MARY SLEPICKA, By and Through JoANN KAMINSKI, Her Agent and Attorney-in-Fact, Plaintiff-Appellant, v. THE STATE OF ILLINOIS, Acting Through THE DEPARTMENT OF PUBLIC HEALTH, TERESA GARATE, Ph.D., Its Assistant Director, and LaMAR HASBROUCK, MD, MPH, Its Director; and HOLY FAMILY VILLA, Defendants-Appellees.
Docket No. 4-12-1103
Appellate Court of Illinois, Fourth District
September 12, 2013
October 17, 2013
2013 IL App (4th) 121103
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Holder White concurred in the judgment and opinion.
Appeal from the Circuit Court of Sangamon County, No. 12-MR-743; the Hon. John Schmidt, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action arising from the Department of Public Health‘s service of a notice of involuntary transfer or discharge of plaintiff from a Cook County nursing home on the ground of nonpayment and the Department‘s approval of the involuntary transfer or discharge, the decision of the Sangamon County circuit court, where plaintiff filed her complaint for administrative review and saw the Department‘s decision upheld, was vacated, and the cause was remanded with directions to transfer the case to the Cook County circuit court, the proper venue.
Judgment
Vacated and remanded with directions.
Duane D. Young, of LaBarre, Young & Behnke, of Springfield, for appellant.
Mark J. Silberman and Amy E. McCracken, both of Duane Morris LLP, of Chicago, for appellee Holy Family Villa.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and John P. Schmidt, Assistant Attorney General, of counsel), for other appellees.
OPINION
¶ 1 The defendant in this appeal is Holy Family Villa, a nursing home in Palos Park. The plaintiff is Mary Slepicka, a resident of the nursing home.
¶ 2 Defendant served upon plaintiff a notice of involuntary transfer or discharge on the ground of nonpayment. See
¶ 3 Plaintiff then filed a complaint for administrative review in the Sangamon County circuit court. Defendant moved to dismiss the complaint, or, alternatively, to transfer the case to the Cook County circuit court, on the ground that the Sangamon County circuit court was an impermissible venue. The Sangamon County circuit court denied the motion but ultimately upheld the Department‘s decision. Plaintiff appeals. (The Attorney General filed an appearance on behalf of the Department, Garate, and Hasbrouck as named defendants, but has not filed a brief.)
¶ 4 Because the Sangamon County circuit court was indeed an impermissible venue under section 3-104 of the Administrative Review Law (
¶ 5 I. BACKGROUND
¶ 6 Defendant operates a skilled nursing facility in Palos Park, in Cook County. As we said, plaintiff is a resident there.
¶ 8 On February 23, 2012, an administrative law judge from the Department, Omayra R. Giachello, held a prehearing conference at the nursing home in Palos Park. On May 24, 2012, she held an administrative hearing, also at the nursing home.
¶ 9 On August 16, 2012, Giachello issued a decision recommending approval of the involuntary transfer or discharge.
¶ 10 On August 29, 2012, in a final administrative decision, the assistant director of the Department, Teresa Garate, concurred with Giachello‘s recommendation.
¶ 11 On September 14, 2012, in the Sangamon County circuit court, plaintiff filed a complaint for administrative review.
¶ 12 Defendant moved to dismiss the complaint, or alternatively to transfer the case, on the ground that the Cook County circuit court was the only permissible venue. The Sangamon County circuit court denied defendant‘s motion but upheld the Department‘s approval of the involuntary transfer or discharge.
¶ 13 This appeal followed.
¶ 14 Defendant filed with us a motion to dismiss the appeal as moot on the ground that plaintiff had paid the amount that defendant had claimed was overdue. In response, plaintiff argued that the appeal actually was not moot, because she had paid under compulsion. The letter accompanying her payment had expressed to defendant that her payment was under protest. JoAnn Kaminski attached the letter to her affidavit. The letter is dated January 7, 2013, which was about five weeks after the circuit court‘s final order, and the first paragraph of the letter reads as follows:
“I am paying from Mary‘s [sic] Slepika‘s [sic] remaining funds in her checking account $1800, and in additional [sic] personally paying, on Mary Slepicka‘s behalf $7950.56. These are the sums demanded by Holy Family Villa, in order to avoid the serious and disruptive actions taken and being taken against her by the facility. Please apply the enclosed check to her account and stop disturbing her equanimity and rest. I reserve, on her behalf, and my own behalf any and all rights to recover these said monies and any and all attendant damages on account of the actions of the facility. These sums are being paid without any intention to acknowledge the validity of the sums demanded or the charges made to her.”
¶ 15 On January 22, 2013, we denied defendant‘s motion to dismiss this appeal as moot.
¶ 16 II. ANALYSIS
¶ 17 Defendant contends that under section 3-104 of the Administrative Review Law (
¶ 18 In response, plaintiff makes two arguments. First, she argues that defendant errs by equating venue with subject-matter jurisdiction and, further, because defendant did not cross-appeal from the circuit court‘s denial of its motion for dismissal on the ground of an incorrect venue, defendant is barred from raising the issue of venue now, on appeal. Second, plaintiff argues that under section 3-104 of the Administrative Review Law (
¶ 19 A. Equating Venue With Subject-Matter Jurisdiction
¶ 20 Circuit courts receive their subject-matter jurisdiction from the Illinois Constitution (People ex rel. Madigan v. Burge, 2012 IL App (1st) 112842, ¶ 17) except that circuit courts “‘have such power to review administrative action as provided by [statutory] law‘” (id. ¶ 18 (quoting
¶ 21 The Administrative Review Law (
¶ 22 Sections 3-411 and 3-412 of the Nursing Home Care Act (
¶ 23 The Administrative Review Law confers subject-matter jurisdiction on the circuit court only if the plaintiff follows the procedures in that statute for seeking judicial review. Section 3-102 of the Administrative Review Law (
¶ 24 One of the “statutorily prescribed procedures” (Rodriguez, 218 Ill. 2d at 350), or part of the prescribed “manner” of seeking judicial review (
“§ 3-104. Jurisdiction and venue. Jurisdiction to review final administrative decisions is vested in the Circuit Courts, except as to a final order of the Illinois Educational Labor Relations Board in which case jurisdiction to review a final order is vested in the Appellate Court of a judicial district in which the Board maintains an office. If the venue of the action to review a final administrative decision is expressly prescribed in the particular statute under authority of which the decision was made, such venue shall control, but if the venue is not so prescribed, an action to review a final administrative decision may be commenced in the Circuit Court of any county in which (1) any part of the hearing or proceeding culminating in the decision of the administrative agency was held, or (2) any part of the subject matter involved is situated, or (3) any part of the transaction which gave rise to the proceedings before the agency occurred. The court first acquiring jurisdiction of any action to review a final administrative decision shall have and retain jurisdiction of the action until final disposition of the action.”
¶ 25 The authorities we have discussed so far lend plausibility to defendant‘s argument that, in cases to which the Administrative Review Law (
¶ 26 The trouble with such reasoning is that it conflicts with section 2-104(a) and 2-106(b) of the Code of Civil Procedure (
¶ 27 B. The Question of Whether Sangamon County Was a Permissible Venue Under Section 3-104
¶ 28 Again, section 3-104 provides in relevant part: “If the venue of the action to review a final administrative decision is expressly prescribed in the particular statute under authority of which the decision was made, such venue shall control, but if the venue is not so prescribed, an action to review a final administrative decision may be commenced in the Circuit Court of any county in which (1) any part of the hearing or proceeding culminating in the decision of the administrative agency was held, or (2) any part of the subject matter involved is situated, or (3) any part of the transaction which gave rise to the proceedings before the agency occurred.”
¶ 29 Plaintiff invokes (1): “any county in which *** any part of the hearing or proceeding culminating in the decision of the administrative agency was held.” Id. She reasons:
“The facility acknowledges that the Department of Public Health has offices in Springfield [(in Sangamon County)]. [Citation to record.] It is clear that the decision, made by the Assistant Director on delegation of the Director, emanated from Springfield. [Citation to record.] There is no evidence that the decision was made or effected anywhere else as the facility would have the court speculate.”
¶ 30 Item (1) does not say, however, that a permissible venue is the county in which the final administrative decision was made. Rather, item (1) says that a permissible venue is “any county in which *** any part of the hearing or proceeding culminating in the decision of the administrative agency was held.” (Emphasis added.) Id. In other words, in order for Sangamon County to be a permissible venue under (1), the department would have had to “h[o]ld” at least “part of the hearing or proceeding” in Sangamon County before issuing a final administrative decision premised on that hearing or proceeding. We are unaware that the Department did so. To “hold” a hearing or proceeding means to “convoke” and “preside [over]” a hearing or proceeding. Black‘s Law Dictionary 736 (7th ed. 1999). The assistant director of the Department does not hold a hearing or proceeding in Springfield by retiring
¶ 31 In sum, the only permissible venue under section 3-104 appears to be Cook County, in which Palos Park is located. That is where the nursing home is, that is where defendant issued the notice of involuntary transfer or discharge, and that is where the Department held the administrative hearing.
¶ 32 C. The Question of Whether Defendant Had To Cross-Appeal in Order To Argue to Us That Sangamon County Was an Impermissible Venue
¶ 33 Plaintiff maintains that since “[n]o cross-appeal was filed,” the issue of venue “is not before the court on this appeal.” (Emphasis in original.) Plaintiff is mistaken. Defendant had to file a cross-appeal only if the judgment was at least partly adverse to defendant. See Landmarks Preservation Council of Illinois v. City of Chicago, 125 Ill. 2d 164, 174 (1988); Fillpot v. Midway Airlines, Inc., 261 Ill. App. 3d 237, 240 (1994). The circuit court‘s judgment was entirely favorable to defendant. Therefore, defendant did not have to cross-appeal as a condition of challenging venue. See id.
¶ 34 D. Defendant‘s Contention That Payment Has Made This Appeal Moot
¶ 35 Defendant contends that this case is moot, considering that “Slepicka has now paid the amount owed” and that, under section 3-401(d) of the Nursing Home Care Act (
“The notice [of involuntary discharge] shall state *** that the responsible party has the right to pay the amount of the bill in full up to the date the transfer or discharge is to be made and then the resident shall have the right to remain in the facility. Such payment shall terminate the transfer or discharge proceedings.” (Emphasis added.)
Id.
Defendant reasons: “Now that Holy Family Villa has been paid, there is no threat of involuntary discharge, and this appeal is moot.”
¶ 36 “An issue is moot if the parties’ interests and rights are no longer in controversy and the resolution of the issue will have no practical effect.” Sadler v. Creekmur, 354 Ill. App. 3d 1029, 1039-40 (2004). This appeal is not moot, because a judicial reversal of the Department‘s decision could have the “practical effect” of entitling plaintiff to restitution of an overpayment.
¶ 37 Plaintiff appears to have a good argument that she paid the $9,750.56 under compulsion: she had to pay, or else defendant would have “involuntarily discharged” her from the nursing home. See Ramirez v. Smart Corp., 371 Ill. App. 3d 797, 802 (2007). As plaintiff made clear to defendant in her letter, her payment was under protest. She paid with the intention of obtaining, first, a reversal of the circuit court‘s judgment in the administrative-review action and, subsequently, restitution from defendant on the basis of that reversal.
¶ 38 If plaintiff paid voluntarily, the voluntary-payment doctrine would bar her from trying to get her money back (see Ramirez, 371 Ill. App. 3d at 801), and, as defendant argues, the payment would render this appeal moot. But she paid under protest, and the supreme court
¶ 39 Granted, restitution is not a remedy the circuit court could grant in this administrative-review action (although an action for restitution could be joined to the administrative-review action (see Stykel v. City of Freeport, 318 Ill. App. 3d 839, 844 (2001))). It does not follow, however, that the correctness of the Department‘s decision is an “abstract question” (Mount Carmel High School v. Illinois High School Ass‘n, 279 Ill. App. 3d 122, 124 (1996)) that the parties lack any practical incentive to litigate (see In re L.W., 291 Ill. App. 3d 619, 625 (1997) (Cook, J., dissenting)). As plaintiff makes clear in her reply brief, if the Department‘s decision is reversed, she will use that reversal as a basis for pursuing restitution of the $9,750.56. Therefore, we conclude this appeal is not moot. The question in this appeal is not “academic.” City of Chicago v. Leviton, 137 Ill. App. 3d 126, 129 (1985).
¶ 40 If we accepted defendant‘s reasoning that this appeal is moot, we effectively would hold that actually being “involuntarily discharged” from a nursing home is a condition to obtaining judicial review of the Department‘s decision to approve a notice of involuntary discharge. By paying the amount demanded, to avoid being evicted from the nursing home, the resident effectively would relinquish his or her right to judicial review.
¶ 41 III. CONCLUSION
¶ 42 For the foregoing reasons, we vacate the judgment of the Sangamon County circuit court and remand this case with directions to transfer this case to the Cook County circuit court.
¶ 43 Vacated and remanded with directions.
JUSTICE APPLETON
APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT