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09/16/97 JEFFREY BECKER v. KATHLEEN T. ZELLNER

September 16, 1997

JEFFREY BECKER, STEVEN BECKER, AND THOMAS BECKER, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
KATHLEEN T. ZELLNER, D/B/A KATHLEEN T. ZELLNER AND ASSOCIATES, AND KATHLEEN T. ZELLNER AND ASSOCIATES, P.C., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 96-L-0447. Honorable Paul Noland, Judge, Presiding.

Rehearing Denied October 17, 1997. Released for Publication October 17, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Geiger, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Plaintiffs, Jeffrey, Steven, and Thomas Becker (collectively, plaintiffs), appeal the dismissal of their complaint against defendants, Kathleen T. Zellner (Zellner) and Kathleen T. Zellner & Associates, P.C. (collectively, defendants). Defendants cross-appeal the denial of their motion for sanctions. We affirm in part, reverse in part, and remand.

Preliminarily, we note that defendants have filed a motion to dismiss plaintiffs' appeal. This motion was ordered to be taken with the case. We deny defendants' motion and will consider the merits of plaintiffs' appeal.

The following summary of facts is taken from the pleadings. On May 6, 1996, plaintiffs filed a five-count complaint against defendants in which they alleged that, as paralegals, they assisted defendants in their representation of Frank Lyons during the fall of 1994. On May 9, 1995, Sharon Wendt, a friend of Lyons, called defendants in order to obtain plaintiffs' telephone number for Lyons. Lyons apparently wanted plaintiffs to work with his new attorney. In the presence of an associate of her firm, defendant Zellner accepted Wendt's call and placed it on a speakerphone. Zellner then allegedly told Wendt (1) that during plaintiffs' employment with her, they had submitted "a $45,000 bill for five pages of worthless memorandum"; (2) that Lyons should not contact plaintiffs; and (3) that plaintiffs were "devious" and that they would try to "get into the back door" when charging Lyons for their services.

Plaintiffs' complaint further alleged that later on May 9, 1995, Lyons "left a message on their answering machine stating that he wanted to know whether Plaintiffs were going to stick him with a $45,000.00 bill." Lyons did not hire plaintiffs to assist him in the preparation of his case, and their "business relationship and reputation" with Lyons were "never the same" after Zellner's telephone conversation with Wendt.

On March 19, 1996, plaintiffs' attorney sent defendants a letter in an attempt to negotiate a settlement regarding payments allegedly owed to them. On March 21, 1996, defendants responded with a letter to plaintiffs' attorney (March 21 letter), in which Zellner stated:

"My only settlement offer to you in regard to the [plaintiffs] is that I will not seek sanctions against you if you do not file this lawsuit. Your clients will be countersued for their fraudulent misrepresentations to this firm about their prior unauthorized practice of law ***."

On May 6, 1996, plaintiffs filed their complaint against defendants. Plaintiffs alleged that defendant Zellner had committed slander per se, slander per quod, and commercial disparagement during her May 9, 1995, telephone conversation with Wendt. Additionally, plaintiffs sought damages against defendants for intimidation and extortion based on the March 21 letter.

On June 7, 1996, defendants filed a motion to dismiss pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1994)). On the same day, defendants filed a motion for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) based on the intimidation and extortion counts of plaintiffs' complaint.

On July 16, 1996, defendants filed a motion to stay plaintiffs' discovery pending the trial court's decision with respect to their section 2--615 motion. On July 18, 1996, the trial court granted defendants' motion to stay plaintiffs' discovery.

On August 6, 1996, plaintiffs filed their response to defendants' section 2--615 motion to dismiss. Plaintiffs argued that defendants' motion to dismiss was improperly brought pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1994)) because it impermissibly raised "affirmative factual defenses based upon extrinsic facts unsupported by affidavit." On the same date, plaintiffs also filed a motion for sanctions against defendants pursuant to Rule 137 (155 Ill. 2d R. 137).

On September 30, 1996, the trial court granted defendants' section 2--615 motion to dismiss plaintiffs' complaint. The trial court found that count I (slander per se) was subject to the innocent construction rule; count II (slander per quod) was insufficiently pleaded; count III (commercial disparagement) was not a recognized cause of action; and count IV (intimidation) and count V (extortion) were subject to absolute privilege. The trial court also denied each parties' motions for Rule 137 sanctions.

In a subsequent order of October 7, 1996, the trial court stated that its dismissal of plaintiffs' complaint was "with prejudice. " (Emphasis in original.) Additionally, the trial court denied plaintiffs' oral motion for discovery for purposes of amending their complaint. Plaintiffs and defendants thereafter filed their respective appeal and cross-appeal.

On appeal, plaintiffs contend that the trial court erred in (1) granting defendants' motion to dismiss; (2) barring them from conducting any discovery prior to its ruling on the motion to dismiss; (3) denying their oral motion to conduct discovery for purposes of amending their complaint; (4) determining that Zellner's allegedly defamatory statements were capable of an innocent construction; and (5) finding that allegations of intimidation and extortion were governed by the doctrine of absolute privilege. Defendants contend in their cross-appeal that the trial court erred in denying their motion for sanctions.

I

Plaintiffs' first contention on appeal is that the trial court erred in granting defendants' section 2--615 motion to dismiss. According to plaintiffs, defendants' motion was improper because it "impermissibly raised affirmative factual defenses based upon extrinsic facts unsupported by affidavit." In other words, plaintiffs contend that it was improper for defendants to raise the affirmative defenses of innocent construction and absolute privilege in their section 2--615 motion. As such, the trial court erred in granting defendants' improper motion to dismiss. To examine this contention fully, we must first discuss the differences between a section 2--615 motion and a section 2--619 motion.

A

Our supreme court has recently counseled that "meticulous practice" dictates that parties specifically, and properly, designate whether their motions to dismiss are pleaded pursuant to section 2--615 or section 2--619 of the Code (735 ILCS 5/2--615, 2--619 (West 1994)). See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 203 Ill. Dec. 463, 639 N.E.2d 1282 (1994). The misdesignation of a motion to dismiss, however, is not always fatal to the movant's right to prevail. Scott Wetzel Services v. Regard, 271 Ill. App. 3d 478, 481, 208 Ill. Dec. 98, 648 N.E.2d 1020 (1995). Reversal may be required if the nonmovant is prejudiced by the movant's improper motion practice. See Illinois Graphics, 159 Ill. 2d at 484; Buais v. Safeway Insurance Co., 275 Ill. App. 3d 587, 589, 211 Ill. Dec. 869, 656 N.E.2d 61 (1995).

Here, plaintiffs' complaint was dismissed pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1994)). Section 2--615 provides for dismissal for "defects in [the] pleadings" where the complaint is "substantially insufficient in law." 735 ILCS 5/2-615 (West 1994). Motions to dismiss pursuant to this section attack only the legal sufficiency of the complaint. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 220 Ill. Dec. 195, 672 N.E.2d 1207 (1996). As such, a section 2--615 motion "does not raise affirmative factual defenses but alleges only defects on the face of the complaint." Bryson, 174 Ill. 2d at 86. A reviewing court must accept as true all well-pleaded facts and reasonable inferences that may be drawn therefrom ( Bryson, 174 Ill. 2d at 86) and determine whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, "sufficiently set forth a cause of action on which relief may be granted" ( Brock v. ...


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