                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




    Rodriquez v. Department of Financial & Professional Regulation, 2011 IL App (1st)
                                         102775




Appellate Court            JACK V. RODRIQUEZ, Plaintiff-Appellant, v. THE DEPARTMENT
Caption                    OF FINANCIAL AND PROFESSIONAL REGULATION, Division of
                           Professional Regulation, Defendant-Appellee.



District & No.             First District, Second Division
                           Docket No. 1-10-2775


Filed                      December 27, 2011


Held                       In proceedings arising from the closure without prejudice of a complaint
(Note: This syllabus       filed by the Department of Financial and Professional Regulation alleging
constitutes no part of     that plaintiff violated the Medical Practice Act, the entry of summary
the opinion of the court   judgment for the Department in plaintiff’s complaint seeking his
but has been prepared      litigation expenses incurred in his successful intervening action to declare
by the Reporter of         that section 1110.220 of the Department’s rules was invalid was reversed
Decisions for the          on the ground that plaintiff’s complaint was not barred by res judicata
convenience of the         based on the closure of the Department’s initial complaint, and the cause
reader.)
                           was remanded for a determination of his reasonable litigation expenses.


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-L-50717; the
Review                     Hon. Sanjay T. Tailor, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                  Stephen Roth and Nancy J. Brent, both of Wilmette, for appellant.
Appeal
                            Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                            Solicitor General, and Carl J. Elitz, Assistant Attorney General, of
                            counsel), for appellee.


Panel                       PRESIDING JUSTICE QUINN delivered the judgment of the court, with
                            opinion.
                            Justices Garcia and Lampkin concurred in the judgment and opinion.



                                               OPINION

¶1          Plaintiff Jack V. Rodriquez, M.D., appeals the circuit court’s grant of summary judgment
        against him and in favor of defendant the Illinois Department of Financial Regulation,
        Division of Professional Regulation (Department). We reverse in part and affirm in part.1
¶2          In 2003, the Department filed a complaint against plaintiff under the Department’s rules
        for contested cases in administrative hearings (Rules) (68 Ill. Adm. Code 1110 et seq.
        (2011)). The Department alleged plaintiff violated section 22 of the Medical Practice Act of
        1987 (225 ILCS 60/22 (West 2002)) by improperly using electroconvulsive therapy. The
        parties agreed to stay the proceedings while plaintiff pursued the following two circuit court
        actions relating to the discovery and evidence rules found in actions brought under the Rules.
¶3          In 2004, plaintiff filed suit, seeking an order compelling the issuance of deposition
        subpoenas for several witnesses relevant to his defense. Plaintiff argued that sections 2105-
        15 and 2105-105 of the Civil Administrative Code of Illinois (Code) (20 ILCS 2105/2105-
        15, 2105-105 (West 2004)), defendant’s enabling statute, mandated their issuance. The
        circuit court denied plaintiff’s request and he appealed. We affirmed on appeal, holding that
        section 2105-105 of the Code did not apply to proceedings brought under the Medical
        Practice Act and plaintiff was not entitled to the subpoenas he sought. Rodriquez v.
        Department of Financial & Professional Regulation, 374 Ill. App. 3d 270, 870 N.E.2d 1029
        (2007).
¶4          In 2005, plaintiff filed a second complaint, seeking declaratory and injunctive relief.
        Plaintiff argued that section 1110.220 of the Rules was invalid because it conflicted with the
        Department’s enabling statute. The court granted summary judgment for plaintiff, finding
        that section 1110.220 was void because it conflicted with the enabling statute as plaintiff


                1
               Justice Robert Cahill participated in the oral argument in this case. Justice Cahill died on
        December 4, 2011. Justice Patrick J. Quinn read the briefs, reviewed the record and listened to oral
        arguments online.

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       contended. The Department filed a motion for relief from judgment under section 2-1401 of
       the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2004). The court granted that motion
       and vacated the earlier order invalidating section 1110.220 of the Rules. On appeal, we
       reversed and reinstated the court’s original order declaring the section invalid. We held that
       the trial court had improperly granted the section 2-1401 motion. Rodriquez v. Illinois
       Department of Financial & Professional Regulation, No. 1-06-0236 (2007) (unpublished
       order under Supreme Court Rule 23) (Rodriquez II).
¶5         On January 16, 2008, plaintiff participated in a settlement meeting with the Department
       to discuss his charges. On April 18, 2008, the Department informed plaintiff in a letter that
       it “determined that no violation of the Medical Practice Act of 1987 ha[d] occurred” and
       “ordered th[e] file closed.” The letter also said “that the file concerning these allegations is
       confidential and will not be made available for public inspection.” Plaintiff tried to persuade
       the Department to “withdraw” the complaint against him, but the Department insisted that
       the case was “closed.” The Department refused to dismiss the case with prejudice “in
       keeping with the long-standing practice of the Medical Disciplinary Board to close without
       prejudice.”
¶6         On July 16, 2008, plaintiff filed his third complaint, which is the subject of this appeal.
       In that action plaintiff sought litigation expenses under section 10-55(c) of the Illinois
       Administrative Procedure Act (Act) (5 ILCS 100/10-55(c) (West 2008)) for invalidating
       section 1110.220 of the Rules in the trial court’s action based on the second complaint.
¶7         On October 7, 2008, plaintiff amended his complaint to add count II, contending that the
       Department had improperly closed the case against him.
¶8         The Department filed a motion to dismiss plaintiff’s complaint, asserting res judicata and
       arguing that the order in the second action had not invalidated section 1110.220. The court
       denied the motion.
¶9         The parties moved for summary judgment on September 10, 2009.
¶ 10       On October 29, 2009, plaintiff filed a motion to amend his complaint to add two
       additional counts. Count III sought a declaration that section 2105-150 of the Code (20 ILCS
       2105/2105-150 (West 2008)) was invalid, and count IV sought a declaration that several of
       the Department’s Rules were inapplicable to cases involving physicians or are void.
¶ 11       On August 25, 2010, the Department’s motion for summary judgment was granted, and
       plaintiff’s motion to add counts III and IV was denied as moot. The court said that plaintiff’s
       claim for litigation expenses was barred by res judicata because the transaction that gave rise
       to declaratory and injunctive relief in the second suit also gave rise to his claim for litigation
       expenses. The court found count II of plaintiff’s complaint waived because there was no
       difference between the case being closed or withdrawn and plaintiff was estopped from
       complaining where he had initiated the settlement meeting with the Department and asked
       the Department to informally resolve his case. The court found plaintiff’s request to add
       counts III and IV moot because there was “no further controversy remaining between the
       parties.”
¶ 12       On appeal, plaintiff first contends that the court erred when it held that res judicata
       barred his petition for attorney fees under section 10-55(c) of the Act (5 ILCS 100/10-55(c)

                                                  -3-
       (West 2008)) and section 2-701(c) of the Code of Civil Procedure (735 ILCS 5/2-701(c)
       (West 2010)).
¶ 13        We review the trial court’s grant of summary judgment de novo. Lazenby v. Mark’s
       Construction, Inc., 236 Ill. 2d 83, 93, 923 N.E.2d 735 (2010). Summary judgment is proper
       if, when viewed in the light most favorable to the nonmoving party, the pleadings,
       depositions, admissions and affidavits on file show there is no genuine issue of material fact
       and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West
       2010). We may affirm the trial court on any basis contained in the record, regardless of
       whether the trial court relied on that basis or whether the trial court’s reasoning was correct.
       Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 734, 910 N.E.2d 1134 (2009). For
       the reasons that follow, we believe that section 10-55(c) of the Act allows for a plaintiff to
       bring an independent action to recover litigation expenses incurred while invalidating an
       administrative rule.
¶ 14        Section 10-55(c) of the Act provides:
            “In any case in which a party has any administrative rule invalidated by a court for any
            reason *** the court shall award the party bringing the action the reasonable expenses
            of the litigation, including reasonable attorney[ ] fees.” (Emphasis added.) 5 ILCS
            100/10-55(c) (West 2010).
¶ 15        The primary rule of statutory construction is to ascertain and give effect to the intention
       of the legislature. People v. Woodard, 175 Ill. 2d 435, 443, 677 N.E.2d 935 (1997). “Where
       an enactment is clear and unambiguous, the court is not free to depart from the plain
       language and meaning of the statute by reading into it exceptions, limitations, or conditions
       that the legislature did not express [citations], nor is it necessary for the court to search for
       any subtle or not readily apparent intention of the legislature [citations].” Woodard, 175 Ill.
       2d at 443. If the language of a statute is clear and unambiguous, it will be given effect
       without resort to other aids for construction. Woodard, 175 Ill. 2d at 443.
¶ 16        Based on the plain language of section 10-55(c), we find plaintiff was entitled to bring
       his action for litigation expenses as a separate cause of action under section 10-55(c) of the
       Act after this court invalidated section 1110.220 of the Rules. There is no time limit
       contained in section 10-55(c) limiting a plaintiff’s right to bring an action for such expenses.
       If the legislature wanted to impose a time limit, it could easily have said so. See, e.g., People
       v. Rokita, 316 Ill. App. 3d 292, 303, 736 N.E.2d 205 (2000) (absence of time limit in statute
       indicates a lack of legislative intent to impose a time limit for filing a motion for forensic
       testing). There is also nothing in the statute to suggest that the action must be brought
       simultaneously with the underlying litigation seeking to invalidate an agency rule. See Djikas
       v. Grafft, 344 Ill. App. 3d 1, 13-14, 799 N.E.2d 887 (2003) (“an application for fees and costs
       may be brought at any time where it is outside the issues in the underlying judgment and the
       statute sets no time limit for seeking the expenses” (Town of Libertyville v. Bank of
       Waukegan, 152 Ill. App. 3d 1066, 1073, 504 N.E.2d 1305 (1987))).
¶ 17        We believe plaintiff’s complaint for litigation expenses was properly brought as a
       collateral proceeding to the underlying litigation. See People ex rel. A.M. v. Herlinda M., 221
       Ill. App. 3d 957, 964, 583 N.E.2d 36 (1991) (“fee requests are generally collateral or


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       incidental to the principal action”). Plaintiff’s claim for litigation expenses did not ripen until
       either the circuit court or the appellate court invalidated section 1110.220 of the Rules. A
       judgment in favor of a party seeking to declare an administrative rule invalid is a condition
       precedent to seeking litigation expenses. If a party expends the time and legal costs to
       invalidate an administrative rule, that party is entitled to seek litigation expenses as a separate
       cause of action. In considering the application of section 10-55(c), our supreme court has
       suggested a liberal reading of the statute:
           “The purpose of the fee-shifting provisions of section 10-55(c) of the [Act] is to
           discourage enforcement of invalid rules and give those subject to regulation an incentive
           to oppose doubtful rules where compliance would otherwise be less costly than litigation.
           [Citations.] ***
               ***
               *** If you are a party who has brought any case and you succeed in that case in
           having any administrative rule invalidated by a court for any reason, you are entitled to
           recover all of your reasonable litigation expenses, including attorney fees. [Citation.]
               It is difficult to see how any law could be more straightforward or less encumbered
           by qualification or restriction.” (Emphases in original.) Citizens Organizing Project v.
           Department of Natural Resources, 189 Ill. 2d 593, 598-99, 727 N.E.2d 195 (2000).
¶ 18       We foresee little detrimental impact on judicial efficiency with our result. In determining
       whether to grant a party’s request for litigation costs, the trial court needs to only: (1) look
       at whether or not an agency rule was invalidated and (2) award the party bringing the action
       the “reasonable expenses of the litigation.” 5 ILCS 100/10-55(c) (West 2010).
¶ 19       We agree with plaintiff that res judicata does not bar his claim because the operative fact
       giving rise to his claim for litigation costs did not accrue until the regulation was declared
       invalid by the trial court or until we reversed and reinstated the court’s original order in
       Rodriquez II, declaring section 1110.220 of the Rules invalid. See, e.g., Bank of Lyons v.
       Schultz, 78 Ill. 2d 235, 242, 399 N.E.2d 1286 (1980) (res judicata did not bar a plaintiff’s
       claim for malicious prosecution because no action for that claim could have arisen until a
       favorable judgment was obtained in the plaintiff’s favor in the underlying suit); City of
       Chicago v. Midland Smelting Co., 385 Ill. App. 3d 945, 960, 896 N.E.2d 364 (2008) (res
       judicata did not apply because the ordinance giving rise to the case at hand was an additional
       fact that did not exist at the time of the initial lawsuit). We disagree with the circuit court’s
       statement “[t]hat the regulation had not yet been declared invalid does not mean that
       [plaintiff’s] claim for attorney fees constitutes a separate cause of action under the
       transactional test.” As stated above, the complaint seeking fees was collateral to the
       underlying action invalidating the administrative rule.
¶ 20       We find Libertyville supports our holding. The plaintiff there filed suit against the
       defendant for condemnation. The case was dismissed, and the plaintiff unsuccessfully
       appealed. The defendant then sought attorney fees under section 7-123(a) of the Code of
       Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, ¶ 7-123). The circuit court dismissed the claim,
       asserting that it lacked jurisdiction. On appeal, the appellate court reversed, finding that the
       defendant was entitled to bring the petition for fees because the circuit court retained

                                                  -5-
       jurisdiction “to determine matters collateral or incidental to the judgement.” Libertyville, 152
       Ill. App. 3d at 1072. This court compared the defendant’s petition for attorney fees to one
       under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, ¶ 7-123).
       This court cited authority holding that the circuit court does not lose jurisdiction to entertain
       such petitions following the filing of a notice of appeal from the judgment on the underlying
       suit “where it is brought as a separate action after the judgment disposing of the initial
       claim.” Libertyville, 152 Ill. App. 3d at 1073. This court then reasoned that “attorney fees and
       costs were sought pursuant to section 7-123(a) and application could not be made thereunder
       until final judgment in the condemnation suit. The application for these fees and costs lies
       outside the issues in the underlying judgment and there is no time set in section 7-123(a) for
       seeking these expenses. Moreover, a litigant may wish either to wait until the appeal process
       ends before filing an application or to proceed at a time after the judgment is entered.”
       (Emphasis added.) Libertyville, 152 Ill. App. 3d at 1073.
¶ 21        We find Libertyville persuasive and believe that the court’s analysis there applies equally
       here. As in Libertyville, section 10-55(c) contains no time limitation for seeking expenses,
       the application for litigation costs lies outside the underlying litigation and success in the
       underlying case was a condition precedent to plaintiff obtaining expenses. Like the defendant
       in Libertyville, the circuit court rejected plaintiff’s request to declare an administrative rule
       invalid, so plaintiff had to wait until this court invalidated section 1110.220 and the appeal
       process was complete before bringing his action for attorney fees. See also Djikas, 344 Ill.
       App. 3d at 11-12 (relief based on rights previously determined may be claimed and obtained
       following the entry of a final and appealable order because the relief requested is not directed
       against the original judgment but is incidental to that judgment).
¶ 22        None of the cases filed by the Department hold that a plaintiff is barred from filing a
       claim for attorney fees under section 10-55(c) of the Act as an independent cause of action
       after the underlying case in which an administrative rule has been declared invalid is
       resolved. For this reason we find them unpersuasive.
¶ 23        Next, plaintiff contends the court erred in denying his motion to supplement his petition
       with proposed counts III and IV. The Department informed plaintiff that it “determined that
       no violation of the Medical Practice Act of 1987 ha[d] occurred” and “ordered th[e] file
       closed.” We affirm the trial court’s ruling on this claim because these issues are moot as
       there are no administrative charges pending against plaintiff and no remaining controversy
       between the parties. See La Salle National Bank, N.A. v. City of Lake Forest, 297 Ill. App.
       3d 36, 43, 696 N.E.2d 1222 (1998).
¶ 24        Finally, plaintiff contends that the court erred in granting summary judgment on count
       II in favor of the Department. We affirm the trial court’s dismissal of count II because it was
       plaintiff’s action in initiating the settlement meetings with the Department that led the
       Department to informally close its files, and the Department affirmatively represented that
       the complaint against plaintiff “cannot and will not be revived.” See Wisconsin Right to Life,
       Inc. v. Schober, 366 F.3d 485, 491 (7th Cir. 2004) (the defendant’s assurances evidenced by
       letter that the plaintiff would not be prosecuted made the issue moot, as there was no
       behavior to enjoin).


                                                 -6-
¶ 25       We reverse the circuit court’s finding that plaintiff’s complaint for attorney fees was
       barred under res judicata. We remand this cause to the circuit court for a determination of
       plaintiff’s reasonable litigation expenses. We affirm the circuit court in all other respects.

¶ 26      Affirmed in part and reversed in part; cause remanded.




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