{ "id": 5730589, "name": "MARY LOUISE JACKSON, Adm'x of the Estate of Exavier Lee Jackson, Deceased, Plaintiff-Appellant, v. ARACOLI ALVEREZ, Indiv., et al., Defendants-Appellees", "name_abbreviation": "Jackson v. Alverez", "decision_date": "2005-06-10", "docket_number": "No. 4-04-0238", "first_page": "555", "last_page": "566", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 555" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "547 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 245", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511161 ], "year": 1989, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0245-01" ] }, { "cite": "638 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1192", "parenthetical": "\"It is the responsibility of the party filing a motion to request the trial judge to rule on it. [Citation.] Where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned\"" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887252 ], "year": 1994, "pin_cites": [ { "page": "144", "parenthetical": "\"It is the responsibility of the party filing a motion to request the trial judge to rule on it. [Citation.] Where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0140-01" ] }, { "cite": "748 N.E.2d 222", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "227", "parenthetical": "\"Unless circumstances indicate otherwise, where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned\"" } ], "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 509", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132367 ], "year": 2001, "pin_cites": [ { "page": "512-13", "parenthetical": "\"Unless circumstances indicate otherwise, where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0509-01" ] }, { "cite": "810 N.E.2d 235", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "243", "parenthetical": "\"The party filing a motion has the responsibility to bring it to the trial court's attention and have it resolved. [Citation.] Unless there is some indication to the contrary, where no ruling has been made on a motion, we will presume that the motion was waived or abandoned\"" } ], "opinion_index": 0 }, { "cite": "349 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5375292 ], "year": 1994, "pin_cites": [ { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0880-01" ] }, { "cite": "680 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "806 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "671" } ], "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 799", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3422617 ], "year": 1978, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0744-01" ] }, { "cite": "246 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "107 Ill. App. 2d 239", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1596870 ], "year": 1969, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/107/0239-01" ] }, { "cite": "323 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "42" }, { "page": "41" } ], "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 224", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706128 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "226" }, { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0224-01" ] }, { "cite": "451 N.E.2d 874", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "876" }, { "page": "876" } ], "opinion_index": 0 }, { "cite": "96 Ill. 2d 457", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113801 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "461" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0457-01" ] }, { "cite": "484 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3639856 ], "year": 1985, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0131-01" ] }, { "cite": "759 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "112" }, { "page": "114" }, { "page": "114" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 1152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570543 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "1153" }, { "page": "1156" }, { "page": "1156" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1152-01" ] }, { "cite": "802 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "256" }, { "page": "256" } ], "opinion_index": 0 }, { "cite": "207 Ill. 2d 578", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974981 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "587" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0578-01" ] }, { "cite": "511 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "734" } ], "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612856 ], "year": 1987, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0327-01" ] }, { "cite": "620 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "11" } ], "opinion_index": 1 }, { "cite": "249 Ill. App. 3d 1093", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5408624 ], "year": 1993, "pin_cites": [ { "page": "1096" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/249/1093-01" ] }, { "cite": "582 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "\"the trial court dismissed plaintiffs' complaint with prejudice for failure to state a cause of action, thereby also denying plaintiffs' motion to amend their complaint\" (emphasis added)" } ], "opinion_index": 1 }, { "cite": "144 Ill. 2d 535", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592608 ], "year": 1991, "pin_cites": [ { "parenthetical": "\"the trial court dismissed plaintiffs' complaint with prejudice for failure to state a cause of action, thereby also denying plaintiffs' motion to amend their complaint\" (emphasis added)" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/144/0535-01" ] }, { "cite": "552 N.E.2d 1304", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1306" } ], "opinion_index": 1 }, { "cite": "195 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2495291 ], "year": 1990, "pin_cites": [ { "page": "1029" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/195/1026-01" ] }, { "cite": "592 N.E.2d 977", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "980" } ], "opinion_index": 1 }, { "cite": "148 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283190 ], "year": 1992, "pin_cites": [ { "page": "159" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/148/0151-01" ] }, { "cite": "626 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1133" } ], "opinion_index": 1 }, { "cite": "254 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. 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ARACOLI ALVEREZ, Indiv., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDecedent, Exavier Lee Jackson, was 16 years old and a resident of Lincoln Developmental Center (a State of Illinois facility) when he died in July 2001. In August 2002, Exavier\u2019s grandmother, plaintiff Mary Louise Jackson, as administratrix of Exavier\u2019s estate, sued two employees of the Center, defendants Aracoli Alverez and Carolyn Go-forth, for negligently causing Exavier\u2019s death. In March 2004, the trial court entered an order dismissing the complaint against both defendants on the grounds of sovereign immunity and public-official immunity. The court also specified that the complaint as to Alverez was dismissed \u201cwith prejudice.\u201d\nPlaintiff appeals, arguing that the trial court erred by finding that sovereign immunity and public-official immunity bar her claims against Goforth and Alverez.\nBecause the trial court dismissed the counts against Goforth without prejudice, we lack subject-matter jurisdiction to review the dismissal of those counts. We affirm the court\u2019s dismissal of the counts against Alverez.\nI. BACKGROUND\nIn plaintiffs August 2002 complaint, which contained multiple counts against both Goforth and Alverez, she alleged the following. Exavier was \u201can inpatient under \u2018total supervision\u2019 at the Center, a state mental-health facility.\u201d He had been diagnosed with \u201cprofound mental retardation and [i]mpulse[-][c]ontrol [disorder.\u201d The Center had rules requiring employees to keep all personal items locked up and to bring into the facility no greater amount of medication than the employee needed to take during a shift. Goforth and Alverez were supposed to \u201cmonitor and document\u201d Exavier\u2019s activity every 15 minutes and keep him in close proximity. On July 21, 2001, in violation of those workplace rules, Goforth brought into the Center more than 100 Darvocet pills in her purse and left the purse unsecured. Go-forth and Alverez failed to check on Exavier every 15 minutes and keep him in close proximity, and, while unsupervised, he got the Darvocet pills from Goforth\u2019s purse and swallowed a lethal amount.\nIn June 2003, Goforth filed a motion to dismiss the counts against her, pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 2002)), invoking sovereign immunity and public-official immunity. Goforth accompanied the motion with a memorandum of law in support thereof. In October 2003, plaintiff filed her response to that motion and attached her own memorandum of law.\nFollowing a December 2003 hearing, the trial court granted Go-forth\u2019s motion to dismiss. As of that ruling, Alverez had not yet filed an answer or appeared in the case.\nOn January 6, 2004, plaintiff filed three motions: (1) a motion asking the trial court to reconsider the dismissal of the counts against Goforth or, in the alternative, enter a finding under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), so that she could appeal the dismissal of those counts; (2) a motion for a default judgment against Alverez; and (3) a motion for leave to file an amended complaint, adding allegations of professional negligence against both Goforth and Alverez. In the proposed amended complaint, plaintiff alleged, for the first time, that (1) both Goforth and Alverez were \u201cduly licensed and certified nursing assistant^]\u201d and (2) by failing to properly supervise Exavier, they \u201cfailed to exercise that degree of skill and care that ordinarily well qualified and certified nursing assistants possess and exercise under similar circumstances in [the] locality or similar localities in which the *** treatment was rendered.\u201d Plaintiff served a notice of hearing upon Goforth and Alverez, announcing that on February 2, 2004, there would be a hearing on her three pending motions.\nOn January 30, 2004, Alverez appeared and filed a motion to dismiss based on the same grounds as Goforth. Both Goforth and Alverez filed memoranda opposing the motion to amend the complaint, arguing that (1) plaintiff failed to attach an affidavit in support of the professional-negligence allegations, as required by section 2 \u2014 622 of the Code (735 ILCS 5/2 \u2014 622 (West 2002)); (2) the statute of limitations on plaintiffs claims expired in July 2003 and the proposed new allegations of professional negligence did not relate back to plaintiffs timely filed allegations (see 735 ILCS 5/2 \u2014 616 (West 2002)); and (3) Illinois law does not recognize a cause of action for professional negligence based on supervision.\nOn February 2, 2004, the trial court held a hearing, which it described in its docket entry for that day as a \u201c[h]earing held on Motion to [rjeconsider.\u201d At the hearing\u2019s conclusion, the court noted that the pleadings Goforth and Alverez had filed on January 30, 2004, had not yet been entered in the court file. Accordingly, the court took the case under advisement so that it could consider those pleadings as well as the arguments of counsel it had just heard. Significantly, the transcript of that hearing reveals that neither the court nor either counsel ever mentioned plaintiffs motion for leave to file an amended complaint.\nOn March 15, 2004, the trial court entered a written order providing as follows:\n\u201c1. That the prior ruling of this court to dismiss the causes of action against [Goforth] will stand.\n2. That the cause of action previously filed herein against [Alverez] is hereby dismissed with prejudice on the basis of public[-] official immunity and sovereign immunity.\n3. Therefore, there is no just reason to delay enforcement of the [o]rder herein or appeal of these [o]rders pursuant to Supreme Court Rule 304(a).\u201d\nThe court\u2019s order did not address plaintiffs motion for leave to file an amended complaint.\nThis appeal followed.\nII. ANALYSIS\nA. Appellate Jurisdiction\nThis court has a duty to assess our subject-matter jurisdiction, regardless of whether the parties question it. In re Marriage of Betts, 159 Ill. App. 3d 327, 330, 511 N.E.2d 732, 734 (1987). For the following reasons, we conclude that we lack jurisdiction to review that portion of the trial court\u2019s March 15, 2004, order dismissing the counts against Goforth.\nAlthough the trial court dismissed the counts against Goforth, an order dismissing counts against a defendant is not final for purposes of appeal unless the order states that the litigation against that defendant is ended and the plaintiff may not replead. See Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 587, 802 N.E.2d 250, 256 (2003); Cole v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan, 325 Ill. App. 3d 1152, 1153, 759 N.E.2d 110, 112 (2001). Not even the addition of a Rule 304(a) finding will make the mere dismissal of counts against a defendant appealable. Cole, 325 Ill. App. 3d at 1156, 759 N.E.2d at 114. A Rule 304(a) finding presupposes \u201ca final judgment as to one or more but fewer than all of the parties or claims.\u201d 155 Ill. 2d R. 304(a). One cannot transform a nonfinal order into a final order by calling it final. Cole, 325 Ill. App. 3d at 1156, 759 N.E.2d at 114.\nIn its March 15, 2004, order, the trial court entered a Rule 304(a) finding and dismissed the counts against Alverez \u201cwith prejudice.\u201d Because \u201cwith prejudice\u201d meant that the court would not allow plaintiff to replead against Alverez (see O\u2019Hara v. State Farm Mutual Automobile Insurance Co., 137 Ill. App. 3d 131, 133, 484 N.E.2d 834, 836 (1985)), the dismissal of the counts against her was final (see Smith, 207 Ill. 2d at 588, 802 N.E.2d at 256) and \u2014 given the Rule 304(a) finding \u2014 appealable. Although plaintiff had moved for a Rule 304(a) finding to enable her to appeal the dismissal of the counts against Goforth, not Alverez, a court may enter a Rule 304(a) finding sua sponte (155 Ill. 2d R. 304(a)) and, therefore, is not limited by the motion for such a finding. The court found no just reason to delay the appeal of \u201cthese orders\u201d \u2014 meaning the earlier dismissal of the counts against Goforth (which was, nevertheless, not appealable) as well as the dismissal of the counts against Alverez (which, by virtue of the Rule 304(a) finding, was appealable). (Emphasis added.)\nB. Sovereign Immunity\n1. Formal Designation of Defendants Not Dispositive\nSovereign immunity is a common-law doctrine that bars lawsuits against the government unless the government consents to be sued. City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill. 2d 457, 461, 451 N.E.2d 874, 876 (1983). Article XIII, section 4, of the Illinois Constitution abolishes sovereign immunity except as the General Assembly provides by law. Ill. Const. 1970, art. XIII, \u00a7 4. The General Assembly reinstated sovereign immunity in the Court of Claims Act (705 ILCS 505/1 through 29 (West 2002)). Section 8(d) of the Act provides as follows: \u201cThe [C]ourt [of Claims] shall have exclusive jurisdiction to hear and determine *** [a]ll claims against the [s]tate for damages in cases sounding in tort ***.\u201d 705 ILCS 505/8(d) (West 2002).\nAs a practical matter, the state acts only through its employees. Therefore, a judgment against an employee in his or her individual capacity could effectively coerce the state and frustrate the purpose of sovereign immunity, which is to prevent litigants from controlling the government. See Shelbyville Restorium, 96 Ill. 2d at 461, 451 N.E.2d at 876. Having incurred liability once for a job-related decision and being subject to collateral estoppel, the governmental official might take that liability into account when making future job-related decisions. See People ex rel. Maciuba v. Cheston, 25 Ill. App. 3d 224, 226, 323 N.E.2d 40, 42 (1974). Public-official immunity protects state employees from such coercion, but that immunity belongs to the employee and is limited to discretionary decisions; the state has its own immunity. Lusietto v. Kingan, 107 Ill. App. 2d 239, 244, 246 N.E.2d 24, 27 (1969). To enforce sovereign immunity, courts have held that its applicability depends not on the formal designation of the defendants but on the nature of the state employee\u2019s conduct and the relief the plaintiff seeks (Hoffman v. Yack, 57 Ill. App. 3d 744, 748, 373 N.E.2d 486, 490 (1978); Maciuba, 25 Ill. App. 3d at 226, 323 N.E.2d at 41) or, as the supreme court has put it, \u201cthe issues involved and the relief sought\u201d (Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247 (1990)).\nIn Robb v. Sutton, 147 Ill. App. 3d 710, 716, 498 N.E.2d 267, 272 (1986), we amplified the \u201cissues\u201d into three criteria:\n\u201c[W]e believe that where, as here, there are (1) no allegations that an agent or employee of the [s]tate acted beyond the scope of his authority through wrongful acts [(scope of authority)]; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of [s]tate employment [(source of duty)]; and (3) where the complained-of actions involve matters ordinarily within that employee\u2019s normal and official functions of the [s]tate, then the cause of action is only nominally against the employee. As such, the claim involves actions which may be attributed to the [s]tate.\u201d\nThe Supreme Court of Illinois has adopted these three criteria (Jinkins v. Lee, 209 Ill. 2d 320, 330, 807 N.E.2d 411, 418 (2004)), which overlap to some extent, especially the first and third criteria. All three criteria must be present for sovereign' immunity to apply. Janes v. Albergo, 254 Ill. App. 3d 951, 958, 626 N.E.2d 1127, 1132 (1993). If these three criteria are not met, a court must consider the relief sought \u2014 that is, whether \u201c \u2018a judgment for the plaintiff could operate to control the actions of the [s]tate or subject it to liability.\u2019 \u201d (Emphasis omitted.) Jinkins, 209 Ill. 2d at 330, 807 N.E.2d at 418, quoting Currie v. Lao, 148 Ill. 2d 151, 158, 592 N.E.2d 977, 980 (1992).\n2. Sovereign-Immunity Criteria\na. Scope of Authority\nPlaintiff argues that Alverez committed her wrongful acts or omissions outside the scope of her authority as a state employee because she willfully and wantonly violated the Center\u2019s rules. We disagree.\nObviously, no state employee has authority to commit a tort. Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636, 643, 55 L. Ed. 890, 894, 31 S. Ct. 654, 656 (1911). However, if one could defeat sovereign immunity by simple reference to a tort, there would be no such thing as sovereign immunity to tort actions. Management Ass\u2019n of Illinois, Inc. v. Board of Regents of Northern Illinois University, 248 Ill. App. 3d 599, 616, 618 N.E.2d 694, 705 (1993). On its face, section 8(d) of the Act does not distinguish between tort claims premised on negligence and those premised on willful and wanton misconduct. See 705 ILCS 505/8(d) (West 2002); Rembis v. Board of Trustees of the University of Illinois, 249 Ill. App. 3d 1, 4, 618 N.E.2d 797, 799 (1993).\nBecause sovereign immunity presupposes the possibility of a legal wrong by a state employee (Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693, 93 L. Ed. 1628, 1637-38, 69 S. Ct. 1457, 1463 (1949)), and legal wrongs are, per se, unauthorized, the relevant question cannot be whether the employee had authority to commit the legal wrong. Instead, the question is whether the employee intended to perform some function within the scope of his or her authority when committing the legal wrong. See Campbell v. White, 207 Ill. App. 3d 541, 552, 566 N.E.2d 47, 54 (1991); Postich v. Henrichs, 267 Ill. App. 3d 236, 241, 641 N.E.2d 975, 979 (1994); Janes, 254 Ill. App. 3d at 959, 626 N.E.2d at 1132. By breaking workplace rules or performing their duties with willful and wanton indifference, employees do not necessarily act outside the scope of their state employment. Campbell, 207 Ill. App. 3d at 551, 566 N.E.2d at 53; Welch v. Illinois Supreme Court, 322 Ill. App. 3d 345, 353, 751 N.E.2d 1187, 1194 (2001); Janes, 254 Ill. App. 3d at 959, 626 N.E.2d at 1132.\nIn her original complaint, plaintiff alleged that it was Alverez\u2019s job to supervise Exavier. We must take that allegation to be true. See Albers v. Breen, 346 Ill. App. 3d 799, 803-04, 806 N.E.2d 667, 671 (2004). Viewed under the foregoing authority, Alverez\u2019s supervision of patients, even if grossly careless, still falls within the scope of her authority as an employee of the Center. See Janes, 254 Ill. App. 3d at 959, 626 N.E.2d at 1132. Thus, the first criterion for sovereign immunity exists.\nMoreover, because the complained-of actions involve matters ordinarily within Alverez\u2019s duties as a state employee, the third criterion for sovereign immunity also exists. See Robb, 147 Ill. App. 3d at 716, 498 N.E.2d at 272.\nb. Source of Duty\nPlaintiff next argues that sovereign immunity does not attach to Alverez because the source of Alverez\u2019s duty to Exavier was her status as a mental-health worker, not her status as a state employee. We disagree.\nSovereign immunity does not automatically attach as a result of a defendant\u2019s state employment. When a state employee is charged with breaching a duty imposed on her independently of her state employment, sovereign immunity will not attach, and a negligence claim may be maintained against her. Jinkins, 209 Ill. 2d at 333-34, 807 N.E.2d at 420. The independent source of duty cannot be the general common-law duty of reasonable care that everyone owes but must be a set of particular professional standards that one is expected to observe as a member of that profession. See Jinkins, 209 Ill. 2d at 334-35, 807 N.E.2d at 420-21.\nResolving all reasonable inferences in plaintiffs favor (see In re Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265, 268 (1997)), we must determine whether she has pleaded a source of duty independent of Alvarez\u2019s state employment. Although Mary Louise argues on appeal that Alverez\u2019s duty arose out of her status as a mental-health worker, she never alleged in her original complaint that Alverez was a member of a particular profession to which a set of professional standards applied. Nor did she allege that Alverez\u2019s duty arose from any source other than her state employment. Thus, the second criterion for sovereign immunity exists.\nAccordingly, because all three criteria for sovereign immunity exist, we conclude that the trial court did not err by dismissing Mary Louise\u2019s original complaint against Alverez on the ground of sovereign immunity.\nc. Plaintiffs Motion To File an Amended Complaint\nThe dissent addresses sovereign immunity by looking to plaintiffs proposed amended complaint. Specifically, it concludes that plaintiff sufficiently alleged that Alverez, as a certified nursing assistant, owed Exavier a duty arising from a set of standards independent of her employment at the Center. We limited our sovereign-immunity analysis to plaintiff\u2019s original complaint because, as discussed below, she abandoned her motion for leave to file an amended complaint.\nIn her brief, Alverez succinctly describes the history of plaintiffs motion for leave to file an amended complaint as follows:\n\u201cThough [plaintiff] filed a motion for leave to file an amended complaint in the circuit court, the motion was never ruled on ***, so the amended complaint was never filed and never became the operative complaint. [Plaintiff] never argued that the motion should be granted at the February 2, 2004[,] hearing; instead, she merely argued that the claims against Goforth in the original complaint should not have been dismissed and that the claims in the original complaint againfst] Alverez should not be dismissed. *** And, on appeal, [plaintiff] herself relies on the original complaint as the operative complaint in her statement of facts. *** [Plaintiff] does not argue on appeal that her motion for leave to amend should have been granted by the circuit court. *** Nor could she make such an argument because she abandoned the motion by filing a notice of appeal before ensuring that the motion was ruled on by the circuit court.\u201d\nIn her reply brief, plaintiff does not dispute Alverez\u2019s description of the proceedings regarding her motion for leave to file an amended complaint. Moreover, the record supports that description.\nIn Prather v. McGrady, 261 Ill. App. 3d 880, 885, 634 N.E.2d 299, 302-03 (1994), this court discussed abandonment of motions as follows:\n\u201cThe party filing a motion has the responsibility to bring it to the trial court\u2019s attention. [Citation.] Unless a motion is brought to the attention of the trial judge and the judge is requested to rule on it, the motion is not effectively made. [Citation.] Unless it appears otherwise, where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned.\u201d\nSee also Muirfield Village-Vernon Hills, LLC v. K. Reinke, Jr., & Co., 349 Ill. App. 3d 178, 187, 810 N.E.2d 235, 243 (2004) (\u201cThe party filing a motion has the responsibility to bring it to the trial court\u2019s attention and have it resolved. [Citation.] Unless there is some indication to the contrary, where no ruling has been made on a motion, we will presume that the motion was waived or abandoned\u201d); Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 512-13, 748 N.E.2d 222, 227 (2001) (\u201cUnless circumstances indicate otherwise, where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned\u201d); Majewski v. Von Bergan, 266 Ill. App. 3d 140, 144, 638 N.E.2d 1189, 1192 (1994) (\u201cIt is the responsibility of the party filing a motion to request the trial judge to rule on it. [Citation.] Where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned\u201d).\nBased on this record, the only conclusion that reasonably can be drawn is that plaintiff abandoned her motion for leave to file an amended complaint. If this court were to reverse (as the dissents suggests) on the basis that plaintiffs proposed amended complaint might be sufficient to state a cause of action, we would be doing so based upon an argument the trial court never heard. Over 15 years ago, in In re Marriage of Harper, 191 Ill. App. 3d 245, 246, 547 N.E.2d 574, 575 (1989), this court expressed our great reluctance to make such a ruling, and we are no less reluctant now. When a party has abandoned a motion by failing to ever call it to the trial court\u2019s attention for a ruling, we fail to see why we should address the motion for the first time on appeal.\nIII. CONCLUSION\nFor the reasons stated, we dismiss the appeal from the trial court\u2019s dismissal of the counts against Goforth and affirm that court\u2019s dismissal of the counts against Alverez.\nAppeal dismissed in part and affirmed in part.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE APPLETON,\nconcurring in part and dissenting in part:\nI concur with that portion of the majority opinion dealing with defendant Goforth and agree that appeal must be dismissed as being taken from a nonfinal order.\nI disagree with the majority as to defendant Alverez. Plaintiffs counsel filed a motion for leave to file a first-amended complaint with regard to defendant Alverez and noticed it for hearing at the same time as the motion to reconsider. The trial court never specifically ruled on this motion, despite the inclusion of the motion in the notice of hearing. The court effectively ruled on the motion, however, by dismissing the counts against Alverez \u201cwith prejudice.\u201d See Gouge v. Central Illinois Public Service Co., 195 Ill. App. 3d 1026, 1029, 552 N.E.2d 1304, 1306 (1990), rev\u2019d on other grounds, 144 Ill. 2d 535, 582 N.E.2d 108 (1991) (\u201cthe trial court dismissed plaintiffs\u2019 complaint with prejudice for failure to state a cause of action, thereby also denying plaintiffs\u2019 motion to amend their complaint\u201d (emphasis added)). If, as the majority says, \u201c \u2018with prejudice\u2019 meant that the court would not allow plaintiff to replead against Alverez\u201d (358 Ill. App. 3d at 559), I do not see the logic in requiring plaintiff to ask again (the first time was in her notice of hearing) for a ruling on her motion to amend \u2014 only to have the court explain to her the meaning of \u201cwith prejudice.\u201d I consider the notice itself, together with the ruling, sufficient to prevent application of the rule of abandonment announced by the majority.\nWe should remand this case with instructions to grant plaintiffs motion for leave to an amended complaint. Dismissing the counts against Alverez with prejudice, without specifically addressing the pending motion to amend, was an abuse of discretion and a miscarriage of justice. See Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1096, 620 N.E.2d 9, 11 (1993). The proposed amended complaint could survive a challenge premised on sovereign immunity because sovereign immunity will not bar the lawsuit if the duty the employee breached arose from a source independent of the state employment. See Jinkins, 209 Ill. 2d at 330, 807 N.E.2d at 418; Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980; Janes, 254 Ill. App. 3d at 960, 626 N.E.2d at 1133. In support of her motion to reconsider, plaintiff argued to the trial court that her original complaint sufficiently alleged professional negligence within the meaning of Jinkins, and, in the alternative, she requested leave to amend. In her filings below, she clearly made the relevant argument.\nCiting Jinkins, 209 Ill. 2d at 331, 807 N.E.2d at 418, plaintiff argues that the duties Alvarez owed Exavier were \u201cno different [from] the duties owed to a patient at a private mental health[ ]care facility. The relationship between *** Exavier *** and [defendants] as mental health[ ]care providers is no different [from] the relationship between private mental health[ ]care providers and their patients.\u201d In Jinkins, 209 Ill. 2d at 321, 807 N.E.2d at 412-13, the plaintiff, administratrix of George Jinkins\u2019s estate, sued two employees of a state mental-health facility for failing to properly diagnose and treat Jinkins\u2019s mental illness. Instead of certifying him as subject to involuntary commitment, they let him go home, where he committed suicide. Jinkins, 209 Ill. 2d at 321, 807 N.E.2d at 413. One defendant was a board-certified psychiatrist (Jinkins, 209 Ill. 2d at 324, 807 N.E.2d at 414), and the other was a licensed clinical professional counselor (Jinkins, 209 Ill. 2d at 325, 807 N.E.2d at 415). The defendants argued they would have owed no duty to Jinkins at all but for their state employment and, therefore, the source of their duty to Jinkins was their state employment.\nThe supreme court identified the non sequitur in that reasoning. The question was not whether the state employment provided the occasion for the defendants to incur a duty to Jinkins. The question was where the duty ultimately came from: the job or an independent source. Did the duty come from the job alone or from some set of standards outside the job? Jinkins, 209 Ill. 2d at 332-33, 807 N.E.2d at 419-20.\nFor three related reasons, the supreme court concluded that the defendants\u2019 duty in Jinkins came from a source independent of their state employment. First, they made a clinical decision that Jinkins did not qualify for involuntary commitment, and the standards for such a decision came not from their state employment but from their profession. Jinkins, 209 Ill. 2d at 334-35, 807 N.E.2d at 420-21. Second, the standards for involuntary commitment of patients were the same at private hospitals as at state hospitals (leading to the inference that those standards \u2014 and the duty they defined \u2014 came from a source independent of state employment). Jinkins, 209 Ill. 2d at 335-36, 807 N.E.2d at 421. Third, \u201cthe duties inherent in the doctor-patient relationship emanate[d] from the standards imposed by the profession itself,\u201d not from \u201cthe physician\u2019s employment status.\u201d Jinkins, 209 Ill. 2d at 336, 807 N.E.2d at 421.\nIn the proposed amended complaint, plaintiff alleges that Alverez was a certified nursing assistant and that by failing to properly supervise Exavier, Alverez \u201cfailed to exercise that degree of skill and care that ordinarily well qualified and certified nursing assistants possess and exercise under similar circumstances in [the] locality or similar localities in which the *** treatment was rendered.\u201d That allegation suggests that the professional standards of a certified nurse\u2019s aide have something to say about proper supervision of patients.\nOn the one hand, in her proposed amended complaint, plaintiff refers to Alverez\u2019s violation of workplace rules, as if to suggest that the duty Alverez breached was defined by her job at the Center. On the other hand, plaintiff refers to the \u201cdegree of skill and care that ordinarily well qualified and certified nursing assistants possess\u201d and Alverez\u2019s failure to exercise that skill and care. From that allegation, it would be reasonable to infer that certified nursing assistants have a set of professional standards external to their jobs and the duty that Alverez breached derived not merely from her job but also from that set of professional standards. See 77 Ill. Adm. Code \u00a7 390.680(b) (Conway Greene CD-ROM March 2002) (developmental disabilities aides must be registered on the nurse aide registry and must complete a developmental disabilities aide training program within 120 days after being hired); 77 Ill. Adm. Code \u00a7 395.310(f)(3) (Conway Greene CD-ROM March 2002) (required contents of developmental disabilities aide training program, including \u201c[i]njury[-]prevention techniques\u201d).\nI, therefore, dissent from the majority\u2019s decision to affirm that portion of the judgment ordering that the dismissal of the counts against Alverez be with prejudice. I would remand with directions to grant the motion for leave to file an amended complaint.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE APPLETON," } ], "attorneys": [ "Karen E. Wall (argued), of Spiros & Wall, P.C., of Danville, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Nadine J. Wichern and Brett E. Legner (argued), Assistant Attorneys General, of counsel), for appellees." ], "corrections": "", "head_matter": "MARY LOUISE JACKSON, Adm\u2019x of the Estate of Exavier Lee Jackson, Deceased, Plaintiff-Appellant, v. ARACOLI ALVEREZ, Indiv., et al., Defendants-Appellees.\nFourth District\nNo. 4\u201404\u20140238\nArgued February 23, 2005.\nOpinion filed June 10, 2005.\nRehearing denied August 1, 2005.\nAPPLETON, J., concurring in part and dissenting in part.\nKaren E. Wall (argued), of Spiros & Wall, P.C., of Danville, for appellant.\nLisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Nadine J. Wichern and Brett E. Legner (argued), Assistant Attorneys General, of counsel), for appellees." }, "file_name": "0555-01", "first_page_order": 573, "last_page_order": 584 }