Applebaum v. RUSH UNIVERSITY MEDICAL CENTER

899 N.E.2d 262, 231 Ill. 2d 429, 326 Ill. Dec. 45, 2008 Ill. LEXIS 1438
Illinois Supreme Court·Decided November 20, 2008·No. 105905·Published·Cited by 34 cases

Opinion

JUSTICE FREEMAN

delivered the judgment of the court, with opinion.

Justices Thomas, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion.

Chief Justice Fitzgerald took no part in the decision.

OPINION

The circuit court of Cook County certified the following question of law for interlocutory appeal, pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)):

“Whether the nullity rule should be applied in a wrongful death action where the plaintiff is an attorney who has passed the bar and was on inactive status at the time of the filing of the complaint, was the special administrator, sole beneficiary and son of the decedent and prior to the hearing on the motion whose license was reinstated.”

The appellate court answered this question in the affirmative. 376 Ill. App. 3d 993. We granted leave to appeal (210 Ill. 2d R. 315). For the reasons that follow, we answer the certified question in the negative. Accordingly, we reverse the judgment of the appellate court and remand this cause to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

This interlocutory appeal has its genesis in a medical malpractice complaint filed on December 1, 2005, in the circuit court of Cook County. Plaintiff, Michael Applebaum, filed suit as special administrator of the estate of Joseph Applebaum, against Rush University Medical Center and other defendants, 1 seeking damages for the estate pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2004)) and the Survived Act (755 ILCS 5/27—6 (West 2004)), stemming from defendants’ alleged misconduct in treating decedent. Plaintiff is decedent’s only child and the sole beneficiary of his estate, which had no creditors and was not opened to probate. Plaintiffs complaint and the damages it sought, however, were solely in the name of the estate and not pled individually for plaintiff.

Plaintiff signed the complaint as “Attorney for Plaintiff.” The record reveals that plaintiff is a physician who received an Illinois license to practice law in 1988. The Attorney Registration and Disciplinary Commission (ARDC) has no record of plaintiff ever having been disciplined or being the subject of a public disciplinary proceeding. Plaintiff remained on “active” status with the ARDC until January 6, 2005, when, pursuant to our Rule 756(a)(5) (188 Ill. 2d R. 756(a)(5)), he voluntarily changed his registration to that of an “inactive status attorney.” This change in status occurred nearly one year prior to the filing of the medical malpractice complaint.

On April 4, 2006, plaintiff filed a first amended complaint in the medical malpractice action, adding additional counts. Plaintiff, however, signed this document as “Plaintiff Pro Se.” Defendants thereafter filed, on May 31, 2006, a pleading styled “Motion to Dismiss Based on the Plaintiff’s Unlicensed Practice of Law,” resulting from their discovery that plaintiff — although an attorney — was on inactive status at the time he filed the initial complaint. Defendants maintained that “one not duly authorized to practice law may not represent another in a court of law” and argued that, because plaintiff was on inactive status with the ARDC, he was “not legally permitted to bring this litigation in a representative capacity on behalf of the estate of [decedent].” Defendants concluded, therefore, that “this matter must be declared a nullity and dismissed with prejudice.” The record reflects the parties’ agreement that, sometime subsequent to the filing of defendants’ dismissal motion — yet prior to the trial court’s hearing of this matter on August 17, 2006 — plaintiff returned to “active” status with the ARDC.

Upon conclusion of the August 17 hearing, the trial court denied defendants’ motion to dismiss. The court agreed with defendants that plaintiff’s inactive status precluded him from representing the estate and that, generally, legal proceedings brought by a nonlawyer on behalf of another may be voided under the nullity rule. The trial court, however, disagreed with defendants that this case required application of the nullity rule. Noting that the purpose of the nullity rule is to protect the public against unskilled and unscrupulous persons representing them in legal proceedings, the trial court found that the instant medical malpractice action filed by plaintiff — who has a law degree, who has been duly licensed in Illinois and never disciplined, who had resumed active status with the ARDC prior to the dismissal hearing, and who sought redress through this suit for alleged harm suffered by his father — did not present any of the concerns intended to be remedied by application of that rule. In addition, the court was troubled by the fact that applying the nullity rule and dismissing the action would foreclose any possibility of recourse for decedent’s alleged injuries. Accordingly, the trial court refused to apply the nullity rule and denied defendants’ motion to dismiss. The court did direct plaintiff, however, to file an amended complaint reflecting his current status as an active attorney. Plaintiff complied by filing a second amended complaint on August 28, 2006.

Defendants thereafter filed a “Motion for Rule 308 Finding,” requesting that the trial court certify a question of law for immediate interlocutory appeal pursuant to our Rule 308. The trial court agreed with defendants that its prior order denying their dismissal motion involved a question of law as to which there is a substantial ground of difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation. Accordingly, the trial court certified its question for interlocutory appeal.

In applying the nullity rule and reversing the actions of the circuit court, the appellate court held:

“Where a plaintiff proceeding pro se was formerly licensed to practice law, but is voluntarily on inactive status pursuant to Illinois Supreme Court Rule 756(a)(5) [citation] at the time of the filing of a complaint under the Wrongful Death Act, he or she is not authorized to practice law and the nullity rule applies even though plaintiff returned to active status prior to a hearing on a motion to dismiss the complaint as a nullity.” 376 Ill. App. 3d at 993.

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Applebaum v. RUSH UNIVERSITY MEDICAL CENTER, 899 N.E.2d 262, 231 Ill. 2d 429, 326 Ill. Dec. 45, 2008 Ill. LEXIS 1438 (Ill. 2008).

899 N.E.2d 262 (Applebaum v. RUSH UNIVERSITY MEDICAL CENTER) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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