Martinez v. Cook Cnty. Sheriff's Office

• Decision Date: 06 October 2017
• Docket Number: Appeal No. 3-16-0514
• Parties: Denise J. MARTINEZ, Plaintiff–Appellant, v. The COOK COUNTY SHERIFF'S OFFICE and Cook County, Illinois, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 160514

89 N.E.3d 995

Denise J. MARTINEZ, Plaintiff–Appellant,

v.The COOK COUNTY SHERIFF'S OFFICE and Cook County, Illinois, Defendants–Appellees.

Appeal No. 3-16-0514

Appellate Court of Illinois, Third District.

Opinion filed October 6, 2017

Anne M. Riegle, of Naperville, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Paul L. Fangman, Assistant State's Attorney, of counsel), for appellees.

JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Denise J. Martinez, brought an action under the Income Withholding for Support Act (Withholding Act) ( 750 ILCS 28/35 (West 2014) ) against defendants, the Cook County sheriff's office and Cook County, to obtain a money judgment of over $50,000 for defendants' failure to withhold approximately $1600 in maintenance from plaintiff's ex-husband's paychecks. Defendants filed a section 2–619(a)(9) ( 735 ILCS 5/2–619(a)(9) (West 2014)) motion to dismiss the complaint, alleging that plaintiff was not entitled to the money judgment requested because (1) the failure to withhold maintenance was the result of an innocent mistake on the part of one of defendants' employees and was not knowingly done and (2) the claim for a money judgment was barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/2–102 (West 2014) ). After a hearing, the trial court agreed with defendants' contentions and granted defendants' motion to dismiss. Plaintiff appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 Plaintiff was married to Salomon Martinez. Salomon was employed by Cook County and worked for the sheriff's office. Plaintiff and Salomon were divorced in May 2014. Pursuant to the judgment for dissolution of marriage that was entered, Salomon was ordered to pay child support for the parties' two minor children and maintenance of $500 per month.

¶ 4 In May 2015, an amended support order was entered, terminating the child support payments but continuing the maintenance payment of $500 per month. The maintenance payment was to be automatically deducted from Salomon's paycheck by his employer and sent directly to the Illinois State Disbursement Unit.

¶ 5 In June 2015, Salomon faxed a notice of the change in withholding to the Cook County comptroller's office. The notice consisted of several pages. The first page of the notice was a fax coversheet from Salomon, indicating that the documents he was sending to the comptroller were in regard to "[t]ermination of child support." The second page of the notice was a letter from Salomon's attorney, stating that Salomon's child support payments had been terminated by the court in May 2015 (the May 2015 court date) and directing the comptroller's office to "cease any current withholdings." The third page of the notice was a one-page court order, which had been entered on the May 2015 court date. The text of the order was hand-printed and continued the underlying case to a date in June 2015 for a status hearing on plaintiff's petition for postjudgment relief. The fourth and fifth pages of the notice were a two-page court order that had also been entered on the May 2015 court date. The text of the order was handwritten in cursive, was somewhat difficult to read, and stated, among other things, that child support for the two children was terminated. The order made no mention of Salomon's maintenance obligation. The sixth through eleventh pages of the notice were an amended income withholding order for support from the same May 2015 court date. The order indicated that the amount to be withheld from Salomon's paychecks for spousal maintenance was $500 per month ($230.77 biweekly) and that the child support for the two children had been terminated.

¶ 6 The faxed notice was received by comptroller wage garnishment clerk Laura Murray. Murray promptly acted upon the information and terminated the withholding from Salomon's paycheck for child support. In addition, however, Murray erroneously terminated the withholding from Salomon's paycheck for spousal maintenance. As a result of the error, plaintiff did not receive her spousal maintenance payments for the following seven dates in 2015: June 5, June 19, July 3, July 17, July 31, August 14, and August 28.

¶ 7 Toward the end of August 2015, plaintiff's attorney faxed a letter to the Cook County sheriff's office to notify them that plaintiff had not been receiving her spousal maintenance payments and that the attorney had filed a petition for rule to show cause in the underlying case. A copy of the amended income withholding order from the May 2015 court date was attached to the letter. The letter was apparently forwarded to the comptroller's office and was received by the comptroller's office shortly thereafter in September 2015.

¶ 8 Upon receiving the letter from the plaintiff's attorney, comptroller clerk Murray promptly corrected the error that she had made and immediately reinstated the withholding from Salomon's paycheck for monthly spousal maintenance. The withholding went into effect as of the next pay period. Salomon later paid to plaintiff the entire amount of spousal maintenance that the comptroller's office had failed to withhold from his paychecks.

¶ 9 In January 2016, plaintiff filed the instant action against defendants, alleging that defendants had knowingly failed to withhold the seven monthly maintenance payments and seeking the assessment of a statutory penalty against defendants of over $50,000 under section 35(a) of the Withholding Act (see 750 ILCS 28/35(a) (West 2014) (providing for the imposition of a $100-per-day penalty on any payor who knowingly fails to follow a withholding order)).

¶ 10 In April 2016, defendants filed a section 2–619(a)(9) motion to dismiss the complaint, alleging that dismissal was warranted because defendants had not knowingly violated the statute and because plaintiff's claim was barred by the Tort Immunity Act. Attached to the motion were various supporting documents, including (1) the faxed notice that the comptroller's office had received from Salomon and his attorney in June 2015, (2) the faxed letter that the comptroller's office had received from plaintiff's attorney in September 2015, and (3) an affidavit of comptroller clerk Laura Murray. In her affidavit, Murray attested to many of the facts set forth above. In addition to those facts and in explanation of how the error occurred, Murray stated further in her affidavit that as she reviewed the notice from Salomon and his attorney (1) she read on the cover page that the notice pertained to termination of child support; (2) she read the letter from Salomon's attorney on the second page of the notice, which stated that Salomon's obligation to pay child support was terminated by the May 2015 court order and specifically requested that Murray "cease any current withholdings"; (3) she reviewed the court orders contained in the notice; (4) on the one court order, which was handwritten (in cursive) and difficult to read, she underlined the phrase "terminated"; (5) she stopped reviewing the notice at that point because she had come across the court order that Salomon and his attorney had both mentioned in the first two pages of the notice; and (6) she then changed the withholding amount for Salomon's paycheck to zero. Murray also stated that (1) as soon as she received notice of the error from plaintiff's attorney, she corrected the error; (2) the failure to withhold spousal maintenance was the result of a mistake and was not intentional; and (3) she reviewed and acted on the June 2015 notice to the best of her abilities, given the clear direction by Salomon's attorney to "cease all withholdings," which was supported by the cover page and the handwritten court order.

¶ 11 Plaintiff filed a response and opposed the motion to dismiss, and defendants filed a reply to that response. In July 2016, a hearing was held on the motion. After listening to the arguments of the attorneys, the trial court took the motion under advisement. The trial court later issued a written order granting defendants' section 2–619(a)(9) motion to dismiss "for the reasons asserted in the motion itself," and adopting "the rationale [and] arguments of the [defendants]." Plaintiff appealed.

¶ 12 ANALYSIS

¶ 13 On appeal, plaintiff argues that the trial court erred in granting defendants' section 2–619 motion to dismiss plaintiff's complaint for money judgment (for the assessment of a section 35 statutory penalty against defendants). Plaintiff asserts that the motion to dismiss should not have been granted because (1) defendants' claim that the violation of the Withholding Act was not knowingly done was merely a negation of one of the elements of a violation of the statute and was not a proper affirmative matter to warrant dismissal under section 2–619(a)(9) ; (2) defendants failed to show that no set of facts could be proved that would entitle plaintiff to recover, as defendants were required to show to obtain a section 2–619 dismissal; (3) several material questions of fact existed, which should have prevented defendants from prevailing on their section 2–619 motion to dismiss; (4) Murray's affidavit, which merely set forth the evidence that defendants would expect to present to contest the facts alleged in the plaintiff's complaint (to show that the failure to withhold was not knowingly done) was insufficient to support a dismissal under section 2–619(a)(9) ; and (5) the Tort Immunity Act should not apply in this case to shield defendants from liability for the assessment of a statutory penalty under section 35 of the Withholding Act, since the task performed by Murray was not "official" or "discretionary" in nature, Murray's conduct in failing to carefully review the documents that she had received constituted willful and wanton conduct, the penalty under section 35 of the Withholding Act is not punitive in nature, and there are several important...