Lykowski v. Bergman, 1-96-4169

• Court: United States Appellate Court of Illinois
• Writing for the Court: ZWICK
• Citation: 233 Ill.Dec. 356,700 N.E.2d 1064,299 Ill.App.3d 157
• Parties: , 233 Ill.Dec. 356 Lawrence M. LYKOWSKI, Plaintiff-Appellant/Cross-Appellee, v. Robert L. BERGMAN, individually and as Chairman of the 13th Judicial Sub-Circuit Republican Campaign Committee and the 13th Judicial Sub-Circuit Republican Campaign Committee, Defendants-Appellees/Cross Appellants.
• Docket Number: No. 1-96-4169,1-96-4169
• Decision Date: 18 September 1998

Page 1064

700 N.E.2d 1064 299 Ill.App.3d 157, 233 Ill.Dec. 356 Lawrence M. LYKOWSKI, Plaintiff-Appellant/Cross-Appellee,
v.
Robert L. BERGMAN, individually and as Chairman of the 13th
Judicial Sub-Circuit Republican Campaign Committee and the
13th Judicial Sub-Circuit Republican Campaign Committee,
Defendants-Appellees/Cross Appellants. No. 1-96-4169. Appellate Court of Illinois,
First District, Sixth Division. Sept. 18, 1998.

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[299 Ill.App.3d 159] [233 Ill.Dec. 359] James F. Driscoll, P.C., James F. Driscoll, Schaumberg, for Appellant.

Nelson & Valentino, Richard A. Valentino, Arlington Heights, Levin, McParland, Phillips & Leydig, [299 Ill.App.3d 160] Neil M.B. Rowe, Chicago, for Appellee.

Justice ZWICK delivered the opinion of the court:

This appeal is from a judgment entered pursuant to section 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)) on defendants' motions to dismiss the plaintiff's one count complaint alleging libel. The cross-appeal is from an order of the circuit court denying defendants' motion pursuant to Supreme Court Rule 137 (134 Ill.2d R. 137) for sanctions. In addition to defendants' Rule 137 cross claim, we are asked to consider (1) whether the trial court abused its discretion in refusing to allow defendant Bergman to withdraw his originally-filed answer and substitute therefor the motions to dismiss; (2) if not, whether the trial court committed reversible error in dismissing the complaint either on grounds that it failed to allege sufficient facts to state a cause of action for libel or because the statements in the complaint alleged to have been libelous were protected by a defamation privilege; and (3) whether the court abused its discretion in refusing to consider plaintiff's proposed amended complaint.

The record establishes that on March 13, 1996, plaintiff, Lawrence M. Lykowski, filed a one count complaint in the circuit court alleging libel against defendants, Robert L. Bergman and the 13th Judicial Sub-Circuit Republican Campaign Committee. Bergman was named in both his individual and representative capacities. Lykowski alleged that he was a Republican candidate for the office of Judge of the Circuit Court of Cook County, Sub-Circuit 13(A), and that, on or about March 14, 1996, Bergman accused him of "certain unethical acts and improper conduct," as well as being a liar. Bergman was alleged to have made these allegations to the "the newspapers" and to Lykowski's employer, the Cook County State's Attorney. The complaint further asserted that Bergman made the accusations for the sole purpose of disparaging and discrediting Lykowski in his campaign for the office of Judge.

Also on March 15, 1996, plaintiff Lykowski filed an Ex Parte Motion For Temporary Restraining Order which sought to prevent Bergman from publishing any further information regarding Lykowski. The Motion stated that Bergman had "leaked" to "certain newspapers" a letter addressed to the Attorney Registration and Disciplinary Commission (ARDC) for the sole purpose of defaming Lykowski's professional reputation. The letter, which is dated March 9, 1996, was attached to the motion as an exhibit. The motion alleged that Bergman's letter was libelous per se in that it included following allegedly false allegations:

[299 Ill.App.3d 161] (1) that Lykowski had deliberately omitted truthful answers to certain questions asked of him by the Chicago Bar Association Judicial Evaluation Committee;

(2) that a murder conviction in the case of People v. Phillips, 159 Ill.App.3d 142, 111 Ill.Dec. 345, 512 N.E.2d 734 (1987) was reversed on appeal because of improper comments made during the trial by Lykowski; and

(3) that Lykowski was involved in improper conduct as a prosecutor "regarding

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[233 Ill.Dec. 360] a DUI trial" that occurred on or about February 4, 1994.

These specific allegations were not included in Lykowski's complaint. After listening to testimony on the motion, the court denied Lykowski's request for a temporary restraining order.

On that same day, March 15, 1996, defendant Bergman entered a hand-written Answer to Lykowski's complaint. In the Answer, Bergman admitted many of substantive allegations of plaintiff's complaint including the allegation that he had accused Lykowski of certain unethical acts and improper conduct on or about March 14, 1996. Bergman denied, however, that (1) he had presented no evidence supporting his charges of ethical misconduct, (2) charges of ethical misconduct had never before been brought against Lykowski; and (3) he had made the allegedly false statements concerning Lykowski for the sole purpose of disparaging and discrediting him.

Approximately four weeks later, on April 16, 1996, Bergman made an oral motion to withdraw his Answer. The circuit court entered an order giving him leave to withdraw it and to re-answer the complaint or otherwise plead within 14 days.

On May 1, 1996, Lykowski filed a Motion to Reconsider the court's order allowing Bergman to withdraw his Answer. In the motion, Lykowski alleged that no good reason had been offered which warranted allowing the withdrawal. In response to this motion, Bergman filed a response which explained that the Answer had been "hastily prepared" and that he had made the request to withdraw it so that pleadings could be filed testing the sufficiency of the complaint. Bergman cited authority holding that the decision to grant or deny such a request is within the sound discretion of the trial court (see e.g., Premo v. Falcone, 197 Ill.App.3d 625, 629, 144 Ill.Dec. 32, 554 N.E.2d 1071 (1990); Wheeler v. Caterpillar Tractor Co., 123 Ill.App.3d 539, 541-42, 78 Ill.Dec. 908, 462 N.E.2d 1262 (1984), rev'd on other grounds, 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372 (1985)) and asserted that the court's April 16, 1996 decision to grant his request did not cause Lykowski any undue prejudice.

On May 10, 1996, the court denied Lykowski's Motion to Reconsider. The court also took notice of two motions to dismiss Lykowski's complaint and set them for hearing on September 3, 1996.

[299 Ill.App.3d 162] On September 3, 1996, following hearing on the motions, the circuit court entered an order dismissing plaintiff's complaint pursuant to the terms of sections 2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 1996). In addition, the court denied Lykowski's request to allow him to amend the complaint. Lykowski thereafter filed this timely appeal.

Initially, we address Lykowski's claim that the trial court improperly allowed Bergman to withdraw his hand-written answer and file in its place the motions to dismiss. Section 2-616(a) of the Code (735 ILCS 5/2-616(a) (West 1996)) controls this issue. This section states that amendments raising new defenses may be allowed at any time before final judgment. Section 2-616(a) is to be liberally construed, and doubts which exists concerning the propriety of allowing an amendment must be resolved in favor of the party seeking to make it. People ex rel. Foreman v. Village of Round Lake Park, 171 Ill.App.3d 443, 121 Ill.Dec. 561, 525 N.E.2d 868 (1988). Factors to be considered in determining whether the trial court abused its discretion in ruling on a request to amend include whether other parties would sustain prejudice or surprise by virtue of the proposed amendment and whether previous opportunities to amend pleadings could be identified. Kupianen v. Graham, 107 Ill.App.3d 373, 377, 63 Ill.Dec. 125, 437 N.E.2d 774 (1982).

Here, Bergman's motion to withdraw his answer was made for the purpose of raising an affirmative defense and was made within a relatively short time after plaintiff's complaint had been filed. Lykowski does not allege any particular prejudice or surprise caused by the court's decision to allow the withdrawal of Bergman's Answer, other than that he had to undergo the effort required to reply to the motions. Accordingly, we find

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[233 Ill.Dec. 361] no abuse of discretion. Cf. Sunderland v. Tri-City Community Unit School District No. 1, 193 Ill.App.3d 266, 269-70, 140 Ill.Dec. 341, 549 N.E.2d 992 (1990); Premo, 197 Ill.App.3d at 629, 144 Ill.Dec. 32, 554 N.E.2d 1071.

We next turn to the question of whether the trial court improperly dismissed Lykowski's complaint, either pursuant to section 2-615 or section 2-619 of the Code. The court specifically stated that it was granting relief on both grounds. We address Bergman's section 2-615 motion first.

A motion to dismiss under section 2-615 tests the legal sufficiency of a pleading. Doe v. Calumet City, 161 Ill.2d 374, 384, 204 Ill.Dec. 274, 641 N.E.2d 498 (1994). In determining the legal sufficiency of a complaint, all well-pleaded facts are taken as being true and all reasonable inferences from those facts are drawn in favor of the plaintiff. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 490, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). The sufficiency of a complaint is an issue of law which we review de novo. Busch v. Graphic Color Corp., 169 Ill.2d 325, 333, 214 Ill.Dec. 831, 662 N.E.2d 397 (1996). The [299 Ill.App.3d 163] question on appeal from the granting of a section 2-615 motion is whether the allegations in the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Connick, 174 Ill.2d at 490, 221 Ill.Dec. 389, 675 N.E.2d 584.

Bergman notes that in order to...