rule" is misleading. There is no hard and fast

rule about joint trials but rather a policy preference for a joint trial which is still

left up to the trial court's discretion to weigh among other factors. Cook,

(applying an abuse of discretion standard of review). There is a

Laue "rule," but it is that, if an action by an injured party is pending, any

contribution claim must be made in that pending action, which was done in the

case at bar. Henry v. St. John's Hospital,

(1990)

(discussing the Laue "rule").

¶ 53 Defendants assert, without any citation to authority, that the potential for

years of delay before any possibility of recovery by an injured plaintiff is not

enough of a factor to justify a stay and the lack of a joint trial. As noted above,

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points not supported by citation to relevant authority are waived. Ward,

("point raised in a brief but not supported by citation to relevant

authority *** is therefore forefeited"); In re Marriage of Bates,

("A reviewing court is entitled to have issues clearly defined with relevant

authority cited."); Rosier,

(by failing to offer supporting

legal authority or any reasoned argument, plaintiffs waived consideration of

their theory for asserting personal jurisdiction over defendants); Ferguson,

("it is not necessary to decide this question since the

defendant has waived the issue" by failing to offer case citation or other support

as Supreme Court Rule 341 requires); Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)

(argument in appellate brief must be supported by citation to legal authority and

factual record).

¶ 54 In addition, the facts in the case at bar are readily distinguishable from

the facts in Laue. In Laue, Nancy Leifheit and four members of her family sued

John Laue for negligence. Laue, the defendant in the original action, was

driving a truck which collided with a vehicle driven by Leifheit, in which four

members of Leifheit's family were passengers. In the original action, the jury

returned verdicts against Laue but Leifheit's award of damages was reduced by

one-third which was the jury's assessment of her comparative negligence in

causing her own injuries. After the verdict and judgment in the original action,

20 No. 1-13-2842

Laue filed a complaint against Leifheit for one-third of all the damages that he

had paid to her family. Laue,

. Thus, in Laue, the subject

of the original action and the subject of the contribution action were almost

exactly the same, namely, the collision. By contrast, in the case at bar, the

subject of plaintiff's negligence action is primarily defendants' alleged

negligence in the workplace, while the subject of defendants' contribution

action is primarily the doctor's alleged malpractice. Thus, Laue is readily

distinguishable from the case at bar.

¶ 55 For these reasons, we do not find defendants' argument persuasive and

conclude that the trial court did not abuse its discretion by issuing a stay.

¶ 56 IV. Due Process

¶ 57 Defendants next claim that the trial court's order of a stay denied them

due process, because a separate trial of their claim will hinder their ability to

develop fully their defense in the negligence trial and to defend themselves at

that trial. In response, plaintiffs make one argument: that defendants waived this

constitutional issue by failing to raise it below. We agree.

¶ 58 Issues " 'not raised in the trial court are waived and may not be raised for

the first time on appeal.' " Jackson v. Hunter,

(2010)

(quoting Shell Oil Co. v. Department of Revenue,

(1990));

IPF Recovery Co. v. Illinois Insurance Guaranty Fund,

,

21 No. 1-13-2842

659, 666 (2005) (" '[I]t has long been held that arguments not raised in the trial

court are considered waived on appeal.' " (quoting Illinois Tool Works, Inc. v.

Independent Machine Corp.,

(2003)). This rule

applies to interlocutory appeals (IPF Recovery Co.,

(in an interlocutory appeal, the supreme court held that the plaintiff had waived

an issue "for purposes of this appeal" by failing to raise it before the trial

court)); to constitutional arguments (Connor v. City of Chicago,

(2004) (since "[t]he waiver rule applies even to constitutional

issues," plaintiff waived review of his due process argument by failing to raise

it below before an administrative agency)); and to civil cases (Werner v. Botti,

Marinaccio & DeSalvo,

(1990) (since "[t]he general

rule in civil cases is that constitutional arguments which are not raised by

objection at trial are considered waived for purposes of appeal," defendants

waived their due process arguments by failing to raise them in the trial court

(citing In re Liquidation of Reserve Insurance Co.,

(1988)))).

¶ 59 In their reply brief, defendants do not claim that they raised any

constitutional objections in the trial court. Instead, they argue that they "did not

have a realistic opportunity to raise" this issue in the court below. This is

factually incorrect.

22 No. 1-13-2842

¶ 60 When defendants moved the trial court to reconsider its denial of leave

to file a third-party complaint, plaintiff responded by objecting to the motion on

the grounds of delay and also by requesting in the alternative that, if the trial

granted defendants' motion, then the trial court should sever the third-party

medical malpractice claim from the negligence claims and order separate trials.

¶ 61 In defendants' reply brief, defendants objected to plaintiff's request for a

severance and separate trials, arguing that severing the contribution claim

would be the same as filing the claim in a separate action, which "Illinois law

prohibits." However, defendants offered no arguments based on constitutional

due process.

¶ 62 On August 15, 2013, the trial court reconsidered its prior denial, as

defendants had requested, and granted defendants leave to file their contribution

claim. The trial court also acknowledged plaintiff's concerns about delay and

granted plaintiff's request for severance and separate trials by staying the

contribution claim until the resolution of the negligence claim. When the trial

court announced its decision in open court, defendants offered no objections –

constitutional or otherwise – and merely stated "Okay." Thus, contrary to their

argument on appeal, defendants had a realistic opportunity in both their reply

brief and at the hearing to raise a constitutional due process argument

concerning delay and separate trials, and they failed to do so.

23 No. 1-13-2842

¶ 63 In addition, under the doctrine of invited error, a party " 'may not

request to proceed in one manner and then later contend on appeal that the

course of action was in error.' " People v. Harvey,

(2004)

(quoting People v. Carter,

(2003)). When a party

acquiesces to a trial court's ruling, even if it is improper, the party cannot

contest the ruling on appeal. Crittenden v. Cook County Comm'n on Human

Rights, 2012 IL App (1st) ¶ 61, aff'd,

. In the case at bar,

defendants requested leave to file a third-party complaint and, when the trial

court granted their request and issued a stay as part of that grant, defendants

acquiesced to the trial court's order by stating "Okay" and by failing to raise any

objections to it, including any constitutional due process objections. Thus,

defendants have waived their due process arguments for the purposes of this

appeal.

¶ 64 CONCLUSION

¶ 65 For the foregoing reasons, the trial court did not err in staying defendants'

contribution claim against plaintiff's treating physician and medical practice

group. The trial court's order was neither an abuse of discretion nor a violation

of the Laue rule. In addition, defendants waived any constitutional due process

arguments by failing to raise them in the court below.

24 No. 1-13-2842

¶ 66 Since we are affirming the stay of the contribution claim and remanding

the case for further proceedings, we also vacate our prior order, dated

December 11, 2013, in which we stayed the negligence trial until the resolution

of this interlocutory appeal.

¶ 67 Affirmed and remanded.

25