Cooney v. Magnabosco

• Decision Date: 10 February 2011
• Docket Number: No. 1–10–1228.,1–10–1228.
• Citation: 347 Ill.Dec. 1000,943 N.E.2d 290,407 Ill.App.3d 264
• Parties: Deborah Orlando COONEY, Individually and on Behalf of All Others Similarly Situated, Plaintiff–Appellant,v.Lesley MAGNABOSCO, Individually and on Behalf of All Others Similarly Situated, the Department of Children and Family Services, and the Department of Financial and Professional Regulation, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 264

943 N.E.2d 290

347 Ill.Dec. 1000

Deborah Orlando COONEY, Individually and on Behalf of All Others Similarly Situated, Plaintiff–Appellant,

v.Lesley MAGNABOSCO, Individually and on Behalf of All Others Similarly Situated, the Department of Children and Family Services, and the Department of Financial and Professional Regulation, Defendants–Appellees.

No. 1–10–1228.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 10, 2011.

Thomas A. Zimmerman, Jr., Adam M. Tamburelli, Chicago, for Appellant.Attorney General Lisa Madigan, Solicitor General Michael A. Scodro, Assistant Attorney General Eric Truett (Timothy McGonegle, of counsel), for Appellee.

[347 Ill.Dec. 1002 , 407 Ill.App.3d 265] OPINION

Judge EPSTEIN delivered the judgment of the court, with opinion.

Plaintiff-appellant, Deborah Orlando Cooney, appeals the involuntary dismissal of her complaint with prejudice pursuant to sections 2–615 and 2–619 of the Illinois Code of Civil Procedure (735 ILCS 5/2–615, 2–619 (West 2008)). She maintains, inter alia, that the trial court erroneously construed the Illinois Certified Shorthand Reporters Act of 1984 (225 ILCS 415/1 et seq. (West 2008)) (the Act), on which all her claims are based, and that the trial court abused its discretion in denying her leave to amend her complaint. For the reasons below, we affirm.

BACKGROUND

In 2005 plaintiff appealed an indicated finding of abuse against her by the Illinois Department of Children and Family Services (DCFS). Lesley Magnabosco, who is not certified under the Act, allegedly “reported” those proceedings. In July 2009 plaintiff filed the instant lawsuit against Magnabosco, DCFS, and the Illinois Departments of Financial and Professional Regulation (IDFPR), maintaining, individually and on behalf of all others similarly situated, that DCFS violated and continues to violate the Act by using uncertified individuals like Magnabosco to report its administrative proceedings. Section 3 of the Act prohibits anyone from “practic[ing] shorthand reporting on a temporary or

[347 Ill.Dec. 1003 , 943 N.E.2d 293]

permanent basis in this State without being certified under this Act. Th[e] Act does not prohibit any nonresident practicing shorthand reporter from practicing shorthand reporting in this State on a purely temporary basis with reference to one single proceeding.” 225 ILCS 415/3 (West 2008).

“ ‘The practice of shorthand reporting’ means reporting, by the use of any system of manual or mechanical shorthand writing, of * * * proceedings of an administrative agency when the final decision of the agency with reference thereto is likely to be subject to judicial review under the provisions of the Administrative Review Law.” 225 ILCS 415/4(4) (West 2008).

Plaintiff claimed breach of the Act (count I) and aiding and betting violations of the Act (count II), and she sought a declaration that defendants' conduct violates the Act (count III). Defendants each moved to dismiss the complaint. IDFPR maintained, pursuant to section 2–619(a)(1), that plaintiff's claims are barred by the doctrine of sovereign immunity and that the Act does not authorize claims against IDFPR. DCFS contended, pursuant to section 2–619(a)(1), that the instant lawsuit was one of several retaliatory lawsuits by plaintiff against it, that there is no private right of action under the Act, and that plaintiff's claims are barred by the doctrine of sovereign immunity. Magnabosco argued that no private right of action exists under the Act. She also claimed, pursuant to section 2–615, that plaintiff's conclusory allegations did not state a claim under the Act, and that, pursuant to section 2–619, Magnabosco did not engage in shorthand reporting because she was not present at plaintiff's administrative proceedings and merely transcribed an audio tape DCFS provided to her employer. Magnabosco submitted an affidavit in support of her motion, as well a copy of the certification allegedly provided to plaintiff with the transcript of her proceedings that states:

“I, Lesley Magnabosco, have transcribed the proceedings of said hearing by listening to an audio cassette tape, and that the foregoing is a true and correct transcript of my type written notes so taken aforesaid off said audio cassette tape and contains the proceedings given at said hearing off of said audio cassette tape as could be heard to the best of my ability.”

Plaintiff responded by seeking discovery pursuant to Supreme Court Rule 191(b) (Ill.S.Ct. R. 191(b) (eff. July 1, 2002)) claiming Magnabosco's affidavit and certification were conclusory and that discovery was needed to determine

“exactly how Magnabosco transcribes the tapes and whether the machine she uses could be deemed a ‘system of mechanical shorthand writings' under the Act. As Magnabosco's own affidavit indicates, her transcription process took place outside of Plaintiff's presence. (See, Magnabosco affidavit ¶ 14). Plaintiff needs to conduct discovery to learn exactly how Magnabosco generates DCFS reports of proceedings.”

The trial court stayed Magnabosco's section 2–619 motion and denied plaintiff's motion for discovery as moot. It nevertheless considered Magnabosco's certification in ruling on defendants' motions, stating:

“I know that I said I wasn't going to require you to brief the 2–619, but I can take judicial notice of this certification that Ms. Magnabosco attached to her Motion to Dismiss, and it says ‘I, Lesley Magnabosco, have transcribed the proceeding of said hearing by listening to an audio cassette tape.’ That's not using

[347 Ill.Dec. 1004 , 943 N.E.2d 294]

a system of manual or mechanical shorthand.”

The trial court then dismissed plaintiff's claims against Magnabosco with prejudice, stating:

“[T]he Complaint alleges summarily that [Magnabosco] performed the function of a shorthand reporter, but her certification of the proceedings indicates that she had listened to an audio tape. Certified shorthand reporting is licensed under the State of Illinois. Listening to an audio tape is not.

I do not find that listening to an audio tape falls within the ambit of a statute which governs the manual or mechanical use of a system of shorthand reporting. I believe that allegation is unavailing as a matter of law. And so for those reasons the motions to dismiss are granted without leave to re-plead.

* * *

To the extent that I have taken judicial notice of Ms. Magnabosco's certification, to that extent the 2–619 motion is granted as well.

* * *

[P]laintiffs do not contest that she listed to an audio tape, that she was not present at the proceedings, that she did not appear at the proceedings as a shorthand reporter, I believe the plaintiffs in good faith do not contest that. Her certification stays ‘I listened to an audio tape and this is what I heard on the tape.’

I find that those matters, as to which there really is no controversy, do not bring her within the scope of the statute that the plaintiffs rely on, and for those reasons the motion is granted.”

The trial court also granted the departments' section 2–619 motions to dismiss, concluding that plaintiff's claims are barred by the doctrine of sovereign immunity. Plaintiff's motion to reconsider or file an amended complaint was denied. She now appeals, claiming that the trial court erroneously construed the Act and erroneously considered Magnabosco's certification, that her claims do not fall within the sovereign immunity doctrine, and that the trial court should have allowed her proffered amended complaint.

ANALYSIS

A. Plaintiff Has Not Pled a Section 23.1(b) Claim

While defendants moved to dismiss plaintiff's claims pursuant to both sections 2–615 and 2–619, we need not reach the section 2–619 grounds for dismissal, for it is clear plaintiff has not stated a claim under section 2–615.

“A section 2–615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face. [Citation.] A cause of action should not be dismissed pursuant to a section 2–615 motion unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief. [Citation.] In ruling on such a motion, only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered. [Citation.] We accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. [Citation.] However, a plaintiff may not rely on mere conclusions of law or fact unsupported by specific factual allegations. [Citation.] We review de novo an order granting a section 2–615 motion to dismiss.” Pooh–Bah Enterprises, Inc. v. County of Cook, 232 Ill.2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009).

[943 N.E.2d 295 , 347 Ill.Dec. 1005]

Here, IDFPR and DCFS maintain that plaintiff's complaint was properly dismissed with prejudice because, inter alia, the Act does not provide an implied or express private right of action against them, and plaintiff has not stated a section 23.1(b) (225 ILCS 415/23.1(b) (West 2008)) claim against Magnabosco. Plaintiff responds that this argument has been waived because it was not raised before the trial court and that she “never asserted that she had an implied private right of action as a basis for her claims, but instead clearly brought her claims under the express provisions set forth in section 23.1(b) of the Act.”

“While an appellant who fails to raise an issue in the trial court waives that issue, an appellee may raise an issue on review that was not presented to the trial court in order to sustain the judgment, as long as the factual basis for the issue was before the trial court.” DOD Technologies v. Mesirow Insurance Services, Inc., 381 Ill.App.3d 1042, 1050, 320 Ill.Dec. 221, 887 N.E.2d 1 (2008). In any event, “the rule of waiver is a limitation on the parties and not the courts.” Farmer v. Country Mutual...