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Beauvoir v. Rush-pres.-st. Luke's Med. Ctr.

OPINION FILED SEPTEMBER 30, 1985.

MICHEL BEAUVOIR, PLAINTIFF-APPELLANT,

v.

RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. William R. Quinlan, Judge, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Plaintiff Michael Beauvoir filed his third amended complaint in four counts on May 6, 1983. He alleged that defendant Doris A. Smith slandered him, defendant John Bernat libeled him, and defendant Rush-Presbyterian-St. Luke's Medical Center (Rush) wrongfully discharged him in retaliation for filing worker's compensation claims. The trial court dismissed the complaint with prejudice. Plaintiff moved to vacate the dismissal, or to grant leave to amend. The trial court denied the motion. Plaintiff appeals from both the order dismissing the complaint and from the order denying his post-judgment motion.

Plaintiff alleged in count I of his third amended complaint that plaintiff and defendant Smith were both employed by defendant Rush in 1981, and that on July 16, 1981, Smith slandered him, falsely accusing him of coercing other employees of Rush to falsify results of laboratory tests in an attempt to defraud an insurance company of workers' compensation benefits, in the presence of eight other employees of Rush who are named in the complaint.

In count II, plaintiff alleged that on October 14, 1981, defendant Bernat, also employed by Rush, sent plaintiff a letter again falsely accusing plaintiff of coercing other employees to falsify test results. Plaintiff alleged that Bernat published the letter to his secretary and to Juanita Woodson, and other persons whom plaintiff did not name.

In count III plaintiff alleged that he suffered additional special damages from the wrongful accusations.

In count IV of the third amended complaint, plaintiff alleged that Rush discharged him from his employment on July 16, 1981, "in retaliation [for] the fact that the Plaintiff continued to file claims for Workman's Compensation benefits * * *." Plaintiff submitted a proposed amendment to count IV with his post-judgment motion, in which he alleged that he contracted hepatitis while working for Rush, and that prior to July 16, 1981, he filed workers' compensation claims on several occasions. Plaintiff alleged that before July 16, 1981, defendant Smith advised him that he would be fired if he continued to make claims for workers' compensation benefits.

Defendants responded to the third amended complaint with a "motion to dismiss and/or for summary judgment." Defendants supported their motion with the affidavits of six of the persons who, according to the complaint, heard Smith slander plaintiff. All six stated in their affidavits that they did not hear any conversation between Smith and plaintiff on July 16, 1981. Defendants also submitted the affidavit of the associate administrator of Rush's human resources department, who stated that the other two persons alleged to have heard Smith slander plaintiff were no longer employed by Rush. He stated that one had terminated her employment with Rush in 1979, two years before Smith's conversation with plaintiff, and the other worked on a different floor of a different wing of Rush, and would not have been required to work near Smith's office. Defendants also submitted the affidavit of Juanita Woodson, who stated that she never saw the allegedly libelous letter from Bernat to plaintiff. Finally, defendants attached a copy of the settlement contract under which plaintiff agreed to release all claims against Rush for workers' compensation in exchange for $25,000. Defendants stated that the settlement agreement was filed on September 1, 1981, six weeks after Rush discharged plaintiff. According to the settlement agreement, plaintiff was intermittently disabled for a total of 22 weeks between February 1979 and February 1980, and he was hospitalized in March 1980.

On August 30, 1983, the trial court dismissed count III of the complaint with prejudice. Plaintiff does not appeal from the dismissal of count III. The court also allowed plaintiff to take the depositions of defendants' affiants, but the court restricted the depositions to the content of the affidavits and the circumstances in which the affidavits were obtained. The court postponed decision on the motion for summary judgment on counts I, II and IV of the third amended complaint.

Plaintiff took the depositions of six of defendants' affiants. All six stated that no notary public was present when they signed their affidavits, and that they were not put under oath before signing the affidavits. At the deposition, all six reaffirmed under oath the statements made in their affidavits. Plaintiff submitted his own counteraffidavit, in which he swore that defendant Smith called plaintiff into her office on July 16, 1981, and Smith accused plaintiff of perpetrating a fraud on the insurance company in the presence of Melva Larrieu. Plaintiff stated that "to the best of my knowledge and memory at the time," Smith repeated the accusations as they left the office, in the presence of the seven other individuals named in the complaint, who were in the hall near Smith's office. Plaintiff also stated that Juanita Woodson told him that in October 1981 she had seen a copy of the allegedly libelous letter Bernat sent plaintiff.

On November 14, 1983, the trial court dismissed counts I, II and IV with prejudice, and it denied plaintiff's motion for leave to amend count IV. Plaintiff filed a post-judgment motion to vacate the dismissal of counts I, II and IV, and for leave to amend count IV. The motion was accompanied by the proposed amendment of count IV. The trial court denied the motion and this appeal followed.

Defendants' "motion to dismiss and/or for summary judgment," on the basis of which the trial court dismissed the complaint, is in part a motion to dismiss for failure to state a claim (under Ill. Rev. Stat. 1983, ch. 110, par. 2-615), in part a motion to dismiss because the claim was released (under par. 2-619), and in part a motion for summary judgment (under par. 2-1005). Our supreme court has expressly disapproved the practice of bringing such hybrid motions. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 405-07, 312 N.E.2d 605.) However, we will address the motion on its merits, because it appears that plaintiff was not prejudiced by the hybrid nature of the motion. 57 Ill.2d 398, 407, 312 N.E.2d 605.

COUNT I

Defendants argue that count I must be dismissed because the affidavits and depositions establish that Smith's allegedly slanderous remarks were not published, and because Smith's remarks were conditionally privileged. Plaintiff contends that his counteraffidavit suffices to create an issue of fact regarding publication, and his allegations that Smith's remarks were made maliciously, in an inappropriate place, overcome Smith's conditional privilege.

Plaintiff alleged that Smith slandered him twice on July 16, 1981: once in Smith's office, in the presence of Melva Larrieu, and a few minutes later outside her office, in ...


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