Loman v. Freeman

• Citation: 375 Ill. App.3d 445,874 N.E.2d 542
• Decision Date: 15 December 2006
• Docket Number: No. 4-06-0330.,4-06-0330.
• Parties: Brian LOMAN and Jack Dodd, Plaintiffs-Appellants, v. David E. FREEMAN, MVB, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

874 N.E.2d 542

375 Ill. App.3d 445

Brian LOMAN and Jack Dodd, Plaintiffs-Appellants, v. David E. FREEMAN, MVB, Defendant-Appellee.

No. 4-06-0330.

Appellate Court of Illinois, Fourth District.

December 15, 2006.

Justice APPLETON delivered the opinion of the court:

Plaintiffs, Brian Loman and Jack Dodd, sued defendant, David E. Freeman, a veterinarian, for performing an unauthorized surgery on their horse. The amended complaint has two counts, the first count entitled "Negligence" and the second entitled "Conversion." The trial court concluded that the Moorman doctrine barred the first count (Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982)) and that the second count failed to state the elements of conversion. We find that both counts state a cause of action in tort. Therefore we reverse the dismissal of the amended complaint and remand this case for further proceedings.

I. BACKGROUND

Here are the allegations common to both counts of the amended complaint. Plaintiffs owned a racehorse. Defendant "held himself out as a veterinarian, qualified to practice veterinary medicine in * * * Illinois." In late May and early June 2001, plaintiffs entrusted the horse to him for care and treatment, giving him permission to perform two procedures: (1) "surgery on the left carp[a]l bone" and (2) "draining fluid from the right stifle." Plaintiffs specifically forbade him to "perform surgery on the right stifle[,] because surgery on the right stifle [was] very risky and should not be performed until the horse [was] lame." In violation of that express prohibition, defendant performed surgery on the right stifle, ruining the horse for future racing. He performed this surgery at the University of Illinois veterinary teaching hospital in Urbana.

In count I, sounding in negligence, plaintiffs alleged that defendant owed them a duty to "render care and treatment for [their] horse in compliance with the standards of a qualified veterinarian." By performing the unauthorized surgery, defendant "breached a duty imposed on him independent[ly] of any possible [s]tate * * * employment[,] in that [he] breached a duty which any veterinarian owe[d] to the owners of any animals treated by their veterinarian." Specifically, plaintiffs alleged he was negligent in three ways: (1) failing to obey plaintiffs' instructions on the scope of surgery, (2) performing unnecessary surgery, and (3) performing surgery that violated the standard of care of a veterinarian. For damages, they sought "the difference between the [fair market value] of the property immediately before the occurrence and its [fair market value] immediately after the occurrence." Because the injury to the right stifle was irreparable and permanently incapacitated the horse from racing, the horse was reduced to "salvage value." Before the surgery, the horse was worth over $50,000.

In count II, sounding in conversion, plaintiffs alleged that the unauthorized surgery "constitute[d] an unauthorized assumption of the right to possession or ownership of the horse." Demanding the return of the horse in its unaltered condition would have been futile because the harm to the right stifle was irreversible and rendered the horse incapable of racing ever again. Plaintiffs repeated their allegation that defendant breached a duty independent of state employment, a duty that any veterinarian owed to the owners of an animal brought in for treatment.

Defendant filed a hybrid motion to dismiss the amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2004)). In the part of the motion corresponding to section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2004)), defendant argued that the Moorman doctrine barred the tort action in count I because the surgery was not "a sudden and dangerous occurrence" and plaintiffs sought merely economic damages. See Moorman, 91 Ill.2d at 86, 61 Ill.Dec. 746, 435 N.E.2d at 450. In the part of the motion corresponding to section 2-615 (735 ILCS 5/2-615 (West 2004)), he argued that plaintiffs failed to plead a cause of action for conversion because they did not allege he had "permanently deprived them of possession of the horse." The trial court granted defendant's motion, dismissing the amended complaint with prejudice and striking the case.

This appeal followed.

II. ANALYSIS

A. Standard of Review

By invoking the Moorman doctrine, defendant did not raise "other affirmative matter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2-619(a)(9) (West 2004)). Rather, he argued that plaintiffs failed to plead a cause of action in tort, given the supreme court's description of a "tort" in Moorman. See First Midwest Bank, N.A. v. Stewart Title Guaranty Co., 355 Ill.App.3d 546, 561, 291 Ill.Dec. 158, 823 N.E.2d 168, 181 (2005), aff'd, 218 Ill.2d 326, 300 Ill.Dec. 69, 843 N.E.2d 327 (2006); Rutkoski v. Hollis, 235 Ill.App.3d 744, 747, 175 Ill.Dec. 826, 600 N.E.2d 1284, 1287 (1992); Bagel v. American Honda Motor Co., 132 Ill.App.3d 82, 86-87, 87 Ill.Dec. 453, 477 N.E.2d 54, 58 (1985). In substance, defendant's motion to dismiss is not a hybrid motion pursuant to section 2-619.1 (735 ILCS 5/2-619.1 (West 2004)) but solely a motion to dismiss pursuant to section 2-615 (735 ILCS 5/2-615 (West 2004)) for failure to state a cause of action. We will treat it as such. See Landers-Scelfo v. Corporate Office Systems, Inc., 356 Ill.App.3d 1060, 1065, 293 Ill.Dec. 170, 827 N.E.2d 1051, 1057 (2005) (the substance of a motion, not its label, determines what it is).

Our standard of review is de novo. Morris v. Williams, 359 Ill.App.3d 383, 386, 296 Ill.Dec. 65, 834 N.E.2d 622, 626 (2005). Taking the well-pleaded facts in the amended complaint as true and construing them in a light most favorable to plaintiffs (see Valstad v. Cipriano, 357 Ill. App.3d 905, 913, 293 Ill.Dec. 544, 828 N.E.2d 854, 865 (2005)), we ask whether those facts state a cause of action, that is, whether they entitle plaintiffs to relief under the law (see Morris, 359 Ill.App.3d at 386, 296 Ill.Dec. 65, 834 N.E.2d at 626).

B. Our Subject-Matter Jurisdiction

Defendant has filed a motion to dismiss this appeal for lack of subject-matter jurisdiction. He cites sections 8(b) and (d) of the Court of Claims Act, which give the Court of Claims exclusive jurisdiction over "[a]ll claims against the [s]tate founded upon any contract entered into with the [s]tate of Illinois" (705 ILCS 505/8(b) (West 2004)) and over "[a]ll claims against the [s]tate for damages in cases sounding in tort * * * and all like claims sounding in tort against * * * the [b]oard of [t]rustees of the University of Illinois" (705 ILCS 505/8(d) (West 2004)).

The following facts emerge from the affidavits attached to defendant's motion. In May and June 2001, he was a professor at the College of Veterinary Medicine of the University of Illinois, and he performed research and trained students by operating on animals in the large-animal clinic. Thus, when operating on plaintiffs' horse, he was doing his job as a professor. He was not in private practice at the time. He did not even have a veterinary license because, as a professor at a state university, he was exempt from the Veterinary Medicine and Surgery Practice Act of 1994 (Veterinary Practice Act) (225 ILCS 115/1 through 28 (West 2000)). See 225 ILCS 115/4(3) (West 2000). He has no malpractice insurance and has not been a privately practicing veterinarian since 1973. Through its self-insurance program, the university will indemnify him for any liability he incurs as a result of acting within the scope of his duties as a professor.

Plaintiffs argue that defendant owed them a duty, independent of his state employment, to competently perform veterinary medicine. They liken defendant to state-employed physicians and other professionals, whom sovereign immunity does not protect insomuch as they have a duty to conform to a professional standard of care independent of their governmental position. See, e.g., Jinkins v. Lee, 209 Ill.2d 320, 334, 282 Ill.Dec. 787, 807 N.E.2d 411, 420 (2004); Janes v. Albergo, 254 Ill. App.3d 951, 964, 193 Ill.Dec. 576, 626 N.E.2d 1127, 1136 (1993); Madden v. Kuehn, 56 Ill.App.3d 997, 1000-01, 14 Ill. Dec. 852, 372 N.E.2d 1131, 1133 (1978).

In Jinkins, 209 Ill.2d at 340, 282 Ill.Dec. 787, 807 N.E.2d at 423, for example, the supreme court held that sovereign immunity did not bar a wrongful-death lawsuit against professional employees of a mental-health-care facility operated by the state. In that case, George Jinkins was drinking heavily and threatening to kill himself and others. Jinkins, 209 Ill.2d at 321, 282 Ill.Dec. 787, 807 N.E.2d at 413. His mother and a social worker signed a petition to have him involuntarily admitted. Jinkins, 209 Ill.2d at 323, 282 Ill.Dec. 787, 807 N.E.2d at 413-14. The intake psychiatrist, Choong Lee, declined to certify George for involuntary admission into the state facility. Jinkins, 209 Ill.2d at 326, 282 Ill.Dec. 787, 807 N.E.2d at 415. Instead, he and a licensed clinical professional counselor, Paulette Medlin, referred George to a community health center for outpatient treatment. Jinkins, 209 Ill.2d at 326, 282 Ill.Dec. 787, 807 N.E.2d at 415. Soon after George returned home, he shot himself. Jinkins, 209 Ill.2d at 326, 282 Ill.Dec. 787, 807 N.E.2d at 415. His surviving spouse sued Lee and Medlin for professional negligence. Jinkins, 209 Ill.2d at 327-28, 282 Ill.Dec. 787, 807 N.E.2d at 416. The trial court granted summary judgment in the defendants' favor on the ground of sovereign immunity. Jinkins, 209 Ill.2d at 328, 282 Ill. Dec. 787, 807 N.E.2d at 416. Because "the duty owed to George by Dr. Lee and by Medlin arose independent[ly] of their state employment," the appellate court held that sovereign immunity did not bar the lawsuit. Jinkins, 209 Ill.2d at 328, 282 Ill. Dec. 787, 807 N.E.2d at 416. The supreme court agreed....