author: Burke, J.

text:
    (Nos. 86-CC-2775, 86-CC-2975, 86-CC-3195, 86-CC-3252, 87-CC-0076, 87-CC-0310, 87-CC-0452 cons.
    St. Francis Hospital, St. Anthony Hospital, Holy Cross Hospital, Northwest Hospital, and University Of Illinois Hospital, Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 6, 1992.

    Richard M. Mednick and David D. Mikell, for Claimants.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Respondent has filed a motion asking that the Court permit these seven section 11—13 claims to be consolidated for the purpose of addressing Respondent’s motions that they be dismissed and for judgment on the pleadings. The five Claimant hospitals are represented by the same counsel in each of these matters. The State contends that the seven actions present common issues of law, and that none of the Claimants would be prejudiced by such consolidation.

The medical goods and services for which payments are here sought can be summarized and identified, by patient name and dates of service (DOS), as follows:

1. by St. Francis Hospital, in No. 86-CC-2775, commenced on March 24, 1986, the patient is Anthony Harmon, and assumed date of service (DOS) is December 9, 1984;

2. by St. Anthony Hospital, in No. 86-CC-3195, commenced on May 7,1986, the patient is Albert Jones, and the DOS are November 28 through December 8, 1984;

3. by Holy Cross Hospital, in No. 86-CC-3252, commenced on May 15, 1986, the patient is Andres Games, and the DOS are February 20 through 24,1984;

4. by Northwest Hospital, in No. 86-CC-2975, commenced on April 18, 1986, the patient is Akthar Khan, and the DOS are February 19 through March 15, 1983;

5. by Northwest Hospital, in No. 87-CC-0076, commenced on July 21, 1986, the patient is Manuel Lawson, and the DOS are August 17 through 24,1985;

6. by Northwest Hospital, in No. 87-CC-0310, commenced on August 22, 1986, the patient is Nancy Moody, and the DOS are December 11 through 29,1984; and

7. by University of Illinois Hospital, in No. 87-CC-0452, commenced on September 17,1986, the patient is Eleanor Cleaver, and the DOS are November 21, 1984, through April 4,1985.

Most of these vendor-payment actions were initially filed as lapsed-appropriation matters, contrary to our holding in Canlas v. State (1987), 39 Ill. Ct. Cl. 150; and certain of them have since been amended by presentation on medical-service vendor complaint forms and related bills of particulars, at the suggestion of the Illinois Department of Public Aid (IDPA). In each instance, the complaint and its attached exhibits lack a specific allegation that the Claimant’s charges for the subject services had been submitted to IDPA, on an invoice form as prescribed by the Department pursuant to IDPA rule 140.20 (see subsections (a) and (b) of said rule, at 89 Ill. Admin. Code sec. 140.20, effective March 4, 1981), within the specified period following rendition of such services as required by subsection (c) of said IDPA rule.

Respondent has moved to dismiss each complaint and underlying cause as substantially insufficient in law and as failing to state a cause of action, and for judgment on the pleadings in each of these claims, pursuant to section 790.90 of the Court of Claims Regulations and section 2—615 of the Illinois Civil Practice Law (Ill. Rev. Stat., ch. 110, par. 2—615). Due notice thereof having been given, the Court grants Respondent’s motion to dismiss as to each claim, based upon the findings set out herein.

The rules of this Court require that a claimant “must set forth fully” in its complaint a number of specified allegations, including a statement

“[w]hether the claim has been previously presented to any State department * * * and if so presented: (A) claimant shall state when and to whom; [and] (B) claimant shall state any action taken on behalf of 0 ® “ the appropriate State agency in connection with said claim.” (Section 790.50(a) of the Court of Claims Regulations, codified at 74 Ill. Admin. Code sec. 790.50(a); see Ill. Rev. Stat., ch. 37, par. 439.11.)

Serving a related purpose is our Court rule requirement that

“the claimant shall before seeking final determination of his claim before the Court of Claims exhaust all other remedies, whether administrative, legal or equitable.” (Section 790.60 of the Court of Claims Regulations, 74 Ill. Admin. Code sec. 790.60; see Ill. Rev. Stat., ch. 37, par. 439.24—5)

We conclude that, in adopting these requirements, the Court and the General Assembly anticipated that many Court claims would result from claimants’ prior, unsuccessful efforts to obtain payment from departments of State government, for whatever reason. Requiring claimants specifically to allege such prior efforts, and the responses of Respondent’s departments, serves to encourage the parties to define each claim’s subject matter and focus upon its merits; to facilitate Respondent’s investigation; and to enable the Court to assess the bases for a department’s past refusal or failure to pay the claim.

These pleading requirements are especially pertinent when applied to complaints such as these, filed pursuant to section 11—13 of the Public Aid Code (Ill. Rev. Stat., ch. 23), by vendors of medical services furnished to persons alleged to be public aid recipients. (United Cab Driveurself, Inc. v. State (1987), 39 Ill. Ct. Cl. 91; see orders of this Court filed in Barnes Hospital v. State (1982), 35 Ill. Ct. Cl. 434; Rock Island Franciscan Hospital v. State (1988), 36 Ill. Ct. Cl. 377; and Convalescent Home of First Church of Deliverance v. State (1985), 41 Ill. Ct. Cl. 39.) A vendor’s section 790.50(a) obligation, specifically to plead its prior invoices submitted to IDPA and the Department’s voucher-responses, is directly related to the requirement in IDPA Rule 140.20, that such invoices be timely submitted to and received by IDPA.

In a series of decisions, this Court has given recognition to IDPA’s regulatory requirement that vendors’ initial invoices, charging for goods and services supplied to recipients, must be received by the Department within six months following the date services were rendered or goods supplied, in order for Respondent to be liable for paying such charges. (Weissman v. State (1977), 31 Ill. Ct. Cl. 506; Rush Anesthesiology Group v. State (1983), 35 Ill. Ct. Cl. 851; St. Joseph’s Hospital v. State (1984), 37 Ill. Ct. Cl. 340; St. Anthony Hospital v. State (1984), 37 Ill. Ct. Cl. 342; Mercy Hospital v. State (1985), 38 Ill. Ct. Cl. 388, 389; Bethesda Hospital v. State (1986), 39 Ill. Ct. Cl. 299; and Louis A. Weiss Memorial Hospital v. State (1986), 39 Ill. Ct. Cl. 299; Riverside Medical Center v. State (1986), 39 Ill. Ct. Cl. 301; St. Bernard Hospital v. State (1986), 39 Ill. Ct. Cl. 300; Rock Island Franciscan Hospital v. State (1987), 39 Ill. Ct. Cl. 100; Canlas v. State (1987), 39 Ill. Ct. Cl. 150; Krakora v. State (1987), 40 Ill. Ct. Cl. 233; Simon v. State (1987), 40 Ill. Ct. Cl. 246; Pinckneyville Medical Group v. State (1988), 41 Ill. Ct. Cl. 176; and Passavant Area Hospital v. State (1988), 41 Ill. Ct. Cl. 222.) We have also considered exceptions to the six-month invoicing deadline, available in certain circumstances under subsection (c) of IDPA Rule 140.20. Rock Island Franciscan Hospital v. State (1984), 37 Ill. Ct. Cl. 343; Franciscan Medical Center v. State (1988), 40 Ill. Ct. Cl. 274; Riverside Medical Center v. State (1988), 40 Ill. Ct. Cl. 275; and Pilapil v. State (1988), 41 Ill. Ct. Cl. 217, 223.

A comparison of the above-referenced pleading requirements, with the averments made in these seven complaints, discloses the deficiencies in Claimants’ claims. While the complaints make generalized reference either to payment demands or to invoicing activity — invoices to IDPA and IDPA’s responses — such allegations refer the reader to the bill of particulars or other exhibits for details and a specific statement of such activity. Yet, none of Claimants’ exhibits contain any suggestion that charges for their patients’ services had been submitted to IDPA, on Department-prescribed invoice forms, within the time period established by subsection (c) of IDPA rule 140.20. As a result, those averments in each complaint purporting to show that the subject charges had been invoiced to IDPA are totally negated by the absence of any supporting “detail” in the complaints’ attached exhibits. Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 451; and Hardy v. Montgomery Ward & Co. (1971), 131 Ill. App. 2d 1038, 1043-44.

Each complaint is thus lacking an element essential to section 11—13, vendor-payment actions, in that each lacks any allegation that IDPA had received the Claimant’s invoice of charges for the patient’s services within the prescribed time “as limited by [IDPA’s] regulations” (Ill. Rev. Stat., ch. 23, par. 11—13); and no Claimant affirmatively alleges that any of IDPA rule 140.20 (c) exceptions applies to its claim. As we have held:

“The vendor must have invoiced his services to the department, on IDPA invoice-forms which have been properly prepared by the vendor and timely submitted to IDPA, in accordance with department Handbook instructions and regulatory requirements (IDPA Rule 140.20, Id.).” (Canlas v. State (1987), 39 Ill. Ct. Cl. 150, 152;

see Krakora v. State and Simon v. State, supra; United Cab Driveurself, Inc. v. State (1987), 39 Ill. Ct. Cl. 91, 92-93.) This prompt-invoicing requirement is supported also by the fact that each of the institutional vendors participating in IDPA’s program, including these five hospitals, had contracted “to abide by the Department’s properly promulgated Rules and [vendor] Handbook” requirements, necessarily including IDPA rule 140.20 and, here, the corresponding provisions in IDPA’s Handbook For Hospitals, ch. 100, topic 141. See Rock Island Franciscan Hospital v. State (1987), 39 Ill. Ct. Cl. 100, 102.

Claimants’ actions are therefore subject to dismissal under Ill. Rev. Stat., ch. 110, par. 2—615(a), as failing to state a cause of action, there being no allegation in any of these complaints of compliance with rule 140.20(c)’s deadline for invoice submission to IDPA.

Further, these pleadings present no issue of material fact in respect to the rule 140.20(c) deadline element, given Claimants’ failures to allege that their charges for these services had been invoiced to IDPA within six months following their rendition. This pleading deficiency subjects these actions to Respondent’s motion for judgment on the pleadings, as provided in section 2—615(e) of the Civil Practice Law. Walker v. State Board of Elections (1977), 65 Ill. 2d 543; Christensen v. Wick Building Systems (1978), 64 Ill. App. 3d 908.

In United Cab Driveurself, Inc. v. State, we approved the use of the medical-vendor complaint forms and related instructions (available from the deputy clerk of this Court) as a guide to claimants

“in presenting their claims in accordance with Court rules and with IDPA’s own regulations and requirements for vendor invoicing.” (39 Ill. Ct. Cl. 91, 94.)

When, as here, Claimants fail to aver a single, specific instance of invoicing activity as having occurred prior to the regulatory deadline, this Court concludes that the State has no liability for payment of services which were not so invoiced. Subsection (e) of IDPA rule 140.20 supports this conclusion.

In addition, none of the complaints’ allegations were verified under oath by Claimants’ attorney, or other person claiming to have knowledge of the matters stated. Instead, in each instance, the name of the Claimant hospital was written or typed on the complaint, in lieu of a verifier’s signature. This is not an acceptable method for complying with sections 790.40(a) and 790.50(a) of the Court of Claims Regulations or with applicable statutes (Ill. Rev. Stat., ch. 37, par. 439.11, ch. 110, pars. 1-109, 2—607), requiring proper verification of statements of fact alleged in complaints filed with this Court.

It is hereby ordered and adjudged that Respondent’s motion to dismiss is granted as to each of the seven captioned actions, the Claimants having failed to allege that they had taken any affirmative action to invoice their charges for these services to IDPA prior to IDPA rule 140.20(c)’s deadline. Their complaints are thus substantially insufficient in law, and fail to state a cause of action on which relief may be granted.

That each Claimant is hereby granted leave to petition to amend these claims, or any of them, within 30 days from the filing date of this opinion, if it is able to allege verifiable facts establishing that IDPA had received its invoice charging for any of the services identified in its complaint(s) herein, within six months following the date(s) on which it had rendered said services.

That, if any Claimant fails so to amend its claim or claims within the time herein specified, then upon the expiration of said time period judgment shall thereupon be entered against each such Claimant on each claim not so amended, and for Respondent, as to all issues presented in said claim or claims not so amended, together with the underlying causes of action, in which event said Claimant shall take nothing by said action or actions; and the deputy clerk of this Court shall, without further direction from the Court, thereupon record each such entry of judgment on the Court’s records pertaining to these causes.


source: Caselaw Access Project

author: Patchett, J. Patchett, J. Montana, C.J.

license: Public Domain

text:
    (No. 86-CC-2925
    Gary McCord, Claimant, v. The State of Illinois, Respondent.

      Order filed July 21, 1988.

      Opinion filed September 10, 1990.

      Order filed February 3, 1992.

    Reese & Reese, for Claimant.
    Neil F. Hartigan, Attorney General (Erin M. O’Connell, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause coming on to be heard upon the motion of Respondent, Claimant having received due notice, and the Court being fully advised in the premises;

The Court hereby finds that Claimant failed to file notice as required by section 22—1 of the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.22—1); that section 22—2 of the Act mandates the dismissal of any claim wherein Claimant has failed to file proper notice as required by section 22—1 (Ill. Rev. Stat. 1985, ch. 37, par. 439.22—2).

It is hereby ordered that Respondent’s motion to dismiss be, and is hereby granted, and that Claimant’s complaint is hereby dismissed with prejudice.

OPINION

Patchett, J.

This cause comes on for hearing upon the motion to dismiss filed by the Respondent. The Claimant filed his original complaint on April 9, 1986. The complaint stated a claim in tort because of events that took place on or about April 9,1984. Attached to the complaint was a copy of the notice of intent to commence action in the Court of Claims filed on April 4, 1985. The notice that was attached to the complaint was a copy of the notice received by the Court of Claims. Subsequent to the filing of the complaint, certain discovery was filed by the Petitioner. The Respondent answered the discovery on August 5,1987.

On March 3,1988, the Respondent filed a motion to dismiss. The motion to dismiss was based on the failure of the Claimant to file a notice of intent to pursue a claim with the Attorney General. As we have consistently ruled, section 22—1 of the Court of Claims Act requires strict compliance. The Claimant must file a notice of intent to sue with the office of the Attorney General and the clerk of the Court of Claims within one year following the accrual of a cause of action for personal injury. Failure to comply with this notice provision requires a dismissal of the claim with prejudice.

The motion to dismiss was filed by the Respondent on March 3,1988. On July 21,1988, this Court entered an order dismissing the cause, with prejudice. The Claimant had not filed any response to the motion to dismiss during the interim period.

On August 15, 1988, the Claimant did file a motion for reconsideration. Attached to the motion for reconsideration was a copy of the notice of intent to commence action in the Court of Claims previously referred to. A copy of that notice was previously attached to the original complaint filed in this Court. Also attached to the motion to reconsider was an affidavit from Gregory Barrett, the attorney who was representing the Claimant at the time the original notices were filed and served.

A close examination of the original notice of intent filed with the Court of Claims clearly indicates that the Claimant was aware that the Attorney General also had to be served with a notice of intent. The notice of intent to commence action in the Court of Claims, marked “Exhibit A” and attached to the complaint, and to the motion for reconsideration, clearly delineates the proper address for the Attorney General, as well as for the clerk of the Court of Claims. The basis of the motion to dismiss was that the Attorney General’s office stated that they had never received nor did they have in their files a copy of a notice of intent to commence a claim.

The affidavit filed by attorney Barrett states that notices of intent to sue were mailed on April 3, 1985, to the Attorney General and the clerk of the Court of Claims. Attorney Barrett also stated that certified return receipts were received back from the United States post office indicating receipt of the notices of intent by the clerk of the Court of Claims, and also a receipt indicating service at the Attorney General’s office in Springfield, Illinois. However, the Claimant is unable to produce those receipts at the present time.

The Respondent urges this Court to deny reconsideration and let the order dismissing this claim with prejudice stand. In so doing, the Respondent cites several cases previously decided by this Court which hold that the compliance with the notice requirements as set forth in section 22—1 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.22—1) are conditions precedent to filing a complaint against the State of Illinois for personal injury. Failure to comply with the notice requirements mandates the dismissal of a claim with prejudice. The Respondent has cited the cases of Palmer v. State (1964), 25 Ill. Ct. Cl. 1; Munch v. State (1966), 25 Ill. Ct. Cl. 313; Byrne v. State (1980), 34 Ill. Ct. Cl. 248; and McGee v. State (1985), 38 Ill. Ct. Cl. 138. Respondent has correctly stated the law, and we reaffirm those prior decisions.

However, the Respondent also cites the case of Barton v. State (1984), 36 Ill. Ct. Cl. 338, for authority that the present claim should be dismissed with prejudice. A close reading of the Barton case shows several facts which are distinguishable from the case at hand. In Barton, like the case at bar, there were affidavits by both the Claimant’s attorney and the Attorney General’s office as to factual matters. In the present case, the Respondent has filed an affidavit by one of its attorneys. However, that affidavit simply states that notices are filed in the notice section of the Attorney General’s office when received. The affidavit also states that the attorney in question, a highly experienced assistant Attorney General, Suzanne Schmitz, has searched the notice section of their files and can find no notice submitted by the Claimant. The affidavit goes on to note that there are no other places where notices received in the office are stored.

However, the affidavit of the Attorney General does not in any way counter the claims by the attorney for the Claimant as to the actual mailing of the required notice to the Attorney General’s office. The Attorney General urges us to find that receipt of the notice is required for compliance with the notice requirement.

In the Barton case, the claimant had filed an affidavit stating that the doors to. the office were closed and locked at 4:25 p.m. when he attempted personal service of the notice. A counter-affidavit was filed indicating that the doors were open until 5:00 p.m. This is not the same kind of dispute before us. In the present situation, we have uncontradicted evidence by affidavit that the Claimant knew of the notice requirement, and Claimant complied with it by mailing the required notice. That leaves the possibility that either the United States mail failed to deliver the required notice, or that the Attorney General’s office misplaced it. We do not agree that actual receipt of the notice is required for compliance with the notice requirement. Both Illinois Supreme Court Rule 12 and Illinois Revised Statutes, chapter 1, paragraph 1026 would apply.

“Illinois Supreme Court Rule 12: Proof of Service in the Trial and Reviewing Courts — Effective Date of Service by Mail
(a) Filing. When service of a paper is required, proof of service shall be filed with the clerk.
(b) Manner of Proof. Service is proved:
(1) by written acknowledgement signed by the person served;
(2) in case of service by personal delivery, by certificate of the attorney, or affidavit of a person, other than an attorney, who made delivery; or
(3) in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that proper postage was prepaid.
(c) Effective Date of Service by Mail. Service by mail is complete four days after mailing.
Amended June 25,1971, eff. July 1,1971; amended eff. July 1,1975.”
“Illinois Revised Statutes, Chapter 1, Section 1026:
1026. Filing or payment by mail, effective dates — Duplicate filing or payment after notification of mail' not received — Registered mail, certified mail, and certificate of mailing as evidence
1.25. Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with, and any payment of any kind or description required or authorized to be paid to, the State or any political subdivision thereof, by the laws of this State:
(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it;
(2) if mailed but not received by the State or political subdivision, or if received but without a cancellation mark or with the cancellation mark illegible or erroneous, shall be deemed filed with or received by the State or political subdivision to which it was required or authorized to be directed on the date it was mailed, but only if the sender establishes by competent evidence that the writing or payment was deposited, properly addressed, in the United States mail on or before the date on which it was required or authorized to be filed or was due. In cases in which the writing or payment was mailed but not received, the sender must also file with, or pay to, the State or political subdivision to which the writing or payment was required or authorized to be directed, a duplicate writing or payment within 30 days after written notification is given to the person claiming to have sent the writing or payment, by the State or political subdivision to which the writing or payment was required or authorized to be sent, of its nonreceipt of the writing or payment.
If a writing or payment is sent by United States registered mail, certified mail or certificate of mailing, a record authenticated by the United States Post Office of such registration, certification or certificate shall be considered competent evidence that the writing or payment was mailed. The date of registration, certification or certificate shall be deemed the postmarked date.
Added by P.A. 76-1111, §1, eff. Aug. 28,1969.”

Clearly, the Claimant attempted to do everything properly. Therefore, we hereby reverse our earlier order and vacate the order of dismissal. We remand this claim to the commissioner for further proceedings.

ORDER

Montana, C.J.

This matter coming before the Court on the Petitioner’s motion for voluntary dismissal, the Court being fully advised in the premises, orders, adjudges and decrees as follows:

1. Petitioner’s motion to voluntarily dismiss his claim against the State is hereby granted, and plaintiffs complaint is dismissed without prejudice.


author: Burke, J. Burke, J.

text:
    (No. 86-CC-3006
    Gregory Ray, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 12, 1991.

      Order on motion for rehearing filed January 30, 1992.

    Gregory Ray, pro se, for Claimant.
    Roland W. Burris, Attorney General (Darrell Williamson and Carol Barlow, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against Respondent, State of Illinois, for inadequate and negligent medical treatment to the small finger on his right hand. Claimant seeks compensation for permanent injury, disability, bodily pain and mental anguish, which he claims he suffered and continues to suffer, by virtue of the fault of Respondent.

On December 25, 1985, Claimant was involved in an altercation in the kitchen at Menard Penitentiary. Claimant threw a punch at his antagonist and broke the small finger on his right hand.

On June 24, 1988, Claimant testified that after he sustained injury, he went to the hospital because he was concerned about his injured knuckle. The nurse was unable to treat him because the X-ray machine was inoperable. Four to five days later, the finger was Xrayed and Dr. Zimmen (phonetic) told Claimant that his knuckle was dislocated. Later, Claimant stated that the doctor told him that his finger was fractured. Claimant contended that certain medical records submitted by the State as part of the departmental report were inaccurate and that a medical record purporting to show Claimant’s finger was X-rayed on December 26, 1985, with the determination that there was a fracture of the neck and the fifth right metacarpal bone with posterior angulation at the fracture site was inaccurate. Claimant stated that his finger healed in an improper manner and Respondent’s medical personnel determined that the position of the bone fragment could not be improved due to instability at the fracture site.

Respondent’s departmental reports contradicted portions of Claimant’s testimony as to the time a determination was made regarding Respondent’s broken finger. Claimant produced no expert medical proof in respect to his claim of negligent treatment by Respondent. No proof was adduced as to applicable standards of care in relation to the care and treatment of Claimant’s injury. Despite evidence that Claimant’s small finger on his right hand healed incorrectly, no proof was offered to establish medical malpractice. Claimant failed to establish the standard of care and deviation from the standard.

Wherefore it is hereby ordered that this claim is denied.

ORDER ON MOTION FOR REHEARING

Burke, J.

This cause coming to be heard upon the Claimant’s request for review and the Court being fully advised in the premises, wherefore, pursuant to section 790.220 of the Court of Claims Regulations states that the request for rehearing “shall state briefly the points supposed to have been overlooked or misapprehended by the Court.” That the request filed herein does not do this.

It is hereby ordered that Claimant’s request for review is hereby denied.


author: Montana, C.J.

text:
    (No. 86-CC-3295
    Graham, O’Shea & Hyde, Claimant, v. The State of Illinois, Respondent.

      Order filed May 14, 1992.

    Graham & Graham, pro se, for Claimant.
    Roland W. Burris, Attorney General (Verne E. Dentino, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

Claimant, Graham, O’Shea and Hyde, brought this claim on May 21, 1986, seeking $206,543.00 in damages alleging breach of contract with the Respondent’s Capital Development Board (CDB). The case was placed on general continuance shortly thereafter for three years due to collateral litigation in another forum. After discovery was conducted and pretrial conferences were held, the parties entered into and filed a joint stipulation for settlement. The case is now before us for approval of the settlement.

In pertinent part, the stipulation reads as follows:

“1. This claim arises from on or about November 6, 1974, wherein claimant Graham, O’Shea and Hyde entered into a contract with Capital Development Board known as Project No. 768-155-001 for services.
2. The parties have investigated this claim and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim in the interest of peace and economy.
3. Both parties agree that an award of $25,000.00 is both fair and reasonable for settlement of this contract claim.
4. Claimant agrees to accept, and respondent agrees to pay claimant $25,000.00 in full and final satisfaction of this claim and any other claims against respondent arising from the events which gave rise to this claim.
5. The parties hereby agree to waive hearing the taking of evidence, and the submission of briefs.”

This Court is not bound by such stipulations and it cannot acquiesce in approving this one for to do so would be to grant an award in excess of the funds appropriated for the project. The record indicates that the final appropriation for this project was in the fiscal year 1982 line item No. 141-511101-4470-63-75. Only $5,908.19 lapsed in that account.

In breach of contract claims, whether the claims are before us on their merits or for approval of a settlement, it is this Court’s policy to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. To do otherwise, i.e., to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to making a deficiency appropriation. The appropriation of State funds for governmental operations is the constitutional prerogative of the General Assembly. It is this Court’s duty to uphold that process and advise the General Assembly. (La Salle National Bank v. State (1991), 43 Ill. Ct. Cl. 266; Thorlief Larsen & Son, Inc. v. State (1990), 43 Ill. Ct. Cl. 334; Bojko v. State (1988, 1989), 41 Ill. Ct. Cl. 202; J. F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) In the case at bar, an insufficient amount of money lapsed to cover the entire settlement.

We are constrained to disapprove that amount of the settlement which is in excess of the lapsed appropriations. Although this Court cannot make the agreed award, the General Assembly may. For the purpose of possible consideration of this claim by the General Assembly, we find that but for the insufficiency of lapsed funds we would have approved the settlement and awarded the $25,000.00 which the parties have stipulated that, after having investigated the case and having knowledge of the facts and law, is a fair and reasonable sum.

Wherefore, it is hereby ordered that the Claimant be, and hereby is, awarded $5,908.19. If the General Assembly does consider this matter and acts to approve additional compensation, an additional sum of $19,091.81 is the Court’s finding as to an appropriate amount.


author: Jann, J.

text:
    (No. 86-CC-3344
    Stephen Lehman, Individually and as Father and Next Friend of Matthew Lehman, and Deborah Lehman, Claimants, v. The State of Illinois, Respondent.

      Order filed October 21, 1991.

    Ora J. Baer II, for Claimants.
    Roland W. Burris, Attorney General (Claire Taylor, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

This cause coming before the Court on Respondent’s motion to dismiss, due notice having been given, and the Court being fully advised in the premises finds that the Claimants herein allege certain torts arising from the hospitalization of their minor child, Matthew Lehman, against the wishes of his parents, which matter was acted upon by the Illinois Department of Children and Family Services through its employee Kathy McDonald, having received a report concerning the child’s leg injury from Dr. Frank Stephens. Further that these matters were previously before the circuit court of Champaign County and the appellate court of the fourth district of Illinois in a proceeding against Dr. Frank Stephens and Kathy McDonald, among others. The said proceedings were ultimately dismissed by the court. Certainly the issues previously decided, namely that Dr. Stephens, upon whose report the Illinois Department of Children and Family Services relied, was entitled to statutory immunity under Ill. Rev. Stat., ch. 23, pars. 2055, 2059, and that the court had no jurisdiction over any claim against DCFS employee Kathy McDonald (because it was a respondeat superior claim against the State) are now res judicata. Further, it is absolutely clear that both Dr. Stephens and Kathy McDonald are squarely encompassed by the statutory immunity conferred by the Abused and Neglected Child Reporting Act. Noting the absence of any allegations of malice on the part of the State’s employee, and the appellate court’s finding that there was none, she is entitled to public official immunity. (Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249; Mid America Trust Co. v. Moffatt (1987), 158 Ill. App. 3d 372.) It is proper and in keeping with our own prior decisions to extend the immunity of the employee to her employer, the State of Illinois. (Hunt v. State (1979), 32 Ill. Ct. Cl. 443; Flaim v. State (1975), 30 Ill. Ct. Cl. 635.) To decline to do so would frustrate public policies and legislative purposes of the Abused and Neglected Child Reporting Act, because liability could only be founded upon an error in judgment in making a discretionary decision in good faith. The immunity of the State is an absolute bar to the instant cause, and there is no cause of action stated by Claimants upon which relief could be granted. It is therefore ordered that this cause is dismissed with prejudice.


author: Raucci, J.

text:
    (No. 87-CC-0012
    Jonathan Henderson, Claimant, v. The State of Illinois, Respondent.

      Order filed December 2, 1991.

    Robert J. Cooney & Associates, for Claimant.
    Roland W. Burris, Attorney General (Jan Schafferick, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming on to be heard on Respondent’s motion to dismiss, the Court having considered the memoranda and oral arguments of the parties, and being fully advised in the premises, finds that the issue before the Court is whether the Respondent can delegate its duty to maintain State roadways to units of local government, and, consequently, suffer no liability if a unit of local government is negligent in its maintenance.

Illinois Revised Statutes 1989, ch. 121, par. 4—405 provides in pertinent part:

“The Department shall maintain all highways in the State highway system either with its own forces or pursuant to an agreement or contract entered into pursuant to this Code.”

Paragraph 4 — 409 provides:

“The Department may enter into a written contract with any other highway authority for the jurisdiction, maintenance 0 0 ° of any highway or portion thereof.”

Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 890, 443 N.E.2d 214, 219, and Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 1026, 524 N.E.2d 615, 621, cited by Claimant, are not apposite to this case. Those cases hold that the Illinois Tollway Authority could be held liable for negligence even if it had contracted with others to perform maintenance or police duties. Statutory language similar to sections 4—405 and 4—409, however, does not exist.

We are not unmindful that since the 1959 enactment of these statutory provisions all of our decisions have upheld dismissal of claims similar to the instant one. In the absence of legislative disapproval of our interpretation, we are constrained to continue to adhere to it.

It is ordered, adjudged and decreed that the Respondent’s motion to dismiss is granted, and this claim is dismissed and forever barred.


text:
    (No. 87-CC-0538
    E. R. Tennant, O.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 28, 1991.

    E. R. Tennant, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

In this section 11—13 (Ill. Rev. Stat., ch. 23, par. 11—13) action, Dr. Tennant is seeking vendor-payments under the Medical Assistance Program (MAP), administered by the Illinois Department of Public Aid (IDPA), for optometric goods and services, rendered to three patients.

IDPA’s investigation of this Court claim has been hindered by Claimant Tennant’s failure to amend his lapsed-appropriation complaint, in order to present his allegations in support of this claim on a medical-service vendor complaint form, although requested by IDPA to do so. The Court concludes that confusion as to the MAP-eligibility of Claimant’s patients and the identities of his services which are the intended subject of this claim could have been avoided if Claimant had made use of the complaint form designed for presentation of such actions. See United Cab Driveurself, Inc. v. State (1987), 39 Ill. Ct. Cl. 91; and St. Johns Hospital v. State (1988), 41 Ill. Ct. Cl. 217.

The first of Claimant’s accounts is for undisclosed services, rendered on either April 12, 1985, or on or before June 27, 1986, to patient Gonzalez, a foster-care ward of the Illinois Department of Children and Family Services (DCFS). For reasons explained in our May 24, 1990, opinion in Gupta v. State (1990), 42 Ill. Ct. Cl. 269, Claimant’s complaint properly named IDPA as the responding agency, concerning his services to Gonzalez. The second account concerns undisclosed services, rendered on either March 20,1986, or on or before June 27,1986, to patient Rezmer, also an IDPA recipient.

No Disclosure Of Patient’s MAP-Eligibility. Claimant’s third account relates to services, also undisclosed, rendered on or before June 27, 1986, to patient Mr. Terrie Ott. IDPA’s report notes Claimant’s failure to offer any showing that patient Ott is or had ever been an IDPA recipient. Such failure is to be contrasted with our requirement

“that in every vendor-payment action brought before this Court, it is the vendor’s burden initially to allege in its complaint documented proof that IDPA had determined its patient to be a recipient, with respect to the date or dates on which the vendor furnished the goods or services which are the subject of its proposed claim ° ° Mercy Hospital & Medical Center v. State (1988), 40 Ill. Ct. Cl. 269.

The Department advises it finds no record (given the limited information which Claimant supplied) of Ott’s MAP eligibility.

No Disclosure Of Service-Identification, Service-Date(s), MAP-Coverage Or Compliance With Prior-Approval Requirements. As required by IDPA’s MAP Handbook For Optometrists, optometrists are to identify their optical goods and services provided to recipients by use of specific, five-digit procedure codes as listed in the Handbook, and the date on which each optical product was dispensed or service rendered, when invoicing their charges for same to IDPA. This encoded identification of goods and services is similar to that required in invoices submitted by hospitals and physicians. (University of Chicago Professional Services Offices v. State (1990), 42 Ill. Ct. Cl. 277, and decisions therein cited.) Certain optical goods and services are “MAP-covered” and thus eligible for payment by IDPA, while others are not; the scope of MAP coverage is explained in IDPA Rules 140.416 and 140.417 (89 Ill. Admin. Code §§140.416, 140.417), and in Handbook Topics 0—220, et seq. Similarly, certain goods or services may be “covered” (and thus eligible for MAP payment) only if the optometrist has first obtained the IDPA professional staff’s prior approval of a specified product or service (in response to a DPA form 1409 request), in light of a particular recipient’s established need therefor. (IDPA Rule 140.417(e), and Handbook Topics 0—230, et seq.; and see generally Canlas v. State (1987), 39 Ill. Ct. Cl. 150, 152; Krakora v. State (1987), 40 Ill. Ct. Cl. 233, 235; Simon v. State (1987), 40 Ill. Ct. Cl. 246, 248-49.) Here, Claimant’s failure to disclose, by procedure code(s), the goods dispensed or services rendered to Gonzalez and Rezmer makes it impossible for IDPA to determine whether such goods or services were “covered” at all or covered if previously approved by the Department for these recipients. Proper investigation requires that Claimant specifically identify the services rendered and the goods supplied, and the dates thereof. (United Cab Driveurself, Inc. v. State, supra; Convalescent Home Of The First Church Of Deliverance v. State (1988), 41 Ill. Ct. Cl. 39.) This he has not done.

No Allegation Of Prior Invoicing Activity. The undisclosed data as to services and dates, discussed above, would appropriately have been reported by Claimant, if he had timely prepared the requisite invoices (DPA forms 1443 and 2803) and submitted them for IDPA’s adjudication, in accordance with the requirements of IDPA Rule 140.20 (89 Ill. Admin. Code §140.20) and Federal Medicaid regulation (42 C.F.R. §447.45). Yet, as in University of Chicago Professional Services Offices v. State, supra, Claimant does not allege here that he had ever submitted his charges on DPA 1443 and DPA 2803 invoices to IDPA for any of these services.

As Claimant filed this Court action on October 3, 1986, it seems that, as of said date, sufficient time may yet have been available (depending upon the actual dates of these services) for him to invoice these service-charges to IDPA, within the time permitted by said regulations. If sufficient time in fact remained, then Claimant’s commencement of the instant action served to protect his cause, in respect to these services, from being barred by the statute of limitations (as discussed in our May 5, 1982, order in Rock Island Franciscan Hospital v. State (1982), 36 Ill. Ct. Cl. 377). Yet, the filing of this complaint does not relieve Claimant of alleging therein facts in support of each element of a section 11—13 cause of action. It remained Claimant’s obligation to invoice his specifically-identified goods and services to IDPA, in the manner and within the time required by Rule 140.20 and 42 C.F.R. §447.45. (Ryan v. State (1990), 43 Ill. Ct. Cl. 213.) His failure to do so cannot be waived or excused by this Court.

Respondent has moved for summary judgment on this action (in accordance with Ill. Rev. Stat., ch. 110, par. 2—1005), citing Claimant’s failures to comply with the aforementioned regulatory and Handbook requirements, and the General Assembly’s adoption of said regulatory limits in Ill. Rev. Stat., ch. 23, par. 11—13. For the reasons discussed in this opinion, we grant Respondent’s motion.

It is therefore hereby ordered and adjudged that Respondent’s motion for summary judgment on the complaint and underlying causes, as to goods and services provided on and before June 27, 1986, to patients Gonzalez, Rezmer and Ott, on the grounds addressed above in this opinion, is granted; judgment is entered against Claimant Tennant and in favor of Respondent as to all issues presented herein; and this claim is dismissed.


author: Patchett, J. Patchett, J. Patchett, J. Patchett, J. Patchett, J.

text:
    (Nos. 87-CC-0569, 87-CC-2459 cons.
    Gordon G. Gass and Vic Eckmann, Claimants, v. The State of Illinois, Respondent.

      Opinions filed December 7, 1990.

      Order on petition for rehearing filed March 29, 1991.

      Order on petition for rehearing filed May 14, 1992.

    Harry J. Sterling, for Claimants.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (Terence J. Corrigan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This case arises out of an alleged flooding of farmland during the construction of Interstate Highway 255 at Interstates 55 and 70 in Madison County. Claimant alleges that the construction caused flooding, and subsequent damage, to his crops and farmland.

Claimant alleges crop losses of $7,472.00. On July 28, 1987, Claimant filed an amended complaint; and on October 20, 1987, he filed an amendment to the amended complaint. The amendment charged a second flooding of the farmland in July of 1987, and sought additional damages of $5,430.00.

The Claimant, Vic Eckmann, owns an undivided one-half interest in 40 acres of farmland involved in this cause. Claimant farms this property alone, and has done so for 20 years.

This case involves the drainage of Schneider Ditch in relation to Claimant’s property. The Schneider Ditch originates close to Illinois Highway 157 West and the eastern bluff of the Mississippi River Valley. The ditch runs west from its origin under Interstate 255, under a road called Black Lane, and next to Claimant’s land where it takes a turn south and finally drains into Brushy Lake by going under a farmer’s field road. That portion of Schneider Ditch that flows south is located just on the east side of Claimant’s 40-acre tract of land. To the west of Highway 157 is a frontage road under which there is a double 10 X 5 box culvert. The distance of Schneider Ditch from the frontage road to 1-255 is 4,100 feet, from 1-255 to Black Lane 1,100 feet, and the distance from Black Lane to the farmer’s field road is between 1,000 and 2,000 feet. The entire length of Schneider Ditch is approximately one mile to Black Lane. The flow is downhill from the bluffs to Black Lane. To the north of Schneider Ditch, and running in a westerly direction, is a creek known as Schoolhouse Branch. Schoolhouse Branch empties into Cahokia Canal which is located to the west of Claimant’s 40-acre tract.

The Schneider Ditch is fed by water coming off of the bluffs to the east as well as by drainage off of Interstate 255. Schneider Ditch is also fed to some extent by Schoolhouse Branch through fields between the two courses of water. Schoolhouse Branch is also fed by water coming off of the bluffs to the east of Illinois Highway 157.

The Claimant has been in farming for 30 years, and is also in the irrigation business. Claimant has been familiar with Schneider Ditch all of his life.

In April of 1986, and again in the fall of 1986, IDOT acquired a temporary construction easement to clean out Schneider Ditch. Pursuant to this easement, IDOT cleaned out Schneider Ditch from the frontage road by the Interstate all the way down to Black Lane. At the time of cleaning, one 5 X 10 foot side of the double box culvert underneath the frontage road was completely cleaned while the other side was completely silted shut. There was about a 50-square-foot opening underneath the frontage road. After the cleaning out by IDOT, the open side of the box culvert under the frontage road was still completely open, but in the years after, the open side silted up to the point where only a 2 to 2M foot X 5 foot opening remained open. IDOT left the one culvert closed to retain water on IDOT land and reduce the flow of water west of the frontage road.

Prior to the cleaning of the ditch, the ditch was filled with brush, weeds, trash, and other debris to the extent that it was impassable for a man. The flow of water through the ditch was impeded. After cleaning out the Schneider Ditch, IDOT left the ditch very clean and smooth with tapered sides all the way from the frontage road to Black Lane. In addition to cleaning out the ditch, IDOT constructed 1-255 where it dissected Schneider Ditch. Prior to the construction of Interstate 255, rain falling at that location fell on flat farmland and entered Schneider Ditch as surface drainage. As a result of the construction of 1-255, rain water hits its pavement and the slopes of its 50-year storm ditches, and this water drains through 50-year storm ditches into Schneider Ditch.

Also prior to the actions taken by IDOT, the five-foot-diameter culvert underneath the farmer’s field road was half silted and closed and remained so at the time of the hearing in this cause.

Rainfall that hit 1-255 and the slopes of its 50-year storm ditches now enters into Schneider Ditch more quickly than it did prior to the construction of 1-255. The flow of water through Schneider Ditch from the frontage road all the way down to the farmer’s field road flowed at an increased velocity as a result of the cleaning process.

Claimant’s 40-acre tract flooded in October 1986 and again in July of 1987. The representatives of IDOT were told by Claimant and his father that the property would flood if a pumping station were not put in where Schneider Ditch curves from west to south. The representatives of IDOT were aware that the flow through Schneider Ditch would be quicker and that it would be expected to flow through the 165-square-foot opening underneath 1-255 to a 100-square-foot opening underneath Black Lane down to a half-silted five-foot-diameter culvert underneath the farmer’s field road.

Claimant’s 40-acre tract flooded approximately four or five times in the previous 20 years prior to the cleanout of Schneider Ditch by IDOT. Some of these prior floods were caused by defective levees of the Schoolhouse Branch. The 1986 and 1987 flooding came from the north of the 40-acre tract. The problems with Schoolhouse Branch were repaired by the levee district prior to the fall of 1986. While the property flooded in 1984 after the Schoolhouse Branch had been repaired, that flooding was not nearly as severe as the floods occurring after the Schneider Ditch was cleaned out. In October of 1986, the property stayed flooded for about two weeks. After the 1984 flood, Claimant did extensive ditching on his property, which enabled his 40-acre tract to withstand the rains of 1985.

After Schneider Ditch was cleaned out in October of 1986, and again in July of 1987, Schneider Ditch almost topped the large culvert underneath Black Lane. Instead of the flow making the 90-degree south turn in Schneider Ditch, it came straight across the levee onto Claimant’s 40-acre tract. The 40-acre tract was flooded with three to five feet of water in October of 1986.

Frank Opfer, a hydraulic engineer for the State, testified that in his opinion the work done on the construction of Interstate 255, and the cleaning out of the Schneider Ditch, did not increase the volume of water flowing into Schneider Ditch. He further testified that the flooding of Claimant’s property in his opinion was caused by the fact that the culvert, only five feet in diameter, which Claimant installed under the farmer’s field road, was insufficient to handle the natural flow of water through Schneider Ditch. The five-feet-in-diameter culvert under the farmer’s field road was, and is, silted approximately half closed, reducing the flow of water through the culvert. Opfer testified that in his opinion the flooding was not caused by any of the work done by the Department of Transportation.

Prior to the October 8, 1986, flood, Claimant had planted winter wheat on his 40-acre tract. As a result of the flood, Claimant’s entire crop of winter wheat was lost, and therefore the net profit Claimant would have realized on that crop was also lost. Claimant’s evidence showed he would have realized a gross profit of $6,266.00 using an average of 65 bushels per acre as the estimated bushels he would have realized if the crop had grown. With labor costs of $1,900.00 and seed costs, he would have realized a net profit of $4,366.00. Claimant estimated his yield at 65 bushels per acre based on his past experience with this particular variety of wheat. Claimant would have received $2.41 per bushel for his wheat had he been able to harvest it, according to his evidence.

In addition to the lost profit on the Claimant’s wheat, Claimant incurred additional damages. Claimant prepared the 40-acre tract in order to replant winter wheat after the flood. Although the tract dried enough to run a disk over it and cultivate it, it never was dry enough to plant. Rains that fell after the preparation efforts by the Claimant made it impossible to replant.

Claimant seeks additional damages for ground preparation costs for winter wheat. His testimony was that damages for this were $2,650.50. In preparing the ground for the second planting of winter wheat, Claimant mowed the tract once, disked it three times, cultivated it twice, and ran rotary over it. In order to replant the crop, these ground preparation procedures had to be employed. Claimant’s exhibits show the cost of mowing at $5.00 per acre, the cost of disking at $6.00 per acre, the cost of field cultivation at $5.25 per acre, and the cost of rotary at $5.25 per acre, which nets a total cost for ground preparation incurred by Claimant at $1,550.00. Claimant proposes that the costs as aforesaid and in his exhibits are stated in 1977 dollars and therefore the total figure must be increased by 71.7% to reflect 1986 dollars. Claimant’s total damages claimed as a result of the flood on October 8,1986, are $7,016.50.

Claimant’s 40-acre tract flooded again in July of 1987. Claimant had prepared the tract for planting soybeans. The property flooded in July of 1987 before Claimant could plant his crop. Claimant therefore lost the net profit he would have made on the crop. Had Claimant been able to plant his 1987 soybean crop, he would have received a gross profit of $11,000.00, less production costs of $5,589.00, for a net profit of $5,420.00.

Had Claimant been able to plant and to harvest his crop, he would have incurred preharvest operating costs consisting of $500.00 for seed, $1,000.00 for herbicides, $480.00 in miscellaneous expenses, $760.00 in preharvest machinery operations, and interest on preharvest operating capital of $168.00 for a total preharvest operating cost of $2,908.00. Had Claimant been able to plant and harvest his soybean crop, he would have also incurred harvesting costs of $2,680.00. But for the July 1987 flood, Claimant would have realized a yield on his soybean crop at 55 bushels per acre which he could have sold at $5.00 per bushel, times 40 acres, for a total gross profit of $11,000.00. Claimant estimated the yield per acre based upon his past experience with soybeans on that tract. The highest yield he has ever gotten in soybeans is 65 bushels per acre, and the lowest he has ever gotten is 50 bushels per acre. The price per bushel for soybeans in 1987 was $5.00 per bushel. Normally soybeans are planted no later than June of the year. Claimant had not planted his soybeans by June of 1987.

Total damages sought by Claimant for the two floods total $12,436.50. Claimant has also requested that he be allowed to amend his complaint to seek an injunction against the State from flooding his land. The motion was taken with the case.

There is no question that Claimant’s 40 acres flooded and two crops were lost. There is no question that the State cleaned out the Schneider Ditch from the bluffs all the way down to Black Lane, but did not clean out the ditch west of Black Lane. The State also knew prior to the cleaning out of the portion of Schneider Ditch that the water would flow downhill through first a 165-square-foot opening beneath 1-255 down to a 100-square-foot opening underneath Black Lane and then flow through an unclean portion of the ditch, make a 90-degree left turn, and flow to and through a five-foot-diameter culvert under the farmer’s field road and that culvert was half-silted shut. The State was warned prior to the cleaning out of the ditch that a flooding of the Claimant’s land would occur without a pumping station being built at the 90-degree turn to pump water into Cahokia Canal. The State took the position that such a pumping station was too expensive and not required.

In order for a claimant to recover in such a case against the State, the claimant must prove that the State was negligent, and that such negligence caused the damages complained of. The issue of comparative negligence must also be addressed. Bundy v. State (1986), 39 Ill. Ct. Cl. 87.

The issue presented is whether the State has caused additional waters to enter Schneider Ditch upstream, and at a greater velocity, so that flooding is caused on Claimant’s land. Dugosh v. State (1985), 37 Ill. Ct. Cl. 168.

One who negligently alters the natural flow of water on the property of an adjacent landowner and thereby causes damages is liable to the adjacent landowner. Mount v. State (1977), 31 Ill. Ct. Cl. 299; Branding v. State (1977), 31 Ill. Ct. Cl. 455; Vickroy v. State (1977), 31 Ill. Ct. Cl. 489; Sharpe v. State (1984), 36 Ill. Ct. Cl. 108.

In the present case, the State cleaned out only a portion of Schneider Ditch. The State also put in a 165-square-foot culvert opening under 1-255 during its construction. It was foreseeable that this culvert narrowing down to a 100-square-foot opening at Black Lane to a five-foot-diameter culvert under the field road would cause flooding on the Claimant’s land. It is clear the State was warned of the potential flooding by Claimant. The State’s position that the closed culvert by the frontage road would hold back enough water on IDOT property so that only the natural drainage would proceed down Schneider Ditch past the new interstate is just plain wrong, as shown by the flooding of Claimant’s land. (Emerson v. State (1975), 30 Ill. Ct. Cl. 420.) The State altered the natural flow of Schneider Ditch when the Interstate was built and the 165-square-foot culvert opening was put in place. The State should have known that cleaning out only a portion of Schneider Ditch would cause the flooding which occurred. The State was negligent and that negligence caused the damages to Claimant.

Claimant presented adequate and substantial proof of his damages totaling $12,436.50. These figures were not contested by the State. However, the issue of comparative negligence remains. (Guffey v. State (1987), 40 Ill. Ct. Cl. 179.) In the face of the State’s actions of cleaning out Schneider Ditch against the warnings of Claimant, Claimant failed to clean out the five-foot-diameter culvert under his farmer’s field road prior to the first flooding. A reduction of the fall damages of 10% for this contributory negligence is appropriate. The Claimant is in the irrigation business. He again failed to clean out the five-foot-diameter culvert under his field road after the first flood. A 15% reduction of the July 1987 damages is appropriate. We award the Claimant the sum of $10,921.85 in damages.

The Claimant also seeks an injunction against the State in the Court of Claims enjoining the State from flooding his land. The Court of Claims has only that jurisdiction established by statute. (Harbour v. State (1986), 39 Ill. Ct. Cl. 58; Nevlon v. State (1986), 39 Ill. Ct. Cl. 63; Tedder v. State (1988), 40 Ill. Ct. Cl. 201.) Chapter 37, section 439.1 et seq., of the Illinois Revised Statutes provides no jurisdiction of the Court of Claims to issue injunctions against the State. The Court of Claims is not a court of general jurisdiction. (National Railroad Passenger Corp. v. State (1983), 36 Ill. Ct. Cl. 265.) Therefore, we deny the Claimant’s motion to amend his complaint, and we specifically deny any injunctive relief.

OPINION

Patchett, J.

This case arises out of a claim filed by Gordon Gass alleging flooding on his farm as a result of construction work on Interstate 255, at Interstate 270 and old Route 66 in Madison County, Illinois. The Claimant alleges that the flooding caused damage to his crops. A hearing was held before Commissioner Frederick of this Court. Extensive evidence was admitted, including a discovery deposition of Frank Opfer taken May 15, 1989, transcript of evidence on June 21, 1989, departmental report filed on or about October 22, 1987, and exhibits by both the Claimant and Respondent. Briefs were filed by both parties.

Gordon Gass farms a 79-acre tract of land, known as “Faber Farm,” on the north side of 1-270 in Madison County, Illinois. In the spring of 1985, the field flooded and his crop was lost.

The 79-acre tract at issue is bounded to the south by 1-270, to the north by old Route 66, to the east by County Ditch (also referred to as Cahokia Canal), and to the west by the land of another property owner. Along the 79-acre tract Claimant was farming, the County Ditch runs in a north-south direction while 1-270 and old Route 66 run in an east-west direction. The tract of farmland is located in what is called the American Bottoms which is bounded by the Mississippi River to the west and the eastern bluffs of that river valley.

The Claimant has farmed in this general vicinity for 30 years. County Ditch is operated by farmers in the area, and Gordon Gass has been a trustee for the drainage district for 37 years. The Claimant has been observing these levees and ditches in the area for over 30 years.

In the spring of 1985, the Illinois Department of Transportation did construction work on Interstate 255 at the interchange with 1-270. The State acquired property on both the north and south of Interstate 270 for acquisition of Interstate 255. Improvements were made along Interstate 270, and particularly at locations to the south of the 79-acre tract in question, in connection with the 1-255 improvement.

In doing this construction, IDOT removed a flap gate located at the intersection of the County Ditch with a pre-existing ditch running westerly from the County Ditch, and located south of the frontage road on the south side of Interstate 270. IDOT constructed a new ditch immediately south of the frontage road, which was connected to the County Ditch where the flap gate was removed.

Leland Jones testified that he had installed the flap gate in question that was removed by IDOT. The culvert on which the flap gate was installed connected a drainage ditch on the State’s right of way along Interstate 270 with the County Ditch. The County Ditch turns into the Cahokia Canal and eventually empties into the Mississippi River. Occasionally, when there is a general rainfall over the whole area served by the Cahokia Canal, the canal will be unable to accommodate the flow and water will back up the canal, flowing north, rather than south as intended. Claimant installed the flap gate to stop the back flow of water in the canal from entering upon his land. A flap gate allows water to flow in only one direction and shuts if there is a tendency for water to flow in the opposite direction. The ditches on each side of the frontage road were connected with newly-installed pipe under the frontage road in 1985. These ditches were in turn connected with the Faber Farm on the north of 1-270 by a culvert.

Leland Jones had installed other flap gates for Gordon Gass. Mr. Jones has been a self-employed excavating contractor since 1976, but has been in the excavation business since the late 1940s. After the removal of the flap gate by IDOT, Claimant was concerned that the property would flood if Cahokia Canal backed up because IDOT had left no restrictions to the back flow of water between County Ditch and the 79-acre tract. Claimant caused his concerns to be made known to the representatives of IDOT, and he advised them that flooding might occur. In response to these warnings, IDOT agreed to plug the culvert under 1-270 leading to Claimant’s tract with sandbags by May 1, 1985.

Claimant and Leland Jones both testified that in the spring of 1985, after removal of the flap gate, water flowed through the culvert, from which the flap gate was removed, under the Interstate, and then onto Claimant’s field. Claimant believes the flooding took place in May. According to Claimant, the flooding had to take place in the middle of May or later, because the crops had been planted in May and were already growing when the flooding took place. Leland Jones testified that the flooding he observed was in April or May of 1985. Jones testified that water was coming onto the field from the culvert from which the flap gate was removed, as well as from another location which was unaffected by the removal of the flap gate. Neither Claimant nor his witness, Leland Jones, could give a date for the actual flooding. While no exact date can be given, it is clear that the 79-acre tract flooded. The issue is why. The State’s theory is that the County Ditch overflowed its banks and flooded the Claimant’s land. The Claimant says the water from the County Ditch flowed west past the spot where the flap gate was removed and then under the frontage road, under the Interstate, and then onto the field.

The State’s hydrological engineer indicated that westward flow of this water through these ditches was to be expected given the fact that the County Ditch was full and the flap gate was removed. If IDOT had not removed the flap gate, water would not have been able to reach the culvert under I-270.

The flooding was first noticed by Claimant, according to his testimony, on a Friday morning in May. Claimant was out to this property frequently over that weekend and testified he observed the flow through the culvert under I-270 directly onto his field. Claimant observed a strong flow and volume of water coming onto his land through the culvert. Leland Jones also testified that he observed the flow of water from County Ditch, backing up into the new ditch constructed by IDOT, and flowing onto the field through the culvert under I-270. As a result of this intense three-day flow through the culvert under I-270 onto Claimant’s field, his 79 acres remained flooded for approximately one week.

The representative of IDOT testified he saw some leakage onto the field through the culvert. The flow through the culvert underneath I-270 stopped flowing onto Claimant’s field on the next Monday. Also as a result of the removal of the flap gate, water backed up the 270 channel from the west of Claimant’s tract to the interchange of 270 with I-255, and proceeded around the on ramp from 255 to 270. According to Claimant, this water flowed behind levees to farms to the west of Claimant’s tract, to other culverts underneath I-270 to the extreme west of Claimant’s tract, and carried water on around to the north of Claimant’s tract, providing an additional source of flooding.

According to the State’s engineer and representative, the culvert in question was plugged with sandbags on Thursday, May 9, 1985. They felt that the sandbags were effective in plugging the culvert. In June of 1985, the State’s records showed that flooding occurred when the Cahokia Canal overflowed its banks. On that occasion, the culvert was again sandbagged. The property in question lies on a flood plain, and was flooded in the spring of 1984, before the State removed the flap gate. It was also flooded in November 1985, when Cahokia Canal overflowed its banks.

Frank Opfer, District 8 hydraulic engineer for the Department of Transportation, testified that if water flowed through the culvert at maximum capacity with the Cahokia Canal full to its banks, it would take 56 hours to flood the property, in question. A back up of water along the Cahokia Canal, and subsequent overflowing, could be caused by the Army Corps of Engineers stopping the flow water from the canal into the Mississippi River.

There is a major dispute in the testimony before the Court as to whether the culvert underneath 1-270 leading onto Claimant’s land was sandbagged before the flood. The Claimant and Leland Jones testified they were at the tract and observed the flooding during the spring weekend. They consistently claimed that they saw no sandbags in place. The resident engineer for IDOT, Jim McAdams, testified that the north side of the culvert was plugged on May 9, 1985. Jim McAdams did not inspect the sandbags during the rain, but he testified that they were effective. No State representatives were at the site over that weekend that Claimant claims the land flooded.

The State’s hydraulic engineer testified that the water had to have come from another source rather than the culvert under I-270, as the maximum rate of flow would have been 20 cubic feet per second. To flood the 79 acres, a volume greater than four million cubic feet would have been required, and would have taken at least 56 hours to flood the 79 acres. The State’s hydraulic engineer figured the maximum rate of flow based upon the maximum elevation that the water could reach without topping the levee of County Ditch. The elevation that the engineer used for the levee of County Ditch was that elevation of the levee at the intersection of the County Ditch with Interstate 270, and not the actual elevation of the levee to the north of 270 immediately next to Claimant’s 79-acre tract, which might have been a higher elevation. The State’s analysis did not take into consideration sources other than the culvert under I-270 which contributed to the flooding. The actual duration of the flow through the culvert underneath 1-270 was longer than 56 hours, since it was observed from a Friday morning until it stopped on the following Monday.

The State’s expert stated that the culvert underneath I-270 was plugged with sandbags and therefore the County Ditch must have topped over its levee to cause the flooding. Claimant testified that the sandbags were not holding if they were in fact so placed. Claimant and Leland Jones were at the tract during the weekend of the continuous flow through the I-270 culvert, and both testified they did not see the County Ditch topping its levee. Jim McAdams for the State testified he saw the County Ditch top its levee on June 11 and November 20, but these were not the dates of the alleged flooding.

When the property flooded, Claimant lost his crop of winter wheat of 23 acres, and his crop of soybeans of 56 acres. Claimant replanted the tract in soybeans. Claimant testified that the late planting of the crop resulted in a reduced yield. Claimant relied upon an agricultural report in calculating his reduced yield and operating costs. Claimant would not have planted soybeans on the 23 acres of winter wheat if he had harvested the wheat. Claimant based his estimates of the value of the crops on the price he received when he sold his previous year’s crop. Claimant did not know what he received when he sold his 1985 crops. Claimant also incurred damages by reworking the field for planting, planting the field a second time, and using additional soybean seed.

Claimant testified that his total loss on the soybean crop from the decreased yield was $4,368.00, which was derived by calculating a 13-bushel-per-acre decrease multiplied by 56 acres multiplied by a price of $6.00 per bushel for soybeans. He also included using additional soybean seed for the second planting at a total of $392.00, which was calculated by the total requirement of 56 bushels of soybean seed at $7.00 per bushel, reworking the field a second time for a total cost of $560.00, which cost $10.00 per acre at 56 acres, and planting the beans a second time at a cost of $280.00, which was calculated at a cost of $5.00 per acre for 56 acres. In calculating the decreased yield, the costs for reworking the field, and the cost of the second planting, Claimant relied upon Doane’s agricultural report. Doane's is a farm publication that has been in business over 75 years. It is a resource which farmers rely on to figure cost data in the farming business.

The price per biishel of soybean seed was $6.00 per bushel. The cost of soybean seed was $7.00 per bushel. Soybean seed must be cleaned before planting, and this service costs 40 cents a bushel.

Claimant’s 23 acres of wheat was also flooded, so he disked it and planted beans on those 23 acres. Claimant had claimed only the loss of wheat as damages rather than also adding the cost of replanting beans on those 23 acres. Claimant testified he was damaged in the amount of $4,830.00 for the loss of his 23 acres of wheat which would have yielded 60 bushels at $3.50 per bushel. Claimant’s average yield on. wheat was 67.35 bushels per acre, but he only used a figure of 60 bushels per acre for purposes of calculating his damages. Claimant used a price of $3.50 per bushel, although his grain wheat contracts indicated he was obtaining $3.76 and $3.80 per bushel. Pursuant to Claimant’s testimony, his total losses as a result of the May 1985 flood were $10,430.00. Claimant did not subtract the benefit of the soybean yield on the wheat acreage in computing his loss.

Claimant’s weakest point is that he cannot testify with much accuracy as to when the flooding occurred. Claimant’s Exhibit 4 lends help to the Court in determining the facts of this case. The pictures were developed some time in May of 1985, as marked on the reverse side of the pictures, and show his flooded 79-acre tract. Most of the State’s testimony about observing the overflowing of the County Ditch was for March and June of 1985. The diary of the State’s representative indicates a back flow of water from the County Ditch near Claimant’s land on May 9, 1985, a Thursday, and that the State plugged the culvert with sandbags at that time.

The Claimant was a credible witness, as was Leland Jones. Their testimony that the flooding in May which destroyed the crops came through the culvert under the Interstate is also credible. The flooding would not have occurred but for the removal of the flap gate.

It has long been established that one who negligently alters the natural flow of water on the property of an adjacent landowner, thereby causing damages, is liable to the adjacent landowner. (Emerson v. State (1975), 30 Ill. Ct. Cl. 420; Sneed v. State (1988), 40 Ill. Ct. Cl. 80.) Where the State makes negligent changes in highway drainage, the State is liable for damages caused by the increased flow of water onto an adjacent property owner’s property. Sharpe v. State (1984), 36 Ill. Ct. Cl. 108.

In the present case, all parties agree that a flap gate existed blocking the flow of water from backing up the frontage road ditch, then under the interstate onto Claimant’s land. The State was warned of the potential for flooding by Claimant. During the May rains in 1985, Claimant’s 79-acre tract was flooded, and Respondent’s efforts to plug the culvert failed to protect Claimant’s crop. The State is hable for Claimant’s loss.

Claimant presented substantial evidence based on his expertise as a farmer and using publications generally accepted in the farming industry to show his costs. (Harmon v. State (1978), 32 Ill. Ct. Cl. 543; Decker v. State (1982), 35 Ill. Ct. Cl. 392.) The Claimant’s loss was proven to be $10,430.00 and such loss was not speculation but established in a reasonable manner. (Lopez v. State (1987), 39 Ill. Ct. Cl. 315.) Respondent correctly points out that this figure must be adjusted down to show the mitigation of damages required by Claimant when he replanted the wheat crop in soybeans. Claimant did not calculate the benefit of that mitigation in determining his loss. Using the estimates of Claimant on his acreage and the value of the soybean crop, Claimant received a benefit of $3,724.00. Therefore, Claimant had actual damages of $6,706.00.

We award the Claimant the sum of $6,706.00 for his damages.

ORDER DENYING PETITION FOR REHEARING

Patchett, J.

This cause comes on for hearing upon the petition for rehearing filed by the Respondent. This Court previously issued an opinion finding liability on the part of the Respondent and granting the claim.

The Respondent’s petition for rehearing claims that the opinion rendered herein would tend to make the State liable for cleaning out obstructions and drainage, thereby allowing natural water to flow. Nothing could be further from the truth. The basis of the opinion is that the State altered the natural flow of the ditch in question when the interstate was built. By building the interstate and installing a culvert, the State altered a natural flow of water.

All the activities which occurred subsequent to that do not alter the fact that the original construction and installation of the culvert altered the natural flow of the water, thereby being the proximate cause of the flood in question. The State presented no evidence to negate this conclusion.

Respondent has now asked for oral argument on the petition for rehearing, but the parties expressly waived oral argument. Therefore, the Court previously considered the case based on the evidence in the record before it. Accordingly, we now deny oral argument on the petition for rehearing. Further, we deny the petition for rehearing.

ORDER ON PETITION FOR REHEARING

Patchett, J.

This cause comes on for hearing upon the Respondent’s petition for rehearing. An opinion was rendered in this case on December 7,1990, granting the claim for the sum of $6,076.00. In the Respondent’s petition for rehearing, it erroneously states that the claim was granted on the basis that the State had negligently altered a natural flow of water by removing a flap gate installed by the Claimant. Indeed, the State did remove a flap gate installed by the Claimant, but this act was not the original source of negligence.

The State had negligently altered the natural flow of water by constructing the highway in the first place. After the State had constructed the highway and installed a culvert, the Claimant installed a flap gate to protect his land. If the Claimant had not installed the flap gate, the State would have been responsible for flooding the Claimant’s land at an earlier period.

Therefore, by building the highway and altering the natural flow of water, and then subsequently removing an object used by the Claimant to protect his land from the altered flow of water, the State is clearly negligent. The State is therefore clearly liable for the damage in question. The State originally presented no evidence to tend to negate this finding. Therefore, the petition for rehearing is denied.

ORDER ON SECOND PETITION FOR REHEARING

Patchett, J.

This cause comes on for hearing upon the second petition for rehearing filed herein by the Respondent. For the purposes of this order, the cases of Gordon G. Gass, 87-CC-0569, and of Vic Eckmann, 87-CC-2459, will be consolidated. Originally, opinions were written granting the claims in these cases. The Respondent filed a petition for rehearing in each case. On March 29,1991, this Court entered an order denying these petitions. In April 1991, the Respondent filed a second petition for rehearing in each case.

The Court has now thoroughly reviewed the pleadings, the original opinion, the first petition for rehearing and order entered therein, and the second petition for rehearing, and the various responses filed by the parties. The Court finds no reason to change its original opinion.

Therefore, the second petition for rehearing is hereby denied.


text:
    (No. 87-CC-0678
    Kenneth Stephenson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

      Order on motion for rehearing filed February 20, 1992.

    Kenneth Stephenson, pro se, for Claimant.
    Roland W. Burris, Attorney General (Darrell Williamson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages from Respondent, State of Illinois, for the value of personal property claimed to have been lost by Claimant through the fault or neglect of Respondent or its agents. Claimant alleges a loss of $136.83 for his watch, three towels, stereo cassette player and headphones, five shag rugs and one pair of shoes.

On the day of the incident in question, Claimant was assigned to A Gallery, South Cellhouse, Pontiac Correctional Center. He was released from his cell by Respondent’s agent. When he returned to his cell, he found that the cell was open and had been entered. A search had been conducted of his cell. Claimant made a list of the missing property. Subsequently, Claimant alleges that he saw portions of his personal property in the possession of an inmate being escorted by Respondent’s agents to segregation. Claimant intervened and requested that Respondent’s agent permit Claimant to go to his cell and produce the permits and receipts to prove that the property in possession of the inmate being escorted to segregation was, indeed, the property of the Claimant. Respondent’s agent allegedly did not permit Claimant to obtain his property from the inmate. Claimant testified that when absent from his cell, he did not have any knowledge of who entered his cell. Claimant testified that he knew his door was placed on deadlock and that, in that event, the door had to be “keyed” open. Claimant later observed specific items of his personal property in possession of another inmate. The Timex quartz watch, the three green towels, the stereo cassette player and headphones, the five shag rugs and Claimant’s shoes were in the possession of another inmate. This fact was brought to the attention of Respondent’s agents. Claimant endeavored to use self-help in retrieving his property from the inmate in whose possession it was found. Respondent’s agents intervened and permitted the inmate to retain possession of Claimant’s property.

The valuations claimed by Claimant on his lost property consisted of $30.00 for the watch, $5.36 each for three towels, $45.00 for the stereo cassette player and headphones, $5.00 each for the five shag rugs, and $20.75 for Claimant’s shoes. These were purchase prices of the lost property. Claimant testified he had only had the watch a couple of months before it was missing, the green towels were brand new, the stereo cassette had never been taken out of the box, and Claimant had never bought batteries for it. His shoes were six months old.

The evidence in this case fails to demonstrate that Claimant’s property came into exclusive possession of Respondent. Thus, no bailment was shown to have existed and Respondent was not, therefore, required to assume the burden of proving due care for the Claimant’s property. The thrust of Claimant’s argument seems to be that Respondent’s agent was negligent in failing to conduct an investigation as to the rightful ownership of property later seen in possession of another inmate. Claimant made demand upon an officer in custody of the inmate to “wait” while Claimant demonstrated his rightful ownership of property then in possession of the inmate under the officer’s control. We know of no principle of law which would require corrections officers to adjudicate or mediate disputes between inmates regarding the ownership of property in possession of one or the other. Indeed, it is just as reasonable to expect that a correctional officer in the discharge of his duties cannot involve himself in prolonged debates between inmates, however just the position of one or the other may be, and act as an arbitrator or adjudicator with respect to these arguments and complaints. The Court is aware that internal procedures exist whereby complaints of inmates against correctional personnel or other inmates can be heard and decided in an orderly fashion. Claimant’s argument that the failure of Respondent’s agents to allow him time to “prove his case” constitutes negligence is without merit. No bailment was shown to exist and no negligence on the part of Respondent’s agents was shown.

Wherefore, it is ordered that this claim is denied.

ORDER ON MOTION FOR REHEARING

Burke, J.

This cause coming to be heard upon the Claimant’s petition for rehearing and the Court being fully advised in the premises, wherefore, pursuant to section 790.220 of the Court of Claims Regulations states that the request for rehearing “shall state briefly the points supposed to have been overlooked or misapprehended by the Court.” That the request filed herein does not do this.

It is hereby ordered that Claimant’s petition for rehearing is hereby denied.


author: Patchett, J.

text:
    (No. 87-CC-1345
    Leroy Terry, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 23, 1991.

    Jan Susler, for Claimant.
    Roland W. Burris, Attorney General (Erin M. O’Connell and Steven Schmall, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Patchett, J.

This cause was originally tried on April 12, 1989, before Commissioner Terrence Lyons. Subsequently, Mr. Lyons ceased to be a commissioner of this Court, and this case was assigned to Commissioner Michael Fryzel. The Court offered a new hearing before Commissioner Fryzel, which both parties waived. The Claimant did file a brief after the case was assigned to the new commissioner, but the Respondent did not.

On May 6,1986, the Claimant was a resident of the Illinois Department of Corrections at the Graham Correction Center. At that time, the Claimant alleges he was injured while lifting weights. He claims that the weight bar slipped from his hands and fell on his chin, resulting in 22 stitches. As a result of the injury, the Claimant has a scar on his chin and claims he has suffered emotional distress. The Claimant further alleges that the equipment provided by the Illinois Department of Corrections was faulty. He specifically states that the weight bar he was using was warped, and the grip on the bar was worn thin.

The Respondent denies any negligence on its part. Furthermore, the Respondent alleges that the Claimant assumed the risk of the activity when he utilized the weights, fully realizing any and all risks that might be involved in the activity.

During the trial of this case, the Claimant testified that while he was lifting weights, three “spotters” assisted him. According to the Claimant, spotters are individuals who stand next to you while you are lifting weights to ensure that you are not injured. However, the Claimant could not remember the names of any of the spotters present when he suffered his injuries. In addition, the Claimant did not produce any other witnesses to the actual occurrence alleged in his complaint.

However, the Respondent produced a witness, the leisure time activity supervisor at Graham Correctional Center. The supervisor stated he personally checked the inventory of the weight lifting equipment on a quarterly basis. He would remove any unsafe equipment found during the check. He checked the equipment the month prior to the incident in question. He did not remember if he removed any weight lifting bars during that check.

It is not disputed that the State owes a duty to the Claimant while he is incarcerated. If recreational equipment is provided for any use, that equipment must be in good condition. However, in order for the Respondent to be liable for the Claimant’s injuries, the Claimant must show that the State somehow breached that duty. Here, the evidence and testimony produced does not support a finding of liability.

For this reason, we deny liability, and therefore, we hereby deny this claim.


author: Sommer, J.

text:
    (No. 87-CC-3262
    Burke & Smith, Chartered, Claimant, v. The State of Illinois, Respondent.

      Order filed September 18, 1991.

    Burke & Smith, Chartered, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

This cause comes to be heard on the Respondent’s motion to dismiss, due notice having been given, and the Court being advised.

The Claimant, Burke & Smith, Chartered, brought this lapsed appropriation claim seeking $3,157.50 in payment for legal services rendered to the Respondent in fiscal year 1986. The Respondent contends that this claim should be dismissed on the ground that it is barred because the parties’ previous written contract did not cover fiscal year 1986, the year for which payment is sought, and because this Court has no jurisdiction to entertain a claim based on a theory of quantum meruit. We agree and will dismiss the claim. However, for the purposes of possible consideration of this matter by the General Assembly at some future time, we find that the Respondent has no reason to dispute that the Claimant did provide services to the Respondent, that the Respondent knows of no reason why such services were not satisfactory, that if the claim had been proper, the appropriation account code would be 059-52401-1200-00-00 and that, but for the lack of a written contract between the parties for fiscal year 1986, the Respondent knows of no reason why it would have not paid the Claimant.

It is hereby ordered that this claim be, and hereby is, dismissed.