{ "id": 3543172, "name": "GERARD T. ROWAN, Plaintiff-Appellant, v. C. J. NOVOTNY, Defendant-Appellee", "name_abbreviation": "Rowan v. Novotny", "decision_date": "1987-06-26", "docket_number": "No. 85\u20141937", "first_page": "691", "last_page": "696", "citations": [ { "type": "official", "cite": "157 Ill. App. 3d 691" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "398 N.E.2d 1214", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5610420 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/1009-01" ] }, { "cite": "180 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 2d 220", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5237079 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/34/0220-01" ] }, { "cite": "430 N.E.2d 976", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "88 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083558 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0407-01" ] }, { "cite": "404 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5551371 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0507-01" ] }, { "cite": "355 N.E.2d 567", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639746 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0151-01" ] }, { "cite": "66 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "393 Ill. 211", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2476740 ], "opinion_index": 0, "case_paths": [ "/ill/393/0211-01" ] }, { "cite": "289 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 970", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2670161, 2669281 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0970-02", "/ill-app-3d/7/0970-01" ] }, { "cite": "450 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 638", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556513 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0638-01" ] }, { "cite": "444 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 427", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438992 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0427-01" ] }, { "cite": "312 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "57 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406059 ], "opinion_index": 1, "case_paths": [ "/ill-2d/57/0398-01" ] }, { "cite": "112 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5436067 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ill-app-3d/112/0670-01" ] }, { "cite": "446 N.E.2d 1209", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "113 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625686 ], "weight": 2, "pin_cites": [ { "page": "66" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/113/0065-01" ] }, { "cite": "460 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "121 Ill. App. 3d 623", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559317 ], "year": 1983, "pin_cites": [ { "page": "628" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/121/0623-01" ] }, { "cite": "480 N.E.2d 1236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "134 Ill. App. 3d 722", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637165 ], "year": 1984, "pin_cites": [ { "page": "729" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/134/0722-01" ] }, { "cite": "450 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 1 }, { "cite": "115 Ill. App. 3d 638", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556513 ], "year": 1972, "pin_cites": [ { "page": "641-43" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/115/0638-01" ] } ], "analysis": { "cardinality": 617, "char_count": 11884, "ocr_confidence": 0.747, "pagerank": { "raw": 2.351742582104997e-07, "percentile": 0.7932983737661925 }, "sha256": "a363bb80c3eae534b98095d64739327bde22f611bf7b795490ced5238fef56bb", "simhash": "1:3bba7133af69bef3", "word_count": 1976 }, "last_updated": "2023-07-14T21:36:34.857148+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GERARD T. ROWAN, Plaintiff-Appellant, v. C. J. NOVOTNY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiff appeals from the May 22,. 1985, order of the circuit court which dismissed his amended two-count complaint with prejudice.\nHe contends that (1) his complaint is not barred by the statute of limitations pursuant to the discovery rule; (2) the letter which the defendant wrote in reply to a request by the Department of Labor's Workers\u2019 Compensation Commission exceeded the scope of his privilege; (3) sufficient facts were contained within the complaint to support the allegations of malice; and (4) the complaint alleged special damages.\nWe vacate and remand.\nCount I of plaintiff\u2019s amended two-count complaint purports to state a cause of action based upon libel per quod, while count II purports to state a cause of action based upon libel per se. The amended complaint alleged that the plaintiff was employed by the United States Postal Service and that during the course of his employment he sustained injuries and was required to process his claims for injury with the Office of Workers\u2019 Compensation Programs, Employment Standards Administration, United States Department of Labor, and that during the processing of his claim defendant was requested to supply information regarding plaintiff\u2019s condition. Plaintiff alleges that the information provided by defendant was libelous.\nIn his motion to dismiss pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, sec. 2 \u2014 619), defendant advanced numerous arguments, including the following: (1) plaintiff\u2019s complaint was barred because it was filed more than one year after publication of the last of defendant\u2019s writings regarding plaintiff; (2) plaintiff failed to exercise due diligence to discover his cause of action; (3) the document to which plaintiff referred was privileged communication inasmuch as it was written at the request of plaintiff\u2019s employer; (4) the communications were also privileged because plaintiff was a public employee employed by the United States Postal Service; (5) plaintiff failed to set forth facts to demonstrate actual malice on defendant\u2019s part; (6) count I failed to allege special damages; and (7) count II failed to state a cause of action based upon libel per se.\nOn May 22, 1985, the circuit court granted defendant\u2019s motion to dismiss with prejudice without stating the basis for the dismissal and without specifying the code section upon which the dismissal was made. In addition plaintiff has failed to provide this court with a transcript of proceedings of May 22, 1985, and we are therefore unable to reach the merits of the appeal.\nIt appears that the defendant and the circuit court misapplied the appropriate sections of the Code of Civil Procedure pertaining to this motion. Unfortunately, this misapplication of the Code is not an infrequent trial practice. (See Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 444 N.E.2d 253.) This procedure should not be countenanced by trial judges and although not always fatal it will require reversal if prejudice results to nonmovant. (Premier Electric Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360.) The consequences of confusing code sections may be severe. For example, in Andre v. Blackwell Electronics Industrial Co. (1972), 7 Ill. App. 3d 970, 289 N.E.2d 27, this court reversed the dismissal of a complaint on a motion under the predecessor of section 2 \u2014 619. One of the arguments defendant made in support of the dismissal was that the complaint failed to state a cause of action. We held that this argument was improperly raised on appeal because the complaint was dismissed on a motion under the predecessor of section 2 \u2014 619 and the argument that the complaint failed to state a cause of action addressed itself to the predecessor of section 2 \u2014 615 of the Code of Civil Procedure.\nThe purpose of section 2 \u2014 619 is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact. The basis of the motion must go to an entire claim or demand. (Ill. Ann. Stat., ch. 110, par. 2 \u2014 615, Historical and Practice Notes (by Albert E. Jenner, Jr., Philip W. Tone and Arthur M. Martin) (Smith-Hurd 1985).) Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by a section 2 \u2014 619 motion, the section is not designed for that purpose. (Leitch v. Hine (1946), 393 Ill. 211, 66 N.E.2d 90.) In other words, if the only ground of a motion is a defect that appears on the face of the pleading attacked the appropriate method of reaching that defect is by a motion under section 2 \u2014 615.\nIn this appeal the defendant\u2019s contentions that the complaint failed to demonstrate actual malice, failed to state a cause of action based upon libel per se and failed to allege special damages were not properly before the trial court and are not properly before us. Motions made pursuant to section 2 \u2014 619 of the Code of Civil Procedure must be limited to one of the nine grounds enumerated therein. (Phillips Construction Co. v. Muscarello (1976), 42 Ill. App. 3d 151, 355 N.E.2d 567.) A failure to allege special damages and failure to state a cause of action are not arguments to be advanced through a section 2 \u2014 619 motion but rather through a section 2 \u2014 615 motion. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615; see Andre v. Blackwell Electronics Industrial Co. (1972), 7 Ill. App. 3d 970, 289 N.E.2d 27.) It would be improper and unjust to allow the defendant to attack the complaint after failing to file a proper motion pointing out specifically the defects complained of as required by statute (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615) because the purpose of the statute is to give the plaintiff an opportunity to respond to the objection and to cure the defect in the trial court. Michigan Avenue National Bank v. State Farm Insurance (1980), 83 Ill. App. 3d 507, 404 N.E.2d 426.\nMoreover, defendant\u2019s contention that plaintiff\u2019s complaint is barred by the statute of limitations was improperly entertained as a motion to dismiss. The limitations period applicable to actions for defamation is one year. (Ill. Rev. Stat. 1985, ch. 110, par. 13 \u2014 201.) Plaintiff\u2019s complaint was filed July 22, 1983. He states, within the complaint, that he first became aware of the libelous nature of the statement on March 18, 1985. As a general rule the starting of a limitation period is postponed until after plaintiff has knowledge or should have knowledge of defendant\u2019s wrongful acts. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) A statute of limitations defense should not be raised by a section 2 \u2014 619 motion unless it affirmatively appears from the pleading attacked that the cause is barred by the appropriate statute of limitations. Stanley v. Chastek (1962), 34 Ill. App. 2d 220, 180 N.E.2d 512.\nThe question presented here as to whether plaintiff knew or had reasonable grounds to know of the libelous nature of defendant\u2019s letter is a question of fact. Once plaintiff\u2019s allegations have withstood a section 2 \u2014 619 motion, the preferable alternative is to remand, thereby permitting the defendant to put the matter in issue as a question of fact by filing an answer. Bebee v. Fields (1979), 79 Ill. App. 3d 1009, 398 N.E.2d 1214.\nHere, not only has defendant consistently misapplied section 2\u2014 619 but, in addition, the circuit court allowed such confusion to continue. The motion practice utilized by defendant below and acquiesced in by the trial court cannot be sanctioned. Because of the commingling of motions for relief under sections 2 \u2014 615 and 2 \u2014 619, we could only speculate as to whether the circuit court has found a failure to state a cause of action or has found that some affirmative matter precludes relief, thus necessarily finding that a cause of action was stated. We will not so speculate because to do so could cause prejudice to either party.\nAccordingly, we vacate the judgment of the circuit court of Cook County and remand for further proceedings consistent with this opinion.\nVacated and remanded for further proceedings.\nMURRAY, J., concurs.", "type": "majority", "author": "JUSTICE LORENZ" }, { "text": "PRESIDING JUSTICE SULLIVAN,\ndissenting:\nThe majority vacates the judgment granting defendant\u2019s motion to dismiss with prejudice because, as stated in its opinion, \u201cnot only has defendant consistently misapplied section 2 \u2014 619 but, in addition, the circuit court allowed such confusion to continue. The motion practice utilized by defendant below and acquiesced in by the trial court cannot be sanctioned. Because of the commingling of motions for relief under sections 2 \u2014 615 and 2 \u2014 619, we could only speculate as to whether the circuit court has found a failure to state a cause of action or has found that some affirmative matter precludes relief, thus necessarily finding that a cause of action was stated. We will not so speculate because to do so could cause prejudice to either party.\u201d 157 Ill. App. 3d at 695.\nHowever, as the majority also pointed out in its opinion, a judgment should not be set aside because of a commingling in a motion to dismiss of grounds under both sections 2 \u2014 615 and 2 \u2014 619 unless the commingling results in prejudice to the nonmovant. (Wilde v. First Federal Savings & Loan Association (1985), 134 Ill. App. 3d 722, 729, 480 N.E.2d 1236; Cali v. DeMattei (1984), 121 Ill. App. 3d 623, 628, 460 N.E.2d 121; Premier Electric Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 641-43, 450 N.E.2d 1360.) Because the majority has made no finding of prejudice and since plaintiff makes no contention that he was prejudiced, it follows that vacatur is inappropriate and that this appeal should be decided on its merits.\nFurthermore, contrary to the expression of the majority, it should not be required to speculate on the basis for the trial court\u2019s ruling. It would only be necessary that this court consider the issues presented and argued here by the parties. They are (a) whether plaintiff\u2019s complaint was timely under the discovery rale, (b) whether defendant\u2019s letter exceeded the scope of his privilege and (c) whether plaintiff\u2019s complaint alleged special damages. Issues (a) and (b) clearly set forth grounds under sections 2 \u2014 619(5) and 2 \u2014 615(9), respectively, and (c) is clearly a ground under section 2 \u2014 615. In remanding for further proceedings consistent with its opinion the majority does not delineate \u201cthe further proceedings,\u201d but it would appear to require that defendant present separate motions under sections 2 \u2014 615 and 2 \u2014 619 for rulings by the trial court. This, of course, would result only in a representation in a later appeal of the same issues that are now before us. In view thereof, judicial expediency suggests that they be considered now. See Bescor, Inc. v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 65, 446 N.E.2d 1209, where the court stated in a footnote:\n\u201cThis \u2018hybrid\u2019 procedure of combining a motion under section 45 [now 2 \u2014 615] and a motion under section 48 [now 2\u2014 619] has been disapproved. (See Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670; see also James v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) Nonetheless in the interest of judicial economy and to avoid delay we do not remand because of the foregoing but consider each of the issues thereby presented.\u201d 113 Ill. App. 3d 65, 66.", "type": "dissent", "author": "PRESIDING JUSTICE SULLIVAN," } ], "attorneys": [ "Arthur R. Ehrlich, of Goldman & Marcus, of Chicago, for appellant.", "James A. Christman and Kathy Pinkstaff Saxton, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee." ], "corrections": "", "head_matter": "GERARD T. ROWAN, Plaintiff-Appellant, v. C. J. NOVOTNY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 85\u20141937\nOpinion filed June 26, 1987.\nSULLIVAN, P.J., dissenting.\nArthur R. Ehrlich, of Goldman & Marcus, of Chicago, for appellant.\nJames A. Christman and Kathy Pinkstaff Saxton, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee." }, "file_name": "0691-01", "first_page_order": 713, "last_page_order": 718 }