Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Slepicka v. Ill. Dept. of Public Health, Nationwide Financial v. Pobuda and Bruns v. City of Centralia and the criminal case People v. Perez.

CIVIL

Slepicka v. Illinois Department of Public Health

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

What is the remedy if administrative review is sought in the wrong circuit court? Here, the Court held that the remedy was for the action to be transferred to the correct district of the Appellate Court to review the merits.

The Illinois Department of Public Health issued an order from Springfield determining that Mary Slepicka was subject to involuntary discharge from her nursing home, which was located in Cook County.  Slepicka sought administrative review of that decision in the Sangamon County circuit court. The nursing home moved to dismiss or transfer for improper venue. The circuit court denied the motion and confirmed the Department’s decision.

The nursing home sought dismissal of Slepicka’s appeal. The Appellate Court, Fourth District, found that the circuit court had jurisdiction but that venue was improper. It vacated the circuit court judgment and remanded with directions that the action be transferred to Cook County circuit court to review the Department’s decision.

On further review, the Supreme Court first considered venue. The Nursing Home Care Act does not prescribe a specific venue for review actions so the Court applied the three-part test in section 3-104 of the Administrative Review Law ( the county where (1) the hearing was held, or (2) the subject matter is situated, or (3) the transaction occurred). It agreed that venue was improper and should have been in Cook County.

The Court also agreed that the venue was not jurisdictional, even though circuit courts exercise “special statutory jurisdiction” in reviewing an administrative decision. Section 2-104(a) of the Code of Civil Procedure provides that no judgment is void because rendered in the wrong venue, and, article II of the Code applies to actions for administrative review.

The Supreme Court, while agreeing with much of the appellate court’s reasoning, disagreed with the relief. It held that it would be a waste of resources to require the Cook County circuit court to review the Department’s decision. Instead, the Supreme Court remanded with directions that the cause be transferred to the Appellate Court, First District, with directions for that court to review the Department’s decision on the merits.

Nationwide Financial, L.P. v. Pobuda

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

As is frequently so in cases involving interests in real property, in Nationwide Financial, LP v. Pobuda, 2014 IL 116717, the court examined precedents stretching back to the beginning of the 20th century to alter the course of current cases.  Pobuda involves the use by successive owners of residential property of a corner of adjacent property to access the formers’ driveway.  The need to do that was occasioned by the placement of utility equipment and trees.

The circuit and appellate courts felt  constrained by three First District opinions issued between 1990 and 2011, described as requiring that a person seeking a prescriptive easement establish the requirement of “exclusive use” by showing that the use of the easement “altogether deprived of possession” the owner of the servient property.  The supreme court disagreed, and found that the three cases in question had been wrongly decided. Counsel for Pobuda argued that the appellate court’s interpretation of “exclusivity” “obscures the well-established conceptual distinction between adverse possession and easements by prescription.”  The Supreme Court agreed. The court noted that it has consistently held that an easement claimant’s use may be exclusive even though the owner of the servient fee also makes use of the way in question.  The court held that exclusivity cases from adverse possession cannot be imported into the law of easements because of the differing underlying theories.  An adverse possession  claimant must possess the land as owner, whereas the creation of an easement does not deprive the servient owner of any portion of his fee. Exclusivity in the context of a prescriptive easement means no more than that the claimant’s right of use does not depend upon a like right in others.

The court overruled the appellate opinions to the contrary, while noting with approval the very recent Fourth District opinion in Brandhorst v. Johnson, 2014 IL App (4th) 130923. The court also wrote about the “adversity” requirement in prescriptive easement cases.

Bruns v. City of Centralia

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Defining the boundaries of the distraction exception to the open and obvious danger rule in premises liability cases, the Illinois Supreme Court has ruled that a plaintiff who tripped over an admittedly obvious defect in a city sidewalk could not establish the city’s duty in a negligence action. The elderly plaintiff acknowledged that she was well acquainted with a prominent, uneven sidewalk crack outside the office of an eye clinic that she had visited for several previous appointments. The city knew about the problem based on a prior complaint by the clinic, which reported an earlier instance of a pedestrian tripping and falling on the sidewalk.  Looking toward the door and the steps of the clinic, the plaintiff stumbled over the defect that she “definitely” had noticed on the day of the accident.

The supreme court rejected the plaintiff’s characterization of the circumstances as presenting a “classic example” of the distraction exception to the open and obvious danger rule. The court observed that the question was not whether the plaintiff was looking elsewhere;  the question was why she looked away from the obvious danger at her feet. Unlike the cases in which the exception was applied, the plaintiff here did not look elsewhere to avoid another hazard created by the defendant, nor was she engaged in a task foreseeable to the defendant, such as a person carrying a large item she had just purchased who ran into a post at a store entrance. The plaintiff identified no such circumstance and thus could not establish a distraction reasonably foreseeable by the city.

Having determined that the distraction exception did not apply, the court considered the four factors of the legal question of duty. The open and obvious doctrine dispensed with the elements of the reasonable foreseeability of the injury and the likelihood of the injury. As to the magnitude and consequences of the burden, the court did not limit its consideration to this particular defect. The supreme court could not justify imposing on the city the expense of maintaining hundreds of miles of city sidewalks to protect pedestrians from open and obvious defects. Accordingly, the court affirmed the trial court’s order entering summary judgment for the city.

CRIMINAL

People v. Perez

By Kerry J. Bryson, Office of the State Appellate Defender

Ivan Perez filed a pro se post-conviction petition. On the 90th day after filing, the circuit court judge signed and dated an order dismissing that petition as frivolous and patently without merit. The circuit court's order was file-stamped by the clerk on the 91st day after the petition's filing.

The Post-Conviction Hearing Act provides that the court must examine a post-conviction petition within 90 days of its filing and enter an order either docketing the petition for further review or dismissing the petition in a written order. If the court fails to act within 90 days, the petition is automatically docketed for further review. The question before the Court was whether the judge's signing of the dismissal order constitutes the entry of the order required by statute, or whether entry was not had until the 91st day when the order was file-stamped by the clerk.

In a unanimous opinion, the Court held that it is the filing by the clerk which constitutes "entry" of the order for purposes of the PC Act. In reaching this conclusion, the court relied on dictionary definitions for the word "enter," as well as Supreme Court Rule 272, entitled "When Judgment is Entered." The stated purpose of Rule 272 is "to remove any doubt as to the date a judgment is entered," and the Rule says that "judgment becomes final only when the signed judgment is filed." The PC Act specifically requires a written order to dismiss a petition. Perez makes it clear that such a written order is not entered until filed by the clerk.