Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil cases Cooney v. Rossiter, EMC Mortgage Company v. Kemp, In re Marriage of Mathis and In Fennell v. Illinois Central Railroad Company.

Cooney v. Rossiter

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Declining to address an absolute immunity issue of first impression, the Illinois Supreme Court upheld the dismissal of a case on res judicata grounds. Plaintiff Deborah Cooney, her parents and her son sued Lyle Rossiter, a court-appointed psychiatrist, based on a theory of intentional infliction of emotional distress.  In a dissolution proceeding, Rossiter had opined that Cooney should lose custody of her children based on purported psychiatric illnesses of Cooney and her parents.  

The supreme court agreed with the lower courts that the claim was barred by Cooney’s prior unsuccessful attempt in federal court, as part of a three-person class, to establish that Rossiter and others involved in Cooney’s child custody proceedings violated section 1983 of the Civil Rights Act of 1991, 42 U.S.C. § 1983 (2006).  Reasoning that the immunity protecting judges and other judicial officers also protects court-appointed psychological evaluators, the district court dismissed the federal claim against Rossiter.

The supreme court rejected Cooney’s argument that the two cases involved different causes of action based on her assertion in state court of an individual state law tort claim -- which Cooney could have brought with the federal class action claim. The supreme court also disagreed that the “same parties” element was missing. Cooney’s parents and son were plaintiffs in the state case, but not in the federal case; nonetheless, the common connection of the family members’ interests established Cooney as the privy of the other state law plaintiffs.  

Justice Burke specially concurred to state that the majority should have addressed absolute immunity, the other basis for the section 2-619 dismissal order. In Justice Burke’s view, whether the common law doctrine of absolute quasi-judicial immunity extends to appointed child custody evaluators presents an important public policy issue calling for the supreme court’s guidance; this issue, not the fact-specific res judicata question, had prompted the court to allow the petition for leave to appeal. 

EMC Mortgage Corporation v. Kemp

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

EMC Mortgage Corporation v. Kemp deals with appellate jurisdictional issues in a procedural matrix which is unlikely to recur.  A judgment of foreclosure was entered.  On the date the property was set for sale, the mortgagor filed a motion to vacate the judgment of foreclosure, erroneously invoking Section 2-1401. The court refused to vacate the judgment, but added Rule 304(a) language to that order. The mortgagor then filed a second motion to reconsider. That motion, too, was denied, with Rule 304(a) language again being added. The mortgagor appealed from the denial of her Sec. 2-1401 petition as well as from the second Order of Reconsideration. The appellate court dismissed the appeal for lack of appellate jurisdiction. The supreme court affirmed.

The court listed three jurisdictional problems. A fundamental principle is that a judgment of foreclosure is not final and appealable until the trial court enters an order approving the sale and directing the distribution of the proceeds. Thus, Sec. 2-1401 cannot be employed prior to the order approving the sale because that section affords relief from final orders. The court next noted that while a judgment of foreclosure can be appealed when a Rule 304(a) finding is made with respect to such an order, that was not specifically done here. Lastly, the court noted that the two Rule 304(a) findings were ineffective to bestow finality on the non-final orders, which were the denial of the motion to vacate and the second motion for reconsideration.

Justice Karmeier wrote a fully developed dissent, which even has the structure of an opinion of the court. The thrust of the dissent is that the court should overlook the particular procedural mechanisms employed by appellant and rather look to the substance of the relief requested. An essential part of the dissent is the reliance on precedent holding that a Rule 304(a) finding made with respect to a motion to vacate suffices to bring the underlying order before the appellate court for review. The dissent also notes that upon the dismissal of this appeal, the appellant will be free to file another motion to reconsider, properly styled, which would then bring the interesting underlying issues in this case up for review again.

In re Marriage of Mathis

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Addressing a dissolution proceeding that drifted in the circuit court for a decade, in a four to three split, the Illinois Supreme Court set the valuation date of marital property as the date that the court enters judgment for dissolution. The issue arises where, as here, the matter of property division is bifurcated from the question of grounds for dissolution. 

Shortly after Kenneth Mathis filed a petition seeking the dissolution of his marriage to Terri Mathis, the circuit court conducted a hearing and awarded the parties a judgment of dissolution of marriage. The court reserved for future consideration all ancillary issues. The case repeatedly was continued over a period of nearly five years; then the circuit court began to address the question of fluctuation in the value of the parties’ marital assets.  Ultimately, the circuit court set two valuation dates, both of which would fall at least nine years after the date that the court had dissolved the marriage.

The circuit court certified the issue for an interlocutory appeal pursuant to Supreme Court Rule 308 and asked the appellate court to decide whether, in a bifurcated dissolution proceeding, when a grounds judgment has been entered and a hearing on ancillary issues proceeds after a lengthy delay, “is the appropriate date for valuation of marital property the date of dissolution or a date as close as practicable to the date of trial of the ancillary issues?”  Noting the potential that assets may decrease in value, the appellate court held that property should be valued as of the date of trial on ancillary matters.  

The supreme court initially focused on section 503(f) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/503(f) (West 2010), in which the legislature has directed the courts to value property “as of the date of trial or some other date as close to the date of trial as is practicable.”  The majority found the statutory reference to “date of trial” to be ambiguous, given the number of hearings in a dissolution proceeding that might qualify as a “trial.”  After considering a long line of appellate decisions consistently pointing to the date of dissolution as the date of valuation, the General Assembly’s acquiescence in those appellate decisions, and other provisions of section 503, the supreme court held that, in a bifurcated proceeding, the date of valuation is on or near the date the court enters judgment for dissolution following a trial on grounds for dissolution.  Writing for the majority, Justice Theis explained that this approach best serves the statutory policy of equitably dividing marital property. The majority also urged circuit courts to promote judicial economy by resolving all ancillary issues before entering a judgment of dissolution except in those cases where personal circumstances necessitate bifurcation.

Justice Garman, joined by Chief Justice Kilbride and Justice Thomas, dissented.  Emphasizing the difference between the issues of marital/non-marital classification and of valuation, Justice Garman observed that sections 503(d) and (f) expressly contemplate bifurcated proceedings, which allow the parties to remarry and terminate the acquisition of marital property as of the date of judgment. Justice Garman discounted the impact of the appellate decisions cited by the majority; those decisions fail to distinguish the issue of classification of property as marital or non-marital from the valuation of property for dividing the marital estate. Justice Garman concluded that practicality and fairness called for valuing marital property on a date as close as possible to the date on which the court actually divides the property and that the circuit court can adjust the division of property to account for any manipulation by a party that may impact property value. 

In Fennell v. Illinois Central Railroad Company

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

In Fennell v. Illinois Central Railroad Company, the supreme court reversed the circuit and appellate courts, which had both refused to dismiss this FELA case on the basis of interstate forum non conveniens. There were dissents, by Justice Welch in the appellate court and Justice Kilbride in the supreme court.

The plaintiff was employed by the defendant railroad as a brakeman, conductor, and engineer. His alleged exposures to asbestos and noxious fumes were stated to occur while working in defendant's facilities and also by proximity and presence in diesel engines, box cars, and cabooses. The plaintiff originally filed an action in Mississippi, which was dismissed without prejudice on defendant's motion. The plaintiff then filed this case in St. Clair County. Plaintiff is a resident of Mississippi. His answers to interrogatories did not disclose any exposure to the offending substances in Illinois.  Summarizing what can be described as a difficult set of  facts for this plaintiff to work with, the court noted "plaintiff resides in Mississippi; the alleged exposure occurred in Mississippi and Louisiana; the vast majority of the identified witnesses, including the treating physicians, are located in Mississippi; and a jury view of the premises would occur outside of Illinois."  The court also concluded that the public factors "greatly favor" Mississippi. The only Illinois connection with this suit is the offices of the attorneys, the presence of transportable documents in the possession of defense counsel, and a compensated expert witness for plaintiff. 

Circumstances which lessen the deference accorded to plaintiff's choice of forum appear to have been treated on a cumulative basis. The court noted that because St. Clair County was plaintiff's second choice of forum, diminished deference was due.  Lessened deference was also due to the plaintiff's choice because plaintiff does not reside in Illinois. The court commenced its analysis by stating that plaintiff's choice here was entitled to "far less deference."  

The court also gave direction to trial judges in the decision of forum motions:  "[W]e remind our trial courts to include all of the relevant private and public interest factors in their analyses." The supreme court listed factors which had not found expression in the circuit court's order.