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Kirchner v. Greene

February 06, 1998

OTAKAR KIRCHNER, INDIVIDUALLY AND AS FATHER AND NEXT FRIEND OF DANIEL KIRCHNER, A MINOR, PLAINTIFFS-APPELLANTS,
v.
BOB GREENE, CHICAGO TRIBUNE COMPANY, AND CHICAGO TRIBUNE NEWSPAPERS, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Kathy M. Flanagan, judge Presiding.

Zwick and Quinn, JJ., concur.

The opinion of the court was delivered by: Justice Greiman delivered the opinion of the court:

Plaintiffs Otakar Kirchner, individually and as next friend of Daniel Kirchner, a minor, appeal the dismissal with prejudice of their three-count complaint against defendants Bob Greene, Chicago Tribune Company and Chicago Tribune Newspapers, Inc. The complaint alleged causes of action for defamation per se, false light/invasion of privacy, and abuse of process based on certain articles that appeared in the Chicago Tribune newspaper. We affirm the dismissal of the complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)).

This appeal raises five issues: (1) whether the trial court properly granted defendants' motion to strike the exhibits attached to plaintiffs' reply to defendants' section 2-615 motion to dismiss and the portions of plaintiffs' reply that referenced the exhibits; (2) whether the complaint stated a cause of action for defamation; (3) whether the complaint stated a cause of action for false light/invasion of privacy; (4) whether the complaint stated a cause of action for abuse of process; and (5) whether plaintiffs can amend their complaint.

Plaintiff Otakar Kirchner (Kirchner) is the biological father of plaintiff Daniel Kirchner (Daniel), who had been adopted by another couple four days after his birth. Kirchner initiated child custody proceedings to gain custody of Daniel from the adoptive parents. The custody action became known throughout the country as the "Baby Richard" case. Following highly publicized and lengthy court proceedings, the Illinois Supreme Court awarded custody of Daniel to Kirchner by an order effective January 25, 1995, and reaffirmed that order by its filed on February 28, 1995. See In re Petition of Doe, 254 Ill. App. 3d 405 (1993), rev'd, 159 Ill. 2d 347 (1994), reh'g denied, 159 Ill. 2d 362, cert. denied, 513 U.S. 994, 130 L. Ed. 2d 408, 115 S. Ct. 499 (1994); In re Petition of Kirchner, 164 Ill. 2d 468 (1995), cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 846, 115 S. Ct. 2599 (1995). Kirchner picked up four-year-old Daniel from the residence of Daniel's adoptive parents on April 30, 1995.

In May 1996, plaintiffs filed the three-count complaint at issue in this appeal. Count I asserted a cause of action for defamation per se based on articles published by the Chicago Tribune and written by Bob Greene, a columnist with the Chicago Tribune and a syndicated columnist appearing in other national publications. Count I specifically referred to four 1995 columns by Greene dated May 9, May 10, May 23, and December 24. These four articles were attached as exhibits to the complaint.

Regarding Greene's May 9, 1995, article, plaintiffs alleged that Greene claimed "Daniel had been or was in the process of being 'broken like a dog' and called on the police, courts and child welfare agencies to look into and prevent this asserted abuse." Regarding Greene's May 10, 1995, article, plaintiffs directed attention to the words "a crime" and alleged that "Greene claimed that the return of Daniel to his family which Otakar Kirchner sought was 'a crime.'" Regarding Greene's May 23, 1995, column, plaintiffs alleged that Greene "repeatedly referred to the transfer of custody as 'a crime,' 'an atrocity,' an 'unlawful act,' and an 'assault' on Daniel Kirchner." Regarding Greene's December 24, 1995, column and referring in general to articles written by Greene between August 1993 and December 1995, plaintiffs alleged that the articles "were designed to defame Plaintiff Otakar Kirchner's good name and reputation, culminating in a December 24, 1995, Bob Greene article claiming that the Kirchners had 'broken' Daniel 'like a dog.'" Count I further alleged that the statements made by Greene in the designated columns were "untrue and defamatory" and were published "with actual malice, knowing then to be false, or in the alternative with a reckless disregard for their falsehood and with a reckless disregard for the personal and business reputation of" Kirchner. For the alleged defamation, Kirchner sought compensatory and punitive damages.

Count II included both Kirchner and Daniel and alleged a cause of action for false light/invasion of privacy based on the Greene articles mentioned in count I and on an article dated May 3, 1995, authored by Mike Royko, now deceased, who was a columnist for the Chicago Tribune and a syndicated columnist appearing in other national publications. In paragraph 27, plaintiffs alleged that the May 3 article by Royko "intimated that Otakar Kirchner had pursued and obtained custody of Daniel in order to make money." In paragraph 29, plaintiffs alleged that the subject articles "asserted that Daniel was a victim of parental abuse and cast him as an object of public pity." Seeking compensatory damages, plaintiffs claimed a loss of employment, income and residency, injury to their reputation, and emotional and dignitary harms. Plaintiffs sought compensatory damages.

Count III asserted a cause of action for abuse of process, stating that "efendants publicly alleged Plaintiff Otakar Kirchner had committed criminal child abuse" and, as a consequence, "Kirchner was forced to undergo the humiliation of an investigation by the Illinois Department of Children and Family Services." Count III realleged the same references to the four Greene articles (May 9, May 10, May 23, and December 24, 1995).

Defendants filed a section 2-615 motion to dismiss the complaint as insufficient in law. In turn, plaintiffs filed a reply memorandum and attached as exhibits over 40 articles by Greene and Royko published in 1993, 1994, 1995, and 1996. Defendants apparently filed a motion to strike plaintiffs' reply memorandum, arguing that plaintiffs had improperly discussed and included materials outside the scope of the complaint. Subsequently, plaintiffs' filed a motion in opposition to defendants' motion to strike their reply memorandum.

Following a hearing on September 27, 1996, the trial court granted defendants' section 2-615 motion to dismiss the complaint with prejudice and granted defendants' motion to strike the materials plaintiffs appended to their response (i.e., an affidavit by Kirchner and over 40 articles) and any matter contained in the response that was based upon the appendix.

On appeal, plaintiffs assert that the trial court erred in striking the exhibits and the portions of their reply brief referencing the exhibits. Defendants contend that the contested material in and attached to plaintiffs' reply brief had to be stricken because it was outside the four corners of the complaint and, thus, improper in the context of a section 2-615 motion to dismiss. We agree with defendants.

A motion to dismiss under section 2-615 attacks the legal sufficiency of a complaint and alleges only defects on the face of the complaint. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). Exhibits attached to the complaint are a part of the complaint and must be considered. Brock v. Anderson Road Ass'n, 287 Ill. App. 3d 16, 21 (1997). In addition, for purposes of a section 2-615 motion, the court considers matters subject to judicial notice and judicial admissions in the record. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 115 (1995). Facts in a prior court opinion are subject to judicial notice. Chicago v. American National Bank & Trust Co., 233 Ill. App. 3d 1031, 1038 (1992) ("he trial court properly took notice of the facts stated in a published opinion of our supreme court"). In contrast, for purposes of a section 2-615 motion, a court may not consider "affidavits, affirmative factual defenses or other supporting materials." Oravek v. Community School District 146, 264 Ill. App. 3d 895, 898 (1994), cited with approval in Bryson, 174 Ill. 2d at 91.

In Bryson, the Illinois Supreme Court held that defendants' section 2-615 motion must be considered as a section 2-619 motion (735 ILCS 5/2-619 (West 1996)). Bryson, 174 Ill. 2d at 91-92. The plaintiffs in Bryson had filed a complaint that alleged defamation per se based on the use of the word "slut" in a magazine article and then failed to attach the magazine article. In their motion to dismiss, the defendants attached as an exhibit a copy of the magazine article in which the alleged defamatory statement appeared. The trial and appellate courts relied upon the magazine article in addition to the allegations in the complaint in dismissing the defamation per se counts under the innocent construction rule. The supreme court held that such reliance on affirmative matters outside the pleadings was an improper use of section 2-615 and, thus, considered the motion as having been filed and decided under section 2-619. Bryson, 174 Ill. 2d at 91-92.

Relying on Bryson, plaintiffs in the present case argue that defendants, in their memorandum in support of their motion to dismiss, exceeded the bounds of the complaint and thereby converted the section 2-615 motion to a section 2-619 motion. Plaintiffs submit that this conversion arose because "efendants chose to provide a summary of the Baby Richard case and to describe the role of the Chicago Tribune and Bob Greene in the controversy." Plaintiffs' characterization of defendants' motion to dismiss is not accurate.

Plaintiffs' complaint includes allegations that specifically mention the background of the custody case initiated by Kirchner, the media's identification of the matter as the "Baby Richard" case, the 1994 and 1995 opinions and orders by the Illinois Supreme Court, the denial of the adoptive parents' petition for certiorari to the United States Supreme Court, and the events of April 30, 1995, when Kirchner took custody of Daniel. Furthermore, paragraph ...


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