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Tom Olesker's Fashion v. Dun & Bradstreet

OPINION FILED APRIL 23, 1979.

TOM OLESKER'S EXCITING WORLD OF FASHION, INC., PLAINTIFF-APPELLANT,

v.

DUN & BRADSTREET, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ALLEN HARTMAN, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This is an action for libel arising out of an alleged false credit report concerning the plaintiff, Tom Olesker's Exciting World of Fashion, Inc., and prepared by the defendant, Dun & Bradstreet, Inc. Pursuant to defendant's motion, the trial court granted summary judgment and ruled that the cause was barred by the statute of limitations. This ruling was premised on an alleged admission in a deposition given by one of plaintiff's officers concerning the discovery date of the credit report.

Plaintiff now appeals from the summary judgment order and contends that the trial court erred in its ruling because a genuine issue of fact existed concerning the date on which plaintiff learned of the alleged defamatory report.

We affirm.

The instant case has a lengthy history in the Illinois courts>. On March 3, 1970, plaintiff filed a three-count complaint against the defendant. Count I alleged a malicious publication of the allegedly libelous report and count II alleged negligence in the preparation and publication of the report. The third count of the complaint was premised on the theory of interference with contractual relations. Pursuant to defendant's motion, the trial court dismissed all three counts of the complaint. On appeal to this court, we affirmed the trial court's dismissal of counts I and II of the complaint, but reversed that part of the order dismissing count III. As to counts I and II, we reasoned that the one-year statute of limitations began to run from the date of publication and that since the complaint was filed more than one year from that date, counts I and II were barred by the statute of limitations. As to count III, we held that the five-year statute of limitations was applicable. (See 16 Ill. App.3d 709, 306 N.E.2d 549.) Our decision was appealed to the Illinois Supreme Court which, in a landmark decision, held that plaintiff's cause of action did not accrue until plaintiff knew or reasonably should have known of the defamatory report and reversed our decision as to counts I and II. The supreme court affirmed our decision as to count III. Having thus adopted the "discovery rule," the supreme court remanded the cause to the trial court for further proceedings. See 61 Ill.2d 129, 334 N.E.2d 160.

After remandment, Mr. Tom Olesker, Sr., the president of the plaintiff corporation, was produced for a deposition. At that discovery deposition, Mr. Olesker, Sr., was asked if in 1969 he was informed that he would not receive a shipment of clothing. When Mr. Olesker, Sr., responded in the affirmative and indicated that the first such time was in January or the beginning of February of 1969, the following questions were asked and answers were given:

"Q. January or February?

A. Yes.

Q. Of 1969?

A. Could have, that's right.

Q. All right, from what manufacturer was this order suppose to come?

A. The manufacturer was Martil Clothing Company M-a-r-t-i-l.

Q. M-a-r-t-i-l?

A. Uh huh.

Q. Where are they located?

A. The Philadelphia area. I can't give you the address, but if you want it —

Q. You placed an order for a shipment of clothing?

A. Right, men's suits.

Q. And you say thereafter that you were refused shipment of that order?

A. Yes.

Q. By ...


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