Cooney v. Magnabosco

Opinion

FIFTH DIVISION February 10, 2011

No. 1-10-1228

DEBORAH ORLANDO COONEY, Individually and on ) Behalf of All Others Similarly Situated, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County v. ) ) No. 09 CH 22744 LESLEY MAGNABOSCO, Individually and on Behalf of ) All Others Similarly Situated, THE DEPARTMENT OF ) Honorable CHILDREN AND FAMILY SERVICES, and THE ) Mary Anne Mason, DEPARTMENT OF FINANCIAL AND PROFESSIONAL ) Judge Presiding. REGULATION, ) ) Defendants-Appellees. )

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Justices Joseph Gordon and Howse concurred in the judgment and opinion.

OPINION

Plaintiff-appellant, Deborah Orlando Cooney, appeals the involuntary dismissal of her complaint with

prejudice pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615,

2-619 (West 2008)). She maintains, inter alia, that the trial court erroneously construed the Illinois Certified

Shorthand Reporters Act of 1984 (225 ILCS 415/1 et seq. (West 2008)) (the Act), on which all her claims are

based, and that the trial court abused its discretion in denying her leave to amend her complaint. For the

reasons below, we affirm.

BACKGROUND

In 2005 plaintiff appealed an indicated finding of abuse against her by the Illinois Department

of Children and Family Services (DCFS). Lesley Magnabosco, who is not certified under the Act,

allegedly “reported” those proceedings. In July 2009 plaintiff filed the instant lawsuit against 1-10-1228

Magnabosco, DCFS, and the Illinois Departments of Financial and Professional Regulation (IDFPR),

maintaining, individually and on behalf of all others similarly situated, that DCFS violated and

continues to violate the Act by using uncertified individuals like Magnabosco to report its

administrative proceedings. Section 3 of the Act prohibits anyone from “practic[ing] shorthand

reporting on a temporary or permanent basis in this State without being certified under this Act. Th[e]

Act does not prohibit any nonresident practicing shorthand reporter from practicing shorthand

reporting in this State on a purely temporary basis with reference to one single proceeding.” 225

ILCS 415/3 (West 2008).

“ ‘The practice of shorthand reporting’ means reporting, by the use of any system of

manual or mechanical shorthand writing, of *** proceedings of an administrative

agency when the final decision of the agency with reference thereto is likely to be

subject to judicial review under the provisions of the Administrative Review Law.”

225 ILCS 415/4(4) (West 2008).

Plaintiff claimed breach of the Act (count I) and aiding and betting violations of the Act (count II), and

she sought a declaration that defendants’ conduct violates the Act (count III). Defendants each

moved to dismiss the complaint. IDFPR maintained, pursuant to section 2-619(a)(1), that plaintiff’s

claims are barred by the doctrine of sovereign immunity and that the Act does not authorize claims

against IDFPR. DCFS contended, pursuant to section 2-619(a)(1), that the instant lawsuit was one

of several retaliatory lawsuits by plaintiff against it, that there is no private right of action under the

Act, and that plaintiff’s claims are barred by the doctrine of sovereign immunity. Magnabosco argued

that no private right of action exists under the Act. She also claimed, pursuant to section 2-615, that

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plaintiff’s conclusory allegations did not state a claim under the Act, and that, pursuant to section 2-

619, Magnabosco did not engage in shorthand reporting because she was not present at plaintiff’s

administrative proceedings and merely transcribed an audio tape DFCS provided to her employer.

Magnabosco submitted an affidavit in support of her motion, as well a copy of the certification

allegedly provided to plaintiff with the transcript of her proceedings that states:

“I, Lesley Magnabosco, have transcribed the proceedings of said hearing by listening

to an audio cassette tape, and that the foregoing is a true and correct transcript of my

type written notes so taken aforesaid off said audio cassette tape and contains the

proceedings given at said hearing off of said audio cassette tape as could be heard to

the best of my ability.”

Plaintiff responded by seeking discovery pursuant to Supreme Court Rule 191(b) (Ill. S. Ct. R. 191(b)

(eff. July 1, 2002) claiming Magnabosco’s affidavit and certification were conclusory and that

discovery was needed to determine

“exactly how Magnabosco transcribes the tapes and whether the machine she uses

could be deemed a ‘system of mechanical shorthand writings’ under the Act. As

Magnabosco’s own affidavit indicates, her transcription process took place oustide

of Plaintiff’s presence. (See, Magnabosco affidavit ¶ 14). Plaintiff needs to conduct

discovery to learn exactly how Magnabosco generates DCFS reports of proceedings.”

The trial court stayed Magnabosco’s section 2-619 motion and denied plaintiff’s motion for discovery

as moot. It nevertheless considered Magnabosco’s certification in ruling on defendants’ motions,

stating:

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“I know that I said I wasn’t going to require you to brief the 2-619, but I can take

judicial notice of this certification that Ms. Magnabosco attached to her Motion to

Dismiss, and it says ‘I, Lesley Magnabosco, have transcribed the proceeding of said

hearing by listening to an audio cassette tape.’ That’s not using a system of manual

or mechanical shorthand.”

The trial court then dismissed plaintiff’s claims against Magnabosco with prejudice, stating:

“[T]he Complaint alleges summarily that [Magnabosco] performed the function of a

shorthand reporter, but her certification of the proceedings indicates that she had

listened to an audio tape. Certified shorthand reporting is licensed under the State of

Illinois. Listening to an audio tape is not.

I do not find that listening to an audio tape falls within the ambit of a statute

which governs the manual or mechanical use of a system of shorthand reporting. I

believe that allegation is unavailing as a matter of law. And so for those reasons the

motions to dismiss are granted without leave to re-plead.

***

To the extent that I have taken judicial notice of Ms. Magnabosco’s

certification, to that extent the 2-619 motion is granted as well.

[P]laintiffs do not contest that she listed to an audio tape, that she was not

present at the proceedings, that she did not appear at the proceedings as a shorthand

reporter, I believe the plaintiffs in good faith do not contest that. Her certfciation stays

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‘I listened to an audio tape and this is what I heard on the tape.’

I find that those matters, as to which there really is no controversy, do not

bring her within the scope of the statute that the plaintiffs rely on, and for those

reasons the motion is granted.”

The trial court also granted the departments’ section 2-619 motions to dismiss, concluding that

plaintiff’s claims are barred by the doctrine of sovereign immunity. Plaintiff’s motion to reconsider

or file an amended complaint was denied. She now appeals, claiming that the trial court erroneously

construed the Act and erroneously considered Magnabosco’s certification, that her claims do not fall

within the sovereign immunity doctrine, and that the trial court should have allowed her proffered

amended complaint.

ANALYSIS

A. Plaintiff Has Not Pled a Section 23.1(b) Claim

While defendants moved to dismiss plaintiff’s claims pursuant to both sections 2-615 and 2-

619, we need not reach the section 2-619 grounds for dismissal, for it is clear plaintiff has not stated

a claim under section 2-615.

“A section 2-615 motion to dismiss challenges the legal sufficiency of a

complaint based on defects apparent on its face. [Citation.] A cause of action should

not be dismissed pursuant to a section 2-615 motion unless it is clearly apparent that

no set of facts can be proved that would entitle the plaintiff to relief. [Citation.] In

ruling on such a motion, only those facts apparent from the face of the pleadings,

matters of which the court can take judicial notice, and judicial admissions in the

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record may be considered. [Citation.] We accept as true all well-pleaded facts and all

reasonable inferences that may be drawn from those facts. [Citation.] However, a

plaintiff may not rely on mere conclusions of law or fact unsupported by specific

factual allegations. [Citation.] We review de novo an order granting a section 2-615

motion to dismiss.” Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463,

473 (2009).

Here, IDPFR and DCFS maintain that plaintiff’s complaint was properly dismissed with prejudice

because, inter alia, the Act does not provide an implied or express private right of action against

them, and plaintiff has not stated a section 23.1(b) (225 ILCS 415/23.1(b) (West 2008)) claim against

Magnabosco. Plaintiff responds that this argument has been waived because it was not raised before

the trial court and that she “never asserted that she had an implied private right of action as a basis

for her claims, but instead clearly brought her claims under the express provisions set forth in section

23.1(b) of the Act.”

“While an appellant who fails to raise an issue in the trial court waives that issue, an appellee

may raise an issue on review that was not presented to the trial court in order to sustain the judgment,

as long as the factual basis for the issue was before the trial court.” DOD Technologies v. Mesirow

Insurance Services, Inc., 381 Ill. App. 3d 1042, 1050 (2008). In any event, “the rule of waiver is a

limitation on the parties and not the courts.” Farmer v. Country Mutual Insurance Co., 365 Ill. App.

3d 1046, 1050 (2006). We “can affirm the trial court on any basis that appears in the record,

regardless of whether the trial court relied upon such ground or whether its rationale was correct.”

Bowers v. State Farm Mutual Automobile Insurance Co., 403 Ill. App. 3d 173, 176 (2010). It is clear

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here that plaintiff has not stated a claim under section 23.1(b), an issue of statutory interpretation the

trial court did not reach.

“The primary goal of construing the meaning of a statute is to ascertain and give

effect to the intent of the legislature. The most reliable indicator of such intent is the

statutory language, which must be given its plain and ordinary meaning. A statute is

viewed as a whole. Therefore, words and phrases must be interpreted in light of other

relevant provisions of the statute and must not be construed in isolation. [Citations.]

Accordingly, in determining legislative intent, a court may properly consider not only

the language of the statute, but also the purpose and necessity for the law, the evils

sought to be remedied and the goals to be achieved, and the consequences that would

result from construing the statute one way or the other.” Hubble v. Bi-State

Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262,

268 (2010).

“When undertaking the interpretation of a statute, we must presume that when the legislature enacted

the law, it did not intend to produce absurd, inconvenient or unjust results.” In re Estate of Wilson,

238 Ill. 2d 519, 560 (2010).

Section 23 mandates, in relevant part:

“(a) If any person violates the provisions of this Act, the Director may, in the

name of the People of the State of Illinois, through the Attorney General of the State

of Illinois, petition for an order enjoining such violation or for an order enforcing

compliance with this Act. Upon the filing of a verified petition in such court, the court

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may issue a temporary restraining order, without notice or bond, and may

preliminarily and permanently enjoin such violation. If it is established that such

person has violated or is violating the injunction, the court may punish the offender

for contempt of court. Proceedings under this Section shall be in addition to, and not

in lieu of, all other remedies and penalties provided by this Act.

(b) If any person shall practice as a certified shorthand reporter or hold

himself out as a certified shorthand reporter without being licensed under the

provisions of this Act then any certified shorthand reporter, any interested party or

any person injured thereby may, in addition to the Director, petition for relief as

provided in subsection (a).” (Emphasis added.) 225 ILCS 415/23.1(a), (b) (West

2008).

Again, “ ‘[s]horthand reporter’ means a person who is technically qualified and certified under this

Act to practice shorthand reporting.” 225 ILCS 415/4(5) (West 2008). The Act further provides:

“Every person to whom a valid existing certificate as a certified shorthand reporter has been

issued under this Act shall be designated as a Certified Shorthand Reporter and not otherwise,

and any such certified shorthand reporter may, in connection with his or her practice of

shorthand reporting, use the abbreviation ‘C.S.R.’ or the title ‘Court Reporter.’ No person

other than the holder of a valid existing certificate under this Act shall use the title or

designation of ‘Certified Shorthand Reporter’, ‘Court Reporter’, or ‘C.S.R.’, either directly

or indirectly in connection with his or her profession or business.” 225 ILCS 415/5 (West

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Consequently, unlike the broad authority that is granted to the Director of Professional Regulation

under section 23.1(a), the private right of action in section 23.1(b) is limited to enforcing the Act’s

prohibition against the unauthorized practice as a certified shorthand reporter or the unauthorized use

of that title. Plaintiff does not allege here in either her original or proffered amended complaint that

Magnabosco practiced, or held herself out, as a shorthand reporter, let alone a certified shorthand

report. Plaintiff argues instead:

“As explained in Plaintiff[-]Appellant’s Brief and alleged in her Complaint,

Magnabosco engaged in the practice of shorthand reporting. (See, App. Br., section

I; and R. C00006; A. 00004). The Act provides that ‘[n]o person may practice

shorthand reporting on a temporary or permanent basis in this State without

being certified under this Act.’ 225 ILCS 415/3. Therefore, if Magnabosco was

engaged in the practice of shorthand reporting, she was implicitly holding herself out

to be licensed under the Act. Plaintiff was not able to conduct discovery on the issue

as to the extent Magnabosco actually represented herself to be certified, as Plaintiff’s

request for discovery on this very issue was denied.” (Emphasis in original.)

This argument fails. We reject the notion that anyone who uses shorthand to report a proceeding in

this state is automatically practicing as a “certified shorthand reporter” or holding herself out as such.

In order to state a claim under the narrow confines of section 23.1(b), plaintiff must plead and prove

that defendant actually practiced and/or held herself out as a certified shorthand reporter. Plaintiff has

not and cannot do so here, for she admits she does not know whether Magnabosco engaged in such

conduct. Discovery cannot be used as fishing expedition to build speculative claims. We affirm the

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dismissal of plaintiff’s complaint with prejudice pursuant to section 2-615. All her claims, which she

admits are brought pursuant to section 23.1(b), cannot lie. We therefore need not, and do not, reach

the other grounds addressed by the parties and the trial court.

B. The Trial Court Did Not Abuse Its Discretion

“In Illinois, courts are encouraged to freely and liberally allow the amendment

of pleadings. [Citations.] Notwithstanding that liberal policy, a party’s right to amend

is not absolute and unlimited. [Citation.] The decision whether to grant leave to

amend a pleading rests within the sound discretion of the trial court. [Citation.]

Absent an abuse of that discretion, its decision will not be disturbed on review.

[Citation.] Among the factors to be considered in determining whether or not to

permit an amendment to the pleadings are whether the amendment would cure a

defect in the pleadings; whether the other party would be prejudiced or surprised by

the proposed amendment; timeliness of the proposed amendment; and whether there

were previous opportunities to amend the pleadings.” Lee v. Chicago Transit

Authority, 152 Ill. 2d 432, 467-68 (1992).

“Of course, if the amendment would not have cured a defect in the pleading, the other factors are

superfluous.” Bates v. Richland Sales Corp., 346 Ill. App. 3d 223, 230 (2004).

Here, plaintiff’s proffered amended complaint reasserts her section 23.1(b) claims, which were

properly dismissed with prejudice, and it adds a fourth claim for mandamus.

“Mandamus relief is an extraordinary remedy to enforce, as a matter of right,

the performance of official duties by a public official where the official is not

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exercising discretion. A court will not grant a writ of mandamus unless the petitioner

can demonstrate a clear, affirmative right to relief, a clear duty of the official to act,

and clear authority in the official to comply with the writ. The writ will not lie when

its effect is to substitute the court’s judgment or discretion for the official’s judgment

or discretion. Mandamus relief, therefore, is not appropriate to regulate a course of

official conduct or to enforce the performance of official duties generally. [Citation.]

An exception to this general rule, however, is that mandamus will lie to prevent a

clear abuse of discretion or to control the exercise of discretion in a manner consistent

with the applicable rule of law.” Hatch v. Szymanski, 325 Ill. App. 3d 736, 739

(2001).

Plaintiff alleges in her proffered amended complaint that, inter alia, the “Department has a clear duty

to investigate violations of the Act,” and that she triggered that duty by complying with section 2105-

100(b) of the Illinois Civil Administrative Code, which provides:

“The Department may upon its own motion and shall upon the verified complaint in

writing of any person, provided the complaint or the complaint together with

evidence, documentary or otherwise, presented in connection with the complaint

makes a prima facie case, investigate the actions of any person holding or claiming

to hold a certificate.” (Emphasis added.) 20 ILCS 2105/2105-100(b) (West 2008).

Plaintiff does not, however, allege in her pleading that Magnabosco holds or claims to hold a

certificate with IDPFR, absent which section 2105-100(b) is inapplicable. Plaintiff’s proffered

amended complaint does not state a claim for relief. The trial court correctly denied plaintiff leave to

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file that pleading.

CONCLUSION

We affirm the trial court’s dismissal of plaintiff’s original complaint. Plaintiff did not state a

claim under section 23.1(b). Moreover, the trial court properly disallowed plaintiff’s proffered

amended complaint. That pleading does not state a claim for relief.

Affirmed.