                                    2015 IL App (4th) 140167
                                                                                   FILED
                                                                                    June 2, 2015
                                                                                   Carla Bender
                                          NO. 4-14-0167                        4th District Appellate
                                                                                      Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                       FOURTH DISTRICT

 RANDY W. BENTLEY, d/b/a BENTLEY CON-                       )     Appeal from
 STRUCTION,                                                 )     Circuit Court of
            Plaintiff-Appellee,                             )     Macoupin County
            v.                                              )     No. 12LM58
 CHARLES HEFTI and MARION HEFTI,                            )
            Defendants-Appellants.                          )     Honorable
                                                            )     Patrick J. Londrigan,
                                                            )     Judge Presiding.



               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 state-

ments 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 com-

plaint, 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 Su-

preme 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 pur-

               suant 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 limita-

               tions, 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 Carlin-



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ville, 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

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 limi-

tations for plaintiff's defamation claims against Marion, plaintiff filed (under the same case num-

ber 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 (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 mo-

tion be granted ex parte. The trial judge denied that request.

¶8              As already stated, at a September 26, 2013, hearing, the trial court granted plain-

tiff's motion for leave to file the supplemental complaint instanter, which resulted in the purport-

ed 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 supple-

mental complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)), argu-



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ing 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 ques-

tion 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 pur-

               suant 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?"

¶ 14           "The scope of review in an interlocutory appeal brought under Rule 308 is limited



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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 sup-

plemental 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 ex-

pressly 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



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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 argu-

ment 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 nonethe-

less note the complete lack of evidence that an actual emergency existed. The so-called "emer-

gency" 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 com-

plaint 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 defama-

tion claims in a freestanding, separate complaint, his doing so would have instantaneously com-

menced the defamation action inside the limitations period and preserved his claims for a poten-

tial 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 proceed under section 2-609 of

the Code—a relatively arcane pleading statute that carries the additional burden and delay of ob-

taining leave of the court.



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¶ 20                                  III. CONCLUSION

¶ 21          For the reasons stated, we answer the certified question in the affirmative and re-

mand for further proceedings.

¶ 22          Certified question answered; cause remanded.




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