Colucci v. Chicago Crime Commission

• Citation: 31 Ill.App.3d 802,334 N.E.2d 461
• Decision Date: 05 August 1975
• Docket Number: No. 59386,59386
• Parties: Joseph COLUCCI et al., Plaintiffs-Appellants, v. CHICAGO CRIME COMMISSION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 461

334 N.E.2d 461

31 Ill.App.3d 802

Joseph COLUCCI et al., Plaintiffs-Appellants, v. CHICAGO CRIME COMMISSION, Defendant-Appellee.

No. 59386.

Appellate Court of Illinois, First District, Second Division.

Aug. 5, 1975.

Rehearing Denied Sept. 30, 1975.

Jenner & Block, Chicago, for plaintiff-appellants; Thomas P. Sullivan, Russell J. Hoover, Chicago, of counsel.

Kirkland & Ellis, Chicago, for defendant-appellee; Don H. Reuben, Lawrence Gunnels, Keith C. McDole, Chicago, Barbara B. Lounsbury, of counsel.

STAMOS, Justice.

Plaintiff, Joseph Colucci, and Joseph Colucci, doing business as Parkside Motors, filed a three count complaint in the Circuit Court of Cook County based on allegedly defamatory statements made by defendant, Chicago Crime Commission (Commission), a private, not-for-profit corporation. Each of the first two counts sought injunctive relief and $1,000,000 in damages. The third count asked only for $1,000,000 in damages. Defendant filed a series of motions seeking summary judgment (Ill.Rev.Stat.1971, ch. 110, par. 57(2)), and that, for various reasons, plaintiff's complaint be dismissed. (Ill.Rev.Stat.1971, ch. 110, par. 45.) After a series of rulings by the trial court, plaintiff's entire complaint was ultimately dismissed. Plaintiff now appeals.

On October 26, 1967, the Commission published a pamphlet entitled 'The Chicago Crime Commission Spotlight On Organized Crime--The Chicago Syndicate.' (Spotlight I). The report stated:

NORTHWESTERN CANDY & TOBACCO COMPANY . . . is a

wholesaler of candy and tobacco products to retail businesses and vending machine operations. The 1966 Illinois Secretary of State's records reflect George Colucci, president and registered agent, and Vito Colucci, secretary. George Colucci is a brother of Joseph Colucci who was identified before the U.S. Senate Subcommittee on Investigations as a member of the Chicago crime syndicate.

On June 24, 1968, the Commission published 'Spotlight On Legitimate Business and The Hoods--Part II.' (Spotlight II). That report stated:

PARKSIDE MOTORS

This automobile agency is operated by Joseph Colucci, who was identified in 1963 before the United States Senate Permanent Subcommittee on Investigations as a member of the Chicago crime syndicate.

On November 6, 1969, the Commission published 'Spotlight On Legitimate Businesses And The Hoods--Part III.' (Spotlight III). That report begins with this preface:

In October 1967, the Chicago Crime Commission published its 'Spotlight on Organized Crime--The Chicago Syndicate.' In the publication, we listed 42 businesses that have a connection with known members of the crime syndicate. In June 1968, the Commission published its 'Spotlight on Legitimate Businesses and the Hoods, Part III,' listing an additional 30 companies. This is Part III.

The report went on to state:

Businesses Previously Named Which Are Still in Operation.

Parkside Motors

Based on those three reports, plaintiff, on August 3, 1970, filed a three count complaint in the circuit court. In Count I, plaintiff pleaded the three Spotlights; that they were defamatory and untrue; that they were distributed to numerous agencies, governmental officials, private citizens, and business entities; and that, as a direct result, plaintiff's good name and reputation were injured and that plaintiff suffered various other injuries. Plaintiff also alleged as to Spotlight III that it was 'understood by the general public to mean that Parkside was owned or operated by known members of the crime syndicate and that its owner and operator Joseph Colucci was a member of the Chicago Crime syndicate.' As to Spotlights I and II, plaintiff alleged that on information and belief 'the Commission reprinted, xeroxed and in various other ways republished Spotlight and Spotlight--Part II on numerous occasions after August 3, 1969.'

In Count II, plaintiff realleged all of Count I but added that the 'Commission acted with reckless disregard for the truth of such statements.'

In Count III, based on the same three Spotlights, but with additional allegations, plaintiff pleaded what the trial court concluded was a cause of action for interference with Parkside Motor's business expectations.

On February 24, 1972, defendant moved for summary judgment. Defendant argued that any cause of action based on Spotlights I and II was barred by the one year statute of limitations on libel actions and that any action based on Spotlight III was barred by defendant's protected right (privilege) to report utterances of official governmental bodies. Affidavits were filed by both parties on the motion for summary judgment. After briefs were filed by both parties, the trial court an May 5, 1972, dismissed so much of Counts I and II as were based on Spotlights I and II because of the statute of limitations. Plaintiff was then given leave to amend his complaint on the subject of republication. He never did so.

On May 23, 1972, defendant filed a motion to dismiss the entire complaint on the ground of laches. On June 29, 1972, the trial court dismissed all of Counts I and II on the ground of laches, ¹ but denied the motion as to Count III.

On July 18, 1972, defendant moved to dismiss Count III 'on the grounds previously stated' and because it failed to state a cause of action. Defendant argued that Count III was really Counts I and II under another name and that plaintiff should not be allowed to proceed on the same facts under merely another name since to do so would allow circumvention of the one year statute of limitations for libel and the first amendment constitutional requirements governing libel actions. Defendant also argued that plaintiff had not pleaded the essential elements for a malicious interference with contractual rights. Plaintiff responded that he pled interference with business expectations, not contractual rights.

On May 3, 1973, the trial court issued a 'Memorandum Opinion and Ruling on Motion to Dismiss.' In it, the trial judge stated that Counts I and II were dismissed on the ground of laches. ² He found as to Count III: 1) that plaintiff had pled a cause of action for malicious interference with business expectation, not for libel; 2) that because there was no showing of any prejudice to defendant due to plaintiff's delay in bringing the action, the claim was not barred by laches; 3) that plaintiff pled malicious interference with his business expectations, not interference with his contractual relations; 4) that because plaintiff failed to allege a malicious intent on defendant's part in Count III, he failed to state a cause of action denominated malicious interference with business expectations; and 5) that, in any event, defendant's actions were privileged because it was merely reporting governmental proceedings. The trial court concluded that because

of defendant's worthwhile purpose in disseminating the contents of its publication 'Spotlight' as expressed in the complaint (plaintiff disputes this) coupled with plaintiff's tolerance of a second and third publication of the falsehood eliminates any reasonable possibility of plaintiff now alleging facts showing that defendant intentionally And maliciously interfered with plaintiff's business relations.

Consequently, the trial court did not grant leave for plaintiff to amend his complaint, but dismissed Count III, and hence, the remainder of plaintiff's complaint.

This appeal presents three issues: 1) was the trial court correct in dismissing those parts of Counts I and II based on the first two Spotlights on the ground that the statute of limitations had run; 2) was the trial court correct in dismissing those parts of Counts I and II based on Spotlight III because of laches; and 3) was the trial court correct in dismissing Count III for failure to state a cause of action.

I

Counts I and II of plaintiff's complaint sounded in libel. Both counts were based, in part, on Spotlight I, published in October 1967, and on Spotlight II, published in June 1968. However, plaintiff did not file his complaint until August 1970. The statute of limitations for libel is one year. (Ill.Rev.Stat.1971, ch. 83, par. 14.) It is thus clear that based on the initial dates of publication, any libel action based on the first two Spotlights was barred by the statute of limitations.

Plaintiff attempts to toll the statute of limitations with an allegation that 'Plaintiffs are informed and believe that the Commission reprinted, xeroxed and in various other ways republished Spotlight and Spotlight--Part II on numerous occasions after August 3, 1969.'

However, such an allegation is patently insufficient to toll the statute of limitations. Plaintiff's allegations is too vague and general to allow either opposing counsel or the court to intelligently determine where and when republications, if any, took place. It is not an allegation of fact, but quite clearly, a conclusory statement on plaintiff's part.

In defendant's motion for summary judgment, the question of the running of the statute of limitations was directly put in issue. Plaintiff made no attempt to be more specific, but instead, relied on the allegation in his complaint. However, where the statute of limitations in involved, a precise date is necessary. (Larkin v. Gerhardt, 21 Ill.App.2d 122, 157 N.E.2d 426.) In Larkin, the plaintiff sued for alleged libel and slander. In his complaint, the plaintiff had alleged republication of the alleged defamation 'on or about' February 9, 1957. The reviewing court found such an allegation insufficient, stating:

Proof of a precise date is necessary where the statute of limitations is involved. The expression 'on or about' is usually construed as approximately; it is sufficient where a particular date is not material. But where an exact time is essential, as it is here, the expression is too vague. Where the statute of limitations is involved, the expression has been held fatal to the pleadings. In our opinion the date...