Stavros v. Marrese
Case Date: 06/28/2001
Court: 1st District Appellate
Docket No: 1-00-2706 Rel
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FOURTH DIVISION No. 1-00-2706
JUSTICE BARTH delivered the opinion of the court: This appeal arises from the trial court's grant of defendant Ronald Marrese's motion todismiss. Plaintiff, Anthony Stavros, brought the underlying action for defamation, alleging that aletter written by defendant and sent to plaintiff's employer contained a wrongful and maliciousaccusation that plaintiff committed extortion in connection with the issuance of a constructionpermit. The trial court granted defendant's motion to dismiss pursuant to section 2-619(a)(9) ofthe Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1998)) (the Code), finding, as amatter of law, that defendant wrote the letter under a qualified privilege and thus the statementscontained therein are not actionable. We now consider: (1) whether a qualified privilege attachedto the circumstances under which defendant wrote the letter and sent it to plaintiff's employer;and (2) whether, if such a privilege attached, it may have been abused by defendant. Factual Background Plaintiff is employed by the Village of Wheeling (the Village) as an engineeringinspector. Among other duties, he is responsible for inspecting plans for construction projectsthat take place in the Village. If those plans indicate that the projects will be carried out incompliance with the Village's regulations, plaintiff issues the necessary permits. Plaintiff first met defendant on July 27, 1998. Earlier that day, defendant had gone to thevillage hall and applied for a construction permit, which would authorize him to remove anasphalt driveway on property he owned and to replace it with one of concrete. Our review of therecord indicates that the property is a parking lot used by tenants of an adjacent apartmentbuilding. Pursuant to the permit application, plaintiff visited defendant's property and conductedan inspection of the driveway and plans. Plaintiff informed defendant that no permit would issueunless defendant removed a section of asphalt that encroached on his neighbor's property. Plaintiff instructed defendant to secure permission from his neighbor to remove the asphalt andtold him that the permit would issue thereafter. Plaintiff then drove away. Within an hour of plaintiff's departure, defendant called his neighbor, Mr. Miller, andasked for permission to remove the asphalt from his property. According to defendant, Mr.Miller was reluctant, but ultimately gave his assent. Defendant telephoned plaintiff to tell him hehad spoken to Mr. Miller, who had agreed to the asphalt removal. Defendant then went to villagehall and was issued a permit. The repavement work was commenced that day and completedwithin three or four days. On August 26, 1998 (one month after his sole interaction with plaintiff), defendant wroteand mailed the letter that is the subject of this lawsuit to Greg Klatecki, the village president. Defendant conceded that he knew the village president was not plaintiff's immediate supervisorand that he had done no investigation into the organizational structure of the Village governmentto learn the supervisor's identity. Plaintiff alleged that the letter was published to 10 otherVillage employees. The letter begins as follows: "I'm filing a formal complaint about behavior of a certain individual which may constitute extortion in my opinion. As you know extortion constitutes a criminal behavior. I'm the victim and its [sic] has caused me damages, which the Village is responsible for." Later in the letter, the following language appears: "In my opinion, I'm the victim of extortion by employee [sic] of the Village of Wheeling. *** Some of the cement contractors I spoke too [sic] had past difficulties with Mr. Stavros and really didn't want the future problems. *** I talked to one of my neighbors about Mr. Stavros who had dealing [sic] with him about a destruction of a Historical Site and nobody I talk too [sic] seem [sic] to say anything nice. Why is that? Remember, he represents the Village. What I gathered from some people in the cement trade is that Mr. Stavros is or was in the cement business, while working for the Village. *** Why doesn't the Village investigate? Could that be a conflict of interest? Is there an Illinois law notice requirement? These are my allegations, and the Village should investigate the situation.Based upon my experiences, and information is this extortion behavior a general policy of the Village? Is that true? What is Village policy about intimidation and threats to business [sic] and landowners. I'll wait for a public declaration in the Village publication and Village memo to all employees." The letter also contains a post script, which reads: "P.S. Please note, I reported similar behavior, that was reported to me about licensing procedure. Please check you file of my other certified letters to you. I think this is standard behavior of this Village and in my opinion this behavior is condone [sic] by the Village trustees, which extends to personal liability. To support criminal behavior, (you now have knowledge) through non action, constitutes a personal liability and criminal liability for each of the trustees. I intend to hold each trustee personally liable. Village trustees notices mailed." During deposition, defendant explained that "extortion," as he understood the term, meant"making me do something with no right to do it." He stated that, when he wrote the letter, hebelieved extortion was criminal behavior. When he wrote "caused me damages," defendant was referring to the fact that he had toremove the gravel that was underneath the asphalt on his neighbor's property (or else grass wouldnot grow on the spot) himself, because his contractor did not properly clean it out. Defendant admitted that plaintiff did not threaten to cite him with a violation of theVillage code; did not threaten him or his family with physical harm; did not threaten him with alawsuit; and that there was no threat of future difficulties in obtaining permits. Further, no oneever told defendant that plaintiff did not have to follow the same requirements as othercontractors in the Village in order to obtain a permit for projects undertaken by his own concretecompany, or that plaintiff had ever used his position as inspector to steer jobs to his ownbusiness. When asked to explain his reference, in the letter's post script, to having reported similarbehavior about licensing procedure in the past, defendant responded that he had "no idea" to whathe was referring when he wrote that paragraph. Although the letter states "Village trustees notices mailed," defendant admitted that hehad not, in fact, mailed notices to Village trustees and that the inclusion of those words wascalculated to motivate the Village to "do something" about his letter. Similarly, references in thelitter to a civil suit against the Village were not meant as threats, but were intended to "shakethem up to do something about this, to look into the matter." Plaintiff's original three-count complaint contained allegations of defamation (count I);invasion of privacy (count II); and intentional infliction of emotional distress (count III). Defendant filed a combined motion to dismiss pursuant to section 2-619.1 (735 ILCS 5/2-619.1(West 1998)). That motion was granted without prejudice as to all three counts of the originalcomplaint on September 23, 1999. On October 22, 1999, plaintiff filed a first amended complaint, in which he realleged allthree causes of action. Defendant moved to dismiss counts II and III of that complaint pursuantto section 2-615. The trial court granted that motion without prejudice on February 7, 2000.Plaintiff did not replead counts II and III, and instead elected to proceed solely on count I. On May 2, 2000, defendant filed a motion to dismiss count I of plaintiff's first amendedcomplaint pursuant to section 2-619(a)(9). In that motion, defendant argued that he acted under aqualified privilege when he wrote the letter to plaintiff's employer, who had an interest in itscontents. Further, that no abuse of that privilege had taken place, since it was published only tothose Village employees who had an interest in its contents (either as plaintiff's supervisors, or inconnection with the investigation that ensued). Defendant alternatively contended that he wrote the letter under an absolute privilegewhich applies to statements made "during any step preliminary to or necessary for a judicial orquasi-judicial proceeding."(1) Finding that the contents of defendant's letter were qualifiedly privileged, the trial courtgranted defendant's final motion to dismiss, with prejudice, on July 17, 2000. This timely appealfollowed. Analysis Section 2-619(a)(9) provides for involuntary dismissal of a cause of action where theclaim asserted is barred by "affirmative matter" avoiding the legal effect of or defeating theclaim. 735 ILCS 5/2-619(a)(9) (West 1998). An "affirmative matter" is something in the natureof a defense that completely negates the cause of action or refutes crucial conclusions of materialfact contained in or inferred from the complaint. Antler v. Classic Residence Management Ltd.Partnership, 315 Ill. App. 3d 259, 264 (2000). Our review of the grant of a motion to dismissunder section 2-619 is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d112, 116 (1993). To make out a claim of defamation, a plaintiff must set forth sufficient facts to show thatthe defendant made a false statement concerning plaintiff, that there was an unprivilegedpublication of the defamatory statement to a third party by defendant, and that plaintiff wasdamaged. Krasinski v. United Parcel Service, Inc., 124 Ill. 2d 483, 490 (1988). We must first consider whether the references contained in the letter to plaintiff havingcommitted extortion may be considered defamatory. Under our common law, four categories of statements are considered actionable per seand give rise to a cause of action for defamation without a showing of special damages. Theyare: (1) words that impute the commission of a criminal offense; (2) words that impute infectionwith a loathsome communicable disease; (3) words that impute an inability to perform or want ofintegrity in the discharge of office or employment; or (4) words that prejudice a party or impute alack of ability in his or her trade, profession or business. Kolegas v. Heftel Broadcasting Corp.,154 Ill. 2d 1, 10-11 (1992). We agree with plaintiff that the letter's repeated references toextortion are defamatory per se under the first category set forth above. Defendant submits that the complained-of references are mere expressions of opinion,clearly expressed as such, and thus are not actionable as a matter of law. See Hopewell v.Vitullo, 299 Ill. App. 3d 513, 521 (1998). We find this argument unpersuasive. The emphasis inthe test for determining the actionability of an allegedly defamatory statement of opinion iswhether the statement contains an objectively verifiable assertion. Wynne v. Loyola University,318 Ill. App. 3d 443, 452 (2000). We consider the assertion that plaintiff committed extortion tobe objectively verifiable and therefore actionable. Further, that plaintiff may have prefaced hisassertions with "In my opinion," does not exempt them from the defamatory realm, since a falseassertion of fact can be defamatory even though couched in terms of an opinion. See Bryson v.News America Publications, Inc., 174 Ill. 2d 77, 99-100 (1996) quoting Milkovich v. LorainJournal Co., 497 U.S. 1, 19, 111 L. Ed. 2d 1, 18, 110 S. Ct. 2695, 2706 (1990). Next, we consider whether the circumstances under which defendant wrote the letterrendered its contents conditionally (or "qualifiedly") privileged. A privileged communication is one which, except for the occasion on which or thecircumstances under which it is made, might be defamatory and actionable. Kuwik v. StarmarkStar Marketing & Administration, Inc., 156 Ill. 2d 16, 24 (1993). This privilege is based on thepolicy of protecting honest communications of misinformation in certain favored circumstancesin order to facilitate the availability of correct information. See S. Harper, F. James & O. Gray,Law of Torts |
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