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11/30/88 Allcare, Inc., v. Jeffrey L. Bork

November 30, 1988

ALLCARE, INC., PLAINTIFF-APPELLANT

v.

JEFFREY L. BORK, INDIV. AND D/B/A ALLMED SUPPLIES, ET AL., DEFENDANTS-APPELLEES



Before addressing the merits of plaintiff's appeal, we must address appellees' motion to strike (1) those portions of plaintiff's opening brief referring to the conspiracy alleged in count V of its complaint, and (2) plaintiff's amended count V from the record on appeal. Plaintiff filed an amended count V on January 15, 1988, which appellees answered on February 4, 1988. The motion to strike is based on the assertion that the trial court struck count V as to all the defendants before the trial court, including appellees. Noting that plaintiff did not appeal from that portion of the December 18 order striking count V, appellees assert that plaintiff cannot rely on the allegations of conspiracy contained in its original count V on appeal. Nor, they assert, can plaintiff rely on its amended count V for those allegations.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

531 N.E.2d 1033, 176 Ill. App. 3d 993, 126 Ill. Dec. 406 1988.IL.1718

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Allcare, Inc., filed a six-count complaint for injunctive and other relief in the circuit court of Cook County on September 25, 1987. On December 18, 1987, the trial court, inter alia, entered a judgment on the pleadings as to counts III, IV and VI for defendants Jeffrey L. Bork, David Krause and Allmed Supplies, Inc. Plaintiff appeals that judgment.

Count I of plaintiff's complaint, asserting a cause of action for defamation, alleged the following. Plaintiff and defendant Allmed Supplies, Inc. (Allmed), are in the medical supply business within the metropolitan Chicago area. On or about February 1987, defendant Jeffrey L. Bork, an owner and the president of Allmed, said of plaintiff, in the presence and hearing of a representative of Ross Laboratories, "I do not want to even try to get that account back because she is paying them off." Bork meant that plaintiff's president, Ruth Aberman, was paying bribes to a customer of plaintiff. On August 28, 1987, defendant David Krause, an Allmed salesman and manager, in the presence and hearing of representatives of the St. Matthews Lutheran Home in Park Ridge, Illinois, said of plaintiff, "I have heard from reliable sources and have to warn you that Allcare is undergoing Medicare Fraud Investigation." The statements made by Bork and Krause were false, defamatory, made with knowledge of their falsity or with reckless disregard of the truth and with the intent to injure plaintiff's business.

Counts II through VI incorporated the allegations of count I. Count II asserted a cause of action for interference with plaintiff's contract to sell dietary supplements and medical supplies to the St. Matthews Lutheran Home. Count III asserted a cause of action for damages based on violation of the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.). Count IV asserted a cause of action for injunctive relief based on violation of the Uniform Deceptive Trade Practices Act (Trade Practices Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 311 et seq.). Count V asserted a cause of action for conspiracy. Count VI sought injunctive relief against further defamations by defendants. Each count of the complaint named as defendants: Jeffrey L. Bork; Celia Paset Bork, also an owner and officer of Allmed; John Ernst, also an owner and ex officio officer of Allmed; David Krause; and Allmed.

On December 18, 1987, the trial court held a hearing on, inter alia, a motion by defendants Celia Paset Bork and John Ernst and a motion by defendants Jeffrey Bork, David Krause and Allmed. Defendants Paset Bork and Ernst sought dismissal of the entire complaint as to them. The remaining defendants sought a "judgment on the pleadings dismissing or striking each of the counts of the [complaint] or if Count I, II, III or V is not so dismissed or stricken, for its transfer to the law calendar." After the hearing the trial court ruled, in relevant part:

"2. The Motion to Dismiss on behalf of Celia Paset Bork and John Ernst is granted, plaintiff to have leave to amend as to those defendants within 28 days.

3. The Motion of Jeffrey L. Bork, David Krause and Allmed . . . to strike Count II is denied; plaintiff is given 28 days to file an amendment as to stricken Count V. 4. The Motion of Jeffrey L. Bork and all other defendants for judgment on the pleadings on Counts III, IV and VI is granted and judgment hereby entered against plaintiff on said Counts.

5. This case is transferred to the Chief Judge of the Chancery Division for transfer to the law division."

Plaintiff appeals only from paragraph four of the December 18, 1987, order. As such, the only defendants before this court are Jeffrey Bork, David ...


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