Kurczaba v. Pollock
Case Date: 12/27/2000
Court: 1st District Appellate
Docket No: 1-99-4283 Rel
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THIRD DIVISION December 27, 2000 No. 1--99--4283 Plaintiffs-Apellants, v SCOTT POLLOCK, Defendant-Appellee Plaintiffs Christopher Kurczaba (Kurczaba) and Horn, Whitcup, Arce,Villasuso & Kurczaba (Horn) (also collectively referred to as plaintiffs) appealfrom an order of the circuit court dismissing their complaint alleging defamationper se, defamation per quod, and false light invasion of privacy againstdefendant Scott Pollock (Pollock or defendant) pursuant to section 2--615 of theCode of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1998)). On appeal,plaintiffs contend that the trial court erred in dismissing their complaintbecause they set forth sufficient facts to sustain each cause of action and noprivilege is applicable to defendant's conduct. For the reasons set forth below,we affirm in part, reverse in part, and remand in part. Kurczaba and Pollock are both licensed attorneys who concentrate theirpractice in immigration law, particularly within the Chicago Polish community. Horn is a law firm that also concentrates its practice in immigration law. BothKurczaba and Horn are well known in the Polish community. Kurczaba is thepresident of the Polish American Congress, which is an umbrella organizationrepresenting over 75 Polish-American organizations. Kurczaba and his family arealso principals in a business, Sunrise Travel (Sunrise), which provides travel-related services to individuals in the Chicago area. Sunrise derives much of itsbusiness from the Polish community. Similarly, Kurczaba obtains much of hislegal business as a result of referrals from members of the Polish community,including individuals working for or associated with Polish newspapers. Pollock represents various individuals in a class action lawsuit, Malus,et al. v. Sunrise Travel & Tours, Inc., No. 97 CH 1398 (the Malus action). InAugust 1998, Pollock filed an eight count amended complaint (the Maluscomplaint), without leave of court. The Malus complaint contained allegationsof wrongdoing by Sunrise and its owners, Kurczaba's parents, Pola and EdwardKurczaba, Leonard Whitcup (Whitcup), the law firm of Whitcup & Arce, and theBaranow Corporation of which Kurczaba was the registered agent. Kurczaba wasalso a member of the law firm of Whitcup & Arce. The Malus complaint allegedwrongdoing in the nature of unauthorized practice of law by individuals notlicensed as attorneys, who were associated with the Malus defendants, andassistance by Whitcup and his law firm in the unauthorized practice of law. TheMalus complaint also contained individual counts on behalf of four of the classmembers, alleging fraud, negligence and consumer fraud. Kurczaba was not namedas a defendant in the Malus complaint. Sometime after the Malus complaint was filed, Whitcup & Arce dissolved. Manyof its members then formed the Horn firm, including Kurczaba. Horn distributedan advertisement to the legal community, in Polish, which announced the new firmand contained Kurczaba's photograph (the ad). In October or November 1998, before being granted leave to file an amendedcomplaint, Pollock mailed a package containing a copy of the ad stapled to theMalus complaint to various prominent members and institutions of the Chicago andPolish communities, including three Polish newspapers, the Polish Consul Generaland Minister Plenipotentiary, the Polish National Alliance, the NationalPresident of the Polish-American Congress, the President of the Advocates Society(an association of Polish-American attorneys), the Chicago Tribune, and theDepartment of Labor. On November 20, 1998, plaintiffs filed a complaint for preliminary andinjunctive relief against Pollock, alleging causes of action for false lightinvasion of privacy and intentional interference with prospective economicadvantage. On January 15, 1999, Pollock filed a motion to dismiss plaintiffs'complaint, arguing that the complaint failed to plead sufficient facts to sustainthe causes of action and that his conduct was protected by an absolute privilege. Pollock further argued that Horn could not sustain a cause of action for falselight invasion of privacy because it was not a natural person. The trial courtgranted Pollock's motion on April 8. On August 6, plaintiffs were granted leaveto file an amended complaint. In the amended complaint (complaint), plaintiffsalleged causes of action for defamation per se, defamation per quod, and falselight invasion of privacy. In general, plaintiffs' complaint alleged that the Malus complaint allegeddishonesty, deception, fraud, and professional malfeasance by the Malusdefendants and that these allegations of misconduct were all false. Plaintiffsalso alleged that Kurczaba was mentioned in the allegations of the Maluscomplaint, was identified as Pola's son, and was an attorney with Whitcup. Plaintiffs further alleged that Pollock was aware that some of the allegationsin the Malus complaint were false or that he acted in reckless disregard of thetruth or falsity of the allegations in disseminating the package. Plaintiffsalso alleged that Kurczaba had a relationship and engaged in continuousdiscussions and activities with those individuals and entities to whom thepackage was disseminated. According to plaintiffs' complaint, Pollock sent thepackage to damage Kurczaba's and Horn's reputations. Plaintiffs also allegedthat they had suffered injury to their personal and professional reputations. With respect to plaintiffs' allegation of defamation per se (count I),plaintiffs alleged that the Malus complaint contained false statements regardingthe professional integrity of the Malus defendants, and false statements aboutthe manner in which the Malus defendants conducted business and the manner inwhich the attorneys handled immigration matters. Plaintiffs alleged that, bysending the Malus complaint along with the ad, Pollock was attempting to connectHorn and Kurczaba to the allegations of wrongdoing in the Malus complaint. Pollock's conduct also suggested that Kurczaba and Horn lacked professionalintegrity, handled matters in an inappropriate and negligent manner, imputed toplaintiffs an inability to perform their duties, and imputed a want of integrityin discharging their duties as attorneys. Plaintiffs alleged they had sufferedprejudice in their profession. Plaintiffs also alleged that Pollock's conductwas wilful and malicious. With respect to plaintiffs' allegation of defamation per quod (count II),plaintiffs alleged that Pollock's attachment of the ad to the Malus complaintinjured and damaged their reputations because the recipients of these documentswould draw and had drawn the conclusion that plaintiffs lacked integrity andprofessional ability. Plaintiffs also alleged that they suffered loss ofbusiness income, great embarrassment, public humiliation, mental anguish andemotional distress. Lastly, with respect to plaintiffs' allegation of false light invasion ofprivacy (count III), plaintiffs alleged that Pollock intended to and did defamethem by placing them in a false light by widely disseminating the package. Plaintiffs further alleged that Pollock's conduct was wilful and malicious, andwas designed to intentionally cause injury to their personal and professionalreputations. On September 10, Pollock filed a motion to dismiss plaintiffs' complaint,arguing that plaintiffs failed to set forth sufficient facts to sustain theircauses of action, truth was a defense to defamation, and that his conduct wasprotected by various privileges. The trial court granted Pollock's motion to dismiss on November 15, findingthat Pollock was privileged in circulating the documents because it was a fairreport of a true complaint and the ad. With respect to the defamation per secount, the trial court concluded that plaintiffs failed to satisfy the pleadingrequirements for such a claim. With respect to the defamation per quod count,the trial court concluded that plaintiffs failed to sufficiently plead specialdamages. Lastly, with respect to the false light invasion of privacy count, thetrial court concluded that the law firm could not sustain such a cause of actionbecause the court was persuaded by case law from other jurisdictions that apartnership could not be subject to a false light invasion of privacy action. This appeal followed. A motion to dismiss pursuant to section 2--615 of the Code tests the legalsufficiency of the plaintiff's complaint. Lykowski v. Bergman, 299 Ill. App. 3d157, 162, 700 N.E.2d 1064 (1998). "In determining the legal sufficiency of acomplaint, all well-pleaded facts are taken as being true and all reasonableinferences from those facts are drawn in favor of the plaintiff." Lykowski, 299Ill. App. 3d at 162. "The question on appeal from the granting of a section 2--615 motion is whether the allegations in the complaint, when viewed in a lightmost favorable to the plaintiff, are sufficient to state a cause of action uponwhich relief can be granted." Lykowski, 299 Ill. App. 3d at 162-63. A section2--615 motion "does not raise affirmative factual defenses but alleges onlydefects on the face of the complaint." Bryson v. News America Publications,Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207 (1996). "[F]or purposes of a section2--615 motion, a court may not consider 'affidavits, affirmative factual defensesor other supporting materials.' [Citation]" Kirchner v. Greene, 294 Ill. App.3d 672, 677, 691 N.E.2d 107 (1998). We review the trial court's decision denovo. Lykowski, 299 Ill. App. 3d at 162. In nonpublishable material, we conclude that the truth defense was not abasis to dismiss plaintiffs' complaint because Kurczaba was not named as adefendant in the Malus complaint and the statements contained in the complainthad not been proven as true. Plaintiffs contend that they pled adequate allegations for defamation perquod (count II), including special damages. According to plaintiffs, based onBryson, allegations of general economic loss alone are now sufficient allegationsof special damages and, because they pled that their reputations were damaged andthey lost business and income, they sufficiently pled special damages. Defendantcontends that plaintiffs failed to sufficiently plead special damages becauseplaintiffs did not plead any facts to show how their reputations were tarnished,what business was lost or any monetary loss. The trial court dismissed thiscount, finding that plaintiffs' allegations of special damages were insufficient. "Statements are considered defamatory per quod if the defamatory characterof the statement is not apparent on its face, and extrinsic facts are requiredto explain its defamatory meaning." Kolegas v. Heftel Broadcasting Corp., 154Ill. 2d 1, 10, 607 N.E.2d 201 (1992). If a defamatory statement does not fallwithin a per se category, "the plaintiff must plead and prove that she sustainedactual damage of a pecuniary nature ('special damages') to recover." Bryson, 174Ill. 2d at 87-88. The parties seem to agree that the only issue before this court, as tocount II, is whether plaintiffs sufficiently pled special damages. We firstobserve, contrary to plaintiffs' argument, that Bryson did not change therequirements for pleading special damages. In Bryson, the court stated that "theplaintiff must plead and prove that she sustained actual damage of a pecuniarynature ('special damages') to recover." Bryson, 174 Ill. 2d at 87-88. Additionally, the court stated that "the plaintiff must plead and prove actualdamage to her reputation and pecuniary loss resulting from the defamatorystatement ('special damages') to recover." Bryson, 174 Ill. 2d at 104. Theseare the only two statements the court made concerning special damages. It didnot otherwise address the issue, nor did it ascertain whether the Brysonplaintiff's special damage allegations were sufficient. We find nothing inBryson to conclude that it changed the requirements for pleading special damages. Illinois courts have consistently stated that general allegations such asdamage to one's health or reputation, economic loss, and emotional distress areinsufficient to state a cause of action for defamation per quod. Becker v.Zellner, 292 Ill. App. 3d 116, 127, 684 N.E.2d 1378 (1997); Quinn v. Jewel FoodStores, 276 Ill. App. 3d 861, 870, 658 N.E.2d 1225 (1995); Taradash v.Adelet/Scott-Fetzer Co., 260 Ill. App. 3d 313, 318, 628 N.E.2d 884 (1993);Schaffer v. Zekman, 196 Ill. App. 3d 727, 733, 554 N.E.2d 988 (1990). While ourindependent research has revealed no specific definition or details of preciselywhat special damages are, one court found allegations to be sufficient. Becker,292 Ill. App. 3d 116. In Becker, allegations that the defamatory material"caused or contributed to Plaintiffs losing prospective employment opportunitieswith respect to the preparation of a civil complaint to be filed in federal courton behalf of [a client]" were found to be sufficient because the allegationsalleged that a third party had actually stopped doing business with theplaintiffs. Becker, 292 Ill. App. 3d at 127. On the other hand, most courts have found allegations to be insufficientto allege special damages. See Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 416-17, 667 N.E.2d 1296 (1996) (allegations that the plaintiff "ha[d] been damagedmonetarily by losing gainful employment and wages" and that she "ha[d] sufferedgreat mental pain and anguish and incurred great expense for the treatmentthereof"); Quinn, 276 Ill. App. 3d at 870 (allegations that a franchiser refusedto grant the plaintiff a franchise); Barry Harlem Corp. v. Kraff, 273 Ill. App.3d 388, 395, 652 N.E.2d 1077 (1995) (allegations that the plaintiff "ha[d] lostpatients who would have otherwise presented themselves for treatment"); Taradash,260 Ill. App. 3d at 318 (allegations that former customers refused to deal withthe plaintiff, that he was unable to sell his product, and that he lostcommissions and income); Schaffer, 196 Ill. App. 3d at 733 (allegations that theplaintiff had been disgraced and injured in his professional reputation); Heereyv. Berke, 188 Ill. App. 3d 527, 532, 544 N.E.2d 1037 (1989) (allegations that theplaintiff suffered from "distress of mind, mental anguish, acute nervousness,bodily pain and that her reputation for honesty and integrity, businessopportunities, as well as her standing in her professions ha[d] been impaired");Harris Trust & Savings Bank v. Phillips, 154 Ill. App. 3d 574, 585-86, 506 N.E.2d1370 (1987) (allegations that the plaintiff was exposed to "public hatred,contempt, and ridicule and tended to deprive *** [the plaintiff] of publicconfidence and injured it in its business and reputation"); von Solbrig MemorialHospital v. Licata, 15 Ill. App. 3d 1025, 1031, 305 N.E.2d 252 (1973)(allegations that the plaintiff "suffered ill health, emotional distress anddamage to reputation and medical practice"). In the instant case, plaintiffs alleged that they "have suffered a loss ofbusiness and income" and "have suffered great embarrassment, public humiliation,mental anguish and emotional distress." Based on the foregoing authority, weconclude that plaintiffs' allegations of special damages are insufficient. Thus,the trial court properly dismissed count II of plaintiffs' complaint. Plaintiffs initially contend that count III, alleging a cause of action forfalse light invasion of privacy, as to Kurczaba, should not have been dismissedeven though the trial court made no ruling with respect to his individual causeof action. Plaintiffs further contend that they pled all necessary elements tosustain a cause of action for false light invasion of privacy. With respect tothe element of falsity, plaintiffs pled that the Malus complaint itself was falsebecause it was filed without leave of court and, therefore, it was not a courtdocument. Plaintiffs also pled that all allegations of wrongdoing in the Maluscomplaint were false, thereby necessarily meaning that each specific individualstatement of wrongdoing was false. With respect to the element of being placedin a false light before the public, plaintiffs contend that the documents werewidely distributed throughout the Polish community and this is a large enough"public." They further contend that if this "public" is not sufficient, anexception to the rule applies--the special relationship exception. According toplaintiffs, Kurczaba held a special relationship with the recipients of thedocuments because he was so prominent in the community. Defendant contends that plaintiffs have waived any issue with respect toHorn's claim for false light invasion of privacy. Substantively, defendantargues that plaintiffs did not allege what specific statements in the Maluscomplaint were false and, thus, count III was properly dismissed. With respectto the "publicity," element, defendant argues that the dissemination of the Maluscomplaint and ad was not to the public at large and plaintiffs have not allegedthat the documents were published by the newspapers that received them. Defendant further argues that the special relationship exception does not applybecause this exception applies to a limited class of individuals and plaintiffshave not alleged that any of the recipients fell within these classes. Additionally, defendant contends that the fact Kurczaba was prominent and had a"purported stature" in the community is insufficient to establish a specialrelationship and, similarly, the fact that the materials were disseminated to"business associates" is insufficient. Lastly, defendant argues that therecipients had a vested interest in protecting the Polish community. To sustain a cause of action for false light invasion of privacy, aplaintiff must plead and prove that: (1) he or she was placed in a false lightbefore the public as a result of the defendant's actions; (2) "the false lightin which the plaintiff[] was placed would be highly offensive to a reasonableperson; and (3) the defendant[] acted with actual malice, that is, with knowledgethat the statements were false or with reckless disregard for whether thestatements were true or false." Kirchner, 294 Ill. App. 3d at 682. The only issue before this court is whether plaintiffs' complaint allegedsufficient facts as to Kurczaba to state a cause of action for false lightinvasion of privacy. Plaintiffs have not argued the propriety of the trialcourt's dismissal of Horn's allegations and, therefore, have waived that issue. JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 508, 718 N.E.2d 539 (1999). However,we note that the trial court did not address the individual action presented byKurczaba in dismissing plaintiffs' complaint. With regard to the element of falsity, plaintiffs alleged that "[t]heallegations of wrongdoing in the Amended [Malus] Complaint are false." Defendantrelies on Kirchner in support of his position that plaintiffs' complaint wasproperly dismissed because plaintiffs failed to specifically and directlyidentify each false statement in the Malus complaint. In Kirchner, the courtstated that "[a]bsent some allegation as to what specific statement was false,a claim based on false light simply fails to satisfy the most basic element ofthe cause of action." (Emphasis in original.) Kirchner, 294 Ill. App. 3d at 683. We find that because plaintiffs alleged that all allegations of wrongdoing in theMalus complaint were false, this necessarily encompasses and includes eachindividual statement of wrongdoing. Thus, we conclude that plaintiffssufficiently alleged falsity. Kirchner is distinguishable because there thecomplaint was "completely devoid" of any allegations of falsity of any statementmade by the defendant. With regard to the element of publicity, the Restatement (Second) of Torts,states: "[A]ny publication in a newspaper or magazine, even of small circulation,or in a handbill distributed to a large number of persons, or any broadcast overthe radio, or statement made in an address to a large audience, is sufficient togive publicity within the meaning of the term as it is used in this Section." Restatement (Second) of Torts, |
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