Andrews v. At World Properties

• Docket Number: 1-22-0950
• Decision Date: 12 June 2023
• Citation: 236 N.E.3d 540
• Parties: Elizabeth M. ANDREWS and WorldOLuxe, LLC, an Illinois Limited Liability Company, Plaintiffs-Appellants, v. AT WORLD PROPERTIES, LLC, an Illinois Limited Liability Company; Thaddeus J.R. Wong; and Michael P. Golden, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

236 N.E.3d 540

2023 IL App (1st) 1220950

Elizabeth M. ANDREWS and WorldOLuxe, LLC, an Illinois Limited Liability Company, Plaintiffs-Appellants,

v.AT WORLD PROPERTIES, LLC, an Illinois Limited Liability Company; Thaddeus J.R. Wong; and Michael P. Golden, Defendants-Appellees.

No. 1-22-0950

Appellate Court of Illinois, First District, First Division.

Filed June 12, 2023

Appeal from the Circuit Court of Cook County.No. 21 L 11159, The Honorable Thomas More Donnelly, Judge Presiding.

Michael R. Pieczonka, of Pieczonka Law LLC, and Tim Biasiello, both of Park Ridge, for appellants.

Aaron H. Stanton, Victoria R. Collado, Joshua J. Cauhorn, and Brittany A. Martin, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for appellees.

OPINION

PRESIDING JUSTICE LAVINdelivered the judgment of the court, with opinion.

¶ 1 In 2021, plaintiffsElizabeth M. Andrews and her company, WorldOLuxe, LLC, filed a complaint against defendantsAt World Properties, LLC(d/b/a @properties), a real estate company, and its chief executive officers, Thaddeus J.R. Wong and Michael P. Golden, alleging defamation and intentional interference with a business expectancy.The suit was filed after defendants publicly announced Andrews’s termination from @properties as a real estate agent in response to her social media postings regarding the January 6, 2021, Capitol riot in Washington, D.C.Pursuant to the defendants’ motion (see735 ILCS 5/2-619.1(West 2020)), the trial court dismissed the complaint, and plaintiffs now appeal.Plaintiffs argue as they did below that defendants’ publication was false, it was not substantially true, and it was not subject to an innocent construction.We affirm.

¶ 2 BACKGROUND

¶ 3 The following factual recitation has been gleaned from the pleadings.On January 6, 2021, Andrews, an independent contractor real estate broker associated with @properties, attended former President Donald Trump’s "Save America" rally in Washington, D.C.Following Trump’s live speech, Andrews proceeded to the Capitol, where Vice President Mike Pence and Congress were certifying the 2020 presidential election results.Andrews, along with a crowd, was present on the east side of the Capitol building from 1:30 p.m. to about 3:15 p.m. Andrews posted several photographs to her Facebook account, which identified her as an @properties real estate broker and linked to her @properties website.One photograph (Photo 1) features Andrews smiling happily, clad in a Trump stocking cap, and facing the camera some feet from the Capitol building.See infra¶ 39.She holds both hands in the air, donning bunny ears as the crowd behind her throngs at the open doors of the building, pressing toward it.Some appear to be entering the building through the door.In a split screen (Photo 2), she posted this image, alongside another photograph of protesters with flags on a fenced veranda overlooking a bigger crowd below with the caption, "History!It’s not done yet!"¹Infra¶ 39.Last, around 3:15 p.m., Andrews posted a photograph (Photo 3) from a hotel patio bar depicting a glass of champagne, a patio with tables, and unidentified buildings in the background with the caption, "After storming the capital a good glass of champagne is needed!"(Emphasis added.)Infra¶ 39.

¶ 4 The next day, on January 7, @properties received and/or was mentioned in a number of negative communications regarding Andrews’s postings.For example, in a Facebook posting directed to @properties and reposting Andrews’s social media account along with the aforementioned splitscreen Photo 2, one individual commented, "Well, I, for one, will never use the services of a real estate company that employs a person that wants to violently storm the Capital."In another Facebook posting, also directed to @properties, a separate individual again reposted Andrews’s social media account along with Photo 2, then stated "Dont [sic] give these folks your business!" after noting that Andrews had participated in "the domestic terrorist insurgencyand [sic] posted photos of herself at it."In response to this adverse publicity, @properties sent a message via e-mail, Facebook, and Twitter, stating:

"Over the past several hours, @properties has received a tremendous amount of outreach regarding the actions of one of our agents, Libby Andrews, yesterday in Washington, DC.[sic] Effective immediately, @properties is terminating this agent, who acknowledged on social media, that she took part in ‘storming the Capitol.’ @properties does not condone violence, destruction or illegal activities."²(Emphasis added.)

Plaintiffs alleged this message, which was titled "@properties’ official statement on former agent, Libby Andrews," was sent to clients, business associates, and agents of @properties, as well as the general public.

¶ 5Plaintiffs then filed the present complaint alleging six counts of defamation, insofar as the statement inferred that Andrews had engaged in violence, property destruction, and criminal activity, and also that she lacked the character to perform her professional duties.They asserted @properties’ statement harmed Andrews’s reputation.Andrews and her company also alleged two counts of intentional interference with a business expectancy against @properties.As to defamation, plaintiffs alleged that Andrews did not engage in any illegal, violent, or criminal behavior, and therefore, @properties’ message was false.

¶ 6 Instead, plaintiffs maintained Andrews exercised her right to free speech and association by attending the rally.In the complaint, Andrews acknowledged walking to the hotel patio bar after the presidential speech and posting Photo 3, taken from that bar, on social media.Indeed, an enlarged Photo 3 is attached to the complaint, along with the Tweet containing @properties’ January 7 statement.Plaintiffs nonetheless alleged Andrews’s statement—"After storming the capital a good glass of champagne is needed!"—was "innocuous" and simply reflected her "having rushed that day to the nation’s capital"(emphasis in original) and her "participation, along with over a hundred thousand other Americans [sic] citizens, in the dynamic convergence upon the nation’s capital, Washington, D.C., to attend a live Presidential Address."They maintained that @properties’ use of the word "Capitol" thus materially altered Andrews’s statement to convey that she was a lawless rioter, committing "violent, illegal criminal activity" at the Capitol building.Last, plaintiffs alleged that when Andrews posted Photo 3, she was unaware "certain individuals had engaged in unlawful activities" in Washington, D.C., on January 6.

¶ 7Defendants filed a section 2-619.1 motion to dismiss arguing inter alia that @properties’ statement was substantially true and subject to innocent construction.Defendants relied on various exhibits attached to their motion, including Andrews’s federal court defamation complaint against NBCUniversal Media, LLC(NBC), wherein she admitted to being present on the east side of the Capitol building on January 6, 2021, from 1:30 p.m. to about 3:15 p.m. Defendants attached Photos 1 through 3, which Andrews posted, as well as an affidavit from Alexis Albertson, @properties’ director of corporate branding and digital marketing.Albertson verified that she reviewed @properties’ Facebook account on January 7, 2021, which contained social media posts mentioning @properties and Andrews, as an affiliated broker.Albertson averred that the attached Facebook posts from the public (which defendants called Exhibit A) were "a small subset" of many more communications to or about @properties complaining of Andrews’s own Facebook posts advertising her participation in January 6.Seesupra¶ 4.

¶ 8 Last, defendants cited a federal district court case, United States v. Griffin, 549 F. Supp. 3d 49(D.C.2021), discussing the federal statute criminalizing knowingly and unlawfully entering or remaining in a restricted area, like the Capitol building and its grounds, and knowingly engaging in disorderly or disruptive conduct that impedes or disrupts government business in that area.See18 U.S.C. § 1752(2018).³

In addition, defendants attached the criminal complaint in that case, attested to by Metropolitan Police Department DetectiveScott Brown.Detective Brown averred that he was on duty on January 6 and barriers were placed at the east side of the Capitol grounds to delineate the area of permissible first amendment activity from the prohibited, secure areas protecting the governmental process.Congress’s joint session to certify the vote for the 2020 presidential election began around 1 p.m. with the exterior doors of the Capitol building otherwise locked or secured.While the Capitol police attempted to maintain order, around 2 p.m., individuals in the crowd entered restricted grounds and forced entry into the Capitol building by breaking windows and assaulting police officers.The congressional session was suspended around 2:20 p.m.

¶ 9Plaintiffs did not file a counteraffidavit or move to strike Albertson’s affidavit or any of the attached exhibits from defendants’ motion to dismiss.Plaintiffs, in their responsive pleadings, did not dispute that Photos 1 through 3 were taken on January 6, during Andrews’s time at the Capitol between 1 p.m. and 3:15 p.m. or that Photos 1 and 2 depicted the door to the Capitol building being breached.Likewise, they did not dispute Andrews’s location on the east side near the Capitol building on January 6.

¶ 10 Following briefing, the circuit court struck the oral argument hearing date and granted defendants’ motion to dismiss, finding @properties’ statement was not defamatory.This appeal followed.

¶ 11 ANALYSIS

[1, 2]¶ 12Section 2-619.1 of the Code of Civil Procedure(735 ILCS 5/2-619.1(West 2020)) allows a party to file a combined section 2-615andsection 2-619 motion to dismiss.Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶...