Bonhomme v. St. James

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-10-0036 Rel

Case Date: 03/10/2011

Preview:No. 2--10--0036 Opinion filed March 10, 2011 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ PAULA BONHOMME, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 08--L--317 ) ) JANNA ST. JAMES, ) Honorable ) Robert B. Spence, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson concurred in the judgment and opinion. Justice Schostok concurred in part and dissented in part, with opinion. OPINION Plaintiff, Paula Bonhomme, appeals from the orders of the trial court dismissing with prejudice her second and third amended complaints. We affirm in part, reverse in part, and remand for further proceedings. The following facts were alleged in plaintiff's third amended complaint. In April 2005, plaintiff, a resident of Los Angeles, California, began on-line conversations with defendant, Janna St. James, on the "Deadwood Boards," an Internet chatroom dedicated to the HBO television series "Deadwood." Defendant, a resident of Batavia, Illinois, had registered as a user of the site under the name "Ms. Magnolia." In June, defendant registered again, posing as a man named Jesse James and

No. 2--10--0036 under the user name of "Auboy." "Jesse" began chatting with and e-mailing plaintiff in July 2005. Defendant, in her own name, also began e-mailing plaintiff in July. Defendant represented to plaintiff that she knew "Jesse" and many of the people in "Jesse's" life. Plaintiff and "Jesse" began an on-line romantic relationship that lasted until July 2006. In addition to e-mails, "Jesse" and plaintiff exchanged personal photos, handwritten letters, and gifts. They even spoke regularly on the telephone; plaintiff alleged that defendant used a voice-altering device to disguise her female voice. Defendant, under her own name, also maintained a relationship with plaintiff during this period. In addition, defendant created a universe of approximately 20 fictional on-line characters involved with "Jesse," including an ex-wife, a son, various family members, a therapist, and friends living in the United States and abroad. These characters communicated with plaintiff from separate and distinct e-mail accounts and even sent photos, handwritten mail, and packages from different states and foreign countries. Plaintiff sent gifts worth over $10,000 to defendant, "Jesse," and various other characters. Plaintiff purchased round-trip airline tickets from Burbank, California, to Denver, Colorado, in September 2005 to meet "Jesse" in person. However, "Jesse" cancelled the plans. Shortly thereafter, defendant communicated to plaintiff that "Jesse" had attempted suicide. This caused plaintiff "great emotional distress," and plaintiff began seeing a therapist, with bills totaling more than $5,000. "Jesse" and plaintiff continued their relationship and, in April 2006, decided to move in together in "Jesse's" Colorado home. Plaintiff spent approximately $700 preparing for the anticipated July move. However, in July, plaintiff was informed by "Jesse's" sister "Alice" that "Jesse" had died of liver cancer. Defendant, posing as the other fictional characters, sent plaintiff

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No. 2--10--0036 letters of condolence. Plaintiff entered a deep depression, experiencing headaches, exhaustion, inability to sleep, and inability to focus on job-related tasks. She also contracted a recurring infection known as MRSA (multidrug resistant staphylococcus aureus) because her immune system was so weakened. Even after "Jesse's" death, defendant stayed in touch with plaintiff, communicating with her on a daily basis for the next seven months. Plaintiff met defendant in Colorado to see some of "Jesse's" favorite places, then drove to New Mexico to visit other "Jesse"-related sites. During that trip, defendant gave plaintiff a letter that "Jesse" had written in which he professed his love for plaintiff and set out his "dying wishes." In February 2007, defendant visited plaintiff in California. Plaintiff spent $1,000 preparing her home for defendant, buying an inflatable bed and linens and installing a handrail and sliding chair, along with other "medical bath assist devices" in her bathroom. During this trip, some of plaintiff's actual friends discovered the fictional nature of the universe of people that defendant had created, and they confronted defendant. Defendant admitted on videotape that she had put plaintiff through an "emotional ringer [sic]" for "maybe a year and a half." Plaintiff continued to see a therapist to deal with the emotional aftermath of the false statements regarding the existence of the fictional characters, and her therapy bills continued to accumulate. Her "affected mental state" also had resulted in lost earnings. Plaintiff filed a five-count complaint against defendant in February 2008. Her second amended complaint contained seven counts, including both intentional and negligent infliction of emotional distress, defamation per se and per quod, negligent defamation, fraudulent misrepresentation, and false light. The trial court granted defendant's motion to dismiss brought

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No. 2--10--0036 pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 2008)) and dismissed with prejudice all counts except count VI, fraudulent misrepresentation, which was dismissed without prejudice. Plaintiff filed a motion to reconsider, which the trial court denied on August 19, 2009. Plaintiff then filed a motion requesting either a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006) or, alternatively, an order certifying four questions of law pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994). On the same day, plaintiff filed a notice of appeal from the trial court's denial of her motion to reconsider. Plaintiff noted that, while the trial court had not yet ruled on her motion for a Rule 304(a) finding or Rule 308 certification, she was submitting the notice "to apprise the Courts of the procedural posture of this case."1 On September 15, 2009, the trial court denied plaintiff's motion, and plaintiff filed a third amended complaint, alleging one count of fraudulent misrepresentation. The trial court granted defendant's section 2--615 motion to dismiss and dismissed the third amended complaint with prejudice on December 22, 2009. This appeal followed. Although no one has raised or addressed the issue, we must first note that plaintiff has abandoned her claims in her second amended complaint. To preserve for appeal the dismissal of claims, a plaintiff must either stand on the dismissed counts and challenge the ruling in the appellate court or reallege or incorporate the dismissed counts in a subsequent complaint. Ottawa Savings Bank v. JDI Loans, Inc., 374 Ill. App. 3d 394, 399 (2007). A simple footnote or paragraph in the amended pleading, notifying the court and the defendant that the plaintiff is preserving the dismissed portions of the former complaint for appeal, is sufficient. Childs v. Pinnacle Health Care, LLC, 399

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Plaintiff subsequently withdrew this notice of appeal on October 1, 2009. -4-

No. 2--10--0036 Ill. App. 3d 167, 176 (2010). A party who files an amended complaint without so incorporating or realleging the prior complaint forfeits any objection to the trial court's ruling on the prior complaint. Ottawa Savings Bank, 374 Ill. App. 3d at 400. Here, plaintiff filed a notice of appeal before the trial court had ruled on her motion for a finding or certification. Once that motion was denied, plaintiff filed her third amended complaint without any mention of intent to preserve the dismissed portions of her second amended complaint and withdrew her notice of appeal. Thus, plaintiff failed to preserve the dismissal of counts I, II, III, IV, V, and VII of her second amended complaint, and she has abandoned them for purposes of appeal. Plaintiff's only viable contention, then, is that the trial court erred in dismissing count I of her third amended complaint. The trial court ordered the dismissal pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 2008)). A complaint should be dismissed under section 2--615 for failure to state a cause of action only when it clearly appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Kinn v. Prairie Farms/Muller Pinehurst, 368 Ill. App. 3d 728, 732 (2006). In reviewing the sufficiency of a complaint, this court must accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Raleigh v. Alcon Laboratories, Inc., 403 Ill. App. 3d 863, 868 (2010). This court must construe the allegations in the complaint in the light most favorable to the plaintiff. See Weidner v. Karlin, 402 Ill. App. 3d 1084, 1086 (2010). We review de novo a trial court's dismissal of a complaint pursuant to section 2--615. Kinn, 368 Ill. App. 3d at 732. Count I of plaintiff's third amended complaint sought actual, special, compensatory, and punitive damages for fraudulent misrepresentation. The elements of a claim of fraudulent misrepresentation are: (1) a false statement of material fact; (2) knowledge or belief of the falsity by

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No. 2--10--0036 the party making it; (3) intention to induce the plaintiff to act; (4) action by the plaintiff in justifiable reliance on the truth of the statement; and (5) damage to the plaintiff resulting from that reliance. Doe v. Dilling, 228 Ill. 2d 324, 342-43 (2008). A plaintiff must allege, with specificity and particularity, facts from which fraud is the necessary or probable inference, including what misrepresentations were made, when they were made, who made them, and to whom they were made. Weidner, 402 Ill. App. 3d at 1087. In this regard, we believe that the complaint has adequately pleaded a course of conduct of continuing fraudulent misrepresentations. The origin of the tort of fraudulent misrepresentation lies in the common-law action of deceit, "a very narrow tort that applied only to cases involving business or financial transactions between parties." Doe, 228 Ill. 2d at 343. Fraudulent misrepresentation has been "historically treated as purely an economic tort under which one may only recover damages for pecuniary harm." Doe, 228 Ill. 2d at 343. This court has previously declined "to extend the tort of fraudulent misrepresentation to encompass noncommercial and nonfinancial dealings between parties." Neurosurgery & Spine Surgery v. Goldman, S.C., 339 Ill. App. 3d 177, 187 (2003). However, since then, our supreme court has acknowledged that there have been limited occasions in which this cause of action has been held to lie for personal injuries. See Doe, 228 Ill. 2d at 344 (citing W. Page Keeton et al., Prosser & Keeton on Torts

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