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Moncelle v. McDade

Court of Appeals of Illinois, Third District

October 30, 2017

PATRICIA MONCELLE, Individually and as Special Administrator of the Estate of Michael Moncelle, Deceased, Plaintiff-Appellant,

         Appeal from the Circuit Court of Peoria County. No. 12-L-269, Honorable David A. Brown, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Zenoff concurred in the judgment and opinion.



         ¶ 1 After the trial court dismissed her lawsuit against the persons and entities she believes caused her husband's death, the plaintiff, Patricia Moncelle, appealed to the Third District Appellate Court. That court affirmed the dismissal. Moncelle v. C.A.P. Air Freight, Nos. 3-09-0074, 3-09-0075, 3-09-0233, 3-09-0234 cons. (2010) (unpublished order under Supreme Court Rule 23). The plaintiff contends that, in issuing that decision, the panel of justices who decided the appeal-Mary McDade, Vicki Wright, and Mary K. O'Brien (collectively, the defendant justices)-deliberately misstated the contents of the record so as to provide support for their decision, which they had prejudged without regard to the facts of the case. The plaintiff made this argument repeatedly during her unsuccessful challenges to the original dismissal and in other contexts. Eventually, the plaintiff filed a lawsuit against the defendant justices. The trial court dismissed the lawsuit for failure to state a claim and on the basis of "judicial and/or sovereign immunity." The plaintiff now appeals that dismissal.[1] We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 In late 2004, the plaintiff's husband, Michael Moncelle, died when his vehicle was struck by a truck that belonged to AIR CAP LLC (AIR CAP) and was driven by Matthew F. Gross, an employee of C.A.P. Air Freight (CAP). In 2005, the plaintiff filed suit (the 2005 suit) against Gross, CAP, and AIR CAP (collectively, the trucking defendants), claiming wrongful death and property damage. She asserted that all of the trucking defendants engaged in willful and wanton misconduct, based upon allegations that Gross was under the influence of alcohol and drugs at the time of the collision and that the other trucking defendants had known of his drug addiction but nevertheless had hired him, retained him, and entrusted him with the truck. In her 10-count second amended complaint, the plaintiff also alleged that the trucking defendants had violated federal trucking regulations. The plaintiff sought leave to add prayers for punitive damages to all of the counts, arguing that the inclusion of the allegations regarding federal trucking violations permitted this. The trial court denied leave to seek punitive damages with respect to all of the counts except one count directed toward Gross.

         ¶ 4 CAP and AIR CAP filed motions for partial summary judgment, seeking rulings that they were not liable for certain of the alleged violations of federal trucking regulations. The motions detailed the specific subparagraphs of the complaint as to which they believed they were entitled to summary judgment. On November 20, 2007, the trial court orally granted summary judgment as to certain subparagraphs in the counts against AIR CAP and some of the counts against CAP. On November 26, the trial court entered a written order, further granting summary judgment as to four other subparagraphs in some of the counts against CAP. The trial court did not grant summary judgment on the entirety of any of the 10 counts-at least some portion of each count remained for trial, which was scheduled for December 3.

         ¶ 5 On November 29, 2007, CAP filed an amended answer in which it admitted liability for Gross's actions, under a theory of respondeat superior (the claim asserted in two counts).[2]That same day, the other trucking defendants obtained leave to file amended answers admitting their liability under the counts directed against them. As a result, damages was the only issue remaining for trial.

         ¶ 6 The plaintiff advised the trial court that she wished to file a motion to reconsider the court's ruling limiting the availability of punitive damages, because case law supported the wider availability of such damages now that the trucking defendants had admitted liability on claims of willful and wanton misconduct. Because the trial date was only four days away, the trial court set a highly expedited briefing schedule, giving the plaintiff only two days to serve a list of the case law on which she relied and requiring her written motion to be filed by 8 a.m. on the day of trial. Rather than engaging in the expedited briefing, on November 30, 2007, the plaintiff moved to voluntarily dismiss the 2005 case. The trial court dismissed the 2005 case without prejudice.

         ¶ 7 On January 16, 2008, less than two months later, the plaintiff filed a new case against the trucking defendants (the 2008 case). The trucking defendants moved to dismiss the 2008 case, arguing that it was barred by the doctrine of res judicata. The trial court granted the motion and dismissed the 2008 case with prejudice. The plaintiff moved for reconsideration.

          ¶ 8 The plaintiff also filed, in the 2005 case, a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2006)). The petition was based on newly discovered evidence suggesting that Gross had been drinking alcohol at the time of the accident, and it asserted that CAP had attempted to conceal the evidence. The plaintiff argued that, if any of the orders limiting punitive damages or granting partial summary judgment in the 2005 case were final judgments (as the trucking defendants contended in their motion to dismiss the 2008 case), those judgments should be vacated due to CAP's misconduct in concealing the evidence. The trucking defendants moved to dismiss the petition.

         ¶ 9 In January 2009, the trial court issued a single written order bearing the docket numbers of both the 2005 case and the 2008 case. In that order, the trial court denied the section 2-1401 petition filed in the 2005 case, on the ground that the newly discovered evidence would not have changed the outcome of any of its rulings in that case. It also denied the plaintiff's motion to reconsider its dismissal of the 2008 case.

         ¶ 10 The plaintiff appealed the dismissal of both the 2008 case and the section 2-1401 petition filed in the 2005 case. On April 7, 2010, the defendant justices issued the decision that forms the basis for this suit (the 2010 Rule 23 Order). The decision affirmed the trial court's rulings.

         ¶ 11 In explaining their decision, the defendant justices framed the question before them as whether CAP and AIR CAP were "entitled to raise res judicata as a bar to Plaintiff's 2008 complaint as to all or some of Plaintiff's claims, based on the trial court's order granting *** partial summary judgment on Plaintiff's claims based on" the alleged violations of federal trucking regulations. In explaining their ruling, the defendant justices stated:

"The trial court's order dismissing the counts in plaintiff's second-amended complaint *** premised on alleged violations of the [federal trucking regulations], was a final judgment on the merits of a separate branch of the controversy. When plaintiff voluntarily dismissed the remainder of her complaint, she triggered the res judicata bar to re-filing against those defendants. Accordingly, the trial court's order granting the *** motions to dismiss plaintiff's 2008 complaint is affirmed." Moncelle, ...

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