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02/15/94 NORMAN ROY A/K/A "WHITEY ROY v. PATRICK

February 15, 1994

NORMAN ROY A/K/A "WHITEY ROY," ROY CONSTRUCTION COMPANY, INC., AN ILLINOIS CORPORATION, JOSEPH JANAS, AND JANAS BUILDERS, AN ILLINOIS CORPORATION, PLAINTIFFS-APPELLANTS,
v.
PATRICK AND LINDA COYNE, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE WILLARD J. LASSERS, JUDGE PRESIDING.

Released for Publication April 19, 1994.

Scariano, DiVITO, Hartman

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

In March 1988, plaintiffs Norman Roy, Roy Construction Company, Inc., Joseph Janas, and Janas Builders sold a home they had built in Lemont, Illinois, to defendants Patrick and Linda Coyne. According to plaintiffs, in September 1988, defendants informed them that they were dissatisfied with the home. The reason for the dissatisfaction stemmed either from a dislike of their new neighbors (plaintiffs' allegation), or was due to serious and dangerous building code violations (defendants' contention on appeal); the record, however, suggests that the true source of the disagreement concerns who would be responsible for landscaping a water retention pond behind defendants' newly-purchased home.

On October 21, 1988, defendant Patrick Coyne tendered to plaintiff Norman Roy an offer to resell him the Lemont residence for $175,000. Plaintiffs alleged that Coyne informed Roy at that time that if he did not accept the offer to repurchase he would put plaintiffs out of business; and that after Roy rejected the offer to repurchase, the Coynes waged a willful campaign in order to destroy, and which did in fact destroy, plaintiffs' businesses. Defendants' "campaign" included the penning of letters to the editor of the local Lemont newspaper and statements made during an open meeting of the Lemont village board. Defendants contended that they acted in response to their fear that other homes in their housing development might contain many of the same building code violations which plagued their home.

Plaintiffs brought this action on December 15, 1988. Their first complaint alleged libel in its first count and tortious interference with business relations in the second count. The trial court dismissed count I of the complaint and granted plaintiffs' motion to dismiss count II with leave to amend. Plaintiffs then filed their first amended complaint alleging only libel, but that pleading was voluntarily withdrawn when plaintiffs substituted counsel and filed a second amended complaint.

Plaintiffs' second amended complaint contained five counts alleging libel per se, libel per quod, tortious interference with existing contracts, tortious interference with prospective business relationships and fraud. Defendants moved to strike the second amended complaint and obtained leave to file a counterclaim for breach of contract.

After a hearing on defendants' motion to strike the second amended complaint, the court granted the motion. In its order, dated August 31, 1990, the court discussed primarily the libel claims, holding that all the various examples of allegedly libelous communication pleaded therein, save one, were not defamatory because: one was not "of and concerning" plaintiffs; another was protected by the "Innocent Construction Rule" and still others were privileged as fair comment or criticism. However, the court did not address fully the adequacy of the complaint with regard to the two tortious interference counts; instead, it appeared to be under the impression that these actions could lie only between two business competitors, and not between a customer and a seller. The court's order did not state that it was dismissing plaintiffs' second amended complaint with prejudice nor, pursuant to Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of the order. 134 Ill. 2d R. 304(a).

Plaintiffs filed, apparently without leave, a third-amended complaint on October 1, 1990, wherein they realleged only tortious interference with existing contracts and tortious interference with prospective business relationships. On December 10, 1990, they sought leave to file that complaint nunc pro tunc as of October 1, 1990. At a hearing on defendants' section 2-615 motion to strike the third-amended complaint, the trial court did not address the legal sufficiency of the pleading. Rather, it concluded that plaintiffs' cause of action sounded only in defamation. Consistent with that view and in light of plaintiffs' abandonment of their defamation count, the court dismissed their third-amended complaint with prejudice.

I.

As a preliminary matter, defendants assert that this case is not properly before us because plaintiffs did not expressly obtain leave to amend as required after the trial court dismissed the second amended complaint. Plaintiffs respond that they filed a motion seeking leave to amend nunc pro tunc as of October 1, 1990. While we agree with defendants that the record does not contain a written order granting plaintiffs' nunc pro tunc request, since the trial court held a hearing on the legal sufficiency of the third-amended complaint, we may safely assume that it allowed plaintiffs to refile their complaint at least sub silentio. More important, the record discloses that defendants at the hearing on their motion to strike the third-amended complaint, admitted that the trial court granted leave to amend. Accordingly, the trial court's simple oversight of failing to grant expressly plaintiffs' motion seeking leave to amend should afford no comfort to defendants.

Defendants also claim that the "law of the case" doctrine bound the trial court to its ruling of August 31, 1990, wherein it held that plaintiffs did not plead the elements of tortious interference with contracts or prospective opportunities. We reject this argument out of hand, however, as it constitutes a misstatement of the law -- the law of the case doctrine binds the court only where its prior order was final and appealable. ( McDonald's Corp. v. Vittorio Ricci Chicago, Inc. (1984), 125 Ill. App. 3d 1083, 1087, 466 N.E.2d 1116, 1119 ("The trial court's order becomes the 'law of the case' only if there is a final and appealable order[]" (emphasis added)) citing Arnold Schaffner, Inc. v. Goodman (1979), 73 Ill. App. 3d 729, 392 N.E.2d 375.) Here, neither the trial court's August 31, 1990 order nor the memorandum accompanying it indicated that the complaint was dismissed with prejudice, nor did it contain the required language of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that no just reason existed to delay enforcement or appeal of the order. Therefore, the "law of the case" doctrine was inapplicable to plaintiffs' third-amended complaint.

II.

Proceeding now to its merits, this appeal arises from the trial court's dismissal with prejudice of the plaintiff's third-amended complaint pursuant to defendants' section 2-615 motion to strike and dismiss. (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 now codified at 735 ILCS 5/2-615 (West 1992).) Our supreme court has identified the purpose of the motion to be that of pointing out defects in pleadings, thereby affording the complainant an opportunity to present a valid complaint through amendment. ( Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976, 983 citing Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 177, 360 N.E.2d 785, 789.) While the granting of a section 2-615 motion is within the sound discretion of the trial court, where a complaint does not allege a cause of action properly, the general course is to allow leave liberally to amend rather than to dismiss a claim with prejudice. Knox College, 88 Ill. 2d at 421, 430 N.E.2d at 983; see also People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 307, 430 N.E.2d 1005, 1008 ("The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial[; they] are not intended to erect barriers to a trial but instead to remove them and facilitate trial[]").

A trial court acts within its discretion where it refrains from dismissing a cause of action with prejudice pursuant to a section 2-615 motion, except in those instances where it is evident that a plaintiff is incapable of alleging a set of facts which would merit recovery. ( Burdinie v. Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657.) When reviewing the propriety of a trial court's granting the motion, we accept all well-pleaded facts as true and draw all reasonable inferences from those facts which are favorable to the non-moving party. ( Burdinie, 139 Ill. 2d at 504-05, 565 N.E.2d at 657; Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483, 485-86, 530 N.E.2d 468, 469; Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344, 1349.) As a consequence, we will affirm the trial court's dismissal of the cause of action only when we determine that the complaint, so viewed, does not state a claim upon which relief may be granted.

Here, plaintiffs' third-amended complaint alleges that defendants intentionally interfered with their existing contractual relations and their prospective business opportunities. The elements of the tort of intentional interference with existing contracts have been held to be:

"'(1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant's awareness of this contractual relation; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant's wrongful conduct; and (5) damages.'" HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 154-55, 545 N.E.2d 672, 676, quoting Prudential Insurance Co. v. Van Matre (1987) 158 Ill. App. 3d 298, 304, 511 N.E.2d 740 quoting Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 551, 413 N.E.2d 98, 101.

As for the elements of tortious interference with prospective business relations, our supreme court ...


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