                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




            McCarthy v. Omega Psi Phi Fraternity, Inc., 2011 IL App (1st) 092950




Appellate Court            GERALD S. McCARTHY, Plaintiff-Appellee, v. OMEGA PSI PHI
Caption                    FRATERNITY, INC.; and TENTH DISTRICT, an Unincorporated
                           Association, Defendants-Appellants.



District & No.             First District, First Division
                           Docket No. 1–09–2950


Filed                      June 30, 2011
Rehearing denied           July 28, 2011
Held                       The amended complaints adding defendants as parties to plaintiff’s action
(Note: This syllabus       for defamation per se based on false statements made regarding his
constitutes no part of     involvement in fraternity hazing activities were barred by the statute of
the opinion of the court   limitations, notwithstanding plaintiff’s contention that the amended
but has been prepared      complaints related back to his timely filed original complaint pursuant to
by the Reporter of         section 2–616(d) of the Code of Civil Procedure, since plaintiff did not
Decisions for the          make a mistake as to defendants’ identity and there was no concealment
convenience of the         of defendants’ identity.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 03–M1–0018637;
Review                     the Hon. Pamela E. Hill Veal, Judge, presiding.


Judgment                   Reversed.
Counsel on                 Hinshaw & Culbertson LLP, of Chicago (Marcos Reilly, of counsel), for
Appeal                     appellants.

                           Law Office of James E. Taylor, P.C., of Chicago (James E. Taylor, of
                           counsel), for appellee.


Panel                      JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
                           Presiding Justice Hall and Justice Rochford concurred in the judgment
                           and opinion.



                                              OPINION

¶1          After a bench trial, defendants Omega Psi Phi Fraternity, Inc., and Tenth District were
        found liable for defamation per se of plaintiff, Gerald McCarthy. Although defendants raised
        a number of issues on appeal, the dispositive issue is whether plaintiff’s amended complaints
        adding defendants were barred by the statute of limitations. The resolution of this issue
        depends on whether plaintiff made a mistake concerning the identity of the proper party, so
        that plaintiff’s fourth and fifth amended complaints related back to his timely filed
        complaint. Based on the following, we reverse the judgment the trial court entered in favor
        of plaintiff.

¶2                                          BACKGROUND
¶3          Omega Psi Phi is a national fraternity composed of undergraduate and graduate members
        both on and off college campuses. The fraternity is divided into districts and is run by elected
        and appointed officials. The Tenth District oversees Chicago. The Sigma Omega chapter of
        the fraternity is located in Chicago.
¶4          Plaintiff became a member of the fraternity in 1982. Plaintiff has held various elected and
        appointed positions within the organization. During the time at issue, plaintiff was the first
        vice district representative of the Tenth District. Outside of the fraternity, plaintiff is an
        attorney and a certified public accountant.
¶5          Plaintiff campaigned for the position of Tenth District representative in the April 11,
        2003 election. Plaintiff ran against the incumbent, Dwight Pointer. Pointer became a member
        of the fraternity in 1976 and has held various elected and appointed positions within the
        organization. Plaintiff ultimately lost the election and withdrew from the fraternity shortly
        thereafter. Plaintiff’s defamation claim is based on a belief that defendants encouraged
        Pointer to disseminate false information regarding plaintiff’s involvement in illegal hazing
        activities in order to sabotage plaintiff’s campaign for district representative. We summarize
        the relevant events necessary to decide this case.


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¶6          In the summer of 2001, allegations were raised regarding hazing incidents that took place
       in January 2001. Although not the focus of the allegations, plaintiff’s name was mentioned
       as having been involved in the illegal activities. Following an investigation, the allegations
       were deemed unfounded as to plaintiff. The investigations, however, did result in sanctions
       to some fraternity members. In relevant part, Maceo Rainey and John Spellers were expelled
       from the fraternity.
¶7          On March 29, 2003, Pointer, in his “office” as district representative, received a
       videotape from a fellow fraternity member, Johnny Lynch,1 in relation to the January 2001
       “illegal intake process.” According to a letter written by Lynch and sent to Pointer, Lynch
       ran into Rainey in June 2002 and Rainey said he was innocent of the charges that caused his
       expulsion. Nearly nine months later, Rainey sent Lynch the videotape allegedly documenting
       the illegal intake proceedings at issue. The videotape seemingly depicted a party following
       a nonsanctioned intake ceremony that took place on January 13, 2001. Plaintiff appeared on
       the videotape. Along with the videotape, Rainey and Spellers included a memorandum
       describing the events at issue. In the memorandum, Rainey and Spellers claimed they were
       introduced to a group of men interested in joining the fraternity outside the sanctioned
       channels of initiation and were involved in the planning of pledge sessions because “if they
       did not have a pledge process, they would be missing out on chapter history and would be
       deprived of basic frat knowledge, just in case they ran into real Ques, who pledged
       underground.” According to the memorandum, plaintiff was kept abreast of the pledges’
       progress and set the date for their intake as January 13, 2001, at 1 a.m.
¶8          After receiving the information, Pointer contacted national officials, namely, the grand
       counselor and the grand basileus, who recommended that the Sigma Omega chapter be
       suspended pending an investigation. Pointer also sought the advice of a past district
       representative, who agreed with the recommendation.
¶9          On April 1, 2003, Pointer, as district representative, suspended plaintiff and 11 other
       fraternity members, along with the Sigma Omega chapter, pending an investigation into the
       “illegal intake process.” An e-mail was sent to Glen Brewer, the basileus of the Sigma
       Omega chapter, indicating the same. Notice of the suspension was also sent to “all Fraternity
       officials needing to know ***, i.e., all Chapter Presidents, Members of the District Council,
       and Grand Officers.” Someone on the circulation list released the suspension information to
       the publisher of “Que-Nections,” a newsgroup for fraternity members. An investigative
       committee was formed to address the allegations. Review of the videotape demonstrated that
       the contents depicted actually took place during two separate events, one being the illegal
       intake party on January 13, 2001, and the other being an unrelated party from January 30,
       2000. The tape lasted approximately 4 1/2 minutes and was of extremely poor quality.
       Rainey admitted to the committee that he combined two different events on the tape.
¶ 10        Following the investigation, on April 7, 2003, plaintiff’s suspension was lifted. Plaintiff
       was notified by Pointer via letter on Omega Psi Phi stationery. The letter was signed by


               1
                   Lynch held the position of Indiana state representative, which was also a part of the Tenth
       District.

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       Pointer as Tenth District representative. The letter indicated that carbon copies were sent to
       the grand basileus, the grand counselor, and the district counselor.
¶ 11       On July 9, 2003, plaintiff filed an initial complaint for slander, libel, and defamation per
       se against Maceo Rainey and John Spellers, alleging they maliciously and wrongfully
       doctored evidence and gave false statements regarding plaintiff’s involvement in fraternity
       hazing activities. Plaintiff alleged Rainey and Spellers caused the false statements to be
       published in an e-mail newsletter. Plaintiff alleged that his reputation was greatly injured by
       the publication of the false statements. Rainey and Spellers filed a joint pro se motion to
       dismiss the complaint contending the lawsuit was “frivolous,” had “no legal basis,” and
       failed to “show any evidence of slander or defamation” on the part of Rainey and Spellers.
       Although the trial court’s order does not appear in the record, the court seemingly denied the
       motion to dismiss because Rainey and Spellers filed a joint pro se answer to plaintiff’s
       complaint on October 21, 2003.
¶ 12       On November 12, 2003, plaintiff requested leave to amend his complaint to add an
       additional defendant. Leave was granted. On November 26, 2003, plaintiff filed an amended
       complaint for slander, libel, and defamation per se against Rainey, Spellers, and Pointer. The
       underlying allegations remained the same as in the initial complaint with the additional claim
       that Pointer conspired with Rainey and Spellers to “maliciously injure the plaintiff in his
       good name and reputation, by doctoring evidence and giving false statements of the
       plaintiff[’s] involvement in hazing activities” thereby leading to plaintiff’s suspension from
       “the Omega Psi Phi Fraternity.” In the amended complaint, plaintiff added facts such that
       Pointer was the district representative of the Tenth District of Omega Psi Phi and, at the time
       of the offense, Rainey and Spellers had been expelled from the fraternity for alleged
       participation in illegal intake or hazing activities.
¶ 13       Pointer filed a joint motion to dismiss the amended complaint pursuant to section
       2–619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619.1 (West 2002)) arguing
       that plaintiff failed to state a cognizable cause of action and an affirmative matter, namely,
       conditional privilege, defeated the claim. Rainey and Spellers jointly filed a pro se motion
       to dismiss pursuant to section 2–615 of Code (735 ILCS 5/2–615 (West 2002)) for failing
       to state a cognizable claim.2 On July 8, 2004, both motions to dismiss were withdrawn and
       plaintiff was given 28 days to amend his complaint.
¶ 14       On August 11, 2004, plaintiff filed a second amended complaint for slander, libel, and
       defamation per se against Pointer, Rainey, and Spellers. On August 13, 2004, Pointer filed
       a motion to strike plaintiff’s second amended complaint for failing to file the pleading within
       the 28 days ordered by the trial court and failing to request an extension. The motion to strike
       was denied. Pointer, Rainey, and Spellers each separately filed motions to dismiss the second
       amended complaint pursuant to section 2–615 of the Code for failing to state a cause of
       action for defamation. Pointer’s motion was granted, while Rainey’s and Spellers’ motions
       were denied. On December 16, 2004, the trial court granted plaintiff leave to amend his


               2
                The record on appeal, however, includes a pro se answer filed by Rainey and Spellers prior
       to the motion to dismiss.

                                                  -4-
       complaint yet again.
¶ 15        On January 12, 2005, plaintiff requested additional time to file a third amended
       complaint. The request was granted. On January 27, 2005, plaintiff filed a third amended
       complaint for slander, libel, and defamation per se against Pointer, Rainey, and Spellers.
       Pointer, Rainey, and Spellers each separately filed motions to dismiss the third amended
       complaint pursuant to section 2–615 of the Code for failure to state a claim. The motions to
       dismiss were denied and Pointer, Rainey, and Spellers were ordered to answer plaintiff’s
       third amended complaint. Answers were filed and discovery ensued.
¶ 16        Pointer and plaintiff, on July 24, 2006, and December 21, 2006, respectively, filed cross-
       motions for summary judgment. Meanwhile, on November 15, 2006, Rainey and Spellers
       entered into settlement agreements with plaintiff and were subsequently dismissed from the
       lawsuit. On March 13, 2007, the cross-motions for summary judgment were denied. In its
       order, the trial court stated: “Judge specifically finds that the statements made by Pointer
       were not made in good faith.”
¶ 17        The case proceeded to trial on June 8, 2007, June 15, 2007, August 10, 2007, and August
       17, 2007. At the close of evidence, the parties were given until December 14, 2007, to submit
       written closing arguments.
¶ 18       In the interim, on September 24, 2007, plaintiff requested leave to file a fourth amended
       complaint. In his motion to amend, plaintiff requested leave to add Omega Psi Phi as a
       defendant pursuant to section 2–616(d) of the Code (735 ILCS 5/2–616(d) (West 2006)).
       Plaintiff argued that he did not become aware of the fraternity’s involvement in plaintiff’s
       suspension until the trial. Plaintiff added that, at trial, a member of the fraternity participated
       in the case as if Omega Psi Phi was a named defendant and the fraternity paid Pointer’s legal
       fees.
¶ 19        On October 1, 2007, the trial court granted plaintiff leave to add Omega Psi Phi as a
       defendant. The trial court dismissed Pointer individually with prejudice. The court
       additionally granted plaintiff leave to file a motion asking to add Pointer as a defendant in
       his capacity as an agent for Omega Psi Phi with oral arguments on the motion set for
       November 20, 2007.
¶ 20        Plaintiff filed his fourth amended complaint on November 16, 2007, alleging slander,
       libel, and defamation per se against Pointer, as the Tenth District representative, and
       defendants for the first time. Plaintiff alleged that defendants encouraged Pointer to suspend
       plaintiff. On November 20, 2007, the trial court directed plaintiff to remove Pointer from the
       caption and pleadings as a named defendant and gave plaintiff 21 days to file a fifth amended
       complaint.3 In a separate order, the trial court said: “IT IS HEREBY ORDERED that as to
       the dismissal of Defendant Pointer, as an individual, in the Order of October 1, 2007,
       pursuant to Supreme Court Rule 304(a), the Court finds no just cause to delay enforcement
       of or appeal from that ruling.”
¶ 21        On December 14, 2007, plaintiff filed his fifth amended complaint for defamation per


               3
                   A transcript of the scheduled oral argument does not appear in the record.

                                                     -5-
       se against defendants alleging that he suffered “monetary damages because the funds that he
       expended to campaign for election were for naught, as the election was tainted by the
       dissemination of false information sanctioned by [defendants].”
¶ 22       On January 16, 2008, defendants filed their appearances in the case. On February 8, 2008,
       defendants filed an answer and affirmative defenses arguing, in relevant part, that plaintiff’s
       defamation claim was barred by the statute of limitations and the doctrine of res judicata.
       The parties agreed to submit the case to the court for a decision based on the record of the
       original trial. No new evidence was submitted.
¶ 23       On May 27, 2009, the trial court found defendants liable for defamation per se and
       awarded plaintiff $5,800 in actual damages. The court did not address defendants’
       affirmative defenses. On October 16, 2009, the trial court awarded plaintiff $148,132.22 in
       punitive damages.

¶ 24                                         ANALYSIS
¶ 25        We address whether the relation-back doctrine applied to plaintiff’s amended complaints
       adding defendants as parties to overcome defendants’ statute of limitations affirmative
       defense.
¶ 26        An assertion that a claim is barred by the statute of limitations is a matter properly raised
       by a section 2–619 motion to dismiss. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343,
       352, 882 N.E.2d 583 (2008). Although defendants did not file a motion to dismiss, the
       question before the trial court was whether the addition of defendants related back to the
       timely filed complaint under section 2–616(d) so as to avoid the affirmative bar of the statute
       of limitations. Id. at 352-53. Under the circumstances described, the appropriate standard of
       review is de novo. Id. at 353.
¶ 27        Defamation actions must be commenced within “one year next after the cause of action
       accrued.” 735 ILCS 5/13–201 (West 2006). Defendants were added to the complaint in
       November 2007 and the alleged defamatory action took place on April 1, 2003. It is clear,
       and plaintiff does not disagree, that he did not bring the defamation action against these
       defendants within the statute of limitations.
¶ 28        Section 2–616(d) provides a method by which an amended complaint adding a party can
       relate back to an earlier pleading. Section 2–616(d) provides:
               “A cause of action against a person not originally named a defendant is not barred by
               lapse of time under any statute or contract prescribing or limiting the time within
               which an action may be brought or right asserted, if all the following terms and
               conditions are met: (1) the time prescribed or limited had not expired when the
               original action was commenced; (2) the person, within the time that the action might
               have been brought or the right asserted against him or her plus the time for service
               permitted under Supreme Court Rule 103(b), received such notice of the
               commencement of the action that the person will not be prejudiced in maintaining a
               defense on the merits and knew or should have known that, but for a mistake
               concerning the identity of the proper party, the action would have been brought
               against him or her; and (3) it appears from the original and amended pleadings that

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               the cause of action asserted in the amended pleading grew out of the same transaction
               or occurrence set up in the original pleading, even though the original pleading was
               defective in that it failed to allege the performance of some act or the existence of
               some fact or some other matter which is a necessary condition precedent to the right
               of recovery when the condition precedent has in fact been performed, and even
               though the person was not named originally as a defendant.” (Emphasis added.) 735
               ILCS 5/2–616(d) (West 2006).
¶ 29       Before examining the requirements of section 2–616(d), we assess whether the section
       applies at all by determining whether plaintiff made a mistake concerning the identity of the
       proper party. Pruitt v. Pervan, 356 Ill. App. 3d 32, 36, 825 N.E.2d 299 (2005).
¶ 30       Effective January 1, 2003, the legislature amended section 2–616(d) to impose more
       stringent requirements for amending complaints, similar to those required by the Federal
       Rules of Civil Procedure. Id. at 36 (citing Compton v. Ubilluz, 351 Ill. App. 3d 223, 233-34,
       811 N.E.2d 1225 (2004)). We review postamendment case law to ascertain when a mistake
       in identity occurs.
¶ 31       In Fassero v. Turigliatto, 349 Ill. App. 3d 368, 811 N.E.2d 252 (2004), the plaintiff was
       injured in a car accident. The driver said his name was Thomas Turigliatto when, in fact, his
       name was Todd Turigliatto. Thomas was Todd’s brother and the owner of the car. The
       plaintiff sued Thomas, but moved to amend her complaint when she learned the driver was
       actually Todd. Id. at 369-70. In order to determine whether the case involved a mistaken
       identity, the court examined the plaintiff’s intent in bringing the lawsuit. Id. at 371. Based
       on the record, the court found the plaintiff intended to bring the suit against the driver
       because the complaint solely addressed the conduct of the driver, never alleging the owner
       breached a duty of care. Id. at 372. The court concluded the case was a classic example of
       mistaken identity. Id. Therefore, the amended complaint related back to the original
       complaint.
¶ 32       In comparison, in Pruitt, the record revealed the plaintiff wished to sue the property
       manager in a premises liability action for alleged negligence in the maintenance of a
       stairwell. Pruitt, 356 Ill. App. 3d at 37. Six months after the statute of limitations expired,
       the plaintiff learned that the owners of the property were responsible for the maintenance of
       the property. Id. At that point, the plaintiff requested leave to add the property owners as
       defendants. Id. Prior to that time, however, the plaintiff did not believe the owners had
       breached a duty of care. Id. This court concluded the facts did not demonstrate a case of
       mistaken identity under section 2–616(d) where the plaintiff “simply lacked information of
       the [owners’] involvement in maintaining the [p]roperty.” Id.
¶ 33       After Pruitt, this court, in Polites v. U.S. Bank National Ass’n, 361 Ill. App. 3d 76, 836
       N.E.2d 133 (2005), again relied on the intent of the plaintiff in bringing a lawsuit in order
       to determine if it was a case of mistaken identity. The plaintiff’s complaint indicated his
       intent to sue the owner and operator of the branch office of a bank where he was injured. Id.
       at 83. The plaintiff initially directed his correspondence to U.S. Bank at the branch office
       where the injury occurred. Id. Like the plaintiff in Fassero, however, the plaintiff in Polites
       was led to believe the owner of the bank was U.S. Bancorp instead of U.S. Bank. Id. at 84.


                                                -7-
       As a result, the plaintiff did not name U.S. Bank as the defendant until 14 months after the
       statute of limitations expired. Id. at 81. This court concluded the case was one of mistaken
       identity and, therefore, the relation-back statute applied. Id. at 84.
¶ 34       Here, the record reveals plaintiff’s intent was to sue Pointer for defaming him by
       disseminating false information and suspending him from the fraternity. Three years and
       seven months after the expiration of the statute of limitations and after the trial against
       Pointer, plaintiff requested to amend his complaint for a fourth time to add defendants
       because plaintiff claimed that he learned through the trial evidence that defendants
       encouraged Pointer to suspend plaintiff.
¶ 35       Plaintiff, like the plaintiff in Pruitt, decided 43 months after the statute of limitations had
       run that defendants were additionally responsible for the defamation action. Plaintiff,
       however, always had intended to sue Pointer for his participation in the alleged defamation,
       as evidenced by plaintiff’s attempt to retain Pointer as a defendant in some capacity up until
       Pointer was finally dismissed on November 20, 2007. Therefore, this was not a case where,
       but for a mistake concerning the identity of defendants, plaintiff would not have sued
       Pointer. Clearly, plaintiff intended to sue whoever perpetuated the alleged falsehood, namely,
       Pointer.
¶ 36       Plaintiff intended to sue Pointer, Rainey and Spellers because plaintiff assumed they were
       liable for the alleged defamation. Plaintiff’s failure to timely include defendants as additional
       parties for allegedly having encouraged plaintiff’s suspension does not constitute a mistake
       concerning the identity of a proper party. Accordingly, section 2–616(d) does not apply in
       this case. Therefore, plaintiff’s complaint is barred by the statute of limitations, and the trial
       court erroneously entered judgment in favor of plaintiff despite defendants’ affirmative
       defense in their answer that plaintiff’s defamation claim was barred by the statute of
       limitations.
¶ 37       Plaintiff argues that misrepresentations and concealed facts prevented him from learning
       defendants’ identity. In particular, plaintiff argues that Pointer hid the fraternity’s
       involvement in “perpetrating the publication of defamatory statements.” The evidence,
       however, does not support plaintiff’s argument.
¶ 38       At the time of the incident, plaintiff had been a member of the fraternity for
       approximately 21 years. He was vice district representative and had held numerous elected
       and appointed positions in the fraternity, including serving as basileus of several districts and
       as second vice district representative. He was aware of the fraternity’s constitution and
       bylaws.
¶ 39       When the allegations against plaintiff first arose, the bylaws of the fraternity and Tenth
       District clearly provided that a district representative is to suspend any chapter located within
       the district, subject to the approval of the grand basileus, and to report the suspension to the
       grand keeper of records and seal. The grand basileus is the national head of the entire
       fraternity. Therefore, plaintiff was aware at the time of his suspension that, at the very least,
       the grand basileus had approved the suspension of his chapter, Sigma Omega, and that the
       grand keeper of records and seal had been informed of the actions taken.
¶ 40       Moreover, the record contains the letter informing plaintiff that his suspension had been

                                                  -8-
       lifted. The letter was sent by Pointer in his capacity as district representative and was on
       fraternity stationery. The bottom of the letter indicates that carbon copies had been sent to
       the grand basileus, the grand counselor, and the district counselor. Accordingly, by April 7,
       2003, at the latest, plaintiff was aware that the national fraternity directors had been involved
       in his suspension.
¶ 41        In arguing that Pointer fraudulently concealed defendants’ involvement, plaintiff points
       to a deposition that does not appear in the record along with an answer to the third amended
       complaint and an answer to an interrogatory. Contrary to plaintiff’s argument, review of the
       answer and interrogatory demonstrates that Pointer disclosed the fact that he consulted with
       other members of the fraternity prior to issuing plaintiff’s suspension. Plaintiff cannot
       maintain his contention or any contention based on concealment of defendants’ identity
       where no such concealment took place. Plaintiff’s arguments regarding a violation of a
       fiduciary duty to disclose defendants’ involvement, equitable estoppel, and conforming his
       pleading to the trial evidence, therefore, fail.

¶ 42                                       CONCLUSION
¶ 43       We conclude that plaintiff’s fourth and fifth amended complaints did not relate back to
       his timely filed complaint pursuant to section 2–616(d) because he did not make a mistake
       concerning defendants’ identity. Because section 2–616 was not applicable, defendants’
       affirmative defense of the statute of limitations applied to bar plaintiff’s amended complaints
       adding defendants as parties. Accordingly, the trial court’s judgment in favor of plaintiff is
       reversed.
¶ 44       Reversed.




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