Becker v. Zellner
Case Date: 09/16/1997
Court: 2nd District Appellate
Docket No: 2-96-1309
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_________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT __________________________________________________________________ JEFFREY BECKER, STEVEN BECKER, ) Appeal from the Circuit Court and THOMAS BECKER, ) of Du Page County. ) Plaintiffs-Appellants and ) Cross-Appellees, ) ) No. 96--L--0447 v. ) ) KATHLEEN T. ZELLNER, d/b/a ) Kathleen T. Zellner And ) Associates, and KATHLEEN T. ) ZELLNER AND ASSOCIATES, P.C., ) ) Honorable Defendants-Appellees and ) Paul Noland, Cross-Appellants. ) Judge, Presiding ___________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: Plaintiffs, Jeffrey, Steven, and Thomas Becker (collectively, plaintiffs), appeal the dismissal of their complaint against defendants, Kathleen T. Zellner (Zellner) and Kathleen T. Zellner & Associates, P.C. (collectively, defendants). Defendants cross- appeal the denial of their motion for sanctions. We affirm in part, reverse in part, and remand. Preliminarily, we note that defendants have filed a motion to dismiss plaintiffs' appeal. This motion was ordered to be taken with the case. We deny defendants' motion and will consider the merits of plaintiffs' appeal. The following summary of facts is taken from the pleadings. On May 6, 1996, plaintiffs filed a five-count complaint against defendants in which they alleged that, as paralegals, they assisted defendants in their representation of Frank Lyons during the fall of 1994. On May 9, 1995, Sharon Wendt, a friend of Lyons, called defendants in order to obtain plaintiffs' telephone number for Lyons. Lyons apparently wanted plaintiffs to work with his new attorney. In the presence of an associate of her firm, defendant Zellner accepted Wendt's call and placed it on a speakerphone. Zellner then allegedly told Wendt (1) that during plaintiffs' employment with her, they had submitted "a $45,000 bill for five pages of worthless memorandum"; (2) that Lyons should not contact plaintiffs; and (3) that plaintiffs were "devious" and that they would try to "get into the back door" when charging Lyons for their services. Plaintiffs' complaint further alleged that later on May 9, 1995, Lyons "left a message on their answering machine stating that he wanted to know whether Plaintiffs were going to stick him with a $45,000.00 bill." Lyons did not hire plaintiffs to assist him in the preparation of his case, and their "business relationship and reputation" with Lyons were "never the same" after Zellner's telephone conversation with Wendt. On March 19, 1996, plaintiffs' attorney sent defendants a letter in an attempt to negotiate a settlement regarding payments allegedly owed to them. On March 21, 1996, defendants responded with a letter to plaintiffs' attorney (March 21 letter), in which Zellner stated: "My only settlement offer to you in regard to the [plaintiffs] is that I will not seek sanctions against you if you do not file this lawsuit. Your clients will be countersued for their fraudulent misrepresentations to this firm about their prior unauthorized practice of law ***." On May 6, 1996, plaintiffs filed their complaint against defendants. Plaintiffs alleged that defendant Zellner had committed slander per se, slander per quod, and commercial disparagement during her May 9, 1995, telephone conversation with Wendt. Additionally, plaintiffs sought damages against defendants for intimidation and extortion based on the March 21 letter. On June 7, 1996, defendants filed a motion to dismiss pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1994)). On the same day, defendants filed a motion for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) based on the intimidation and extortion counts of plaintiffs' complaint. On July 16, 1996, defendants filed a motion to stay plaintiffs' discovery pending the trial court's decision with respect to their section 2--615 motion. On July 18, 1996, the trial court granted defendants' motion to stay plaintiffs' discovery. On August 6, 1996, plaintiffs filed their response to defendants' section 2--615 motion to dismiss. Plaintiffs argued that defendants' motion to dismiss was improperly brought pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1994)) because it impermissibly raised "affirmative factual defenses based upon extrinsic facts unsupported by affidavit." On the same date, plaintiffs also filed a motion for sanctions against defendants pursuant to Rule 137 (155 Ill. 2d R. 137). On September 30, 1996, the trial court granted defendants' section 2--615 motion to dismiss plaintiffs' complaint. The trial court found that count I (slander per se) was subject to the innocent construction rule; count II (slander per quod) was insufficiently pleaded; count III (commercial disparagement) was not a recognized cause of action; and count IV (intimidation) and count V (extortion) were subject to absolute privilege. The trial court also denied each parties' motions for Rule 137 sanctions. In a subsequent order of October 7, 1996, the trial court stated that its dismissal of plaintiffs' complaint was "with prejudice." (Emphasis in original.) Additionally, the trial court denied plaintiffs' oral motion for discovery for purposes of amending their complaint. Plaintiffs and defendants thereafter filed their respective appeal and cross-appeal. On appeal, plaintiffs contend that the trial court erred in (1) granting defendants' motion to dismiss; (2) barring them from conducting any discovery prior to its ruling on the motion to dismiss; (3) denying their oral motion to conduct discovery for purposes of amending their complaint; (4) determining that Zellner's allegedly defamatory statements were capable of an innocent construction; and (5) finding that allegations of intimidation and extortion were governed by the doctrine of absolute privilege. Defendants contend in their cross-appeal that the trial court erred in denying their motion for sanctions. I Plaintiffs' first contention on appeal is that the trial court erred in granting defendants' section 2--615 motion to dismiss. According to plaintiffs, defendants' motion was improper because it "impermissibly raised affirmative factual defenses based upon extrinsic facts unsupported by affidavit." In other words, plaintiffs contend that it was improper for defendants to raise the affirmative defenses of innocent construction and absolute privilege in their section 2--615 motion. As such, the trial court erred in granting defendants' improper motion to dismiss. To examine this contention fully, we must first discuss the differences between a section 2--615 motion and a section 2--619 motion. A Our supreme court has recently counseled that "meticulous practice" dictates that parties specifically, and properly, designate whether their motions to dismiss are pleaded pursuant to section 2--615 or section 2--619 of the Code (735 ILCS 5/2--615, 2- -619 (West 1994)). See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). The misdesignation of a motion to dismiss, however, is not always fatal to the movant's right to prevail. Scott Wetzel Services v. Regard, 271 Ill. App. 3d 478, 481 (1995). Reversal may be required if the nonmovant is prejudiced by the movant's improper motion practice. See Illinois Graphics, 159 Ill. 2d at 484; Buais v. Safeway Insurance Co., 275 Ill. App. 3d 587, 589 (1995). Here, plaintiffs' complaint was dismissed pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1994)). Section 2--615 provides for dismissal for "defects in [the] pleadings" where the complaint is "substantially insufficient in law." 735 ILCS 5/2-- 615 (West 1994). Motions to dismiss pursuant to this section attack only the legal sufficiency of the complaint. Bryson v. New America Publications, Inc., 174 Ill. 2d 77, 86 (1996). As such, a section 2--615 motion "does not raise affirmative factual defenses but alleges only defects on the face of the complaint." Bryson, 174 Ill. 2d at 86. A reviewing court must accept as true all well- pleaded facts and reasonable inferences that may be drawn therefrom (Bryson, 174 Ill. 2d at 86) and determine whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, "sufficiently set forth a cause of action on which relief may be granted" (Brock v. Anderson Road Ass'n, 287 Ill. App. 3d 16, 20 (1997)). A claim should not be dismissed unless it appears that no set of facts can be proved that would entitle the plaintiff to recovery. Bryson, 174 Ill. 2d at 86-87. In contrast, section 2--619(a)(9) of the Code allows for dismissal on the pleadings if "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9) (West 1994). Again, all well-pleaded facts are deemed admitted. Brock, 287 Ill. App. 3d at 21. However, the moving party under section 2--619 "admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim." Brock, 287 Ill. App. 3d at 21. The granting of either a section 2--615 or a section 2--619 motion to dismiss is reviewed de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993); Brock, 287 Ill. App. 3d at 21. Thus, it is apparent that a motion to dismiss under section 2- -615 differs significantly from a motion for involuntary dismissal under section 2--619. A section 2--615 motion is solely concerned with defects on the face of the complaint. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 8 (1992); Yu v. Kobayashi, 281 Ill. App. 3d 489, 492 (1996). In contrast, a section 2--619 motion admits the legal sufficiency of the complaint (Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530 (1995)), but asks for a dismissal based on other affirmative matters of law or easily proved issues of fact (Yu, 281 Ill. App. 3d at 492; Harris v. News-Sun, 269 Ill. App. 3d 648, 650 (1995)). Because of these differences, affirmative defenses are only generally properly pleaded in a section 2--619 motion, where the legal sufficiency of the complaint is admitted. Raising such defenses in a section 2--615 motion would completely contradict the purpose of bringing such a motion, where the movant is expressly challenging the sufficiency of the complaint itself. Thus, affirmative defenses may not be raised in a section 2--615 motion. Bryson, 174 Ill. 2d at 86; Illinois Graphics, 159 Ill. 2d at 484-85. B Despite these principles, the Appellate Court, First District, has repeatedly recognized that trial courts may apply the innocent construction rule when deciding a motion to dismiss brought pursuant to section 2--615. See, e.g., Taradash v. Adelet/Scott- Fetzer Co., 260 Ill. App. 3d 313 (1993); Heerey v. Berke, 188 Ill. App. 3d 527, 530 (1989). The rationale of these decisions seems to be that, while "the question of whether a statement is reasonably understood as defamatory is generally a question of fact for the jury, it is nevertheless the role of the court to determine, in the first instance, if the alleged defamatory remark is reasonably susceptible to an innocent construction." Heerey, 188 Ill. App. 3d at 530; see Berkos v. National Broadcasting Co., Inc., 161 Ill. App. 3d 476, 485 (1987). In other words, even though innocent construction is an affirmative defense and would normally only be raised in a section 2--619 motion, a court may review it under a section 2--615 motion because of the nature of the cause of action and the defense. Only the court may determine whether an allegation is capable of an innocent construction, and that determination can be made from the four corners of the complaint. As such, the first district has concluded that pleading innocent construction as an affirmative defense in a section 2--615 motion is proper. We find this reasoning to be persuasive. Therefore, we hold that trial courts may properly apply the innocent construction rule when ruling on both section 2--615 and section 2--619 motions to dismiss. Contrary to plaintiffs' contention, both in their brief and at oral argument, this court has never held that the innocent construction rule may only be applied in cases involving a section 2--619 motion. Plaintiffs' citations to Cartwright v. Garrison, 113 Ill. App. 3d 536, 540 (1983), and Kilbane v. Sabonjian, 38 Ill. App. 3d 172, 175 (1976), are misplaced. In both cases, we held that whether allegedly defamatory language was subject to the innocent construction rule could properly be considered under a motion for involuntary dismissal. Cartwright, 113 Ill. App. 3d at 540 (innocent construction rule properly considered under section 48(1)(i) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48(1)(i) (now 735 ILCS 5/2--619(a)(9) (West 1994)))); Kilbane, 38 Ill. App. 3d at 175 (same). We did not hold that the innocent construction rule can only be considered under section 2--619 or that it may never be considered under section 2--615. Accordingly, defendants did not improperly raise the affirmative defense of innocent construction in their section 2--615 motion to dismiss. C Even though defendants properly raised their affirmative defense of innocent construction, their motion to dismiss was insufficient for another reason. In their motion to dismiss, defendants argued, at some length, that the comments Zellner allegedly made during her telephone conversation with Wendt were in the context of a "billing dispute." According to defendants, it was this context which made Zellner's remarks merely a matter of opinion and not capable of rising to the level of slander per se. Defendants did not attach any affidavits in support of their motion to dismiss. However, plaintiffs did not allege in their complaint that Wendt called Zellner in regard to a billing dispute between plaintiffs and defendants. Moreover, there is nothing in the pleadings that indicates that Wendt knew or should have known of such a dispute when she called Zellner. All that plaintiffs alleged in their complaint was that Wendt called Zellner in order to obtain plaintiffs' telephone number for Lyons. Thus, by arguing in their motion to dismiss that the Zellner/Wendt telephone conversation occurred during a "billing dispute" and that this context frames Zellner's comments as anything but slander per se, defendants were pleading facts which were extrinsic to plaintiffs' complaint. It is axiomatic that, in ruling on a section 2--615 motion, the trial court may consider only the allegations of the complaint and may not consider other supporting material. Bryson, 174 Ill. 2d at 91. Thus, facts relating to the "billing dispute" as alleged by defendants cannot properly be considered under their section 2-- 615 motion. As a result, we may consider whether defendants' motion would be proper under section 2--619. See Bryson, 174 Ill. 2d at 92. It is equally well settled that under section 2--619 any grounds for dismissal not appearing on the face of the complaint must be supported by affidavit. 735 ILCS 5/2--619(a) (West 1994); Illinois Graphics, 159 Ill. 2d at 485. Because the extrinsic facts defendants alleged in their motion to dismiss are crucial to their arguments yet were not submitted via affidavit, their motion to dismiss, even when construed as a section 2--619(a)(9) motion, is legally insufficient. See Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 343 (1994) (trial court may not consider matters unsupported by affidavit). The trial court should not have acquiesced in this improper motion practice. See Summers v. Village of Durand, 267 Ill. App. 3d 767, 768 (1994). In order to determine whether a reversal is necessary, we must now examine whether plaintiffs were prejudiced by the trial court's error. See Schwanke, Schwanke & Associates v. Martin, 241 Ill. App. 3d 738, 744 (1992). If plaintiffs were prejudiced by defendants' improper motion practice, we may either "reverse without addressing the merits of the motion as argued on appeal" (Eddings v. Dundee Township Highway Commissioner, 135 Ill. App. 3d 190, 200 (1985)), or, in the interests of judicial economy, we may review the merits of the dismissal (Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1, 9 (1991)). D In order to determine whether plaintiffs were prejudiced, we must examine the impact of defendants' improper motion to dismiss. The record does not indicate whether the trial court expressly considered whether the Zellner/Wendt telephone conversation occurred in the context of a "billing dispute." However, the trial court dismissed plaintiffs' cause of action with prejudice as a result of its review of defendants' improperly pleaded motion to dismiss. We believe that plaintiffs therefore suffered sufficient prejudice to allow us either to reverse the trial court's decision (Eddings, 135 Ill. App. 3d at 200) or, in the interests of judicial economy, to consider the merits of the dismissal (Bank of Northern Illinois, 223 Ill. App. 3d at 9). In the interests of judicial economy, we will review the merits of the dismissal of each of the counts of plaintiffs' complaint. See Bank of Northern Illinois, 223 Ill. App. 3d at 9. E Defendants' motion to dismiss was labeled as a section 2--615 motion and was treated as such by the parties and the trial court. It sought the dismissal of plaintiffs' complaint for "failure to make a claim for which relief may be granted." Accordingly, the question on review is "whether sufficient facts are contained in the pleadings which, if established, could entitle [plaintiffs] to relief." Illinois Graphics, 159 Ill. 2d at 488. A cause of action should be dismissed when it is apparent that no set of facts can be proved that would entitle the nonmovant to relief. Illinois Graphics, 159 Ill. 2d at 488. 1 THE SLANDER PER SE COUNT In count I of their complaint, plaintiffs alleged that Zellner had committed slander per se during her conversation with Wendt. Specifically, plaintiffs pointed to Zellner's alleged statements that they had submitted "a $45,000 bill for five pages of worthless memorandum," that Lyons should not contact them, and that they were "devious" and "would try to get into the back door." According to plaintiffs, these alleged statements constituted slander per se because they pertained to plaintiffs' "profession and employment." The trial court found the statements "susceptible of an innocent construction as a matter of law" and dismissed the per se count. The four categories of statements which are considered actionable per se include: "(1) [W]ords that impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business." Bryson, 174 Ill. 2d at 88. Even if words fall into a per se category, the claim will not be actionable if the words are capable of an innocent construction. Bryson, 174 Ill. 2d at 90. Under the innocent construction rule, courts consider the statement "in context, giving the words, and their implications, their natural and obvious meaning." Bryson, 174 Ill. 2d at 90. Importantly, only a reasonable innocent construction will negate the per se effect of an allegedly defamatory statement. Bryson, 174 Ill. 2d at 90. Courts decide, as a matter of law, whether an allegedly defamatory statement is reasonably capable of being innocently construed. Bryson, 174 Ill. 2d at 90. Plaintiffs argue that Zellner's alleged statements fall into the fourth per se category, as words which impute their lack of abilities as paralegals. We agree. In context, Zellner's allegedly defamatory statements were obviously intended to describe and denigrate plaintiffs' abilities as paralegals. She allegedly called plaintiffs' work product "worthless," labeled them as "devious," and, in an apparent attempt to further impugn their character, told Wendt that they would try to "get into the back door" during their billing process. The natural and obvious meaning of these words prejudices plaintiffs and imputes a lack of ability in their profession as paralegals. See Bryson, 174 Ill. 2d at 88. Despite counsel's humorous and creative attempt at oral argument to the contrary, the natural and obvious meanings of "worthless" and "devious" are negative. Webster's Dictionary defines "devious" as "hard to pin down or bring to agreement" and lists as synonyms "shifty, tricky, unscrupulous, [and] unfair." Webster's Third New International Dictionary 619 (1986). Moreover, Webster's defines "worthless" as "lacking value or material worth" and lists "useless" as a synonym. Webster's Third New International Dictionary 2637 (1986). Counsel's alternative definitions of these words at oral argument were accurate, but the mere existence of other dictionary definitions does not automatically indicate an innocent construction. See Bryson, 174 Ill. 2d at 93. Rather, under the innocent construction rule, we are neither required to "strain to find an unnatural but possibly innocent meaning for words where the defamatory meaning is far more reasonable," nor are we required to "espouse a na |