Sassali v. DeFauw

June 16, 1998

No. 2--97--0590
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

WENDY SASSALI, ) Appeal from the Circuit Court
) of Winnebago County.
Plaintiff-Appellee, )
)
v. )
)
THOMAS DeFAUW, ) No. 96--L--17
)
Defendant-Appellant )
)
(Harry Darland, Michael Sassali, )
Jane Billeter, Ashok Gupta, and, ) Honorable
Rockford Memorial Hospital, ) Gerald F. Grubb,
Defendants). ) Judge, Presiding.
_________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:
Defendant Thomas DeFauw, CEO and facility director of Rockford
Memorial Hospital, appeals the denial of his motion to dismiss
count XV of plaintiff s, Wendy Sassali s, first amended complaint.
DeFauw argues that the trial court erred in concluding that an
initially authorized detention pursuant to the Mental Health and
Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-
-100 et seq. (West 1994)) can be converted into a false
imprisonment when the detaining facility fails to comply with the
filing requirements of the Mental Health Code.
Count XV alleges that at approximately 4 p.m. on January 23,
1994, defendants Michael Sassali and Harry Darland forcibly
transported plaintiff to Rockford Memorial Hospital and initiated
emergency involuntary commitment proceedings. The Mental Health
Code required DeFauw to file a petition for involuntary admission
on Monday, January 24. DeFauw did not file this petition within
the allotted time and his failure to do so resulted in plaintiff
being falsely imprisoned.
Pursuant to section 2--619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2--619(a)(9) (West 1996)) DeFauw moved to
dismiss this count, arguing that plaintiff s detention was proper
because it was part of the legal process under article VI of the
Mental Health Code (405 ILCS 5/3--600 et seq. (West 1994)). The
trial court denied DeFauw s motion but, pursuant to Supreme Court
Rule 308 (155 Ill. 2d R. 308), certified the following question:
whether an initially authorized detention under the Mental Health
Code can become a false imprisonment when there is a failure to
comply with the filing requirement for the commitment procedure.
DeFauw timely filed an application for leave to appeal and we
granted the application.
Before addressing the merits, we first note that defendant
Rockford Memorial Hospital (Rockford) also attempted to appeal.
The same counsel represents Rockford and DeFauw. In the trial
court, Rockford and DeFauw moved to dismiss, among other counts,
counts X, XII and XV. Count X accuses DeFauw of negligent
infliction of emotional distress and count XII raises similar
allegations against Rockford. On appeal, Rockford and DeFauw treat
these two counts as if they are the same as count XV. The
certified question, however, addresses only the count alleging
false imprisonment and not the two counts alleging negligent
infliction of emotional distress. Our jurisdiction under Rule 308
is limited to considering the certified question and we cannot
address issues outside that area. Missouri Pacific R.R. Co. v.
International Insurance Co., 288 Ill. App. 3d 69, 84 (1997). Here,
the certified question is limited to the allegations concerning
false imprisonment and, therefore, we are limited to considering
only count XV. Since count XV is directed only against DeFauw and
not Rockford, Rockford is not a proper party to this appeal.
We turn now to the certified question. DeFauw contends that
he cannot be held liable for false imprisonment because plaintiff s
detention was pursuant to legal process, authorized by the Mental
Health Code, and authorized by court order. Plaintiff concedes
that the Mental Health Code authorized her initial detention.
Plaintiff asserts, however, that this authorization ended when
DeFauw failed to file the petition and required documents within
the 24-hour period.
We first address DeFauw s contention that he cannot be held
liable for false imprisonment because plaintiff s detention was
pursuant to "legal process." In support of this argument, DeFauw
relies upon Olsen v. Karwoski, 68 Ill. App. 3d 1031 (1979). In
Olsen the court held that the plaintiff could not sustain a claim
of false imprisonment because his emergency involuntary admissions
to mental hospitals were the result of lawful arrests. Olsen, 68
Ill. App. 3d at 1038. DeFauw apparently concludes that this
provides blanket immunity for plaintiff s detention if the
detention is part of the legal process. Such a conclusion is
incorrect.
We agree with DeFauw that, under Olsen, a lawful detention
pursuant to the provisions of the Mental Health Code cannot be the
basis of a false imprisonment claim. Our analysis, however, does
not end here. The fact that the original detention may be lawful
does not mean that the subsequent detention is. See Fulford v.
O Connor, 3 Ill. 2d 490, 500-01 (1954); Weimann v. County of Kane,
150 Ill. App. 3d 962, 968 (1986); see also Hyatt v. United States,
968 F. Supp. 96, 110 (E.D.N.Y 1997) (applying Illinois law to a
false imprisonment claim).
Although neither party has cited Fulford, we believe that it
provides clear instruction for the disposition of this appeal. In
Fulford, two police officers arrested the plaintiff on April 6 as
a burglary suspect. On April 8, the arresting officers charged the
plaintiff with disorderly conduct. After the plaintiff was found
not guilty of disorderly conduct, he sued the arresting officers
alleging false imprisonment and malicious prosecution. The jury
found for the plaintiff, but the trial court entered a judgment
notwithstanding the verdict in favor of the officers.
On appeal, the supreme court noted that a statute required the
officers to take the plaintiff, without unnecessary delay, before
the nearest magistrate. Fulford, 3 Ill. 2d at 498, citing Ill.
Rev. Stat. 1953, ch. 38, par. 660. The court explained that,
instead of complying with this requirement, the officers detained
the plaintiff from the evening of April 6 until the morning of
April 8 while they attempted to discover sufficient evidence to
charge the plaintiff with burglary. Fulford, 3 Ill. 2d at 497,
500. The court reasoned that this detention by the officers
show[ed] a flat disregard of the duty which the law imposes upon
police officers. Fulford, 3 Ill. 2d at 500. The court concluded
that the officers, therefore, could be held liable for false
imprisonment. Fulford, 3 Ill. 2d at 501.
Section 3--611 of the Mental Health Code (405 ILCS 5/3--611
(West 1994)) provides: Within 24 hours, excluding Saturdays,
Sundays and holidays, after the respondent s admission under this
Article, the facility director of the facility shall file 2 copies
of the petition *** with the court in the county in which the
facility is located. 405 ILCS 5/3--611 (West 1994). If a person
is admitted on a Sunday, and the following Monday is not a holiday,
the 24-hour period during which the petition must be filed begins
at 12:01 a.m. Monday and expires at 12:01 a.m. Tuesday. See In re
Stone, 249 Ill. App. 3d 861, 865 (1993). The failure to timely
file the petition is an error that cannot be waived (In re La
Touche, 247 Ill. App. 3d 615, 618 (1993); Stone, 249 Ill. App. 3d
at 866) or considered harmless (La Touche, 247 Ill. App. 3d at 620;
Stone, 249 Ill. App. 3d at 866). Section 3--611 creates a bright
line test with which the facility director must strictly comply.
La Touche, 247 Ill. App. 3d at 620. If the director does not
comply with this section, the director must either release the
recipient or initiate new involuntary commitment proceedings.
In Fulford, a statute required the arresting officers to take
the plaintiff before a magistrate. A jury found that their failure
to do so rendered them liable for false imprisonment. Here, a
statute required DeFauw to file the petition by 12:01 a.m. Tuesday.
Since DeFauw, like the officers in Fulford, disregarded his
statutory duty and violated plaintiff s important liberty
interests, he can be held liable for false imprisonment.
DeFauw counters by arguing that, although he did not file the
petition within the allotted time, a court order authorized his
continued detention of plaintiff. Sometime Tuesday, January 25,
DeFauw filed the petition. Thereafter, the trial court issued an
order setting the date for a hearing on the petition and ordering
that [a] writ be issued directing the sheriff to take custody of
WENDY SASSALI AT ROCKFORD MEMORIAL HOSPITAL and bring him/her
before this court at the time and place set for hearing AND RETURN
HER TO ROCKFORD MEMORIAL HOSPITAL AFTER THE HEARING. DeFauw
contends that this order authorized plaintiff s continued detention
at Rockford.
We agree with DeFauw that, if this order authorized
plaintiff s continued detention, then, DeFauw could not be held
liable for false imprisonment for the period of detention
authorized by court order. The courts of this State have
repeatedly held that detention pursuant to an arrest warrant is not
actionable as false imprisonment. See, e.g., Davis v. Temple, 284
Ill. App. 3d 983, 991 (1996); Weimann, 150 Ill. App. 3d at 968. We
believe that a detention pursuant to court order is similarly
protected. We are not convinced, however, that the order says what
DeFauw claims it does. The order is clearly directed only toward
the sheriff and, on its face, does not authorize DeFauw to take
any action. To answer the certified question, however, we need not
determine the exact scope or effect of the order.
Even if the order authorized plaintiff s continued detention,
the order could not have authorized plaintiff s detention between
the time that the 24-hour period expired and when the court issued
the order. During this time, neither the Mental Health Code nor
the then yet to be issued order authorized plaintiff s detention.
Therefore, regardless of the effect of the order, plaintiff can
plead a false imprisonment action for, at a minimum, the time
between when the 24-hour period expired and when the trial court
issued the order setting the hearing date and authorizing the
sheriff to transport plaintiff. Contrary to the dissent, in so
holding, we express no opinion as to DeFauw s actual liability nor
do we suggest that false imprisonment is a strict liability tort.
Likewise, we assume that all the elements of a false imprisonment
claim including intent would be relevant with respect to any
decision on the merits. We hold only that an initially authorized
detention under the Mental Health Code may be followed by an
unlawful detention that is actionable as false imprisonment.
Therefore, we answer the certified question in the
affirmative.
Certified question answered.
GEIGER, P.J., concurs.
JUSTICE McLAREN dissents:
By granting the defendant's motion for leave to appeal and by
providing an incomplete answer to the certified question, the
majority ignores the purpose of interlocutory appeals. As the
majority is aware, Supreme Court Rule 308 (155 Ill. 2d R. 308) is
an exception to the general rule that only final orders from a
court are subject to appellate review. Thus,"[a]ppeals under Rule
308 should be limited to certain 'exceptional' circumstances; the
rule should be strictly construed and sparingly exercised." Voss
v. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 445 (1988).
This court may not grant leave to appeal an interlocutory
order under Rule 308 unless (1) the interlocutory order involves a
question of law as to which there is a substantial ground for
difference of opinion; and (2) an immediate appeal from the order
may materially advance the ultimate termination of the litigation.
155 Ill. 2d R. 308(a). The majority does not attempt to explain
how the question certified by the trial court in this case
satisfies these requirements.
The first requirement can be satisfied when the issue is one
of first impression (see Costello v. Governing Board of Lee County
Special Education Ass'n, 252 Ill. App. 3d 547 (1993)) or when the
issue is governed by conflicting authority (see Bright v. Dicke,
260 Ill. App. 3d 768 (1994)). The question presented to this court
in this appeal was answered long ago. The majority acknowledges
that the question was answered in 1954 by our supreme court in
Fulford v. O'Connor, 3 Ill. 2d 490, 500-01 (1954). I believe the
certified question was more clearly answered in Marcus v. Liebman,
59 Ill. App. 3d 337, 340 (1978) (false imprisonment could be proved
where a psychiatrist allegedly forced a patient who was voluntarily
committed to rescind her request to be released by threatening her
with involuntary commitment; however, the psychiatrist never filed
a petition). Nevertheless, it is uncontroverted that the question
at issue in this appeal is not one of first impression. Further,
no one claims that the question is governed by conflicting
authority, and the majority fails to explain how the first
requirement of Rule 308 has otherwise been met. This insufficiency
renders the appeal unsuitable.
In addition, the appeal fails to meet the second requirement.
The second requirement, regarding the material advancement of the
ultimate termination of the litigation, is satisfied where (1) "a
finding of liability would require extensive accounting
procedures;" (2) "a long trial would be necessary if a defense were
overruled pertaining to the right to bring the action;" (3) the
case involves a third-party defendant who is essential to the
litigation; and (4) a transferee court's jurisdiction is
challenged. Voss, 166 Ill. App. 3d at 447, citing Lerner v.
Atlantic Richfield Co., 690 F.2d 203, 211-12 (1982). This appeal
does not fit any of these examples.
Rather, like the improper Rule 308 question presented in
Renshaw v. General Telephone Co., 112 Ill. App. 3d 58 (1983):
"The principal case is one for damages for personal injury.
The parties are few, and the issues are no more complicated
than those of an ordinary personal injury case[] [and the]
[t]rial *** should be of comparatively short duration[.]"
Renshaw, 112 Ill. App. 3d at 64.
In addition, the question presented to this court affects only one
of eighteen counts and the dismissal of this count does not
eliminate any of the defendants from the case. Further, the
majority does not even attempt to explain how entertaining this
appeal will materially advance the ultimate termination of the
litigation.
Moreover, the majority provides an incomplete answer to the
question presented. The question presented ("whether an initially
authorized detention under the Mental Health Code can become a
false imprisonment when there is a failure to comply with the
filing requirement for the commitment procedure[?]") is not "yes,"
as the majority contends. Because the plaintiff does not allege
wrongful intent, the defendant does not allege good faith, and the
required statement of fact is devoid of such, the answer to the
question presented is "maybe." The certified question concerns the
failure to timely file a petition, regardless of intent. In
Fulford (3 Ill. 2d 490), the case relied on by the majority, the
supreme court found that false imprisonment could lie where there
is a wrongful intent to avoid legal guidelines above and beyond the
mere failure to follow the same. The majority in this case
implicitly departs from the rational in Fulford and determines that
the mere allegation and proof of the failure to file is proof of
wrongful intent. By failing to qualify its affirmative response to
the question presented in this case, the majority has not done
anything to materially advance the ultimate and correct termination
of the litigation.
In addition, the majority's unequivocal answer wrongfully
suggests that false imprisonment is a strict liability tort. The
certified question arose from the trial court's denial of the
defendant's motion to dismiss based on a claim of immunity.
However, the question and the majority's answer, in essence,
address whether the plaintiff stated a cause of action. The
majority's answer suggests that the defendant could prove no
explanation that would preclude liability regarding its failure to
file the petition. Thus, the majority ignores one of the
propositions contained in Fulford, a case it relies upon, that
intent is relevant in cases alleging false imprisonment. Fulford,
3 Ill. 2d at 500-01, see also Patton v. State, 47 Ill. Ct. Cl. 174
(1994), Howard v. State, 45 Ill. Ct. Cl. 214, 234 (1993). By
failing to answer the question completely and by overreaching in
its answer, the majority minimizes the already limited possibility
that entertaining this appeal will materially advance the ultimate
termination of the litigation.
The majority's statement that it disavows any interpretation
of strict liability establishes that the majority has answered the
certified question with a "maybe." By limiting the certified
question the majority exhibits an awareness of the inadequacy of
the certified question and the statement of facts supporting the
question. The majority's qualification, though appropriately
stated, supports my contention that the certified question is so
ambiguous that attempting to answer it only results in further
speculation.
A substantial ground for a difference of opinion, as required
by Rule 308 (155 Ill. 2d R. 308(a)), cannot be made in a vacuum.
Without some factual scenario to relate the answer to, there is no
basis to form an opinion, let alone a difference of opinion.
If this appeal materially advances the ultimate termination of
the litigation, it is only through chance rather than through
reasonable probability. I do not believe the requirements of Rule
308 have been satisfied, and the majority's answer is incomplete.
Therefore, I believe we should vacate our previous order allowing
leave to appeal and dismiss this appeal as imprudently entertained.
See Voss, 166 Ill. App. 3d at 453.