NO. 4-04-0975

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

Alton Community Unit School District No. 11 (District)appeals from a final order of the Illinois Educational LaborRelations Board (IELRB) affirming the recommended decision andorder of the administrative law judge (ALJ), which grantedcomplainant Laura Meyers-McGee's motion to deem the allegationsin the IELRB's complaint admitted and recommended the Districtreinstate complainant to her teaching position. The Districtmakes the following arguments: (1) the IELRB's executive director's decision granting complainant's motion to amend the IELRB'scomplaint required that the District be given 15 days to answerthe amended complaint; (2) the IELRB erred in determining theDistrict's answer to the IELRB's initial complaint was untimely;(3) assuming the District's answer to the IELRB's initial complaint was untimely, the IELRB erred in finding the District didnot show "good cause" for filing its answer late; and (4) theIELRB's order to reinstate complainant to her teaching positionwas beyond the IELRB's authority because the order would resultin complainant being granted tenure. We reverse and remand.

I. BACKGROUND

In March 2002, the District's school board voted not torenew complainant's employment contract based on her unsatisfactory performance evaluations. Complainant was then a fourth-yearprobationary teacher.

In September 2002, complainant filed an unfair laborpractice charge with the IELRB, alleging her dismissal was basedon protected union activity in which she had engaged. On August13, 2003, the IELRB's executive director issued a complaint andnotice of hearing via certified mail. The District received thecomplaint via certified mail on August 15, 2003.

Later that month, complainant filed a motion to amendthe IELRB's complaint by changing the word "Complainant" to"Association" in the eighth paragraph of the complaint. OnSeptember 4, 2003, the IELRB's executive director granted complainant's motion to amend the complaint. That same day, theDistrict filed its answer and affirmative defenses to the IELRB'sinitial complaint.

On September 29, 2003, complainant filed a motion todeem the allegations in the IELRB's complaint admitted becausethe District's answer to the IELRB's original complaint wasuntimely. On October 6, 2003, the District filed its answer tothe IELRB's amended complaint.

On December 8, 2003, the IELRB's ALJ issued a recommended decision and order, granting complainant's motion to deemthe complaint's allegations admitted and directing the Districtto reinstate complainant to her teaching position. In August2004, the IELRB affirmed the ALJ's recommended decision andorder. This appeal followed.

II. ANALYSIS

The District first argues the IELRB erred in affirmingthe ALJ's decision granting complainant's motion to deem thefacts in the original complaint admitted because the IELRB hadamended the original complaint. Complainant and the IELRB arguethat the amendment had no effect on the District's default. Thisissue presents a question of law, which we review de novo. SeeCity of Belvidere v. Illinois State Labor Relations Board, 181Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998).

Both complainant and the IELRB rely on our supremecourt's decision in Foxcroft Townhome Owners Ass'n v. HoffmanRosner Corp., 96 Ill. 2d 150, 449 N.E.2d 125 (1983), for theproposition that complainant did not abandon the original complaint by amending it.

In Foxcroft, the supreme court stated:

"[T]his court and a majority of the appellatecourt cases have adhered to the well-established principle that a party who files anamended pleading waives any objection to thetrial court's ruling on the formercomplaints. [Citations.] 'Where an amendmentis complete in itself and does not refer toor adopt the prior pleading, the earlierpleading ceases to be a part of the recordfor most purposes, being in effect abandonedand withdrawn.' [Citation.]

There are significant policy considerations which favor adherence to this generalrule. In particular is the interest in theefficient and orderly administration of justice. It is expected that a cause will proceed to trial on the claims as set forth inthe final amended complaint." Foxcroft, 96Ill. 2d at 153-54, 449 N.E.2d at 126.

Complainant and the IELRB argue that the IELRB's amendment to theinitial complaint was not complete in itself and was not aseparate complaint. Therefore, according to complainant and theIELRB, the IELRB had not abandoned and withdrawn its initialcomplaint.

This court has stated that "the purpose of this rule isto determine which causes of action and theories of recovery arepreserved for trial and review. [Citation.] It has no bearing orapplication on default judgments." First National Bank ofMattoon v. Mattoon Federal Savings & Loan Ass'n, 175 Ill. App. 3d956, 963, 530 N.E.2d 666, 671 (1988).

The instant case concerns whether the IELRB erred inaffirming the ALJ's decision to default the defendant on theIELRB's original one-count complaint against the District afterthe IELRB had already amended the allegations against the District. As a result, the rule espoused in Foxcroft has no bearingon the instant case.

Both complainant and the IELRB also cite First NationalBank in support of their argument that the District cannot avoida default judgment on the initial complaint because of a one-wordamendment that did not substantively change the allegations inthe initial complaint. In First National Bank, the plaintifffiled suit against two defendants. First National Bank, 175 Ill.App. 3d at 958, 530 N.E.2d at 668. Plaintiff amended the countsof his complaint against defendant Mattoon Federal Savings & Loanbut made no changes to the charges directed at defendant HowardDees. First National Bank, 175 Ill. App. 3d at 958, 530 N.E.2dat 668. Dees failed to answer the original complaint or theamended complaint, and the trial court entered a default judgmentagainst him on the original complaint. First National Bank, 175Ill. App. 3d at 958, 530 N.E.2d at 668. Dees argued that byamending the original complaint the plaintiff had abandoned theoriginal complaint, and, therefore, the default judgment enteredagainst him on the original complaint was void. First NationalBank, 175 Ill. App. 3d at 963, 530 N.E.2d at 671. This courtdisagreed, stating:

"Defendant was properly served with theoriginal complaint. This advised him of theallegations and requested relief. Theamended complaint repeated these. Defendantwas in no way prejudiced by the filing of theamended complaint. To hold that he can somehow avoid a default judgment due to the fortuitous filing of an amended complaint whichdid not affect him, but which repeated theallegations against him verbatim rather thanreferring back to the original complaint, isillogical and unjustified. Once a defendanthas received service, he has time limitswithin which to respond. Unless the allegations or relief requested are changed, he isentitled to no notice of amended pleadingsand is subject to entry of default judgmenton the original complaint. In the presentcase, the allegations were identical, and thejudgment is proper." (Emphasis added.) FirstNational Bank, 175 Ill. App. 3d at 963, 530N.E.2d at 671.

In essence, this court was stating that, if Howard Deeswas the only defendant in the suit, the plaintiff would not haveamended his original complaint because the amendments to hiscomplaint only concerned the plaintiff's allegations against theother defendant, Mattoon Federal Savings & Loan. Therefore,Howard Dees' negligence in failing to answer the original complaint should not be excused just because the plaintiff wanted toamend his allegations against another defendant.

In the instant case, the District was the only defendant. While the filing of the order amending the complaint wasfortuitous to the District in this case, the allegations againstthe District did change, and the changes affected the District. Therefore, the IELRB erred in ruling that the District could bedefaulted on the original complaint because the IELRB should nothave been proceeding under the original complaint once thecomplaint was amended.

The complainant and the IELRB argue that the IELRBacted within its authority in declining to excuse the untimeliness of the District's original answer because the amendment tothe complaint was not substantive. However, whether the amendment was substantive is irrelevant. See 3 R. Michael, IllinoisPractice: Civil Procedure Before Trial §26.1, at 447 (1989) ("apleading may be amended by interlineation, by submitting only theproposed changes, or by submitting a new document incorporatingthe proposed changes"). Section 1105.100(g) of Title 80 of theIllinois Administrative Code (Code) (80 Ill. Adm. Code§1105.100(g) (Conway Greene CD-ROM March 2002)) states:

"The Executive Director [of the IELRB]may amend the complaint prior to the hearingupon motion of a party or on the ExecutiveDirector's own motion. Grounds for amendmentwill include newly discovered evidence, inadvertent exclusions[,] and new allegations. The parties shall receive reasonable noticeof the amendment, and the [r]espondent shallhave 15 days after the service of the amendedcomplaint, unless waived by the [r]espondent,within which to file an answer to the amendedcomplaint."

It does not differentiate between substantive and nonsubstantiveamendments. Because a change was made to the allegations againstthe District, the District could not be defaulted on the originalcomplaint.

In the case at bar, the IELRB filed a one-count complaint on behalf of the complainant against the District allegingone theory of liability. The amended complaint replaced theoriginal complaint. The amended complaint was filed on behalf ofthe same complainant against the same District and alleged thesame theory of liability. After the IELRB amended the complaint,the case should have proceeded under the amended complaint, notthe original complaint.

The District filed its answer to the amended complaintwithin 15 days of being served with the amended complaint. Therefore, the District's answer to the amended complaint wastimely and the IELRB should have reversed the ALJ's order defaulting the District. As a result, we need not address theDistrict's other three arguments. Further, we need not addresscomplainant's motion to strike because our disposition rendersthe motion moot.

III. CONCLUSION

For the reasons stated, we reverse and remand theIELRB's judgment.

Reversed and remanded.

McCULLOUGH and KNECHT, JJ., concur.