Appeal from the Circuit Court of Macon County; the Hon. Donald
W. Morthland, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
The plaintiffs (husband and wife), filed their six-count complaint against the defendant (husband's former employer) alleging retaliatory discharge and the intentional infliction of severe emotional distress along with accompanying counts for loss of consortium. The defendant filed an answer to the complaint. The circuit court then allowed the defendant to withdraw its answer and to file a motion to dismiss in its place. The court subsequently ruled in favor of the defendant on its motion to dismiss. On appeal, plaintiffs contend that the circuit court erred in allowing the defendant to withdraw its answer and to substitute a motion to dismiss. The plaintiffs also claim that, in any event, the court's order granting the motion to dismiss was error because their complaint did state a cause of action for retaliatory discharge as a matter of law. We affirm.
The facts, in brief, as gleaned from the complaint suggest that the plaintiff-husband was discharged by the defendant company on August 29, 1979, after having been employed by it since 1955. At the time of his discharge, the plaintiff was an "at-will" employee engaged in quality control testing for the defendant. He worked regularly with electrically generated radiation in the X-ray department. In 1979 this department switched to a live source of radiation called a Cobalt 60 Unit. At this time the plaintiff repeatedly requested that he be transferred out of this department because he felt that the Cobalt 60 Unit was not being operated properly and because he feared for his safety. The defendant, however, did not allow the plaintiff to transfer. Consequently, the plaintiff refused to work with the Cobalt 60 Unit and the defendant discharged him.
The plaintiffs filed their complaint on May 12, 1981. Counts I and II alleged that the defendant's wilful and wanton conduct caused the plaintiff-husband severe emotional distress. Compensatory and punitive damages were requested in these counts. Count III alleged that the discharge violated public policy and contained a request for compensatory and punitive damages for the plaintiff-husband. Counts IV and V requested compensatory damages only for the plaintiff-wife as a result of her loss of consortium caused by defendant's infliction of severe emotional distress upon her husband. Count VI alleged violation of public policy and requested compensatory damages for the wife for her loss of consortium caused by the defendant's alleged retaliatory discharge of her husband.
The defendant filed an answer to the complaint on June 11, 1981, and discovery was initiated. The case was originally set for trial on June 20, 1983; however, the plaintiffs filed a motion on May 5, 1983, seeking an indefinite continuance of the cause. On May 13, 1983, the defendant filed a motion to withdraw its answer and to file, in lieu thereof, a motion to dismiss. On June 10, 1983, the court granted the motion to continue and allowed the defendant to replace its answer with a motion to dismiss. The motion asked that counts III and VI be dismissed for failure to state a cognizable cause of action and that counts I and II be dismissed because they contained insufficient allegations to support prayers for punitive damages. In its order of August 24, 1983, the court dismissed counts III and VI for failing to state a cause of action. The court also dismissed the prayers for punitive damages in counts I, II, IV, and V, although counts IV and V contained no such prayers. The court then found that there was no reason to delay appeal pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)).
• 1 On appeal the plaintiffs first argue that the circuit court erred in permitting the defendant to withdraw its answer and to file a motion to dismiss in its place. The defendant's original answer was filed on June 11, 1981. Nearly two years later on May 13, 1983, the defendant filed its motion to withdraw its answer and to substitute a motion to dismiss. The plaintiffs contend that this time span and the amount of discovery conducted in the meantime make the court's decision an abuse of discretion.
The parties here agree that the defendant's motion should be governed by section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615), formerly section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45). That section places no specific time limit for the filing of a motion with respect to pleadings. Subsection (e) does state that any party "may seasonably move" for a judgment on the pleadings. Illinois courts> have construed this section to give circuit courts> the discretion to allow the filing of late pleadings. In Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App.3d 247, 253-54, 433 N.E.2d 1350, 1355, the court stated:
"There is very little case law concerning the time period in which motions to dismiss can be filed. In Greenlee Brothers & Co. v. Rockford Chair & Furniture Co. (1969), 107 Ill. App.2d 326, 332-33, however, this court did state that the trial court has discretion to permit the filings of tardy pleadings, and unless plaintiff can show that it was prejudiced by the late filing there is no abuse of discretion. See also Silberstein v. Joos (1978), 59 Ill. App.3d 293; McGrath Heating & Air Conditioning Co. v. Gustafson (1976), 38 Ill. App.3d 465.
Because this court can view the joint motion to dismiss as a section 45 motion, because section 45 does not refer to a time period in which such motions must be brought, and because plaintiff has failed to establish that it has been prejudiced by the late filing of the joint motion, the trial court did not abuse its discretion in ruling on the joint motion to dismiss, notwithstanding the fact that several of the moving defendants had previously filed answers to the complaint."
Likewise, the Illinois Supreme Court has stated that the "objection that the complaint does not state a cause of action * * * may be raised at any time, either before or after judgment." (Krachock v. Department of Revenue (1949), 403 Ill. 148, 153, 85 N.E.2d 682, 685, appeal dismissed (1949), 338 U.S. 804, 94 L.Ed. 487, 70 S.Ct. 72.) Therefore, to prove that the court here abused its discretion the plaintiffs must show that they were somehow prejudiced by the late filing of the defendant's motion.
The plaintiffs do not allege any specific prejudice that they have suffered as a result of the defendant's tardy motion. They merely allege that the ends of justice cannot be served by allowing the motion after nearly two years of preparing for trial. This general allegation must be considered in the light of the plaintiff's own request for a continuance of the trial, filed only eight days before the defendant's motion to withdraw its answer. Since the plaintiffs sought, and were granted, an indefinite delay in the proceedings, it is not likely that they were prejudiced by the tardy filing of the defendant's motion to withdraw its answer. Since the plaintiffs have failed to show any prejudice we cannot say that the court's decision to allow the tardy motion was an abuse of discretion.
• 2 The plaintiffs next contend that even if the motion to dismiss were properly filed, the circuit court erred in granting it. They claim that counts III and VI of their complaint did state a cause of action based upon the tort of retaliatory discharge. However, any contention that the court erred in dismissing the prayers for punitive damages in counts I and II has been waived by the plaintiffs' failure to argue this point on appeal. See 87 Ill.2d R. 341(e)(7).
To withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. In ruling upon a motion to dismiss the circuit court may consider the pleadings, affidavits in support of the motion, answers to interrogatories, and deposition evidence. (Gaudynski v. Corbett (1980), 81 Ill. App.3d 910, 401 N.E.2d 1218.) If the facts alleged demonstrate any possibility of recovery, the order of dismissal will be reversed.
With the decision of Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353, Illinois joined the growing number of States recognizing the tort of retaliatory discharge. This tort is an exception to the general rule that an "at-will" employee may be discharged at any time for any cause. To state a cause of action for retaliatory discharge "[a]ll that is required is that the employer discharge the employee in retaliation for the employee's activities, and that the discharge be in contravention ...