McCarthy v. Omega PSI PHI Fraternity , 2011 IL App (1st) 92950 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
McCarthy v. Omega Psi Phi Fraternity, Inc., 2011 IL App (1st) 092950Appellate 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.
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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.
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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.
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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
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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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