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05/11/95 LARRY D. WALKER AND R & P CAPITAL

May 11, 1995

LARRY D. WALKER AND R & P CAPITAL RESOURCES, INC., A NEW YORK CORPORATION, PLAINTIFFS-APPELLEES,
v.
DESIREE G. ROGERS, DIRECTOR OF THE DEPARTMENT OF THE LOTTERY, DEPARTMENT OF THE LOTTERY AND THE LOTTERY CONTROL BOARD, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Sangamon County. No. 93L413. Honorable Sue E. Myerscough, Judge Presiding.

As Corrected July 19, 1995.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J. Lund and Green, JJ., concur.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Defendants, Desiree G. Rogers, Director of the Department of the Lottery, Department of the Lottery, and the Lottery Control Board, appeal the trial court's May 1994, order granting summary judgment for plaintiffs, Larry D. Walker and R & P Capital Resources, Inc. (R&P), approving an assignment of lottery winnings. On appeal, defendants argue (1) the trial court lacked subject-matter jurisdiction under the doctrine of sovereign immunity; and (2) section 13 of the Illinois Lottery Law (Law) (20 ILCS 1605/13 (West 1992)) prohibits the voluntary assignment of future payments of lottery prizes. We reverse.

In May 1986, Walker won $1,197,790 in the Illinois State Lottery. The prize was payable in 20 annual installments of $59,889. In June 1993, Walker entered into a contract with R&P, whereby Walker agreed to assign his right to a $30,000 portion of each of the 12 remaining payments to R&P in exchange for a lump-sum payment of $135,000. The contract was contingent upon the issuance of a final, nonappealable order by an Illinois court of competent jurisdiction approving the assignment and directing the Illinois State Lottery Board to recognize the assignment and make the assigned payments to R&P or its assignee. Defendants refused plaintiffs' request for consent to the assignment agreement. In August 1993, plaintiffs filed a complaint requesting the circuit court to enter an order approving the assignment pursuant to section 13 of the Law. In May 1994, the trial court granted summary judgment for plaintiffs, concluding that section 13 of the Law permitted the voluntary assignment of future payments of lottery winnings upon the entry of an appropriate judicial order.

Defendants first contend the trial court lacked subject-matter jurisdiction pursuant to the doctrine of sovereign immunity. The doctrine of sovereign immunity provides that the State shall be immune from any suit to which it has not consented. ( S.J. Groves & Sons Co. v. State (1982), 93 Ill. 2d 397, 400, 444 N.E.2d 131, 132, 67 Ill. Dec. 92, overruled on other grounds sub nom. Rossetti Contracting Co. v. Court of Claims (1985), 109 Ill. 2d 72, 485 N.E.2d 332, 92 Ill. Dec. 521.) Sovereign immunity was abolished by the 1970 Illinois Constitution "except as the General Assembly may provide by law." (Ill. Const. 1970, art. XIII, ยง 4.) Under this authorization, the General Assembly enacted the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 1992)), section 1 of which provides:

"Except as provided in the 'Illinois Public Labor Relations Act', enacted by the 83rd General Assembly, or except as provided in 'AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." (745 ILCS 5/1 (West 1992).)

The Court of Claims has exclusive jurisdiction to hear and determine: "All claims against the State founded upon any law of the State of Illinois ***." 705 ILCS 505/8(a) (West 1992).

When sovereign immunity applies, the circuit court lacks jurisdiction to entertain the claim. (See Healy v. Vaupel (1990), 133 Ill. 2d 295, 307-17, 549 N.E.2d 1240, 1246-51, 140 Ill. Dec. 368.) Sovereign immunity of the State has been extended to actions where a State agency or department is the named defendant. (See Smith v. Jones (1986), 113 Ill. 2d 126, 132-33, 497 N.E.2d 738, 740-41, 100 Ill. Dec. 560; Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216, 219, 8 N.E.2d 637, 638.) The determination of whether an action is a suit against the State, and thus one that must be brought in the Court of Claims, turns upon an analysis of the issues involved and the relief sought, rather than the formal designation of the parties. ( Currie v. Lao (1992), 148 Ill. 2d 151, 158, 592 N.E.2d 977, 980, 170 Ill. Dec. 297; Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247.) An action is a claim against the State if a judgment for the plaintiff could operate to control the actions of the State or subject it to liability. ( Currie, 148 Ill. 2d at 158, 592 N.E.2d at 980.) Because defendants never raised sovereign immunity in the circuit court, plaintiffs argue the issue is waived on appeal. This argument was recently rejected in Currie, where the State did not raise sovereign immunity until after the case was tried and a jury verdict returned. The court held there was no waiver because subject-matter jurisdiction can never be waived. Currie, 148 Ill. 2d at 157, 592 N.E.2d at 979.

After reviewing the issues raised and the relief requested, we conclude that plaintiffs' claim is not a suit against the State. The main issue is the propriety of plaintiffs' assignment agreement, and the State is only incidentally affected. Under the agreement, the State would not be subjected to liability and would still make the annual payments without losing the use of the money over 20 years. Therefore, plaintiffs' claim was not barred in the circuit court by sovereign immunity. Cf. Doe v. Burgos (1994), 265 Ill. App. 3d 789, 792, 638 N.E.2d 701, 703, 202 Ill. Dec. 833.

Turning to the propriety of the trial court's ruling, a court properly grants summary judgment when the pleadings, depositions, and affidavits show no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c) (West 1992).) In construing a summary judgment motion, the trial court must view all evidence in a light most favorable to the nonmovant. ( Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 518, 622 N.E.2d 788, 792, 190 Ill. Dec. 758.) We review the granting of summary judgment de novo. Golla v. General Motors Corp. (1994), 261 Ill. App. 3d 143, 147, 633 N.E.2d 193, 196, 198 Ill. Dec. 731.

The substantive issue before the court is whether section 13 of the Law prohibits the voluntary assignment of future lottery payments. Section 13 states:

"No prize, nor any portion of a prize, nor any right of any person to a prize awarded shall be assignable [(clause one)]. Any prize, or portion thereof remaining unpaid at the death of a prize winner, may be paid to the estate of such deceased prize winner, or to the trustee under a revocable living trust established by the deceased prize winner as settlor, provided that a copy of such a trust has been filed with the Department along with a notarized letter of direction from the settlor and no written notice of revocation has been received by the Department prior to the settlor's death. Following such a settlor's death and prior to any payment to such a successor trustee, the Director shall obtain from the trustee and each trust beneficiary a written agreement to indemnify and hold the Department harmless with respect to any claims that may be asserted against the Department arising from payment to or through the trust. Notwithstanding any other provision of this Section, any person pursuant to an appropriate judicial order may be paid the prize to which a winner is entitled [(clause two)], and all or part of any prize otherwise payable by State warrant under this Section shall be withheld upon ...


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