Illinois Supreme Court Reasserts That Dismissed Counts Must Be Incorporated Into An Amended Complaint In Order To Preserve Them For Appellate Review
This is an entry from my Illinois Personal Injury Trial Book blog regarding a case that highlights the pitfalls of filing an amended complaint after the court has dismissed certain counts:
Bonhomme v. St. James – 2012 IL 112393 (Thomas)
Facts: The plaintiff, a resident of California, began an on-line relationship with defendant, a resident of Batavia, on an internet chatroom dedicated to the HBO series Deadwood. The defendant then created another username on the site and posing as a man named Jesse James developed a romantic online relationship with the plaintiff. Over time, the ruse became more and more elaborate, with the defendant creating approximately 20 fictional online characters that would communicate with the plaintiff and developed friendships with her. Eventually, the plaintiff had made plans to move in with Jesse James, but when the time came around for the move, the defendant, through one of her fictional online characters, the sister of Jesse James, informed the plaintiff that Jesse had committed suicide. This news cause plaintiff to go into a depression which manifested itself with several physical symptoms and therapy. Ultimately, on a trip where the defendant visited the plaintiff at her home in California, the defendant was found out and forced by plaintiff’s friends to confess on videotape.
The plaintiff filed suit against the defendant in Kane County. The second amended complaint contained 7 counts, including both intentional and negligent infliction of emotional distress, defamation per se and per quod, negligent defamation, fraudulent misrepresentation, and false light. On defendant’s 2-615 motion to dismiss, the trial court dismissed all of the counts with prejudice expect for the fraudulent misrepresentation count which was dismissed without prejudice. The plaintiffs subsequent motion to reconsider was denied as well as her later requests for an appeal pursuant to 304(a) and 4 certified questions pursuant to 308.
Plaintiff then withdrew her notice of appeal on the denial of the motion to reconsider and filed a Third Amended Complaint with a single count of fraudulent misrepresentation, which was dismissed with prejudice by the trial court. Plaintiff appealed both the dismissal of her Third Amended Complaint but also her Second Amended Complaint. The Appellate Court affirmed the dismissal of the Second Amended Complaint in the grounds that the plaintiff had abandoned those claims by filing a Third Amended Complaint with only one count and not re-alleging or incorporating them somehow into her new complaint. The Appellate Court then held that Plaintiff had properly alleged a fraudulent misrepresentation count in the Third Amended Complaint. Both parties appealed to the Supreme Court for review.
Holding: By filing a Third Amended Complaint with a single count and not re-alleging or incorporating the previously dismissed counts, the Plaintiff effectively abandoned and withdrew those counts and in doing so waived any appellate review of their dismissal. Also, the tort of fraudulent misrepresentation does not apply to purely personal settings and is limited to a more commercial and transactional context.
Filed in Trial Book Under: Waiver, Motion to Dismiss – 2-615, Appellate Review, Preserving the Record, Fraudulent Misrepresentation
Commentary: The underlying facts in this case are very strange and also very sad. I can’t imagine why someone would put so much effort into screwing with another person’s mind like this. The facts seem to scream out for a remedy under the infliction of emotional distress theories, particularly an intentional count. Admittedly, I have not looked at either of those theories in a long, long time (not too many insurers cover the intentional infliction of emotional distress so these claims wouldn’t be the foundation of too many profitable practices), but it seems with the depression and physical symptoms referenced in the facts that there would be some basis for recovery under an intentional infliction of emotional distress theory. As for the primary holdings, there are a few practice pointers to take from this case, namely to be sure to properly preserve the dismissal of other counts when you file an amended complaint. The opinion references a few cases where it’s merely a matter of a including a simple paragraph or even a footnote in the new complaint that references the prior ruling on the dismissed counts and incorporates them into the new complaint. It’s too bad that this wasn’t done here because I’d have liked to see this defendant have to defend herself beyond the pleadings stage.