No. 1-21-0984 FIRST DIVISION July 18, 2022

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IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ NANCY CLANTON, as Independent Administrator of the ) Appeal from the Estate of Laurel J. Jansen, Deceased, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) ) No. 2020 L 006460 OAKBROOK HEALTHCARE CENTRE, LTD., an ) Illinois Corporation, d/b/a Oak Brook Care; ) LANCASTER, LTD., an Illinois Corporation; and MAY ) FLOR ANDORA, ) Honorable ) Patricia O. Sheahan, Defendants-Appellants. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Walker concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Nancy Clanton, as administrator for the estate of decedent Laurel Jansen, filed an

eight-count complaint against defendants Oakbrook Healthcare Centre, Ltd., d/b/a Oak Brook

Care (Oakbrook); Lancaster, Ltd. (Lancaster), and May Flor Andora, RN, alleging defendants’

negligence while decedent was a resident of a skilled nursing facility. Defendants subsequently

moved to compel mediation or arbitration with respect to the counts against Oakbrook and No. 1-21-0984

Andora, premised on the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2018))

(count I) and the Survival Act (755 ILCS 5/27-6 (West 2018)) (counts II, VI, and VIII).

Defendants relied on the arbitration provision of the “Contract Between Resident and Facility,”

executed by Debbie Kotalik, a daughter of decedent who purportedly was the holder of

decedent’s healthcare power of attorney. Defendants moved to stay the remaining counts of

the complaint, which consisted of counts under the Wrongful Death Act (740 ILCS 180/0.01

et seq.(West 2018)) against Oakbrook and Andora (counts III and VII), as well as the counts

against the remaining defendant, Lancaster, under the Survival Act and Wrongful Death Act

(counts IV and V). The circuit court denied defendants’ motion in its entirety, finding that the

contract provision regarding arbitration was substantively unconscionable.

¶2 On appeal, defendants argue that the trial court erred in finding the contract was

unconscionable and that even if a portion of the contract was unenforceable, it was severable

from the arbitration agreement. Plaintiff argues that defendants waived the ability to rely on

the contract, the circuit court correctly found the arbitration provision was substantively

unconscionable, and that the arbitration provision is otherwise unenforceable on a number of

other grounds. Among these, plaintiff contends for the first time on appeal that since the

contract stated that it terminated “immediately upon the resident’s death,” the arbitration

agreement therein also terminated and was ineffective after decedent’s death.

¶3 For the following reasons, we conclude that although defendants’ litigation conduct did not

waive its right to invoke the arbitration provision, the agreement was no longer enforceable,

given the contract’s explicit language that it terminated upon decedent’s death. For that reason,

we affirm the trial court’s denial of defendants’ motion to compel arbitration with respect to

the Nursing Home Care Act count against Oakbrook (count I) as well as the negligence-based

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Survival Act counts against Oakbrook and Andora (counts II, VI and VIII). As defendants have

no right to compel arbitration, we also affirm the denial of their request to stay the Wrongful

Death Act counts against Oakbrook and Andora (counts III and VII) pending arbitration. As

defendants raise no argument regarding the trial court’s denial of defendants’ separate request

to stay the two remaining counts against Lancaster (counts IV and V), we also affirm that

portion of the trial court’s order.

¶4 I. BACKGROUND

¶5 Plaintiff Clanton is decedent’s daughter. The underlying lawsuit arises out of decedent’s

stay at a skilled nursing facility allegedly owned and operated by defendants Oakbrook and

Lancaster. Defendant Andora was allegedly employed as a nurse at the facility and was

allegedly “in charge of” decedent’s care and treatment.

¶6 According to plaintiff’s complaint, decedent, who was born in 1931, resided at the facility

from “approximately July 19, 2019 through September 17, 2019 exclusive of intermittent

hospitalizations.” Decedent allegedly had a number of unwitnessed falls in August 2019, after

which her condition deteriorated, and she was hospitalized. Decedent died on September 30,

2019.

¶7 Plaintiff filed the complaint on June 16, 2020. Plaintiff pleaded four counts against

Oakbrook. Count I pleaded a violation of the Nursing Home Care Act (210 ILCS 45/1-101

(West 2018)). Count II asserted a negligence claim under the Survival Act, under which

“actions to recover damages for an injury to the person” survive that person’s death. 755 ILCS

5/27-6 (West 2018)). Count III asserted a negligence claim under the Wrongful Death Act (740

ILCS 180/1 et seq. (West 2018). Count VIII asserted a “res ipsa loquitur” negligence claim

against Oakbrook, which also specified that it was brought under the Survival Act. In addition

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to these four counts against Oakbrook, the complaint also included Survival Act and Wrongful

Death counts against both Lancaster (counts IV and V) and Andora (counts VI and VII).

¶8 Defendants’ counsel filed an appearance on September 24, 2020, and moved for extension

of time to answer. 1 Plaintiff served discovery requests, including requests for documents, on

October 13, 2020. On October 15, 2020, the court entered a Case Management Order that

required Rule 213 interrogatories and Rule 214 document requests to be issued by December

16, 2020, and for such discovery to be completed by April 16, 2021.

¶9 Defendants filed their answer and affirmative defenses on November 17, 2020. Defendants

subsequently issued interrogatories and document requests to plaintiff. The record reflects that

on May 10, 2021, Oakbrook served its answers to plaintiff’s interrogatories and produced

documents.

¶ 10 On May 20, 2021, defendants’ counsel produced additional documents to plaintiff’s

counsel, including the “Contract Between Resident and Facility” (the contract), whose

provisions are at issue in this appeal. Defense counsel provided a letter with the production

stating that the contract was provided to defense counsel by Oakbrook two days earlier.

However, defense counsel did not include an affidavit from any Oakbrook manager or

representative, explaining how the contract was found or why it was not located earlier.

Defense counsel’s letter informed plaintiff’s counsel that the contract contained an “arbitration

agreement” and that defendants planned to “file a motion to enforce the arbitration agreement.”

1 The same law firm represented Oakbrook, Lancaster, and Andora in the circuit court and represents all three defendants in this appeal.

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¶ 11 A. The Contract

¶ 12 The contract reflects that it was entered into by the decedent as “Resident” and Oak Brook

Healthcare & Rehabilitation Centre, Ltd. as the “Facility.” The signature block for the contract

reflects that it was signed by Paula Park, as “Facility Representative” on August 9, 2019. The

contract was signed on behalf of decedent by “Debbie Kotalik (POA).” According to plaintiff’s

submissions, in 2009 decedent executed a statutory short form healthcare power of attorney

(POA) appointing Kotalik. 2

¶ 13 The terms of the contract are set forth in a number of sections. Of particular relevance to

this appeal, section “E” of the contract states as follows:

“E. Dispute Resolution/Punitive Damages

1. Civil Disputes Subject To This Paragraph. Resident and Facility agree that all civil

claims arising in any way out of this Agreement, other than claims by Facility to collect

unpaid bills for services rendered, or to involuntarily discharge Resident, shall be resolved

exclusively through mandatory mediation, and, if such mediation does not resolve the

dispute, through binding arbitration using the commercial mediation and arbitration rules

and procedures of JAMS/Endispute in its Chicago, Illinois office.

2. Punitive/Treble Damages Waived. Resident and Facility also agree that both

Resident and Facility shall seek only actual damages in any such mediation or arbitration,

and that neither of them will pursue any claim for punitive damages, treble damages or any

2 In the trial court, plaintiff submitted a copy of the healthcare POA in response to defendants’ motion to compel arbitration, but defendants did not submit any affidavit from Kotalik attesting that the healthcare POA was authentic or that she had executed the contract as the holder of decedent’s healthcare POA. In any event, the authenticity of the healthcare POA need not be resolved to decide this appeal.

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other type of damages the purpose of which are to punish one party in an amount greater

than the actual damages caused by the other party.”

Section “F” of the contract sets forth circumstances that terminate the contract. Among these,

it specifies that “If the resident is compelled by a change in physical or mental health to leave

the facility, this Contract shall terminate on 7 days’ notice or immediately upon the resident’s

death.”

¶ 14 B. Defendants’ Motion

¶ 15 On May 28, 2021 (eight days after the contract was produced), defendants filed a “Motion

to Compel Mediation and/or Arbitration And Dismiss with Prejudice Counts I, II, VI, and VIII

and to Stay Prosecution of Plaintiff’s Wrongful Death Claims.” Defendants argued that the

contract required mediation or arbitration of the complaint’s counts against Oakbrook and

Andora, with the exception of the Wrongful Death Act claims. Defendants acknowledged that,

pursuant to our supreme court’s decision in Carter v. SSC Odin Operating Co.,

, the contract’s arbitration provision did not apply to Wrongful Death Act claims, as

such claims are brought on behalf of the decedent’s relatives and not for the benefit of the

decedent’s estate. Defendants argued that the Wrongful Death Act counts against Oakbrook

and Andora should be stayed pending mediation or arbitration of the other claims.

¶ 16 Defendants’ motion separately sought to stay the two counts against Lancaster (counts IV

and V), maintaining that discovery would show that Lancaster “did not own, operate, or

manage” the facility. Defendants averred that once “appropriate discovery” had been

completed, Lancaster “intends to address such non-involvement and seek dismissal of Counts

IV and V.” Defendants further argued that since Lancaster’s “non-involvement may be

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addressed at mediation and/or arbitration” a stay of the counts against Lancaster would

promote judicial economy.

¶ 17 The motion thus included two separate stay requests with respect to different defendants

and on different grounds. First, defendants requested a stay of the Wrongful Death Act counts

against Oakbrook and Andora (counts III and VII) on the basis that the other claims against

those two parties should be mediated or arbitrated. Second, defendants separately requested a

stay of both counts asserted against Lancaster (counts IV and V) on the basis that Lancaster

had no involvement in the factual allegations underlying the complaint.

¶ 18 Elsewhere in the motion, defendants argued they had not waived their right to invoke the

arbitration provision of the contract, since they had “not submitted any arbitrable issue to the

Court for decision.” They asserted that the delay in filing the motion was not due to any lack

of diligence, but was due to the recent production of the contract by Oakbrook to defense

counsel.

¶ 19 In support of the motion to compel arbitration, defendants submitted the affidavit of Jina

Lebert-Davies, an administrator of the facility. She averred that, when she learned of plaintiff’s

lawsuit in August 2020, “the facility was in the midst of responding to the COVID crisis and

my attention was focused on keeping the facility’s residents and employees safe and

responding to the pandemic.” She stated that the contract was “inadvertently omitted from the

documents originally provided to counsel” but was provided to counsel on May 17, 2021

“immediately” after she located it.

¶ 20 Plaintiff’s response opposed the motion on several grounds. First, plaintiff urged that

defendants had waived their right to arbitrate because they had “extensively participated” in

the litigation for nearly one year. Plaintiff noted that defendants had answered the complaint,

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“filed multiple sets of discovery,” and issued subpoenas. Plaintiff claimed that defendants

“waited until after the Plaintiff had answered all written discovery to try to enforce the

arbitration contract.”

¶ 21 Second, plaintiff argued that Kotalik lacked authority to execute an arbitration agreement

on decedent’s behalf. Plaintiff asserted that decedent executed a POA for health care,

appointing Kotalik, but that decedent separately appointed Clanton (plaintiff herein) as POA

for property. As exhibits, plaintiff attached a copy of an “Illinois Statutory Short Form Power

of Attorney for Health Care” appointing Kotalik and a copy of an Illinois Statutory Short Form

Power of Attorney for Property” appointing Clanton, which reflected that the documents were

both executed in January 2009. Plaintiff argued that the separate POAs indicated that decedent

wished to divide responsibilities between her daughters, and that Kotalik’s authority to make

healthcare decisions did not include “authority to bind [decedent] to an arbitration agreement.”

¶ 22 Plaintiff separately urged that the arbitration provision was procedurally unconscionable

because Kotalik lacked bargaining power and “had no opportunity to participate in the

agreement’s drafting.” Plaintiff also contended that the arbitration provision was substantively

unconscionable because it sought to deprive residents of their statutory right to recover attorney

fees for violations of the Nursing Home Care Act. See 210 ILCS 45/3-602 (West 2020).

¶ 23 In their reply, defendants maintained that they had not taken any actions inconsistent with

an intent to arbitrate, that they had promptly produced the contract once it was discovered, and

that they otherwise acted in good faith in responding to plaintiff’s discovery requests.

Defendants otherwise argued that Kotalik had authority to execute the contract and that Kotalik

was given the opportunity to ask questions about the contract before signing it. Defendants

disputed that the arbitration provision sought to extinguish plaintiff’s ability to recover attorney

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fees and costs under the Nursing Home Care Act. On this point, defendants noted that JAMS

rules permit an arbitrator to “grant any remedy or relief allowed by the Parties’ Agreement or

law” and that an award “may allocate attorneys’ fees and expenses *** if provided by the

Parties’ Agreement or allowed by applicable law.”

¶ 24 C. The Trial Court Denies Defendants’ Motion

¶ 25 On July 14, 2021, the trial court issued an order denying defendant’s motion. In explaining

its reasoning, the court first rejected plaintiff’s contention that defendants waived the ability to

seek arbitration or mediation. The court acknowledged that defendants had answered the

complaint, served interrogatories, and responded to written discovery, yet it found those

actions were not “inconsistent with defendants’ right to rely on the mediation and/or arbitration

clause.” The court also noted that it was “sympathetic to the impact the Covid-19 pandemic

had on nursing home facilities.” The court emphasized that, only two days after receiving the

contract, defense counsel produced it and notified plaintiff of their intent to file the motion to

compel arbitration.

¶ 26 The court also rejected the plaintiff’s argument that the arbitration provision was

procedurally unconscionable. The court noted that the relevant language was “in the same font

and size of the other clauses of the contract” and that its language was “clear and

unambiguous.”

¶ 27 The court also found that Kotalik had the “opportunity to ask questions before signing the

contract.”

¶ 28 The trial court nonetheless held that the arbitration provision was “unenforceable as

substantively unconscionable.” Citing the Fifth District’s decision in Glass v. Burkett,

(1978), the trial court found that “[b]y limiting plaintiff’s ability to recover

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punitive damages, the provision effectively limits plaintiff’s ability to recover attorney’s fees.”

The court found the arbitration provision was “an attempt to nullify the primary reason for the

attorneys’ fees provision of the Illinois Nursing Home Care Act,” i.e., to “give residents

incentive to bring claims to police nursing homes.” The court thus found the arbitration clause

substantively unconscionable because it attempted to extinguish the statutory right to attorney

fees.

¶ 29 The trial court proceeded to state that, “in its discretion,” it declined to sever the limitation

on damages from the rest of the arbitration agreement. That is, the court held that “the

offending provision renders the entirety of the mediation and/or arbitration clause

unenforceable.” The court thus denied the motion to compel mediation or arbitration of any of

counts I, II, VI, or VIII. The court also denied as moot the defendants’ request to stay any of

the remaining counts.

¶ 30 On August 13, 2021, defendants filed a notice of interlocutory appeal from the denial of

the motion.

¶ 31 II. ANALYSIS

¶ 32 On appeal, defendants raise two lines of argument to challenge the court’s denial of their

motion to compel arbitration. First, they contend that the trial court erred in concluding that

the contract’s language on punitive damages was substantively unconscionable as a bar against

the recovery of attorney fees pursuant to the Nursing Home Care Act. That is, defendants claim

that the language regarding “punitive damages” did not affect the statutory right to recover

attorney fees, as they are distinct from punitive damages.

¶ 33 Defendants alternatively argue that, even assuming the limitation on damages was

substantively unconscionable, the trial court erred in finding that it rendered the entire

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arbitration provision unenforceable. That is, they argue that the court should have severed the

purportedly offending limitation on damages but otherwise enforced the language compelling

mediation or arbitration.

¶ 34 In response, plaintiff suggests a number of grounds upon which we should affirm the denial

of the defendants’ motion, including grounds not discussed in the trial court’s order. First,

plaintiff maintains the trial court correctly found the contract’s language on punitive damages

was substantively unconscionable because it limited the right to recover statutory attorney fees.

¶ 35 Plaintiff otherwise argues that defendants’ participation in the litigation waived their right

to rely on the arbitration provision. Plaintiff further contends that, apart from the damages

limitation, the arbitration provision is otherwise substantively unconscionable because it is

“one-sided” as to which claims are subject to arbitration. Plaintiff independently argues that

we may affirm because (1) the arbitration clause was procedurally unconscionable, (2) Kotalik

lacked authority to enter into the arbitration agreement, or (3) the arbitration agreement was

unenforceable because the entire contract terminated upon the decedent’s death.

¶ 36 For the following reasons, we agree with defendants that their participation in litigation did

not waive their right to move to compel the arbitration. However, we conclude that the

arbitration provision was unenforceable, albeit for a different reason than that relied on by the

trial court. Specifically, the contract unequivocally provided that it would terminate

“immediately upon the resident’s death.” In turn, the entire contract, including the arbitration

agreement, was no longer enforceable by the time this action was commenced. For that reason,

we will affirm the denial of defendants’ request to compel arbitration with respect to counts I,

II, VI, and VIII against Oakbrook and Andora, as well as the denial of the request to stay the

Wrongful Death Act counts against those defendants (counts III and VII). Finally, as

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defendants do not raise any argument with respect to the trial court’s denial of the request to

stay the counts against Lancaster (counts IV and V), we affirm that portion of the order.

¶ 37 A. Appellate Jurisdiction

¶ 38 We note that we have jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(1) (eff.

Nov. 1, 2017), which permits a party to appeal from an interlocutory order of the circuit court

“granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”

“An injunction is a judicial process requiring a party to do a particular thing or refrain from

doing a particular thing.” Herns v. Symphony Jackson Square LLC,

(citing In re A Minor,

(1989)). “An order granting or denying a motion

to compel arbitration is injunctive in nature and is appealable under Rule 307(a)(1).”

¶ 39 B. Standard of Review

¶ 40 “A motion to compel arbitration is essentially a section 2-619(a)(9) motion to dismiss or

stay an action in the trial court based on an affirmative matter, the exclusive remedy of

arbitration. [Citation.]” Sturgill v. Santander Consumer USA, Inc.,

. “Section 2-619(a)(9) allows for a dismissal where the claim is barred by an affirmative

matter that avoids the legal effect of or defeats the claim. (735 ILCS 5/2-619(a)(9) (West

2010)).”

¶ 41 “In an appeal from the denial of a motion to compel arbitration without an evidentiary

hearing, our review is de novo.”

¶ 20 (citing Hollingshead v. A.G. Edwards & Sons, Inc.,

(2009)). This is consistent with the principle that issues of

contractual interpretation, including with respect to arbitration provisions, are reviewed

de novo. Fiala v. Bickford Senior Living Group, LLC,

(“We

review de novo the trial court’s decision on a motion to dismiss pursuant to section 2-619.

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[Citation.] Likewise, the scope of [an] arbitration provision presents a question of contract

interpretation, and this is also reviewed de novo.”); Coe v. BDO Seidman, L.L.P.,

(“An agreement to arbitrate is a matter of contract, and the interpretation of

a contract is a question of law subject to de novo review.”). Thus, de novo review applies, to

the extent the trial court’s conclusions involved issues of contract interpretation rather than

findings of fact.

¶ 42 A different standard applies with respect to the trial court’s determination as to whether

defendants waived their contractual right to arbitrate. “A number of decisions from the First

District of this court have determined an abuse of discretion standard applies to a review of the

circuit court’s decision regarding waiver of arbitration rights. [Citation.]” Bovay v. Sears,

Roebuck & Co.,

; see also Woods v. Patterson Law Firm, P.C.,

(2008) (applying abuse of discretion review to whether defendants waived

right to compel arbitration); Glazer’s Distributors of Illinois, Inc. v. NWS-Illinois, LLC,

(2007) (following First District precedent applying abuse of discretion

standard). Application of deferential review stems from recognition that the circuit court must

“ ‘engage in a factual inquiry to determine if a party’s actions constitute waiver.’ ” Glazer’s,

(quoting Schroeder Murchie Laya Associates, Ltd. v. 1000 West Lofts,

LLC,

(2001)).

¶ 43 In sum, “in interlocutory appeals of orders denying a motion to compel arbitration,

questions of law are reviewed de novo, while any findings of fact are reviewed for an abuse of

discretion in light of a proper understanding of the law.” Bovay,

,

¶ 26. “An abuse of discretion occurs only when the ruling is arbitrary, fanciful, or

unreasonable, or when no reasonable person would take the same view. [Citations.]”

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¶ 44 C. Whether Defendants Waived the Right to Rely on the Arbitration Provision

¶ 45 Before addressing the parties’ arguments regarding the content of the contract, we first

address plaintiff’s contention that defendants waived the right to invoke the arbitration clause

because they did not move to compel arbitration until approximately 11 months after plaintiff’s

complaint was filed. Plaintiff points out that defendants’ answer and affirmative defenses filed

on November 2020 did not reference arbitration, and that in the ensuing months defendants

issued subpoenas and served discovery requests. Plaintiff maintains that such actions were

inconsistent with a right to arbitrate and indicated defendants’ abandonment of any such

contractual right.

¶ 46 “While arbitration is a favored method of settling disputes in Illinois, a party may waive

its contractual right to arbitration. [Citation.]” TSP-Hope, Inc. v. Home Innovators of Illinois,

LLC,

(2008). However, “Illinois courts are reluctant to find a party

waived its contractual right to arbitration. [Citation.]”

¶ 47 “Although disfavored, waiver will be found where ‘a party conducts itself in a manner

inconsistent with the arbitration clause, thereby demonstrating an abandonment of that right.’ ”

Koehler v. The Packer Group, Inc.,

(quoting Northeast Illinois

Regional Commuter R.R. Corp. v. Chicago Union Co.,

(2005)). In

deciding whether there was waiver, the “ ‘crucial inquiry’ ” is “ ‘whether the party has acted

inconsistently with its right to arbitrate.’ ”

(quoting Glazer’s,

). “A

party acts inconsistently with its right to arbitrate when it submits arbitrable issues to a court

for decision. [Citation.]” TSP-Hope, Inc.,

. “[T]he operative distinction

between judicial filings and actions that constitute a waiver of the right to compel arbitration

and those that do not is whether, prior to seeking to compel arbitration, the party has placed

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substantive issues before the court.” Watkins v. Mellen,

. First

District precedent does not explicitly require prejudice to the other party to find waiver,

although it may be considered. See Woods,

(“Illinois courts also

consider the delay in a party’s assertion of its right to arbitrate and any prejudice the delay

caused the plaintiff. [Citation.]”) 3

¶ 48 Keeping in mind that the trial court’s determination is reviewed for an abuse of discretion

(Glazer’s,

) here, we cannot say that the trial court abused its discretion

in determining that defendants did not waive their right to rely on the arbitration provision.

Although defendants answered the complaint and conducted some discovery, they did not

“submit[ ] arbitrable issues to a court for decision. [Citation.]” TSP-Hope, Inc.,

. Before filing the motion to compel arbitration, defendants did not ask the court to

rule on any substantive issue. Cf. Midland Funding LLC v. Hilliker,

(finding waiver where party “repeatedly sought a substantive judicial determination of a

disputed issue and a judicial termination of the litigation”). Defendants’ actions were clearly

responsive to the complaint and in compliance with the trial court’s case management order. It

was not unreasonable for the trial court to conclude that such actions were not inconsistent

with defendants’ reliance on the arbitration provision. Moreover, as the trial court noted, the

record reflects that defendants promptly asserted their right to arbitrate after the discovery of

the contract. The trial court apparently found that defendants had not abandoned the right to

arbitrate but diligently pursued it once the contract was discovered.

3 We note that the United States Supreme Court recently held that federal courts cannot condition a waiver of the right to arbitrate on a showing of prejudice, as the Federal Arbitration Act (

(2018)) does not authorize federal courts to create an arbitration-specific procedural rule. Morgan v. Sundance, Inc., ___ U.S. ___,

(2022).

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¶ 49 We note plaintiff’s claims that she suffered prejudice because (1) plaintiff answered

interrogatories, which are not contemplated by JAMS rules, and (2) defendants’ delay

prevented a “speedy resolution” of the dispute. Plaintiff’s prejudice arguments do not convince

us that the trial court was unreasonable in deciding that defendants’ conduct did not amount to

waiver. We note that plaintiff does not articulate how she was prejudiced by responding to the

interrogatories. Moreover, the interrogatories and plaintiff’s responses are not in the record on

appeal, which limits our ability to evaluate the claim of prejudice.

¶ 50 We are also not convinced that the delay resulting from defendants’ motion, filed 11

months after the complaint, is so prejudicial that it was unreasonable for the trial court not to

find waiver. Our precedent indicates that the relevant inquiry is not simply the length of prior

litigation or the number of prior filings by the party seeking arbitration, but whether that party

put substantive issues before the trial court. See, e.g., Bishop v. We Care Hair Development

Corp.,

(2000) (defendants’ two-year delay in seeking arbitration

did not establish waiver where they “did not submit any substantive questions to the trial court

for determination”).

¶ 51 In this case, the record reflects that defendants did not ask the court to make any

determination on the merits before moving to compel arbitration. Further, their submissions

reflect that the delay in filing the motion was due to Oakbrook’s inadvertent failure to discover

the contract earlier. Once it was discovered, defendants promptly produced the contract and

filed their motion. On this record, the trial court could reasonably find that defendants’ actions

were not inconsistent with asserting a right to arbitration. We thus decline to find that the trial

court erred in finding defendants had not waived their right to seek arbitration. Nevertheless,

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as explained below, we proceed to conclude that the arbitration provision was ineffective after

decedent’s death, by operation of the contract’s termination provision.

¶ 52 D. The Contract Expressly Terminated Upon Decedent’s Death, Rendering

the Arbitration Provision Unenforceable

¶ 53 Although plaintiff asserts a number of arguments for why we should find the arbitration

provision unenforceable, we only need discuss one of them to resolve this appeal. Specifically,

we agree with plaintiff that section F of the contract—which provides that the contract shall

terminate “immediately upon the resident’s death”—is dispositive. That is, the entire contract,

including the arbitration agreement, terminated upon decedent’s death.

¶ 54 Plaintiff did not raise this argument in the trial court, yet that does not preclude us from

considering it.

“While an appellant who fails to raise an issue in the trial court waives that issue, an

appellee may raise an issue on review that was not presented to the trial court in order to

sustain the judgment, as long as the factual basis for the issue was before the trial court.

[Citation.]” DOD Technologies v. Mesirow Insurance Services, Inc.,

(2008).

Further, “[w]e can affirm the trial court on any basis that appears in the record, regardless of

whether the trial court relied upon such ground.” (Internal quotation marks omitted.) Cooney v.

Magnabosco,

(2011). We will thus consider the merits of this argument.

¶ 55 Plaintiff acknowledges that “the general rule is that a contract survives the death of a party,”

subject to certain exceptions, such as contracts requiring performance from a particular person.

Plaintiff does not argue that the instant contract is a personal performance contract but asserts

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that “the contract did not survive [decedent’s] death because the parties agreed it terminated

upon her death.” That is, defendants have “nothing to enforce because the arbitration clause

ceased to exist” upon decedent’s death.

¶ 56 In response, defendants assert that plaintiff’s interpretation violates the principle that “all

parts of a contract should be constructed harmoniously” to avoid conflicting provisions, and

that there was “no intention for the entire contract to terminate” upon a resident’s death.

According to defendant, the proper application of the termination provision is that “Oakbrook

no longer has to provide services to [decedent], however, lawsuits arising from the care

[decedent] received while at Oakbrook remain enforceable under the Oakbrook Contract.” We

find that defendants’ position is undermined by the unambiguous and unequivocal language of

the termination provision.

¶ 57 As both parties acknowledge, “[t]he general rule is that a contract survives the death of a

party [citation] except *** when the contract requires the continued existence of a particular

person or thing for its performance.” In re Estate of Bajonksi,

(1984). Regardless of the general rule, we must consider the effect of the clause that the

contract shall terminate “immediately upon the resident’s death,” including whether it renders

the arbitration provisions unenforceable after a resident’s death. We apply these well-settled

principles of contract interpretation:

“In construing a contract, the primary objective is to give effect to the intention of the

parties. [Citation.] The court will first look to the language of the contract itself to

determine the parties’ intent, and the contract must be construed as a whole, viewing each

provision in light of the other provisions. [Citation.] The parties’ intent is not determined

by viewing a clause or provision in isolation, or in looking at detached portions of the

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contract. [Citation.] If the words in the contract are clear and unambiguous, they must be

given their plain, ordinary and popular meaning. [Citation.] A court will not interpret a

contract in a manner that would nullify or render provisions meaningless, or in a way that

is contrary to the plain and obvious meaning of the language used.” (Internal quotation

marks omitted.) Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Co.,

, ¶ 38.

¶ 58 In this case, Section F. 1 stated “this Contract shall terminate on 7 days’ notice or

immediately upon the resident’s death.” We find (and defendants do not dispute) that this

language is clear and unambiguous. Thus, we must apply the provision’s plain meaning. That

is, the entire contract terminated upon decedent’s death in 2019. In turn, we agree with plaintiff

that there was no longer any enforceable arbitration agreement when the instant action

commenced.

¶ 59 Defendants argue “it is clear that there is no intention for the entire contract to terminate

upon death of a resident,” yet that is precisely what the plain language of the termination

provision reflects. “The best indication of the parties’ intent is found in the plain and ordinary

meaning of the language of the contract.” St. Paul Mercury Insurance v. Aargus Security

Systems, Inc.,

. The termination provision states, without

limitation, that “This Contract” terminates upon a resident’s death. Thus, it indicates that the

resident’s death applies to terminate all contractual provisions.

¶ 60 By urging that we should not read the termination provision so broadly, defendants

essentially ask us to assume or read into the agreement limitations or exceptions that are simply

not present. However, “[w]e will not ‘alter, change, or modify existing terms of a contract, or

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add new terms or conditions to which the parties do not appear to have assented.’ ”

(quoting

Thompson v. Gordon,

(2011)).

¶ 61 Moreover, “ ‘there is a presumption against provisions that easily could have been included

in a contract but were not.’ ”

(quoting Thompson,

). Here, the drafters of

the contract could quite easily have used other language to indicate the more limited

interpretation of the termination provision that defendants now seek. Rather than broadly

stating that “this Contract” (i.e., the whole contract) would terminate upon the resident’s death,

the drafters could have specified which provisions would remain in effect. For instance, the

contract could have stated that the death of a resident extinguished obligations for future

performance of services, but did not extinguish the parties’ agreement to arbitrate claims that

accrued during a resident’s lifetime. Or the termination provision could have simply included

a carve-out to preserve the arbitration provision, for example, by stating that “this Contract,

other than the arbitration agreement in Section E, shall terminate” upon the resident’s death.

While we cannot know why the drafters inserted such a broad termination provision,

defendants cannot avoid the effect of the plain meaning of its language.

¶ 62 We also note defendants’ reliance on the proposition that we should attempt to harmonize

contractual provisions. See Wolfensberger v. Eastwood,

(2008)

(“When possible, courts should construe a contract so that different provisions are harmonized,

not conflicting with one another. [Citation.]”); Zannis v. Lake Shore Radiologists, Ltd.,

(1979) (citing the “well-established principle in the law of contracts that a

construction should be adopted ‘which harmonizes all the various parts so that no provision is

deemed conflicting with, or repugnant to, or neutralizing of any other’ ” (quoting Coney v.

Rockford Life Insurance Co.,

(1966)). Contrary to defendants’

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suggestion, our conclusion does not violate this principle. We are not neutralizing the

arbitration provision, which remains in effect prior to termination. That is, our construction

gives effect to both the arbitration and termination provisions. Read together, the provisions

indicate that, while the parties may be obligated to arbitrate claims during a resident’s lifetime,

the arbitration agreement (like every other part of the contract) terminates upon the resident’s

death. Our application of the broad termination provision does not conflict with the arbitration

provision, any more than a termination provision affects every other provision in the

agreement. We are simply giving effect to the contract’s unequivocal language that all of its

provisions terminate upon the resident’s death.

¶ 63 We recognize that our conclusion conflicts with Mason v. St. Vincent’s Home, Inc.,

, which appears to be the only appellate court precedent addressing such

a situation. However, we are not bound to follow the Fourth District’s decision. See O’Casek

v. Children’s Home & Aid Society of Illinois,

(2008) (“[T]he opinion of

one district, division, or panel of the appellate court is not binding on other districts, divisions,

or panels. [Citation.]”). Although Mason presented similar facts, we disagree with its

reasoning.

¶ 64 Similar to this case, the plaintiff in Mason asserted negligence claims under the Nursing

Home Care Act, Wrongful Death Act, and Survival Act against a nursing home following the

death of plaintiff’s mother, a nursing home resident. Mason,

, ¶¶ 4-

6. The governing contract provided that “ ‘In the event of Resident’s death, this Contract

terminates automatically.’ ” Id. ¶ 4. Elsewhere, the contract contained an arbitration provision

stating that “ ‘any action, dispute, claim, or controversy related to the quality of health care

services provided pursuant to this Contract *** now existing or hereafter arising between

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Resident and [nursing home] *** shall be resolved by binding arbitration.’ ” Id. ¶ 21. After

defendant moved to compel arbitration, plaintiff argued, inter alia, that the contract was

unenforceable because it terminated upon decedent’s death. Id. ¶ 10. The trial court granted

the motion to compel arbitration but stayed the Wrongful Death Act counts. Id. ¶ 13.

¶ 65 Upon plaintiff’s appeal, one of plaintiff’s arguments was that “the contract, including the

arbitration clause, terminated by its own terms on decedent’s death.” Id. ¶ 43. In response,

defendants relied on our supreme court’s decision in Carter,

, to argue that

“the arbitration agreement applies to plaintiff’s claims brought pursuant to the Survival Act.”

Mason,

.

¶ 66 The Fourth District in Mason agreed with defendants that Carter supported enforcement

of the arbitration agreement to claims that accrued before decedent’s death. Mason explained

that our supreme court in Carter addressed whether a plaintiff could be compelled to arbitrate

a wrongful death claim pursuant to an arbitration agreement between the plaintiff’s decedent

and a defendant nursing home. Id. ¶ 44. Our supreme court explained that “[w]hile the

Wrongful Death Act [citation] created a new cause of action that did not accrue until death, the

Survival Act allowed the decedent’s representative to maintain those statutory or common law

actions that had already accrued prior to the decedent’s death.” Id. (Emphasis in original.)

(citing Carter,

). Thus, the Carter plaintiff was not obligated to arbitrate

a wrongful death claim but was bound to arbitrate the Nursing Home Care Act claim brought

under the Survival Act, as that claim had “already accrued to the decedent prior to death.”

(citing Carter,

).

¶ 67 The Fourth District in Mason extrapolated from Carter to conclude that the termination

clause did not preclude arbitration of claims that accrued before decedent’s death:

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“While the facts in Carter do not suggest the arbitration agreement was part of

another contract with a termination upon death clause like the one in this case, the

supreme court’s analysis is instructive. The supreme court noted a cause of action

brought pursuant to the Survival Act accrued prior to the death of the decedent. Carter,

. Thus, even with a termination upon death clause, the contract

including the arbitration provision would still have been valid when the cause of action

accrued. The language of the arbitration clause does not suggest it is inapplicable to

claims that accrued before the resident’s death but were brought after the resident’s

death.” Mason,

.

Mason proceeded to affirm the circuit court’s conclusion that plaintiff was bound to arbitrate

claims other than those under the Wrongful Death Act.

¶ 68 We disagree with Mason’s analysis for multiple reasons. First, Mason’s reliance on Carter

to assess the effect of a termination clause is questionable. As Mason acknowledged, nothing

in Carter indicates that the contract in that case included a similar termination clause. Id. ¶ 44

(“the facts [in Carter] did not state whether the arbitration agreement had a provision the

agreement terminated upon the decedent’s death”). Although Carter recognized that Survival

Act claims on behalf of a deceased resident could be subject to arbitration, the supreme court

had no occasion to decide whether a termination upon death clause would affect the validity

of an arbitration agreement.

¶ 69 More fundamentally, the Mason court’s analysis did not attempt to discuss the intent

reflected by the termination clause’s plain and unequivocal language that “ ‘In the event of

Resident’s death, this Contract terminates automatically.’ ” Id. ¶ 21. Rather than discussing the

meaning of that broad termination clause, the Mason court elected to focus on the lack of

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limitation in the arbitration provision. See id. ¶ 45 (reasoning that “[t]he language of the

arbitration clause does not suggest it is inapplicable to claims that accrued before the resident’s

death but were brought after the resident’s death”). In this manner, the Mason court essentially

created an exception to the termination provision, in order to allow arbitration claims that

accrued before resident’s death. In our view, the Mason court’s approach did not give effect to

the clear and unequivocal language of the termination provision. Thus, we decline to follow

that decision.

¶ 70 In summary, we agree with plaintiff that the termination upon death provision is dispositive

with respect to defendants’ attempt to compel arbitration. That is, the arbitration agreement

terminated with the rest of the contract upon decedent’s death. As we affirm on that basis, we

need not discuss whether the trial court correctly found that the arbitration provision was

substantively unconscionable due to its punitive damages clause. Nor do we need to discuss

plaintiff’s alternative arguments, including whether the contract was otherwise substantively

or procedurally unconscionable or whether Kotalik as healthcare POA lacked authority to bind

decedent to the arbitration agreement.

¶ 71 Having found the arbitration provision unenforceable by operation of the termination

clause, we affirm the trial court’s denial of the motion to compel arbitration or mediation with

respect to the counts against Oakbrook and Andora that are not based on the Wrongful Death

Act (counts I, II, VI, and VIII). As defendants were not entitled to arbitration, we also affirm

denial of their request to stay the Wrongful Death Act counts against Oakbrook and Andora

(counts III and VII) pending arbitration.

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¶ 72 E. Defendants Do Not Challenge the Order with Respect to the Counts Against Lancaster

¶ 73 Finally, we recognize that defendants’ motion also sought to stay the counts against

Lancaster, which consist of a Survival Act count (count IV) and a Wrongful Death Act count

(count V). In the trial court, defendants asserted that Lancaster was not involved in the events

underlying the complaint and that after, “appropriate discovery,” Lancaster would separately

“seek dismissal of Counts IV and V by way of motion practice.”

¶ 74 Defendants’ brief does not raise any argument challenging the trial court’s order, to the

extent it denied the request to stay the counts against Lancaster. Thus, defendants have

forfeited any challenge to that aspect of the order. 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.”). In any event, the record is insufficient to determine whether there

is merit to Lancaster’s contention that it had no involvement in the underlying events. Thus,

we will not disturb the trial court’s order insofar as it denied defendants’ request to stay the

counts against Lancaster (counts IV and V). We express no view as to whether Lancaster will

ultimately be able to show that it is entitled to dismissal in subsequent proceedings.

¶ 75 III. CONCLUSION

¶ 76 In summary, we affirm all aspects of the trial court’s order. Specifically, we affirm denial

of defendants’ motion to dismiss and compel arbitration with respect to the Nursing Home

Care Act claim against Oakbrook (count I), the Survival Act negligence counts against

Oakbrook (counts II and VIII), and the Survival Act negligence claim against Andora (count

VI). We also affirm the denial of defendants’ request to stay the Wrongful Death Act counts

against Oakbrook (count III) and Andora (count VII). Finally, we affirm the denial of

defendants’ motion to stay the counts against Lancaster under the Survival Act and Wrongful

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Death Act (counts IV and V). We remand for further proceedings in accordance with this

decision.

¶ 77 Affirmed and remanded.

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Clanton v. Oakbrook Healthcare Centre, Ltd.,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2020-L- 006460; the Hon. Patricia O. Sheahan, Judge, presiding.

Attorneys Carter A. Korey, Dana N. Raymond, and Chaniece M. Hill, of for Korey Richardson LLP, of Chicago, for appellants. Appellant:

Attorneys Michael W. Rathsack, Steven M. Levin, Michael F. Bonamarte IV, for and Daisy Ayllon, all of Chicago, for appellee. Appellee:

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