Sellers v. Rudert, 4-09-0115.

918 N.E.2d 586

Clinton SELLERS, Plaintiff-Appellant, v. Karl RUDERT, D.O., and Bonutti Orthopedic Services, Ltd., Defendants, and Mark Bonnstetter, Jennifer Tymkew, Roc Bellantoni, Mark Hutson, and Bob Spoo, Defendants-Appellees.

No. 4-09-0115.

Appellate Court of Illinois, Fourth District.

November 20, 2009.

Justice TURNER delivered the opinion of the court:

In August 2008, plaintiff, Clinton Sellers, filed a negligence action against defendants Dr. Karl Rudert, Bonutti Orthopedic Services, Ltd., Mark Bonnstetter, Jennifer Tymkew, Roc Bellantoni, Mark Hutson, and Bob Spoo for his injuries sustained during a September 2006 football game. Shortly thereafter, plaintiff filed an amended complaint to correct a misspelling. In September 2008, defendants Bonnstetter, Tymkew, Bellantoni, Hutson, and Spoo (collectively referred to as the University defendants) filed a combined motion to dismiss, asserting, inter alia, the trial court lacked subject-matter jurisdiction based on sovereign immunity. At a November 2008 hearing, the trial court granted plaintiff leave to file a second-amended complaint, dismissed the counts of the second-amended complaint against the University defendants based on sovereign immunity, and denied plaintiff leave to file a third-amended complaint. In December 2008, plaintiff filed a motion to reconsider the dismissal of the counts and the denial of the motion for leave to file a third-amended complaint, and the court later denied the motion.

Pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)), plaintiff appeals, contending (1) the trial court erred in finding sovereign immunity because (a) plaintiff properly alleged the University defendants exceeded the scope of their authority and (b) the court failed to recognize a duty independent of state employment and (2) the court erred by denying plaintiff leave to file a third-amended complaint. We affirm in part, reverse in part, and remand with directions.

I. BACKGROUND

Plaintiff was a member of the Eastern Illinois University football team and suffered a severe neurologic injury while playing in a football game on September 2, 2006. Prior to the injury, plaintiff had experienced trauma to his body during practice sessions that produced neurologic symptoms, including stingers. University defendants Bonnstetter and Tymkew (the pair hereinafter referred to as the Trainers) were athletic trainers licensed by the State of Illinois and employees of the Eastern Illinois University athletic department. University defendants Bellantoni, Hutson, and Spoo (the trio hereinafter referred to as the Coaches) coached the Eastern Illinois football team, which played at the National Collegiate Athletic Association (NCAA) Division I-AA level.

In August 2008, plaintiff filed a complaint, asserting a professional-negligence count against the Trainers and a negligence count against the Coaches. Plaintiff also raised a professional-negligence count against the football team physician, Dr. Rudert, and Dr. Rudert's employer, Bonutti Orthopedic Services, Ltd. However, that count is not part of this appeal. Shortly after filing the complaint, plaintiff filed an amended complaint to correct the name of one of the University defendants.

In September 2008, the University defendants filed a combined motion to dismiss the amended complaint under section 2-619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619.1 (West 2008)), asserting the case should be dismissed under (1) section 2-619(a)(1) of the Procedure Code (735 ILCS 5/2-619 (a)(1) (West 2008)) because the trial court lacked subject-matter jurisdiction based on sovereign immunity and (2) section 2-615 of the Procedure Code (735 ILCS 5/2-615 (West 2008)) because (a) the contact-sports exception applied and (b) the University defendants had no duty to warn plaintiff under the circumstances. At the November 19, 2008, hearing, on the motion to dismiss, plaintiff requested leave to file a second-amended complaint, which the trial court granted. The court then proceeded to hear the motion to dismiss on the sovereign-immunity issue as to the second-amended complaint. After hearing the parties' arguments, the court dismissed the cause as to the University defendants due to lack of subject-matter jurisdiction. The court stated plaintiff could bring his cause of action in the Court of Claims but could not proceed any further in the circuit court against the University defendants. Plaintiff then requested leave to file a third-amended complaint against the University defendants. The court denied plaintiff's request.

On December 11, 2008, plaintiff filed a motion for reconsideration of (1) the dismissal of the counts in the second-amended complaint against the University defendants and (2) the denial of his request to file a third-amended complaint. The next day, the trial court denied the motion in a written order. On December 16, 2008, plaintiff filed a motion for the court to make a finding under Rule 304(a). Two days later, plaintiff filed a written motion for leave to file a third-amended complaint and for the first time submitted a proposed third-amended complaint. The court again denied plaintiff's request. On January 22, 2009, the court entered an order, making a finding under Rule 304(a) that no just cause exists to delay enforcement or appeal of the final dismissal of the University defendants.

On February 18, 2009, plaintiff filed a notice of appeal in compliance with Supreme Court Rules 303 and 304(a) (Official Reports Advance Sheet No. 15 (July 16, 2008), R. 303, eff. May 30, 2008 (corrected eff. June 4, 2008); 210 Ill.2d R. 304(a)). The notice stated plaintiff was appealing the November 19, 2008, dismissal order and "the [o]rder denying [p]laintiff's [m]otion to [r]econsider and for [l]eave to [f]ile [t]hird[a]mended [c]omplaint entered on December 15, 2008."

II. ANALYSIS

A. Sovereign Immunity

Section 2-619(a)(1) of the Procedure Code (735 ILCS 5/2-619(a)(1) (West 2008)) provides for dismissal of a cause of action due to the trial court's lack of subject-matter jurisdiction. Siakpere v. City of Chicago, 374 Ill.App.3d 1079, 1081, 313 Ill.Dec. 512, 872 N.E.2d 495, 497 (2007). The University defendants asserted the trial court lacked subject-matter jurisdiction over the counts against them because the Court of Claims had exclusive jurisdiction under the sovereign-immunity doctrine.

With a section 2-619 motion to dismiss, the movant admits the legal sufficiency of the plaintiff's complaint but raises an affirmative defense or other matter that avoids or defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229, 236 (2006). "In ruling on such a motion, the court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party." Melena v. Anheuser-Busch, Inc., 219 Ill.2d 135, 141, 301 Ill.Dec. 440, 847 N.E.2d 99, 103 (2006). A section 2-619 motion presents a question of law, and thus our review of the trial court's ruling on the motion is de novo. DeLuna, 223 Ill.2d at 59, 306 Ill.Dec. 136, 857 N.E.2d at 236.

"The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity `[e]xcept as the General Assembly may provide by law.'" PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill.2d 250, 259-60, 296 Ill.Dec. 828, 836 N.E.2d 351, 356 (2005), quoting Ill. Const. 1970, art. XIII, § 4. Exercising its constitutional authority, the General Assembly reestablished the doctrine in the State Lawsuit Immunity Act (Immunity Act) (745 ILCS 5/0.01 through 1.5 (West 2008)). PHL, 216 Ill.2d at 260, 296 Ill.Dec. 828, 836 N.E.2d at 356. Section 1 of the Immunity Act (745 ILCS 5/1 (West Supp.2007)) prohibits the State of Illinois from being a party to a lawsuit except for the enumerated exceptions, one of which is the Court of Claims Act (705 ILCS 505/1 through 29 (West 2008)). The Court of Claims Act establishes the Court of Claims as the forum for claims against the state and provides, inter alia, the "`court shall have exclusive jurisdiction to hear and determine * * * [a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit.'" Loman v. Freeman, 229 Ill.2d 104, 112, 321 Ill.Dec. 724, 890 N.E.2d 446, 453 (2008), quoting 705 ILCS 505/8(d) (West 2004).

The determination of whether an action is one against the State does not depend "on the formal identification of the parties but rather on the issues involved and the relief sought." Healy v. Vaupel, 133 Ill.2d 295, 308, 140 Ill.Dec. 368, 549 N.E.2d 1240, 1247 (1990). Thus, sovereign immunity cannot be avoided "`by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.'" Healy, 133 Ill.2d at 308, 140 Ill.Dec. 368, 549 N.E.2d at 1247, quoting Sass v. Kramer, 72 Ill.2d 485, 491, 21 Ill.Dec. 528, 381 N.E.2d 975, 977 (1978). We note that for the first time in his reply brief plaintiff contends the University defendants failed to show with their motion to dismiss that they are state employees. Under Illinois Supreme Court Rule 341(h)(7) (210 Ill.2d R. 341(h)(7)), an appellant forfeits points not raised in the initial brief and cannot argue them for the first time in the reply brief. Burlington Northern & Santa Fe Ry. Co. v. ABC-NACO, 389 Ill.App.3d 691, 717, 329 Ill.Dec. 238, 906 N.E.2d 83, 105 (2009). Thus, we find plaintiff has forfeited this argument.

Our supreme court has found an action is actually against the State when the following are present:

"`(1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the...