Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court civil opinions in the civil cases BAC Home Loans Servicing, LP v. Mitchell, In re Marriage of Tiballi, Spanish Court Two Condominium Association v. Carlson and Home Star Bank and Financial Services, etc. v. Emergency Care and Health Organization, Ltd.

BAC Home Loans Servicing, LP v. Mitchell

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

In the context of a motion attacking foreclosure proceedings for lack of proper service filed after confirmation of the report of sale, BAC Home Loans Servicing v. Mitchell “reaffirms the longstanding rule that ‘a party who submits to the court’s jurisdiction does so only prospectively and the appearance does not retroactively validate orders entered prior to that date.’”  The court resolved a conflict among appellate panels on the issue of whether a waiver of personal jurisdiction operated prospectively only, or whether it served to retroactively validate previous orders of the court entered without personal jurisdiction. 

The source of the controversy is the amendment of section 2-301 in 2000 which both eliminated the need for a special appearance and specified the manner of objecting to a court’s jurisdiction.  The court held that in context the amendment was ambiguous, and should therefore not be interpreted to contradict In re Marriage of Verdung, 126 Ill.2d 542 (1989), which applied the prospectively-only rule. 

The court applied its forfeiture rules to bar an argument by appellant that the initial motion did not constitute a waiver of jurisdiction.  The argument had not been made in the petition for leave to appeal, nor in the briefs, but rather was first asserted at oral argument.

In re Marriage of Tiballi

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

The Court has again emphasized the narrow definition of “costs” when determining what charges may be taxed under the Code of Civil Procedure. Here, it held that the charges for a psychologist whom the court appoints to advise it in connection with a custody dispute are not “costs” as that term is used in section 5-116.

In this case, a father petitioned to modify a child custody order. The circuit court appointed a psychologist pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act. The circuit court later, upon the mother’s motion, dismissed the petition and ordered the father to pay the court-appointed psychologist’s fees as court costs. The appellate court affirmed and the Supreme Court reversed.

The Court first decided that it made no practical difference what the nature of the dismissal order was because 735 ILCS 5/5-116 provides that in all cases where either an action is voluntarily dismissed or dismissed for lack of prosecution, the defendant recovers her “costs.”

The Court then analyzed whether the fees could be considered “costs” as contemplated by section 5-116. The Court explained that prior case law had interpreted this same term “costs” as used in section 5-108 (the companion section governing recovery of costs by plaintiffs) to narrowly mean “’court costs,’ such as filing fees, subpoena fees, and statutory witness fees.” The fees did not fit within that definition.

The Court remanded the cause to the circuit court for a reallocation of the psychologist’s fees based upon the criteria set forth in section 604(b) of the Marriage Act, which provides its own method for allocating an evaluator’s fees among the parties.

Spanish Court Two Condominium Association v. Carlson

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In a 4-3 decision, the Illinois Supreme Court ruled that, unlike tenants fighting eviction, a condominium owner may not defend a forcible entry and detainer action for unpaid assessments by asserting damage caused to her unit by the association’s failure to repair a leaky roof and a water leak in an adjoining unit. Although acknowledging that documents such as bylaws may impact the owner-association relationship, the court found it to be largely created by statute, that is, the Condominium Act, 765 ILCS 605/1 et seq (West 2008). The court reasoned that, unlike a tenant’s purely contractual obligation to pay rent, which may be nullified by a landlord’s failure to keep its promises to maintain the leased premises, a condominium owner’s duty to pay assessments existed pursuant to statute, independent of the association’s governing documents. Based on provisions of the Condominium Act prohibiting an owner from assigning or otherwise avoiding her assessment obligations and stating that an association has no authority to refrain from enforcing the assessment obligation, the court concluded that the existence of damage to the unit caused by the association’s failure to repair the common areas did not nullify a unit owner’s duty to pay assessments. Accordingly, under the forcible statute, 735 ILCS 5/9-106(a) (West 2008), the unit owner’s defenses were not “germane” to the association’s forcible entry and detainer action.

Beyond the express statutory language, the court held that allowing a unit owner to defend an action for unpaid assessments based upon failure to repair and maintain the common areas would contradict the legislative purpose of providing a quick way for the association to collect unpaid assessments. Permitting nullification, the court found, would threaten the financial stability of condominium associations.

Writing for three dissenters, Justice Freeman contended that because the legislature had not specifically foreclosed unit owners from using a nullification defense in a forcible action, condominium owners should be permitted to raise material breaches by the association. In particular, Justice Freeman stressed that Illinois is unique in allowing a condominium association to evict unit owners for unpaid assessments under the forcible statute.

Home Star Bank and Financial Services, etc. v. Emergency Care and Health Organization, Ltd.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Interpreting the Good Samaritan Act, the Illinois Supreme Court has unanimously overruled a line of appellate decisions ruling that providing emergency medical care “without fee” means without payment by the patient. The supreme court, which adopted the reasoning of a federal district court finding that Illinois decisions had “strayed far” from the General Assembly’s intent, ruled that the appellate court had too narrowly interpreted the “without fee” phrase. If a physician responds to an emergency not as a volunteer but as part of his job, for which he is fully compensated, the statute does not provide immunity from civil liability.

The supreme court addressed the Act in the context of emergency treatment of a patient, Edward Anderson, after he was admitted to Provena St. Mary’s Hospital through the emergency room. A few days after his admission, while in the intensive care unit, Mr. Anderson’s breathing became labored and he experienced pain on swallowing. Dr. Michael Murphy, the one physician on duty in the emergency room at the time of the 3:20 a.m. Code Blue, responded to the call for assistance and attempted to intubate Mr. Anderson. Alleging that Dr. Murphy’s care caused a brain injury, the plaintiffs sued Dr. Murphy and his employer for medical negligence. The defendants moved for summary judgment based on the Act, which immunizes a physician “who, in good faith, provides emergency care without fee to a person” unless there is willful or wanton misconduct.  745 ILCS 49/25 (West 2010).

As of 2005, a number of Illinois appellate decisions found that “without fee” unambiguously meant without charge and held that the statute applied if a physician in good faith provided emergency care and did not bill for her services. That year, in Henslee v. Provena Hospital, 373 F. Supp. 2d 802 (N.D. Ill. 2005), the district court reviewed the body of Illinois law and concluded that the Illinois Supreme Court would not follow the appellate court’s construction of the statute. The court in Henslee found that “without fee” was ambiguous and concluded that a “fee” would exist when a doctor receives payment for rendering emergency services.

The supreme court agreed with the district court’s analysis. It found that the appellate decisions “thwarted unmistakably obvious legislative intent” -- to enact the statute according to the commonly understood meaning of “good Samaritan law.” Reasoning that the legislature meant to promote volunteerism and encourage medical professionals to assist in emergency situations while off duty, based upon the codified legislative purpose and the legislative history, the court found that “fee” must be defined more broadly than in the earlier appellate decisions to encompass situations where a physician receives compensation for his services.