Riggs v. Woman to Woman, Obstetrics & Gynecology, P.C.

Case Date: 07/08/2004
Court: 2nd District Appellate
Docket No: 2-03-1434 Rel

No. 2--03--1434



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
 


MARY T. RIGGS,

           Plaintiff and Counter-
           defendant-Appellee,

v.

WOMAN TO WOMAN, OBSTETRICS
AND GYNECOLOGY, P.C.,

           Defendant and Counter-
           plaintiff-Appellant.

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Appeal from the Circuit
Court of McHenry County.



No. 02--MR--266



Honorable
Maureen P. McIntyre,
Judge, Presiding.


JUSTICE BYRNE delivered the opinion of the court:

This matter comes before the court as an interlocutory appeal brought pursuant to SupremeCourt Rule 308 (155 Ill. 2d R. 308). Plaintiff, Dr. Mary T. Riggs, filed the underlying action seeking,inter alia, a declaration that she was not required to abide by a contractual obligation, including acovenant not to compete, contained in her physician agreement with defendant, Woman to WomanObstetrics and Gynecology, P.C. Plaintiff claimed that defendant's failure to register as a professionalcorporation with the Illinois Department of Professional Regulation (IDPR) pursuant to section 12of the Professional Service Corporation Act (the Act) (805 ILCS 10/12 (West 2002)) rendered theagreement void ab initio. Defendant counterclaimed, seeking enforcement of plaintiff's covenant. The trial court granted plaintiff's motion for summary judgment on count I of her complaint anddismissed defendant's counterclaim. The court found: (1) as a matter of law, the Act was intendedto be regulatory for the protection of the public health and safety in the practice of medicine; (2)defendant explicitly represented, untruthfully, that it was licensed as a professional corporation underthe Act; and (3) as a result, defendant was not authorized to engage in the practice of medicine underthe Act. Accordingly, the court held that the agreement between the parties was void ab initio. Finding that there was substantial ground for difference of opinion regarding its legal conclusion andthat an immediate appeal could materially advance the ultimate termination of the litigation, the trialcourt granted plaintiff's motion for certification pursuant to Supreme Court Rule 308 (155 Ill. 2d R.308). The trial court certified the following questions for our review:

"(1) Whether the Act's licensing requirements for medical corporations is intended toprotect the public's health, safety, or welfare[.]

(2) Whether defendant's failure to comply with the Act's certificate of registrationrequirement rendered the employment agreement void ab initio[.]"

We answer both in the negative.

BACKGROUND

Plaintiff filed the instant lawsuit after she discovered that defendant allegedly had engaged ina fraudulent accounting scheme designed to reduce plaintiff's compensation by expensing monies,which defendant received from Centegra Health Systems, directly to her. Plaintiff also learned thatdefendant was not a licensed professional corporation, even though it had given plaintiff priorassurances that it was properly registered. According to plaintiff, to induce her to join its medicalpractice, defendant expressly represented in writing that the "Corporation [was] registered to practicemedicine in the State of Illinois." Based on this and other oral and written representations made bydefendant to plaintiff, plaintiff entered into an employment agreement with defendant on September22, 2000. She commenced working for defendant's practice on October 23, 2000.

Plaintiff resigned from defendant's employ on December 20, 2002. On that same date, shefiled this suit against defendant, based on various breaches and misrepresentations allegedly made bydefendant. Relevant to this appeal is count I of plaintiff's complaint, in which she sought adeclaratory judgment that the employment agreement was void ab initio because defendant failed toregister for a certificate with the IDPR, pursuant to the Act, to practice as a professional corporation. Defendant counterclaimed to enforce the agreement.

The facts pertaining to defendant's lack of a certificate of registration from the IDPR areundisputed. Defendant was originally formed as a professional corporation in July 1999. At thattime, defendant's legal counsel requested that the IDPR issue a certificate of registration for thecorporation. Although defendant did not realize it at the time, the IDPR followed up on defendant'sapplication by requesting that some minor, technical changes be made in the application. However,defendant never received the letter from the IDPR with respect to those defects because IDPR sentthe letter to the wrong address. Around November 2002, the IDPR again sent a letter to defendantto the wrong address. This time, however, the letter was forwarded to defendant's office. In thatnotice, dated November 12, 2002, the IDPR explained that defendant's application for a certificateof registration had expired and, therefore, was denied. Defendant later determined that its originalapplication for registration was defective because the IDPR required that a suite number be addedto the address and that the statement of purpose for the corporation be modified to remove the phrase"rendering the profession of obstetrics and gynecology."

As soon as defendant discovered the circumstances relating to its original application, itpromptly proceeded to file a new application and pay the necessary $50 fee for registering with theIDPR. Ultimately, a certificate of registration was issued to defendant by the IDPR, effective January14, 2003, after the suit was filed. The IDPR has not fined defendant, conducted any investigation,or otherwise taken any action, except to issue the new certificate of registration to defendant as aresult of the inadvertent expiration of defendant's initial application. At all times, every physician-employee of defendant has been duly licensed by the IDPR to practice medicine in the State ofIllinois.

On May 16, 2003, plaintiff filed three motions to dismiss defendant's counterclaim. She alsofiled a motion for summary judgment with respect to her claim for declaratory relief in count I of hercomplaint. Among the contentions asserted by plaintiff in support of her motions was that defendant'sfailure to possess a certificate of registration from the IDPR, contrary to the requirements of the Act,precluded defendant, as a matter of law, from enforcing the covenant against her.

On September 26, 2003, the trial court entered an order granting plaintiff's motion forsummary judgment as to count I of her complaint and dismissing defendant's counterclaim seekingto enforce the agreement. The trial court held that the Act was intended to be regulatory for theprotection of the health, safety, and welfare of the public. The court further found that defendant hadexplicitly represented to plaintiff that it was properly registered by the State to practice as aprofessional corporation, when this representation was not true. As a consequence of defendant'sfailure to adhere to the Act, the trial court declared the agreement void ab initio. However, findingthat there were substantial grounds for differences of opinion and that immediate appeal wouldmaterially advance the litigation, the court certified the questions for interlocutory appeal.

ANALYSIS

This court's examination in an interlocutory appeal is strictly limited to the questions certifiedby the trial court and, as with all questions of law, is a de novo review. In re Consolidated Objectionsto Tax Levies of School District No. 205, 306 Ill. App. 3d 1104, 1107 (1999), citing Lanxon v.Magnus, 296 Ill. App. 3d 377, 379 (1998).

The first question we are called upon to answer is whether the Act's licensing requirementsfor medical corporations is intended to protect the public's health, safety, or welfare. We must beginour analysis by looking at the language of the relevant sections of the Act. The language of a statuteis often the most reliable evidence of the legislature's intent. Pullen v. Mulligan, 138 Ill. 2d 21, 46(1990). Here, the legislature specifically has included in the Act a section regarding its intent. Itstates:

"It is the legislative intent to provide for the incorporation of an individual or groupof individuals to render the same professional service or related professional services to thepublic for which such individuals are required by law to be licensed or to obtain other legalauthorization, while preserving the established professional aspects of the personalrelationship between the professional person and those he serves professionally." 805 ILCS10/2 (West 2002).

The trial court found that the Act was intended for the protection of the public. We findnothing in this section or in any other section of the Act that leads to this conclusion. It is clear,based on a reading of the entire Act, that the function of the Act is primarily permissive, allowingprofessionals, who would otherwise not be entitled to enjoy the benefits of incorporating, to establishcorporate entities for their professional practices.

We find nothing in the Act that signifies that it was enacted for the protection of the public. Section 12 requires a corporation to pay an annual fee to renew its registration, but there are no civilor criminal penalties for noncompliance. 805 ILCS 10/12 (West 2002). "Such criminal or civilpenalties would indicate that the licensing requirements were enacted because they have a significantimpact on public health or safety." Joseph P. Storto, P.C. v. Becker, 341 Ill. App. 3d 337, 344(2003). The Act assigns only minor, administrative functions to the IDPR, whose tasks are moreministerial than regulatory. See, e.g., 805 ILCS 10/8 (West 2002). The only enforcement authorityprovided to the IDPR under the Act is the ability to suspend or revoke a certificate of registration(805 ILCS 10/13 (West 2002)), or to collect an additional $100 fee when a registrant's certificatelapses and it continues to practice without a certificate (805 ILCS 10/12.1 (West 2002)).

It is generally recognized that professional service corporation legislation, similar to the Act,arose "out of the desire of professional groups to realize the tax benefits open to employees underthe qualified pension, profit-sharing, and annuity plan provisions of the Internal Revenue Code." J.Rydstrom, Practice by Attorneys & Physicians as Corporate Entities or Associations UnderProfessional Service Corporation Statutes, 4 A.L.R. 3d 383, 385 (1965); see also 18 Am. Jur. 2d,Corporations