Opinion
1-22-1335
06-30-2023
H. JAY CANTWELL, Plaintiff-Appellant v. N.H. SCOTT AND HEBBLETHWAITE FUNERAL HOME, INC. d/b/a N.H. SCOTT AND HANEKAMP FUNERAL HOME, Defendant-Appellee
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 2020 M3 005784 Honorable John A. Simon, Judge, Presiding
JUSTICE D.B. WALKER delivered the judgment of the court. Justice Reyes and Justice Burke concurred in the judgment.
ORDER
D.B. WALKER, JUSTICE
¶ 1 Held: We affirm the order of the circuit court. The facts of this case do not present a scenario that warrants equitable tolling of the statute of limitations.
¶ 2 This appeal arises from a case in which plaintiff H. Jay Cantwell alleged that defendant N.H. Scott and Hebblethwaite Funeral Home, Inc. used his name without his permission in an advertisement in a church directory. After obtaining information detailing when plaintiff first learned of the advertisement, defendant filed a motion to dismiss under section 5/2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2022)), arguing that plaintiff's claim was filed beyond the statute of limitations and therefore should be dismissed. Plaintiff did not dispute the fact that he had filed his claim beyond the statute of limitations and argued for application of the doctrine of equitable tolling. The circuit court declined to apply equitable tolling and dismissed plaintiff's claim. On appeal, plaintiff argues that it was error for the circuit court to decline to apply the doctrine of equitable tolling.
¶ 3 BACKGROUND
¶ 4 The facts of this case are largely undisputed. Plaintiff is a retired funeral director. He worked for defendant between 2006 and 2011, and he has had no affiliation with defendant since. On or about October 14, 2019, plaintiff heard from his brother that his name was being used in an advertisement placed by defendant in the 2019-2020 Our Lady of Perpetual Help Catholic School's phonebook.
¶ 5 On December 4, 2019, plaintiff sent an email to defendant demanding that, in order "[t]o avoid legal escalation," defendant cease using his name, provide him information about when and how his name was used in the time since he left the company, and remit to him a check for $15,000. On December 5, 2019, defendant's attorney responded with an attachment described as a letter acknowledging receipt of plaintiff's email. This attachment is not included in the record on appeal.
¶ 6 On December 16, 2019, plaintiff emailed defendant's attorney requesting an update on the matter. The same day, defendant's attorney responded: "This matter has been referred to our insurance carrier Hartford Insurance."
¶ 7 On December 23, 2019, defendant's attorney sent plaintiff a letter stating that defendant had updated its sponsor page with the school in 2012 (after plaintiff's departure) and that the school or its printer had erred in using a previous version of the ad from before that change. The letter further notes that defendant had been unaware of the erroneous printing, as it had not received copies of the school's directories in which its advertisement was featured during that time. The body of letter ends: "[Defendant] advised OLPH of the error immediately. OLPH acknowledged receipt of the communication. Their response is attached. [Defendant] has closed its file on this matter."
¶ 8 On January 28, 2020, plaintiff sent a letter to Caryl Scott, the defendant corporation's owner, noting his disagreement with defendant's attorney's "opinion OLPH errored [sic] in republishing the defective ad, annually, including this current school year." In the letter, plaintiff asserted that defendant had actively renewed the ad copy each year. Plaintiff's letter intimated a threat to defendant's license if action was not taken on the matter and concluded that "[m]y preference is to reach a financial resolution and end this disagreement." This letter received no response.
¶ 9 On March 31, 2020, plaintiff emailed defendant's attorney inquiring as to the insurance company's response and requesting confirmation of receipt of the January letter. This email received no response.
¶ 10 At some unspecified point in time, plaintiff obtained the services of a law firm, Lavelle Law, Ltd., which also represents plaintiff on appeal. On September 25, 2020, plaintiff, through legal counsel, sent defendant a cease and desist letter. Beyond explaining plaintiff's allegations against defendant and demanding defendant cease and desist from using plaintiff's name, the body of the letter ended: "Please comply with these demands on or before October 9, 2020. If you fail to comply, Mr. Cantwell intends to file suit to enforce all remedies in law and equity." This letter received no response.
¶ 11 On November 30, 2020, plaintiff filed a civil complaint alleging that defendant had violated the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/1 et seq. (West 2020). Plaintiff subsequently filed, with leave of court, an amended complaint to fix an error with the signatures on the original complaint.
¶ 12 Defendant served plaintiff with a demand for a bill of particulars requesting information on when and how, exactly, plaintiff became aware of the advertisement in question. After receiving plaintiff's answers, defendant filed a motion to dismiss plaintiff's amended complaint under section 2-619(a)(5). In that motion, defendant argued that the statute of limitations for alleged IRPA violations was one year and therefore plaintiff's claim, submitted more than 13 months after his discovery of the alleged violation, should be dismissed as time-barred.
¶ 13 In his response to the motion to dismiss, plaintiff did not deny that his claim was filed beyond the statute of limitations, but only argued that "[d]efendant's conduct equitably tolled the statute of limitations until December 16, 2019." On August 1, 2022, the circuit court entered the order that is the subject of this appeal. In that order, the circuit court granted defendant's motion to dismiss plaintiff's amended complaint. The order was a two-sentence order without any explanation of the circuit court's reasoning. The circuit court subsequently entered a second order on August 26, 2022, which corrected the August 1, 2022 order to clarify that the order disposed of the case in its entirety. Plaintiff filed a timely notice of appeal on August 30, 2022, and this appeal follows.
¶ 14 ANALYSIS
¶ 15 Plaintiff's sole contention on appeal is that the circuit court erred by declining to apply the doctrine of equitable tolling and recognize his claim as timely. He argues that the circumstances of his claim are sufficiently extraordinary to warrant invocation of the doctrine because defendant misled in his efforts to resolve the dispute without resorting to the courts. We disagree.
¶ 16 The circuit court dismissed plaintiff's complaint pursuant to a motion to dismiss under section 2-619 of the Code. A motion to dismiss brought under this section "admits the legal sufficiency of the plaintiff's claim but asserts certain defects or defenses outside the pleadings which defeat the claim." Sandholm v. Kuecker, 2012 IL 111443, ¶55. In this case, the motion to dismiss was specifically under section 2-619(a)(5), which asserts "[t]hat the action was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2022). While the IRPA specifies no statute of limitations, this court has previously held that because the IRPA essentially codified the common-law tort of appropriation of likeness, the one-year statute of limitations that applied there applies to IRPA claims as well. Blair v. Nevada Landing Partnership, 369 Ill.App.3d 318, 323 (2006). This comports with the general rule in section 5/13-201 of the Code of Civil Procedure, which dictates a one-year statute of limitations for "publication of matter violating the right of privacy," since appropriation of likeness was one branch of the common law tort of invasion of privacy. Dwyer v. American Exp. Co., 273 Ill.App.3d 742, 744-45 (1995).
¶ 17 There is some disagreement between the parties as to the applicable standard of review. Both parties agree that, according to the limited supreme court precedent that exists, the standard of review for determining whether a deadline should be equitably tolled is a clearly erroneous standard because it is a mixed question of fact and law. Williams v. Board of Review, 241 Ill.2d 352, 370 (2011). However, we agree with plaintiff's assertion that this case differs because, unlike Williams, this case was dismissed at the pleading stage. Id. at 358-359 (establishing that plaintiff's case moved through the entire administrative review process before being appealed to the trial court). Accordingly, we will follow recent appellate case law applying the de novo standard of review generally applicable to appeals from grants of section 2-619 motions to dismiss to such motions where questions of equitable tolling are presented. Dalessandro v. Quinn-Dalessandro, 2023 IL App (1st) 211119, ¶ 41; Guarantee Trust Life Insurance Co. v. Kribbs, 2016 IL App (1st) 160672, ¶ 28; Ralda-Sanden v. Sanden, 2013 IL App (1st) 121117, ¶ 17. "De novo review means that we perform the same analysis that a trial judge would perform. In addition, we may affirm on any basis appearing in the record, whether or not the trial court relied on that basis and whether or not the trial court's reasoning was correct." Khan v. Fur Keeps Animal Rescue, Inc., 2021 IL App (1st) 182694, ¶ 25.
¶ 18 "Equitable tolling is rarely applied in Illinois." Dealessandro, 2023 IL App (1st) 211119, ¶ 80. "Equitable tolling of a statute of limitations may be appropriate if the defendant has actively misled the plaintiff, or if the plaintiff has been prevented from asserting his or her rights in some extraordinary way, or if the plaintiff has mistakenly asserted his or her rights in the wrong forum." Clay v. Kuhl, 189 Ill.2d 603, 614 (2000). "Extraordinary barriers include legal disability, an irredeemable lack of information, or situations where the plaintiff could not learn the identity of the proper defendants through the exercise of due diligence." Ralda-Sanden v. Sanden, 2013 IL App (1st) 121117, ¶ 26. Equitable tolling requires due diligence on the part of the claimant, which is a "fact-specific inquiry, guided by reference to the hypothetical reasonable person, or, in this case, a reasonably prudent claimant similarly situated." Williams, 241 Ill.2d at 372.
¶ 19 In the case at bar, both parties agree that plaintiff's claim was filed beyond the statute of limitations as counted from October 14, 2019, the time at which he was made aware of his potential claim. Plaintiff argues, instead, that the statute of limitations should be equitably tolled to December 19, 2019, the date of the email in which defendant's attorney stated that the matter had been referred to its insurance provider. Plaintiff argues that by telling him that the matter had been referred to the insurance provider and then ceasing further communication, defendant misled plaintiff in his efforts to resolve the matter without resorting to the courts and led him to believe that the matter would be resolved by the insurance company. Plaintiff argues that these facts are sufficient to warrant equitable tolling. We decline to apply the doctrine of equitable tolling in this case for three reasons.
¶ 20 First, plaintiff did not exercise due diligence. There was a span of more than five months between his last communication with defendant and the time at which plaintiff sent the cease and desist letter. Plaintiff does not describe any efforts during that period of time. Defendant had already been silent for three months at the time of plaintiff's last letter to defendant. Waiting another four months before taking further action cannot be reasonably deemed due diligence, even making all inferences in favor of plaintiff.
¶ 21 Even if we were to agree that plaintiff exercised due diligence up through the cessation of his personal correspondence with defendant or even up through the point at which he sent the cease and desist letter, there is no justification for plaintiff's failure to file suit within the limitations period aside from a lack of diligence. Plaintiff included in his cease and desist letter an October 9, 2020 cutoff date for response that, even with one intervening holiday, left two weekdays thereafter to file suit. Assuming they were equipped with all of the information presented in this record, his attorneys were or should have been aware of the statute of limitations, so we can only presume that plaintiff either instructed his attorneys not to file until later, against his own interests, or they simply missed the deadline. He has cited no occurrence during that period of time that prevented him from filing suit except a desire to resolve the matter outside the courts. To find that such a desire is sufficient to warrant equitable tolling would not only ignore existing precedent, but would also throw open the floodgates to any number of otherwise untimely claims.
¶ 22 Second, defendant did not mislead plaintiff. Defendant stated that the matter had been referred to its insurance company and later stated that it had closed its file on the matter. Had defendant sent plaintiff emails over the year during which the claim languished, promising just a few more days until the insurance company paid out the money plaintiff had demanded, one might say it had misled plaintiff. That is not what occurred here. Plaintiff may have misinterpreted the email, but he was not misled. Plaintiff may have mistakenly assumed that silence represented progress toward his desired resolution, but he was not misled.
¶ 23 Lastly, this case presents no extraordinary circumstances warranting equitable tolling. Plaintiff likens this case to three cases where courts found that the facts did present extraordinary circumstances warranting equitable tolling. This case is not remotely similar to any of them. Williams concerned the equitable tolling of a statutory deadline and our supreme court ruled that the relevant administrative agency failed to give the plaintiff the statutorily required notice and she therefore had no reason to know of the deadline or its passing. Id. at 372-73. Here, the issue is the statute of limitations and, more importantly, plaintiff was aware of his claim and this very awareness is what started the clock ticking on the statute of limitations. Further, he hired attorneys who were or should have been aware of the statute of limitations and who had time to file the claim before the deadline. In re Estate of Cerami concerned a wife who filed to renounce her deceased husband's will beyond the statute of limitations due the fact that a premarital agreement legally barred her from asserting the claim until the deadline had passed. In re Estate of Cerami, 2018 IL App (1st) 172073. Here, plaintiff was not barred in any way from filing suit. In Ralda-Sanden, plaintiff was late in filing suit under the Parentage Act because she had been told her entire life that her father was deceased, and she only filed suit after being informed that he was alive and after discovering his identity. Ralda-Sanden, 2013 IL App (1st) 121117. Here, plaintiff was aware of defendant's continued existence and so this case, too, is in no way comparable to the case at bar.
¶ 24 Plaintiff acknowledges differences between his cited cases and the facts before us, yet he asserts that the cases still demonstrate that plaintiff's circumstances are sufficiently extraordinary to warrant equitable tolling. We disagree. A desire to resolve a matter without resorting to the courts is common and even admirable, but we cannot say that a dogged commitment to the idea that such a settlement will occur, in the face of silence from the opposing party, is sufficient to warrant equitable tolling of the statute of limitations.
¶ 25 CONCLUSION
¶ 26 For the foregoing reasons, we affirm the decision of the circuit court.
¶ 27 Affirmed.