Case Information
*1
Opinion filed June 12, 2023.
First Division ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
______________________________________________________________________________ ELIZABETH M. ANDREWS and WORLDOLUXE, ) Appeal from the LLC, an Illinois Limited Liability Company, ) Circuit Court of
) Cook County.
Plaintiffs-Appellants, )
)
v. )
) No. 21 L 11159 AT WORLD PROPERTIES, LLC, an Illinois )
Limited Liability Company; THADDEUS J.R. ) WONG; and MICHAEL P. GOLDEN, ) The Honorable
) Thomas More Donnelly, Defendants-Appellees. ) Judge Presiding.
______________________________________________________________________________
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶ 1 In 2021, plaintiffs Elizabeth M. Andrews and her company, WorldOLuxe, LLC, filed a complaint against defendants At World Properties, LLC (d/b/a @properties), a real estate company, and its chief executive officers, Thaddeus J.R. Wong and Michael P. Golden, alleging defamation and intentional interference with a business expectancy. The suit was filed after defendants publicly announced Andrews’ termination from @properties as a real estate agent in response to her social media postings regarding the January 6, 2021, Capitol riot in Washington, D.C. Pursuant to the defendants’ motion (see 735 ILCS 5/2-619.1 (West 2020)), the trial court dismissed the complaint, and plaintiffs now appeal. Plaintiffs argue as they did below that defendants’ publication was false, it was not substantially true, and it was not subject to an innocent construction. We affirm.
¶ 2 BACKGROUND
¶ 3 The following factual recitation has been gleaned from the pleadings. On January 6, 2021, Andrews, an independent contractor real estate broker associated with @properties, attended former President Donald Trump’s “Save America” rally in Washington, D.C. Following Trump’s live speech, Andrews proceeded to the Capitol, where Vice President Mike Pence and Congress were certifying the 2020 presidential election results. Andrews, along with a crowd, was present on the east side of the Capitol building from 1:30 p.m. to about 3:15 p.m. Andrews posted several photographs to her Facebook account, which identified her as an @properties real estate broker and linked to her @properties website. One photograph (Photo 1) features Andrews smiling happily, clad in a Trump stocking cap, and facing the camera some feet from the Capitol building. See infra ¶ 39. She holds both hands in the air, donning bunny ears as the crowd behind her throngs at the open doors of the building, pressing towards it. Some appear to be entering the building through the door. In a split screen (Photo 2), she posted this image, alongside another photograph of protesters with flags on a fenced veranda overlooking a bigger crowd below with the caption, “History! It’s not done yet!” [1] Infra ¶ 39. Last, around 3:15 p.m., Andrews posted a photograph (Photo 3) from a hotel patio bar depicting a glass of champagne, a patio with tables, and unidentified buildings in the background with the caption, “After storming the capital a good glass of champagne is needed!” (Emphasis added.) Infra ¶ 39.
¶ 4 The next day, on January 7, @properties received and/or was mentioned in a number of negative communications regarding Andrews’ postings. For example, in a Facebook posting directed to @properties and reposting Andrews’ social media account along with the aforementioned splitscreen Photo 2, one individual commented, “Well, I, for one, will never use the services of a real estate company that employs a person that wants to violently storm the Capital.” In another Facebook posting, also directed to @properties, a separate individual again reposted Andrews’ social media account along with Photo 2, then stated “Dont [ sic ] give these folks your business!” after noting that Andrews had participated in “the domestic terrorist insurgencyand [ sic ] posted photos of herself at it.” In response to this adverse publicity, @properties sent a message via e-mail, Facebook, and Twitter, stating:
“Over the past several hours, @properties has received a tremendous amount of outreach regarding the actions of one of our agents, Libby Andrews, yesterday in Washington, DC. [ sic ] Effective immediately, @properties is terminating this agent, who acknowledged on social media, that she took part in ‘storming the Capitol .’ @properties does not condone violence, destruction or illegal activities.” [2] (Emphasis added.) Plaintiffs alleged this message, which was entitled “@properties’ official statement on former agent, Libby Andrews,” was sent to clients, business associates, and agents of @properties, as well as the general public.
¶ 5 Plaintiffs then filed the present complaint alleging six counts of defamation, insofar as the statement inferred that Andrews had engaged in violence, property destruction, and criminal activity, and also that she lacked the character to perform her professional duties. They asserted @properties’ statement harmed Andrews’ reputation. Andrews and her company also alleged two counts of intentional interference with a business expectancy against @properties. As to defamation, plaintiffs alleged that Andrews did not engage in any illegal, violent, or criminal behavior, and therefore, @properties’ message was false.
¶ 6 Instead, plaintiffs maintained Andrews exercised her right to free speech and association by attending the rally. In the complaint, Andrews acknowledged walking to the hotel patio bar after the presidential speech and posting Photo 3, taken from that bar, on social media. Indeed, an enlarged Photo 3 is attached to the complaint, along with the Tweet containing @properties’ January 7 statement. Plaintiffs nonetheless alleged Andrews’ statement—“After storming the capital a good glass of champagne is needed!”—was “innocuous” and simply reflected her “having rushed that day to the nation’s capital ” (emphasis in original) and her “participation, along with over a hundred thousand other Americans [ sic ] citizens, in the dynamic convergence upon the nation’s capital, Washington, D.C., to attend a live Presidential Address.” They maintained that @properties’ use of the word “Capitol” thus materially altered Andrews’ statement to convey that she was a lawless rioter, committing “violent, illegal criminal activity” at the Capitol building. Last, plaintiffs alleged that when Andrews posted Photo 3, she was unaware “certain individuals had engaged in unlawful activities” in Washington, D.C. on January 6.
¶ 7 Defendants filed a section 2-619.1 motion to dismiss arguing inter alia that @properties’ statement was substantially true and subject to innocent construction. Defendants relied on various exhibits attached to their motion, including Andrews’ federal court defamation complaint against NBCUniversal Media, LLC (NBC), wherein she admitted to being present on the east side of the Capitol building on January 6, 2021, from 1:30 p.m. to about 3:15 p.m. Defendants attached Photos 1 through 3, which Andrews posted, as well as an affidavit from Alexis Albertson, @properties’ director of corporate branding and digital marketing. Albertson verified that she reviewed @properties’ Facebook account on January 7, 2021, which contained social media posts mentioning @properties and Andrews, as an affiliated broker. Albertson averred that the attached Facebook posts from the public (which defendants called Exhibit A) were “a small subset” of many more communications to or about @properties complaining of Andrews’ own Facebook posts advertising her participation in January 6. See supra ¶ 4.
¶ 8 Last, defendants cited a federal district court case, United States v. Griffin , 549 F. Supp. 3d 49 (D.C. 2021), discussing the federal statute criminalizing knowingly and unlawfully entering or remaining in a restricted area, like the Capitol building and its grounds, and knowingly engaging in disorderly or disruptive conduct that impedes or disrupts government business in that area. See 18 U.S.C. § 1752 (2018). [3] In addition, defendants attached the criminal complaint in that case, attested to by Metropolitan Police Department Detective Scott Brown. Detective Brown averred that he was on duty on January 6 and barriers were placed at the east side of the Capitol grounds to delineate the area of permissible first amendment activity from the prohibited, secure areas protecting the governmental process. Congress’s joint session to certify the vote for the 2020 presidential election began around 1 p.m. with the exterior doors of the Capitol building otherwise locked or secured. While the Capitol police attempted to maintain order, around 2 p.m., individuals in the crowd entered restricted grounds and forced entry into the Capitol building by breaking windows and assaulting police officers. The congressional session was suspended around 2:20 p.m.
¶ 9 Plaintiffs did not file a counteraffidavit or move to strike Albertson’s affidavit or any of the attached exhibits from defendants’ motion to dismiss. Plaintiffs, in their responsive pleadings, did not dispute that Photos 1 through 3 were taken on January 6, during Andrews’ time at the Capitol between 1 p.m. and 3:15 p.m. or that Photos 1 and 2 depicted the door to the Capitol building being breached. Likewise, they did not dispute Andrews’ location on the east side near the Capitol building on January 6.
¶ 10 Following briefing, the circuit court struck the oral argument hearing date and granted defendants’ motion to dismiss, finding @properties’ statement was not defamatory. This appeal followed.
¶ 11 ANALYSIS
¶ 12 Section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2020)) allows
a party to file a combined section 2-615 and section 2-619 motion to dismiss.
Henderson Square
Condominium Ass’n v. LAB Townhomes, LLC
,
¶ 14 On appeal, plaintiffs challenge the circuit court’s dismissal contending that defendants’
publication was defamatory
per se
, meaning the injury was obvious and apparent on its face. See
Benton v. Little League Baseball, Inc.
,
¶ 15 There are five categories of such statements, only several of which are relevant in this
case. Those include words that impute the commission of a criminal offense, words that impute a
person lacks the integrity to perform her employment duties, and words that impute a person
lacks ability or otherwise prejudice the person in her profession.
Green v. Rogers
, 234 Ill. 2d
478, 491-92 (2009). Under the first category, generally the crime must be an indictable one
involving moral turpitude, with death or imprisonment as punishment.
Dobias v. Oak Park &
River Forest High School District 200
,
¶ 16 However, even if a statement falls into one of the five categories of defamation
per se
, it
will not be actionable if it is reasonably capable of an innocent construction.
Hadley v. Doe
,
¶ 18 The company @properties next wrote, “Effective immediately, @properties is
terminating this agent,
who acknowledged on social media, that she took part in ‘storming the Capitol
.’ ” (Emphasis added.) Plaintiffs do not dispute that Andrews was terminated from
@properties as a real estate agent, so that too is true. Moreover, it was Andrews who first
reported around 3:15 p.m. on her Facebook page that, “After
storming the capital
a good glass of
champagne is needed!” (emphases added), along with a photo depicting a glass of champagne on
a patio and unidentified buildings in the background. See
infra
¶ 39 (Photo 3). Where, as here,
Andrews’ own characterization is not substantially different from the allegedly defamatory
language, that language may be deemed substantially true. See
Harrison
,
¶ 19 The evidence attached to defendants’ section 2-619 motion further defeats and negates
plaintiffs’ conclusory allegations of falsity and support defendants’ substantial truth defense. See
Economy Fire & Casualty Co. v. GAB Business Services, Inc.
,
¶ 20 As set forth, Photos 1 and 2 show Andrews some feet from the Capitol building, smiling and holding two sets of bunny fingers in the air while wearing a Trump hat, as the crowd behind her throngs at the open doors of the building and presses towards it, with some appearing to enter the building. See infra ¶ 39. Photo 2 also shows protesters with flags on a fenced veranda overlooking a larger crowd below with the caption, “History! It’s not done yet!” See infra ¶ 39. These photos, their captions, and the facts further demonstrate defendants’ language was substantially true: Andrews “ acknowledged on social media, that she took part in ‘storming the Capitol .’ ” And, it was for that reason that defendants terminated Andrews.
¶ 21 Plaintiffs nonetheless argue that Andrews’ statement—“After storming the capital a good glass of champagne is needed!” (see infra ¶ 39 (Photo 3))—conveyed she “was part of a heavy influx of people rushing” to the “ capital ” of Washington, D.C., on January 6 to simply attend an event. They alleged @properties’ substitution of the word “Capitol,” the building, when considered with the balance of defendants’ statement, altered the meaning of Andrews’ post to falsely convey that she had engaged in violence, destruction, or other illegal criminal acts. See infra ¶ 39 (Photo 3). Plaintiffs complain that latter message was the gist or sting of defendants’ defamatory per se statement.
¶ 22 Plaintiffs’ proposed inferences and arguments are unreasonable for several reasons. See
LAB Townhomes, LLC
,
¶ 23 Simply put, storming the seat of government, whether it is the city (capital) or building
and its grounds (Capitol) signifies an agitation, violent disruption, or forced taking. Andrews
reported that she partook in that storm and was present at the Capitol on January 6,
notwithstanding plaintiffs’ contention that Andrews herself did not specifically engage in any
violent or criminal activity. The slight inaccuracy in defendants’ statement (using Capitol instead
of capital) therefore did not substantively alter Andrews’ own statement. Indeed, the common
law of libel takes but one approach to the question of falsity, insofar as it overlooks minor
inaccuracies to concentrate upon substantial truth; a defendant need not “justify every word of
the alleged defamatory matter; it is sufficient if the substance of the charge be proved true,
irrespective of slight inaccuracy in the details.” (Internal quotation marks omitted.)
Masson
, 501
U.S. at 516-17; see also
Coghlan v. Beck
,
¶ 24 In that sense, this case may be likened to Vachet , wherein the court found a newspaper stated the substantial truth as to the plaintiff Michael Vachet, even though the paper incorrectly reported he was arrested on a warrant, when no warrant had issued. The court wrote:
“Here, the ‘gist’ or ‘sting’ of which Vachet complains is his association with a
suspected rapist of an elderly woman because he was arrested for harboring a fugitive.
Yet, he admits that he was arrested on the charge of harboring Saucerman, who was
suspected of committing such an act. Likewise, Vachet’s arrest for harboring a fugitive is
the highlight of the articles as they relate to him.”
Vachet
,
¶ 25 As such, the final sentence in the statement at issue—“@properties does not condone
violence, destruction or illegal activities”—can likewise be interpreted as substantially true.
[4]
This sentence conveyed that @properties did not regard as acceptable, forgivable, or harmless
the representations conveyed by Andrews on her social media posts. See
Condone
, Merriam-
Webster Online Dictionary, https://www.merriam-webster.com/dictionary/condone (last visited
May 24, 2023) [https://perma.cc/7WCF-EZDQ]. The sentence also could be considered
nonactionable opinion. See
Seitz-Partridge
,
¶ 26 Alternatively, the statement, when considered in context and given its natural and
obvious meaning, may be innocently construed.
[5]
See
Tuite
,
¶ 27 Here, this final sentence says nothing about Andrews specifically and generally
repudiates violence, destruction, and illegal activity. Thus, to the extent it refers to anyone, it
could be someone other than Andrews. See
Patlovich v. Rudd
,
¶ 28 Also, given the import of the entire statement (see
Harrison
,
¶ 29 In reaching this conclusion, we reject plaintiffs’ argument that the third sentence in defendants’ statement must first be considered under the innocent construction rule without regard to whether the remainder of the sentences are substantially true. Plaintiffs’ suggestion that we do so turns on its head the requirement that we consider the statement as a whole and the words in context.
¶ 30 We also reject plaintiffs’ challenge to Albertson’s affidavit and its exhibits. Plaintiffs
argue the exhibits of the public’s Facebook postings lacked any foundation and should have been
disregarded as inadmissible and therefore improper under section 2-619(a)(9).
[6]
However, a party
cannot attack the sufficiency of an affidavit for the first time on appeal.
Stone v. McCarthy
, 206
Ill. App. 3d 893, 899-900 (1990). Plaintiffs did not move to strike the affidavit or object to it
before the circuit court. Likewise, they did not file a counteraffidavit, and thus the court accepted
the facts in Albertson’s affidavit and referenced exhibits as true. See
Goldberg
, 409 Ill. App. 3d
at 112; see also
Fayezi v. Illinois Casualty Co.
,
¶ 31 Plaintiffs now claim that they intended to argue the matter orally in court at the scheduled
hearing on May 17, 2022. The “case summary” in the common law record, which is the only
record before this court, suggests that the oral argument was canceled and stricken on May 17.
There was a “continued case management.” The court’s own final written order, entered May 27,
also demonstrates that the court struck the hearing date, which was certainly within its discretion.
See
CitiMortgage Inc. v. Lewis
,
¶ 31 Forfeiture aside, Albertson’s affidavit, including the attached exhibits and the photos
referenced therein, was admissible. See Ill. S. Ct. 191(a) (eff. Jan. 4, 2013) (requiring that an
affiant in an involuntary dismissal be able to testify competently about facts admissible in
evidence). A party must lay a proper foundation for the introduction of documentary evidence,
which occurs when the evidence is identified and authenticated. See
People v. Ziemba
, 2018 IL
App (2d) 170048, ¶ 51;
Piser
,
¶ 32 Here, Albertson averred that the exhibits attached to her affidavit were Facebook posts
from the public that appeared on @properties’ Facebook account, which she copied from
Facebook. In them, the public references and reposts Andrews’ social media and postings.
Similarly, in her affidavit, Albertson wrote that the public reposted “Facebook posts by Andrews
depicting her in front of the United States Capitol on January 6, 2021,” and the posts “related to
her [Andrews] participation in the events of January 6, 2021, in Washington, D.C.” This was
sufficient to authenticate the exhibits of the public commentary, and it also established the
photos were what defendants claimed them to be, images of Andrews’ activities and actions on
January 6. See
People v. Brand
,
¶ 34 Last, plaintiffs contend defendants refuted only factual pleadings in the complaint and did
not introduce an affirmative matter to defeat their claim, as required by section 2-619(a)(9). They
argue dismissal was therefore inappropriate. We disagree. Defendants presented evidence
demonstrating that their statement, when viewed in light of Andrews’ own representations, was
substantially true and also could be innocently construed. These defenses negated the defamation
claim and, at the very least, refuted crucial conclusions of law and unsupported material facts in
the complaint. See
Glass Specialty Co. v. Litwiller
,
¶ 35 As plaintiffs’ defamation claim fails, so too does their claim of intentional interference with business expectancy against @properties. See Antonacci v. Seyfarth Shaw, LLP , 2015 IL App (1st) 142372, ¶ 33. Plaintiffs also have not argued that claim, thus forfeiting it. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
¶ 36 CONCLUSION
¶ 37 For the reasons stated, we affirm the circuit court’s dismissal of plaintiffs’ complaint. ¶ 38 Affirmed.
¶ 39 APPENDIX
Photo 1
8:36 PM Wod J an G < Libby's Post ',,..I \;O,nmern w :>nare u... llJ UKe 0 §.
rb Like 0 Comment ~ Share
Photo 2 Crystal A Sahler ► @properties a
...... J' 7h ·0 Thought you should know one of your employees went to DC for a Covid super spreader event then st ormed the capital.
rfJ Like Q Share
Libby McCarten Andrews
6 hrs· 0
History! It's not done yet!
I ihhv Mr,r.:irto:•n Anrlr,:,w,::
Photo 3
Andrews v. At World Properties, LLC
,
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-L-11159;
the Hon. Thomas More Donnelly, Judge, presiding. Attorneys Michael R. Pieczonka, of Pieczonka Law LLC, and Tim Biasiello, for both of Park Ridge, for appellants.
Appellant:
Attorneys Aaron H. Stanton, Victoria R. Collado, Joshua J. Cauhorn, and for Brittany A. Martin, of Burke, Warren, MacKay & Serritella, P.C., Appellee: of Chicago, for appellees.
Notes
[1] Per the pleadings, @properties reviewed reposts of Andrews’ Photo 2. We describe Photos 1 and 2 separately for the sake of clarity.
[2] Plaintiffs attached this statement, which was contained in a Tweet on Twitter, to their complaint. In their response to the motion to dismiss, plaintiffs attached the same statement, sent via e-mail, but it is signed “Mike & Thad” and is instead entitled, “Agent Termination.”
[3] A violation of this statute may be charged as either a misdemeanor or felony depending on
whether the offender uses or carries a dangerous weapon or the offense results in bodily injury. See 18
U.S.C. § 1752(b) (2018) (identifying the punishments);
United States v. Chrestman
,
[4] We note that the cornerstone of defamation is the issuance of a false statement. See
Seitz-
Partridge
,
[5] We note that whether a statement can be innocently construed may also be considered under
section 2-619.
Bryson
,
[6] Plaintiffs argue, without adequate citation to the record or law, that the Facebook documents
attached to the affidavit were inadmissible as business records and inadmissible hearsay. Plaintiffs
thereby violate Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), which requires an appellant to
support her contentions with citation to legal authority and the record relied on. “A reviewing court is
entitled to have the issues clearly defined and supported by pertinent authority and cohesive arguments; it
is not merely a repository into which parties may dump the burden of argument and research, nor is it the
obligation of this court to act as an advocate.”
See v. Illinois Gaming Board
,