No. 3–09–0743

____________________________________________________________________________ Filed June 7, 2010 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D JUDI CIAL

DIST RICT A.D., 2010 RACHEL PETERSON, ) Appeal from the Circuit Court Administrator of the Estate of ) of the 10t h Judicial Cir

cuit, Jacob H. Terhorst, Deceased, ) Peoria Co unty , Illi nois, ) Plaintiff -Appella nt, )

) v. ) No. 09–L–4 ) RESIDENTIAL ALTERNATIVES OF ) Honorab le IL LI NOIS, I NC., an Illinois Corporation, ) Joe R. Vespa, ) Judge , Pres idin g. Defendant-Appellee, ) ) (Edwin Enterprises, L.L .C.; Donald E. Fike; ) Anthony James Fike

Trust, Da

ted 11/6/9 0; ) Aaron Mitchell Fike Trust, Dated 11/6/90; ) Suzanne Elizabeth Fike Trust, Dated ) 11/6/90; RF MS, Inc., a Fo reign C orporat ion;) The Methodist Medical Center of Illinois, ) a Corporation; and Michael Koeppen, ) ) Respondents in Discovery)

. )

______________________________________________________________________________ JUSTICE WRIGH T deliver

ed the opi nion of the

court:

______________________________________________________________________________ Initially , Ann Bonomo filed a two-count complaint against defe ndant on January 7, 2009. Thereafter, Bonomo filed a first ame nded complaint against defendant on May 8, 2009, alleging one count of violations of the Illinois Nursing Home Car e Act (210 IL CS 45/1-101 et seq. (West2

2006)) a nd one co unt of wrongful de ath. On June 1, 2009, de fendant

filed a mo tion to dismi ss and compel arbitration. On September 3, 2009, the trial court found, “[a]s a matter of law the arbitra tion agr eement c ontrols”

betwee n the par ties. The court dis missed Bonomo’s fir st amended complaint and ordered the parties to participa te in arbitration. Bonomo filed an appeal on Septemb er 17, 20 09. On Janua ry 7, 2010, th

is court g ranted B onomo’s mo tion to subs titute Rachel Pe

terson a s plaintif

f-appe llant. Plai

ntiff Pete rson and d

efenda nt are th e only

parties t o this appeal. FACTS On January 7, 2009, Ann Bonomo ( plaintiff), as executor of the estate of Jacob H. Terhorst (Terhorst), filed a two-count complaint ag ainst defendant Residential Alternatives of Illinois, I nc. (def endant) , alleg ing a sur

vival ac tion count

and a wr ongful d eath cou nt. Counse l, on behalf of defendant, filed an appea rance with the court on January 22, 2009, and demanded a trial by jury . On February 20, 2009, defendant filed an answer to plaintiff’s complaint deny ing the claims against defendant, seeking judgment in defendant’s favor, and demanding a jury trial. On March 13, 2009, plaintiff filed a motion for leave to file a first ame nded complaint which the trial court granted on May 8, 2009. Count I of plaintiff’s first amended complaint alleged a survival action pursuant to the I llinois Nursing Home Care Act (210 I LCS 45/1-101 et seq . (West 2006)) (Act). Plaintiff claimed that Terhorst was 92 y ears old on November 29, 2006. On that day, Ter

horst became a resident of Hawthorne Ma nor, now known as Manor Court of Peoria (Manor). The count allege d that Manor was a nursing care f acility as define d by the Act and that from November 29, 2006, until at least June 2, 2007, defendant owned and licensed Manor within the meaning of the Act.3

Plaintiff further alleged in count I that Terhorst remained a resident at Manor fr om November 29, 2006, until June 2, 2007, and that on June 2, 2007, Terhorst died. During that time, Manor charged Terhorst monies to provide Te rhorst with medical care, personal care and a residence. Plaintiff claimed that defendant committed one or more neglig ent acts or omissions within the meaning of the Act, failed to provide adequa te care to Terhorst, and negle cted and abused Terhorst. As a result of these actions, Terhor st suffered injuries, mental and phy sical pain, anguish and medical costs. Plaintiff sought compensatory damages in excess of $50,000 and attorney f

ees. Count II of

the first amended complaint realleged most of the same allegations as count I. Further, count II

alleged that as a result of defenda nt’s acts or omissions, Terhorst was injured and ultimately died. Count I I sought damag es suffered by Terhorst’s next of kin in excess of $50,000 and costs. On May 19, 2009, def

endant filed an answer to plaintiff’s first amended c omplaint. Defendant denied any

negligent acts or omissions and denied causing any injury

to Terhorst or his next of kin. Defendant sought judgment in its favor and demanded a jur y trial. On June 1, 2009, defendant filed a motion to dismiss and compel arbitration. The motion to dismiss wa s filed pu

rsuant to section 2 -619(a) (9) of th e Code of Civil Proce dure (73 5 IL CS 5/2-619( a)(9) (

West 2008) ) and inc luded an a ttached exhibit. The

exhibit con

tained tw o separa

te documents. The first document contained the heading “ CONTRACT.” The second document was entitled “ Arbitration Agreement .” Both d ocuments , attach ed as exhib it A to the mo tion to dismiss, were dated November 29, 2006. Each document containe d the signature of the legal4

repres entative

of Terhorst and th e signa ture of a facility repres entative

for def endant. The cont ract be gan wit

h the follo

wing la nguag e: “CONTRAC T Between Resident and Manor Court (Facility Name) and legal repre sentative for the responsibilities and rights of the parties with respect to the Residents stay at the fac ility.” The first page of this document identified the name of the resident, Jacob Terhorst, the responsible party, A

nn Bonomo, and the admission date of November 29, 2006. The bottom of the first page of the document also indicated that the c ontract consisted of seven pages. The first 23 paragraphs of the 7-pa ge document, marked A through W, descr ibed the room and b oard, la

te pay ments, ty pes of g overnme

nt progr ams for p ay

ments, an cillary charg es, resident’s right to choose a phy sician, pharmacy

and independent providers, discharge a nd termination of contract terms, personal belonging s, services, deposits and refunds, and indemnification. Thereafter, the document identified the da ily rate for r

ooms and finance charg es. On page six of the contract, the languag e contained in the document set forth policies and additional information including treatment refusal, rules and re gulations, overnight leave, smoking p olicy , room ass ignment s and polic ies on val uables. T he docume

nt ended w

ith signature lines for the resident, lega l representative and the facility representative. The second document, attached as exhibit A, to the motion to dismiss was entitled

“ Arbitration Agreement .” This document began with the following lang uage: “Without limiting5

any rig hts set forth in other provisions of this AGREEMENT, any a nd all disputes arising hereunder shall be submitted to binding arbitration and not to a court for de termination.” In the next paragraph, the document stated:

“Notwithstanding the parties intent to submit any controve rsy or claim a

rising o ut of or r elating to this AGREEMEN T or any

other doc ument sig ned or ini tialed in connection with this AGREEMENT to arbitration, in the event that a court of competent jurisdiction shall determine or a releva nt law shall provide that a particular dispute is not subject to the arbitration provisions of this Section, then the parties agree to the following provision s: a. Each party

believes that justice will be served if issues regarding this AGREEMENT are heard by a

judge in a court proceeding, and not a jury, and each party hereby waives their right to a trial by jury . *** b. The pa rty prevail ing in suc

h dispute s hall be e

ntitled to recover all costs incurred ***.” Signature lines immediately followed for the resident, the resident’s repre sentative and the facility repr

esentative. On Augu st 10, 2009 , plaintif f filed a response and motion

to strike d

efenda nt’s motion

to dismiss and compel arbitration. Plaintiff denied that an enforceable ag reement existed which required the arbitration of disputes rega rding services provided under the nursing home care6

contract. Alternatively , plaintiff also claimed that defendant waived its right to arbitra tion by answering the first amended complaint and, ther eafter, participating in the court proc eedings. Additionally, plaintiff submitted public policy barred any

attempt to cause an individual to waive his or her rights under the Act. On Aug ust 18, 2009, defendant filed a reply to plaintiff’s response and motion to strike. On Augu st 25, 2009 , the tria l court e ntered a written o rder. Th

is order indicate d that, having heard the arg

uments of counsel on defendant’s motion to dismiss and compel arbitration, the trial court elected to take the matter under a dvisement. On September 3, 2009, the trial court entered a written order that concluded “ [a]s a matter of law the arbitration agreement c ontrols.” The trial court granted defenda nt’s motion and dismissed plaintiff’s complaint. The trial court ordered that the “Parties shall proceed to Arbitra tion.” On September 17, 2009, plaintiff filed a notice of appeal. On January 7, 2010, this court granted Bonomo’s motion to substitute Rachel Peterson as plaintiff-appellant. Plaintiff Peterson and defendant are the only parties to this appeal.

ANA LYSIS In this appeal, plaintiff asserts the trial c ourt erroneously found that the arbitration agreement (Agr

eement) controlled all disputes stemming from the nursing home ca re contract. First, plaintiff argues that the Agr eement is unenforceable. Second, plaintiff ar gues that the Agree ment was v oid at the

time of exe cution pursuant to th e Ill inois Nurs ing Home Care Ac t, existing I llinois ca se law, a

nd public p olicy . Next, plai ntiff cla ims defen dant waiv ed all cla

ims to assert federal preemption, and defenda nt did not properly perf

ect its right to arbitration. Finally, plaintiff ar

gues that count II

of the first amended complaint is based on neglige nce7

claims asserted by

Terhorst’s next of kin who were not parties to either the nursing home c are contract or the Ag

reemen t. On appeal, defendant arg

ues that the trial court properly determined the Agreement controlled controversies arising out of the nursing home care contract. Defenda nt claims that the language of the Ag

reement is clear, conscionable and binding . Defendant submits, based on recent case law, that the Act is pree mpted by feder

al law, denies waiving its right to arbitration, and asserts plaintiff interfered with defenda nt’s contractual right to arbitration. Standard of Review Initially , we note that the parties disagree a s to the proper standard of review. Plaintiff asserts that since the trial court ruled on a question of law and g ranted a motion to compel arbit ratio n, th is cou rt sho uld re view t he tri al cou rt’s r ulin g de novo . Defendant asserts that the trial “implicitly made” fa ctual findings that both documents should be considered as one uniform contractual ag

reemen t. Defen dant cla ims those im

plicit findings we

re not ag ainst the manifest weight of the evidence in this case. First, we reject the notion that the trial court made implicit findings of fa ct in this case. The rec ord does n

ot establi sh that the

court conducted a

n evident iary hearing on the motion to dismiss or t

he motion to

compel a rbitrati on. When a

trial cou rt does not hold an evidentiary hearing and ente rs an ord er in the absence of any factua l findings, a trial court’s decision to grant

a motion to compel arbitration is reviewed de novo. Vassilkovska v. Woodfield Nissan, Inc. 358 Ill. A pp. 3d 20, 2 4 (2005); Peregrine Financials &Securities v. Hakakha, 338 Ill. App. 3d 197, 202 (2003). It is a lso well e stablishe d that tria l court or ders granting section 2- 619 (735 IL CS 5/2-6198

(West 2008)) motions to dismiss are reviewed de novo

. Progressive Insurance Co. v. Williams , 379 I ll. App. 3d

541, 544 ( 2008); Karris v. US Equities Development, Inc. , 376 Ill. App. 3d 544, 549 (2007). Consequently, we review the trial court’s decision granting defendant’s section 2- 619 motion to dismiss, as well as defendant’s motion to compel arbitration de novo

. Nursing Home Car

e Contrac t In thi s appeal , we must r

eview the trial cou rt’s dec ision base d on the co ntents of this record , which is l imited to th e langu age c ontained

within the

four cor ners of e ach doc

ument. Both the nursing home care contra ct and the Agreement were executed and signed by

the parties on November 29, 2006. The parties do not dispute that the contract pertaining to Terhorst’s nursing home care was unambig uous, complete, and enforceable as written. How ever, the parties strenuou sly

dispute wh ether th e terms of the sepa rate Ag reemen t apply to resolv e all controversies arising out of the nursing home c are contract in this case. Illinois has adopted the Uniform Arbitration Act. 710 I LCS 5/1 et seq . (West 2008). An agreement to arbitrate is a matter of contract. Salsitz v. K

reiss, 198 Ill. 2d 1, 13 (2001). Individual state contract law de termines whether the parties actually agreed to arbitrate future disputes. Bess v. DirecTV, Inc. , 381 Ill. App. 3d 229, 234 (2008). Plaintiff asserts the parties did not agree to arbitrate future disputes re lating to the nursing home care contra ct. Without refer ring thi s court to

any specific case la w, defe ndant subm

its that the

two sepa rate doc uments in this cas e should be

construe d togeth er as one unified a greem ent simply

because the documents were executed on the same date by the same parties. Our rese arch re

veals tha t separa te instrum ents exec

uted at th e same tim e, by

the same parties, and for the same purpose are r egarded as one contrac

t under certain circumstances.9

Gallaghe r v. Lenar t , 226 Ill. 2d 208, 233 (2007). However, de fendant does not provide any authority to this cou

rt demons trating

that this pr

inciple h as been e

xtended to s eparat

e docume nts, executed on the same date, when neither document clea rly refe rs to or expressly incorpora tes the other document. Our supreme court has held that documents executed on the same date may not operate

as one unified agreement when “ a contrary contention is manifested.” Sandra Fro cks, Inc . v. Ziff , 397 Ill. 497, 504 (1947). Parties may not incorporate another agre ement into a contract without an express “reference” de monstrating an intent to incorporate another ag reement into the contract. See McWhorter v. Realty W orld-Star, Inc. , 171 Ill. App. 3d 588, 592 (1988). The rules of contract construction include a strong pre sumption against adding conditions or provisions that could have been easily included by the par

ties as terms of the contract, but were not. Braeside Realty Trust v. Cimino , 133 Ill. App. 3d 1009, 1011 (1985). In this case, a rbitr ation is no t the o nly topi c addre ssed i n the s eparat e two- page agreement. First, the Ag

reement describes the detailed process f or arbitration. Alternatively , the Agreement explicitly goes on to require that if a court determines the arbitra tion provisions are unenforceable, then both parties ag ree to waive the right to a trial by jury. In I llinois, the Nursing Home Care Act prohibits dispute resolution regarding nursing home car e by means oth er than a

trial by jury (210 I LCS 45/ 3-606, 3- 607 (2006 )). At the time the part ies sign ed the se

parate document s in this ca se, our su preme c ourt had n

ot issued it s decision in Carter v. SSC Odin Operating Co. , No. 106511 (April 15, 2010). In that decision, our supre me court held that the Fed eral Ar bitration Act (9 U. S.C. §2 (200 0)) pre empted th e antiwaiver p rovisions containe d in the Illinois Nur sing Hom e Care A ct provided that the contract10

was subject to the other terms of the Federal Ar bitration Act, including whether the contract involved interstate commerce. I n this case, the parties are presumed to know the status of the law at the time of their agreement. See Braeside Realty Trust v. Cimino , 133 Ill. App. 3d at 1012. At the time of their agreement pertaining to nursing home care for Terhorst, the parties could hav e easily

utilized te

rminolog y r equiring arbitra tion, but th ey

did not inc orporat

e this langua ge into t he nursin g home c are con

tract. I n fact, t he seven -page

nursing home car e contra ct, dated November 29, 2006, specifically states that the nursing home care contrac t consists of seven pages. Within those seven pages, the nursing home care contract does not re strict litigation to nonjury trials or require arbitration. We constr

ue this sile

nce as de liberate , intende d, and co nsistent with both exist ing cas e law at the time of the

agree ment and t

he provis ions of the

Act (210 IL CS 45/3-606 , 3-607 (We st 2006)). Based on the circumstances of this ca se, we conclude that the conspicuous absence of langua ge req uiring a rbitrati on constit

utes “a c ontrary

contenti on” that d

efeats defenda nt’s req uest for this court to construe both documents executed on the same date as one ag reement. See Sandra Fro cks, Inc . v. Ziff , 397 Ill. at 504. In the interest of eng aging in a thorough examination of this issue, we next consider whether the Agr eement c reates a separ ate and i ndepend ent contr actual o bligation to arbitr

ate all controversies arising out of the nursing home c are. The separate, two-pag e Agreement begins with the f ollowing introduc tory

langua ge: “Without limiting any rights set forth in other pr ovisions of this AGREEMENT, any and all dispute

s arising he

reunder shall be submitted to binding arbitration and not to a court for determination.” (Emphasis added.)11

Based u pon the pla

in langu age uti lized by

the part ies, we c onclude t

he phras e “this AGREEMENT ” refers to the arbitration ag reement. While circular, clearly this language does not discus s the nurs ing home care c ontract

as the ide

ntified so urce for contro versies

subject to required arbitration. The sec ond para

graph of the Ag

reemen t provide s: “Notwith standing

the part ies intent to submit an

y c ontroversy or claim arising out of or relating to this AGREEMENT or any other document signed or initialed in connec

tion with th

is AGREEME

NT to arb itration, in the eve nt that a court of competent jurisdiction shall determine or a relevant law sha ll provide that a particular dispute is not subject to the arbitration provisions of this Section, then the part ies agr ee to the following

provision s: a. Each party

believes that justice will be served if issues regarding this AGREEMENT are heard by a

judge in a court proceeding, and not a jury, and each party hereby waives their right to a trial by jury .” The lang uage “ any other doc ument sig ned or ini tialed in c onnection with this A GREEMENT ” is circuitous but, again, not uncertain. Since neither the nursing home care contract nor the Agree ment inco rporate s or ref

ers to the other, w e are unable to c onclude t hat the nu rsing ho me care contract for Terhorst’s nursing home care was “sig ned or initialed in connection with this [arbitration] AGREEMENT.” The cas e law provides tha t an enforceabl e contra

ct must be p

remised o n language tha

t is definite and certain as to all essential terms. Academy Chicago Publishers v. Cheever , 144 Ill. 2d12

24, 30 (19 91). Thus , we conc lude the Agreem ent does n ot contai n a clea rly expresse d intent to arbitrate controversies arising out of the se parate nursing care c ontract. Based on this conclusion, it is not nec essary

to addre ss the othe

r claims o f error

raised b y pl aintiff i

n this appe al. CONCLUSIO

N The judgment of the circuit court of Peoria County dismissing plaintiff’s first amended complain t and orde ring the parties t o partic ipate in a

rbitrati on is reve

rsed. Pla intiff’s first amended complaint is reinstated, and the cause is remande d to the trial court for further proceedings consistent with this opinion. Reversed and remanded. HOLDRI DGE, P.J., and CARTER, J., concur.