Roberson v. SSM Health St. Mary's Hospital , 2023 IL App (5th) 220746-U ( 2023 )

NOTICE
2023 IL App (5th) 220746-UNOTICE
Decision filed 07/25/23. The
This order was filed under
text of this decision may be
NO. 5-22-0746 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
JUSTIN ROBERSON, Administrator of the ) Appeal from the
Estate of Michael Steward Jr., Deceased, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellant, )
)
v. ) No. 21-L-343
)
SSM HEALTH ST. MARY’S HOSPITAL, ) Honorable
) William D. Stiehl,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Vaughan concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court granting the defendant’s motion
to dismiss for lack of personal jurisdiction where the defendant did not waive
its objection to personal jurisdiction by filing a stipulation and a motion for
substitution of judge simultaneously with its motion to dismiss.
¶2 The plaintiff, Justin Roberson, as administrator of the estate of Michael Steward Jr.,
deceased, appeals from the circuit court’s order of October 19, 2022, dismissing the
plaintiff’s complaint with prejudice. The circuit court based its dismissal upon its finding
that the circuit court lacked personal jurisdiction over the defendant, SSM Health Care St.
Louis d/b/a SSM Health St. Mary’s Hospital-St. Louis, incorrectly named as SSM Health
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St. Mary’s Hospital (SSM Health). For the following reasons, we affirm the judgment of
the circuit court.
¶3 I. BACKGROUND
¶4 The plaintiff is the brother of the decedent, Michael Steward Jr. In April 2019,
Michael was living in a nursing care facility in Swansea, Illinois, when he was diagnosed
with a urinary tract infection and transferred to SSM Health located in Richmond Heights,
Missouri. On April 12, 2019, Michael died at SSM Health from acute hypoxic respiratory
failure.
¶5 On April 12, 2021, the plaintiff filed a complaint in the circuit court of St. Clair
County, Illinois, and an amended complaint on December 23, 2021. The plaintiff’s
amended complaint consisted of one count of wrongful death and one count of survival
action against the defendant. On February 10, 2022, the plaintiff filed a motion for default
judgment directed towards the defendant for failing to file an appearance.
¶6 On April 11, 2022, the defendant filed a limited appearance for the purpose of
contesting jurisdiction, a stipulation withdrawing the plaintiff’s motion for default, 1 a
motion to substitute judge pursuant to section 2-1001 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-1001 (West 2020)), and a motion to dismiss for lack of personal
jurisdiction pursuant to section 2-301 of the Code (id. § 2-301). The circuit court granted
the defendant’s motion to substitute judge on April 12, 2022.
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The plaintiff’s initial brief states, “The purpose to stipulate for a motion to withdraw was to
prohibit the court from scrutinizing the 8 month delay in Defendant filing its appearance after being served.”
The circuit court did not address the defendant’s delay in entering an appearance or the parties’ stipulation
withdrawing the plaintiff’s motion for default. As such, only the timing of the filing of the stipulation is
relevant to the issue on appeal.
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¶7 On October 19, 2022, the circuit court granted the defendant’s motion to dismiss for
lack of personal jurisdiction. The circuit court found that there was no evidence that the
defendant had submitted to personal jurisdiction within Illinois. The circuit court further
found that the defendant had not waived its right to object to personal jurisdiction by
simultaneously filing a motion for substitution of judge and a stipulation for the withdrawal
of the plaintiff’s motion for default judgment with its motion to dismiss. The circuit court
noted that the two motions were not combined into a single motion but found that “the
filing of the motions simultaneously meets the intent of the statute, and that the defendant
did not waive its right to object to jurisdiction.” The plaintiff now appeals the judgment of
the circuit court raising the sole issue of whether the circuit court erred in granting SSM
Health’s motion to dismiss for lack of personal jurisdiction where the defendant’s motion
to dismiss was filed simultaneously with a stipulation and a motion for substitution of
judge.
¶8 II. ANALYSIS
¶9 The plaintiff argues that the defendant waived all objections to personal jurisdiction
when it filed a motion to substitute judge and a stipulation to withdraw the motion for
default simultaneously with its motion to dismiss. According to the plaintiff’s argument,
section 2-301(a) of the Code (id. § 2-301(a)) requires a defendant to file a motion objecting
to jurisdiction first, and if the defendant later or simultaneously files motions or pleadings
not allowed under section 2-301(a)(6), then the defendant submits to the jurisdiction of the
court. The plaintiff further argues that section 2-301 makes no reference to allowing a
substitution of judge to be combined with a motion to dismiss based upon lack of
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jurisdiction. As such, the plaintiff argues that the circuit court erred in granting the
defendant’s motion to dismiss for lack of personal jurisdiction because SSM Health filed
its motion to dismiss simultaneously with a motion for substitution of judge and a
stipulation and, thus, submitted to the jurisdiction of the court.
¶ 10 We review de novo a circuit court’s determination regarding jurisdiction where such
determination was based on documentation and no evidentiary hearing was conducted.
Russell v. SNFA, 2013 IL 113909, ¶ 28. Personal jurisdiction can be established by service
of process in accordance with appropriate statute, or by a party’s voluntary submission to
the court’s jurisdiction. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 18.
Section 2-301 of the Code provides that:
“(a) Prior to the filing of any other pleading or motion other than as set
forth in subsection (a-6), a party may object to the court’s jurisdiction over
the party’s person, either on the ground that the party is not amenable to
process of a court of this State or on the ground of insufficiency of process
or insufficiency of service of process, by filing a motion to dismiss the entire
proceeding or any cause of action involved in the proceeding ***. Such a
motion may be made singly or included with others in a combined motion,
but the parts of a combined motion must be identified in the manner
described in Section 2-619.1.” 735 ILCS 5/2-301(a) (West 2020).
¶ 11 Section 2-301 goes on to provide that:
“(a-6) A party filing any other pleading or motion prior to the filing of
a motion objecting to the court’s jurisdiction over the party’s person as set
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forth in subsection (a) waives all objections to the court’s jurisdiction over
the party’s person prospectively, unless the initial motion filed is one of the
following:
(1) A motion for an extension of time to answer or otherwise
plead.
(2) A motion filed under Section 2-1301, 2-1401, or 2-1401.1.”
Id. § 2-301(a-6).
¶ 12 We note that section 2-301 was amended in 2000, and that the current version of
section 2-301 differs from the earlier version in significant ways. To begin with, section 2-
301 now requires an order sustaining or overruling an objection to jurisdiction whereas the
prior version only required an appropriate order if the circuit court sustained the objection.
Ryburn v. People, 349 Ill. App. 3d 990, 993 (2004). Further, as the court in KSAC Corp. v.
Recycle Free, Inc., 364 Ill. App. 3d 593, 595 (2006), stated:
“[T]he current version no longer requires or even provides for the filing of a
special appearance to preserve a jurisdictional objection. Second, having
eliminated the concept of a special appearance, the current version also no
longer specifies that other appearances are ‘general appearances.’ Third, in
its present form, section 2-301 allows a defendant to combine a motion
challenging jurisdiction with other motions seeking relief on different
grounds; under the prior law, doing so would, in most cases, amount to a
general appearance waiving the jurisdictional challenge. Finally, section 2-
301 now contains an explicit waiver provision that is narrower than the prior
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rule that waiver occurred if a party made a general appearance. By its terms,
the statute now provides for waiver of an objection based on personal
jurisdiction only if the party files a responsive pleading or a motion (other
than one seeking an extension of time to answer or otherwise appear) before
filing a motion asserting the jurisdictional objection. Notably, there is no
provision that a ‘general appearance,’ as such, results in waiver.”
¶ 13 The KSAC court also noted that “[c]uriously, the elimination of the special
appearance seems to have gone unnoticed by some courts. Thus, decisions continue to
speak of *** waiver of jurisdictional objections that results when a party makes a general
appearance.” Id. This court also noted in In re Adoption of M.A.E., 2022 IL App (5th)
210291-U, ¶ 43, “that some courts have continued to make a distinction between general
and special appearances in spite of the statutory amendment.”
¶ 14 We stress the statutory amendment discussed above because the case relied heavily
upon by the plaintiff, Clay v. Huntley, 338 Ill. App. 3d 68 (2003), in support of his argument
that the defendant’s filing of a stipulation and a motion for substitution resulted in a waiver,
refers to the entry of a general appearance versus a special appearance, a distinction that
no longer existed after the 2000 amendment to section 2-301. As the plaintiff notes, the
Clay court stated that “[a]ny action taken by a defendant that recognizes a case as being in
court constitutes the entry of a general appearance unless the action is taken for the sole
purpose of objecting to the court’s jurisdiction over the defendant’s person.” Id. at 76.
Although Clay was decided in 2003, tracing back the precedent relied upon, the Clay court
cited to Minikon v. Escobedo, 324 Ill. App. 3d 1073, 1083 (2001), and the Minikon court
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cited to In re Marriage of Snider, 305 Ill. App. 3d 697 (1999). The Snider court, a decision
issued prior to the 2000 amendment of section 2-301, made the finding that “[a]ny action
taken by a litigant that recognizes a case as being in court amounts to the entry of a general
appearance unless the action was for the sole purpose of objecting to jurisdiction over the
person.” Id. at 699. The Snider court relied on the finding in In re Estate of Zoglauer, 229
Ill. App. 3d 394, 397 (1992); however, Zoglauer was superseded by statute as stated in
In re Marriage of Schmitt, 321 Ill. App. 3d 360 (2001).
¶ 15 The Schmitt court held that:
“Prior to the amendment of section 2-301, it was well established that
any action taken by a litigant that recognized a case as being in court
amounted to a general appearance unless such action was for the sole purpose
of objecting to jurisdiction over the person. [Citations.]
However, when the legislature amends a statute, it is presumed that it
intended to effect some change in the law as it formerly existed. [Citation.]
In this case, we interpret the legislature’s changes to section 2-301 to evince
its intent to permit a party to file a motion or other responsive pleading after
the party objects to the court’s jurisdiction over the party’s person. Moreover,
as long as the party files the motion or other responsive pleading after he or
she objects to the court’s jurisdiction over the party’s person, the party does
not waive its objections to the court’s jurisdiction over the party’s person.”
Id. at 366.
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¶ 16 The plaintiff also relies on Resurgence Capital, LLC v. Kuznar, 2017 IL App (1st)
161853, in support of his argument that a motion for substitution of judge as of right waives
personal jurisdiction if filed simultaneously with a personal jurisdiction objection. The
plaintiff acknowledges that Kuznar is not analogous to the case at bar, but argues that it is
instructive because the Kuznar court held that a motion to substitute judge was not a motion
allowed under section 2-301. The Kuznar court held that, “[i]f the party objecting to
jurisdiction files a responsive pleading or a motion outside the exception listed in section
2-301(a) of the Code, the party waives all objections to the court’s jurisdiction over that
party.” Id. ¶ 24. The Kuznar court then noted that the defendant had filed numerous
motions, including a motion for substitution of judge, prior to filing his objection to
jurisdiction which were not motions permitted under section 2-301(a). Id. ¶ 25. The Kuznar
court was not, however, addressing motions or filings made simultaneously or after the
filing of the objection to jurisdiction. As such, we do not find Kuznar to be instructive.
¶ 17 The plaintiff’s argument that any action taken by a defendant simultaneously or after
the filing of a motion to dismiss for lack of personal jurisdiction constitutes the entry of a
general appearance unless the action is taken for the sole purpose of objecting to the court’s
jurisdiction over the defendant’s person is based on an obsolete legal framework. The filing
of a general appearance prior to filing an objection to jurisdiction does not result in the
waiver of the objection under the current version of section 2-301, nor would the filing of
other pleadings or motions after the filing of a jurisdictional objection equate to a general
appearance that would result in a waiver of the jurisdictional objection. See Ryburn, 349
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Ill. App. 3d at 992-93; see also OneWest Bank, FSB v. Topor, 2013 IL App (1st) 120010,
¶ 11.
¶ 18 We further note that section 2-301(a) provides that a motion to dismiss may be made
singly or included with others in a combined motion, but it does not require that the motions
be combined, nor does it prohibit the motions to be filed simultaneously. See 735 ILCS
5/2-301(a) (West 2020); see also OneWest Bank, FSB, 2013 IL App (1st) 120010, ¶ 11.
Section 2-301(a) only states that if a combined motion is filed, the parts of a combined
motion must be identified in the manner described in section 2-619.1 of the Code (735
ILCS 5/2-619.1 (West 2020)). 735 ILCS 5/2-301(a) (West 2020). Since the amendment of
section 2-301, courts have held that a motion objecting to jurisdiction may be filed
simultaneously with some other motion without forfeiting a jurisdictional challenge. See
OneWest Bank, FSB, 2013 IL App (1st) 120010, ¶ 11; Cardenas Marketing Network, Inc.
v. Pabon, 2012 IL App (1st) 111645, ¶ 26.
¶ 19 This is not to say that a defendant cannot waive all objections to jurisdiction. Section
2-301(a-6) states that if the party files a pleading or motion (other than one seeking an
extension of time to answer or otherwise appear), prior to filing a motion to dismiss for
lack of jurisdiction, that party waives all objections to the court’s jurisdiction over the
party’s person prospectively. 735 ILCS 5/2-301(a-6) (West 2020). Further, courts have
held that a party waives all objections to personal jurisdiction by filing a written appearance
and appearing in court to make substantive arguments on the merits without first objecting
to personal jurisdiction (see In re Adoption of M.A.E., 2022 IL App (5th) 210291-U, ¶ 43),
or appearing at a hearing and requesting other relief without first addressing the
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jurisdictional motion (see Municipal Trust & Savings Bank v. Moriarty, 2021 IL 126290,
¶ 25).
¶ 20 In this matter, the defendant simultaneously filed a stipulation and a motion for
substitution of judge with its motion to dismiss for lack of personal jurisdiction. Neither of
these filings were made prior to the filing of the motion to dismiss. As such, we find that
the simultaneous filing of the defendant’s motion to dismiss with its motion for substitution
of judge and a stipulation did not result in a waiver of the defendant’s objection to
jurisdiction. We further find that the defendant took no additional actions after the filing of
its motion to dismiss that would subject it to the jurisdiction of the circuit court. Therefore,
we find that the defendant did not waive its objection to jurisdiction, and we affirm the
judgment of the circuit court.
¶ 21 III. CONCLUSION
¶ 22 Based on the foregoing, we affirm the judgment of the circuit court of St. Clair
County granting the defendant’s motion to dismiss for lack of personal jurisdiction and
dismissing this matter with prejudice.
¶ 23 Affirmed.
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