PATRICIA MONCELLE, Individually and As Special Administrator of the Estate of Michael Moncelle, deceased, Plaintiff-Appellant, v. C.A.P. AIR FREIGHT, INC.; AIR CAP, LLC; and MATTHEW F. GROSS, Defendants-Appellees, and JUSTICE MARY McDADE, JUSTICE VICKI WRIGHT; and JUSTICE MARY K. O’BRIEN, Defendants-Appellees.
Appeal No. 3-13-0121
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
March 19, 2014
Modified upon denial of rehearing April 30, 2014
2014 IL App (3d) 130121-U
Honorable David Dubicki, Judge, Presiding.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Spence concurred in the judgment.
¶ 1 Held: The trial court properly dismissed the judicial defendants from this case since plaintiff did not request leave to add them in as new parties before filing her complaint. Also, the trial court did not abuse its discretion in denying plaintiff’s request for leave to amend the pleadings to add them as parties when such an amendment would not cure the defective pleading since: (1) counts I and III were nullities because they were filed in closed cases; (2) count II was a defective section 2-1401 petition (
¶ 2 Appellant Patricia Moncelle, individually and as special administrator of the estate of Michael Moncelle (Moncelle), appeals from an order of the trial court dismissing a complaint that she filed in two closed cases which named appellees C.A.P. Air Freight, AIR CAP, LLC and Matthew Gross (collectively, the trucking defendants) and Justices Mary McDade, Vicki Wright and Mary K. O’Brien (the Justices). For the following reasons, we affirm.
I. BACKGROUND
¶ 4 This case stems from an automobile accident that occurred on November 24, 2004, between Moncelle’s husband, Michael, and Matthew Gross (Gross) the driver of the truck. Michael died as a result of the collision.
A. The 2005 Case
¶ 6 On January 25, 2005, Moncelle filed a six-count complaint against appellees Gross and his employer, C.A.P. Air Freight, Incorporated (employer). The complaint included counts for wrongful death and property damage under theories of willful and wanton misconduct on Gross’ part, and the willful and wanton hiring, retention and entrustment of a vehicle on the employer’s part. The complaint sought compensatory damages on all counts, and punitive damages under counts III, IV and VI, which sought recovery for property damage. All of the counts alleged
¶ 7 On November 7, 2005, the trial court dismissed the complaint based upon Moncelle’s failure to sufficiently plead willful and wanton misconduct. On December 9, 2005, Moncelle filed a first amended complaint against Gross and the employer. On February 6, 2006, the trial court struck the punitive damage claim from Moncelle’s first amended complaint, and found that section 604.1 of the Code of Civil Procedure (Code) (
¶ 8 On November 17, 2006, Moncelle filed a ten-count second amended complaint against Gross and the employer, and for the first time added AIR CAP, LLC, the owner of the truck, as a defendant. In each count Moncelle alleged that defendants had violated federal trucking regulations in various ways. In that complaint, Moncelle noted that it was her position that counts VI through X did not fall within section 604.1 of the Code (
¶ 9 On February 26, 2007, Moncelle filed a motion for leave to include prayers for punitive damages in all 10 counts of the second amended complaint, or, in the alternative, counts VI through X of that pleading. On November 2, 2007, after considering the evidentiary submissions and arguments of all the parties, the trial court held that punitive damages could not be sought for the wrongful death counts as a matter of law. It held that based upon the evidence, punitive damages could be sought only for the property damage claim against Gross, and not the employer or owner (collectively, the corporate defendants). Therefore, it held that Moncelle could amend her second amended complaint to add a request for punitive damages in one count, and denied her request for leave to amend the other nine counts.
¶ 10 The corporate defendants subsequently moved for partial summary judgment against Moncelle. On November 20, 2007, the trial court granted partial summary judgment to the corporate defendants on several paragraphs in Moncelle’s second amended complaint, denied the motion in part, and reserved ruling on the remainder of the motion. Specifically, it granted partial summary judgment to the employer with respect to paragraphs 12(d),(k),(l) and (m) of counts I and VI of the second amended complaint, as well as paragraphs 10(d), (k), (l) and (m) of counts II and VII. It further granted the owner partial summary judgment with respect to paragraphs 10(d),(l),(j) and (k) of counts IV and IX. On November 26, 2007, the trial court granted partial summary judgment to the employer on “[p]laintiff’s use of sections 391.21(b)(7), 391.21(b)(8), 391.23(a)(1) [and] 391.27” of the Federal Motor Carrier Safety Act as referenced in counts I, II, VI and VII of plaintiff’s second amended complaint.” On November 30, 2007,
B. The 2008 Case
¶ 12 On January 16, 2008, Moncelle filed another action in 08 L 17 (the 2008 case) against Gross and the corporate defendants. In addition to the wrongful death and property damage counts, Moncelle added counts against Gross pursuant to the Cannabis and Controlled Substances Tort Claims Act (
¶ 13 Gross and the corporate defendants all filed motions to dismiss the 2008 complaint with prejudice on the basis of res judicata. Generally, they argued that when the trial court granted partial summary judgment to the corporate defendants on separate parts of Moncelle’s second amended complaint in the 2005 case, final orders were entered which became appealable when Moncelle voluntarily dismissed her action. Gross and the corporate defendants also contended that when the court denied Moncelle’s request to seek punitive damages for nine out of the ten counts in the 2005 case, which affected every defendant, that also constituted a final order on a separate part of her action that became appealable when she voluntarily dismissed her action. Since Moncelle did not appeal those final orders in the 2005 case, they argued, the orders barred a new action raising those claims or any other claims that were raised or could have been raised in the 2005 action.
¶ 14 On June 30, 2008, the trial court dismissed the 2008 case with prejudice as barred by res judicata. It held that the November 2, 2007 order in the 2005 case denying Moncelle her request for leave to amend to add requests for punitive damages for all but one count was a final order
¶ 15 On July 30, 2008, Moncelle filed a motion to reconsider. While that motion was pending, she filed a petition pursuant to section 2-1401 of the Code (
¶ 16 On January 2, 2009, the trial court issued an order under both the 2005 and the 2008 action case numbers. In it, the trial court denied Moncelle’s section 2-1401 petition (
¶ 17 Moncelle appealed from the January 2, 2009, order in both the 2005 action and the 2008 action. After a hearing on a rule to show cause at which Moncelle declined to participate, the trial court discharged the rule on February 27, 2009. Moncelle then filed a supplemental notice of appeal.
¶ 18 On April 7, 2010, the Third District appellate court issued a Rule 23 order in the consolidated appeals from the 2005 action and the 2008 action. See Moncelle v. C.A.P. Air Freight, et al., (April 7, 2010) (unpublished order pursuant to Supreme Court Rule 23). In its order, the Third District held:
“[T]he trial court’s order dismissing the counts in plaintiff’s second-amended complaint against the corporate defendants that were premised on alleged violations of the FMCSR was a final judgment on the merits of a separate branch of the controversy. Accordingly, when plaintiff voluntarily dismissed the remainder of her complaint, she triggered the res judicata bar to re-filing her complaint against those defendants. Further, because plaintiff’s individual property damage claims against Gross could have been litigated in the prior proceedings, res judicata also bars plaintiff’s 2008 claim against Gross.”
Therefore, the Third District affirmed the trial court’s order in the 2008 action dismissing the 2008 case with prejudice. The Third District also affirmed the trial court’s order in the 2005 action denying Moncelle’s section 2-1401 petition (
¶ 19 Moncelle subsequently filed a petition for rehearing. In that petition she argued that the appellate court had incorrectly stated that in the 2005 action, the corporate defendants had been granted partial summary judgment on entire counts of the second amended complaint and on all of the allegations regarding the federal trucking regulations. Instead, Moncelle alleged, even after the trial court’s grant of summary judgment, every count still contained allegations of FMCSR violations. According to Moncelle, these alleged errors led the appellate court to mistakenly affirm the trial court’s order in the 2008 action that dismissed the case with prejudice on res judicata grounds. The appellate court denied the petition for rehearing.
¶ 20 Moncelle then filed with the Third District an application for a certificate of importance pursuant to Supreme Court Rule 316 (eff. Dec. 6, 2006), asking the court to certify that the case involved a question of such importance that it should be decided by the Illinois Supreme Court. In the application, Moncelle contended that the appellate court had intentionally misrepresented the procedural history of the 2005 action so that it could reach the result it desired. Moncelle did not identify any motivation for the appellate court to do so. The court denied the application, with one justice dissenting.
¶ 21 Next, Moncelle filed a petition for leave to appeal with the Illinois Supreme court. In that petition she argued that the appellate court had misstated the record, and that no order disposing of entire claims or all of the allegations regarding violations of federal trucking regulations existed. The petition was denied.
C. The “October 2011 Complaint”
¶ 24 Count I named all defendants and was brought under the Court Records Restoration Act (
¶ 25 Count II named all defendants and alleged that the Justices had engaged in corruption in fabricating the order. It also alleged that after Moncelle accused the Justices of intentional misrepresentation in the application for a certificate of importance, the only reason that they did not issue a rule to show cause why her counsel should not be held in contempt for that accusation is because the charges of intentional misrepresentation were true, and “because the panel desires the least possible sunlight upon its misconduct.” She also alleged that the Justices had committed the crime of official misconduct (
¶ 26 Count III named only the Justices and requested that if Moncelle did not obtain the relief requested in counts I and II, that the trial court require the Justices to pay her compensatory damages for the value of her action against the trucking defendants, as well as punitive damages. In support of her request, Moncelle cited to section 32-8(d)((5) of the Criminal Code of 1961.
¶ 27 The Justices filed a motion to quash summons on the ground that the summons was issued to them as new defendants after judgment had already been entered. See
¶ 28 The trucking defendants also filed a motion to dismiss counts I and II of the October 2011 complaint (
¶ 29 In her response to the trucking defendants’ motion to dismiss, Moncelle alleged that the Justices fabricated the trial court order in the 2005 case that allegedly disposed of entire counts, either by declaring its existence through judicial fiat, or by forging such an order on paper and placing the forgery in the record. She also argued that it was possible that one or more “entities” other than the panel forged the order, placed it in the record on appeal, and the panel accurately described that forged order it its disposition.
¶ 30 In a supplemental brief to their motion to dismiss, the Justices argued that Moncelle was incorrectly relying on an amended version of the criminal statute regarding tampering with a public record that was not in effect at the time the Rule 23 order was issued. Therefore, they contended, she could not obtain restitution against them for the alleged tampering because that was not permissible at the time of the alleged fabrication of the order. They later noted that, in any event, such restitution can only be ordered solely by a criminal court following a conviction, and cannot be sought by a private party as part of a civil suit.
¶ 31 On July 17, 2012, the trial court held a hearing on the motions to dismiss and a motion filed by Moncelle to amend the complaint to refer to an earlier version of the criminal statute regarding tampering with a public record. The court allowed that motion to amend. At the hearing, Moncelle’s counsel stated that at the time he filed the petition for rehearing, he thought that the Justices had committed an honest mistake. He later decided, however, that they were “not that dumb” and must have intentionally misrepresented the record to reach a desired result.
¶ 32 On August 10, 2012, the trial court ruled on all defendants’ motions. With regard to the Justices, it dismissed all claims against them on the ground that Moncelle had not obtained leave of court to add them as defendants. The court further noted that it could not envision any circumstances under which the Justices could be added as parties to this action, since section 2-616 of the Code of Civil Procedure (
¶ 33 With regard to counts I and II, the court noted that the October 2011 complaint could only be construed as a section 2-1401 petition because it was collaterally attacking the Rule 23 order.
¶ 35 On September 27, 2012, Moncelle filed a motion to reconsider or for leave to amend her complaint. In her motion, she argued that she was not attempting to add the Justices as defendants to pre-existing actions and that the “October 2011 complaint” initiated a new action that in part invoked section 2-1401 of the Code (
¶ 36 During the hearing on the motion to reconsider the trial court explained that Illinois is a fact pleading state, and therefore Moncelle had to plead facts regarding alleged judicial tampering with the record, and not simply conclusions. Moncelle’s counsel responded that the
II. ANALYSIS
¶ 38 On appeal, Moncelle claims that the trial court erred in: (1) dismissing count II of the October 2011 complaint; (2) dismissing count I of the October 2011 complaint; and (3) dismissing the Justices. Before reaching the merits of Moncelle’s appeal, however, we first turn to the issue of this court’s jurisdiction.
A. Jurisdiction
¶ 40 In the jurisdictional statement of her brief, Moncelle contends that because the trial court found there was no just reason to delay enforcement or appeal with regard to counts I and II, Supreme Court Rule 304(a) (eff. Feb. 26, 2010) provides a basis for this court’s jurisdiction over her appeal from the dismissal of those counts. However, she notes that other than the trial court’s comment that “[t]he judicial defendants were dismissed, without prejudice,” the trial court never otherwise addressed whether count III was dismissed or not. Moncelle argues that normally, the dismissal of a defendant “without prejudice” is not a final judgment and therefore not appealable. See Department of Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 10. Therefore, she argues that the dismissal without prejudice of the Justices is not a final judgment as to the Justices or as to the viability of count III. However, Moncelle notes that she also addressed the merits of count III in her brief in the event that this court finds that it has jurisdiction over the entire matter.
¶ 42 In response, the Justices agree that the trial court did not make an explicit ruling regarding count III, but that instead it dismissed all claims against them because Moncelle had not obtained leave of court to add them as defendants. They note that although the trial court described the dismissal as without prejudice, it stated that the Justices could not be added to the 2008 action because it was a closed case. Further, the Justices contend, it is obvious that the same logic would apply to the 2005 case. The Justices also point out that the trial court held that it would not grant leave to amend to add the Justices as defendants since there would be no point when it was dismissing counts I and II with prejudice. Therefore, they contend, it appears that the trial court intended to dismiss all claims against them with prejudice. Finally, they note that the effect of a dismissal order is determined by its substance and not by the incantation of any particular “magic words,” and the trial court’s description of the dismissal as “with prejudice” or “without prejudice” is not determinative of its finality. Matejczyk v. City of Chicago, 397 Ill. App. 3d 1, 5 (2009).
¶ 43 Whether the appellate court had jurisdiction to consider an appeal presents a question of law which will be reviewed de novo. Board of Education of Roxana Community School District No. 1 v. Pollution Control Board, 2013 IL 115473, ¶ 17.
¶ 44 We have carefully reviewed the trial court’s order of August 10, 2012, and have determined that the portion of the trial court’s order dismissing all the Justices was a final order.
¶ 46 We also reject Moncelle’s claim that the trial court lacked personal jurisdiction over the Justices. The notion that a pleading filed with the addition of new parties is a nullity if the plaintiff did not request leave to add the parties before filing has been largely abandoned. Cedzidlo v. Marriott International, Inc., 404 Ill. App. 3d 578, 579-80 (2010) (defendants’ procedural failure in filing a third-party complaint against a contractor without seeking the required leave of court did not deprive the trial court of jurisdiction and render the filing a nullity). The practice of treating the obtaining of leave as an element of jurisdiction is contrary
¶ 47 Here, the trial court’s reference to the Justices being dismissed “without prejudice,” as well as its inclusion of Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language into the order, is irrelevant. Matejczyk, 397 Ill. App. 3d at 5 (trial court’s description of dismissal order is not determinative of its finality). Pursuant to Illinois Supreme Court Rule 303 (eff. June 4, 2008) (appeals from final judgments of the circuit court in civil cases) this court has jurisdiction to review the propriety of the trial court’s order granting the trucking defendants’ motion to dismiss on counts I and II, as well as the portion of the order the Justices from this case. We now turn to the merits of Moncelle’s case.
B. Dismissal of the Justices
¶ 49 Moncelle argues that the trial court erred in dismissing the Justices as defendants in this case because leave to amend to add the Justices as defendants was never required. In the alternative, she argues that the trial court abused its discretion in denying her request for leave to add the Justices as defendants.2
¶ 50 1. Failure to Add the Justices Before Filing the October 2011 Complaint
¶ 51 Moncelle first argues that leave to add the Justices was never required because the Justices were named as defendants in all three counts in the October 2011 complaint at the same
a. Counts I and III of the October 2011 complaint
¶ 53 In her argument, Moncelle only discusses count II as commencing a new proceeding and alleges that therefore section 2-616 of the Code (
¶ 54 Section 2-616 of the Code provides that “[a]t any time before final judgment amendments may be made on just and reasonable terms.”
¶ 55 Here, counts I and III were nullities because they were filed after final judgment, in violation of section 2-616 of the Code.
¶ 56 The 2008 case became final in September 2010 when the Illinois Supreme Court denied Moncelle’s petition for leave to appeal from the Third District Appellate court’s Rule 23 order affirming the dismissal of the 2008 case. “When the decree is affirmed, in all its parts, the controversy is at an end. In such a case, the circuit court has no power to allow amendment of the pleadings, or to alter or change the decree.” Perrin v. Pioneer National Title Insurance Company, 108 Ill. App. 3d 181, 183 (1982) (quoting Chickering v. Failes, 29 Ill. 294, 302 (1862)). The fact that the Justices and the trucking defendants were all named at the same time in the October 2011 complaint does not change the fact that the Justices were named as defendants in two closed cases in which they were never parties before the final judgments.
b. Count II of the October 2011 Complaint
¶ 59 Section 2-1401 of the Code allows for relief from a final order or judgment of the trial court when that relief is sought more than 30 days after entry of the order or judgment.
¶ 60 We cannot agree with Moncelle that since a section 2-1401 petition is a new proceeding, the Justices “have always been there” so that she did not need to request leave of court to add them as defendants. She cites no authority for the proposition that a plaintiff can file a section 2-1401 petition in a case and add completely new parties as defendants: (1) who were not named in the earlier proceeding; and (2) who had no connection to or interest in those proceedings.
¶ 61 None of the elements needed to obtain relief pursuant to section 2-1401 of the Code are present in this case. Count II, as amended, asked the trial court to : (1) make factual declarations about the content of its own records; (2) declare that the Third District Appellate court had altered the record on appeal by fabricating an order; (3) declare that the appellate court’s judgment is based on a fabricated order, and therefore is void; (4) vacate all trial court orders that the appellate court had affirmed in her appeals of the 2005 and 2008 cases, then proceed to the merits of all of Moncelle’s claims against the trucking defendants. First, she has no meritorious defense or claim since, as we have held, none of the allegations in count II pertain in any way to the trial court proceedings in the 2005 or the 2008 cases. Second, she cannot prove due diligence in presenting these claims to the trial court in the original action, since they had not occurred yet at the time of the earlier proceedings. Third, and perhaps most egregious, Moncelle used no diligence whatsoever in filing count II of the October 2011 complaint. As the trial court noted, Moncelle was aware, upon issuance of the Third District’s Rule 23 order in April of 2010, that she did not believe the order was supported by the record on appeal. Nevertheless, she waited
¶ 62 We note that within this argument, Moncelle requests that “this Court exercise as much original jurisdiction as necessary to allow for a complete determination of the allegations and request for relief contained in count 2.” However, other than a passing reference to the Illinois Constitution, Moncelle makes no legal argument or citation to relevant authority in support of this request. Accordingly, she has forfeited this argument. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
2. Denial of Leave to Amend the October 2011 Complaint
¶ 64 In the alternative, Moncelle argues that the trial court abused its discretion in denying her request for leave to add the Justices as defendants.
¶ 65 A trial court has broad discretion in ruling on a motion for leave to amend the pleadings and its decision in that regard will not be reversed on appeal absent an abuse of discretion. Joseph Construction Company v. Board of Trustees of Governors State University, 2012 IL App (3d) 110379, ¶ 55. To determine whether the trial court has abused its discretion, we must look at four factors: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment;
¶ 66 Here, the trial court did not abuse its discretion in denying Moncelle’s request for leave to add the Justices as defendants in this action because such an amendment would not cure the defective pleading.
¶ 67 It is well settled that Illinois is a fact-pleading state. Time Savers, Incorporated v. LaSalle Bank, N.A., 371 Ill. App. 3d 759, 767 (2007). Therefore, this court will disregard all legal and factual conclusions in the complaint that are not supported by specific factual allegations. Simmons v. Campion, 2013 IL App (3d) 120562, ¶ 21.
¶ 68 Here, the October 2011 complaint is a bizarre pleading in that it names the trucking defendants in two of the three counts, yet contains no allegations of wrongdoing on their parts. Instead, all of the allegations are directed at the Justices. Count II accuses the Justices of “corruption,” while count I accuses them of tampering with the trial court record as part of that corruption. Count III requests money from the Justices if Moncelle does not receive the relief sought in counts I and II, and her basis for such relief is found in a criminal statute.
¶ 69 The October 2011 complaint completely fails to allege specific facts regarding any purported corruption or tampering with the record. Instead, it only relates to Moncelle’s speculation that the Justices “must have” acted corruptly. She has repeatedly admitted that she has no idea what would have motivated the Justices to do so, and she has not alleged that there is any witness who has personal knowledge that the Justices acted corruptly in issuing their Rule 23 order. She also speculates that the Justices forged an order granting partial summary judgment to the corporate defendants on entire counts and on all allegations regarding violations of federal
¶ 70 As an aside, we feel compelled to note that even if count III was not a nullity, it is also insufficient as a matter of law because in it Moncelle sought damages against the Justices for actions taken in their judicial capacities. It has long been held that a judge is absolutely immune from liability for acts committed while exercising the authority vested in her. Grund v. Donegan, 298 Ill. App. 3d 1034, 1039 (1998). Judges are not liable to civil actions even when such acts are alleged to have been done maliciously or corruptly. Generes v. Foreman, 277 Ill. App. 3d 353, 356 (1995). This doctrine is subject to only two exceptions: (1) actions not taken in the judge’s judicial capacity; and (2) actions taken in the complete absence of all jurisdiction. Grund, 298 Ill. App. 3d at 1039. Neither exception applies in this case. Therefore, count III is barred on the grounds of judicial immunity.
¶ 72 Here, the trucking defendants moved to dismiss counts I and II of the October 2011 complaint pursuant to section 2-619 of the Code (
¶ 73 For all the same reasons we have noted above, we hold that the trial court did not err in granting the trucking defendants’ motion to dismiss.
III. CONCLUSION
¶ 75 In sum, we hold that the trial court properly dismissed the Justices from this case for Moncelle’s failure to request leave to name them as defendants before filing the October 2011 complaint. Further, the trial court did not abuse its discretion in denying Moncelle’s request to add the Justices as parties after filing the complaint because such an amendment would not cure the defective pleading. Finally, the trial court correctly granted the trucking defendants’ motion to dismiss counts I and II of the October 2011 complaint.
¶ 76 Accordingly, the judgment of the circuit court of Peoria County is affirmed.
¶ 77 Affirmed.