Bilut v. Northwestern University
Annotate this Case
FOURTH DIVISION
March 26, 1998
No. 1-96-3429
MARILYN BILUT, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
NORTHWESTERN UNIVERSITY and )
GERALD CANTER, ) THE HONORABLE
) JOHN W. GUSTAFSON,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff, Marilyn Bilut, filed a two-count complaint against
defendant Northwestern University alleging that Northwestern had
breached an implied contract in refusing to award her a Ph.D.
degree and sought an injunction ordering Northwestern to award her
a Ph.D. degree as well as monetary damages. Thereafter, plaintiff
amended her complaint to add two counts against defendant professor
Gerald Canter, alleging tortious interference and seeking
compensatory and punitive damages.
Defendants moved to strike the first amended complaint or to
dismiss Canter and counts III and IV. The circuit court never
ruled on defendants' motion. Rather, the court ordered a trial as
to plaintiff's equitable claim, count I for injunctive relief, and
stated that plaintiff's legal claims, counts II, III and IV, would
be transferred to the law division.
The matter proceeded to trial on count I, and in a written
opinion, the circuit court rejected plaintiff's request for
injunctive relief, finding that it could not compel issuance of
plaintiff's doctoral degree. However, the court issued a mandatory
injunction against Northwestern, requiring it to give plaintiff an
additional two years to complete her degree.
The court also ruled on the legal claims, counts II, III and
IV of plaintiff's first amended complaint, finding in favor of
plaintiff on all three counts, i.e., that defendant Northwestern
had breached an implied contract, that defendant Canter had
maliciously interfered with that contract and that defendant
Canter's actions were willful and wanton. In support of this
finding, the court held that Northwestern's faculty and officials
were "arbitrary and capricious, and/or motivated by bad faith, in
their dealings with plaintiff" and that defendant Canter was
"exceedingly arbitrary and capricious." The circuit court then
transferred the matter to the law division solely for a
determination of damages. Defendants appealed.
This court reversed and remanded the mandatory injunction,
finding that plaintiff failed to establish all of the required
elements to justify its imposition. Bilut v. Northwestern
University, 269 Ill. App. 3d 125, 645 N.E.2d 536 (1994). This
court further found that the circuit court erred in finding
defendant's academic judgment of plaintiff was arbitrary and
capricious and held that Northwestern's decision not to award
plaintiff a Ph.D. degree was based on the independent scholarly and
academic judgments of several professors, including defendant
Canter. Bilut, 269 Ill. App. 3d 125, 645 N.E.2d 536.
Thereafter, plaintiff filed a petition for leave to appeal to
the Illinois Supreme Court. The Illinois Supreme Court denied
plaintiff's petition for leave during its March term of 1995. On
May 11, 1995, this cause was remanded back to the circuit court.
On remand, defendants moved for summary judgment on counts II,
III and IV of plaintiff's first amended complaint pursuant to
section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005
(West 1994)). Defendants argued that according to the law of the
case doctrine, this court had conclusively determined, as a matter
of law, that defendant's academic judgment of plaintiff was not
arbitrary and capricious. Therefore, there could be no breach of
implied contract by Northwestern, and since there was no breach by
Northwestern, defendant Canter could not have tortiously interfered
with the contract. Thus, defendants concluded, plaintiff could not
prevail on any of her claims.
Following a hearing, the circuit court agreed that plaintiff
could not prevail and entered an order granting summary judgment in
favor of defendants as to counts II, III and IV of plaintiff's
first amended complaint "pursuant to the law of the case doctrine
as decided by the appellate court in this cause." The circuit
court, over defendants' objection, also granted plaintiff leave to
file a second amended complaint against defendants "asserting a
cause of action that relates back to the allegations in plaintiff's
complaint and that has not been determined by the appellate court."
Plaintiff filed a two-count second amended complaint alleging
civil conspiracy and conversion of property/plagiarism. Defendants
moved to dismiss the second amended complaint pursuant to section
2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West
1994)). In support of their motion, defendants argued that
plaintiff's claims were barred by the statute of limitations; the
claim for civil conspiracy was insufficient because principals and
agents are legally incapable of conspiring with one another, and
plaintiff failed to allege that defendants engaged in any
particular tortious conduct; and the conversion of
property/plagiarism claim was insufficient because Illinois law
limits the tort of conversion to tangible property and because any
such claim was preempted by the federal Copyright Act (17 U.S.C.
301 (1994)). The circuit court granted defendants' motion to
dismiss plaintiff's second amended complaint with prejudice. This
appeal followed. We affirm.
Plaintiff has waived her right to appeal from the entry of
summary judgment on counts II, III and IV of the first amended
complaint because she failed to reallege those counts in her second
amended complaint. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner
Corp., 96 Ill. 2d 150, 449 N.E.2d 125 (1983), stands for the
proposition that "[w]hen a complaint is amended, without reference
to the earlier allegations, it is expected that these allegations
are no longer at issue." Foxcroft, 96 Ill. 2d at 154, 449 N.E.2d
at 127. This rule applies not only to factual allegations, but
also to theories of recovery. Foxcroft, 96 Ill. 2d at 155, 449 N.E.2d at 127.
First, plaintiff argues that the circuit court erred in
granting defendants' motion for summary judgment as to counts II,
III and IV of her first amended complaint pursuant to the law of
the case doctrine as the issues pertaining to those counts were not
decided upon their merits by the prior appellate decision and that
plaintiff was denied her constitutional right to a trial by jury.
The law of the case doctrine provides that issues presented
and disposed of in a prior appeal are binding and will control in
the circuit court on remand, as well as the appellate court in a
subsequent appeal, unless the facts presented are so different as
to require a different interpretation. Aardvark Art, Inc. v.
Lehigh/Steck-Warlick, Inc., 284 Ill. App. 3d 627, 672 N.E.2d 1271
(1996); Sanders v. Shephard, 258 Ill. App. 3d 626, 630 N.E.2d 1010
(1994). Thus, absent substantially different facts, a party will
not be allowed to reargue issues previously decided by the
appellate court. Instead, the remedy for a dissatisfied party is
to file a petition for rehearing or petition for leave to appeal to
the supreme court. Sanders, 258 Ill. App. 3d 626, 630 N.E.2d 1010.
In the prior appeal, this court held that defendants' academic
judgment of plaintiff was not arbitrary and capricious because
there was a discernable rational basis for the decisions of
Northwestern and its faculty regarding plaintiff's dissertation.
Bilut, 269 Ill. App. 3d at 135-36, 645 N.E.2d at 542-43. Since the
facts in the circuit court on remand and in this subsequent appeal
are substantially the same as those in the prior appeal, the facts
do not require a different interpretation. Accordingly, this
court's decision in the prior appeal was binding on the circuit
court on remand and is now binding on this court.
Moreover, despite plaintiff's contention that counts II, III
and IV of her first amended complaint were not matters
appropriately within the jurisdiction of the appellate court in the
prior appeal, the record reflects that plaintiff argued to the
circuit court in her motion to vacate dismissal for want of
prosecution filed August 2, 1993, that: (1) "Judge Berman's entire
order is unquestionably currently subject to appeal"; (2) "the
entire underlying merits of the case are currently being reviewed
by the appellate court"; and (3) "[i]n this case, the plaintiff has
already prevailed on the merits of her case" and "[i]f plaintiff is
successful on appeal, the only remaining issues will be for a jury
to determine the amount of damages."
Furthermore, contrary to plaintiff's present contention that
the appellate court in the prior appeal remanded the case generally
for a new trial, plaintiff argued in her petition for leave to
appeal to the supreme court that this court reversed the judgment
in favor of defendants without remanding for a new trial. Inasmuch
as a party on appeal is bound by her statements, including the
statements of her attorney, made in the circuit court, plaintiff is
now estopped from presenting argument contrary to her prior
statements. In re Marriage of Drewitch, 263 Ill. App. 3d 1088, 636 N.E.2d 1052 (1994).
We turn next to plaintiff's argument that entry of summary
judgment denied her the constitutional right to a trial by jury.
Section 2-1105(a) provides that "[a] plaintiff desirous of a trial
by jury must file a demand therefor with the clerk at the time the
action is commenced. *** Otherwise, the party waives a jury." 735
ILCS 5/2-1105(a) (West 1994). Careful review of the record makes
clear that plaintiff did not file a jury demand in accordance with
section 2-1105(a) at the time she commenced this action in 1989.
Further, plaintiff's argument that the circuit court granted
her leave to file her jury demand and that, therefore, it was
timely filed is not supported by the record. Pursuant to the
circuit court's December 16, 1992, order and opinion, which granted
the parties 30 days to make a jury demand for "the Law Division
matters," plaintiff filed her jury demand for trial of damages on
January 13, 1993, nearly four years after she commenced this
action. The issue of defendants' liability, however, had already
been decided by the circuit court in favor of plaintiff.
Plaintiff's jury demand, as indicated thereon, sought a jury trial
for damages only, not defendants' liability as to counts II, III
and IV of her first amended complaint. Thus, as to those counts,
plaintiff waived her right to a trial by jury.
Moreover, where no material issue of fact remains for trial,
the right to a jury trial is not implicated and, therefore, summary
judgment does not deny a plaintiff her right to a trial by jury.
Alamo Rent a Car, Inc. v. Ryan, 268 Ill. App. 3d 268, 643 N.E.2d 1345 (1994); Empire Moving & Warehouse Corp. v. Hyde Park Bank &
Trust Co., 43 Ill. App. 3d 991, 357 N.E.2d 1196 (1976).
In the prior appeal, this court conclusively determined that
"the [circuit] court's ultimate findings of fact and conclusions on
the merits were erroneous" and that Northwestern's conduct was not
arbitrary and capricious. Bilut, 269 Ill. App. 3d at 135, 645 N.E.2d at 542-43. Therefore, the circuit court's holding on remand
that defendants were entitled to summary judgment pursuant to the
law of the case doctrine was proper. Accordingly, we find that the
entry of summary judgment did not deny plaintiff the constitutional
right to a trial by jury.
Plaintiff further contends that the circuit court erred in
dismissing counts I and II of her second amended complaint. Count
I of plaintiff's second amended complaint alleges a civil
conspiracy. Count II alleges conversion of property/plagiarism.
As to count I, plaintiff argues that the principal-agent
relationship does not shield defendants from liability for civil
conspiracy because they were not acting properly within the scope
of their agency relationship when they acted together to wrongfully
assume control of her property and to fraudulently mislead her as
to the reasons for her dismissal from the Ph.D. program.
Civil conspiracy consists of a combination of two or more
persons for the purpose of accomplishing by some concerted action
either an unlawful purpose or a lawful purpose by unlawful means.
Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 645 N.E.2d 888 (1994).
Further, a cause of action for civil conspiracy exists only if one
of the parties to the agreement commits some act in furtherance of
the agreement, which is itself a tort. Adcock, 164 Ill. 2d 54, 645 N.E.2d 888.
As a general rule of law, principals and agents are legally
incapable of conspiring with one another because the acts of an
agent are considered the acts of his principal. Salaymeh v.
InterQual, Inc., 155 Ill. App. 3d 1040, 508 N.E.2d 1155 (1987).
The exception to this rule is where the interests of a separately
incorporated agent diverge from the interests of the corporate
principal and the agent at the time of the conspiracy is acting
beyond the scope of his authority or for his own benefit, rather
than that of the principal. Pink Supply Corp. v. Hiebert, Inc.,
788 F.2d 1313, 1317 (8th Cir. 1986). Further, if the agent is
acting not as an agent but as a principal, he can be liable for
conspiring with the principal. Morrison v. Murray Biscuit Co., 797 F.2d 1430 (7th Cir. 1986).
Plaintiff urges this court to apply the above exceptions here.
The case at bar, however, is distinguishable from Pink and
Morrison.
In the present case, it is undisputed that defendant Canter
and the other Northwestern faculty members plaintiff alleges
conspired against her, Drs. Logeman, Smith and Larson, and Dean
Cohen, were at all relevant times employees of Northwestern
University. The alleged conspirators, therefore, consist of
Northwestern and its direct employees, not separately incorporated
agents as was the case in Pink, 788 F.2d at 1317.
Additionally, the interests of the employer, Northwestern, and
its employee, defendant Canter, did not diverge. Both shared a
common interest in Northwestern receiving the grant from Easter
Seals for the research presented by defendant Canter.
The exception as applied in Morrison, 797 F.2d 1430, is also
distinguishable from the present case. Morrison stands for the
proposition that if the agent is acting not as an agent but as a
principal, he can be liable for conspiring with the principal.
Here, plaintiff never alleged that defendant Canter was not acting
as an agent but as a principal.
Based upon the record, the exception upon which plaintiff
urges this court to adopt is inapplicable to the present case. We,
therefore, find that the circuit court did not err in finding in
accordance with the general rule, as a matter of law, that
defendants as employer and employee were legally incapable of
conspiring with one another. Thus, the circuit court properly
dismissed count I of plaintiff's second amended complaint.
Plaintiff next contends that the second amended complaint
relates back to the first amended complaint pursuant to section 2-
616 of the Code of Civil Procedure (735 ILCS 5/2-616 (West 1994)).
Therefore, it was timely filed and the circuit court erred in
granting defendants' motions to dismiss count II of her second
amended complaint based upon the statute of limitations.
Alternatively, plaintiff posits that if the second amended
complaint does not relate back to the first amended complaint, it
relates back to the original complaint filed in 1989, as defendant
Canter was inadvertently left out.
Our supreme court has stated that the test for whether an
amended complaint relates back under section 2-616(b) to the
original pleading for statute of limitations purposes does not
depend on whether the amended complaint asserts the same cause of
action pleaded in the original complaint. Instead, the focus is on
the identity of the transaction or occurrence. Zeh v. Wheeler, 111 Ill. 2d 266, 489 N.E.2d 1342 (1986). Under the same transaction or
occurrence standard, the focus is on the facts and occurrence
alleged in the original complaint, not the name of the cause of
action or legal theory used to support the claim for damages.
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207 (1996).
In the instant case, count II of plaintiff's second amended
complaint is barred by the statute of limitations, not because it
alleges new causes of action or legal theories, but because count
II relates back only to the first amended complaint filed on May
24, 1991, and Canter was not added as a defendant until more than
five years after the claim for conversion accrued in March 1984.
Plaintiff argues that the conversion manifested itself on at
least two distinct occasions involving two separate manuscripts.
The first time was when Canter allegedly usurped her research ideas
in March 1984, and the second time was when Canter refused to allow
her to conduct a study of apraxic behaviors in 1986. Thus, the
conversion claim did not accrue until late 1986.
Under Illinois law, actions for conversion "shall be commenced
within 5 years next after the cause of action accrued." 735 ILCS
5/13-205 (West 1994). A cause of action accrues when the plaintiff
knows or should have known that she is injured and that such injury
may have been wrongfully caused. Doe By and Through Doe v.
Montessori School of Lake Forest, 287 Ill. App. 3d 289, 678 N.E.2d 1082 (1997).
In plaintiff's first amended complaint, she alleges that the
conversion occurred in March 1984, more than seven years prior to
the May 24, 1991, filing of the first amended complaint. In her
second amended complaint filed on March 6, 1996, plaintiff repled
this allegation. Plaintiff also alleged that upon discovering
Canter's plagiarism she immediately reported it to Northwestern
officials. According to plaintiff's own pleadings, as early as
March 1984, she was aware that she was injured by defendant
Canter's alleged conversion and that such injury may have been
wrongfully caused. Thus, the conversion claim accrued in March
1984.
Because plaintiff's first amended complaint, which added
professor Canter as a defendant, was not filed until May 24, 1991,
more than two years after the expiration of the five-year statute
of limitations provided in section 13-205 (735 ILCS 5/13-205 (West
1994)), plaintiff's conversion claim is barred.
Alternatively, plaintiff argues that count II relates back to
her original complaint because defendant Canter was inadvertently
omitted. In view of the record, this argument is not persuasive.
This court has held that the failure to name a defendant is
considered inadvertent when the plaintiff has a lack of knowledge
of the identity or existence of the defendant. Plooy v. Paryani,
275 Ill. App. 3d 1074, 657 N.E.2d 12 (1995).
In this case, the allegations contained in plaintiff's
original complaint regarding Canter's alleged misappropriation
reflect that plaintiff was aware of Canter's identity before the
statute of limitations expired on her claim for conversion.
Notwithstanding plaintiff's knowledge of Canter's identity,
plaintiff did not name Canter as a defendant in her original
complaint when she commenced this action on March 3, 1989. As
previously noted, Canter was not added as a defendant until
plaintiff filed her first amended complaint on May 24, 1991.
In addition, section 2-616(d) provides that a claim against a
defendant who is later added cannot relate back unless the
defendant, his agent or his partner was served with summons at the
time the complaint was filed. 735 ILCS 5/2-616 (d)(3) (West 1994).
Here, the record indicates that defendant Canter was served with
the summons and complaint on or about May 30, 1991.
Inasmuch as plaintiff did not add defendant Canter as a
defendant until more than seven years after the alleged acts of
conversion occurred, count II relates back only to the first
amended complaint in 1991 and not to the original complaint filed
in 1989. Consequently, the circuit court properly dismissed count
II of plaintiff's second amended complaint as being time barred
pursuant to section 13-205 (735 ILCS 5/13-205 (West 1994)).
Defendants also argue that the circuit court properly
dismissed count II of plaintiff's second amended complaint because
Illinois does not recognize a cause of action for conversion of
intangible property such as ideas, and plaintiff has always been
free to use her work as she wishes. Plaintiff counters that while
it may be true that ideas themselves are not a proper subject for
conversion, once her ideas were put into writing they became
tangible property in which she has an ownership interest and which
may be a proper subject of conversion. Conant v. Karris, 165 Ill.
App. 3d 783, 520 N.E.2d 757 (1987).
Our supreme court has stated that an action for conversion
lies only for personal property that is tangible or at least
represented by or connected with something tangible. In re Thebus,
108 Ill. 2d 255, 483 N.E.2d 1258 (1985). In this case, plaintiff's
research is a proper subject of conversion because the printed copy
of the research constituted tangible property. Conant, 165 Ill.
App. 3d 783, 520 N.E.2d 757.
Finally, defendants argue that count II of plaintiff's second
amended complaint is preempted by the federal Copyright Act. Under
section 301 of the federal Copyright Act, a state common law or
statutory claim is preempted if: (1) the work is within the scope
of the subject matter of copyright and (2) the legal or equitable
rights granted under state law are equivalent to any of the
exclusive rights within the general scope of copyright. 17 U.S.C.
301 (1994). Nevertheless, when a state law violation is
predicated upon an act incorporating elements beyond mere
reproduction or the like, the rights involved are not equivalent
and preemption will not occur. Harper & Row, Publishers, Inc. v.
Nation Enterprises, 723 F.2d 195, 200 (2d Cir. 1983). However,
defendants contend that plaintiff does not allege any cognizable
extra element that would turn her conversion claim into something
qualitatively different from a copyright infringement claim.
In this case, plaintiff's allegations of conversion contained
in the second amended complaint incorporate elements beyond mere
reproduction or the like. Plaintiff also alleges loss of physical
control over her research project as well as deceitful and
fraudulent conduct. Therefore, plaintiff's conversion claim is not
preempted by the federal Copyright Act. Notwithstanding this fact,
count II of plaintiff's second amended complaint fails because it
was time barred pursuant to section 13-205 (735 ILCS 5/13-205 (West
1994)).
Based upon the above-stated reasons, the orders of the circuit
court are affirmed.
Affirmed.
CERDA, P.J., and WOLFSON, J., concur.
March 26, 1998
No. 1-96-3429
MARILYN BILUT, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
NORTHWESTERN UNIVERSITY and )
GERALD CANTER, ) THE HONORABLE
) JOHN W. GUSTAFSON,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff, Marilyn Bilut, filed a two-count complaint against
defendant Northwestern University alleging that Northwestern had
breached an implied contract in refusing to award her a Ph.D.
degree and sought an injunction ordering Northwestern to award her
a Ph.D. degree as well as monetary damages. Thereafter, plaintiff
amended her complaint to add two counts against defendant professor
Gerald Canter, alleging tortious interference and seeking
compensatory and punitive damages.
Defendants moved to strike the first amended complaint or to
dismiss Canter and counts III and IV. The circuit court never
ruled on defendants' motion. Rather, the court ordered a trial as
to plaintiff's equitable claim, count I for injunctive relief, and
stated that plaintiff's legal claims, counts II, III and IV, would
be transferred to the law division.
The matter proceeded to trial on count I, and in a written
opinion, the circuit court rejected plaintiff's request for
injunctive relief, finding that it could not compel issuance of
plaintiff's doctoral degree. However, the court issued a mandatory
injunction against Northwestern, requiring it to give plaintiff an
additional two years to complete her degree.
The court also ruled on the legal claims, counts II, III and
IV of plaintiff's first amended complaint, finding in favor of
plaintiff on all three counts, i.e., that defendant Northwestern
had breached an implied contract, that defendant Canter had
maliciously interfered with that contract and that defendant
Canter's actions were willful and wanton. In support of this
finding, the court held that Northwestern's faculty and officials
were "arbitrary and capricious, and/or motivated by bad faith, in
their dealings with plaintiff" and that defendant Canter was
"exceedingly arbitrary and capricious." The circuit court then
transferred the matter to the law division solely for a
determination of damages. Defendants appealed.
This court reversed and remanded the mandatory injunction,
finding that plaintiff failed to establish all of the required
elements to justify its imposition. Bilut v. Northwestern
University, 269 Ill. App. 3d 125, 645 N.E.2d 536 (1994). This
court further found that the circuit court erred in finding
defendant's academic judgment of plaintiff was arbitrary and
capricious and held that Northwestern's decision not to award
plaintiff a Ph.D. degree was based on the independent scholarly and
academic judgments of several professors, including defendant
Canter. Bilut, 269 Ill. App. 3d 125, 645 N.E.2d 536.
Thereafter, plaintiff filed a petition for leave to appeal to
the Illinois Supreme Court. The Illinois Supreme Court denied
plaintiff's petition for leave during its March term of 1995. On
May 11, 1995, this cause was remanded back to the circuit court.
On remand, defendants moved for summary judgment on counts II,
III and IV of plaintiff's first amended complaint pursuant to
section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005
(West 1994)). Defendants argued that according to the law of the
case doctrine, this court had conclusively determined, as a matter
of law, that defendant's academic judgment of plaintiff was not
arbitrary and capricious. Therefore, there could be no breach of
implied contract by Northwestern, and since there was no breach by
Northwestern, defendant Canter could not have tortiously interfered
with the contract. Thus, defendants concluded, plaintiff could not
prevail on any of her claims.
Following a hearing, the circuit court agreed that plaintiff
could not prevail and entered an order granting summary judgment in
favor of defendants as to counts II, III and IV of plaintiff's
first amended complaint "pursuant to the law of the case doctrine
as decided by the appellate court in this cause." The circuit
court, over defendants' objection, also granted plaintiff leave to
file a second amended complaint against defendants "asserting a
cause of action that relates back to the allegations in plaintiff's
complaint and that has not been determined by the appellate court."
Plaintiff filed a two-count second amended complaint alleging
civil conspiracy and conversion of property/plagiarism. Defendants
moved to dismiss the second amended complaint pursuant to section
2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West
1994)). In support of their motion, defendants argued that
plaintiff's claims were barred by the statute of limitations; the
claim for civil conspiracy was insufficient because principals and
agents are legally incapable of conspiring with one another, and
plaintiff failed to allege that defendants engaged in any
particular tortious conduct; and the conversion of
property/plagiarism claim was insufficient because Illinois law
limits the tort of conversion to tangible property and because any
such claim was preempted by the federal Copyright Act (17 U.S.C.
301 (1994)). The circuit court granted defendants' motion to
dismiss plaintiff's second amended complaint with prejudice. This
appeal followed. We affirm.
Plaintiff has waived her right to appeal from the entry of
summary judgment on counts II, III and IV of the first amended
complaint because she failed to reallege those counts in her second
amended complaint. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner
Corp., 96 Ill. 2d 150, 449 N.E.2d 125 (1983), stands for the
proposition that "[w]hen a complaint is amended, without reference
to the earlier allegations, it is expected that these allegations
are no longer at issue." Foxcroft, 96 Ill. 2d at 154, 449 N.E.2d
at 127. This rule applies not only to factual allegations, but
also to theories of recovery. Foxcroft, 96 Ill. 2d at 155, 449 N.E.2d at 127.
First, plaintiff argues that the circuit court erred in
granting defendants' motion for summary judgment as to counts II,
III and IV of her first amended complaint pursuant to the law of
the case doctrine as the issues pertaining to those counts were not
decided upon their merits by the prior appellate decision and that
plaintiff was denied her constitutional right to a trial by jury.
The law of the case doctrine provides that issues presented
and disposed of in a prior appeal are binding and will control in
the circuit court on remand, as well as the appellate court in a
subsequent appeal, unless the facts presented are so different as
to require a different interpretation. Aardvark Art, Inc. v.
Lehigh/Steck-Warlick, Inc., 284 Ill. App. 3d 627, 672 N.E.2d 1271
(1996); Sanders v. Shephard, 258 Ill. App. 3d 626, 630 N.E.2d 1010
(1994). Thus, absent substantially different facts, a party will
not be allowed to reargue issues previously decided by the
appellate court. Instead, the remedy for a dissatisfied party is
to file a petition for rehearing or petition for leave to appeal to
the supreme court. Sanders, 258 Ill. App. 3d 626, 630 N.E.2d 1010.
In the prior appeal, this court held that defendants' academic
judgment of plaintiff was not arbitrary and capricious because
there was a discernable rational basis for the decisions of
Northwestern and its faculty regarding plaintiff's dissertation.
Bilut, 269 Ill. App. 3d at 135-36, 645 N.E.2d at 542-43. Since the
facts in the circuit court on remand and in this subsequent appeal
are substantially the same as those in the prior appeal, the facts
do not require a different interpretation. Accordingly, this
court's decision in the prior appeal was binding on the circuit
court on remand and is now binding on this court.
Moreover, despite plaintiff's contention that counts II, III
and IV of her first amended complaint were not matters
appropriately within the jurisdiction of the appellate court in the
prior appeal, the record reflects that plaintiff argued to the
circuit court in her motion to vacate dismissal for want of
prosecution filed August 2, 1993, that: (1) "Judge Berman's entire
order is unquestionably currently subject to appeal"; (2) "the
entire underlying merits of the case are currently being reviewed
by the appellate court"; and (3) "[i]n this case, the plaintiff has
already prevailed on the merits of her case" and "[i]f plaintiff is
successful on appeal, the only remaining issues will be for a jury
to determine the amount of damages."
Furthermore, contrary to plaintiff's present contention that
the appellate court in the prior appeal remanded the case generally
for a new trial, plaintiff argued in her petition for leave to
appeal to the supreme court that this court reversed the judgment
in favor of defendants without remanding for a new trial. Inasmuch
as a party on appeal is bound by her statements, including the
statements of her attorney, made in the circuit court, plaintiff is
now estopped from presenting argument contrary to her prior
statements. In re Marriage of Drewitch, 263 Ill. App. 3d 1088, 636 N.E.2d 1052 (1994).
We turn next to plaintiff's argument that entry of summary
judgment denied her the constitutional right to a trial by jury.
Section 2-1105(a) provides that "[a] plaintiff desirous of a trial
by jury must file a demand therefor with the clerk at the time the
action is commenced. *** Otherwise, the party waives a jury." 735
ILCS 5/2-1105(a) (West 1994). Careful review of the record makes
clear that plaintiff did not file a jury demand in accordance with
section 2-1105(a) at the time she commenced this action in 1989.
Further, plaintiff's argument that the circuit court granted
her leave to file her jury demand and that, therefore, it was
timely filed is not supported by the record. Pursuant to the
circuit court's December 16, 1992, order and opinion, which granted
the parties 30 days to make a jury demand for "the Law Division
matters," plaintiff filed her jury demand for trial of damages on
January 13, 1993, nearly four years after she commenced this
action. The issue of defendants' liability, however, had already
been decided by the circuit court in favor of plaintiff.
Plaintiff's jury demand, as indicated thereon, sought a jury trial
for damages only, not defendants' liability as to counts II, III
and IV of her first amended complaint. Thus, as to those counts,
plaintiff waived her right to a trial by jury.
Moreover, where no material issue of fact remains for trial,
the right to a jury trial is not implicated and, therefore, summary
judgment does not deny a plaintiff her right to a trial by jury.
Alamo Rent a Car, Inc. v. Ryan, 268 Ill. App. 3d 268, 643 N.E.2d 1345 (1994); Empire Moving & Warehouse Corp. v. Hyde Park Bank &
Trust Co., 43 Ill. App. 3d 991, 357 N.E.2d 1196 (1976).
In the prior appeal, this court conclusively determined that
"the [circuit] court's ultimate findings of fact and conclusions on
the merits were erroneous" and that Northwestern's conduct was not
arbitrary and capricious. Bilut, 269 Ill. App. 3d at 135, 645 N.E.2d at 542-43. Therefore, the circuit court's holding on remand
that defendants were entitled to summary judgment pursuant to the
law of the case doctrine was proper. Accordingly, we find that the
entry of summary judgment did not deny plaintiff the constitutional
right to a trial by jury.
Plaintiff further contends that the circuit court erred in
dismissing counts I and II of her second amended complaint. Count
I of plaintiff's second amended complaint alleges a civil
conspiracy. Count II alleges conversion of property/plagiarism.
As to count I, plaintiff argues that the principal-agent
relationship does not shield defendants from liability for civil
conspiracy because they were not acting properly within the scope
of their agency relationship when they acted together to wrongfully
assume control of her property and to fraudulently mislead her as
to the reasons for her dismissal from the Ph.D. program.
Civil conspiracy consists of a combination of two or more
persons for the purpose of accomplishing by some concerted action
either an unlawful purpose or a lawful purpose by unlawful means.
Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 645 N.E.2d 888 (1994).
Further, a cause of action for civil conspiracy exists only if one
of the parties to the agreement commits some act in furtherance of
the agreement, which is itself a tort. Adcock, 164 Ill. 2d 54, 645 N.E.2d 888.
As a general rule of law, principals and agents are legally
incapable of conspiring with one another because the acts of an
agent are considered the acts of his principal. Salaymeh v.
InterQual, Inc., 155 Ill. App. 3d 1040, 508 N.E.2d 1155 (1987).
The exception to this rule is where the interests of a separately
incorporated agent diverge from the interests of the corporate
principal and the agent at the time of the conspiracy is acting
beyond the scope of his authority or for his own benefit, rather
than that of the principal. Pink Supply Corp. v. Hiebert, Inc.,
788 F.2d 1313, 1317 (8th Cir. 1986). Further, if the agent is
acting not as an agent but as a principal, he can be liable for
conspiring with the principal. Morrison v. Murray Biscuit Co., 797 F.2d 1430 (7th Cir. 1986).
Plaintiff urges this court to apply the above exceptions here.
The case at bar, however, is distinguishable from Pink and
Morrison.
In the present case, it is undisputed that defendant Canter
and the other Northwestern faculty members plaintiff alleges
conspired against her, Drs. Logeman, Smith and Larson, and Dean
Cohen, were at all relevant times employees of Northwestern
University. The alleged conspirators, therefore, consist of
Northwestern and its direct employees, not separately incorporated
agents as was the case in Pink, 788 F.2d at 1317.
Additionally, the interests of the employer, Northwestern, and
its employee, defendant Canter, did not diverge. Both shared a
common interest in Northwestern receiving the grant from Easter
Seals for the research presented by defendant Canter.
The exception as applied in Morrison, 797 F.2d 1430, is also
distinguishable from the present case. Morrison stands for the
proposition that if the agent is acting not as an agent but as a
principal, he can be liable for conspiring with the principal.
Here, plaintiff never alleged that defendant Canter was not acting
as an agent but as a principal.
Based upon the record, the exception upon which plaintiff
urges this court to adopt is inapplicable to the present case. We,
therefore, find that the circuit court did not err in finding in
accordance with the general rule, as a matter of law, that
defendants as employer and employee were legally incapable of
conspiring with one another. Thus, the circuit court properly
dismissed count I of plaintiff's second amended complaint.
Plaintiff next contends that the second amended complaint
relates back to the first amended complaint pursuant to section 2-
616 of the Code of Civil Procedure (735 ILCS 5/2-616 (West 1994)).
Therefore, it was timely filed and the circuit court erred in
granting defendants' motions to dismiss count II of her second
amended complaint based upon the statute of limitations.
Alternatively, plaintiff posits that if the second amended
complaint does not relate back to the first amended complaint, it
relates back to the original complaint filed in 1989, as defendant
Canter was inadvertently left out.
Our supreme court has stated that the test for whether an
amended complaint relates back under section 2-616(b) to the
original pleading for statute of limitations purposes does not
depend on whether the amended complaint asserts the same cause of
action pleaded in the original complaint. Instead, the focus is on
the identity of the transaction or occurrence. Zeh v. Wheeler, 111 Ill. 2d 266, 489 N.E.2d 1342 (1986). Under the same transaction or
occurrence standard, the focus is on the facts and occurrence
alleged in the original complaint, not the name of the cause of
action or legal theory used to support the claim for damages.
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207 (1996).
In the instant case, count II of plaintiff's second amended
complaint is barred by the statute of limitations, not because it
alleges new causes of action or legal theories, but because count
II relates back only to the first amended complaint filed on May
24, 1991, and Canter was not added as a defendant until more than
five years after the claim for conversion accrued in March 1984.
Plaintiff argues that the conversion manifested itself on at
least two distinct occasions involving two separate manuscripts.
The first time was when Canter allegedly usurped her research ideas
in March 1984, and the second time was when Canter refused to allow
her to conduct a study of apraxic behaviors in 1986. Thus, the
conversion claim did not accrue until late 1986.
Under Illinois law, actions for conversion "shall be commenced
within 5 years next after the cause of action accrued." 735 ILCS
5/13-205 (West 1994). A cause of action accrues when the plaintiff
knows or should have known that she is injured and that such injury
may have been wrongfully caused. Doe By and Through Doe v.
Montessori School of Lake Forest, 287 Ill. App. 3d 289, 678 N.E.2d 1082 (1997).
In plaintiff's first amended complaint, she alleges that the
conversion occurred in March 1984, more than seven years prior to
the May 24, 1991, filing of the first amended complaint. In her
second amended complaint filed on March 6, 1996, plaintiff repled
this allegation. Plaintiff also alleged that upon discovering
Canter's plagiarism she immediately reported it to Northwestern
officials. According to plaintiff's own pleadings, as early as
March 1984, she was aware that she was injured by defendant
Canter's alleged conversion and that such injury may have been
wrongfully caused. Thus, the conversion claim accrued in March
1984.
Because plaintiff's first amended complaint, which added
professor Canter as a defendant, was not filed until May 24, 1991,
more than two years after the expiration of the five-year statute
of limitations provided in section 13-205 (735 ILCS 5/13-205 (West
1994)), plaintiff's conversion claim is barred.
Alternatively, plaintiff argues that count II relates back to
her original complaint because defendant Canter was inadvertently
omitted. In view of the record, this argument is not persuasive.
This court has held that the failure to name a defendant is
considered inadvertent when the plaintiff has a lack of knowledge
of the identity or existence of the defendant. Plooy v. Paryani,
275 Ill. App. 3d 1074, 657 N.E.2d 12 (1995).
In this case, the allegations contained in plaintiff's
original complaint regarding Canter's alleged misappropriation
reflect that plaintiff was aware of Canter's identity before the
statute of limitations expired on her claim for conversion.
Notwithstanding plaintiff's knowledge of Canter's identity,
plaintiff did not name Canter as a defendant in her original
complaint when she commenced this action on March 3, 1989. As
previously noted, Canter was not added as a defendant until
plaintiff filed her first amended complaint on May 24, 1991.
In addition, section 2-616(d) provides that a claim against a
defendant who is later added cannot relate back unless the
defendant, his agent or his partner was served with summons at the
time the complaint was filed. 735 ILCS 5/2-616 (d)(3) (West 1994).
Here, the record indicates that defendant Canter was served with
the summons and complaint on or about May 30, 1991.
Inasmuch as plaintiff did not add defendant Canter as a
defendant until more than seven years after the alleged acts of
conversion occurred, count II relates back only to the first
amended complaint in 1991 and not to the original complaint filed
in 1989. Consequently, the circuit court properly dismissed count
II of plaintiff's second amended complaint as being time barred
pursuant to section 13-205 (735 ILCS 5/13-205 (West 1994)).
Defendants also argue that the circuit court properly
dismissed count II of plaintiff's second amended complaint because
Illinois does not recognize a cause of action for conversion of
intangible property such as ideas, and plaintiff has always been
free to use her work as she wishes. Plaintiff counters that while
it may be true that ideas themselves are not a proper subject for
conversion, once her ideas were put into writing they became
tangible property in which she has an ownership interest and which
may be a proper subject of conversion. Conant v. Karris, 165 Ill.
App. 3d 783, 520 N.E.2d 757 (1987).
Our supreme court has stated that an action for conversion
lies only for personal property that is tangible or at least
represented by or connected with something tangible. In re Thebus,
108 Ill. 2d 255, 483 N.E.2d 1258 (1985). In this case, plaintiff's
research is a proper subject of conversion because the printed copy
of the research constituted tangible property. Conant, 165 Ill.
App. 3d 783, 520 N.E.2d 757.
Finally, defendants argue that count II of plaintiff's second
amended complaint is preempted by the federal Copyright Act. Under
section 301 of the federal Copyright Act, a state common law or
statutory claim is preempted if: (1) the work is within the scope
of the subject matter of copyright and (2) the legal or equitable
rights granted under state law are equivalent to any of the
exclusive rights within the general scope of copyright. 17 U.S.C.
301 (1994). Nevertheless, when a state law violation is
predicated upon an act incorporating elements beyond mere
reproduction or the like, the rights involved are not equivalent
and preemption will not occur. Harper & Row, Publishers, Inc. v.
Nation Enterprises, 723 F.2d 195, 200 (2d Cir. 1983). However,
defendants contend that plaintiff does not allege any cognizable
extra element that would turn her conversion claim into something
qualitatively different from a copyright infringement claim.
In this case, plaintiff's allegations of conversion contained
in the second amended complaint incorporate elements beyond mere
reproduction or the like. Plaintiff also alleges loss of physical
control over her research project as well as deceitful and
fraudulent conduct. Therefore, plaintiff's conversion claim is not
preempted by the federal Copyright Act. Notwithstanding this fact,
count II of plaintiff's second amended complaint fails because it
was time barred pursuant to section 13-205 (735 ILCS 5/13-205 (West
1994)).
Based upon the above-stated reasons, the orders of the circuit
court are affirmed.
Affirmed.
CERDA, P.J., and WOLFSON, J., concur.
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