Heerey v. Berke

• Decision Date: 06 September 1989
• Docket Number: No. 1-87-1836,1-87-1836
• Citation: 544 N.E.2d 1037,136 Ill.Dec. 262,188 Ill.App.3d 527
• Court: United States Appellate Court of Illinois
• Parties: , 136 Ill.Dec. 262 Bernard HEEREY, Plaintiff and Counterdefendant, v. Benitta BERKE, et al., Defendants (Benitta Berke, Counter-Plaintiff and Third-Party Plaintiff-Appellant; Nathaniel I. Grey, et al., Third-Party Defendants-Appellees).

Page 1037

544 N.E.2d 1037

188 Ill.App.3d 527, 136 Ill.Dec. 262

Bernard HEEREY, Plaintiff and Counterdefendant, v. Benitta BERKE, et al., Defendants (Benitta Berke Counter-Plaintiff and Third-Party Plaintiff-Appellant; Nathaniel I. Grey et al., Third-Party Defendants-Appellees).

No. 1-87-1836.

Appellate Court of Illinois First District, Third Division.

Sept. 6, 1989.

Steven R. Dobrofsky, Chicago, for plaintiff and counterdefendant.

Richard H. Victor, Chicago, for defendants.

Justice RIZZI delivered the opinion of the court:

Third-Party-Plaintiff, Benitta Berke (Berke), appeals from an order of the circuit court of Cook county dismissing with prejudice counts VI and VII of her amended Third-Party complaint. Counts VI and VII alleged that a letter drafted and published by Third-Party-Defendants, Nathaniel I. Grey (Grey), an attorney, and Foss, Schuman, Drake & Bernard (Foss), a law partnership, constituted libel per quod and libel per se. Berke argues on appeal that she sufficiently alleged causes of action for libel per quod and libel per se. Berke additionally argues that (1) it was error for the trial court to apply the innocent construction rule to count VI, the libel per quod action, when it ruled on the Section 2-615 motion to dismiss and (2) that the trial court misapplied the innocent construction rule when it dismissed count VII, the libel per se action. We affirm.

The following facts were alleged in counts VI and VII of the amended Third-Party complaint. Berke is an attorney, businesswoman, and owner of property located at 1161 North State Street in Chicago. Since 1983, Heerey has owned the adjacent and contiguous property located at 1159 North State Street. On May 7, 1985, Berke wrote Heerey demanding the removal of an electrical conduit which constituted a trespass on her property. In response, on May 9, 1985, Grey, of counsel to Foss, wrote to Benitta Berke on behalf of Heerey, with copies sent to Joseph Berke, Lou Wolf and Bernard Heerey, the following:

Please be sure that any attempts made to ownership of the property you claim to own are in fact legal and not extralegal. In recent months, there was [an] arson attempt in the first floor of the building at 1159 North State Street, and I need to be sure that there are no covert threats and extralegal self-help to be inferred from your letter of May 7, 1985.

This May 9, 1985 letter from Grey is the subject of the alleged libel. Grey and Foss presented separate motions to dismiss counts VI and VII of the complaint for failure to state causes of action for libel per quod and libel per se. The trial court dismissed both counts. This appeal followed.

On appeal, Berke argues that the trial court erred in dismissing count VII. It is Berke's position that the trial court misapplied the innocent construction rule to count VII, the libel per se action. We disagree.

The trial court may apply the innocent construction rule when ruling on motions to dismiss filed pursuant to both section 2-615 and section 2-619. Berkos v. National Broadcasting Co. (1987), 161 Ill.App.3d 476, 489, 113 Ill.Dec. 683, 688-90, 515 N.E.2d 668, 673-75; Renard v. Columbia Broadcasting System, Inc. (1984), 126 Ill.App.3d 563, 566, 82 Ill.Dec. 17, 20, 467 N.E.2d 1090, 1093. When ruling on a motion to dismiss, the trial court accepts as true all well-pled facts, as well as all reasonable inferences favorable to the party opposing the motion, which may be drawn from the facts. Richardson v. Dunbar (1981), 95 Ill.App.3d 254, 255, 50 Ill.Dec. 756, 758, 419 N.E.2d 1205, 1207. The court does not, however, accept as true mere conclusions of law or fact. Payne v. Mill Race Inn (1987), 152 Ill.App.3d 269, 273, 105 Ill.Dec. 324, 327, 504 N.E.2d 193, 196. The complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle the plaintiff to relief. Yardley v. Yardley (1985), 137 Ill.App.3d 747, 752, 92 Ill.Dec. 142, 146, 484 N.E.2d 873, 877. On review, the allegations of the complaint are to be interpreted in the light most favorable to the plaintiff. Richardson, 95 Ill.App.3d at 256, 50 Ill.Dec. 756, 419 N.E.2d 1205. Although 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. Berkos, 161 Ill.App.3d at 485, 113 Ill.Dec. 683, 515 N.E.2d 668.

Defamatory writing is either libelous per se or per quod. Bruck v. Cincotta (1978), 56 Ill.App.3d 260, 263, 13 Ill.Dec. 782, 785, 371 N.E.2d 874, 877. An action for defamation based upon libel per se requires that the words used by the defendant are in and of themselves so obviously and materially harmful to the plaintiff that a showing of special damages or the injurious character is unnecessary. Bruck, 56 Ill.App.3d[188 Ill.App.3d 531] at 264, 13 Ill.Dec. 782, 371 N.E.2d 874; Owen v. Carr (1986), 113 Ill.2d 273, 277, 100 Ill.Dec. 783, 785, 497 N.E.2d 1145, 1147. To be defamatory per se, the words themselves, without the aid of extrinsic facts to explain them, must be so obviously and inevitably hurtful that damage is presumed. Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348, 243 N.E.2d 217, 220. A writing is libelous per se and is actionable without proof of special damages if it contains a false statement which imputes to the plaintiff any of the following: (1) commission of a crime; (2) infection with a loathsome disease; (3) unfitness or want of integrity in performing the duties of an office or employment; (4) words which adversely reflect on a particular party's abilities in his or her business, trade or profession. Owen, 113 Ill.2d at 277, 100 Ill.Dec. 783, 497 N.E.2d 1145; Allen v. Ali (1982), 105 Ill.App.3d 887, 889, 61 Ill.Dec. 678, 679-80, 435 N.E.2d 167, 168-69; Britton v. Winfield Public Library (1981), 101 Ill.App.3d 546, 548, 57 Ill.Dec. 100, 102, 428 N.E.2d 650, 652.

There is no general rule defining what words are defamatory, and each case must be decided based upon its own facts. Bruck v. Cincotta (1978), 56 Ill.App.3d 260, 266, 13 Ill.Dec. 782, 787, 371 N.E.2d 874, 879. In order for words charging the commission of a crime to be libelous per se, the offense must be indictable, involve moral turpitude and be punishable by death or imprisonment rather than a fine. Bruck, 56 Ill.App.3d at 264, 13 Ill.Dec. 782, 371 N.E.2d 874. To constitute libel per se, however, the offensive accusation need not state the commission of a crime in terms of art or with the particularity of an indictment. Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348, 243 N.E.2d 217, 220.

In Chapski v. Copley Press (1982), 92 Ill.2d 344, 352, 65 Ill.Dec. 884, 888, 442 N.E.2d 195, 199, our supreme court gave the following explanation of how to apply the innocent construction rule to determine whether language constitutes libel per se:

A written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff. Chapski, 92 Ill.2d at 352, 65 Ill.Dec. 884, 442 N.E.2d 195.

Although statements made in the form of insinuation, allusion, irony...