The opinion of the court was delivered by: Justice Zwick
Appeal from the Circuit Court of Cook County.
Honorable Harvey Schwartz, Judge Presiding.
This appeal is from a judgment entered pursuant to section 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)) on defendants' motions to dismiss the plaintiff's one count complaint alleging libel. The cross-appeal is from an order of the circuit court denying defendants' motion pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) for sanctions. In addition to defendants' Rule 137 cross claim, we are asked to consider (1) whether the trial court abused its discretion in refusing to allow defendant Bergman to withdraw his originally-filed answer and substitute therefor the motions to dismiss; (2) if not, whether the trial court committed reversible error in dismissing the complaint either on grounds that it failed to allege sufficient facts to state a cause of action for libel or because the statements in the complaint alleged to have been libelous were protected by a defamation privilege; and (3) whether the court abused its discretion in refusing to consider plaintiff's proposed amended complaint.
The record establishes that on March 13, 1996, plaintiff, Lawrence M. Lykowski, filed a one count complaint in the circuit court alleging libel against defendants, Robert L. Bergman and the 13th Judicial Sub-Circuit Republican Campaign Committee. Bergman was named in both his individual and representative capacities. Lykowski alleged that he was a Republican candidate for the office of Judge of the Circuit Court of Cook County, Sub-Circuit 13(A), and that, on or about March 14, 1996, Bergman accused him of "certain unethical acts and improper conduct," as well as being a liar. Bergman was alleged to have made these allegations to the "the newspapers" and to Lykowski's employer, the Cook County State's Attorney. The complaint further asserted that Bergman made the accusations for the sole purpose of disparaging and discrediting Lykowski in his campaign for the office of Judge.
Also on March 15, 1996, plaintiff Lykowski filed an Ex Parte Motion For Temporary Restraining Order which sought to prevent Bergman from publishing any further information regarding Lykowski. The Motion stated that Bergman had "leaked" to "certain newspapers" a letter addressed to the Attorney Registration and Disciplinary Commission (ARDC) for the sole purpose of defaming Lykowski's professional reputation. The letter, which is dated March 9, 1996, was attached to the motion as an exhibit. The motion alleged that Bergman's letter was libelous per se in that it included following allegedly false allegations:
(1) that Lykowski had deliberately omitted truthful answers to certain questions asked of him by the Chicago Bar Association Judicial Evaluation Committee;
(2) that a murder conviction in the case of People v. Phillips, 159 Ill. App. 3d 142 (1987) was reversed on appeal because of improper comments made during the trial by Lykowski; and
(3) that Lykowski was involved in improper conduct as a prosecutor "regarding a DUI trial" that occurred on or about February 4, 1994.
These specific allegations were not included in Lykowski's complaint. After listening to testimony on the motion, the court denied Lykowski's request for a temporary restraining order.
On that same day, March 15, 1996, defendant Bergman entered a hand-written Answer to Lykowski's complaint. In the Answer, Bergman admitted many of substantive allegations of plaintiff's complaint including the allegation that he had accused Lykowski of certain unethical acts and improper conduct on or about March 14, 1996. Bergman denied, however, that (1) he had presented no evidence supporting his charges of ethical misconduct, (2) charges of ethical misconduct had never before been brought against Lykowski; and (3) he had made the allegedly false statements concerning Lykowski for the sole purpose of disparaging and discrediting him.
Approximately four weeks later, on April 16, 1996, Bergman made an oral motion to withdraw his Answer. The circuit court entered an order giving him leave to withdraw it and to re-answer the complaint or otherwise plead within 14 days.
On May 1, 1996, Lykowski filed a Motion to Reconsider the court's order allowing Bergman to withdraw his Answer. In the motion, Lykowski alleged that no good reason had been offered which warranted allowing the withdrawal. In response to this motion, Bergman filed a response which explained that the Answer had been "hastily prepared" and that he had made the request to withdraw it so that pleadings could be filed testing the sufficiency of the complaint. Bergman cited authority holding that the decision to grant or deny such a request is within the sound discretion of the trial court (see e.g., Premo v. Falcone, 197 Ill. App. 3d 625, 629, 554 N.E.2d 1071 (1990); Wheeler v. Caterpillar Tractor Co., 123 Ill. App. 3d 539, 541-42, 462 N.E.2d 1262 (1984), rev'd on other grounds, 108 Ill. 2d 502, 485 N.E.2d 372 (1985)) and asserted that the court's April 16, 1996 decision to grant his request did not cause Lykowski any undue prejudice.
On May 10, 1996, the court denied Lykowski's Motion to Reconsider. The court also took notice of two motions to dismiss Lykowski's complaint and set them for hearing on September 3, 1996.
On September 3, 1996, following hearing on the motions, the circuit court entered an order dismissing plaintiff's complaint pursuant to the terms of sections 2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 1996). In addition, the court denied Lykowski's request to ...