Parker v. House O'Lite Corp.
Case Date: 08/22/2001
Court: 1st District Appellate
Docket No: 1-00-3764 Rel
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THIRD DIVISION No. 1-00-3764
jUSTICE WOLFSON delivered the opinion of the court: The free flow of information on matters of compelling public interest is highly prized inour society. There are times when someone speaking out on such a matter gets the facts wrongand ends up defaming someone else. For these occasions the law provides a qualified privilege,one that can be abused and lost. This case requires us to examine whether the defendant defamedthe plaintiff, whether she was protected by a qualified privilege, and, if the privilege did exist,whether it was abused. INTRODUCTION Plaintiff Theodore E. Parker, P.E. (Parker), brought this suit for defamation per se andfalse light invasion of privacy against defendant Susan M. Larson, individually and in hercapacity as President of House O'Lite Corporation d/b/a Holcor (collectively Larson), allegingLarson published false and defamatory statements when she wrote two letters questioning hisspecifications for lighting fixtures to be used in a multi-million dollar project to build a newCook County Hospital (CCH). Larson moved for summary judgment, contending the letters she wrote were substantiallytrue and were privileged communications. The trial court entered an order granting summaryjudgment, finding that because her statements in the letters involved a matter of public interest,i.e., construction of a public hospital using taxpayer monies, they were privilegedcommunications. On appeal, Parker contends the trial court erred in granting summary judgment on hisclaim for defamation per se because Larson's statements in her two letters were not privilegedcommunications, and if Larson's statements were found to be privileged, the trial court shouldhave allowed a jury to determine whether she abused that privilege. Parker also contends thetrial court erred in granting summary judgment on his false light claim "where the recordcontained substantial evidence of actual malice," sufficient to raise material questions of fact. We reverse the trial court's order granting summary judgment and remand for furtherproceedings. FACTS In 1994, Cook County (County) received approval to build a new state-of-the-art hospital. The new CCH would replace the old CCH on the near west side of Chicago. The County hiredTurner Construction (Turner) as the program manager to oversee the CCH project. As program manager, Turner was to oversee the work of a design team of privatearchitectural and engineering firms. The design team comprised a partnership or joint venture offour private firms. These firms were responsible for designing the hospital and preparingdrawings, plans, and specifications that detailed how the hospital was to be built, including thetypes and quantities of materials for the project. Globetrotters Engineering Corporation (Globetrotters) was one of four private firmsselected in early 1997 to form the design team for the CCH project. Although Globetrotters wasretained by the County to do the electrical and mechanical design work, including lighting designand specification, the County's agent on the CCH project always was Turner. Parker was employed by Globetrotters as a senior electrical engineer. He was responsiblefor the electrical and lighting design for the new CCH. His responsibilities included the draftingof a lighting fixture schedule or specifications of fixtures to be installed in the new CCH. Parker drafted the lighting specifications which became the subject matter of this lawsuit. Although he was responsible to ensure the information on the lighting specifications wasaccurate and met Globetrotters' quality assurance guaranties before he sent it out for bidding inJanuary 1998, he sent out "incomplete" lighting specifications. In the fall of 1997, Larson decided she wanted to sell Holcor products for use in the CCHproject. At the time, she was president of Holcor. Holcor was a women's business enterprise(WBE) that manufactured, among other things, fixtures for institutional applications such ashospitals. Larson was disturbed by Parker's lighting specifications for the CCH project. Specifically, she believed they authorized bids from companies that were not manufacturers, didnot meet Globetrotters' quality specifications, and/or were owned or affiliated with Jeff Baum ofTotal Lighting Resources (TLR) and Design Galleries. She felt Baum was preferred on thelighting specifications because of a rumored "special relationship" between Baum and Parker,i.e., they were brothers-in-law. After Larson conducted an investigation of Parker and spoke to several people in thelighting industry familiar with the CCH project, she met with Turner's Ken Mullin, the programmanager who represented the County on the CCH project. They discussed Larson's concern thatParker "rigged" the lighting specifications of the CCH project in favor of his "brother-in-law"Baum. Mullin, after conducting his own investigation, told Larson he could not substantiate anyof her concerns and/or allegations. Mullin declined to investigate Parker's lighting specificationsany further, causing Larson to write the letters which led to this lawsuit. DECISION STANDARD OF REVIEW Parker contends the trial court erred in granting summary judgment in favor of Larson onhis defamation per se and false light invasion of privacy claims. Summary judgment is appropriate where "the pleadings, depositions and admissions,together with the affidavits, show that there is no genuine issue of material fact and that themoving party is entitled to judgment as a matter of law." Vickers v. Abbott Laboratories, 308 Ill.App. 3d 393, 399, 719 N.E.2d 1101 (1999), citing 735 ILCS 5/2-1005(c) (West 1996). The partyopposing summary judgment does not have to prove his or her case, but must present somefactual basis arguably entitling him or her to judgment. Dunlap v. Alcuin Montessori School,298 Ill. App. 3d 329, 338, 698 N.E.2d 574 (1998). We note that while summary judgment is "encouraged as an aid in the expeditiousdisposition of a lawsuit [citation], it is a drastic means of disposing of litigation and thereforeshould be allowed only when the right of the moving party is clear and free from doubt.[Citations.]" Vickers, 308 Ill. App. 3d at 399, quoting Purtill v. Hess, 111 Ill. 2d 229, 240, 489N.E.2d 867 (1986). We review de novo the trial court's ruling on a motion for summary judgment. Vickers,308 Ill. App. 3d at 399. Although the scope of our review of a summary judgment motion islimited to the record as it existed at the time the trial court ruled, we are not restricted to the exactreasons the trial court stated or implied in entering its order. Dunlap, 298 Ill. App. 3d at 338. We may affirm the trial court's decision for any reason in the record, regardless of its basis for thedecision. Dunlap, 298 Ill. App. 3d at 338. DEFAMATION To prove defamation, a plaintiff must show (1) the defendant made a false statementabout the plaintiff, (2) there was an unprivileged publication to a third party with fault by thedefendant, and (3) the publication damaged the plaintiff. Vickers, 308 Ill. App. 3d at 400. The law of defamation is well-settled: "A statement is considered defamatory if it tends to cause such harm to the reputation ofanother that it lowers that person in the eyes of the community or deters third personsfrom associating with him. [Citations.] Certain limited categories of defamatorystatements are deemed actionable per se because they are so obviously and materiallyharmful to the plaintiff that injury to the plaintiff's reputation may be presumed." VanHorne v. Muller, 185 Ill. 2d 299, 307, 705 N.E.2d 898 (1998). Illinois recognizes five categories of statements which are considered actionable per se,two pertinent to this case: (1) those imputing the commission of a criminal offense; and (2) thoseimputing an inability to perform or want of integrity in the discharge of duties of office oremployment. Van Horne, 185 Ill. 2d at 307. In determining whether the statement isdefamatory, we must "focus on the predictable effect the statement had on those who received thepublication." Dunlap, 298 Ill. App. 3d at 339. This case centers on Larson's January 12, 1998, letter. We set it out in full: "Mr. Ken Mullin, Project Executive Dear Ken, Enclosed is some of the documentation on the Cook County hospital lightingspecifications that we have discussed on several previous occasions. Our concern, as we have advised, is that the specification of the lighting is rigged. Thespecifications are written so that only one lighting representative, Mr. Jeff Baum, of TLCand Design Galleries, has a complete lighting package. In our industry, if you cannotpresent a complete lighting package, you are usually unable to bid the job competitivelyor successfully. As shown in the attached spreadsheet, only Mr. Baum is able to bid the entire job. Inseveral cases, the spec does not list "apples to apples". For example, Mr. Baum's fixtureis listed against higher quality, higher cost products, giving him a price advantage insupplying a lesser quality product. Additionally, on one item, F24R, Mr. Baum is listedas the only approved fixture, as a "one name spec". As a comparison, we have onlyincluded P&G, the agent able to bid the most items. P&G has bid items that are notapproved to improve the coverage of the bid. Other agents have far fewer items thanP&G that they are able to bid and have little chance of winning the job. Our concerns are exacerbated by the fact that the specifier, Mr. Ted Parker ofGlobetrotters, is Mr. Jeff Baum's brother-in-law. It appears that he has rigged thespecifications so that only his relative can bid and win the job. In addition, Globetrotter's Mr. Parker has violated his own specifications in riggingthis bid. In the "Quality Assurance" section of the Lighting requirements, thespecifications read as follows: Section 16510, 1.3 Quality Assurance Globetrotter's Mr. Parker has listed 2 companies that exist in name only and do notmeet this specification. They are PMC and Lexes. These companies are owned byMr. Jeff Baum, Mr. Parker's brother-in-law, and are not manufactures in any senseof the word. Mr. Baum's non-existent manufacturers represent $500,000 of the lightingrequirements, or 25-30% or more of this $2 million lighting job (manufacturers' levelpricing). Mr. Baum's "manufacturers" purchase lighting from other real manufacturers and submitit as their own. There is no factory, no employees and the firms have never made alighting fixture. Mr. Baum is currently working with a small local lighting manufacturerto supply the items specified as PMC and Lexes on this job. This manufacture has notpreviously made these fixtures. Globetrotter's Mr. Parker has a history of specifying jobs in this fashion in the past. However, the situations where this has occurred have not been of the magnitude of theCook County Hospital job. The most recent previous example of this that we are awareof, occurred on Northwestern's Dyche Stadium. In that case, Mr. Parker also specifiedthe bid so that only Mr. Baum could bid and win the job. In that case, he even refused toapprove one of the manufactures that PMC, one of Mr. Baum's non-existentmanufacturers, was buying from. He would only approve it if the item bore a PMC name. We object to the situation occurring again on Cook County Hospital. There are a number of fixtures that our company, HOLCOR, is able to provide on thisjob. However, Mr. Parker has refused to meet with us and our agent has refused to acceptour submittals and has stood us up for arranged appointments. As the only WBE and DBE manufacture in the Chicago area, we want and need to berepresented on this project. The way that the lighting has been specified, is being bid, andappears will be awarded violates all the rules of fairness and ethics. It also presents asituation where it is unlikely that the contractor, and ultimately the Hospital and thetaxpayers, will get the most competitive price available. We request the following actions to be implemented immediately to correct this problem: 1. All the specifications be changed to "or equal". As this project is bidding in the next week, we request your immediate attention andresponse. Sincerely, Susan M. Larson CC: Mr. Richard Devine, Cook County States Attorney On January 13, 1998, Larson sent a letter containing nearly identical statements toRichard Devine, Cook County State's Attorney. The January 13 letter indicates copies were sentto the same individuals listed in the January 12 letter. The trial court found, and the parties do not dispute, the complained-of statements byLarson were published. Vickers, 308 Ill. App. 3d at 400 ("Proof of publication requires that thedefamatory statements were communicated to some person other than the plaintiff"). In addition, the trial court, in its order granting Larson's motion for summary judgment,said: "For purposes of the pending motion for summary judgment, and without in any waydeciding the matter, the court treats the complained of statements made by Holcor[, i.e., Larson,]as defamatory per se." When a defamatory statement is actionable per se, the plaintiff does nothave to plead or prove actual damage to his or her reputation in order to recover. Dunlap, 298 Ill.App. 3d at 338. The trial court then determined Larson's statements were qualifiedly privileged. Parker contends Larson's letters of January 12 and January 13, 1998, defamed him byimputing to him (1) the commission of a criminal offense, i.e., "bid rigging," and (2) the inabilityto perform or want of integrity in the discharge of duties of office or employment. Larson replies the challenged statements in her letters are nondefamatory as a matter oflaw because they are capable of "innocent construction" and are "substantially true." She alsocontends her statements are protected by a qualified privilege. Although "an otherwise defamatory statement is not actionable if made under a qualifiedprivilege" (Larson v. Decatur Memorial Hospital, 236 Ill. App. 3d 796, 799, 602 N.E.2d 864(1992)), we first consider whether the challenged statements in Larson's letters arenondefamatory as a matter of law. We are obliged to decide this issue because Larson contendssummary judgment should be affirmed on the grounds there was no defamation per se. The issuehas been fully briefed. INNOCENT CONSTRUCTION Even if a communication falls within one of the recognized per se categories, a court willnot find the communication actionable if it is reasonably capable of an innocent construction. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 90, 672 N.E.2d 1207 (1996). Underthe innocent construction rule, we are required to consider a written or oral statement in context,giving the words, and their implications, their natural and obvious meaning. Bryson, 174 Ill. 2dat 90. Whether a communication is reasonably susceptible to an innocent interpretation is aquestion of law for the court to decide. Bryson, 174 Ill. 2d at 90. Larson contends the assertions "the specification of the lighting is rigged," "It appearsthat he [(Parker)] has rigged the specifications so that only his relative can bid and win thejob," and "Globetrotter's Mr. Parker has violated his own specifications in rigging this bid"(emphasis in original) are not actionable per se because the word "rigged" may reasonably beinnocently construed. Larson notes Webster's Ninth New Collegiate Dictionary includes a number of differentdefinitions for the word "rigged," including "to manipulate or control." Webster's Ninth NewCollegiate Dictionary at 1015 (1983). She argues that, because "rigged" may be consideredsynonymous with "to fix in advance for a desired result," the court must innocently construe theword "rigged" as something other than an accusation of a crime. Bryson dispels the notion that the innocent construction rule applies whenever a word hasmore than one dictionary definition, one of which is not defamatory. Bryson, 174 Ill. 2d at 93. In Bryson, the plaintiff brought a defamation action against the author of an article thatappeared in a magazine's "fiction" section, and against the publisher of that magazine, allegingthe article defamed plaintiff by referring to and characterizing a character (who had plaintiff's lastname) as a "slut," thereby implying the plaintiff was an "unchaste" individual. Bryson, 174 Ill.2d at 84-87. The defendants claimed the assertion plaintiff was a "slut" was not actionable per sebecause the word "slut" may reasonably be innocently construed as describing the plaintiff as a"bully," where the American Heritage Dictionary includes a number of different definitions forthe word "slut," including "a slovenly, dirty woman," "a woman of loose morals," "prostitute," a"bold, brazen girl," or "a female dog." Bryson, 174 Ill. 2d at 92-93. The supreme court held the innocent construction rule does not apply simply becauseallegedly defamatory words are "capable" of an innocent construction. Bryson, 174 Ill. 2d at 93. The court instructed that allegedly defamatory words are to be interpreted as they appear to beused and according to the idea they were intended to convey to the reasonable reader. Bryson,174 Ill. 2d at 93. Here, Larson made several statements in her letter accusing Parker of "rigging" thelighting specifications on the CCH project and the Northwestern Dyche stadium project for Mr.Baum. The crime of "bid-rigging" is committed when a person "knowingly agrees with any person who is, or but for such agreement would be, acompetitor of such person concerning any bid submitted or not submitted by such personor another to a unit of State or local government when with the intent that the bidsubmitted or not submitted will result in the award of a contract to such person or anotherand he either (1) provides such person or receives from another information concerningthe price or other material term or terms of the bid which would otherwise not bedisclosed to a competitor in an independent noncollusive submission of bids or (2)submits a bid that is of such a price or other material term or terms that he does not intendthe bid to be accepted." 720 ILCS 5/33E-3 (West 1998). We find a defamatory meaning was conveyed by Larson. "A statement need not state thecommission of a crime with the particularity of an indictment to qualify as defamatory per se." Van Horne, 185 Ill. 2d at 308. Stavros v. Marrese, No. 1--00--2706, slip op. at 7 (June 28, 2001), supports ourconclusion. In Stavros, the plaintiff brought suit for defamation, alleging a letter written by thedefendant, sent to the plaintiff's employer, contained a wrongful and malicious accusation theplaintiff committed "extortion" in connection with the issuance of a construction permit. Stavros, No. 1--00--2706, slip op. at 1-2. The court held the defendant's "letter's repeatedreferences to extortion are defamatory per se under the first category", i.e., words that impute thecommission of a criminal offense. Stavros, No. 1--00--2706, slip op. at 7. Of course, a criminal accusation is only one category of statement which can beconsidered defamatory per se. The record could support a finding that Larson's letters imputeParker with "an inability to perform or want of integrity in the discharge of duties of office oremployment." Van Horne, 185 Ill. 2d at 307. Larson accuses Parker of violating "his ownspecifications in rigging this bid" (emphasis in original) and "specifying jobs in this fashion inthe past." See Kumaran v. Brotman, 247 Ill. App. 3d 216, 227, 617 N.E.2d 191 (1993)(defendant's statement that the plaintiff was "working a scam" was defamation per se because itcould impute plaintiff had committed a crime, and also the statement could prejudice him in hisprofession or trade). We are not required to strain to find an unnatural but possibly innocent meaning forwords where the defamatory meaning is far more reasonable. See Bryson, 174 Ill. 2d at 93. Norare we required to espouse a naivete unwarranted under the circumstances. Bryson, 174 Ill. 2d at93. We reject Larson's contention the defamatory language at issue must be innocently construedas a matter of law. SUBSTANTIAL TRUTH Larson next contends the trial court's decision was proper because her statements weresubstantially true. An allegedly defamatory statement is not actionable if it is substantially true, even thoughit is not technically accurate in every detail. Cianci v. Pettibone Corp., 298 Ill. App. 3d 419, 424,698 N.E.2d 674 (1998). A defendant bears the burden of establishing the "substantial truth" ofher assertions, which she can demonstrate by showing that the "gist" or "sting" of the defamatorymaterial is true. Cianci 298 Ill. App. 3d at 424. When determining the "gist" or "sting" of allegedly defamatory material, a trial courtmust "look at the highlight of the article, the pertinent angle of it, and not to items of secondaryimportance which are inoffensive details, immaterial to the truth of the defamatory statement." Gist v. Macon County Sheriff's Department, 284 Ill. App. 3d 367, 370, 671 N.E.2d 1154 (1996). The defense of substantial truth normally is a jury question. But, first, courts must askwhether a reasonable jury could find substantial truth has not been established. If the answer isno, the question is one of law, subject to de novo review. Cianci, 298 Ill. App. 3d at 424. Larson contends the essence of her letters was that Parker's lighting specifications failedin various ways to meet statutory guidelines and contractually mandated quality assurance andbid guidelines, thereby threatening the taxpayers' right to obtain quality products at the mostcompetitive price available. Larson's view was that these perceived deficiencies served to ensure"that the specification of the lighting is rigged" to favor Mr. Jeff Baum, Parker's brother-in-law. (Emphasis in original.) Parker replies Larson's contentions are not pertinent to the "angle" of her letter and are ofsecondary importance. Parker contends Larson's argument focuses on inoffensive detailsimmaterial to the truth of the allegedly defamatory statement. Parker says, "It is clear that the'highlight' of Larson's statements are her charges - which she herself highlighted in bold typefacein her letters - that Mr. Parker engaged in criminal and unethical conduct by rigging the lightingspecifications in order to steer business to his relative and to companies owned by his relative. The clear 'angle' is that Mr. Parker was engaging in nepotism, a most basic form of corruption." We note there is no evidence of any family relationship between Baum and Parker, andno evidence "Mr. Parker also specified the bid so that only Mr. Baum could bid and win the"Northwestern Dyche Stadium project. We also note there is evidence PMC is a company -- notjust a name -- and Baum did not own part of PMC or arrange to buy fixtures for relabeling underthe PMC name. Although we review the grant of summary judgment strictly against the moving party, wecannot say as a matter of law Larson's statements in her two letters were either substantially trueor false. There is an obvious factual dispute. That is, Did Larson make false and defamatory statements about Parker "rigging" the lightingspecification of a public project to give business to Baum? We find the answer to that question is a triable issue of material fact, allowing a jury todecide whether the "gist" or "sting" of Larson's statements was substantially true. QUALIFIED PRIVILEGE We next consider the trial court's finding of privilege. See Turner v. Fletcher, 302 Ill.App. 3d 1051, 1055, 706 N.E.2d 514 (1999). Illinois follows the Restatement (Second) of Torts (1977) in determining whether aqualified privilege should be recognized in a given situation. Kuwik v. Starmark Star Marketing& Administration, Inc., 156 Ill. 2d 16, 24-29, 619 N.E.2d 129 (1993), citing Restatement(Second) of Torts |
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