Kirchner v. Greene

SIXTH DIVISION
February 6, 1998




No. 1-96-3497

OTAKAR KIRCHNER, individually and ) Appeal from the
as Father and Next Friend of ) Circuit Court of
DANIEL KIRCHNER, a Minor, ) Cook County
)
Plaintiffs-Appellants, )
)
v. )
)
BOB GREENE, CHICAGO TRIBUNE COMPANY, )
and CHICAGO TRIBUNE NEWSPAPERS, INC., ) Honorable
) Kathy M. Flanagan,
Defendants-Appellees. ) Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiffs Otakar Kirchner, individually and as next friend
of Daniel Kirchner, a minor, appeal the dismissal with prejudice
of their three-count complaint against defendants Bob Greene,
Chicago Tribune Company and Chicago Tribune Newspapers, Inc. The
complaint alleged causes of action for defamation per se, false
light/invasion of privacy, and abuse of process based on certain
articles that appeared in the Chicago Tribune newspaper. We
affirm the dismissal of the complaint under section 2 615 of the
Code of Civil Procedure (735 ILCS 5/2 615 (West 1996)).
This appeal raises five issues: (1) whether the trial court
properly granted defendants' motion to strike the exhibits
attached to plaintiffs' reply to defendants' section 2 615 motion
to dismiss and the portions of plaintiffs' reply that referenced
the exhibits; (2) whether the complaint stated a cause of action
for defamation; (3) whether the complaint stated a cause of
action for false light/invasion of privacy; (4) whether the
complaint stated a cause of action for abuse of process; and (5)
whether plaintiffs can amend their complaint.
Plaintiff Otakar Kirchner (Kirchner) is the biological
father of plaintiff Daniel Kirchner (Daniel), who had been
adopted by another couple four days after his birth. Kirchner
initiated child custody proceedings to gain custody of Daniel
from the adoptive parents. The custody action became known
throughout the country as the "Baby Richard" case. Following
highly publicized and lengthy court proceedings, the Illinois
Supreme Court awarded custody of Daniel to Kirchner by an order
effective January 25, 1995, and reaffirmed that order by its
opinion filed on February 28, 1995. See In re Petition of Doe,
254 Ill. App. 3d 405 (1993), rev'd, 159 Ill. 2d 347 (1994), reh'g
denied, 159 Ill. 2d 362, cert. denied, 513 U.S. 994, 130 L. Ed. 2d 408, 115 S. Ct. 499 (1994); In re Petition of Kirchner, 164 Ill. 2d 468 (1995), cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 846, 115 S. Ct. 2599 (1995). Kirchner picked up four-year-old
Daniel from the residence of Daniel's adoptive parents on April
30, 1995.
In May 1996, plaintiffs filed the three-count complaint at
issue in this appeal. Count I asserted a cause of action for
defamation per se based on articles published by the Chicago
Tribune and written by Bob Greene, a columnist with the Chicago
Tribune and a syndicated columnist appearing in other national
publications. Count I specifically referred to four 1995 columns
by Greene dated May 9, May 10, May 23, and December 24. These
four articles were attached as exhibits to the complaint.
Regarding Greene's May 9, 1995, article, plaintiffs alleged
that Greene claimed "Daniel had been or was in the process of
being 'broken like a dog' and called on the police, courts and
child welfare agencies to look into and prevent this asserted
abuse." Regarding Greene's May 10, 1995, article, plaintiffs
directed attention to the words "a crime" and alleged that
"Greene claimed that the return of Daniel to his family which
Otakar Kirchner sought was 'a crime.'" Regarding Greene's May
23, 1995, column, plaintiffs alleged that Greene "repeatedly
referred to the transfer of custody as 'a crime,' 'an atrocity,'
an 'unlawful act,' and an 'assault' on Daniel Kirchner."
Regarding Greene's December 24, 1995, column and referring in
general to articles written by Greene between August 1993 and
December 1995, plaintiffs alleged that the articles "were
designed to defame Plaintiff Otakar Kirchner's good name and
reputation, culminating in a December 24, 1995, Bob Greene
article claiming that the Kirchners had 'broken' Daniel 'like a
dog.'" Count I further alleged that the statements made by
Greene in the designated columns were "untrue and defamatory" and
were published "with actual malice, knowing then to be false, or
in the alternative with a reckless disregard for their falsehood
and with a reckless disregard for the personal and business
reputation of" Kirchner. For the alleged defamation, Kirchner
sought compensatory and punitive damages.
Count II included both Kirchner and Daniel and alleged a
cause of action for false light/invasion of privacy based on the
Greene articles mentioned in count I and on an article dated May
3, 1995, authored by Mike Royko, now deceased, who was a
columnist for the Chicago Tribune and a syndicated columnist
appearing in other national publications. In paragraph 27,
plaintiffs alleged that the May 3 article by Royko "intimated
that Otakar Kirchner had pursued and obtained custody of Daniel
in order to make money." In paragraph 29, plaintiffs alleged
that the subject articles "asserted that Daniel was a victim of
parental abuse and cast him as an object of public pity."
Seeking compensatory damages, plaintiffs claimed a loss of
employment, income and residency, injury to their reputation, and
emotional and dignitary harms. Plaintiffs sought compensatory
damages.
Count III asserted a cause of action for abuse of process,
stating that "[d]efendants publicly alleged Plaintiff Otakar
Kirchner had committed criminal child abuse" and, as a
consequence, "Kirchner was forced to undergo the humiliation of
an investigation by the Illinois Department of Children and
Family Services." Count III realleged the same references to the
four Greene articles (May 9, May 10, May 23, and December 24,
1995).
Defendants filed a section 2 615 motion to dismiss the
complaint as insufficient in law. In turn, plaintiffs filed a
reply memorandum and attached as exhibits over 40 articles by
Greene and Royko published in 1993, 1994, 1995, and 1996.
Defendants apparently filed a motion to strike plaintiffs' reply
memorandum, arguing that plaintiffs had improperly discussed and
included materials outside the scope of the complaint.
Subsequently, plaintiffs' filed a motion in opposition to
defendants' motion to strike their reply memorandum.
Following a hearing on September 27, 1996, the trial court
granted defendants' section 2 615 motion to dismiss the complaint
with prejudice and granted defendants' motion to strike the
materials plaintiffs appended to their response (i.e., an
affidavit by Kirchner and over 40 articles) and any matter
contained in the response that was based upon the appendix.
On appeal, plaintiffs assert that the trial court erred in
striking the exhibits and the portions of their reply brief
referencing the exhibits. Defendants contend that the contested
material in and attached to plaintiffs' reply brief had to be
stricken because it was outside the four corners of the complaint
and, thus, improper in the context of a section 2 615 motion to
dismiss. We agree with defendants.
A motion to dismiss under section 2 615 attacks the legal
sufficiency of a complaint and alleges only defects on the face
of the complaint. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). Exhibits attached to the complaint are a
part of the complaint and must be considered. Brock v. Anderson
Road Ass'n, 287 Ill. App. 3d 16, 21 (1997). In addition, for
purposes of a section 2 615 motion, the court considers matters
subject to judicial notice and judicial admissions in the record.
Mt. Zion State Bank & Trust v. Consolidated Communications, Inc.,
169 Ill. 2d 110, 115 (1995). Facts in a prior court opinion are
subject to judicial notice. Chicago v. American National Bank &
Trust Co., 233 Ill. App. 3d 1031, 1038 (1992) ("[t]he trial court
properly took notice of the facts stated in a published opinion
of our supreme court"). In contrast, for purposes of a section
2 615 motion, a court may not consider "affidavits, affirmative
factual defenses or other supporting materials." Oravek v.
Community School District 146, 264 Ill. App. 3d 895, 898 (1994),
cited with approval in Bryson, 174 Ill. 2d at 91.
In Bryson, the Illinois Supreme Court held that defendants'
section 2 615 motion must be considered as a section 2 619 motion
(735 ILCS 5/2 619 (West 1996)). Bryson, 174 Ill. 2d at 91-92.
The plaintiffs in Bryson had filed a complaint that alleged
defamation per se based on the use of the word "slut" in a
magazine article and then failed to attach the magazine article.
In their motion to dismiss, the defendants attached as an exhibit
a copy of the magazine article in which the alleged defamatory
statement appeared. The trial and appellate courts relied upon
the magazine article in addition to the allegations in the
complaint in dismissing the defamation per se counts under the
innocent construction rule. The supreme court held that such
reliance on affirmative matters outside the pleadings was an
improper use of section 2 615 and, thus, considered the motion as
having been filed and decided under section 2 619. Bryson, 174 Ill. 2d at 91-92.
Relying on Bryson, plaintiffs in the present case argue that
defendants, in their memorandum in support of their motion to
dismiss, exceeded the bounds of the complaint and thereby
converted the section 2 615 motion to a section 2 619 motion.
Plaintiffs submit that this conversion arose because
"[d]efendants chose to provide a summary of the Baby Richard case
and to describe the role of the Chicago Tribune and Bob Greene in
the controversy." Plaintiffs' characterization of defendants'
motion to dismiss is not accurate.
Plaintiffs' complaint includes allegations that specifically
mention the background of the custody case initiated by Kirchner,
the media's identification of the matter as the "Baby Richard"
case, the 1994 and 1995 opinions and orders by the Illinois
Supreme Court, the denial of the adoptive parents' petition for
certiorari to the United States Supreme Court, and the events of
April 30, 1995, when Kirchner took custody of Daniel.
Furthermore, paragraph 12 of plaintiffs' complaint contains a
lengthy quotation from the Illinois Supreme Court's opinion of
July 12, 1994.
The record reveals that defendants' section 2 615 motion to
dismiss and memorandum in support of the motion directly linked
their statements and arguments to the allegations in plaintiffs'
complaint, the five newspaper columns attached as exhibits to
plaintiffs' complaint and the Illinois Supreme Court decisions
that are not only mentioned, but are discussed and quoted, in
plaintiffs' complaint. Unlike the Bryson defendants, the instant
defendants, in their motion to dismiss, did not attach or rely
upon any matters outside the pleadings. Instead, it was
plaintiffs who attached an affidavit and exhibits to their reply.
In their appellate brief, plaintiffs acknowledge that their
reply to defendants' motion to dismiss included materials beyond
the confines of their complaint by stating in relevant part that
"the Plaintiff's Exhibits and those portions of the [reply] brief
*** dealt with matters outside the face of the complaint."
(Emphasis added.) Furthermore, in their appellate brief,
plaintiffs acknowledge that the trial court did not consider any
extrinsic facts, "[i]n this case, with its significant extrinsic
facts, none of which were considered by the court below."
In light of the record, we find that defendants did not
include matters beyond those which can be considered by a court
in a section 2 615 motion and, thus, did not convert their
section 2 615 motion into a section 2 619 motion. However, in
light of the record and plaintiffs' acknowledgements, we find
that plaintiffs included improper materials (an affidavit and 47
exhibits) in their reply to defendants' motion to dismiss.
Accordingly, the trial court properly granted defendants' motion
to strike the materials and arguments in plaintiffs' reply to
defendants' section 2 615 motion to dismiss because they clearly
exceeded the material that can be considered in such a motion.
Where the trial court dismisses a complaint under section
2 615, this court applies a de novo standard of review. Brown
Leasing, Inc. v. Stone, 284 Ill. App. 3d 1035, 1044 (1996). The
question presented by a section 2-615 motion to dismiss for
failure to state a cause of action is whether sufficient facts
are contained in the pleadings which, if established, would
entitle the plaintiff to relief. Wright v. City of Danville, 174 Ill. 2d 391, 398 (1996). Thus, the only question on appeal is
whether the dismissed counts stated a cause of action. Brown
Leasing, 284 Ill. App. 3d at 1044; Majumdar v. Lurie, 274 Ill.
App. 3d 267, 268 (1995). In determining this issue, we must take
all well-pleaded facts in the complaint as true and draw all
reasonable inferences from those facts that are favorable to the
plaintiff. Brown Leasing, 284 Ill. App. 3d at 1045.
Count I of the complaint involves only Kirchner and alleges
a cause of action for defamation per se based on newspaper
columns written by Greene. Kirchner argues that the language in
the Greene columns accused him of the crime of child abuse.
Under our common law, four categories of statements
constitute defamation per se where they impute: (1) commission of
a crime; (2) infection with a communicable disease; (3) inability
to perform or want of integrity to discharge duties of office or
employment; and (4) prejudice to a party, or lack of ability, in
his trade, profession or business. Bryson, 174 Ill. 2d at 88;
Doherty v. Kahn, 289 Ill. App. 3d 544, 554 (1997). Damages are
presumed when a statement is defamatory per se. E.g., Mittelman
v. Witous, 135 Ill. 2d 220, 234 (1989).
Even statements that constitute defamation per se are not
actionable where they are reasonably capable of an innocent
construction. The modified innocent construction rule provides
"that a written or oral statement is to be considered in context,
with the words and the implications therefrom given their natural
and obvious meaning; if, as so construed, the statement may
reasonably be innocently interpreted or reasonably be interpreted
as referring to someone other than the plaintiff it cannot be
actionable per se." Chapski v. Copley Press, 92 Ill. 2d 344, 352
(1982). "It is self-evident that a statement 'reasonably'
capable of a nondefamatory interpretation, given its verbal or
literary context, should be so interpreted." Mittelman 135 Ill. 2d at 232.
The modified innocent construction rule applies only to
defamation per se actions. Mittelman, 135 Ill. 2d at 232. "The
rigorous standard of the modified innocent construction rule
favors defendants in per se actions in that a nondefamatory
interpretation must be adopted if it is reasonable. The tougher
standard is warranted because of the presumption of damages in
per se actions." (Emphasis in original.) Mittelman, 135 Ill. 2d
at 234. Whether a statement may reasonably be innocently
interpreted is a question of law to be resolved by the court.
Chapski, 92 Ill. 2d at 352.
In the present case, Kirchner rests his defamation per se
claim on the first category, asserting that defendants' words
imputed the commission of the crime of child abuse. To
constitute defamation per se based on imputing the commission of
a crime, "the crime must be an indictable one, involving moral
turpitude and punishable by death or by imprisonment in lieu of a
fine." Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30,
46 (1997) (no defamation per se). "While the words charging the
commission of a crime need not meet the technical requirements
that are necessary for an indictment, the words must fairly
impute the commission of a crime." Adams, 292 Ill. App. 3d at 47
(the statements at issue did not definitively impute the
commission of a crime).
Moreover, the innocent construction rule applies in
determining whether a statement alleged to be defamatory per se
imputes a criminal offense. Perry v. Wiltse, 256 Ill. App. 3d
422 (1993); Harrison v. Sears, Roebuck & Co., 189 Ill. App. 3d
980, 996 (1989); Sivulich v. Howard Publications, Inc., 126 Ill.
App. 3d 129 (1984). "If the actual words spoken [or written] do
not by themselves denote criminal (or unethical) conduct and in
common usage have a more flexible and broader meaning than
ascribed by plaintiff, then, as a matter of law, the words are
nonactionable as defamation per se." Harris Trust & Savings Bank
v. Phillips, 154 Ill. App. 3d 574, 581 (1987).
In the present case, Kirchner's defamation per se cause of
action is completely premised on the allegation that Greene
accused Kirchner of the criminal offense of child abuse. A
review of the language at issue reveals that Kirchner's claim
fails because there is no positive factual statement of criminal
child abuse to support a defamation per se claim and,
furthermore, the asserted statements are not directed to
Kirchner.
Regarding the Greene columns dated May 9 and December 24,
1995, Kirchner alleged that Greene claimed that Daniel had been
or was in the process of being "broken like a dog" and called on
the police, courts and child welfare agencies to look into and
prevent this asserted abuse. Kirchner argues that the "breaking"
statements, in the context of the columns, accused Kirchner of
abusing Daniel.
The May 9 column was entitled "You Can Break a Child Like a
Dog" and mostly consisted of quotations from various people who
knew Daniel before Daniel was transferred to Kirchner and
commented on Daniel's appearance and demeanor after the transfer.
Greene wrote:
"You can break a dog; you can break a child like a dog.
It's only a matter of time. You can remove a child from
everything he's ever known, everyone he's ever loved, and if
you control the voices he hears, you can break him.
Civilized societies are supposed to have mechanisms
police, courts, child-welfare agencies to prevent this."
Bob Greene, You Can Break a Child Like a Dog, Chicago
Tribune, May 9, 1995 (Tempo section) at 1.
The May 9 column continued and concluded only using quotations
from other people. The May 9 column never even mentioned
Kirchner's name.
The December 24, 1995, column primarily focused on the
complete lack of contact between Daniel and his adoptive brother
and then stated "[y]ou can break a child like a dog." Bob
Greene, For Two Betrayed Boys, One More Night of Silence, Chicago
Tribune, Dec. 24, 1995 (News) at 2. The column continued by
stating that the Illinois Supreme Court refused to help Daniel
and his adoptive family, and by quoting the Governor regarding
the state supreme court.
For the purpose of defamation per se and taken in context of
the entire columns, the statements made in the May 9 and December
24 columns as to "breaking like a dog" are not positive factual
statements to impute the commission of criminal child abuse
against Kirchner. See 325 ILCS 5/3 (West 1994) (Abused and
Neglected Child Reporting Act). It is an idiom subject to a
broader and noncriminal interpretation that relates to the
training or breaking of one's spirit. Such an interpretation is
certainly reasonable given the character of the quotes that
accompany Greene's comments and the context in which the phrase
is employed.
Regarding the May 10, 1995, column, Kirchner alleges that
Greene claimed that the return of Daniel to Kirchner was a
"crime." Similarly, regarding the May 23, 1995, column, Kirchner
directs attention to the words "a crime," "an atrocity," an
"unlawful act," and an "assault" upon Daniel. A full and fair
reading of these two columns, however, clearly shows that the
words at issue directly refer to the Illinois Supreme Court's
decision to transfer custody of Daniel to Kirchner. The "crime"
is clearly directed at persons in the judicial system, not
Kirchner.
Sometimes judges are called upon to stand against the wind
of public opinion whether in a reversal of a criminal case for
reasons that appear technical in nature but are mandated by the
constitution, an unpopular child custody case, or invalidating a
popular legislative enactment. While no member of the judiciary
enjoys hearing the kind of epitaph used here, in a free society
public officials learn to accept such criticism in the same
manner as they enjoy the occasional praise of their official
actions --- it just goes with the territory.
The language in the newspaper columns does not impute the
commission of a crime and, therefore, the trial court properly
dismissed the count premised on defamation per se.
Count II asserts a cause of action for false light/invasion
of privacy, alleging that the May 3, 1995, article by Royko
"intimated that Otakar Kirchner had pursued and obtained custody
of Daniel in order to make money." Count II further alleges that
the Greene and Royko columns "asserted that Daniel was a victim
of parental abuse and cast him as an object of public pity."
Three elements are required to state a cause of action for
false light: (1) the plaintiffs were placed in a false light
before the public as a result of the defendants' actions; (2) the
false light in which the plaintiffs were placed would be highly
offensive to a reasonable person; and (3) the defendants acted
with actual malice, that is, with knowledge that the statements
were false or with reckless disregard for whether the statements
were true or false. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-18 (1992) (the plaintiffs adequately stated a cause
of action for false light based on certain statements made by two
radio disc-jockeys).
Although the causes of actions of false light and defamation
overlap somewhat, they are different. "[A]ll defamation cases
can be analyzed as false-light cases, but not all false-light
cases are defamation cases." Lovgren v. Citizens First National
Bank, 126 Ill. 2d 411, 421 (1989). The recognition by the
Illinois Supreme Court in Lovgren that the existence of
defamation is not a requirement for a false-light claim accords
with the fact "that courts universally have held that a statement
need not be defamatory for a false-light privacy action to lie."
Boese v. Paramount Pictures Corp., 952 F. Supp. 550, 558-59 (N.D.
Ill. 1996) (and cases cited therein); but see Harte v. Chicago
Council of Lawyers, 220 Ill. App. 3d 255, 263 (1991) (the first
district held that where the plaintiff failed to state a cause of
action for defamation per se, the count "alleging invasion of
privacy (false light), must fail as well").
In recognizing the tort of false light, the Illinois Supreme
Court adopted the "actual malice" approach "to require proof of
knowledge of the falsity of the publication or that the defendant
acted in reckless disregard of the truth." Lovgren, 126 Ill. 2d
at 422. The Lovgren court reasoned that "'the outrageous
character of the publicity comes about in part by virtue of the
fact that some part of the matter reported was false and
deliberately so.'" (Emphasis added.) Lovgren, 126 Ill. 2d at
423, quoting W. Keeton, Prosser & Keeton on Torts 117, at 864-65
(5th ed. 1984).
Absent some allegation as to what specific statement was
false, a claim based on false light simply fails to satisfy the
most basic element of the cause of action. Count II of the
complaint is completely devoid of any allegation as to the
falsity of any declaration in the columns, and, therefore, count
II was properly dismissed.
Moreover, in the compliant, Kirchner's false-light claim is
based on the specific allegation that Royko's May 3 article
"intimated that Otakar Kirchner had pursued and obtained custody
of Daniel in order to make money." The closest statement that
appears to be mercenary-like is actually attributed to Kirchner's
lawyer. The Royko column states in relevant part:
"But don't be surprised if Otto and his storefront
lawyer come up with something themselves. As lawyer
Heinemann has said:
'There is no book deal pending, there is no movie deal
pending. But I wish that there were because I'd like to get
paid.'
Of course. Isn't that what it's all about?" (Emphasis
added.) Mike Royko, It's not Hollywood, but Otto's on a
Roll, Chicago Tribune, May 3, 1995, 1, at 3.
The money issue appears clearly directed at the lawyer's, not
Kirchner's, desire to get paid.
Count III involves only Kirchner and alleges a cause of
action for abuse of process based on an investigation conducted
by the Illinois Department of Children and Family Services
(DCFS). Kirchner argues that the newspaper articles initiated
the DCFS investigation because the articles accused Kirchner of
committing criminal child abuse.
The two elements of a claim for abuse of process are (1)
some act in the use of the legal process not proper in the
regular prosecution of such proceedings, and (2) the existence of
an ulterior purpose or motive. Arora v. Chui, 279 Ill. App. 3d
321, 331 (1996); Holiday Magic, Inc. v. Scott, 4 Ill. App. 3d
962, 966 (1972). The mere use of the legal process, such as the
filing of a lawsuit, does not constitute abuse of process. Kurek
v. Kavanagh, Scully, Sudow, White & Frederick, 50 Ill. App. 3d
1033, 1038 (1977); Holiday Magic, 4 Ill. App. 3d at 967. "Some
act must be alleged whereby there has been a misuse or perversion
of the process of the court." Holiday Magic, 4 Ill. App. 3d at
967. "The gist of the tort of abuse process is contained within
its title. An actionable tort does not exist unless there is
some improper use of the process of the court." Holiday Magic, 4
Ill. App. 3d at 967.
"Process" is defined "as any means used by the court to
acquire or exercise jurisdiction over a person or over specific
property." (Emphasis in original.) Arora, 279 Ill. App. 3d at
331; Holiday Magic, 4 Ill. App. 3d at 968.
Kirchner's claim fails for the simple reason that no court
process was involved and, thus, it is axiomatic that there can be
no abuse of process. Kirchner recognizes this fact in urging us
to expand the tort of abuse of process to include proceedings
undertaken by the DCFS because it is a quasi-judicial
administrative body that is charged with the responsibility of
adjudicating claims of child abuse. Such expansion is baseless
in the law and would be contrary to the narrow strictures to
which courts have confined this tort. See Commerce Bank, N.A. v.
Plotkin, 255 Ill. App. 3d 870, 872 (1994) ("Illinois courts have
generally taken a very restrictive view of the tort of abuse of
process").
Finally, plaintiffs contend that the trial court abused its
discretion in not permitting them to replead the claim for false
light and "in not permitting Plaintiffs to replead a claim of
defamation per quod." The dispositive fact regarding amendment
of the complaint is that plaintiffs never requested in the trial
court, in either a written or verbal manner, to amend their
complaint. Consequently, the trial court made no ruling on the
issue of amending the complaint and, thus, cannot be said to have
abused its discretion in denying a request that was never made.
In his appellate brief to this court, Kirchner requests that
he be allowed to amend his complaint. Kirchner's request fails
on two grounds. First, an issue raised in a party's appellate
brief without clearly defined issues and relevant authority may
be deemed waived. Heatherly v. Rodman & Renshaw, Inc., 287 Ill.
App. 3d 372, 379 (1997). Second, Kirchner failed to follow the
dictates of Illinois Supreme Court Rule 362, which governs the
procedure for asking this court to allow amendment of pleadings.
155 Ill. 2d R. 362. Rule 362(a) provides that "[a]ny party who
seeks on appeal to amend his or her pleadings *** shall present a
written application therefor, supported by affidavit." 155 Ill.
2d R. 362(a).
In conclusion, we affirm the dismissal of plaintiffs'
complaint with prejudice.
Affirmed.
ZWICK and QUINN, JJ., concur.