*1 ing the order obtaining entry judge. the trial by we all fully agree encourage attorneys should judges of ethical acutely process aware and due considerations when af- fecting however, absent rights parties; we do ourselves ex- due when no emplify process we rebuke where there is basis suggest record for us to willfully that such considerations were disre- garded, the trial It especially by would have been more judge. appro- for us priate to await more instance criticize —one re- proper flected record. MITTELMAN, al.,
ROBERT Plaintiff-Appellant, H. J. WITOUS et JOHN
Defendants-Appellees. (3rd Division) First District No. 86 — 1409 Opinion May 18, 1988. 18, 1988. Rehearing July filed denied — *4 RIZZI, J., dissenting. Mittelman, H. of Chicago, appellant pro
Robert se. McKenzie, Baker Chicago & of (Francis Morrissey, D. Thomas F. Bridgman, Jr., B. O’Flaherty, Paul Wagner, counsel), and Michael J. for appellees.
JUSTICE FREEMAN opinion delivered the the court: Plaintiff, Mittelman, Robert the circuit court Cook appeals denial his motion vacate the first- County’s dismissal his se, per amended for slander and intentional and in- willful contractual relationship business “prospective terference with Miller, Gorman, Clausen, Caffrey, with the law firm expectancy” file Witous, Miller), and for leave to a second- (Clausen P.C. T. defendants, John J. Witous James against amended complaint Ferrini. com- from first-amended following facts taken as true of which were taken well-pleaded allegations
plaint, an Plaintiff was associate motion to dismiss. defendants’ purposes *5 to at Miller at the time the events this attorney leading litiga- Clausen tion arose. Defendants Witous and Ferrini are and were attorneys members of Clausen Miller’s board of directors at that time. In Jan- assigned Witous to for trial two insurance uary prepare actions, cases, subrogation known as the Kerr-McGee which generally in a pending Mississippi were State court. Witous retained ultimate The cases had filed in a responsibility Mississippi both cases. been State court in and 1978. Certain defendants in the July November of limita- July interposed six-year Mississippi 1978 action statute tions as an affirmative defense. No defendant in the November 1978 action in the interposed April defense-. defendants 1978 action to November moved for leave raise the statute of limita- tions as an affirmative defense and the defendants in both cases moved for dismissal on the of a basis Court Mississippi Supreme case, M. Plating T. Reed v. Jackson Co. So. which the mo- granted had discovered. The court they recently Mississippi date, plaintiff alleged tions. On or about that his first-amended to Ferrini and other of Clausen complaint, Witous stated members Miller’s board of directors that “sat” on the statute of limita- tions defense of M. T. Reed for three and as a knowledge years with firm money. result cost the firm a considerable amount of The had fee contingent taken the Kerr-McGee cases on a basis. I alleged
Count of first-amended further plaintiff’s intended to injure plaintiff by Witous’ statement was false and was to to to causing plain- criticism directed Witous be deflected properly tiff, I advantage to Witous’ and detriment. Count also al- to leged damage that Witous’ statement was intended and did and Count II reputation. alleged cause harm to plaintiff’s professional or contributed to the firm’s decision to ter- Witous’ caused duration, had of indefinite minate been employment, interfered intentionally plain- and that thus wilfully Witous expectancy. relation and contractual Count prospective tiff’s business statement, that, informed him of Witous’ alleged III after Ferrini that, although told Ferrini the true facts. It further steps protect plain- to to take reasonable plaintiff duty Ferrini owed him further to injury and to reputation prevent tiff’s professional facts, Ferrini others of the true Ferrini informed Witous and although remaining facts from the to withhold those conspired and Witous III that Fer- lastly alleged of the board directors. Count members adopted rini thus Witous’ statement as duty plaintiff, breached with plaintiff’s pro- interfered intentionally wilfully his own and expectancy. contractual relation and spective business plaintiff’s complaint, motion to dismiss Pursuant defendants’ the trial struck on the innocent-construction court count basis alia, inter reasoned, rule. Witous’ statement was so The court all kinds of interpretations unclear and nebulous that it was open meant nothing plain- and that indicated Witous tiff cases statute of should have dismissed the Kerr-McGee before the that a qual- limitations defenses were raised. The court also concluded However, ified did not into I. privilege play” ruling “come count that, it did if did, making state motive in the state- Witous’ i.e., ment, deflect criticism from himself to would be an plaintiff, allegation insufficient of the ill malice will or overcome required privilege. trial struck II on the of the privi- court count basis *6 lege. conceded, As counsel plaintiff’s pre- the which qualified privilege cluded liability precluded liability defamation also Witous’ for tor- tious interference with struck the contract. The trial court also count III, plaintiff’s based on counsel’s further concession that count III could not stand based on the court’s of the innocent-con- application struction rule count I. there Finally, already because had been two filed, complaints the court the trial dismissed action informed right counsel of his move vacate that final order within as long as he days tendered a second-amended complaint with the motion. proposed
Plaintiff’s complaint second-amended certain facts in addition to those in the complaint. first-amended Count I additionally alleged: (1) when first the plaintiff reviewed files after assignment to him January Kerr-McGee cases he noted a from legal memorandum local in Mississippi stating counsel statute limitations was not a in the case filed in problem 1978; July plaintiff (2) reviewed law cited memorandum and conclusion; concluded it supported (3) memorandum’s settle- ment overtures were after rejected consultation with Clausen Miller’s cases; clients in the Kerr-McGee (4) plaintiff kept Witous informed of 1982; on the from (5) activities cases after January April motions, Kerr-McGee defendants filed the told April plaintiff Witous that he was not of a the statute possible problem aware motions; time, until the presentation limitations of those at (6) Witous, Ferrini that, also advised others his opinion, M. T. Reed was cases; directly (7) with the Kerr-McGee on or point about September the date of dismissal of the Kerr-McGee cases, Witous, Ferrini and other members of Clausen Miller’s board of situation, directors discussed the firm’s financial a serious “including cash (8) discussion, flow in the course of this problem”; Witous was inter
criticized for his of the Kerr-McGee handling because, cases alia, their dismissal would cost firm a considerable amount of money crisis; and thus exacerbate its financial (9) time, at that to de- flect that criticism from himself to and make for the scapegoat problem, Witous stated waste of time and money preparing Kerr-McGee cases was his fault but “sat” plaintiff, who on the statute of limitations defense with of M. T. Reed and its applicability for three years without knowledge attempting settle in order to cut the losses; firm’s probable (10) the false, statement was it Witous knew was falsé “or had no reasonable
basis for believing to be true” and “was made with an maliciously, evil to injure plaintiff motive without just cause or excuse.”
Plaintiff’s complaint also contained a new count quod II for slander per against Witous based on the same statement as count I. Plaintiff II realleged counts and III of the first-amended as III counts and IV of the second-amended complaint.
In denying plaintiff’s motions to vacate the dismissal of the first- amended and for leave to file the second-amended com- plaint, the trial court concluded that new count I added per se nothing that, to the cause of action for defamation as a law, matter of interpreted Witous’ statement could in- reasonably be i.e., nocently, The trial court further concluded that nondefamatory. plaintiff’s new count II insufficient matter of was also as a law under The trial concluded that there innocent-construction rule. court nothing different in count III in com- substantively plaintiff’s new to the parison prior pleading and that of malice plaintiff’s allegations were still insufficient to overcome the qualified ap- privilege *7 that, statement. plied Witous’ the court concluded as to Finally, IV, new count Ferrini did not have the duty by plaintiff.
Opinion it is the court to
Preliminarily, reviewing because of a duty consider and to an is jurisdiction appeal jurisdiction its dismiss where Daniels Midland Co. v. Barth 536, 2d (Archer lacking (1984), 103 Ill. 539, of this case 290) procedural history 470 N.E.2d and because cause some as to the of the trial court order may appealability doubt sponte. sua from which we address that Un plaintiff appeals, question nonappealable merely like a trial court’s nonfinal and orders dismiss ing a a motion to reconsider that dismissal denying (Ben Leahy (1986), Inc. v. 149 Kozloff, 504, Ill. 3d 501 N.E.2d App. that 238), beyond preadventure we believe both the order deny-
699 ing granting motion to vacate and the order the motion to dismiss the first-amended were final and appealable.
The dismissal order
action
provides
“plaintiffs
is dismissed
in all its counts.” It
thus final
appealable
was
under those cases
“cause,”
holding
dismissing
action,”
orders
“cause of
“claim,”
opposed
as
to a
are final
“complaint,”
appealable.
Kita v.
YMCA
(See
409,
Bates
(1964),
74;
47 Ill.
2d
App.
N.E.2d
v. Ulrich
Williams v. A.
(1976),
203,
38 Ill.
3d
App.
286;
347 N.E.2d
Staley
E.
Manufacturing
Co.
(1980),
981,
3d
App.
400 N.E.2d
724, rev’d on other grounds (1981),
559,
252;
83 Ill. 2d
416 N.E.2d
Robertson v. Robertson
(1984),
323,
Ill.
3d
462 N.E.2d
App.
Notwithstanding
that plaintiff
chose,
failed to
appeal
order but
instead,
to file a
it,
motion to vacate
the order
denying
motion
also
final and appealable inasmuch as it terminated the litigation
between the parties. See
v. Thompson (1947),
353,
Sanford
Classen v. Ripley 534;
454;
Ill.
Commonwealth Loan Co. v.
Baker
40 Ill. 2d
682; Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill.
3d
App.
780,
Proceeding now to the
merits
this appeal, we first note
that a trial court’s decision whether
to allow
amendment
pleadings
rests within its sound discretion and will not be disturbed absent an
abuse of that discretion. The test of abuse is whether the decision fur
thers the ends of justice. (Swaw v. Ortell (1984), 137 Ill.
3d
74, 484 N.E.2d 780.) Specific factors
in that determination
whether
the proposed amendment would cure the defective pleading,
whether
the opponent would be surprised or prejudiced by allowing
the amendment and whether previous amendments had been allowed.
v. Nustra (1986), 143
259, 265,
Ill.
In order to determine whether plaintiff’s complaint cured the defects found the trial court in his prior plead ings, we must keep in mind the standards relevant to defamation claims. Preliminarily, we note that all distinctions between libel and slander have been Illinois, abolished in except to whether the al leged defamation was written or spoken. Mitchell v. Peoria Journal- Star, Inc. (1966), 76 Ill. App. 154,159, 221 N.E.2d 516. se,
To be
defamatory per
“words themselves, without
aid of extrinsic facts
them,”
to explain
must be “so obviously and in
evitably hurtful” that
(Zeinfeld v. Hayes Freight
damage
presumed.
Lines, Inc. 41 Ill. 2d
The innocent-construction
context,
in
with
written or oral statement
is to be considered
given
therefrom
their natural and obvious
implications
words and
construed,
inno
if,
may reasonably
as so
the statement
be
meaning;
***
(Chapski
se.”
per
it cannot
cently interpreted
be actionable
Copley
Press
This
prelim
Ill. 2d
the trial
question
determination is a
of law
be resolved
inary
in
fact,
the statement
in
court in the first instance and whether
alia,
if
trial
ter
defamatory
jury question
understood to be
Chap
the initial determination in the
favor.
court resolves
ski,
Applying tó file a second- its discretion in leave denying abused court that the second- with the trial complaint. disagree amended We in the prior complaints. amended did not cure the defects statement, we do not that Witous’ Specifically, inno interpreted may reasonably the second-amended complaint, of time was that the waste as a matter of law. That statement cently fault the Kerr-McGee cases was not Witous’ money preparing with the statute of limitations defense that of who sat on plaintiff, but of M. T. Reed years its for three without applicability knowledge In stark con the firm’s losses. probable to settle to cut attempting in the is the statement attributed Witous trast to this statement of limitations on the statute sat first-amended a result M. T. Reed three and as years knowledge defense on a con Kerr-McGee cases Miller, had taken the cost Clausen amount of basis, money. fee a considerable tingent reveals, con statements reading of the two cursory Even a change no that there was to the trial court’s conclusion trary change and fundamental statements, there was substantial court is, as the trial the first statement meaning of them. While interpreta- “all kinds of unclear, open and thus found, nebulous *9 had susceptible is in nowise the second meaning tions,” the with re- charges plaintiff Rather, clearly it that characterization. in the Kerr- the firm suffered losses the financial sponsibility itself, without in and of charge Witous’ McGee cases. We hurtful inevitably and facts, obviously is so of extrinsic aid any pre- thereto be may injury reputation professional plaintiff’s Char- Attorney’s Annot., Disparagement or Criticism sumed. See 326, 46 A.L.R.4th acter, as Defamation, or Conduct Competence, 10(a), (1986). § trial court’s characterization we concluding, reject
In so as in- facts additional per for defamation in a claim nuendo, not be considered may which them, as should have considered Rather, the trial court se. we believe alleg- in which Witous to, as the context relating Chapski required given and had also If it had done so made the statement at issue. edly mean- and obvious therefrom their natural and implications words not have found it would also we believe ings, Chapski requires, as se. defamatory per statement was not Witous’ the context establishing refer as facts to which we additional in a discus- made the statement of Witous’ statement are that Witous financial con- of the firm’s sion Miller’s of directors by Clausen board in the the firm’s losses criticized for during dition which Witous was words giving in that context and Witous’ Coming Kerr-McGee cases. his meaning, and obvious therefrom their natural implications and the least, than, a very other at interpreted statement cannot be as charge by Such negligence plaintiff’s part. on charge professional is, obviously in our so opinion, another attorney one attorney against that dam- professional reputation to the latter’s hurtful inevitably and presumed. should be age may to it of criticism to charge type that this was the not believe
We do attorney. or should another subjected by is be every attorney which 1985), Cir. 769 Quilici (7th Amendment Foundation (See Second here, Quilici in- to the statement at issue 414, F.2d In contrast attorney’s pre- nonattomey statements that: volved the ap- have “sunk” argument poor may at an oral was sentation side; he arguing other on attorneys he did not peal; cooperate and, as a than he was allotted argument more time for his up used time; representation result, his side’s rebuttal up used statements to The court held these pointless. and often rambling 702 merely expressions opinion impugn which did the plaintiff’s an an at-
integrity, impute inability perform responsibilities Quilici, torney prejudice legal him F.2d at profession. 420.
Quilici also relied the distinction drawn in pre several Chwpski e.g., Britton v. Li appellate (see, court cases Public Winfield brary (1981), 546, 650; 3d Sterling Wade v. Ill. App. Gazette Co. 101, App. 44), 2d 205 N.E.2d criti between of a party instance, cism a particular they held nonaction able, and as Erick general However, on a party’s attack character. v. Aetna Casualty son Co. 753, & Life Media, Capital and Costello v. Cities 1009, 1014-15, that, Ill. as a imply, we believe for determining test whether a statement distinc defamatory, that tion to the rule as secondary innocent-construction enunciated Chapski.
Moreover, we defendants’ state- reject characterization Witous’ ment merely descriptive plaintiff’s decision not to force an early *10 of resolution the Kerr-McGee defendants’ affirmative defense. Defend- Witous, assert ants that instead of that on saying plaintiff “sat” the defense, statute of might limitations have said that he “waited” defense, of, the affirmative “deferred or not to resolution” “chose a ruling on, statement, force” the issue. In characterizing so the defendants focus on the word “sat” the of the ignore part first i.e., he, Witous, statement as was at alleged by plaintiff, that fault the time lost in money the Kerr-McGee cases. preparing also ignore allegedly the context in which the statement They made, i.e., discussion members of Clausen Miller’s board of direc- tors firm’s financial condition. defendants’ While characteriza- may tion be a one of the first- reasonable statement amended or if the statement in context had been made performance associate, of a review of as it reason- an is not given able the statement and its in the second- context amended complaint. remaining determining factors whether the trial court its discretion in com denying abused leave to file also plaint militate conclusion that it did not. Defendants against do did not assert below nor here that they proposed or them. complaint surprised prejudice amended would otherwise also a plaintiff’s previous opportunity to amend his While factor, that, alone, required we do not a denial of further to amend. serving justice para- leave We note the ends is the mount consideration in the determination whether further to allow v. Nustra 259, 266, amendment. (1986), App. 143 Ill. 3d Hoffman N.E.2d 981.
In further
of the trial court’s
defendants
support
ruling,
characterize
Witous’ statement as
constitutionally protected expres
alia,
of opinion.
They argue, inter
sion
case focuses on
“[t]his
right
speech
right
free
manage
of business owners to
firms,”
their
that “Witous’
he
position requires
freely express
his
opinion
members,”
about
to other
employees
board
that “[t]hese
must
opinions
expressed
be
candidly
ensure the
proper operation
practice.”
his firm’s
They argue
“Illinois
assured
courts have
managers,
members,
board
and all others
partners
opinions
that their
will not
held against
be
them.”
note that
law of libel
They
does
“[t]he
not provide redress for ‘every
opinion touching
on a
expression
***
person’s capabilities
qualifications
no matter
much
how
complained of
may injure
in his
subject person
own
”
v.
Anderson Matz
conception.’
175, 178,
67 Ill.
(1978),
App. 3d
v.
Byars
759,
Kolodziej (1977),
quoting
1015,
1017,
Dauw Field Enterprises,
628;
363 N.E.2d
67,
We defendants’ characterization of Witous’ statement as a constitutionally protected, and thus absolutely privileged, expression opinion. Such characterization is if permissible it is reason only (Chapski v. Copley Press able. 92 Ill. 2d 195.) Moreover, “[wjhether a statement is to one judged be be fact or opinion one of is a [citation], matter and the law involved language must be considered context to determine whether statement should be opinion.” (Owen an expression construed v. Carr 113 Ill. 2d 1145.) Considering context, the statement at issue we it is conclude unreasonable characterize it as an opinion.
Courts have struggled opinion/fact dichotomy ever *11 dicta in the land since the States in Supreme United Court intimated Welch, v. of Gertz Robert 323, 339-40, mark case 418 (1974), U.S. 789, 805, 41 L. Ed. 2d 94 S. Ct. that opinions are abso lutely privileged under first amendment because “there no is such thing a false idea.” Some of the factors which have articu been lated to by allegedly courts determine whether an defamatory state is privileged expression ment a of or a opinion nonprivileged state of ment fact include whether the or precise verifiable. (Ollman (en banc), v. Evans cert. denied (D.C. Cir. 750 E2d 970 1984), (1985), 1127, 278, Moreover, 471 U.S. 86 L. Ed. 2d 105 Ct. 2662.) S. Insurance Co. of Nasr Connecticut General in the recent case v. Life 1024, the court Illinois F. district reviewed 1986), Supp. Ill. (N.D. and concluded: opinion/fact dichotomy law on conduct negative by
“An of fact or a evaluation of assertion if The plaintiff defamatory. analysis is actionable [Citations.] capable disproof turn on the assertion is seems to whether loose, in a figurative or whether it made sense.” 632 only was F. at 1027. Supp. criteria,
Judged not reason any foregoing under it is expression opinion. to construe Witous’ statement as an able Rather, truth precise it was a statement had a meaning, that susceptible to verification. That used the falsity which was Witous literal, in than sense does not make figurative, “sat” rather word figurative. precise meaning entire statement loose or The “sat” the Kerr- by in reference to the statute of limitations defense asserted allegation is made knew by plaintiff McGee defendants clear Witous’ not years attempt the M. T. case for three but did settle Reed pre firm’s cases to cut the losses. Because Witous’ statement “loose, agree verifiable, figurative,” rather than we cannot cise opinion. constitutionally protected expression that it was Moreover, statement was assuming merely this “[e]ven attach when a charac opinion, liability may negative one of libel of a a clear but false person implication terization coupled actions, (Catalano privy he was to facts about” 808, 797, 714, Pechous aff'd 911, Ill. 2d cert. denied 451 U.S. that, at the Ed. 2d 101 S. Ct. record here reveals L. least, negative Witous made characterization of defendant very facts, to admit Ferrini de plaintiff's request plaintiff. response asserted, made complained-of nied that Witous had statement and substance, instead, that told him “in exhibited a Witous implied That also he was to unstated negative privy attitude.” Witous Witous, from Ferrini dated facts is a memorandum established September 14,1982, which he states:
“I there misapprehension is a which must cor- did my rected now. It has attention that [plaintiff] come (Em- sit the statute limitations defense Kerr McGee.” phasis original.) re- then of the cases when postare
Ferrini summarizes the and states: was not aware of the existence ceived file “[Plaintiff] Finally, has caused us the Fer- authority problem.” of the case raising late of the affirmative plaintiff “objected rini notes that
705 ex- being brought since it after the prejudiced plaintiff by defense in- of need to pense discovery apparent had been incurred.” Ferrini’s matter, memorandum, the vestigate by reflected this reveals Witous’ citation to Anderson of unstated facts. Defendants’ implication Dauw is thus unavailing.
There be why exist more fundamental reasons we do not of Witous’ is protected by “privileged expression lieve statement the in is made typically rule. One context which that assertion opinion” mat claims of the of fair comment and criticism on privilege involves Catalano, (See, e.g., 797.) ters interest. 69 Ill. 3d In public App. fact, one of of the privilege the elements is that the defama (Catalano, must expression App. tion have been an 69 Ill. opinion. 797.) however, 3d Unlike the cases which the is privilege applicable, relate of public Witous’ did to a matter interest. Rather, it related to a as strictly private matter far as the parties, i.e., firm concerned, their and its other directors were its financial the negative condition and the effect thereon one performance of of the firm’s That Witous’ employees. subject of statement was “ ‘ area of not an critical concern as a public qualifying subject “about which information appropriate is needed to enable the members ’ ” (Farnsworth v. exigencies society cope with the of their period” Tribune Co. Ill. (1969), 286, 291, 408, 43 2d quoting Curtis Publishing Co. v. Butts 130, 147, 388 U.S. 18 L. Ed. 2d 1094, 1106, 87 1987) against S. Ct. finding militates was a constitutionally protected opinion.
The assertion of is “opinion” also made cases involving based on privilege the news media’s the first right under amendment to report governmental public on matters of proceedings public v. O’Donnell Field Inc. (See Enterprises, concern. Ill. (1986), 145 O’Donnell, 3d 491 Rizzi App. 1212.) N.E.2d As Justice noted in “is in scope qualified broader than the or conditional privilege (O’Donnell, that are a the law of privileges part libel.” 3d at App. 1035-36.) privilege though “exists even the publisher from defamatory does not believe statements the proceedings (O’Donnell, they are true and even knows that are false.” though [he] 1036.) contrast, at which qualified privilege, here, on the parties agree applies grounded good faith of i.e., Freight v. (Zeinfeld Hayes actual publisher, absence malice. Lines, 217.) Moreover, Ill. the need “free and opinions for a flow ideas to our imperative system (O’Donnell, government” 1039-40), Ill. 3d at which insu O’Donnell, lated, opinions, defamations rele- not a vant consideration in the instant case.
Finally, we decline to determine whether or not Witous’ statement was it to defamatory by comparing statements at issue in cases, other case of slander must be considered on its own “[e]ach facts.” (Angelo Brenner 84 Ill. App. 3d rule, This we believe to for, be salutary while words may retain their natural and case, obvious from meaning case context in which and in they published must they judged *13 differs from necessarily case to case. the particular Given context of here, the statement at issue we believe it would serve purpose little to it compare to statements uttered in different totally pre contexts as sented defendants’ cited cases.
In view of our determination that the trial court erred in rul ing that Witous’ statement as count of the second- amended was reasonably susceptible to an innocent con law, struction aas matter of we it hold that also erred in that ruling count II of that complaint, for slander per quod, was for that same such, reason insufficient at law. As we need not decide whether the court erred in applying innocent-construction rule to that count because, contends, the rule applies only to claims of defama per tion se.
Defendants argue also that Witous’ was protected aby qualified privilege and that failed to allege sufficient facts to assert, overcome the privilege. Defendants citing Worrick v. Flora 133 Ill. 2d App. that the privilege in a applies corporate setting as long the statement was made in a context proper the best interests of corporation. Defend ants thus that imply Worrick, such was the case here. In one em ployee corporation sued another for tortious interference with his concluded, The employment alia, contract. court an inter that em ployee personal would have no if liability that tort he had acted in (Worrick, “interest of his employer.” 133 Ill. 2d at Ramsey 855, 862-63, Greenwald 1266, considered that rule in the context of a tortious interference with contract claim based a “malicious defamation.” It does not appear otherwise the rule has been generally extended claims of defamation in a corporate Moreover, context. if that even rule were here, applicable plaintiff’s allegation that Witous acted actual contention, malice negatives any at least at the pleading stage, he was in his acting firm’s best interests. (Cf. Ramsey, App. (fact at 863 that defendant acted negatived with actual malice conten tion that he acted in employer’s interests).) best This is a sound It defamatory result. cannot that an seriously allegedly be contended cor- and therefore a professional false statement to fellow directors of in- can made in the poration having ever be considered as been best Otherwise, terests of the agree we with defendants corporation. Witous’ statement was qualifiedly privileged.
This an conclusion, however, end our This is not does not inquiry. from appeal such, after a on the As that we judgment trial merits. agree with the parties Witous’ statement qualifiedly privi- does leged Rather, not mean that can we recovery. have no next must decide court whether the trial disallowed further correctly amendment of plaintiff’s because he al- insufficiently had leged actual malice meet the defendants’ assertion necessary a qualified privilege. ex requirements qualified privilege have been
plained be: “Where circumstances or exist, reasonably believed by exist, defendant to from he has an or in duty, interest good faith he believes has an interest or make a certain duty, communication another inter person having corresponding est or and the he duty, defendant is so that he situated believes communication, should make the and if he makes the communi cation good faith, under those circumstances believing communication to be though true, true even not be then may *14 the communication is or qualifiedly conditionally privileged, even though the or necessarily defendant’s interest be not duty a legal only one but moral or social in imperfect and character: Jur., 124; 33 R, Am. 33 and p. Ill. L. 390-391. The essential pp. good defendant, elements are: faith duty the an interest or to be upheld, a statement limited in its to that scope purpose, manner proper and in publication occasion to proper proper *** parties 125; P., 33 Am. 33 only: p. p. Jur. Ill. L. and 391. communication loses its and is ac privileged character [A] Jur., 126; tionable actual malice: 33 Am. 33 Ill. upon proof p. P., L. and 392.” v. p. Memorial Judge Hospital Rockford 365, 376-77, 202; 150 N.E.2d Zeinfeld Lines, 345, Hayes 41 243 N.E.2d Freight Ill. 2d 217. us, Therein, the On issue the dispositive. plain- before Zeinfeld
tiff maliciously that a libellous letter written and bad was allegations faith and that its and were false. He had also implications denied defendants’ that a response affirmative defense the letter was to a re- request person from a an interest in the information having the was made in faith and truthful to the best of
quested, good was defendants’ knowledge. appellate had affirmed judgment court pleadings on the alia, for defendants on the inter the grounds, plaintiff had not actual malice to sufficiently defeat the privi lege applied to the letter. the letter Finding conditionally privi law, however, as a matter of the leged stated, court that the defend ant would still if be liable abused privilege “[sjuch were and that abuse occurs if the publisher does not the truth of the defama matter, or tory grounds has no reasonable believing for it to true.” be (Zeinfeld, Ill. 2d at The court concluded that the re pleadings lating to plaintiff’s count raised libel triable issues of fact “concerning good faith knowledge and of the defendants.” Ill. 2d at 350. illustrates aptly and resolves the issue us. before
Zeinfeld Plaintiff’s Witous, that he alleges advised filed, 1982, sometime after the Kerr-McGee April defendants cases, motions which led to the dismissal of the that he was not aware problem of a with the statute until the presentation limitations setting those motions. After forth the context and content of Witous’ statement, 1982, alleges made in September that the state false, ment was knew it false or had no Witous reasonable true, be believing basis that the statement mali was made and ciously with an evil intent without or injure plaintiff just cause excuse. These were allegations sufficient the actual legally allege malice a qualified to overcome necessary privilege. 993, Colson v. Stieg (1980), aff’d sufficiency Ill. 2d also reveals the Colson, malice court allegations. appellate stated:
In his complaint plaintiff allege did defendant made false, it to ‘knowing statement be grounds without reasonable true, for believing it to be and maliciously, wilfully, intentionally justification without reasonable excuse with intention professional destroying personal reputation, Plaintiff’s tenure, from terminated causing Plaintiff to be denied *** suitably to be employment interfering ability with with taken allegations, together in the future.’ These employed other factual the answer allegations concerning relationship parties, particulars bill alleg with the under which the statements were circumstances slanderous made and the fact that edly *15 one malice is per presumed, se and therefore from which 3d at actual malice.” charge (Colson, App. sufficient to 998.)
709 on this issue: supreme In court stated affirming, many irrelevant ***, in addition to allegations “The the defendant was made alleged that the statement charges, allegation contained it to be false.’ Also within ‘knowing maliciously, wilfully was made that the statement charge intentionally. and Publishing Corp. Township v. Niles Coursey Greater Ill. 257, 266, (1975), in Weberv. Woods 31 40 Ill. 2d
(1968), as 122, it that an facts allegation 3d was held App. made knowing statement was were false and that the serted we do not cite allegations. Although sufficient to be false were model, as a we find contained in this allegations *** al sufficiently been necessary the elements have Colson, 89 215-16. Ill. 2d at leged.” Colson, trial court erred in we conclude the Under Zeinfeld sufficiently did not ruling meet privilege appli- the actual malice to plead necessary qualified cable to statement. Witous’ in ruling, the trial court erred
Finally, we address whether Ferrini not complaint, as count of the second-amended did TV therein, i.e., owe to take reasonable duty steps asserted injury further to him protect plaintiff’s reputation prevent after authority plaintiff he learned from the true facts. The cites to this case to factually for this is too dissimilar duty support duty a conclusion that Ferrini had such a a mat defendant ter Specifically, Ramsey law. we note that v. Greenwald Ill. not conclu App. 3d does support relationship sion therefrom that the supervisor-subordinate between plaintiff imposed Ferrini and Ferrini to act in general duty good on faith in affecting supervisor- matters plaintiff’s employment. defendant’s on a interference with con liability Ramsey tortious tract ground having claim was affirmed on the narrow of his abused a report of his qualified privilege scope employment within the of the plaintiff performance by maliciously subordinate’s quality at 863), him in the of so Ill. 3d defaming reporting (91 course not on the here. type duty by plaintiff asserted must
Moreover, although concept adapt is not a static but “[d]uty (Nelson v. Commonwealth notions and decisions” changing policy 655, 666, 513), do we Edison Co. Ill. App. recognition the factual realities of this case require believe (See Kay Ferrini asserted Ludwick duty by plaintiff. defendant Rather, we *16 may Ferrini fulfilled he have owed sufficiently any duty to prevent further harm to his reputation the of by Sep- memorandum tember Witous, to the source of the alleged defamation. It is reasonable to infer from the it, memorandum’s tone that Ferrini sent if not for the purpose sole of preventing Witous from his repeating firm, to other directors and of the at in employees least to so. part do The trial court correctly denied leave to file count of his IV second-amended complaint.
For reasons, all of the foregoing the order of the circuit court of Cook County denying plaintiff’s motions to vacate the of dismissal complaint first-amended and for leave to file a second-amended com- is in plaint reversed part, part, affirmed in and remanded.
Affirmed in reversed in part, part remanded.
WHITE, P.J., concurs. RIZZI, dissenting:
JUSTICE opinion, the discusses my majority and dwells on matters which result, are not to I disposition relevant a of this As a appeal. the misses the real issues here. I majority present also believe the has a majority seriously reached decision which will impair the of ability corporations law firms and to conduct direc- meaningful meetings. tors’ I the a believe that decision will have such majority’s effect chilling meetings on directors that their deprived will be vitally speech and frankness of that is at a directors’ meet- necessary I the ing. complaint would affirm the dismissal of the amended to filing refusal allow the the second-amended complaint. reviewing any first matter that a court should consider in in complaint alleging case which a slander has been is the dismissed allegations. Here, the believe that specificity the amended com- and the plaint complaint are not sufficient to legally against maintain a action not they slander Witous because do set a forth actual words Witous are to constitute slan- der. Illinois,
A complaint, any complaint slander like other civil plead give the ultimate facts which rise the cause required action. It is obvious that the elements of a cause action for slander defamatory set forth unless the actual words of the factually Thus, for defendant are included an action slan- complaint. must set der actual words of the defendant forth in com- in haec verba. There is no other that the can be plaint way whether is legally tested determine sufficient. slander com ways legal sufficiency
One test is to rule. cannot plaint Plainly, you innocent-construction apply actual you innocent-construction rule unless know the words apply is being Conclusionary to which the test statements and char applied. Also, acterizations will suffice. there are simply not words, terms and that are as a matter many phrases pejorative, but of law do they (See Savings not constitute slander. Harris Trust & 1370; v. Phillips (1987), Bank Dauw Kennedy Kennedy, & There no simply that this truism can be to test way applied slander unless the sets forth the ac complaint plainly words tual of the defendant that are constitute slander.
Here, the of plaintiff’s basis action for slander is stated in para- 22 of his amended graph as follows: complaint
“22. On or about September JOHN J. stated WITOUS to T. JAMES FERRINI and other members of the Board of Di- Clausen, Miller, Gorman, Witous, P.C., rectors of Caffrey & ‘sat’ plaintiff on the statute of limitations defense with of knowledge the M. T. Reed cases three and years result, Clausen, Miller, cost which had taken the Kerr-McGee cases on contingent basis, fee a considerable amount of money.”
After his amended complaint was dismissed for to failure state of slander, cause action for plaintiff to file a proposed in he complaint changed the from 22 paragraph relevant to changed and the language of the to read paragraph as follows: time, WITOUS,
“29. At that JOHN J. in an to effort deflect said criticism from onto himself Plaintiff and make Plaintiff the scapegoat for the problem, stated that the of waste time and in money preparing the Kerr-McGee cases was not his (WIT- OUS’S) fault but that of the Plaintiff who on ‘sat’ the statute of limitations defense of knowledge with M. T. and Reed its ap- for three plicability years attempting without to settle in order to probable cut the firm’s losses.” me,
To it is from reading obvious the relevant in paragraphs plain- complaint tiff’s amended and second-amended complaint groping allege a slander action without knowing precisely what meeting. Witous said at the board of directors’ Moreover, particular paragraphs in a the complaint, complaint like itself, must in be read their entirety when tested to determine the of matter sufficiency the There no alleged. magic are words in a buzz it is legally it is to determine whether complaint being when tested 1030, 1035-36, Ill. v. Hunk (See sufficient. Wilson Wilson, 482-83.) In the court stated: in the lan- IV and undertake slander allege “Counts V defendant, guage Hunk: *** of of the Plaintiff place ‘came the aforesaid residence him pimping pres- there accused of the crime of in the officer, and, did day, ence of another later that same police the Plaintiff of the crime again publicly say accuse at of the in the station Decatur pimping police City Decatur, Macon Illinois in City County, presence persons.’ other
[*] [**] fatally find that count allege We each slander purporting in alleged defective that the statement is assertedly defamatory defendant, in Hunk, the form of a ‘accused conclusion that him the has presence crime of others. It pimping’ the rule that an action for libel slander long been forth particu words to be must be set defamatory 3d at at 482. larity.” case, although appears present word “stated” and second-amended relevant of the amended paragraphs read their en- that when the complaint, paragraphs word, al- merely tirety, isolating paragraphs rather than each than the rather lege conclusions characterizations essential pleading may actual words of Witous. precision While forth actions, in other in a action a must set slander types in his that are actual words of the defendant *18 constitute a slander.
Since neither the amended nor the second-amended complaint the present case sets forth actual words of Witous complaint slander, I that the amended that constitute believe the are not sufficient complaint complaint legally second-amended un- Also, plaintiff since against to maintain a slander action Witous. Witous, plaintiff to set forth in a the actual words complaint able Wit- against to use an slander action permitted should not be with privilege respect the exists permeate qualified ous the meeting. what occurred at directors’ III and counts and IV of Count II of the amended complaint allege against are efforts to actions Witous complaint second-amended duration” em- interference with “indefinite plaintiff’s for intentional Clausen, Witous, Miller, Gorman, Caffrey & with ployment contract on the basis Ferrini charge against P.C. Count IV makes same Wit- John J. adopted Plaintiff and that “Ferrini duty breached ous’ statements as his own.” incorpo- action intentional interference
The counts with an dealing addition, In slander counts. all of the of the virtually paragraphs rate of direc- at the board alleges further Witous’ plaintiff’s to terminate in the firm’s decision meeting tors’ resulted of directors the board There is no claim employment. by employ- when scope authority not act within the of their did ment was terminated. is a corporations bear to relation boards of directors peculiar through its board except
result of a to act corporation’s inability Thus, through acts its board corporation directors and officers. their actions within performed directors and officers and is bound effect, In is the owner scope corporation of their authority. duty pos- the directors in the of their property performance but it, if it. It to un- way they important sess and act in own every derstand and these here. appreciate principles
A defendant’s contract with a employment breach his own interference is of course not a for the tort of intentional basis InterQual, (Salaymeh with contractual relations. 1040, 1044-45, 1155, 1159; Keeton,
Ill. W. Prosser and Keeton on Torts this (5th 1984).) Applying princi ed. ple between a and its board direc relationship corporation tors, I that neither a nor the of its board corporation members of directors can be of the of intentional interference with guilty tort an em employment contract has with one of its corporation ployees. legal not is this conclusion sound on a ba my opinion, only sis but it is also sound on a of boards of socio-legal basis. Members directors must be able to function at board members free from the against sword of Damocles in the form of a them personally suit intentional interference an contract with employee’s employment with the corporation.
I therefore believe that count II of the amended allege counts III fail to and IV inter- against cause of action either or Ferrini for intentional Witous Clausen, Miller, ference employment with contract with Gorman, Witous, & P.C. Caffrey be- majority any particularity do address opinion rule not to majority applied
cause the has the innocent-construction Witous, and charac- the actual words of but rather to the conclusions terizations of It is to discuss plaintiff. meaningless application *19 the innocent-construction rule to the conclusions and characterizations Also, of plaintiff. decides majority issues and cases that discusses simply relevant disposition appeal. this it is While true refers to majority briefs, matters are stated in the a re- viewing court should affirm a judgment ground order on any ap- pearing in I record. believe that record this case demon- strates that from order which the appeal being taken should be affirmed reasons that I have stated.
Accordingly, affirm would the dismissal of the amended com- plaint refusal filing allow the of the second-amended com- plaint. SPERLING,
DIANE Appellant, v. THE INDUSTRIAL COMMISSIONet al.
(Rush-Presbyterian-St. Luke’s Hospital, Appellee). (Industrial Division) First District Commission No. 1 — 87—1447WC Opinion 25, 1988. Rehearing 12, 1988. filed May July denied —