Giovenco-Pappas v. Berauer

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Giovenco-Pappas v. Berauer, 2020 IL App (1st) 190904

Appellate Court MARIANNE GIOVENCO-PAPPAS, Individually and as Guardian of

Caption the Person and Estate of Rosemary Giovenco, Plaintiff-Appellant, v.

MATTHEW BERAUER, PATTY KEHL and THE KENNETH

YOUNG CENTER, a Not-for-Profit Corporation, Defendants-

Appellees.

District & No. First District, Third Division

No. 1-19-0904

Filed September 9, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 15-CH-12484; the

Review Hon. Robert E. Senechalle Jr., Judge, presiding.

Judgment Affirmed.

Counsel on John J. Pappas Sr. and Stephen J. Healy, The Pappas Law Group, LLC,

Appeal of Chicago, for appellant.

John W. Patton Jr. and James A. Garfield, of Patton & Ryan LLC, and

Melinda S. Kollross and Paul V. Esposito, of Clausen Miller P.C., both

of Chicago, for appellees.

Panel JUSTICE ELLIS delivered the judgment of the court, with opinion.

Presiding Justice Howse and Justice McBride concurred in the

judgment and opinion.

OPINION

¶1 Plaintiffs sued a private “provider agency” and two of its social workers, working under

contract with the Illinois Department on Aging, for their alleged negligent investigation of an

allegation of elder abuse. Before trial, defendants asserted the defense of sovereign immunity.

¶2 The court agreed that sovereign immunity barred this lawsuit and dismissed the matter for

lack of subject matter jurisdiction. We likewise agree that defendants’ alleged misconduct were

actions of the State and thus protected by sovereign immunity. We affirm the judgment.

¶3 BACKGROUND

¶4 In 1998, Rosemary Giovenco (Rosemary) suffered a traumatic brain injury after she was

involved in a car accident. This injury caused significant neurological disability and required

her to be placed in adult guardianship. Plaintiff Marianne Giovenco-Pappas (Marianne),

Rosemary’s daughter, was appointed as her mother’s guardian in 2000. At all relevant times,

Judge Carolyn Quinn, a judge in the Circuit Court of Cook County, oversaw Rosemary’s

guardianship.

¶5 Although Rosemary was significantly disabled, she was able to communicate in a limited

manner, walk (with the assistance of a walker), and provide basic care for herself such as

dressing, cooking, and eating. Although she had some expressive language, as result of the

1998 injury, in Marianne’s words, “when someone tries to communicate verbally with

Rosemary[,] she turns her head and makes a wincing, grimincing [sic] face[,] especially when

she is nervous, interacting with strangers, or any disruption of her normal routine.” This “is

not an expression of pain, fear, or negativity.”

¶6 In late 2014, Rosemary underwent knee replacement surgery. During the rehabilitation on

her knee, she developed a methicillin-resistant staphylococcus aureus (MRSA) infection in her

skull. This infection had a devastating effect on Rosemary’s cognitive abilities. “Because of

the MRSA infection Rosemary cannot walk; she is incontinent and wears diapers, she cannot

speak and is non-verbal.” After extended treatment and rehabilitation for the MRSA infection,

Rosemary was able to return to Marianne’s care sometime in the middle of 2015.

¶7 On August 8, 2015, while serving dinner, Marianne noticed that Rosemary’s right hand

and wrist had become swollen and red and was warm to the touch. There were also “2 small

blister like areas on the dorsal aspect of her right hand.” As the family ate dinner, Marianne

become increasingly concerned about her mother’s hand. She called 911, and the emergency

responders took Rosemary to St. Alexius Hospital in Hoffman Estates (Hospital). The

Hospital’s emergency room physician diagnosed Rosemary with cellulitis, a skin infection.

Because this infection required treatment with two potent antibiotics, Rosemary was admitted.

After her admission, she came under the care of Dr. Gopal Rao. Dr. Rao also diagnosed

Rosemary’s hand condition as cellulitis. Rosemary received the antibiotic treatment and was

scheduled for discharge on August 12.

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¶8 The Hospital is within the service area of The Kenneth Young Center (KYC). KYC is a

“provider agency,” selected by the Illinois Department on Aging (Department) to receive and

assess reports of alleged or suspected abuse, neglect, or financial exploitation of the elderly.

KYC, as a provider agency, is tasked with assisting the Department in administering a

protective services program for the elderly in Illinois. See 320 ILCS 20/3 (West 2014). These

provider agencies “are agents of the Illinois Department on Aging.” 89 Ill. Adm. Code

270.215(c), amended at 39 Ill. Reg. 2156 (eff. Jan. 23, 2015). To accomplish their work on

behalf of the Department, provider agencies may assign caseworkers to investigate allegations

of elder abuse. Defendants Matthew Berauer and Patty Kehl are two of KYC’s caseworkers.

¶9 The day before Rosemary’s scheduled discharge, a Hospital social worker, Paul Kutylo,

reported his suspicion that Rosemary was the victim of neglect or abuse to KYC. Kutylo

specifically reported a suspicion that Marianne had burned Rosemary’s hand. The KYC

investigation was assigned to Berauer.

¶ 10 The same day that Kutylo reported his suspicions, Berauer began his investigation. He

reviewed some of Rosemary’s medical records and interviewed Rosemary. While interviewing

Rosemary, Berauer noted that she would grimace when he mentioned Marianne. Specifically,

when he asked Rosemary if she wanted to go home, she “became tearful and curled into the

fetal position.” These grimaces caused him to believe that Rosemary was fearful of Marianne.

¶ 11 The next morning, the date of Rosemary’s expected discharge, Berauer called Marianne.

What was said during this call is highly contested. Marianne claims that Berauer told her that

his investigation had determined that Marianne had burned, abused, and otherwise neglected

Rosemary. Berauer claims that he simply told her that there had been allegations of a burn,

abuse, and neglect. According to Marianne, she was shocked by these allegations, especially

since no doctor had diagnosed a burn. Later that day, Marianne went to the Hospital and met

with Berauer. Their accounts of that meeting differ, but ultimately, after speaking with both

Marianne and Rosemary, Berauer still had concerns about the allegations of abuse.

¶ 12 Berauer’s response to his investigation is also hotly contested. Most notably, Marianne

contends that Berauer refused to allow Rosemary to be discharged into Marianne’s care.

Instead, Marianne claims that Berauer, personally, cancelled Rosemary’s August 12 discharge

and ordered her to be discharged to a subacute rehabilitation facility. The record is clear, and

even Berauer admits, that Berauer did not possess the authority to cancel Rosemary’s

discharge.

¶ 13 From his perspective, Berauer did not cancel or order anything. His deposition testimony

on this point is difficult to follow, but he claims that he only made recommendations about

Rosemary’s discharge. Kutylo testified that Berauer did not cancel Rosemary’s discharge—

the Hospital did, because its policy was not to discharge a patient into a potentially harmful

environment. In an affidavit, Dr. Rao states “[t]hat on August 12, 2015, Matthew Berauer

advised me that he cancelled my order discharging Rosemary Giovenco on August 12, 2015.”

Dr. Rao “believe[d] that [Berauer] had the power and authority to take that type of action as

an Adult Protective Service Worker.”

¶ 14 Rosemary remained in the Hospital until August 16. On August 16, Rosemary was

transferred from the Hospital to the Glenview Terrace Nursing Center. Dr. Rao signed the

discharge to the nursing center “because [he] believed that Matthew Berauer, as an Adult

Protective Service Worker, had the power and authority to require [him] to take those actions.”

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The Glenview nursing center was outside the “jurisdiction” of KYC, and thus, Rosemary’s file

was transferred to the North Shore Senior Center, another provider agency.

¶ 15 On August 18, Marianne, through her lawyer, faxed a letter to Kehl, complaining about

Berauer’s handling of the investigation. This letter specifically contends that the medical

records directly refuted Berauer’s “claims.” This letter demanded the immediate release of

Rosemary into Marianne’s custody and threatened a lawsuit otherwise. Within hours of reading

Marianne’s demand, Berauer sent a letter, addressed to Judge Quinn, recommending that the

court appoint a guardian ad litem (GAL) over Rosemary’s estate. The same day, Judge Quinn

appointed Ruben Garcia as Rosemary’s GAL.

¶ 16 Garcia investigated the claims that Rosemary was being abused. On August 24, he issued

his report to Judge Quinn. Garcia’s investigation did not find any evidence of abuse or neglect.

The only “negative” result was that “[Rosemary] was able to communicate with [Garcia] that

she would like to have more attention and more care at her daughter’s house. [Rosemary]

communicated to me that she believes that she is sometimes left alone for longer periods of

time than she likes.” Ultimately, the court dismissed the GAL and allowed Marianne to remain

as Rosemary’s guardian.

¶ 17 The day after the GAL was appointed, August 19, Rosemary filed this action, seeking an

injunction requiring defendants to immediately release Rosemary into Marianne’s custody.

(Note that Marianne sued both in her individual and official capacities, so as a litigant, we will

refer to her in the plural “plaintiffs.”) Due to developments that occurred after the initial filing,

plaintiffs made numerous amendments to the complaint. The complaint at issue on appeal, the

verified fifth amended complaint, no longer sought injunctive relief. Instead, plaintiffs made

24 claims arising from defendant’s handling of the investigation into the allegations of elder

abuse, including negligence, false imprisonment, intentional inflection of emotional distress,

defamation, and false light.

¶ 18 The circuit court declined to dismiss the complaint on the merits, and the case proceeded

toward trial. As the trial date was approaching, defendants filed a “trial brief regarding

sovereign immunity.” Recognizing that sovereign immunity implicated its subject matter

jurisdiction, the trial court construed the brief as a motion to dismiss. The court ordered briefing

and allowed argument on the issue of sovereign immunity.

¶ 19 The circuit court concluded that sovereign immunity applied. Although plaintiffs argued

that defendants “exceeded their authority,” the court determined that “there simply are not

allegations in this complaint that either Mr. Berauer or Ms. Kehl exceeded their authority in a

way that would take this case outside of the protections in the immunity statute of sovereign

immunity.” Instead, the court believed the allegations were that Berauer made “mistakes in

judgment.” The court noted its

“serious concern in this case were the Court to find that the sovereign immunity didn’t

protect Mr. Berauer as an elder abuse case worker, when it’s such a difficult, difficult

task, particularly in a situation like this, where time is very short, things are happening

fast, and his job, at least until he can get his arms around the issue, is to protect the

person that is his responsibility.”

¶ 20 The court dismissed the case, and plaintiff moved to reconsider. In its written order on

reconsideration, the court declined to reconsider the decision that the claim was barred by

sovereign immunity. However, the court also made specific determinations about the effect

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and applicability of other immunity statutes, specifically the State Lawsuit Immunity Act and

the qualified-immunity provision of the Adult Protective Services Act.

¶ 21 Plaintiffs timely appealed.

¶ 22 ANALYSIS

¶ 23 I

¶ 24 Sovereign immunity implicates a court’s subject matter jurisdiction. Leetaru v. Board of

Trustees of the University of Illinois, 2015 IL 117485, ¶¶ 41-42; Currie v. Lao, 148 Ill. 2d 151,

157 (1992). Thus, the circuit court construed the defendants’ “trial brief” on sovereign

immunity as a section 2-619 motion to dismiss for lack of subject matter jurisdiction. See 735

ILCS 5/2-619(a)(1) (West 2014) (authorizing dismissals for lack of subject matter

jurisdiction). We review a dismissal for lack of subject matter jurisdiction de novo. Leetaru,

2015 IL 117485, ¶ 41.

¶ 25 The 1970 Illinois Constitution abolished sovereign immunity “ ‘[e]xcept as the General

Assembly may provide by law.’ ” Parmar v. Madigan, 2018 IL 122265, ¶ 19 (quoting Ill.

Const. 1970, art. XIII, § 4). The General Assembly reinstituted sovereign immunity for the

State via the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2014)). See Leetaru,

2015 IL 117485, ¶ 42.

¶ 26 The State Lawsuit Immunity Act states that, except as provided in various statutes,

including the Court of Claims Act, the State “shall not be made a defendant or party in any

court.” 745 ILCS 5/1 (West 2014). The Court of Claims Act, in turn, establishes a court with

exclusive jurisdiction to hear most matters against the State. 705 ILCS 505/8 (West 2014). For

example, “[a]ll claims against the State founded upon any law of the State of Illinois or upon

any regulation adopted thereunder by an executive or administrative officer or agency” (id.

§ 8(a)) and “[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” (id. § 8(d)).

¶ 27 Whether an action is “against the State,” thus implicating sovereign immunity, 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 (1990). A plaintiff cannot avoid sovereign

immunity simply by filing “an action against the state’s servants or agents when the real claim

is against the state itself.” Swanigan v. Smith, 294 Ill. App. 3d 263, 269 (1998); see Healy, 133

Ill. 2d at 308. As to the issues raised,

“an action is against the state when there are:

‘(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 complained-of actions involve matters ordinarily within that

employee’s normal and official functions of the State ***.’ ” (Internal quotation

marks omitted.) Jinkins v. Lee, 209 Ill. 2d 320, 330 (2004) (quoting Healy, 133 Ill.

2d at 309).

Regarding the relief sought, a court must consider whether “a judgment for the plaintiff could

operate to control the actions of the State or subject it to liability.” Currie, 148 Ill. 2d at 158.

¶ 28 Plaintiffs do not deny that defendants here would qualify as State actors who ordinarily

would be entitled to sovereign immunity. And rightly so. In Toth v. England, 348 Ill. App. 3d

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378, 380-82 (2004), sovereign immunity barred a suit against a private nursing association

(and one of its employees, England) that provided care to the plaintiff’s elderly mother

pursuant to a contract with the Illinois Department on Aging. The plaintiff sued the defendants

for defamation, abuse of process, and malicious prosecution for filing a petition for

guardianship of the plaintiff’s disabled mother. Id. at 379.

¶ 29 We held that the nursing association and its employee, England, though private actors, were

acting as agents of the State. Id. at 386. First, the State Employee Indemnification Act’s

definition of “employee” included an “ ‘individual representative[ ] of or organizations

designated by the Department on Aging.’ ” Id. (quoting 5 ILCS 350/1(b) (West 2000)). And

the enabling statute, the Elder Abuse and Neglect Act (the predecessor to the Adult Protective

Services Act applicable here), provided (as it still does today) that the Department on Aging

may implement the Act through provider agencies. Id.; see 320 ILCS 20/3 (West 2014).

Likewise, under the applicable administrative rules, “the provider agencies and their

employees are performing the State’s work pursuant to the State’s direction.” Toth, 348 Ill.

App. 3d at 386; see 89 Ill. Adm. Code 270.215, amended at 39 Ill. Reg. 2156 (eff. Jan. 23,

2015) (providing for control and coordination over provider agencies).

¶ 30 We reasoned that “[t]he case at bar is exactly the type of action where sovereign immunity

bars the action. England is a social worker who is working on behalf of the State’s elderly

people when she has reason to suspect abuse, neglect, or exploitation.” Toth, 348 Ill. App. 3d

at 389. “Accordingly, when a social worker that is acting on behalf of the Department is sued

by another for work-related statements, the suit necessarily threatens to control the actions of

the State.” Id. at 389-90.

¶ 31 Toth was well-reasoned and, in our view, correctly decided. And as noted, the provisions

of the Adult Protective Services Act and the applicable administrative rules that underlay our

conclusion in Toth are in substantially the same form today. Thus, there can be no question—

nor do plaintiffs raise one—that defendants here were acting as agents of the State in providing

care, which ordinarily would trigger sovereign immunity’s bar.

¶ 32 But plaintiffs argue that their lawsuit fits within an exception to sovereign immunity—

when the complained-of actions of the State agent exceed his or her authority under state law.

See, e.g., Jinkins, 209 Ill. 2d at 330 (sovereign immunity applies when, among other things,

there are “no allegations that an agent or employee of the State acted beyond the scope of his

authority through wrongful acts” (internal quotation marks omitted)); Parmar, 2018 IL

122265, ¶ 22; Leetaru, 2015 IL 117485, ¶ 45; Healy, 133 Ill. 2d at 309. The reason for this

exception is that “conduct taken by a State officer without legal authority strips the officer of

his or her official status.” Parmar, 2018 IL 122265, ¶ 22; see also Leetaru, 2015 IL 117485,

¶¶ 45-46.

¶ 33 Plaintiffs say that, in two different ways, their complaint adequately alleged that defendant

Berauer exceeded his authority as an investigator. First, he allegedly overrode a physician’s

order to discharge Rosemary, something everyone (including Berauer) agrees he lacked the

authority to do. And second, he wrote that letter to Judge Quinn, requesting the appointment

of a guardian ad litem for Rosemary.

¶ 34 The trial court ruled that these allegations are not of the sort that would typically constitute

a State officer “exceeding” his or her authority for the purposes of this exception to sovereign

immunity. We are likewise skeptical. Even if Berauer did these things (he denies the first

allegation), and even if he acted improperly in doing so, he was doing them in furtherance of

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his State work, and any duty he breached was a duty he owed only by virtue of the State work

he was performing. See, e.g., Leetaru, 2015 IL 117485, ¶ 47 (“not every legal wrong

committed by an officer of the State will trigger” this exception; exception is aimed “at

situations where the official is not doing the business which the sovereign has empowered him

or her to do or is doing it in a way which the law forbids”); Jackson v. Alverez, 358 Ill. App.

3d 555, 561 (2005) (“Because sovereign immunity presupposes the possibility of a legal wrong

by a state employee [citation], and legal wrongs are, per se, unauthorized, the relevant question

cannot be whether the employee had authority to commit the legal wrong. Instead, the question

is whether the employee intended to perform some function within the scope of his or her

authority when committing the legal wrong.”); Currie, 148 Ill. 2d at 159-60; Toth, 348 Ill. App.

3d at 387-88.

¶ 35 But that analysis is not always straightforward, and as discussed below, we can resolve this

matter on a far simpler ground. So for the sake of argument, we will assume, without deciding,

that the complaint here adequately pleaded that Berauer exceeded the authority delegated to

him by the State in allegedly overriding the physician’s discharge order and in penning a letter

to a circuit judge seeking a guardian for Rosemary.

¶ 36 This exception to sovereign immunity for State officers who exceed their authority, and

thus are not truly acting on behalf of the State when they commit their wrongful acts, is

interchangeably styled the “officer suit exception” or the “prospective injunctive relief

exception.” (Internal quotation marks omitted.) Parmar, 2018 IL 122265, ¶ 22. While the

former moniker is more popularly used (id.), the latter one previews why plaintiffs here cannot

avoid the bar of sovereign immunity, regardless of the sufficiency of their allegations. A suit

against an officer or agent of the State may avoid the sovereign-immunity bar only if the

lawsuit seeks to enjoin future conduct by the State agent. Id. ¶ 26 (“a complaint seeking

damages for a past wrong does not fall within the officer suit exception to sovereign

immunity”); Ellis v. Board of Governors of State Colleges & Universities, 102 Ill. 2d 387, 395

(1984) (tenured professor’s suit for damages for wrongful discharge was barred by sovereign

immunity; court recognized that if plaintiff instead “seeks to enjoin a State officer from taking

future actions in excess of his delegated authority, then the immunity prohibition does not

pertain”); Leetaru, 2015 IL 117485, ¶ 51 (lawsuit not barred by sovereign immunity because

“[plaintiff’s] action does not seek redress for some past wrong” but, rather, “seeks only to

prohibit future conduct *** undertaken by agents of the State in violation of statutory or

constitutional law or in excess of their authority”).

¶ 37 Here, plaintiffs do not seek to enjoin defendants’ future conduct. Their complaint only

seeks monetary damages for past actions of State agents that allegedly constituted negligence,

false imprisonment, intentional inflection of emotional distress, and various forms of

defamation. The “officer suit exception” to sovereign immunity does not apply. The bar of

sovereign immunity remains.

¶ 38 The trial court thus correctly dismissed the action for lack of subject-matter jurisdiction.

¶ 39 II

¶ 40 We briefly address two final issues raised by plaintiffs.

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¶ 41 A

¶ 42 First, plaintiffs claim that we should not apply the sovereign-immunity bar in the State

Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)). Instead, they say, we should apply the

more specific immunity provision in section 4(b) of the Adult Protective Services Act, which

provides that any person or agency that reports or investigates a claim of elder abuse “in good

faith” shall have “immunity from any civil, criminal or other liability in any civil, criminal or

other proceeding.” 320 ILCS 20/4(b) (West 2014). Plaintiffs say this provision is more specific

than the general grant of immunity in the State Lawsuit Immunity Act, and thus the more

specific law should control over the general one. See Moore v. Green, 219 Ill. 2d 470, 480

(2006) (“Where a general statutory provision and a more specific statutory provision relate to

the same subject, we will presume that the legislature intended the more specific provision to

govern.”).

¶ 43 But the doctrine of applying the more specific statute over the general has no application

here, because the sovereign-immunity statute and the immunity provision in the Adult

Protective Services Act are addressing two fundamentally different things. See Janes v.

Albergo, 254 Ill. App. 3d 951, 956 (1993) (“sovereign immunity and public official immunity

are two separate doctrines”); Campbell v. White, 207 Ill. App. 3d 541, 548-49 (1991) (same).

Indeed, other than the word “immunity,” these two concepts share nothing in common.

¶ 44 Sovereign immunity protects the State from being hauled into court in the first place. Just

as the State Lawsuit Immunity Act plainly says, with a few exceptions not relevant here, “the

State of Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1 (West

2014). It speaks not to liability but to the court’s jurisdiction. See Parmar, 2018 IL 122265,

¶ 20; 705 ILCS 505/8(a) (West 2014) (Court of Claims “shall have exclusive jurisdiction to

hear and determine *** [a]ll claims against the State founded upon any law of the State of

Illinois” (emphasis added)). It is immunity from suit—in a court, at least—not immunity from

liability. Indeed, as just noted, the State remains potentially liable for its agents’ misconduct,

subject to the constraints of the Court of Claims Act.

¶ 45 In contrast, other “immunity” provisions based on statute or the common law allow

defendants to avoid liability for their wrongful conduct, but they are not barriers to suit. A

public official immunity provision, like section 4(b) of the Adult Protective Services Act, may

make it difficult or impossible to obtain a damages award against a particular defendant, but a

circuit court may still hear the case. A tort immunity statute may insulate a municipality from

liability or impose a higher burden to impose such liability, but those provisions do not prevent

the bringing of a lawsuit in the first place.

¶ 46 These sort of immunity statutes are not jurisdictional in nature. See Janes, 254 Ill. App. 3d

at 957. In fact, unlike subject matter jurisdictional objections, which can never be forfeited and

may be raised at any time (In re M.W., 232 Ill. 2d 408, 414-15 (2009)), the defense of immunity

from liability may be forfeited if not asserted (Henrich v. Libertyville High School, 186 Ill. 2d

381, 387-88 (1998)).

¶ 47 All of which is to say that sovereign immunity and public official immunity are neither

overlapping nor antagonistic. Subject matter jurisdictional questions like sovereign immunity

will always predominate in court; if there is no subject matter jurisdiction, the case is over. But

if subject matter jurisdiction exists, a defendant remains free to assert any defense, like public

officer immunity. And for that matter, if a case in court is dismissed based on sovereign

immunity, a defendant remains free to assert an immunity defense, like section 4(b) of the

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Adult Protective Services Act, before the Court of Claims. See Campbell, 207 Ill. App. 3d at

555.

¶ 48 B

¶ 49 Finally, plaintiffs challenge other rulings by the trial court. Given the court’s lack of subject

matter jurisdiction, this matter—at least in the courts—is at an end. There is no need for us to

individually examine each of these other orders. But because this dispute may find its way to

the Court of Claims, we will say this much: These other challenged orders—and indeed, all

orders entered below, other than the one dismissing the case for lack of subject matter

jurisdiction—are void, as the circuit court lacked the inherent power to enter them. See M.W.,

232 Ill. 2d at 414 (if court lacks subject-matter jurisdiction, “any order entered in the matter is

void ab initio”).

¶ 50 CONCLUSION

¶ 51 The judgment of the trial court is affirmed.

¶ 52 Affirmed.

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