Sutherland v. Illinois Bell

• Decision Date: 28 September 1993
• Docket Number: No. 1-91-3540,1-91-3540
• Citation: 627 N.E.2d 145,254 Ill.App.3d 983,194 Ill.Dec. 29
• Parties: , 194 Ill.Dec. 29 Kimberly A. SUTHERLAND, Plaintiff-Appellant, v. ILLINOIS BELL and AT & T, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 145

627 N.E.2d 145

254 Ill.App.3d 983, 194 Ill.Dec. 29

Kimberly A. SUTHERLAND, Plaintiff-Appellant, v. ILLINOIS BELL and AT & T, Defendants-Appellees.

No. 1-91-3540.

Appellate Court of Illinois First District, Second Division.

Sept. 28, 1993.

Kimberly A. Sutherland, pro se.

Victoria Bush-Joseph, Chicago, for appellee Illinois Bell.

Jones, Ware & Grenard (Mitchell Ware, Frank M. Grenard, Diane McCollough, of counsel), Lois Lipton, Chicago, for appellee AT & T.

Justice SCARIANO delivered the opinion of the court:

On July 24, 1989, plaintiff Kimberly A. Sutherland, an attorney, brought a two-count complaint against defendants Illinois Bell (Bell) and AT & T, requesting injunctive relief and damages grounded on charges that they had provided her with inadequate telephone service. After defendants filed a motion to dismiss her complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-615) for failure to state a cause of action, plaintiff sought leave to file an amended complaint against Bell and AT & T, as well as to add a new defendant, the Illinois Commerce Commission (ICC).

Count I of plaintiff's proposed amended complaint prayed for a declaratory judgment against Bell and the ICC, requesting that the court either determine that the ICC had jurisdiction over her action or enjoin Bell from disconnecting her telephone service while her case was pending. Count II charged Bell with various breaches of contract, but at oral argument before this court, plaintiff scaled down that claim to an "inside wire service" which she was charged for but was never ordered, provided, or removed from her bill upon request. Count III sought injunctive relief and damages in tort against Bell for intentional infliction of emotional distress, claiming that Bell threatened to disconnect her phone service if she did not pay certain disputed charges. Count IV requested injunctive relief against Bell in behalf of plaintiff and all persons similarly situated, alleging violation of the Consumer Fraud and Deceptive Business Practice Act (Consumer Fraud Act). The "second count IV" ¹ of the proposed amended complaint requested injunctive relief and damages against AT & T for breach of contract, specifically alleging that AT & T charged her for defective telephones and that it improperly installed telephone jacks in her law office. Count V sought damages and injunctive relief in tort against AT & T for intentional infliction of emotional distress, claiming that AT & T threatened to disconnect her telephone service when she refused to pay disputed charges. Finally, count VI, based on the Consumer Fraud Act, sought injunctive relief against AT & T in behalf of herself and all persons similarly situated.

Both Bell and AT & T objected on several grounds to plaintiff's motion for leave to file her proposed amended complaint, but on June 27, 1990, the court granted her motion, although it denied her leave to add the ICC as a defendant. Thereafter, on August 22, 1990, AT & T moved to dismiss counts V (intentional infliction of emotional distress) and VI (consumer fraud), invoking section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-615); AT & T also answered the "second count IV" of the amended complaint (breach of contract) and filed a counterclaim on that same date. On May 23, 1991, Bell moved to dismiss counts I-IV of plaintiff's first amended complaint.

On September 16, 1991, the trial judge issued a memorandum of opinion wherein she held that the ICC had exclusive jurisdiction over plaintiff's contract claims against Bell and AT & T. The judge also held, as a matter of law, that plaintiff's first amended complaint did not state a cause of action for intentional infliction of emotional distress, while saying nothing at all of plaintiff's consumer fraud counts. The memorandum of opinion concluded by stating that "plaintiff's motion to file her First Amended Complaint is hereby denied and plaintiff is advised to pursue her administrative remedies."

On October 23, 1991, plaintiff presented a "motion to clarify" the trial court's memorandum of opinion, specifically alleging that since AT & T was a private company, it was not subject to ICC regulation, and calling to the court's attention the fact that the opinion made no mention of her consumer fraud counts. That same day, the trial court denied her motion to clarify and dismissed with prejudice her cause of action. On November 1, 1991, plaintiff filed her notice of appeal from the order entered on October 23.

I.

AT & T first maintains that we do not have jurisdiction over this appeal because plaintiff's notice of appeal was filed on November 1, 1991, more than thirty days after the trial court's issuance of its memorandum of opinion on September 16, 1991. In essence, AT & T argues that although the trial court's memorandum of opinion did not state that it was dismissing plaintiff's first amended complaint with prejudice, it was nonetheless a final and appealable order as the substance of the opinion did in fact dismiss the case with prejudice, and plaintiff could not extend the time to appeal by filing its "motion to clarify."

We do not agree. It is well settled that the dismissal of a complaint is generally not final and appealable unless the order states that it is "with prejudice" or in some other way indicates that the litigation is terminated and the plaintiff will not be permitted to replead. McMann v. Pucinski (1991), 218 Ill.App.3d 101, 106, 161 Ill.Dec. 22, 26, 578 N.E.2d 149, 153; J. Eck & Son, Inc. v. Reuben H. Donnelley Corp. (1989), 188 Ill.App.3d 1090, 1093, 136 Ill.Dec. 646, 648, 545 N.E.2d 170, 172; Ben Kozloff, Inc. v. Leahy (1986), 149 Ill.App.3d 504, 506, 103 Ill.Dec. 217, 219, 501 N.E.2d 238, 240; O'Hara v. State Farm Mutual Auto Insurance Co. (1985), 137 Ill.App.3d 131, 133-34, 92 Ill.Dec. 103, 105, 484 N.E.2d 834, 836.

In the case at bar, the September 16 memorandum of opinion cannot be considered final and appealable for the reason that it did not even state that the court was dismissing the first amended complaint, let alone that it was dismissing plaintiff's entire cause of action with prejudice. Instead, the opinion denied plaintiff's motion to file her first amended complaint and "advised [her] to pursue her administrative remedies." While it is true that the court held it did not have jurisdiction over plaintiff's contract claims--a fair implication that it was dismissing those counts--it did not similarly imply that plaintiff could not replead the intentional infliction of emotional distress counts; and plaintiff's consumer fraud counts were not even addressed. It is axiomatic that an order which disposes of some but not all claims in a complaint cannot be final and appealable absent a finding by the trial court that there is no just reason to delay enforcement or appeal of the judgment. (134 Ill.2d R. 304(a); Ferguson v. Riverside Medical Center (1985), 111 Ill.2d 436, 440, 96 Ill.Dec. 47, 49, 490 N.E.2d 1252, 1254; Arachnid, Inc. v. Beall (1991), 210 Ill.App.3d 1096, 1102, 155 Ill.Dec. 662, 665, 569 N.E.2d 1273, 1276.) Accordingly, we hold that the September 16 memorandum of opinion was not an appealable order, and that we have jurisdiction of plaintiff's timely appeal from the October 23 order dismissing with prejudice her first amended complaint.

II.

"The question presented by a motion to dismiss a complaint for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief." (Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill.2d 1, 9, 180 Ill.Dec. 307, 311, 607 N.E.2d 201, 205.) When the sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom (Kolegas, 154 Ill.2d at 9, 180 Ill.Dec. at 311, 607 N.E.2d at 205); and the reviewing court must determine whether the allegations therein, when viewed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 505, 152 Ill.Dec. 121, 124, 565 N.E.2d 654, 657.) However, a motion to strike a complaint does not admit conclusions of law or fact unsupported by specific factual allegations upon which such conclusions rest (Burdinie, 139 Ill.2d at 505, 152 Ill.Dec. at 124, 565 N.E.2d at 657); and while pleadings are to be construed liberally (Ill.Rev.Stat.1991, ch. 110, par. 2-603(2)), "a complaint which does not allege facts, the existence of which are necessary to enable a plaintiff to recover, does not state a cause of action and * * * such sufficiency may not be cured by liberal construction or argument." In re Beatty (1987), 118 Ill.2d 489, 500, 115 Ill.Dec. 379, 384, 517 N.E.2d 1065, 1070.

The determination of whether a complaint sufficiently states a cause of action so as to survive a 2-615 challenge involves a two-step process, as stated in People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 58 Ill.Dec. 754, 430 N.E.2d 1005:

"To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citation.] Second, and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed." Fahner, 88 Ill.2d at 308, 58 Ill.Dec. at 758, 430 N.E.2d at 1009.

Before addressing the substance of plaintiff's cause of action under these guidelines, we must first...