Weber v. Cueto

• Decision Date: 14 December 1993
• Docket Number: No. 5-92-0064,5-92-0064
• Parties: , 191 Ill.Dec. 593 Virginia Rulison WEBER, Plaintiff-Appellant, v. Amiel CUETO, Defendant-Appellee (Marvin Darling, Defendant).
• Court: United States Appellate Court of Illinois

Page 442

624 N.E.2d 442

253 Ill.App.3d 509, 191 Ill.Dec. 593

Virginia Rulison WEBER, Plaintiff-Appellant, v. Amiel CUETO, Defendant-Appellee (Marvin Darling, Defendant).

No. 5-92-0064.

Appellate Court of Illinois Fifth District.

Dec. 14, 1993.

David M. Duree, Robert L. Carter, Reinert, Duree & Crane, P.C., St. Louis, MO, David M. Duree, O'Fallon, for plaintiff-appellant.

Karen L. Kendall, Bradley S. McMillan, Heyl, Royster, Voelker & Allen, Peoria, Adrian E. Harless, Heyl, Royster, Voelker & Allen, Springfield (Karen L. Kendall, Bradley S. McMillan, Adrian E. Harless, of counsel), for Amiel Cueto.

Justice McLAUGHLIN delivered the opinion of the court:

Plaintiff, Virginia Rulison Weber, appeals from the order of the circuit court of Madison County which granted summary judgment in favor of defendant Amiel Cueto, granted defendant Marvin Darling's motion to dismiss, and vacated a previous order allowing plaintiff leave to file a second-amended complaint. For the reasons which follow, we affirm.

The relevant procedural history is as follows. On January 11, 1984, plaintiff filed a three-count complaint in the circuit court. Count I of the complaint alleged that defendant Cueto had defamed plaintiff by circulating a libelous letter, dated January 14, 1983, to the chief judge of Madison County, the 29 members of the Madison County Board, and the Attorney Registration and Disciplinary Commission (Commission). Count II alleged that defendant Darling, in conspiracy with defendant Cueto, had defamed plaintiff by circulating the letter as described. Count III alleged that defendant Darling had defamed plaintiff by originally communicating to Cueto the defamatory material which Cueto included in the letter.

Both defendants filed motions attacking the complaint, and after obtaining leave of court, plaintiff filed a first-amended, four-count complaint on January 26, 1987. (Parenthetically, we note that as of that date, the one-year statute of limitations for libel had run (735 ILCS 5/13-201 (West 1992)), as plaintiff has conceded in her brief and argument.) Count I of the first-amended complaint was directed against both defendants and alleged libel per se by the circulation of the letter to the chief judge, the board members, the Commission, and "various newspapers circulated generally in Madison County, Illinois." Count II was directed against both defendants and alleged libel per quod by the circulation of said letter and publication in "various newspapers" as described in amended count I. Count III was directed against both defendants and alleged that beginning in December 1982 the defendants conspired to defame plaintiff, which defamation involved composition and publication of the letter to the authorities and newspapers as described in amended count I. Count IV of the first- amended complaint (which is essentially the same as count III of the original complaint) alleged that defendant Darling had defamed plaintiff by originally communicating to Cueto the defamatory material which Cueto included in the letter.

On November 22, 1989, the circuit court entered an order granting Cueto's motion to dismiss. The court ruled that Cueto's distribution of the letter to the chief judge, the county board members, and the Commission was privileged, and the court dismissed with prejudice all the counts against Cueto. The court also made a finding, pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the order.

Plaintiff appealed from the order dismissing the allegations against Cueto. On appeal, plaintiff did not contest the dismissal with respect to the circulation of the letter to the chief judge or the Commission. In a decision filed in this court on March 8, 1991, we concluded that the distribution of the letter to the County Board members was absolutely privileged, and we therefore affirmed the dismissal of the allegations against Cueto with respect to the board members. (Weber v. Cueto (1991), 209 Ill.App.3d 936, 947, 154 Ill.Dec. 513, 519-20, 568 N.E.2d 513, 519-20.) However, we also noted that plaintiff's first-amended complaint against Cueto included allegations that Cueto libelled plaintiff by publishing the letter to "various newspapers circulated generally in Madison County, Illinois." These allegations were not covered by the circuit court's ruling, and we therefore reversed the dismissal order with respect to the allegations concerning publication to the newspapers, and we remanded for further proceedings in that regard, expressing no opinion on the merits thereof. Weber, 209 Ill.App.3d at 948, 154 Ill.Dec. at 520, 568 N.E.2d at 520.

After remand, various motions were filed, and over objection, plaintiff was granted leave to file a second-amended complaint. A three-count, second-amended complaint was filed on August 27, 1991. Count I, against Cueto only, alleged that he defamed plaintiff by publishing the letter to, or causing the republication of the letter by, seven specifically named newspapers; according to this complaint, articles describing the letter appeared in newspaper editions of January 19, 20, and 24, 1983. Count II was directed against Darling and alleged that Darling caused the publication of the letter to the board members and newspapers. Count III was directed against both Cueto and Darling and alleged that beginning in December 1982 the defendants conspired to defame plaintiff. We note that the plaintiff did not replead count IV of the first-amended complaint in this second-amended complaint.

On January 6, 1992, the circuit court entered an order ruling on Cueto's motion to reconsider the order granting leave to file a second-amended complaint, Cueto's motion for summary judgment, and Darling's motion to dismiss.

With respect to Cueto, the court granted summary judgment, concluding that the alleged publication to the newspapers was "a separate cause of action" from any cause of action pleaded in the original complaint, for the ostensible reason that it required proof of different factual matter. The trial court reasoned that because the cause of action with respect to the publication to the newspapers was pleaded for the first time in the first-amended complaint, the first-amended complaint did not "relate back" to the original complaint. (In light of its ruling on the first-amended complaint, the court vacated its order granting leave to file a second-amended complaint, and the second-amended complaint was not allowed to be filed by the trial court.) Because the first-amended complaint was filed after the expiration of the one-year statute of limitations for libel (735 ILCS 5/13-201 (West 1992)) and, per the court, it did not relate back, the court granted Cueto's motion for summary judgment and dismissed the complaint against Cueto with prejudice. (We note that the trial court did not specify the particular counts dismissed.)

With respect to Darling also, the court concluded that the first-amended complaint did not relate back to the original complaint and therefore the first-amended complaint was barred by the statute of limitations. The court dismissed the complaint against Darling with prejudice.

Plaintiff has appealed once again to this court.

We initially note that defendant Darling raised the defense of the statute of limitations in a motion to dismiss but defendant Cueto first raised the defense of the statute of limitations on August 5, 1991, in a motion for summary judgment under section 2-1005 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-1005). The motion for summary judgment alleged there was no genuine issue of material fact because "Defendant Cueto did not publish the report at issue in this case to 'various newspapers circulating generally in Madison County, Illinois' "; alternatively, this motion alleged the statute of limitations defense. While the former argument is a proper subject for a motion for summary judgment pursuant to section 2-1005, the statute of limitations defense is affirmative matter which should have been pleaded in a motion to dismiss under section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a)(5), (9) (now 735 ILCS 5/2-619(a)(5), (9)). (Williams v. Board of Education (1991), 222 Ill.App.3d 559, 562, 165 Ill.Dec. 78, 81, 584 N.E.2d 257, 260.) The distinction between motions under sections 2-615, 2-619, and 2-1005 was explained recently by this court in Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill.App.3d 1065 1068-75, 177 Ill.Dec. 841, 844-49, 603 N.E.2d 1215, 1218-23. Improper use of these motions results in confusion and has been criticized by reviewing courts. Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 405-06, 312 N.E.2d 605, 609; Lamkin v. Towner (1993), 246 Ill.App.3d 201, 209-11, 186 Ill.Dec. 151, 615 N.E.2d 1208, 1213-15 (Chapman, J., specially concurring).

In this case, the circuit court relied on the statute of limitations defense as the reason for denying plaintiff leave to amend and for dismissing the first-amended complaint. With respect to Cueto, the court did not, in effect, enter summary judgment under section 2-1005, even though it couched its order in those terms; instead, the court, in effect, dismissed the cause of action against both Cueto and Darling under section 2-619 and entered judgment thereon. The court did not decide the truth or falsity of any fact alleged in the complaint or whether there were genuine issues of material fact; instead, the court decided that plaintiff's first-amended complaint was barred because of affirmative matter appearing on the face of the complaint--the first-amended complaint was not filed within the applicable statute of limitations.

We note that four of the seven issues raised by plaintiff on appeal involve factual or evidentiary matters which would only be ripe for review if the trial court had in...