SIXTH DIVISION
December 7, 2006
No. 1-06-1158
MICHAEL CORDTS, )
) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County, Illinois.
v. )
) No. 04 L 9146
CHICAGO TRIBUNE COMPANY )
and MEDEVAL CORPORATION, ) Honorable
) Kathy M. Flanagan
Defendants-Appellees. ) Judge Presiding.
JUSTICE JOSEPH GORDON delivered the opinion of the court:
Plaintiff, Michael Cordts, brought claims entitled "invasion of privacy" and "defamation"
against his employer, Chicago Tribune Company (Chicago Tribune), and Medeval Corporation
(Medeval), a company hired by Chicago Tribune to evaluate the disability claims of Chicago
Tribune employees. Cordts alleged that an employee of Medeval wrongfully disclosed to his ex-
wife that he was receiving treatment for depression after the Medeval employee learned of the
fact while evaluating his disability claim. Defendants brought a joint motion to dismiss the
defamation claims based on section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2004)), and a motion to dismiss the "invasion of privacy" claims based on section 2-619 of
the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)). The circuit court granted both
motions and Cordts now appeals only the section 2-619 dismissal of his "invasion of privacy"
claims. For the reasons that follow, we affirm in part, reverse in part, and remand for further
proceedings.
No. 1-06-1158
I. BACKGROUND
Cordts filed his complaint and jury demand on August 19, 2005. Count II of the
complaint is entitled "Chicago Tribune Company - Invasion of Privacy" and count IV is entitled
"Medeval - Invasion of Privacy." The two counts, which are nearly identical, allege the
following pertinent facts. In March of 2004, Cordts applied to his employer, Chicago Tribune,
for short-term disability benefits and Chicago Tribune, in turn, requested that Medeval provide it
with a recommendation regarding Cordts's request. In August of 2004, Cathy Channing, an
employee of Medeval who learned of Cordts's request for disability benefits through her
employment, disclosed to Cordts's ex-wife, Kathleen, that Cordts was receiving treatment for
depression. Cordts discovered that his health information had been disclosed to his ex-wife on
August 19, 2004.
Cordts's complaint further alleged that Chicago Tribune had provided him with a
document entitled "Information Concerning Privacy Practices Under Tribune Group Benefits
Plan and Employee Assistance Plan" that ensured him that his health information would not be
disclosed to unauthorized parties. Cordts asserted that the confidential information disclosed
was of the kind that would be highly offensive to a reasonable person and that the disclosure was
especially devastating to him due to the "special relationship" he had with his ex-wife. The
complaint next stated that defendants:
"owed a duty of care to [Cordts] so as not to unreasonably give publicity to the
private life of [Cordts] and additionally owed a duty of care to [Cordts] under 740
ILCS 110/3, commonly known as the Mental Health and Developmental
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No. 1-06-1158
Disabilities Confidentiality Act and also under the Defendant Tribune's own
privacy policies."
Defendants did not file an answer but moved to dismiss the complaint, stating: "Counts II
and IV of the Complaint are claims for damages based upon the tort, invasion of privacy."
Defendants asserted, citing Doe v. TCF Bank Illinois, 302 Ill. App. 3d 839, 841, 707 N.E.2d 220,
221 (1999), that to state a cause of action for public disclosure of private facts, a plaintiff must
plead: "(a) Defendants gave publicity; (b) to Plaintiff's private, not public, life; (c) the matter
publicized was highly offensive to a reasonable person; and (d) the matter published was not a
legitimate public concern." Defendant acknowledged that the publicity element of the tort may
be satisfied by disclosing the matter to a small number of persons if those persons have a "special
relationship" with the plaintiff. However, defendants averred, again citing Doe, 302 Ill. App. 3d
at 842-43, 707 N.E.2d at 221, that the publicity element of the tort is not satisfied where the
persons to whom the information is disclosed have a "natural and proper interest" in the
information.
Defendants argued that Cordts's ex-wife Kathleen had a "natural and proper interest" in
Cordts's treatment for depression because he was "financially responsible for medical and life
insurance as well as college tuition and expenses for his daughter." In support of this contention,
defendants attached a copy of the judgement order for the dissolution of the Cordts's marriage,
dated December 1, 2005, as well as a "marital settlement agreement," which was executed by
Cordts and Kathleen in conjunction with their divorce. In addition to setting forth Cordts's
responsibilities with regard to maintaining health and life insurance policies for their child and
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No. 1-06-1158
for otherwise supporting her, the marital settlement agreement contained a section, entitled "joint
parenting agreement," that stated in part:
"The parties agree that the maximum involvement and cooperation of both
parents is required and in the child's best interests, and accordingly the parties
shall confer with each other about and jointly decide all important matters
pertaining to the child's health, welfare, education and upbringing with a view
toward arriving at a harmonious policy designed to promote the child's best
interests.
***
The parties agree that they are attempting to resolve their differences
through the use of a joint parenting agreement and they recognize that the joint
residential parenting schedule and the joint custody itself as provided herein may
require future adjustments and changes to reflect the child's best interests in the
future after taking into account:
A. The ability of the parents to cooperate effectively and consistently with
each other;
B. The residential circumstances of each parent; and
C. All other factors which my be relevant to the best interests of the child.
The parents also recognize that this joint parenting agreement is a dynamic
concept subject to reevaluation and change based upon a change in circumstances
of a parent or child including but not limited to illness, employment requirements
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No. 1-06-1158
and location, economic circumstances, the child's needs, requirements and
development, change in residence locations and other social, psychological and
economic changes."
Defendants also attached an affidavit from Medeval employee, Channing, in which she
stated that her daughter, Jaclyn, had been friends with the Cordts's daughter Catherine for several
years. Channing also stated that Catherine had visited with Jaclyn many times in the Channing
home, that Catherine attended a party at the Channing home on June 27, 2004, where she told
Channing that she planned to attend DePaul University in the fall of 2004, and that Catherine
visited the Channing home during the 2004 Christmas holidays and reported that she had, in fact,
begun attending DePaul University.
In response to defendants' motion to dismiss, Cordts first cited the same elements of an
action for public disclosure of private facts as asserted by defendants. Cordts then denied that
Kathleen had a "natural and proper interest" in knowing that her husband was receiving treatment
for depression, stating that the fact was "completely irrelevant to whether he would be able to pay
for medical, dental and life insurance, as well as his daughter's college tuition" as required by the
couple's marital settlement agreement. Amidst this argument, Cordts further stated that
defendants' disclosure of his confidential information was in violation of the Mental Health and
Developmental Disabilities Confidentiality Act (hereinafter "Confidentiality Act") (740 ILCS
110/1 et seq. (West 2004)), which "stringently and fiercely protects the disclosure of such
information." Cordts also quoted section 3 of the Confidentiality Act, which states that a
person's mental health information "shall not be disclosed except as provided in this Act" (740
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No. 1-06-1158
ILCS 110/3 (West 2004)), and averred that none of the Act's exceptions to disclosure applied in
his case.
Defendants replied to Cordts's response to their motion to dismiss, contending again that
Cordts's ex-wife had a "natural and proper interest" in the disclosed information. Additionally,
in a footnote to their reply, defendants stated:
"Plaintiff's references to the [Confidentiality Act] are entirely irrelevant to
this Court's determination as to whether there was a publication in a tort action for
invasion of privacy. Indeed, plaintiff has not alleged a cause of action under the
[Confidentiality Act.] Any references thereto are nothing more than a red herring
and should be ignored."
The record on appeal does not reflect that oral arguments were held on defendants'
motions to dismiss, nor that any evidentiary hearing was conducted. The circuit court issued its
memorandum opinion and order on March 15, 2006. In summarizing the parties' arguments in
the "factual background" section of its memorandum opinion, the court stated:
"[T]he Plaintiff *** argues that his ex-wife does not have a natural and
proper interest in his mental state as it does not directly affect her. He points out
that his treatment for depression is irrelevant to his ability to pay for his daughter's
expenses. Further, the Plaintiff contends that disclosure of his treatment for
depression was in violation of the [Confidentiality Act.]
*** [T]he Defendants argue that there is no more 'natural and proper'
interest than a parent's awareness of circumstances that may adversely affect the
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No. 1-06-1158
well being of her children. Thus, a mother has a natural and proper interest in her
child's father's mental health, ability to work, ability to support the child and
ability to participation [sic] father/daughter activities."
In the "discussion and ruling" section of its memorandum opinion, the circuit court
stated:
"In the instant case, the Plaintiff's treatment for depression was disclosed
to his ex-wife, who, all parties concede, has a special relationship with the
Plaintiff. The evidence in the record shows that the Plaintiff was obligated to pay
for insurance coverage, tuition and expenses for his daughter. Further, the
Plaintiff and his ex-wife shared joint custody of the child, although it was agreed
that the child would reside primarily with the mother, and made joint decisions
regarding the child's welfare. His ex-wife, the child's mother, has a legitimate
interest in anything that would adversely affect her child and the support of her
child both financially and emotionally. The mental state of a parent affects the
parent's ability to work and thus provide for the child financially and it affects the
parent's ability to interact with the child and thus provide for the child
emotionally. Therefore, the ex-wife, Kathleen Cordts, would have a natural and
proper interest in her ex-husband's mental health as it impacts their child's support
and well being. Further, it also impacts the ex-wife as she would be responsible
for the entire support of her child should the father become incapacitated.
Therefore, the Court finds that as Kathleen Cords had a natural and proper interest
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No. 1-06-1158
in the mental health of her ex-husband, the claim for disclosure of private facts
cannot stand and counts II and IV must be dismissed."
On appeal, Cordts contends that the circuit court erred in dismissing his complaint on the
basis of the "natural and proper interest" exception to the common law tort of public disclosure
of private facts because his condition and treatment had no bearing on his duties to either his
child or ex-wife. Cordts further contends that the circuit court's dismissal was in error because
defendants' disclosure was in violation of the Confidentiality Act. In support of the judgment
below, defendants repeat their contention that their disclosure was not tortious on the grounds
that Cordts's ex-wife did, in fact, have a "natural and proper interest" in the information because
Cordts's condition could potentially affect his ability to support his child. Defendants further
contend that Cordts never actually alleged a claim based on the Confidentiality Act. Finally,
defendants alternatively contend that the Confidentiality Act has abrogated the common law
action for public disclosure of private facts, at least with regard to the subjects covered by the
Act, and, therefore, Cordts's failure to plead the Act has left him with no cause of action at all.
II. ANALYSIS
As noted, counts II and IV of Cordts's complaint were dismissed pursuant to defendants'
section 2-619 motion.
"A section 2-619 motion to dismiss *** admits the legal sufficiency of the
complaint and raises defects, defenses or other affirmative matters *** which
appear on the face of the complaint or are established by external submissions
which act to defeat the plaintiff's claim, thus enabling the court to dismiss the
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No. 1-06-1158
complaint after considering issues of law or easily proved issues of fact."
Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1144, 759
N.E.2d 66, 69 (2001).
"When a court rules on a section 2-619 motion to dismess, it 'must interpret all pleadings and
supporting documents in the light most favorable to the nonmoving party.' " Van Meter v.
Darien Park District, 207 Ill. 2d 359, 367-68, 799 N.E.2d 273, 278 (2003), quoting In re Chicago
Flood Litigation, 176 Ill. 2d 179, 189, 680 N.E.2d 265 (1997). We review section 2-619
dismissals de novo. Van Meter, 207 Ill. 2d at 368, 799 N.E.2d at 278.
We first address the circuit court's section 2-619 dismissal of Cordts's common law claim
for public disclosure of private facts. Both parties agree that to state a common law claim for
invasion of privacy through public disclosure of private facts, a plaintiff must plead that:"(1)
publicity was given to the disclosure of private facts; (2) the facts were private, and not public,
facts; and (3) the matter made public was such as to be highly offensive to a reasonable person."
Miller v. Motorola Inc., 202 Ill. App. 3d 976, 978, 560 N.E.2d 900, 902 (1990), citing W.
Keeton, Prosser & Keeton on Torts §117, at 856-57 (5th ed. 1984); see also Johnson v. K Mart
Corp., 311 Ill. App. 3d 573, 579, 723 N.E.2d 1192, 1197 (2000); Doe, 302 Ill. App. 3d at 841,
707 N.E.2d at 221 (adding a fourth element that "the matter published was not of legitimate
public concern"). Generally, to satisfy the publicity element of the tort, a plaintiff must show
that the information was disclosed to the public at large; however, the publicity requirement may
be satisfied where a disclosure is made to a small number of people who have a "special
relationship" with the plaintiff. See Miller, 202 Ill. App. 3d at 980, 560 N.E.2d at 903 ("courts
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No. 1-06-1158
have realized that in circumstances where a special relationship exists between the plaintiff and
'the public' to whom the information has been disclosed, the disclosure may be just as devastating
to the person even though the disclosure was made to a limited number of people"); Beaumont v.
Brown, 401 Mich. 80, 104-05, 257 N.W.2d 522, 531 (1977) ("Communication of embarrassing
facts about an individual to a public not concerned with that individual and with whom the
individual is not concerned obviously is not a 'serious interference' with plaintiff's right to
privacy, although it might be 'unnecessary' or 'unreasonable.' An invasion of a plaintiff's right to
privacy is important if it exposes private facts to a public whose knowledge of those facts would
be embarrassing to the plaintiff. Such a public might be the general public, if the person were a
public figure, or a particular public such as fellow employees, club members, church members,
family, or neighbors, if the person were not a public figure"), overruled on other grounds by
Bradley v. Saranac Community Schools Board of Education, 455 Mich. 285, 565 N.W.2d 650
(1997).
Since, as noted, a section 2-619 motion to dismiss "admits the legal sufficiency of the
complaint and raises defects, defenses or other affirmative matters" (Lipinski, 325 Ill. App. 3d at
1144, 759 N.E.2d at 69), defendants, in bringing their section 2-619 motion, have tacitly
conceded that Cordts had a "special relationship" with his ex-wife that would satisfy the publicity
element of the tort despite the fact that the disclosure was not made to the general public.
However, defendants contend by way of affirmative defense that the disclosure was,
nevertheless, excusable because Kathleen had a "natural and proper interest" in the information.
Specifically, defendants contend that Kathleen had a right to know the information because
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No. 1-06-1158
Cordts was responsible for helping support their child pursuant to the couple's marital settlement
agreement and his mental condition could potentially hinder his ability to meet his obligations,
financially and otherwise.
Under prevailing law, the "special relationship" exception to the requirement that the
disclosure be made to the general public will not apply where the person in the "special
relationship" with the plaintiff has a "natural and proper interest" in the information disclosed.
See Midwest Glass Co. v. Stanford Development Co., 34 Ill. App. 3d 130, 135, 339 N.E.2d 274,
278 (1975); Doe, 302 Ill. App. 3d at 843, 707 N.E.2d at 222; Roehrborn v. Lambert, 277 Ill.
App. 3d 181,185, 660 N.E.2d 180, 185 (1995). We note, however, that although a person in a
"special relationship" with a plaintiff is more likely than others to have a "natural and proper
interest" in the plaintiff's private information by virtue of that "special relationship," the
existence of a "special relationship" does not necessarily create a "natural and proper interest."
See Midwest Glass Co., 34 Ill. App. 3d at 135, 339 N.E.2d at 278 (1975); Doe, 302, Ill. App. 3d
at 843, 707 N.E.2d at 222. What constitutes a "natural and proper interest" is discussed in
Midwest Glass Co. and Doe. In Midwest Glass Co., one of the first Illinois cases to discuss the
"special relationship" exception and the "natural and proper" limitation to that exception, a
condominium developer failed to pay a glass company for the installation of mirrors in several
condominiums. Midwest Glass Co., 34 Ill. App. 3d at 135, 339 N.E.2d at 278. The glass
company then sent letters to purchasers and prospective purchasers of condominiums informing
them that payment for the mirrors was overdue and that a mechanic's lien would be filed.
Midwest Glass Co., 34 Ill. App. 3d at 132, 339 N.E.2d at 276. The appellate court found that the
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No. 1-06-1158
glass company's disclosure of the developer's debt was not tortious, noting that the letters were
not intended "to vilify nor to subject [the developer] to continuous harassments," but were a
reasonable way for the glass company to "pursue its debtor and persuade payment." Midwest
Glass Co., 34 Ill. App. 3d at 135, 339 N.E.2d at 278. The court further noted that the disclosure
was not made to "the general public but only to a limited number of persons who had a natural
and proper interest in the ability and reputation of [the developer] to pay its debts." Midwest
Glass Co., 34 Ill. App. 3d at 134-35, 339 N.E.2d at 278. Similarly, in Doe, the appellate court
held that a bank's disclosure of the plaintiff's credit card debt to his spouse was not tortious
because she had a "natural and proper interest" in the information inasmuch as she could
potentially be liable for those debts and because plaintiff's debts decreased the value of her
interest in the marital property. Doe, 302 Ill. App. 3d at 843, 707 N.E.2d at 222; see also
Roehrborn, 277 Ill. App. 3d at 185, 660 N.E.2d at 185 (police chief's disclosure to an
administrator at a police training institute that a probationary police officer had failed polygraph
and psychological tests was not tortious because the institute had a "legitimate" and "natural and
proper interest in knowing the performance of potential applicants *** on the psychological and
polygraph tests"); Stern v. Great Western Bank, 959 F. Supp. 478, 483 (N.D. Ill. 1997)
(plaintiff's ex-wife's attorney had a natural and proper interest in plaintiff's financial records as
disclosed by his mortgage lender because plaintiff had put his financial records at issue by
asserting that he was unable to contribute to his son's education in a state court action brought by
his ex-wife).
Thus, as can be ascertained from the foregoing cases, a recipient of private information
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No. 1-06-1158
may have a "natural and proper interest" in information that relates to potential future harm or
liability to that person. For instance, the court in Doe found that the plaintiff's wife had a
legitimate concern in knowing of the plaintiff's debts because they could "potentially adversely
[affect] her future financial security," and because "she [was] potentially liable" for them.
(Emphasis added.) Doe, 302 Ill. App. 3d at 843, 707 N.E.2d at 222. Similarly, the court in
Midwest Glass Co. found that condominium owners and potential purchasers of condominiums
had a legitimate interest in the fact that the developer had not paid for mirrors in the
condominiums because the glass company could file a mechanic's lien, although it had not yet
filed any lien and was not certain to do so. Midwest Glass Co., 34 Ill. App. 3d at 135, 339
N.E.2d at 278.
Accordingly, we would have to agree with defendants that an ex-wife would have a
natural and proper interest in learning about any debilitating condition suffered by her ex-
husband that could impact his ability to maintain support of the their children. In this case, no
one disputes that Cordts was liable to provide support to his daughter and that if he ceased to be
able to support her, that obligation would fall solely to Kathleen, the child's mother. While it
would be of interest to have a more detailed description of Cordts's mental condition to fully
ascertain the potentiality of harm to Kathleen, as the recipient of the private information
regarding Cordts's mental condition, the record that Cordts has supplied us shows only that he
was receiving treatment for depression and that he sought short-term disability benefits. Cordts,
by his claim, tacitly concedes that his mental condition was such that a disability claim was
appropriate. Therefore, in the absence of any other information tending to minimize the potential
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effect of his condition, we conclude that the fact that Cordts sought disability benefits was
sufficient to indicate that his condition could have potentially impacted his ability to support his
daughter and, thereby, could have harmed his ex-wife, Kathleen. Consequently, we cannot
disagree with the circuit court's determination that the common law action should be dismissed
pursuant to section 2-619.
Cordts, however, would contend that even if his common law claim fails by reason of the
"natural and proper interest" exception, his action is maintainable under the Confidentiality Act.
The Confidentiality Act provides that "any record kept by a therapist or by an agency in the
course of providing mental health *** service to a recipient" and "any communication made by a
recipient or other person to a therapist or to or in the presence of other persons during or in
connection with providing mental health *** services to a recipient," including "information
which indicates that a person is a recipient" of mental health services, "shall be confidential and
shall not be disclosed except as provided in this Act." 740 ILCS 110/2, 3(a) (West 2004).
Section 15 states: "Any person aggrieved by a violation of this Act may sue for damages, an
injunction, or other appropriate relief." 740 ILCS 110/15 (West 2004). The Confidentiality Act's
specifically enumerated exceptions for where disclosures can be made without the mental health
care recipient's consent include, by way of example, disclosures for purposes of reviewing a
therapist's or agency's licensure (740 ILCS 110/7(a) (West 2004)), interagency disclosures (740
ILCS 110/7.1 (West 2004)), disclosures to a therapist's supervisors or peers for review (740
ILCS 110/9 (West 2004)), disclosure with regard to sexually violent persons (740 ILCS 110/9.3
(West 2004)), and disclosures in civil, criminal, and other proceedings (740 ILCS 110/10 (West
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No. 1-06-1158
2004)). Our supreme court has emphasized that these few exceptions to the Confidentiality Act
are strictly limited and are not to be expanded. See, e.g., Norskog v. Pfiel, 197 Ill. 2d 60, 71-72,
755 N.E.2d 1, 9 (2001) ("[i]n each instance where disclosure is allowed under the Act, the
legislature has been careful to restrict disclosure to that which is necessary to accomplish a
particular purpose. Exceptions to the Act are narrowly crafted. [Citation.] When viewed as a
whole, the Act constitutes a 'strong statement' by the General Assembly about the importance of
keeping mental health records confidential. [Citation.] *** Consequently, anyone seeking the
nonconsensual release of mental health information faces a formidable challenge and must show
that disclosure is authorized by the Act"); Reda v. Advocate Health Care, 199 Ill. 2d 47, 60, 765
N.E.2d 1002, 1010 (2002) ("In each case where disclosure is allowed under the Act, the
legislature has been careful to restrict disclosure to that which is necessary to accomplish a
particular purpose. Exceptions to the Act are narrowly crafted"); accord Mandziara v. Canulli,
299 Ill. App. 3d 593, 599, 701 N.E.2d 127, 132-33 (1998) ("The Act is 'carefully drawn to
maintain the confidentiality of mental health records except in the specific circumstances
specifically enumerated.' [Citation.] *** If we were to hold Canulli did not violate the Act
merely because he did not look at Mandziara's records, we would be rewriting the statute,
effectively eroding unmistakable legislative intent under the weight of judicial fiat"). The fact
that a person has a "natural and proper interest" in another person's mental health records is not
included in the Confidentiality Act's enumerated exceptions. Therefore, we find that the "natural
and proper interest" defense to the common law tort of public disclosure of private facts is not a
defense to a claim based on the Confidentiality Act.
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Defendants, however, contend that Cordts never attempted to state a claim for violation
of the Confidentiality Act in counts II and IV of his complaint. Thus, according to defendants,
Cordts has waived his right to invoke the Confidentiality Act on appeal. In that regard, we note
that defendants do not purport to contest the substantive applicability of the Confidentiality Act
to the instant facts, but merely contend that no such cause of action was invoked. We disagree
with defendants and find that Cordts did, in fact, plead enough to state a cause of action for
violation of the Confidentiality Act.
Although Cordts's complaint does not recite specific provisions of the Confidentiality
Act, it does states that defendants "additionally owed a duty of care to the plaintiff under the
[Confidentiality Act]." Illinois Supreme Court Rule 133(a) states: "If a breach of statutory duty
is alleged [in a pleading], the statute shall be cited in connection with the allegation." 134 Ill. 2d
R. 133(a). "The fact that the statute need not be quoted, only cited, implies that its purpose is to
give notice to the court and the opposing parties that the pleader is basing his case, at least in
part, on a particular statute." 3 R. Michael, Illinois Practice §24.9, at 393 (1989); see also 735
ILCS 2-612 (b) (West 2004) ("No pleading is bad in substance which contains such information
as reasonably informs the opposite party of the nature of the claim or defense which he or she is
called upon to meet"). In this case, Cordts specifically named and cited the Confidentiality Act
and, as noted, stated that defendants owed him a duty under the Act. In each count, Cordts also
sets forth allegations of fact that, on their face, would suffice to state a cause of action under the
Act's provisions. See 740 ILCS 110/2, 3, 5, 15 (West 2004). Moreover, defendants were on
notice and the court was aware that Cordts had invoked the Confidentiality Act. As noted,
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defendants addressed the fact in a footnote of their reply to Cordts's response to their motion to
dismiss and the court acknowledged the argument in the "factual background" section of its
memorandum opinion and order. Accordingly, defendants' contention that Cordts did not
attempt to state a cause of action based on the Confidentiality Act is unavailing.
We are cognizant, however, that Cordts's complaint is formally defective insofar as it
intermingles the statutory Confidentiality Act claim with the common law invasion of privacy
claim. In that regard, section 2-613(a) of the Code of Civil Procedure states: "Parties may plead
as many causes of action, counterclaims, defenses, and matters in reply as they may have, and
each shall be separately designated and numbered." (Emphasis added.) 735 ILCS 5/2-613(a)
(West 2004). Moreover, we recognize that Cordts has continued to intermingle the two claims
on appeal. However, despite these formal defects, neither defendants nor the circuit court ever
challenged the sufficiency of Cordts's allegations under the Confidentiality Act and, therefore,
the claim is not now dismissible on that basis. See 735 ILCS 5/2-612(a), (c) (West 2004) ("If any
pleading is insufficient in substance or form the court may order a fuller or more particular
statement. If the pleadings do not sufficiently define the issues the court may order other
pleadings." "All defects in pleadings, either in form or substance, not objected to in the trial court
are waived"); 735 ILCS 2-615 (West 2004) ("All objections to pleadings shall be raised by
motion. The motion shall point out specifically the defects complained of, and shall ask for
appropriate relief, such as *** that a pleading be made more definite and certain in a specified
*** manner").
In that regard, we also note that had defendants properly challenged the sufficiency of
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Cordts's claim under the Confidentiality Act through a section 2-615 motion, Cordts would have
been entitled to an opportunity to amend his complaint.1 See Richard v. Illinois Bell Telephone
Co., 66 Ill. App. 3d 825, 842, 383 N.E.2d 1242, 1256 (1978), quoting Dinn Oil Co. v. Hanover
Insurance Co., 87 Ill. App. 2d 206, 211-12 (1967) (" ' a cause of action should not be dismissed
on the pleadings unless it appears that no set of facts can be proved which will entitle the pleader
to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, no
cause of action can be stated" (emphasis omitted)); Lee v. Chicago Transit Authority, 152 Ill. 2d
432, 467, 605 N.E.2d 493, 508 (1992) ("In Illinois, courts are encouraged to freely and liberally
allow the amendment of pleadings"). The same is not true of a section 2-619 motion, where the
defendant admits the legal sufficiency of the complaint (Lipinski, 325 Ill. App. 3d at 1144, 759
N.E.2d at 69), and where once the defendant satisfies the initial burden of going forward based
on affirmative matter, the burden then shifts to the plaintiff. See Nichol v. Stass, 192 Ill. 2d 233,
247, 735 N.E.2d 582, 591 (2000). Therefore, we find that the circuit court erred in dismissing
1
In a footnote to their appellate brief defendants contend that any attempt by Cordts to
amend his complaint to add a Confidentiality Act claim should be barred because the applicable
statute of limitations has run. This contention is without merit since we have determined that the
original complaint, although formally defective, sufficiently invoked the Confidentiality Act
through citation and through the pleading of facts that fall under the Act's purview. Moreover, in
any event, an amendment to Cordts's Confidentiality Act claim would not be time barred because
it would relate back to the original, timely filed complaint. See McCorry v. Gooneratne, 332 Ill.
App. 3d 935, 946, 775 N.E.2d 591, 601 (2002).
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Cordts's Confidentiality Act claim pursuant to defendants' section 2-619 motion to dismiss.
Finally, because we have found that Cordts did, in fact, attempt to state a claim based on
the Confidentiality Act, and because that claim's sufficiency was not challenged by way of a
section 2-615 motion, we need not address whether the Confidentiality Act has preempted the
common law action of invasion of privacy through public disclosure of private facts in the
context of mental health information. Accordingly, for all the foregoing reasons, we affirm in
part, reverse in part, and remand for proceedings consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
FITZGERALD-SMITH, P.J., and O'MALLEY, J., concur.
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