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SIXTH DIVISION

October 9, 1998

No. 1-97-2076

JUSTICE QUINN delivered the opinion of the court:

Plaintiff, special administrator of the estate of hismother, Frances Reyes (Reyes), filed suit in the circuit court ofCook County, seeking recovery in tort for medical malpractice foralleged negligent medical treatment by the Board of Trustees ofthe University of Illinois Hospital (the Board of Trustees), thegoverning body of the hospital. The trial court dismissedplaintiff's action, finding that it lacked jurisdiction toresolve the dispute because the Board of Trustees, as an arm ofthe state, could only be sued in the Court of Claims. Within 21days of the dismissal of the action, plaintiff filed a complaintin the Court of Claims, which was dismissed because it was nottimely filed within the statute of limitations period of twoyears. Thereafter, plaintiff filed a motion for rehearing andreconsideration with the Court of Claims. The Court of Claimsheld a hearing and denied the motion for reconsideration.

Plaintiff also filed a petition for a writ of certiorari inthe circuit court of Cook County, asserting that he was deprivedof his constitutional right to due process by the Court ofClaims. The trial court granted plaintiff's petition for a writof certiorari, reversed the dismissal by the Court of Claims, andremanded the cause to the Court of Claims for furtherproceedings.

The Court of Claims appeals from the circuit court's orderand remandment of the case. For the following reasons, wereverse the circuit court's order.

A brief substantive and procedural history of the casefollows.

Frances Reyes died on August 24, 1986. October 7, 1985, wasthe last date of treatment of Frances Reyes. The two-yearstatute of limitations period began running on this date.

On October 1, 1987, plaintiff filed suit in the circuitcourt of Cook County against the Board of Trustees, the treatingphysicians and the hospital. The Board of Trustees responded byfiling a motion to dismiss for lack of subject matterjurisdiction because plaintiff's claim had to be filed in theCourt of Claims.

On April 4, 1988, the trial court granted the Board ofTrustees' motion to dismiss but stated in its order thatplaintiff was granted leave to refile his case against the Boardof Trustees in the Court of Claims.

On April 20, 1988, plaintiff filed notice of his claimagainst the Board of Trustees with the clerk of the Court ofClaims. On April 25, 1988, plaintiff filed his claim against theBoard of Trustees in the Court of Claims.

Subsequently, the cause was continued by agreement until theconclusion of the circuit court action at law against the otherdefendants in 1993. The Court of Claims action was returned tothe "active calendar" call in 1994.

On March 21, 1995, the Board of Trustees filed a motion todismiss plaintiff's complaint, arguing in part that the complaintwas not timely filed within the statute of limitations period. The Board of Trustees argued that plaintiff's complaint was basedon medical malpractice for treatment rendered in August 1985 andthat such actions must be filed within two years of the date thatthe claim accrued. The Board of Trustees also asserted that thereport of Dr. Oscar Sugar, plaintiff's expert, indicated thatReyes' last contact with the University of Illinois Hospital wason October 7, 1985, and that plaintiff's complaint was not filedin the Court of Claims until April 25, 1988. Dr. Sugar's reportwas attached to the Board of Trustees' motion to dismiss.

On June 1, 1995, plaintiff filed objections to the Board ofTrustees' motion, arguing that section 13-217 of the Code ofCivil Procedure (735 ILCS 5/13-217 (West 1994)) extended thelimitations period under the circumstances of this case. Plaintiff argued that the claim arose out of treatment renderedby the Board of Trustees through October 7, 1985, that plaintifforiginally had filed a complaint in the circuit court of CookCounty within the two-year limitations period, and that thecircuit court had dismissed that action for lack of subjectmatter jurisdiction and granted plaintiff leave to refile thecase in the Court of Claims.

On August 22, 1995, the Court of Claims entered an orderdismissing plaintiff's claim as untimely. The court found thatthe "savings statute" in section 13-217 of the Code of CivilProcedure (735 ILCS 5/13-217 (West 1994)) did not apply to extendthe limitations period in plaintiff's case because dismissal bythe circuit court for lack of jurisdiction was not one of thegrounds specified in the section for extending the limitationsperiod.

On September 21, 1995, plaintiff filed a motion forrehearing and reconsideration. On that same date, plaintifffiled a petition for a writ of certiorari in the circuit court ofCook County against the Illinois Court of Claims and the Board ofTrustees of the University of Illinois Hospital, seeking judicialreview of the Court of Claims' dismissal of the action. Plaintiff alleged a violation of his right to due process. OnOctober 16, 1995, the Board of Trustees filed a response toplaintiff's motion in the Court of Claims, and on December 6,1995, plaintiff filed a reply to the response. On December 12,1995, the parties presented oral argument on plaintiff's motion,and on January 30, 1996, the Court of Claims denied the motionfor rehearing and reconsideration.

On March 20, 1996, plaintiff filed an amended petition for awrit of certiorari in the circuit court. In the petition,plaintiff argued that the filing of an action in the circuitcourt satisfied the notice and filing requirements of the Courtof Claims Act and that section 13-217 of the Code of CivilProcedure allowed the refiling of plaintiff's claim in the Courtof Claims.

On September 25, 1996, the Court of Claims filed a motion todismiss plaintiff's complaint pursuant to section 2-619(a)(9) ofthe Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)),arguing that the circuit court did not have jurisdiction toreview decisions of the Court of Claims. On October 15, 1996,plaintiff filed a response, arguing that the circuit court hadjurisdiction to review the Court of Claims' decision because theCourt of Claims ignored the doctrine of stare decisis in notfollowing supreme court precedent and that this conductconstituted the "rare set of circumstances" required to invokethis court's jurisdiction by means of a petition for writ of certiorari. On November 1, 1996, the circuit court denied theCourt of Claims' motion, finding that it had subject matterjurisdiction to hear the matter.

On May 5, 1997, the trial court granted plaintiff's petitionfor a writ of certiorari and reversed the dismissal by the Courtof Claims. The circuit court found that plaintiff's complaint inthe Court of Claims had been timely filed under section 22(h) ofthe Court of Claims Act (705 ILCS 505/22(h) (West 1994)) andremanded the case for further proceedings in the Court of Claims.

The Court of Claims appeals from the circuit court's orderand remandment of the case. For the following reasons, wereverse the circuit court's order.

An issue as to whether a court lacked subject-matterjurisdiction may be brought at any time. Klopfer v. Court ofClaims, 286 Ill. App. 3d 499, 505 (1997). A lack of subject-matter jurisdiction is such a fundamental defect that a tribunalhas an affirmative obligation to examine its jurisdiction. Klopfer, 286 Ill. App. 3d at 505. A dispute as to whether acourt had proper subject-matter jurisdiction is reviewed de novo. City of Marseilles v. Radke, 287 Ill. App. 3d 757, 761 (1997).

The Court of Claims Act confers exclusive jurisdiction onthe Court of Claims to hear and determine, among others, thefollowing types of cases:

"(d) All claims against the State for damages incases sounding in tort, if a like cause of action wouldlie against a private person or corporation in a civilsuit, and all like claims sounding in tort against theMedical Center Commission, the Board of Trustees of theUniversity of Illinois ***." 705 ILCS 505/8 (West1994).

Thus, the Court of Claims had exclusive jurisdiction ofplaintiff's tort claim against the Board of Trustees in thepresent case.

Because the Court of Claims is a purely statutory creation,possessing no inherent or common law power, the Court of Claimscan only assume jurisdiction in the manner prescribed by theCourt of Claims Act, which empowers it. Klopfer v. Court ofClaims, 286 Ill. App. 3d 499, 505 (1997). The Court of Claims isnot a "court" within the meaning of article VI of the IllinoisConstitution of 1970. Rosetti Contracting Co. v. Court ofClaims, 109 Ill. 2d 72 (1985).

Section 22(h) of the Court of Claims Act fixes a two-yeartime limitation for various claims, including tort claims. 705ILCS 505/22(h) (West 1994). Here, the two-year statute oflimitations period began running on October 7, 1985, which wasthe last date of treatment of Frances Reyes. Plaintiff did notfile his claim in the Court of Claims until April 25, 1988, wellafter the limitations period expired on October 7, 1987.

Klopfer, 286 Ill. App. 3d 499, is directly on point. Klopfer held that there is no deprivation of due process rightsin dismissing a case untimely filed in the Court of Claims,because the timely filing of a case is a jurisdictionalprerequisite. In Klopfer, the plaintiff, Dr. Ulrich Klopfer,filed a complaint against the Illinois Department of Public Aidin the Court of Claims seeking payment for 931 abortions that heperformed on public aid recipients between June 1978 and February1979, and an evidentiary hearing was held before a commissionerof the Court of Claims. Klopfer, 286 Ill. App. 3d at 501. TheCourt of Claims denied the plaintiff's claim, one of the reasonsbeing that his claim was not timely filed within the one-yearlimitations period. The plaintiff then filed a petition for awrit of certiorari in the circuit court seeking review of theCourt of Claims' decision, and the circuit court granted thedefendant's motion to dismiss for lack of jurisdiction. Thiscourt affirmed the circuit court's dismissal of the claim becausethe limitations period within the statute was a "jurisdictionalprerequisite" to the plaintiff's right to bring his action in theCourt of Claims. Klopfer, 286 Ill. App. 3d at 505.

In so holding, this court delineated the distinction betweengeneral statutes of limitation and statutes that both createrights and fix the time within which an action to enforce thoserights can be brought, quoting the Illinois Supreme Court'sdecision in Fredman Brothers Furniture Co. v. Department ofRevenue, 109 Ill. 2d 202 (1985):

"Statutes of limitation only fix the time within whichthe remedy for a particular wrong may be sought. [Citation.] They `are procedural in nature [citations]and are not designed to alter substantive rights ***.' [Citation.]

On the other hand, `statutes which create asubstantive right unknown to the common law and inwhich time is made an inherent element of the right socreated, are not statutes of limitation.' [Citation.] Such a time period `is more than an ordinary statute oflimitations' [citation]; it `is a condition of the ***liability itself and not of the remedy, alone. *** Itgoes to the existence of the right itself.' [Citation.] Such a provision is a condition precedentto the plaintiff's right to seek a remedy. [Citations.] Such statutes set forth the requirementsfor bringing the right to seek a remedy into existence. They do not speak of commencing an action after theright to do so has accrued. They are jurisdictional,not mandatory." Fredman, 109 Ill. 2d at 209-10.

Therefore, compliance with the two-year time limitation inthe Court of Claims Act is a jurisdictional prerequisite toplaintiff's right to bring his action in the Court of Claims. See Klopfer, 286 Ill. App. 3d at 505. Thus, plaintiff's claimwas untimely and failed to vest the Court of Claims withjurisdiction to hear this action.

Klopfer also held that, where a special statute oflimitations is applicable to a statutory cause of action, theplaintiff bears the burden to plead and prove that the action wasbrought within the time period prescribed. Klopfer, 286 Ill.App. 3d at 506. Here, plaintiff failed to meet that burden.

Plaintiff argues, nevertheless, that his filing of the casein the circuit court was sufficient to satisfy the requirementsof notice and filing, and that the dismissal of his case based onlack of jurisdiction denied him due process. Plaintiff citesWilliams v. Medical Center Comm'n, 60 Ill. 2d 389 (1975), assupport for this position. In Williams, the Illinois SupremeCourt specifically stated the following:

"Our decision in Roth v. Northern Assurance Co. (1964),32 Ill. 2d 40, is authority for the proposition thatthe filing of the present action, although it was filedin the circuit court rather than in the court ofclaims, satisfies any statutory requirement of noticeand filing." Williams, 60 Ill. 2d at 396.

In Roth, the plaintiff originally filed his case in federaldistrict court and it was dismissed for failure to satisfy thejurisdictional requirement as to the amount in controversy. Roth, 32 Ill. 2d at 42. The Illinois Supreme Court held thatsection 24 of the Limitations Act was applicable, providing for aone-year extension of the statute of limitations for theplaintiff to file his case in the circuit court. Roth, 32 Ill.2d at 50. At the time Roth filed his action in the circuitcourt, section 24 of the Limitations Act provided:

"In any of the actions specified in any of thesections of this act, if judgment shall be given forthe plaintiff, and the same be reversed by writ oferror, or upon appeal; or if a verdict pass for theplaintiff, and, upon matter alleged in arrest ofjudgment, the judgment be given against the plaintiff;or, if the plaintiff be nonsuited, then, if the timelimited for bringing such action shall have expiredduring the pendency of such suit, the said plaintiff,his or her heirs, executors, or administrators, as thecase shall require, may commence a new action withinone year after such judgment reversed or given againstthe plaintiff, and not after." Ill. Rev. Stat. 1955,ch. 83, par. 24a.

Section 24 of the Limitations Act was substantively amendedseveral times after the Roth and Williams decisions. In 1980 itwas made applicable to actions dismissed by the United StatesDistrict Court for want of jurisdiction. Pub. Act. 81-279