Grund v. Donegan

FIFTH DIVISION
FILED: 8/21/98

No. 1-97-2812

DAVID I. GRUND, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. )
)
JAMES DONEGAN, ) HONORABLE
) JOSEPH N. CASCIATO,
Defendant-Appellee. ) JUDGE PRESIDING.

PRESIDING JUSTICE HOFFMAN delivered the opinion of the
court:
David I. Grund, an attorney, filed the instant action
against James Donegan, an associate judge of the circuit court of
Cook County, seeking damages predicated upon theories of tortious
interference with contract and tortious interference with pro-
spective economic advantage. Grund now appeals from the circuit
court's order dismissing his action. For the reasons which
follow, we affirm.
In his complaint, Grund alleges that he was engaged to
represent Elizabeth Stamer in a domestic relations action
entitled In re the Marriage of Elizabeth Stamer and Jesse Stamer,
pending in the circuit court of Cook County as case No. 95 D
9895. Grund charges that Judge Donegan "made every effort to
thwart Grund's ability to adequately represent his client and
protect her rights because of [Judge] Donegan's utter dislike for
Grund." According to his complaint, when Grund presented a
petition for an order of protection on Stamer's behalf before
Judge Donegan on July 19, 1996, Judge Donegan "criticized Grund
on the record and accused Grund of serious allegations in front
of Stamer." When Grund requested that Judge Donegan recuse
himself, Judge Donegan refused and allegedly "accused Grund of
using the law inappropriately so as to force *** [his] recusal."
The complaint goes on to allege that Stamer informed Grund that
she had learned from a "very reliable source" that Judge Donegan
had an extrajudicial conversation with a disbarred attorney in
which he detailed Stamer's case and specifically commented that
Grund was "providing inadequate representation." Grund claims
that these incidents and a failed motion for substitution of
judges gave rise to "a conflict between Grund and Stamer ***
precluding Grund's continued representation of her before [Judge]
Donegan" and resulted in the loss of "any further attorney's fees
he would have earned representing Stamer."
In response to Grund's complaint, Judge Donegan filed a
combined motion to dismiss pursuant to section 2-619.1 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 1996)).
In that motion, Judge Donegan argued that Grund's complaint
failed to state a cause of action for either tortious interfer-
ence with contract or tortious interference with prospective
economic advantage and sought dismissal pursuant to section 2-615
of the Code (735 ILCS 5/2-615 (West 1996)). Specifically, the
motion pointed out that Grund's complaint failed to allege that
any breach of contract occurred or that Judge Donegan intended
that his alleged extrajudicial remarks would be relayed to
Stamer. Pursuant to section 2-619(a)(9) (735 ILCS 5/2-619(a)(9)
(West 1996)), Judge Donegan raised, inter alia, the doctrine of
absolute judicial immunity as a bar to any liability for the
remarks he is alleged to have made in the course of the
proceedings before him on July 19, 1996.
The circuit court granted Judge Donegan's motion to dismiss.
Thereafter, Grund filed a timely notice of appeal, invoking our
jurisdiction under Supreme Court Rule 301 (155 Ill. 2d R. 301).
A section 2-615 motion attacks the sufficiency of a com-
plaint and raises the question of whether the complaint states a
cause of action upon which relief can be granted. Burdinie v.
Village of Glendale Heights, 139 Ill. 2d 501, 505, 565 N.E.2d 654
(1990); Janes v. First Federal Savings & Loan Association, 57 Ill. 2d 398, 406, 312 N.E.2d 605 (1974). The issue is one of
law, and our review of a dismissal pursuant to section 2-615 is
de novo. Metrick v. Chatz, 266 Ill. App. 3d 649, 651-52; 639 N.E.2d 198 (1994).
In considering a section 2-615 motion, all well-pled facts
in the complaint must be taken as true with all reasonable
inferences drawn in favor of the pleader. Geick v. Kay, 236 Ill.
App. 3d 868, 873, 603 N.E.2d 121 (1992). A complaint fails to
state a cause of action if it does not contain factual
allegations in support of each element of the claim that the
plaintiff must prove in order to sustain a judgment. Schuler v.
Abbott Laboratories, 265 Ill. App. 3d 991, 994, 639 N.E.2d 144
(1993). Furthermore, a complaint may not rest on mere
unsupported factual conclusions. J. Eck & Sons, Inc. v. Reuben
H. Donnelley Corp., 213 Ill. App. 3d 510, 515, 572 N.E.2d 1090
(1991). On appeal from the dismissal of a complaint pursuant to
section 2-615 of the Code, a plaintiff may only argue and rely on
the allegations of fact made in the complaint, and this court can
only review the trial court's decision based on those same
allegations. Eisenbach v. Esformes, 221 Ill. App. 3d 440, 443,
582 N.E.2d 196 (1991).
A section 2-619 motion, which seeks involuntary dismissal of
a claim based upon certain specified defenses, raises the
question of whether there is a genuine issue of material fact and
whether the defendant is entitled to judgment as a matter of law.
Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 494, 639 N.E.2d 1282 (1994). Since the issue is again one of law, we also
review dismissals pursuant to section 2-619 de novo. Hutson v.
Hartke, 292 Ill. App. 3d 411, 413, 686 N.E.2d 734 (1997). When
the grounds for a section 2-619 motion are apparent on the face
of the complaint, the motion is within the area of confluence
between section 2-615 and section 2-619. Illinois Graphics Co.,
159 Ill. 2d at 486.
The elements of an action for tortious interference with
contract are: (1) the existence of a valid and enforceable
contract between the plaintiff and another; (2) the defendant's
awareness of the contractual relationship; (3) the defendant's
intentional and unjustified inducement of a breach of the con-
tract; (4) a subsequent breach by the other caused by the
defendant's wrongful conduct; and (5) damages. Strosberg v.
Brauvin Realty Services, Inc., 295 Ill. App. 3d 17, 32-33, 691 N.E.2d 834 (1998). In this case, Grund's complaint nowhere
alleges any breach of contract on the part of Stamer and, as
such, wholly fails to state a cause of action for tortious
interference with contract. We are left then only with the
question of whether the trial court erred in dismissing Grund's
claim for tortious interference with prospective economic
advantage.
The relationship between an attorney and his client is
terminable at will. LaRocco v. Bakwin, 108 Ill. App. 3d 723,
727-28, 439 N.E.2d 537 (1982). Until terminated, the
relationship created by an at-will contract will presumptively
continue in effect so long as the parties are satisfied, and,
therefore, such a relationship is sufficient to support an action
for tortious interference. Kemper v. Worcester, 106 Ill. App. 3d
121, 125, 435 N.E.2d 827 (1982). Interference may occur where an
attorney is prevented from performing his professional duties or
where the performance of those duties is made more difficult.
Callis, Papa, Jensen, Jackstadt & Halloran, P.C. v. Norfolk
Southern Corp., 292 Ill. App. 3d 1003, 1009, 686 N.E.2d 750
(1997). As we held in Anderson v. Anchor Organization for Health
Maintenance, 274 Ill. App. 3d 1001, 1013-14, 654 N.E.2d 675
(1995):
"An action for tortious interference with a contract
terminable at will is classified as one for intentional
interference with prospective economic advantage. (See
Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 510,
568 N.E.2d 870.) To prevail in such an action, a plaintiff
must plead and prove: '(1) his reasonable expectation of
entering into a valid business relationship; (2) the
defendant's knowledge of the plaintiff's expectancy; (3)
purposeful interference by the defendant that prevents the
plaintiff's legitimate expectancy from ripening into a valid
business relationship; and (4) damages to the plaintiff
resulting from such interference.' Fellhauer, 142 Ill. 2d at
511."

As stated earlier, Grund alleged two incidents in support of
his claim that Judge Donegan interfered with his prospective
economic advantage. The first incident occurred in open court
when Judge Donegan is alleged to have criticized Grund in the
presence of Stamer. However, as Judge Donegan correctly argues,
he is absolutely immune from liability for any statement he may
have made during the course of a judicial proceeding.
A judge is absolutely immune from liability for acts
committed while exercising the authority vested in him. This
doctrine of judicial immunity is subject to only two exceptions:
namely, actions not taken in the judge's judicial capacity and
actions taken in the complete absence of all jurisdiction.
Generes v. Foremen, 277 Ill. App. 3d 353, 355, 660 N.E.2d 192
(1995). In this case, there can be no question from the
allegations contained in Grund's complaint that neither exception
is applicable to the statements attributed to Judge Donegan
during the course of the domestic relations proceedings on July
19, 1996. Consequently, to the extent that Grund's claim is
based on those statements, it was properly dismissed pursuant to
section 2-619(a)(9) of the Code. The issue before us is thus
narrowed to the question of whether Grund's complaint states a
cause of action for tortious interference with prospective
economic advantage based on Judge Donegan's alleged extrajudicial
statements.
In order to state a cause of action for tortious
interference with prospective economic advantage, the plaintiff
must allege action by the defendant directed towards the party
with whom the plaintiff expects to do business. Schuler, 265
Ill. App. 3d at 994-95; Galinski v. Kessler, 134 Ill. App. 3d
602, 607-08, 480 N.E.2d 1176 (1985). It is as to this element
that Grund's complaint is lacking.
Illinois is a fact pleading jurisdiction. Knox College v.
Celotex Corp., 88 Ill. 2d 407, 426-27, 430 N.E.2d 976 (1981).
Although both sections 2-603(c) and 2-612(b) of the Code (735
ILCS 5/2-603(c), 2-612(b) (West 1996)) mandate the liberal
construction of pleadings, these provisions do not authorize
notice pleading. Knox, 88 Ill. 2d at 426-27. "To pass muster a
complaint *** must plead facts which bring the claim within the
legally recognized cause of action alleged." People ex rel.
Fahner v. Carriage Way West Inc., 88 Ill. 2d 300, 308, 430 N.E.2d 1005 (1981). Conclusions of fact will not suffice to state a
cause of action regardless of whether they generally inform the
defendant of the nature of the claim against him. Adkins v.
Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 519-20, 544 N.E.2d 733 (1989).
Grund charges that Judge Donegan intentionally engaged in
extrajudicial conversations about him to thwart his continued
representation of Stamer. Grund's complaint, however, fails to
allege that Judge Donegan directed any extrajudicial remarks
toward Stamer and further fails to allege any facts which would
show that Judge Donegan knew or had reason to believe that his
alleged extrajudicial comments concerning Grund would be relayed
to Stamer. By failing to allege facts in support of the
conclusion that Judge Donegan directed his alleged remarks to
Stamer, either directly or indirectly, Grund's complaint fails to
plead facts in support of a necessary element of a cause of
action for tortious interference with prospective economic
advantage. The count was, therefore, properly dismissed.
Grund did not seek leave to amend his complaint before the
trial court and has, thereby, elected to stand on his complaint
as stated. Illinois Graphics Co., 159 Ill. 2d at 497. Further,
Grund has made no argument in his brief before us that the trial
court abused its discretion in failing to grant him leave to
amend his complaint. As a consequence, the issue of whether
Grund should have been afforded an opportunity to correct the
deficiencies in his complaint by amendment is waived. 155 Ill.
2d R. 341(e)(7).
Affirmed.
HARTMAN and HOURIHANE, JJ., concur.