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03/14/97 JACK L. BUCKNER v. JAMES L. O'BRIEN

March 14, 1997

JACK L. BUCKNER, PLAINTIFF-APPELLANT,
v.
JAMES L. O'BRIEN, DEFENDANT-APPELLEE, AND ATLANTIC PLANT MAINTENANCE, INC., SEDGWICK JAMES OF ILLINOIS, INC., AND PATRICK J. HOLDEN, DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Willard J. Lassers, Judge Presiding.

Rehearing Denied April 16, 1997. Released for Publication April 24, 1997.

The Honorable Justice South delivered the opinion of the court. Hartman, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: South

JUSTICE SOUTH delivered the opinion of the court:

Plaintiff, Jack L. Buckner, filed a four-count complaint against defendants, Atlantic Plant Maintenance, Inc. (Atlantic), Sedgwick James of Illinois, Inc. (Sedgwick), Patrick J. Holden (Holden) and James L. O'Brien (O'Brien), alleging retaliatory discharge for his pursuit of a workers' compensation claim and civil conspiracy arising out of the same conduct. Plaintiff appeals the dismissal of his claim against O'Brien.

The operative portions of plaintiff's amended complaint directed at defendant O'Brien state as follows: In count I, plaintiff alleges that O'Brien formed the deliberate design and purpose of terminating plaintiff, and that plaintiff was wrongfully discharged in retaliation for his intention to pursue and his pursuit of a workers' compensation claim, in violation of public policy. In count II, plaintiff alleges that the acts, practices and course of conduct of O'Brien were willful and wanton and contrary to the public policy. In count III, plaintiff alleges that defendants Sedgwick and Holden joined with defendants Atlantic and O'Brien in an unauthorized and unlawful conspiracy to deny plaintiff workers' compensation benefits.

O'Brien filed a motion to dismiss plaintiff's complaint under section 2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)). Attached to the motion as exhibit "B" was the affidavit of O'Brien, which stated that plaintiff was not his employee, that he did not work for plaintiff's employer, Atlantic, except as an independent consultant, and that he had no authority to hire or discharge Atlantic's employees.

In his response to O'Brien's motion, plaintiff attached his own affidavit as exhibit "A" and the affidavit of his attorney as exhibit "B". The affidavit of plaintiff stated, in relevant part, that O'Brien worked out of Atlantic's office at his jobsite, supervised all of the safety for Atlantic, gave weekly safety lectures, and on several occasions drove plaintiff to see physicians for his work-related injury. The affidavit of plaintiff's attorney stated, in relevant part, that plaintiff's medical records contained a letter to plaintiff's doctor from James L. O'Brien, Safety Supervisor, Atlantic Plant Maintenance, and that he believes discovery in this cause will show that O'Brien had the authority to terminate employees of Atlantic and may in fact have been employed by Atlantic.

Following a hearing on O'Brien's motion, plaintiff moved for leave to amend his complaint to add O'Brien to count III, which alleged a civil conspiracy. The circuit court granted plaintiff's motion, but also granted O'Brien's motion to dismiss that amended complaint. plaintiff appeals.

Section 2-619 motions involve claims that the challenged pleading and action must be dismissed by virtue of affirmative matters that entirely avoid the effect of or defeat the cause of action under scrutiny. A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905, 912, 611 N.E.2d 619, 183 Ill. Dec. 356 (1993). If the "affirmative matter" is not apparent on the face of the complaint, defendant must submit affidavits in support of the motion. The affirmative matter presented in the affidavits must be more than just evidence that refutes a well-pled fact of the complaint. Griffin v. Universal Casualty Co., 274 Ill. App. 3d 1056, 654 N.E.2d 694, 211 Ill. Dec. 232 (1995), citing Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 605 N.E.2d 1092, 179 Ill. Dec. 78 (1992).

For purposes of the motion to dismiss, all well-pleaded facts in the complaint and reasonable inferences therefrom are taken as true, and the motion should not be granted unless these facts fail to state a cause of action. Griffin, 274 Ill. App. 3d 1056, 654 N.E.2d 694, 211 Ill. Dec. 232. Conclusions of law and conclusions of fact unsupported by specific factual allegations are not taken as true. Management Ass'n of Illinois, Inc. v. Board of Regents of Northern Illinois University, 248 Ill. App. 3d 599, 618 N.E.2d 694, 188 Ill. Dec. 124 (1993). On appeal, the reviewing court does not defer to the circuit court's ruling and considers the issue de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732, 189 Ill. Dec. 31 (1993).

In his attached affidavit, O'Brien stated in relevant part:

"1. I am the Executive Vice President for Consulting Services of Frankfort, Illinois, Inc.

2. In my capacity as Executive Vice President, I have access to the employment records of Consulting Services ...


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