Dent v. Constellation Newenergy, Inc.
Decision Date | 25 November 2020 |
Docket Number | No. 1-19-1652,1-19-1652 |
Citation | 2020 IL App (1st) 191652,175 N.E.3d 742 |
Parties | Richard L. DENT and RLD Resources, LLC, Petitioners-Appellants, v. CONSTELLATION NEWENERGY, INC. ; CNE Gas Supply, LLC; Constellation Energy Gas Choice, LLC; and Constellation New Energy-Gas Division, LLC, Respondents-Appellees. |
Court | United States Appellate Court of Illinois |
Paul G. Neilan, of Law Offices of Paul G. Neilan, P.C., of Highland Park, for appellants.
Terri L. Mascherin and Christian L. Plummer, of Jenner & Block LLP, of Chicago, for appellees.
¶ 1 Petitioners, Richard Dent and RLD Resources, LLC (RLD), appeal the circuit court's dismissal with prejudice of their petition for presuit discovery pursuant to Illinois Supreme Court Rule 224 (eff. Jan. 1, 2018). The petition sought disclosure from respondents, Constellation NewEnergy, Inc.; CNE Gas Supply, LLC; Constellation Energy Gas Choice, LLC; and Constellation New Energy-Gas Division, LLC (collectively, Constellation), of the names and addresses of three unidentified people who published allegedly defamatory statements about Dent that caused respondents to terminate their contractual arrangements with petitioners.
¶ 2 On appeal, petitioners argue that the dismissal of their petition should be reversed because the trial court misapplied the law and erroneously treated respondents' motion to dismiss for failure to state a claim as a motion for summary judgment. Specifically, petitioners argue that they met their burden to show this discovery was necessary because they pled sufficient allegations of a defamation claim to overcome a motion to dismiss for failure to state a claim.
¶ 3 For the reasons that follow, we reverse the judgment of the circuit court.1
¶ 5 On March 18, 2019, petitioners filed a verified petition for presuit discovery against Constellation. Petitioners alleged that prior to October 2018, they were party to several energy supply and marketing contracts with Constellation and all of these contracts were terminable at will.
¶ 6 Petitioners alleged that, in September 2018, two attorneys representing Constellation—Grace Speights and Theos McKinney III—visited petitioners' office and told Dent that certain allegations had been made against him. Specifically, a woman, who was a Constellation employee and whom Constellation's attorneys refused to identify (Person A), alleged that Dent, in June 2016 at a Constellation-sponsored golfing event in the Philadelphia area, said to her that "she had a butt like a sister." Person A also alleged that Dent, in July 2018 at another Constellation-sponsored pregolf party on the patio of the Chicago Shedd Aquarium, groped her. Furthermore, in connection with the same July 2018 golf event, Constellation had arranged for the distribution of guest passes, polo shirts and similar items at the Marriott Hotel on Adams Street in Chicago, and a man, whom Constellation's attorneys refused to identify (Person B), told Constellation that he had observed Dent at the hotel collecting the golf materials and that Dent was drunk and disorderly at that time.
¶ 7 The petition alleged that Dent told Constellation's attorneys at that September 2018 meeting that all of these allegations were completely false and that the attorneys responded that Constellation would review its contractual arrangements with Dent and RLD as a result of these allegations. On October 1, 2018, Constellation sent Dent and RLD a notice terminating all of Constellation's contracts with them. This termination notice was included as an exhibit to the petition. Another petition exhibit, a December 2019 letter from Constellation's counsel to petitioners' counsel, stated that Constellation had hired a third party, whom Constellation refused to identify (Person C),2 to investigate the claims against Dent. This letter also stated that Dent's denials were not credible and that the investigation concluded that the reports accurately described behavior that violated the company's code of conduct, was outside the norms of socially acceptable behavior, and demeaned Constellation employees. The petition alleged, on information and belief, that Person C investigated the claims against Dent before the termination notice was issued and that Person C published or republished to Constellation the statements of Persons A and B.
¶ 8 The petition concluded with allegations that the statements published by Persons A, B, and C concerning Dent were made as statements of fact, were false, were not privileged, and were the cause in fact and proximate cause of Constellation's termination of all its contractual arrangements with petitioners. Furthermore, the statements imputed to Dent acts of moral turpitude and impugned his character, reputation and good name. The petition asserted that Persons A, B, and C may be responsible in damages to petitioners and that this presuit discovery was necessary because Constellation refused to provide to petitioners the names and addresses of Persons A, B, and C.
¶ 9 Constellation moved to dismiss the petition under section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2018) ), arguing that the petition was substantially insufficient because the alleged defamatory statements were qualifiedly privileged and that petitioners failed to allege facts showing that the privilege was abused. In this motion, Constellation disclosed that Person B was an employee and made the alleged defamatory statements, which described his observations of Dent on the day in question, in the course of Constellation's investigation of Person A's allegations. Constellation also disclosed that Persons C were the attorneys Constellation retained to investigate Person A's allegations.
¶ 10 Specifically, Constellation argued that the alleged defamatory statements were qualifiedly privileged as a matter of law as statements made to an employer by a victim of sexual harassment concerning inappropriate touching experienced while at work (Person A), statements made to the employer by a witness (Person B) as part of Constellation's investigation consistent with its legal obligations, and statements of the investigators/lawyers (Persons C) relating their findings to Constellation. Constellation also argued that petitioners failed to allege facts sufficient to overcome this qualified privilege, i.e. , by alleging facts that, if true, would suffice to demonstrate a direct intent to injure petitioners or a reckless disregard for their rights.
¶ 11 Furthermore, Constellation urged the court to dismiss the petition with prejudice and not allow petitioners leave to replead because, according to Constellation, any amendment would be futile where Constellation had retained third-party counsel to conduct an independent, attorney-client privileged investigation of the allegations, that investigation included meeting with Dent to inform him of the allegations and obtain his side of the story, Constellation weighed the evidence and decided in good faith to credit its employees' version of events, there was no basis to infer any knowledge of falsity or reckless disregard for the truth, and Constellation did not disclose the findings of the investigation to any third party, other than in privileged communications with its lawyers.
¶ 12 In their response, petitioners argued that Constellation's section 2-615 motion to dismiss should be denied on procedural and substantive grounds. First, although Constellation presented its motion as a section 2-615 motion to dismiss, which attacks only the legal sufficiency of the complaint and defects apparent on the face of the complaint, Constellation improperly introduced new facts regarding Persons B and C and evidence that attacked the factual, rather than the legal, sufficiency of the Rule 224 petition. Constellation also improperly raised the affirmative defense of qualified privilege in its section 2-615 motion to dismiss. Second, Constellation's motion failed under section 2-615 of the Code because the court must accept as true all well-pleaded facts and any reasonable inferences arising therefrom and should not dismiss the Rule 224 petition unless it was apparent that no set of facts could be proved that would entitle petitioners to a judgment in their favor. Petitioners argued that their alleged facts—that three unidentified people fabricated and published completely false and defamatory stories about Dent and then published those stories to a third-party—are more than sufficient to state a prima facie defamation case and defeat any qualified privilege claim.
¶ 13 In its reply, Constellation argued that petitioners' allegations, taken as true, established that the allegedly defamatory statements were qualifiedly privileged because all of the statements were made by an employee victim, a witness, and investigators as part of an employer's sexual harassment investigation and that petitioners failed to plead facts showing that the alleged defamatory statements were intentionally false.
¶ 14 In June 2019, the trial court dismissed petitioners' Rule 224 petition with prejudice, determining sua sponte to dispose of the petition for failure to comply with Rule 224. Specifically, the court, citing Low Cost Movers, Inc. v. Craigslist, Inc. , 2015 IL App (1st) 143955, 398 Ill.Dec. 926, 45 N.E.3d 357, found that a Rule 224 petition was an inappropriate vehicle to attempt to learn the names of Persons A, B, and C because petitioners knew the identities of the Constellation respondents and their attorneys, Rule 224 was satisfied once a petitioner has identified someone who may be sued, and the Constellation respondents may be liable for damages.
¶ 15 Petitioners moved the court to reconsider its dismissal of the petition with prejudice, arguing that their Rule 224 petition was not the type of impermissible fishing expedition disfavored by the law because petitioners...
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Dent v. Constellation NewEnergy, Inc.
...circuit court dismissed the petition with prejudice. The Appellate Court, First District, reversed and remanded. 2020 IL App (1st) 191652, 448 Ill.Dec. 73, 175 N.E.3d 742.¶ 2 BACKGROUND¶ 3 Petitioners were party to several energy supply and marketing contracts with respondents. Petitioners ......