*1 NOVOTNY, ROWAN, Defendant- v. C. J. Plaintiff-Appellant, GERARD T. Appellee. (5th Division) No. 85 — 1937
First District 26, 1987. Opinion filed June SULLIVAN, P.J., dissenting. *2 Ehrlich, Marcus,
Arthur R. & Chicago, of Goldman of for appellant. James A. Kathy Saxton, Wildman, Christman and Pinkstaff both of Harrold, Dixon, Allen & of Chicago, appellee.
JUSTICE LORENZ of the opinion delivered the court: 22,. 1985, Plaintiff from the appeals May order of the circuit court which dismissed his amended two-count with complaint preju- dice.
He contends that his is not the (1) complaint barred statute of rule; limitations the discovery (2) to the letter which the pursuant in to Department wrote the of reply request by Labor's Workers’ Compensation Commission exceeded the of scope privi- his lege; (3) sufficient facts were contained within to complaint sup- port malice; the allegations (4) of the complaint alleged special damages.
We vacate remand. I
Count of amended plaintiff’s complaint two-count to purports state a per quod, cause of action libel upon based while count II purports state a cause of action based libel se. The upon per complaint alleged plaintiff amended was employed by that United States Postal and that of his during Service course em- ployment injuries he sustained and was his process claims for injury with the Office of Compensation Workers’ Pro- grams, Administration, Employment Standards United States De- Labor, partment during of and that of his claim processing defendant was requested supply regarding plaintiff’s information alleges condition. Plaintiff that the information provided defend- ant was libelous.
In his motion to dismiss to section 2—619 of the pursuant Code of (Ill. Civil Procedure Stat. ch. sec. 619), Rev. defend including ant advanced numerous arguments, following: (1) plain tiff’s was it was filed more than one complaint year barred because after of publication writings regarding plain- last defendant’s his cause diligence due to discover tiff; to exercise (2) plaintiff failed plaintiff privileged referred was action; (3) the document which of plain- written at the request communication inasmuch it was privileged were also employer; (4) tiff’s communications States United public employed by plaintiff employee was forth facts to demonstrate Service; (5) Postal failed set plaintiff to allege special I failed (6) actual malice defendant’s count part; on II of action based (7) count failed state damages; and upon per libel se. mo 22, 1985, granted circuit
On
court
May
for the dis
stating
tion
without
prejudice
to dismiss with
the dis
which
upon
missal and
the code
specifying
without
this
to provide
missal
made.
addition
failed
In
22, 1985,
and we are
proceedings May
court with
transcript
the merits
the appeal.
therefore unable
reach
misapplied
It
and the circuit court
appears
the defendant
of Civil Procedure
pertaining
sections of the Code
an
this
not
Unfortunately,
misapplication
motion.
this
Code
Service,
Keystone Printing
Davis v.
infrequent
practice. (See
trial
procedure
Inc.
This
not
judges
always
not
trial
although
should
be countenanced
(Pre
fatal it
if
results to nonmovant.
prejudice
will
reversal
require
*3
mier
v.
Bank (1983),
La Salle National
Electric Construction Co.
638,
115
The
of confus
1360.)
consequences
Ill.
450 N.E.2d
For
in Andre v. Black
ing
example,
code sections
severe.
may 970,
7
289
(1972),
well
Ill.
Electronics Industrial Co.
27,
the
of
on a mo
complaint
N.E.2d
this court reversed
dismissal
a
of
arguments
tion
of section 2—619. One
predecessor
under
the dismissal
that the complaint
of
was
support
made in
im
argument
held that this
was
failed to state a cause of action. We
on a
complaint
on
was dismissed
properly raised
appeal
argument
section
and the
motion under the
of
2—619
predecessor
a
of
itself
that the
to state
cause
action addressed
failed
complaint
of the Code
Procedure.
of
2—615
of Civil
predecessor
affording
of
2—619 is
that
primarily
The
of section
purpose
disposition
of a case a summary
a
of
at the outset
obtaining
means
of
issues
fact. The
of
easily
of issues of law or of
proved
Stat.,
Ann.
ch.
(Ill.
entire claim or demand.
go
motion must
an
Jenner,
E.
(by
*4
cause is barred
statute of limitations.
v.
by
Stanley
220,
Chastek
34 Ill.
The question here to whether knew presented as or had grounds reasonable know of the libelous nature defend question ant’s letter is a have plaintiff’s allegations of fact. Once
695 alternative motion, preferable withstood a section in matter issue put defendant remand, thereby permitting 79 Fields Bebee v. by filing as of fact an answer. a question 1009, 1214. Ill. 398 N.E.2d App. 3d misapplied
Here, consistently has not defendant only to con- such confusion but, addition, circuit court allowed in acqui- defendant below The utilized practice tinue. motion sanctioned. Because in the trial court cannot be esced 619, 2—615 and motions for relief under sections commingling of a has found court speculate we could as whether circuit only some affirmative of action or has found that failure to state cause that a cause relief, finding thus precludes necessarily matter so could so because do speculate action was stated. We will not cause either prejudice party. of the circuit court Cook vacate
Accordingly, judgment we this consistent with proceedings remand for further County and opinion. proceedings.
Vacated and remanded further J., MURRAY, concurs. SULLIVAN, dissenting:
PRESIDING JUSTICE granting defendant’s motion majority The vacates judgment because, only as stated in its “not prejudice opinion, dismiss with addition, but, in section 2—619 consistently misapplied defendant The motion to continue. circuit court allowed such confusion in the trial practice acquiesced utilized by below of motions commingling court cannot be sanctioned. Because 619, only speculate for relief 2—615 and we could under sections failure to state as to whether the circuit court has found a relief, matter precludes of action or has found that some affirmative cause of action was stated. We will necessarily finding thus to either prejudice not do so could cause speculate so because 695. at party.” in
However, opinion, out its pointed judg- also majority a motion commingling not set aside of a in ment should 2—615 and 2—619 unless grounds to dismiss of under both sections (Wilde nonmovant. in to the commingling prejudice results Association 134 Ill. Savings First Federal & Loan Cali v. DeMattei 1236; Co. v. La Electric Construction Premier *5 Salle National Bank 641-43, 115 Ill. N.E.2d 1360.) Because the no majority finding made of preju dice and since makes no contention that he prejudiced, it follows that vacatur inappropriate and that this appeal should be decided on its merits.
Furthermore, contrary to the expression of the it majority, should not speculate on the trial court’s ruling. It only would be necessary that this court consider issues presented argued and here parties. They (a) are whether plaintiff’s complaint was timely rale, under discovery (b) whether letter exceeded the scope his privilege (c) and whether plaintiff’s complaint alleged special damages. (a) Issues (b) clearly set forth grounds under sections 619(5) 615(9), 2— respectively, (c) ground is clearly a under section 2—615. In re- manding for further its proceedings opinion consistent with the ma- does not jority delineate “the further it proceedings,” ap- but would pear require defendant present motions under separate sections 2—615 and for rulings This, the trial court. course, would only result in a representation in a later appeal same thereof, issues that are now before us. In judicial expedi- view Bescor, ency suggests that they be considered now. See Inc. Chi- cago Title Trust & Co. 113 Ill. App.
where the court stated in a footnote:
“This ‘hybrid’
procedure
a motion under sec-
combining
tion 45
and motion
under section 48
[now
615]
[now
has been disapproved.
(See Moreno v. Joe Perillo
619]
Pontiac,
Inc.
James v.
see also
First
Savings
Federal
& Loan Association
57 Ill. 2d
398, 312
judicial
Nonetheless in
the interest
economy and to
delay
avoid
we do not remand
foregoing but consider each of the
thereby
issues
presented.”
66.
Notes
Albert
Practice
110,
615, Historical and
par. 2—
Al
1985).)
Martin) (Smith-Hurd
M.
Jr.,
Tone
Arthur
and
Philip W.
attacked
pleading
of the
on the face
appear
defects
though
a section
section,
by
be reached
letter of
to the
according
may,
694
motion,
the section is not designed
(Leitch
for that purpose.
211,
v. Hine
90.)
393
66 N.E.2d
In
words,
other
if the
only ground of motion is a defect that appears on the face of the
pleading
attacked the
of reaching
method
that defect is
aby motion under section 2—615.
In this
appeal
defendant’s
that the complaint
contentions
failed to
malice,
demonstrate actual
failed to
of
state
action
based upon
per
libel
se
allege
and failed to
special damages were
not properly before the trial court and are not
before us.
properly
Motions made pursuant to section 2—619 of the Code of Civil Proce
dure must be limited
grounds
to one
the nine
enumerated
therein. (Phillips Construction
Co. v. Muscarello
Ill. App.
151,
A
567.)
355 N.E.2d
failure to allege special
damages
failure to state a cause of
arguments
action are not
to be advanced
through
section 2—619
but
through
motion
rather
a section 2—615
(Ill.
1985,
110,
motion.
Rev. Stat.
ch.
par.
see Andre v.
,
Blackwell
Electronics Industrial
Ill. App.
Co.
3d 970
It
27.) would be
improper
unjust to allow the defendant
complaint
attack the
failing
after
to file a proper motion pointing
out
specifically
defects
complained
(Ill.
statute
1985,
110,
Rev. Stat.
ch.
615) because the
par.
purpose
statute is
give
plaintiff
an
opportunity
respond
the ob
jection
cure the defect in the trial court. Michigan Avenue
507,
National Bank v. State Farm Insurance