                       Illinois Official Reports

                                 Appellate Court



                   Bentley v. Hefti, 2015 IL App (4th) 140167



Appellate Court   RANDY W. BENTLEY, d/b/a BENTLEY CONSTRUCTION,
Caption           Plaintiff-Appellee, v. CHARLES HEFTI and MARION HEFTI,
                  Defendants-Appellants.




District & No.    Fourth District
                  Docket No. 4-14-0167




Filed             June 2, 2015




Decision Under    Appeal from the Circuit Court of Macoupin County, No. 12-LM-58;
Review            the Hon. Patrick J. Londrigan, Judge, presiding.




Judgment          Certified question answered; cause remanded.




Counsel on        Martin Buckley (argued), of Buckley & Buckley LLC, of St. Louis,
Appeal            Missouri, for appellants.

                  Aaron E. Bellm (argued), of Kasten, Ruyle, Sims & Bellm, P.C., of
                  Carlinville, for appellee.
     Panel                    JUSTICE STEIGMANN delivered the judgment of the court, with
                              opinion.
                              Justices Knecht and Holder White concurred in the judgment and
                              opinion.


                                                OPINION

¶1         In May 2012, plaintiff, Randy W. Bentley, filed a three-count complaint against
       defendants, Charles and Marion Hefti, seeking money damages for allegedly uncompensated
       construction services plaintiff performed for defendants in 2010. On August 28, 2013, plaintiff
       filed a “Motion for Leave to Add Count[s] IV and V.” Attached to that motion was a document
       entitled “Supplement to the Complaint to Add Count[s] IV and V,” in which plaintiff alleged
       that almost a year earlier, on August 29, 2012, defendant Marion Hefti published defamatory
       statements against plaintiff. The trial court set the motion for a September 26, 2013, hearing, at
       which the court granted plaintiff leave to file the purported supplemental complaint instanter.
       Thereafter, in October 2013, Marion filed a motion to dismiss the purported supplemental
       complaint, arguing that it was time barred by the one-year statute of limitations for defamation,
       which had expired on August 29, 2013. See 735 ILCS 5/13-201 (West 2012). The court denied
       Marion’s motion to dismiss.
¶2         In December 2013, Marion filed this interlocutory appeal pursuant to Illinois Supreme
       Court Rule 308 (eff. Feb. 26, 2010), which calls upon us to answer the following certified
       question:
                    “If a motion for leave to file a supplemental complaint pursuant to [section 2-609 of
                the Code of Civil Procedure (735 ILCS 5/2-609 (West 2012))] is filed with the
                proposed supplemental complaint attached before the expiration of the statute of
                limitations, but leave of court is not obtained to file such supplemental complaint until
                after the statute of limitations has expired, is the new cause of action stated in the
                supplemental complaint time barred?”
       For the reasons that follow, we answer the certified question in the affirmative and remand for
       further proceedings.

¶3                                           I. BACKGROUND
¶4         The following pertinent facts, which we have gleaned from the parties’ pleadings and
       supporting exhibits, are fairly straightforward.
¶5         In his initial May 2012 complaint against defendants, plaintiff sought to recover
       approximately $13,250 from defendants under alternative theories of (1) breach of contract,
       (2) account stated, and (3) unjust enrichment. The dispute concerned defendants’ alleged
       failure to pay for construction services plaintiff’s company performed on defendant’s roof and
       deck in the summer of 2010.
¶6         On August 29, 2012, Marion sent identical letters to two law offices in Carlinville, Illinois,
       describing the two-year “nightmare” she and Charles experienced since doing business with
       plaintiff’s construction company. According to her letter, Marion found plaintiff’s operation so
       crooked and inept that she reported him to the Illinois Department of Financial and

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       Professional Regulation, contacted the Illinois Attorney General, requested the Macoupin
       County State’s Attorney to press criminal charges, and even wrote her Congressman. After
       describing the actions she took against plaintiff, Marion urged the law offices to help end
       corruption in state agencies and courts, which Marion viewed as unwilling to bring plaintiff to
       justice.
¶7         On August 28, 2013, one day before the expiration of the one-year statute of limitations for
       plaintiff’s defamation claims against Marion, plaintiff filed (under the same case number as his
       May 2012 complaint against defendants) a motion for leave to file a supplemental complaint
       pursuant to section 2-609 of the Code of Civil Procedure (Code) (735 ILCS 5/2-609 (West
       2012)). In the motion–to which plaintiff attached the purported supplemental
       complaint–plaintiff sought “an order granting leave to file a supplement to the complaint
       instanter adding counts IV and V.” (Plaintiff alleged two separate, but identical, counts of
       defamation against Marion because two separate law offices received Marion’s letter.) The day
       plaintiff’s attorney filed the motion at the courthouse, he went to the trial judge’s chambers to
       request that the motion be granted ex parte. The trial judge denied that request.
¶8         As already stated, at a September 26, 2013, hearing, the trial court granted plaintiff’s
       motion for leave to file the supplemental complaint instanter, which resulted in the purported
       supplemental complaint being filed that day. (Plaintiff does not dispute that the purported
       supplemental complaint was filed on September 26, 2013.)
¶9         In October 2013, Marion filed a motion to dismiss plaintiff’s purported supplemental
       complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)), arguing that
       the supplemental complaint was barred by the statute of limitations set forth in section 13-201
       of the Code (735 ILCS 5/13-201 (West 2012)). In December 2013, the trial court denied
       Marion’s motion to dismiss.
¶ 10       Later in December 2013, Marion filed a motion to certify a question of law for
       interlocutory review pursuant to Rule 308. In February 2014, the trial court certified the
       question for interlocutory review. In April 2014, this court denied defendants’ application for
       leave to appeal pursuant to Rule 308. Bentley v. Hefti, No. 4-14-0167 (Apr. 2, 2014) (denying
       petition for leave to appeal). However, in November 2014, the supreme court entered a
       supervisory order directing this court to vacate its April 2014 denial of defendants’ application
       for leave to appeal and “resolve the appeal on its merits.” Bentley v. Hefti, No. 117653 (Ill.
       Nov. 4, 2014) (nonprecedential supervisory order directing vacatur and consideration on
       merits).
¶ 11       In accordance with the supreme court’s supervisory order, we vacate our earlier decision in
       this case and answer the certified question.

¶ 12                                           II. ANALYSIS
¶ 13      The trial court certified the following question:
                  “If a motion for leave to file a supplemental complaint pursuant to [section 2-609 of
             the Code (735 ILCS 5/2-609 (West 2012))] is filed with the proposed supplemental
             complaint attached before the expiration of the statute of limitations, but leave of court
             is not obtained to file such supplemental complaint until after the statute of limitations
             has expired, is the new cause of action stated in the supplemental complaint time
             barred?”


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¶ 14        “The scope of review in an interlocutory appeal brought under Rule 308 is limited to the
       certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th)
       120289, ¶ 15, 986 N.E.2d 216. “Certified questions, by definition, are questions of law that this
       court reviews de novo.” Moore v. Chicago Park District, 2012 IL 112788, ¶ 9, 978 N.E.2d
       1050.
¶ 15        The statute of limitations at issue in this case provides that actions for defamation “shall be
       commenced within one year next after the cause of action accrued.” 735 ILCS 5/13-201 (West
       2012). Accordingly, to answer the certified question, we must determine whether the filing of a
       motion for leave to file a supplemental complaint constitutes the commencement of the action
       set forth in the attached supplemental complaint. We conclude that it does not.
¶ 16        Section 2-609 of the Code provides that “[s]upplemental pleadings, setting up matters
       which arise after the original pleadings are filed, may be filed within a reasonable time by
       either party by leave of court and upon terms.” (Emphasis added.) 735 ILCS 5/2-609 (West
       2012). By its plain terms, section 2-609 of the Code requires a party to obtain leave of court to
       file a supplemental pleading. In other words, unless and until leave of court is granted, a
       supplemental pleading is not considered filed. We can think of no other reasonable
       interpretation of section 2-609 of the Code, and our research has uncovered no case law setting
       forth a different interpretation.
¶ 17        Section 2-201(a) of the Code provides that “[e]very action, unless otherwise expressly
       provided by statute, shall be commenced by the filing of a complaint.” 735 ILCS 5/2-201(a)
       (West 2012). Because an action must be “commenced” within the limitations period (735
       ILCS 5/13-201 (West 2012)), and an action is “commenced by the filing of a complaint” (735
       ILCS 5/2-201(a) (West 2012)), a motion for leave to file a supplemental complaint–which by
       its very nature admits that the supplemental complaint is not yet filed–does not toll the statute
       of limitations. Put another way, we answer the certified question in the affirmative.
¶ 18        As a final matter, we note that plaintiff contends in this appeal, as the lead argument in his
       brief, that the trial court “erred in failing to consider plaintiff’s Motion for Leave to Add
       Counts IV and V as an emergency motion and enter an order granting leave on an ex parte
       basis.” Although this claim is not properly before this court because (among other reasons) the
       scope of our review under Rule 308 is limited to the certified question (Spears, 2013 IL App
       (4th) 120289, ¶ 15, 986 N.E.2d 216) and plaintiff did not appeal this alleged error, we
       nonetheless note the complete lack of evidence that an actual emergency existed. The so-called
       “emergency” plaintiff claims he encountered was the imminent expiration of the limitations
       period. However, by our count, plaintiff had 364 days’ advance warning of this event and the
       exact date on which it would occur. A party is not entitled to emergency ex parte relief simply
       because he waited until the last minute to put together a pleading.
¶ 19        Indeed, plaintiff could have easily avoided this predicament. Throughout this opinion, we
       have referred to plaintiff’s defamation pleading as a purported supplemental complaint
       because it in no way “supplemented” plaintiff’s original complaint, which set forth claims that
       were completely unrelated (at least in any relevant legal sense) to plaintiff’s defamation
       claims. Although plaintiff might have incurred an additional filing fee by bringing his
       defamation claims in a freestanding, separate complaint, his doing so would have
       instantaneously commenced the defamation action inside the limitations period and preserved
       his claims for a potential adjudication on the merits. Instead, plaintiff all but guaranteed that his
       defamation complaint would not be filed within the limitations period when he opted to

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       proceed under section 2-609 of the Code–a relatively arcane pleading statute that carries the
       additional burden and delay of obtaining leave of the court.

¶ 20                                      III. CONCLUSION
¶ 21       For the reasons stated, we answer the certified question in the affirmative and remand for
       further proceedings.

¶ 22      Certified question answered; cause remanded.




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