you may proceed please the court this case involves the failure to file an action within the one year statute for defamation it also involves the interpretation of the statute three five illinois state statutes five slash two six zero nine which deals filing a supplementary complaints to one we're talking about the the interpretation of a statutory application of the statutes and court and i think to recall two things number one if the statute is clear it must be enforced as written and number two every word of a statute must be given a fact the courts are not free to ignore a certain portion of a statute in order to get a different result the statute in this case is clear i don't think there's any question about that it says and it's brief supplemental setting up matters which arise after the original pleadings are filed may be filed within a reasonable time by either party by leave of court and upon terms by leave before now that's different then for amended please amended pleadings is not that the statute sixteen does not involve those words by leave of court so a supplemental pleading is not filed until the need is granted and that's the issue before the court here and i think the reason for that distinction between a supplemental pleading on one hand and amended pleading on the other it is fairly clear a supplemental pleading as it says instead brings up some new issues or new facts an amended pleading simply alleges the same general facts the same cause of action that was the subject of your original complaint let me bring in parties or may bring in a different way of pleading that but i want to ask that was the fact that it happened you know other than the fact that there was this other interesting litigation between was the bentley was half the was there anything about the automobile accident which it certainly doesn't share a that you could say that there is i would say that there probably isn't in the correct way to bring that lawsuit if you wanted to sue mississippi for defamation or in your hypothetical if you are mobile accident if you wanted to sue or for the automobile accident file a different lawsuit there's no particular reason why they would have to be joining the language of the of the statute however six zero nine it is broad enough that it would seem to encompass at least the he has he said why he filed a lawsuit that's exactly my point this was all who is within the power of the plaintiff and his attorney to take care of just go to the law student go to the courthouse and file a lawsuit i mean they had three hundred sixty five days in which to draft a lawsuit and in two hundred forty of those days presuming there are five days a week that the court is open they could go to the courthouse and file it and that's all you've got to do it and they didn't do that instead they'd say take this action where they were going to  file it as a supplemental pleading as it is i was saying that there's a reason for a supplemental pleading to be treated differently the court me and want to have asked and he recalled that what happened in this case is that the plaintiff went and tried to  goes to the reason why this statute is important with respect to supplemental pleadings because the trial judge retains the control of saying well it might be appropriate to join these actions but i am not going to exercise my discretion to allow you to file supplemental pleading because the supplemental complaint because for example these two actions are not sufficiently related that it makes sense to try them in one lawsuit or the the issues in this lawsuit are so argue that since it was filed the day before the expiration since they asked the day before the expiration that somehow the statue of limitations was told i don't believe so i don't know if there is nothing in the law that says that that  tolls the section of limitations any more than picking up the telephone and calling the defendant saying i'm going to sue you for saying bad things about me or calling the judge and saying i'm going to sue the defendant for saying bad things and also a little less than actually putting together complyin it to the courthouse that's true but i don't there's no there's nothing in the law that seems to indicate that simply attempting to file it even in ineffectively tolls the statute of limitations because this statute says you can only have that supplemental complaint filed by leave of the court and so you know the thing is the plaintiff always had it in his power he was there at the courthouse the court said i am not going to grant you leave to file that ex parte you know it's the supplemental pleading or not and if if for example there had been two weeks before notice to mrs have to you that the plaintiff was taking up a hearing on august twenty eighth about filing a supplemental  you've got to have legal court and there's nothing in the supplemental police sajid that says it relates back so i i think that's a significant difference so i guess the the real question is was the  one year and the answer to that is no i don't think anybody disagrees with that it wasn't leave wasn't granted until september twenty sixth and we know from the statute that it's only filed  filed within one year and you know i want to address one thing and that's that the perception that any of us may have a well are we elevating form over substance here we are any time a statute of limitations is impose when the law says you must do it within one year that's what it means one year it's sort of like when i gave my kids a deadline for curfew the first time that they came in if twelve ten i started over look at the second time they came in at twelve fifteen a set  down said look it's not a target it's a deadline and that's the same thing it is for all of us with a statue of limitations you've only got one year to do it how you do it we don't care but you get a file and every defendant has a right to rely on that the the protection of the statute of limitations of force and i think mrs have to has a right right to rely on it here that it was not filed within the within the relevant time period so it's time bark and i would ask the court to reverse the  was clear the court must give effect to the court's previous use of the word leave of court and that's in the any application of case plaintiff's motion it specifically contemplates that the plaintiff's motion is asking for leave to amend to name that respondent in discovery to a defendant likewise  this court has previously founded fisher versus senior  the difference between an amendment and the supplemental is something that most practitioners have you and i would agree that if it was a car accident it would still be a supplemental complain is your hypothetical on the same day or i don't know i'm talking about i just think that they had a random but it could have been any time after the filing of the lawsuit that  x yes i believe it would be a supplemental because of the fact that it's setting up allegations that occurred after the filing of the complaint letter has nothing to do with the earlier matter well i agree and it's not really wired  why isn't it just the separate lawsuit just the better fortuity that they have to involve automobiles driven by mr bentley and this is enough that it could absolutely be a separate lawsuit why couldn't this well and that's the objection that mr buckley didn't raise when we argued the motion for leave to all he indicated to the trial court at that motion for leave to man or to supplement was that in violated the statute of limitations right he didn't raise the issue of well it should have been filed as a subway separate action and then consolidated and only recourse if it construction services so why just go ahead and file something most of well in this instance we did so because i think it showed the amount of animosity that was between the two parties that the party who had failed to perform under the contract took it upon herself to go out and try to defame his read of documentation lawsuit tended by definition shows there's a lot of bad and i think the facts of this particular case are very analogous to the facts of fish or fish or if you were three days before the final one on the stack she's going the patients again there the circuit clerk's office advise counsel to the court as a routine matter would enter an order granting leave in these circumstances which was not done it was then later set for hearing and then the point if was granted leave to man it was then on appeal that it was upheld saying you know that reporting form over substance that the fact that the complaint was attached to the motion for leave that the defendant had knowledge and that it's not tied to a jurisdictional argument that has been dismissed by the iowa supreme court right the opponents cite the trial of vs leask e and this was a case in which a plaintiff was a fireman injured when the fire truck on which he was riding was involved in a that the plaintiff filed an action within the statute of limitations against the driver and the owner of the vehicle involved in the collision and some reporters involved in the manufacturing of the fire truck he then later filed to amanda add attempting to add the manufacture of the fire home in which he was aware it's important to note the differences between the case first the court points out th stopped it went on and really that portion of the opinion should be considered dicta as it wasn't necessary for the disposition of the case once the court found  an amended complaint and i think it should be distinguished from the case before this court now is the point of never sought leave of the court and to try and it nor did the plaintiff ever receive leave of the court as we were granted in this action and it wasn't a supplemental plea so i hope that the court will strike the analysis from the trauma and not apply it to this case and we feel think there's a good argument to be made that this that the complaint the amended complaint in this action was really a supplemental as the plaintiff file herse was charged with allegedly viewing pornography pornography materials on the employer's own mobile day of the term the law on duty the plaintiff filed a declaratory suit them on may fifteenth of zero nine and after the board reached a decision discharging him on august thirteenth then filed a motion for leave to file an amended complaint seven days after receiving the notice and that was on october nineteenth of he couldn't of a make the argument that this is really a supplemental because he couldn't a file at the time at the time of his may fifteenth asking for ministry to review of the decision because the decision had been made so really that the amended complaint as it's titled in style should really be deemed a supplemental and this court use the fisher case to decide it and found that the plaintiff had filed the supplemental complaint amended to the motion for leave motion for leave and supplemental counts were filed before the statute of limitations and leave was then granted afterwards conclude we believe that the court should extend the holding of fisher purse to find the purposes of six o nine a supplemental complaint is deemed to be filed when the appended motion for it the when the of complaint is appended to the motion for leave of court extending this holding is consistent with the court's other interpretations of leave of court under the code of civil procedure the sickly and adding a cause of action and converting a responded the plaintiff has no control over when the court will hear or rule on the motion adopting this interpretation allows the plaintiff's claims to be heard on its merits which is consistent with the general rule of interpretation render the language of the statute requiring leave superpose as the opponent argues the motion for leave must be filed prior to the expiration of the statute of limitations the same as adopting aren't her petition also creates a universal bright line rule as to when a pleading is deemed to be filed which won't vary from county to county that's the concern i know the issue was raised well plaintiffs council had three hundred sixty five days to file this no under the statute of limitations for defamation that begins to run upon the dat publication how the data discovery and in this case there was a considerable time difference between the date of publication and the date of discovery applying the defendant's interpretation of leave of court charges the moving party with the time it takes for the court to hear and rule on the motion and this does not promote the ends of justice nor the general rule of the code of civil a couple things about these cases in the kovacs case and the fisher case the one thing we can say with absolute certainty is they did not involve the statute at issue here six zero nine involved six one six or in this case of kovacs that the statute for changing a respondent discovery to a defendant in the action and that does not have the language about upon leave the court so we get back to the statutory construction of the language is clear it must be applied in and we can't ignore the the wording of the statute and therefore i think the work has to apply it to say that this case was not filed within one year and therefore the statute of limitations expired and the cause of action should be dismissed the same is true of pursed it in might be well to say well court should have considered a supplemental pleading it didn't it wasn't it was an amended pleading and the court didn't deal with statutory lay language issue here the one final issue did to make it clear i have never advocated that this had to be a supplemental complaint or that this cause of action had to be joined with that that this defamation action had to be joined with the with the breach of contract action in fact quite the opposite if i had been brought into this case tried to consolidate pretrial but i tend to agree that there's no church that would consolidate this why would you put together a defamation action with breach of contract action the jury instructions alone would be a pain those are two different lawsuits they don't arise out of  perhaps the court wants to clarify that that the use of a supplemental complaint may be appropriate in some limited instances but it is not a vehicle to pack together multiple varying causes of action  little beyond what the question that was certified here so i leave that to the court i don't know that it's within the purview of what the court can do but in any case i would request the court remand this with directions that the action defamation