Xingjian Sun and Xing Zhao v. Board of Trustees of the University of Illinois

ORDER

BURNS, J. This matter comes before the Court on the Respondent’s Combined Motion to Dismiss pursuant to Section 2-619.1 of the Illinois Code of Civil Procedure. 735 ILCS 5/2- 619.1. The Claimants filed a response in opposition to the Motion to Dismiss, and the Respondent filed a reply. The Court, having read the pleadings and being fully advised, finds as follows:

Background

The Claimants in this case are Xingjian Sun and Zing Zhao, former students at the University of Illinois (“University”) from roughly 2013 to 2016. On January 15, 2021, Claimants filed a four-count Complaint in this court against the University asserting claims for breach of contract, as well as violations of the Illinois Gender Violence Act and the Trafficking Victims Protection Act, respectively, arising out of alleged abuse by former University professor Gang “Gary” Xu.

According to the Claimant’s Amended Verified Petition for Relief (the “Amended Complaint”), Xu, then an associate professor and head of the University’s Department of East Asian Languages and Cultures, engaged in serial abuse of the Claimant’s including violent rape and assault, during the time that the Claimants, both Chinese nationals, were students at the University. Claimants contend the Respondent’s failure to protect them from this alleged abuse led to various injuries, including physical, emotional and financial harm, as well as post-traumatic stress and sleep disorders. The Claimants seek $11,737,601.90 in damages.11 Respondent filed a motion to dismiss based on numerous grounds, including statute of limitations and failure to state a claim. We agree that most of the Claimant’s claims are untimely and the remainder fail to state a valid claim, and, thus, the motion to dismiss must be granted.

Analysis

Claimants filed suit against Xu in the United States District Court for the Central District of Illinois. That federal suit asserted claims against Xu arising out of the same operative facts at issue in this case. See Sun v. Xu, Case No. 19-cv-02242-EIL.

[*265] Section 22 of the Court of Claims Act sets forth the limitations periods for all claims brought before the Court. 750 ILCS 505/22. It reads, in relevant part, as follows:

Sec. 22. Limitations. Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within the time set forth as follows:

(a) All claims arising out of a contract must be filed within 5 years after it first accrues, saving to minors, and persons under legal disability at the time the claim accrues, in which cases the claim must be filed within 5 years from the time the disability ceases.

… (h) All other claims must be filed within 2 years after it first accrues, saving to minors, and persons under legal disability at the time the claim accrues, in which case the claim must be filed within 2 years from the time the disability ceases.

Counts I and II of the Amended Complaint assert entitlement to damages based on a breach of contract, which in this court would entail a five-year statute of limitations under 22(a) above. Respondent argues, however, that these two counts are not actually breach of contract claims, but rather personal injury claims dressed up as breach of contract claims in order to avoid the two-year statute of limitations for “all other claims” set forth in 22(h) above. This distinction is critical because the Amended Complaint, brought five years after the last of the alleged conduct at issue in this case, is well beyond the two-year limitation period and thus, would require dismissal of those counts if such claims were found not to be breach of contract claims.

I. Statute of Limitations To determine which limitations period applies in any case, a court looks to the complaint to ascertain the true character of the claim at issue. United Airlines, Inc v. City of Chicago, 2011 IL App (1st) 102299, ¶9. “The determination of the applicable statute of limitations is governed by the type of injury at issue, irrespective of the pleader’s designation of the nature of the action.” Bowman, 229 Ill.2d at 46 (quoting Armstrong v.

Guigler, 174 Ill.2d 281, 286-87 (1996)). The title a plaintiff employs to describe his cause of action is not dispositive as to the true nature of that action or to the limitations period that applies thereto. Madigan v. Yballe, 397 Ill. App. 3d. 481, 488 (1st Dist. 2009). “A party simply may not circumvent a shorter period of limitations, or attempt to breath life into stale claim, merely by means of artful pleading.” Madigan, 397 Ill. App. 3d at 488-89.

In analyzing this issue, our Supreme Court has held that “the essence of a contractual action is found in the contract’s promissory language… A cause of action constitutes an action on a contract only when ‘liability emanates from the breach of a contractual obligation.’” Armstrong, 174 Ill.2d 281, 286. “As long as the gravamen of the [*266] complaint rests on the nonperformance of a contractual obligation, [the statute of limitations for breach of contract] applies.” Id.

In this case, Claimants argue that the gravamen of their Amended Complaint is the University’s non-performance of its contractual obligations as set forth in their enrollment/registration forms, Student Code, Campus Conduct policy, Code of Conduct, Policy and Procedures for Addressing Discrimination and Harassment, Graduate College Handbook, and Campus Administrative Manual (as well as the University’s website and other documentation). Respondent counters that the Amended Complaint is replete with allegations that make clear Claimant’s injuries are personal - not contractual - in nature, arising out of alleged claims sounding in harassment, discrimination, and other harmful contract and abusive acts of Xu. These alleged acts are torts in the nature of personal injury or alleged negligence by the University.

While we agree with Respondent that the allegations here seem more suited for a personal injury/negligence action based on respondent superior, and that Claimant’s use of breach of contract claims appear to be a way to circumvent the two-year limitations period, we will grant them the benefit of the doubt in this case. See United Airlines v. City of Chicago, 2011 IL App (1st) 102299, ¶6 (holding that, generally, where both a tort and a contract cause of action arise out of the same fact pattern, a plaintiff may proceed with the theory of his choice.)

Here, Claimants have alleged that they entered into contracts with the University that included certain promises set forth in the various handbooks and catalogs attached to the Amended Complaint. Among other things, these alleged contracts forbade harassment and discrimination based on race, color, national origin and citizenship status, and promised prompt and effective resolution of alleged or suspected incidents of harassment or discrimination. They forbade consensual sexual relationships between students and faculty when the faculty member had a conflict of interest. They required certain employees to report allegations of or disclosures of sexual violence or sexual misconduct to a Title IX coordinator. They prohibited professors from requiring students to perform personal services unrelated to academic duties. Claimant alleges the University breached these and various other contract provisions. As such, the alleged liabilities here could be said to emanate from the alleged breach of contractual obligations, and, thus, we will apply the five-year statute of limitations for Counts I and

II.12

However, this does not end the analysis as the Claimants’ claims still must have accrued within the applicable limitation period.

On September 19, 2019, the parties executed a Tolling Agreement pursuant to which the statute of limitations applicable to any cause of action that was not already untimely was tolled as of the date. Thus, the parties agree that any claims in Counts I and II that accrued prior to September 19, 2014, are time-barred. And any claims in Counts III and IV that accrued prior to September 19, 2017, are time-barred.

The parties agree that Counts III and IV are subject to the two-year statute of limitations set forth in in Section 22(h).

[*267] The parties also agree that most of the alleged breaches of contract set forth in Counts I and II occurred prior to September 19, 2014, and that all of the alleged violations of the Illinois Gender Violence Act (Count III) and the Trafficking Victims Protection Act (Count IV), respectively, occurred prior to September 19, 2017. Claimants, however, point out in their reply brief that both Section 22(a) and 22(h) expressly permit tolling for “persons under legal disability” and that this Court should allow their claims to proceed on that basis. Specifically, Claimants argue that Xu’s and the University’s actions caused them to suffer from post-traumatic stress disorder (PTSD), and thus they were under a “legal disability” that tolled the statuses of limitations applicable to their claims.

II. Legal Disability

The term “legal disability” is not defined in the Court of Claims Act. However, Illinois courts have generally held that to toll limitations due to legal disability, a plaintiff must be “entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his [or her] estate or financial affairs.”

In re Doe, 301 Ill. App. 3d 123, 126-27 (1st Dist. 1998). If a plaintiff can “comprehend the nature of the injury and its implications,” he is not legally disabled for purposes of limitations. Id. (holding that autism and PTSD were insufficient to toll limitations on claims of sex abuse by former teacher); see also Parks v. Kownacki, 193 Ill.2d 164, 178- 79 (200) (holding that PTSD suffered as a result of sex abuse is not a legal disability for purposes of tolling). As this Court has held, to suffer from a “legal disability,” one must be “entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his estate or financial affairs.” Taylor v. State, 67 Ill. Ct. Cl. 143, 145 (2014). “Many impairments, both physical and mental, may be termed disabilities. All disabilities. However, are not legal disabilities.” Sille v.

McCann Construction Specialties Co., 265 Ill. App. 3d at 1054. Further, “[t]he record must contain sufficient factual allegations from which one could conclude the individual seeking to be found legally disabled” falls within these standards. Bloom v. Braun, 317 Ill.

App. 3d 720, 731 (1st Dist. 2000).

Eschewing such precedents, Claimants urge this Court to look to the various definitions of “legal disability” that exist in other statutes, including the Crime Victims’ Compensation Act, 740 ILCS 45, et seq., which this Court also administers and which expressly includes PTSD among the qualifying conditions for a legal disability for purposes of that act. Illinois courts, however, need not rely on definitions of disability in other statutes to determine what constitutes “legal disability” for purposes of the statute of limitations. In Bloom, supra, the court rejected a similar argument from a plaintiff seeking to have the court look to the definition of legal disability utilized in the Statutes on Statutes, 5 ILCS 70/1.06 (West 1998) and stated as follows: ‘[Plaintiff] lastly contends that because she was unable to appreciate the fact or nature of her injury due to her diminished mental states and psychiatric disability, the statute of limitations was tolled because of a legal disability. She urges this court to follow the definition of legal disability utilized in the Statute on Statutes… “We find [plaintiff’s] argument unpersuasive…[T]o apply the section 1.06 definition to section 13-212 would be inconsistent with the legislative intent to protect [*268] the rights of those who are not competent to do for themselves.” Bloom, 317 Ill. App. 3d at 370, citing to Bruso v Alexian Brothers Hospital, 178 Ill.2d 445 (1997).

Similarly here, we are not persuaded that because the CVCA includes PTSD in its definition of “legal disability” we are required to utilize the same definition here. The CVCA is a different act with different objectives and purposes. Had the legislature intended to include PTSD in the definition of “legal disability” in the Court of Claims Act, it could have done so. It did not, and this Court will not read it into the act on its own.

Thus, where the record before the Court supports a finding that Claimants are capable of managing their own affairs, the statute of limitations is not tolled. In Doe, 301 Ill. Spp. 3d at 127, the fact that the plaintiff graduated from college, sought medical treatment, and enrolled in a master’s program during the alleged period of legal disability meant he was capable of managing his own affairs. Similarly, in Bloom, plaintiff’s gainful employment (even though she suffered from “panic attacks, crying, emotional highs and lows, and an angry attitude while at work”) and payment of her living expenses, proved the absence of a legal disability. Bloom, 317 Ill. App. 3d at 731.

Here, the Amended Complaint contains sufficient factual allegations to demonstrate that Claimants were not suffering from a legal disability sufficient to toll the statute of limitations. Both Sun and Zhao graduated from their degree programs during the alleged period of their disabilities. Further, Sun alleges she has been in therapy and on medication during the relevant time frame and it appears Zhao was too. Both Claimants continue to live in the United States and Zhao is pursuing her education in California. Sun was interviewed on national television regarding her claims on September 16, 2019, further indicating her ability to conduct her affairs.

Nonetheless, Claimants argue that whether they are suffering from a legal disability is a “question of fact” that cannot be decided on a motion to dismiss. However, the cases upon which they rely for this proposition do not so state. Indeed, several cases have dismissed claims as time-barred even in the face of an asserted legal disability on a motion to dismiss without an evidentiary hearing. See Bloom, 317 Ill. App. 3d at 724, 732 (affirming dismissal of a complaint pursuant to 2-619(a)(5); Doe, 301 Ill. App. 3d at 128 (same).

In conclusion, we find the Claimants here were not under a legal disability for purposes of Section 22 of the Court of Claims Act, and, thus, all of their claims in Counts I and II that accrued prior to September 19, 2014, and all of their claims in Counts III and IV that accrued prior to September 19, 2017, are barred by the applicable statute of limitations for such claims.

III. Surviving Claims

Claimants next argue that even if the majority of their claims are time-barred, the Amended Complaint contains detailed allegations about numerous breaches of contract in Counts I and II that occurred on or after September 19, 2014.13 The Amended Complaint does not appear to contain any allegations of conduct after September 19, 2017, that would give rise to claims under Counts III and IV, and, thus, those claims do not survive.

[*269] For example: • On September 19, 2014, the University sent Xu a completely toothless letter instructing him to have “no contact” with Sun, but it never informed Sun of this step or later, and it never met its contractual obligation to protect Sun from being (1) forced to travel with and (2) raped by Xu; • After the University instructed Xu to have “no contact” with Sun, the University affirmatively allowed him to keep Sun enrolled in his class during Spring 2015, even though that violated contractual provisions of the Student Code; • In April or May 2015, although the University was well informed of Xu’s pattern of violently beating Sun, the University never met its contractual obligation to keep her safe from additional, brutal attacks by the University’s own tenured professor; • In a series of events on August 4, 2015, Xu - again flouting the University’s “no contact letter” - slapped Sun, shoved her down some stairs, and chased her in his car as she fled on foot, apparently attempting to kill her. • On August 10, 2015, with absolutely no help from anyone at the University, Sun managed to get a temporary Domestic Violence Restraining Order (“DVTRO”) from the local court; • During or after the summer of 2015, University officials repeatedly grilled Sun about the most intimate details of her situation with Xu, without providing her with a victim advocate or designated support person (in breach of its contractual obligations); • Violating the August 2015 DVTRO, Xu contacted Sun in October 2015 to intimidate her into dropping her entire court case against him.

Respondents contend, however, that even if these allegations are timely they do not establish a breach of contract because the Amended Complaint fails to allege any enforceable contractual obligation that would have been breached by such conduct.

Illinois law requires a student to plead a specific, identifiable promise to assert a claim for breach of contract against the University. Charleston v. Bd. of Trustees of Univ. of Illinois at Chicago, 741 F.3d 769, 773 (7th Cir. 2013). It is not enough for a student to say an implied contract existed; rather, “the student’s complaint must be specific about the source of this implied contract, the exact promises the University made to the student, and the promises the student made in return.” Id.

Here, the Claimant cite to several examples (not meant to be an exhaustive list) of specific contractual provisions that they allege have been breached. For example: • “Once the University becomes aware of an incident of sexual misconduct, the University will promptly and effectively respond in a manner designed to eliminate the misconduct, prevent its recurrence, and address its effects.” See Sexual Misconduct Policy, WE CARE - UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN (Sep. 5, 2015)(emphasis added); • “If a complaint proceeds to a formal investigation… a prompt, thorough, and impartial investigation is conducted to determine if a violation of this policy occurred.” See Policy and Procedures for Addressing Discrimination and Harassment at the University of Illinois at Urbana-Champaign at 6 (hereinafter, “Discrimination Policy”) (emphasis added); [*270] • “Illinois is committed to the prompt and equitable resolution of all alleged or suspected violations of this policy about which the University knows or reasonably should know, regardless of whether a complaint alleging violation of this policy has been filed and regardless of where the conduct at issue occurred.” See Discrimination Policy at 5; • “The investigator will prepare a report at the conclusion of the investigation within 60 days from the date the investigator receives the complaint (or as soon as feasible when extensions are necessary) to ensure a thorough investigation.” See Discrimination Policy at 8 (emphasis added); • In the event that the University is presented with a credible report that a student has threatened or attempted suicide, that student will be required to attend four sessions of professional assessment.” See Student Code 2013- 2014 (emphasis added); • The University’s Discrimination Policy promises that “Illinois is committed to providing prompt and effective resolution of alleged or suspected incidents of discrimination or harassment;” that it “can unilaterally initiate any and all steps under this policy and procedures when it learns, either directly or indirectly, that discrimination, sexual harassment or retaliation is alleged to be taking place” (id); and that it “is committed to the prompt and equitable resolution of all alleged or suspected violations of this policy about which the University knowns or reasonably should know, regardless of whether a complaint alleging a violation of this policy has been filed and regardless of where the conduct at issue occurred… Illinois is []committed to investigating all alleged and suspected violations of this policy to the fullest extent possible under the circumstances” (id.); • “The University has a responsibility to respond when it learns, either directly or indirectly, that sexual harassment is alleged to be taking place.” (Id.); • “All members of the University community are expected to observe high standards of professional conduct and ethical behavior in graduate education.” A violation can occur when a professor “require[es] personal services unrelated to academic duties.” See Graduate Handbook; and • “Those acting on behalf of the University have a general duty to conduct themselves in a manner that will maintain and strengthen the public’s trust and confidence in the integrity of the University and take no actions incompatible with their obligations to the University.” University Code of Conduct.

None of these provisions alleges a specific contractual promise. Most of them are either aspirational in nature or allow the University a level of discretion that makes it impossible to glean a specific promise. For example, the University promises to “promptly and effectively respond” to reports of sexual misconduct.

A “prompt and thorough investigation” will be made. “All members of the University community are expected to observe high standards of professional conduct and ethical behavior.” These are general statements with no specificity as to what constitutes promptness, thoroughness, and high standards. See, e.g., Doe v. Syracuse Univ., 440 F. Supp. 3d 158, 175 (N.D. NY 2020) (“general policy statements and broad and unspecified procedures and guidelines will not suffice” to impose contractual liability); Lucero v. Curators of Univ. of Missouri, 400 S.W. 3d 1, 7 (Mo. Ct. App. 2013) (general aspirational statements about ethical standards insufficient for contract claim.) Gally v. Columbia Univ., 22 F. Supp. 2d 199, 207 (S.D.N.Y. 1998) (“SDOS’s alleged promises about ethical conduct are subject to [*271] neither quantification nor objective evaluation.”). As such, we see nothing in these allegations, or any of the others in the Amended Complaint, that meet the requirements of an identifiable contractual promise to Claimants.

Even the Claimants’ argument that the Discrimination Policy contained a specific promise by the University to complete its investigation into Sun’s complaint within 60 days glosses over the fact that the policy also states that it can take longer than 60 days if such longer period is needed “to ensure a thorough investigation” and that the University’s ability to investigate can be affected by the complainant’s willingness to cooperate. the policy also states that the University “may alter any of the requirements of these procedures (for investigating claims of harassment or discrimination), including extending timelines, provided that the alteration does not impair the ability of the complainant to bring a complaint or the respondent to defend himself or herself.

Here, the University’s investigation into Sun’s discrimination complaint took almost a year to complete. But Sun admits that she recanted her claims and refused to cooperate with the University’s investigation on multiple occasions.

The University’s alleged failure to complete the investigation within 60 days could not be a breach given its clear right to take longer if necessary and to extend the timelines so long as such extension did not impair the ability of the complainant to bring the complaint. Liu v. Northwestern Univ., 78 F. Supp. 3d 839, 847-48 (N.D. Ill. 2015) (finding no contractual obligation to “promptly” investigate claims of discrimination where the “phrasing [of policy] indicate[d] that Northwestern expect[ed] that some investigations, such as [plaintiff’s] will not be completed within 30 to 60 days.”) In sum, while Claimants may have legitimate grievances with the University’s handling of their cases, and may even be able to state claims for liability based on various legal theories, the Amended Complaint does not, and cannot, sufficiently plead violations of specific contractual promises that would give rise to claims for breach of contract. Thus, we find Counts I and II must be dismissed.

Conclusion

For the foregoing reasons, IT IS HEREBY ORDERED, that Respondent’s Motion to Dismiss is GRANTED and the Claimants’ Amended Complaint is hereby dismissed with prejudice. All other pending motions are hereby declared moot.