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THIRD DIVISION
Date Filed: December 31, 2003

The plaintiff, Bernadette Williams, special administrator of the estate of Robert James Williams, deceased, appeals from anorder of the circuit court of Cook County dismissing hercomplaint for damages against the defendants, Jose Pazhampallyand Madden Mental Health Center (Madden).⁽¹⁾

On May 1, 2001, the plaintiff refiled her complaint fordamages, alleging the following facts.⁽²⁾

On June 16, 1996, Robert James Williams (Robert) wasarrested for disorderly conduct. While in police custody, Robertattempted to injure himself by ramming his head into the cellbars and trying to hang himself. Robert was taken to ChristHospital, where police officers signed a certificate settingforth their observations of Robert for purposes of a petition forinvoluntary admission. After being examined by a physician and apsychiatrist at Christ Hospital, a petition for involuntaryadmission was completed and signed. While at Christ Hospital,Robert's behavior required the use of physical restraints.

The physician at Christ Hospital contacted Mr. Pazhampally,a social worker, at Madden, and requested that Robert betransferred to Madden. Mr. Pazhampally, acting on behalf ofMadden, accepted the transfer. Robert was transported to Maddenby ambulance, along with copies of his records from ChristHospital and the petition and certificates for involuntaryadmission.

Mr. Pazhampally reviewed Robert's history, which includedinformation that he had managed to free himself from onerestraint. Robert also admitted to defendants Davet and Hayesthat he had recently started using crack cocaine. However,Robert was released to the plaintiff's custody without treatment. The plaintiff was unaware that Robert had attempted to hanghimself and was not warned of the risk of suicide.

After returning home, Robert hanged himself, resulting inhis death on June 21, 1996.

On July 18, 2001, Mr. Pazhampally filed a motion to dismisspursuant to section 2-1010 of the Code of Civil Procedure (735ILCS 5/2-1010 (West 2000)), supported by his affidavit. OnOctober 18, 2001, the circuit court denied Mr. Pazhampally'ssection 2-1010 motion to dismiss.

On December 12, 2001, Mr. Pazhampally and Madden filed anamended motion to dismiss pursuant to section 2-619(a)(1) of theCode of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(1) (West2000)). The motion alleged that the complaint should bedismissed as to them because the doctrine of sovereign immunitybarred suits against the State and its agents and, therefore, thecircuit court lacked subject matter jurisdiction.

On March 22, 2002, the circuit court granted the motion todismiss on the basis that it lacked subject matter jurisdiction. The circuit court also made a finding pursuant to Supreme CourtRule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reasonto delay enforcement, appeal, or both enforcement and appeal ofits order.

The plaintiff filed a timely notice of appeal.

The issues raised on appeal are whether the circuit courterred in dismissing the plaintiff's complaint as to Madden andMr. Pazhampally pursuant to the doctrine of sovereign immunityand whether the circuit court erred in denying Mr. Pazhampally'ssection 2-1010 motion to dismiss.

Motions to dismiss under section 2-619 of the Code arereviewed de novo. Owens v. McDermott, Will & Emery, 316 Ill.App. 3d 340, 344, 736 N.E.2d 145, 150 (2000).

II. Discussion

Section 2-619(a)(1) provides in pertinent part as follows:

"(a) Defendant may, within the time for pleading, filea motion for dismissal of the action *** upon any of thefollowing grounds. ***

(1) That the court does not have jurisdiction of thesubject matter of the action, provided the defect cannot beremoved by a transfer of the case to a court havingjurisdiction." 735 ILCS 5/2-619(a)(1) (West 2000).

The plaintiff contends that the circuit court erred indetermining that the doctrine of sovereign immunity required thatMadden be sued in the Court of Claims.

The Court of Claims Act (the Act) (705 ILCS 505/1 et seq.(West 2000)) established a court of claims to serve as a forumfor actions against the State. Healy v. Vaupel, 133 Ill. 2d 295,307, 549 N.E.2d 1240, 1246 (1990).

Section 8(d) of the Act provides in pertinent part asfollows:

"The court [of claims] shall have exclusivejurisdiction to hear and determine the following matters:

(d) All claims against the State for damages in casessounding in tort, if a like cause of action would lieagainst a private person or corporation in a civil suit, andall like claims sounding in tort against the Medical CenterCommission, the Board of Trustees of the University ofIllinois, the Board of Trustees of Southern IllinoisUniversity, the Board of Trustees of Chicago StateUniversity, the Board of Trustees of Eastern IllinoisUniversity, the Board of Trustees of Governors StateUniversity, the Board of Trustees of Illinois StateUniversity, the Board of Trustees of Northeastern IllinoisUniversity, the Board of Trustees of Northern IllinoisUniversity, the Board of Trustees of Western IllinoisUniversity, or the Board of Trustees of the IllinoisMathematics and Science Academy ***." 705 ILCS 505/8(d)(West 2000).

The plaintiff contends that since Madden is not listed insection 8(d), the legislature did not intend for the Court ofClaims to have exclusive jurisdiction over tort actions involvingMadden. The plaintiff then reasons that the circuit court'sdismissal order as to Madden would be proper only if Madden coulddemonstrate that the plaintiff's complaint was only nominallyagainst Madden and, in effect, was an action against the State.

Sovereign immunity in Illinois exists pursuant to statuteand mandates that the State or any department of the State cannotbe sued in its own court or any other court without its consent. Association of Mid-Continent Universities v. Board of Trustees ofNortheastern Illinois University, 308 Ill. App. 3d 950, 952, 721N.E.2d 805, 807 (1999). The legislature enacted the StateLawsuit Immunity Act (Lawsuit Immunity Act) (745 ILCS 5/1 (West1998)), which provides that the State shall not be made adefendant or party in any court except as provided in the Courtof Claims Act. Association of Mid-Continent Universities, 308Ill. App. 3d at 952, 721 N.E.2d at 807.

Generally, an agency of the State may not be a defendant ina circuit court action because State agencies are considered tobe arms of the State itself, which is immune from suit in thecircuit court. Rockford Memorial Hospital v. Department of HumanRights, 272 Ill. App. 3d 751, 756, 651 N.E.2d 649, 654 (1995). However, the rule is not absolute: "'The determination that aclaim is one against the State does not depend upon the Stateagency being named as a party. [Citation.] The determinationdepends instead on the issues involved and the relief sought.'[Citations.]" Rockford Memorial Hospital, 272 Ill. App. 3d at756-57, 651 N.E.2d at 654. In determining whether sovereignimmunity applies to a particular case, substance takes precedenceover form. Rockford, 272 Ill. App. 3d at 757, 651 N.E.2d at 654.

Sovereign immunity exists only if (1) the defendant is anarm of the State; (2) the plaintiff's action could subject theState to liability; and (3) no exceptions to the doctrine exist. C.J. v. Department of Human Services, 331 Ill. App. 3d 871, 876-77, 771 N.E.2d 539, 545 (2002).

The fact that Madden was not listed in section 8(d) does notdeprive it of the protection of sovereign immunity. Madden is afacility under the jurisdiction of the Department of HumanServices and is State operated. See 20 ILCS 1705/4 (West 2000). Therefore, Madden is an arm of the State. See also Jinkins v.Lee, 337 Ill. App. 3d 403, 405, 785 N.E.2d 914, 916 (2003),(referring to Madden as a "State of Illinois mental health carefacility"), appeal allowed, 204 Ill. 2d 660, 792 N.E.2d 307(2003).

Madden is not a nominal defendant in this case. Theplaintiff's complaint alleged that Madden, acting through itsagents, the other named defendants, committed tortious actsresulting in the death of the plaintiff's decedent. Thecomplaint sought damages from Madden, as well as from theindividual defendants, and therefore constitutes a present claimthat could subject the State to liability. Compare C.J., 331Ill. App. 3d at 877, 771 N.E.2d at 546 (complaint seekinginjunctive relief was not a "present claim").

Finally, there are no applicable exceptions to the rule inthis case. Compare Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247(sovereign immunity affords no protection when it is alleged thatthe State's agent acted in violation of statutory orconstitutional law or in excess of his authority, and in thoseinstances, an action may be brought in circuit court).

We conclude that sovereign immunity bars the plaintiff fromsuing Madden in this case. Therefore, the circuit court lackedsubject matter jurisdiction and correctly granted Madden's motionto dismiss. See Swope v. Northern Illinois Gas Co., 221 Ill.App. 3d 241, 243, 581 N.E.2d 819, 821 (1991) (where a trial courtlacked subject matter jurisdiction due to the doctrine ofsovereign immunity, it could not order a transfer to the Court ofClaims but could only dismiss the action).

The plaintiff contends that, even though he is a stateemployee, Mr. Pazhampally is not entitled to the protection ofsovereign immunity because his acts violated the same dutyimposed on all persons who perform those acts rather than byvirtue of his state employment.

We need not reach this argument because we conclude that thecircuit court erred when it denied Mr. Pazhampally's motion todismiss pursuant to section 2-1010 of the Code.

Section 2-1010 of the Code provides in pertinent part asfollows:

"(a) In any action, whether in tort, contract orotherwise, in which the plaintiff seeks damages for injuriesor death by reason of medical, hospital, or other healingart malpractice, a party may, in lieu of answering orotherwise pleading, file an affidavit certifying that he orshe was not directly or indirectly involved in theoccurrence or occurrences alleged in the action. In theevent such an affidavit is filed, the court shall order thedismissal of the claim against the certifying party, exceptas provided for in subparagraph (b).

(b) Any party may oppose the dismissal or move tovacate the order of dismissal and reinstate the certifyingparty, provided he or she can show that the certifying partywas directly or indirectly involved in the occurrence oroccurrences alleged in the action." 735 ILCS 5/2-1010 (West2000).

According to his affidavit, filed in support of his section2-1010 motion to dismiss, Mr. Pazhampally's only contact withRobert was to log in his arrival and to have him wait until thesocial worker from Proviso Family Services, an outside agency,could see him. He stated that he did not have any decision-making authority with regard to the involuntary or voluntaryadmission of Robert to Madden and that he did not treat, diagnoseor assess Robert and did not "deflect" Robert from admission toMadden.

The plaintiff filed a response to the section 2-1010 motionand attached Mr. Pazhampally's deposition, which had been takenprior to the dismissal of the case in 1998. Relying on thedeposition testimony, the plaintiff maintained that the followingactions established Mr. Pazhampally's involvement in this case:he received information about Robert from Christ Hospital; heobtained the necessary documentation, which was then turned overto the medical director who approved the transfer; he notifiedChrist Hospital to transfer Robert; and he called anotherindividual to do an assessment of Robert.

The circuit court denied Mr. Pazhampally's section 2-1010motion to dismiss. No cross-appeal was filed in this case. However, the denial of a motion to dismiss is not, of itself, afinal appealable order. Landmarks Preservation Council ofIllinois v. City of Chicago, 125 Ill. 2d 164, 174, 531 N.E.2d 9,13 (1988). The finding of the circuit court adverse to theappellee does not require that the appellee cross-appeal if thejudgment was not, at least in part, against him. LandmarksPreservation Council of Illinois, 125 Ill. 2d at 174, 531 N.E.2dat 13.

In order to resolve this issue, we must construe thelanguage of the statute and therefore, our review is de novo. Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 600,774 N.E.2d 14, 19 (2002) (issues as to statutory construction arereviewed de novo).

The gist of the plaintiff's action in this case is that Mr.Pazhampally and Madden were negligent in failing to obtain aproper history and in not admitting Robert to Madden. However, areview of Mr. Pazhampally's deposition reveals that his role inthis case was limited to receiving documents and relaying theinformation that he received. He was not responsible for and wasnot involved in any decision not to admit Robert to Madden.

In the exercise of statutory construction, the court'sprimary task is to ascertain and effect the intent of thelegislature. Beale, 332 Ill. App. 3d at 603, 774 N.E.2d at 21-22. Our inquiry must always begin with the language of thestatute, which is the surest and most reliable indicator of thelegislative intent. Beale, 332 Ill. App. 3d at 603, 774 N.E.2dat 22. The language of a statute must be given its plain andordinary meaning, and where the language is unambiguous, we haveno occasion to resort to statutory aids of construction. Beale,332 Ill. App. 3d at 603, 774 N.E.2d at 22.

Section 2-1010 refers to "direct[] or indirect[]"involvement in the "occurrence or occurrences alleged in theaction." 735 ILCS 5/2-1010(a) (West 2000). An occurrence isdefined as "[s]omething that happens or takes place." Black'sLaw Dictionary 1107 (7th ed. 1999).

The "occurrence" in this case was the decision not to admitRobert to Madden. In his deposition, Mr. Pazhampally describedhis role as follows:

"I have to take information from the referred [sic]agencies and provide those [sic] information to the medicaldoctor and the psychiatrist.

BY MS. CLINITE (the plaintiff's attorney):

Q. That was the end of your role, then?

When you had finished getting the information backfrom the doctor and contacted the other hospital, then thatwas the end of your involvement?

A. Yes."

Later in his deposition, Mr. Pazhampally testified that hehad nothing to do with the intake assessment of Robert, that henever spoke to Robert because there was no need to do so and thathe never spoke to members of Robert's family or the police. Hisconversations with the staff at Madden and at Christ Hospitalwere limited to receiving and forwarding information andcontacting a staff member to do the psychological assessment.

Based on his deposition testimony, Mr. Pazhampally was notinvolved in the decision not to admit Robert to Madden, eitherdirectly or indirectly.

We conclude that the circuit court erred when it denied Mr.Pazhampally's section 2-1010 motion. In light of our decision,we need not address whether the public officials' immunitydoctrine applied to Mr. Pazhampally.

For all of the foregoing reasons, we affirm the granting ofthe section 2-619 motion to dismiss as to Madden. We reverse thedenial of Mr. Pazhampally's section 2-1010 motion to dismiss andremand the cause to the circuit court for entry of an ordergranting Mr. Pazhampally's section 2-1010 to dismiss.

Affirmed in part and reversed in part; cause remanded withdirections.

SOUTH and KARNEZIS, JJ., concur.

1. The defendants Davet and Hayes are not parties to thisappeal.

2. The plaintiff's original complaint was dismissed for wantof prosecution.