Hopewell v. Vitullo

• Decision Date: 22 September 1998
• Docket Number: No. 1-97-3946,1-97-3946
• Citation: 299 Ill.App.3d 513,701 N.E.2d 99
• Parties: , 233 Ill.Dec. 456, 14 IER Cases 657 Earl W. HOPEWELL, Plaintiff-Appellant and Cross-Appellee, v. Louis VITULLO and Wildman, Harrold, Allen and Dixon, Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

Page 99

701 N.E.2d 99

299 Ill.App.3d 513, 233 Ill.Dec. 456,

14 IER Cases 657

Earl W. HOPEWELL, Plaintiff-Appellant and Cross-Appellee, v. Louis VITULLO and Wildman, Harrold, Allen and Dixon Defendants-Appellees and Cross-Appellants.

No. 1-97-3946.

Appellate Court of Illinois,

First District, Second Division.

Sept. 22, 1998.

Niro, Scavone, Haller & Niro, Chicago (Paul K. Vickrey and James P. Murphy, of counsel), for Appellant.

Deutsch, Levy & Engel, Chartered, Chicago (Paul M. Levy, Phillip J. Zisook and Brian D. Saucier, of counsel), Donohue, Brown, Matthewson & Smyth, Chicago (Donald J. Brown, Jr., of counsel), for Appellees.

Justice RAKOWSKI delivered the opinion of the court:

Plaintiff Earl W. Hopewell (Hopewell) sued defendant Louis Vitullo (Vitullo), a partner of defendant Wildman, Harrold, Allen and Dixon (WHAD), for defamation. The trial court granted defendants' motion to dismiss with prejudice pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), on the basis that the alleged defamatory statement was nonactionable opinion. The trial court also granted defendants' motion to dismiss without prejudice on the basis that Hopewell failed to plead sufficient facts establishing that Vitullo made the alleged defamatory statement with actual malice. Hopewell filed a motion for reconsideration and leave to file a second amended complaint, which the trial court denied. Hopewell appeals, and we have jurisdiction pursuant to Supreme Court Rules 301 and 303. 155 Ill.2d Rs. 301, 303.

Hopewell raises the following issues: (1) whether the alleged defamatory statement--"fired because of incompetence"--is actionable; (2) whether he pled sufficient facts establishing that Vitullo made the alleged defamatory statement with actual malice; and (3) whether defendants abused their qualified privilege. Vitullo and WHAD filed a motion to dismiss Hopewell's appeal, raising the issue of whether Hopewell's postjudgment motion tolled the period for filing a notice of appeal pursuant to Supreme Court Rule 303. In addition, Vitullo and WHAD cross-appeal and raise the issue of whether they were cloaked with an absolute privilege. For the following reasons, we affirm.

I. FACTS

In February of 1992, Hopewell was hired to be treasurer and chief financial officer (CFO) of the Carol Moseley Braun for U.S. Senate Committee (the Committee). Under the employment contract, the Committee was to compensate Hopewell $7,000 per month for his services. Vitullo was a Committee member, adviser to the Senator, and lawyer for the Senator and the Committee.

In March 1996, Senator Braun sent a memorandum to Hopewell informing him that, from that point on, he would be working on a volunteer basis. Refusing to work on a volunteer basis, Hopewell filed a lawsuit against the Senator and the Committee, charging the Senator and the Committee with breach of contract, retaliatory discharge, and violation of the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 1996)). The complaint in that suit specifically alleged, inter alia, that Hopewell objected to certain campaign finance irregularities and that he was retaliatorily discharged as a result. It also averred that the Committee owed him approximately $177,000 of unpaid wages and that the Senator owed him approximately $20,000 for work performed in connection to the Senator's personal finances.

Upon filing the above complaint, Hopewell and his attorney also commented to the press regarding the Senator's campaign finances. In turn, the Senator directed Vitullo to answer the press' questions regarding Hopewell's lawsuit. The following day, the Chicago Tribune reported on the accusations against the Senator and the Committee while also including Vitullo's response that Hopewell "was fired because of incompetence." Hopewell answered Vitullo's comment by filing the instant lawsuit against Vitullo and WHAD for defamation.

II. STANDARD OF REVIEW

As mentioned above, the trial court granted defendants' motion to dismiss, which defendants filed under section 2-615 and section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 1992). A motion to dismiss pursuant to section 2-615 "challenges only the legal sufficiency of the complaint and admits the truth of all well-pleaded factual allegations." Anderson v. Vanden Dorpel, 172 Ill.2d 399, 407, 217 Ill.Dec. 720, 667 N.E.2d 1296 (1996). Under a section 2-615 motion, the question is whether the complaint alleges sufficient facts entitling plaintiff to relief. Bryson v. News America Publications Inc., 174 Ill.2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). On the other hand, a motion to dismiss pursuant to section 2-619(a)(9) presents affirmative matters that avoid the legal effect of plaintiff's claim. Golden v. Mullen, 295 Ill.App.3d 865, 869, 230 Ill.Dec. 256, 693 N.E.2d 385 (1997). The question for the court under section 2-619 is "whether there exists a genuine issue of material fact precluding dismissal or, absent an issue of material fact, whether dismissal is proper as a matter of law." Golden, 295 Ill.App.3d at 869, 230 Ill.Dec. 256, 693 N.E.2d 385.

Nevertheless, when reviewing motions to dismiss under either section, the court applies a de novo review. Lawson v. City of Chicago, 278 Ill.App.3d 628, 634, 215 Ill.Dec. 237, 662 N.E.2d 1377 (1996). The court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts in the light most favorable to the plaintiff. Bryson, 174 Ill.2d at 86, 220 Ill.Dec. 195, 672 N.E.2d 1207.

III. DISCUSSION

A. Defendants' Motion To Dismiss Hopewell's Appeal

Initially, we must address defendants' motion to dismiss Hopewell's appeal that was taken with this case. Defendants argue that Hopewell's motion for reconsideration and for leave to file a second amended complaint was insufficient to toll the time period for filing an appeal because it did not request appropriate relief and because it failed to assert an adequate basis for reconsideration. We disagree. Hopewell's motion for reconsideration is the most common type of postjudgment motion recognized by the Illinois Supreme Court; it explained why the case law that the trial court used actually supported a finding in his favor. Andersen v. Resource Economics Corp., 133 Ill.2d 342, 347, 140 Ill.Dec. 390, 549 N.E.2d 1262 (1990); see 735 ILCS 5/2-1203 (West 1996). As such, we conclude that Hopewell's motion qualifies as a postjudgment motion under Rule 303(a) and that it extended the period for filing a notice of appeal. Beck v. Stepp, 144 Ill.2d 232, 240, 162 Ill.Dec. 10, 579 N.E.2d 824 (1991); 155 Ill.2d R. 303(a). Therefore, we deny defendants' motion to dismiss Hopewell's appeal.

B. Whether "Fired Because of Incompetence" is Nonactionable Opinion

Hopewell contends that the trial court erred when it found that the alleged defamatory statement--Hopewell "was fired because of incompetence"--was nonactionable opinion. We disagree.

The defamation action provides redress for false statements of fact that harm reputation. Quinn v. Jewel Food Stores, Inc., 276 Ill.App.3d 861, 865, 213 Ill.Dec. 204, 658 N.E.2d 1225 (1995); Mittelman v. Witous, 135 Ill.2d 220, 239, 142 Ill.Dec. 232, 552 N.E.2d 973 (1989); Doherty v. Kahn, 289 Ill.App.3d 544, 555, 224 Ill.Dec. 602, 682 N.E.2d 163 (1997); 1 M. Polelle & B. Ottley, Illinois Tort Law § 5.01, at 5-2 (2d ed.1998) (hereinafter Illinois Tort Law). " 'A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him.' " Illinois Tort Law § 5.01, at 5-2 to 5-3, citing Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992); see Restatement (Second) of Torts § 559 (1977). Statements published to third parties are defamatory per se if they: "(1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability, in his trade, profession or business." Mittelman, 135 Ill.2d at 238-39, 142 Ill.Dec. 232, 552 N.E.2d 973; Kirchner v. Greene, 294 Ill.App.3d 672, 679, 229 Ill.Dec. 171, 691 N.E.2d 107 (1998).

In this case, the comment that Hopewell was "fired because of incompetence" qualifies as defamatory per se, for it imputes an inability to perform or discharge the duties of office or employment and prejudices Hopewell by imputing a lack of ability in his profession. Hopewell maintains that, since the statement is defamatory per se, it should be considered an actionable statement of fact.

However, Hopewell's argument is misplaced because classification of Vitullo's statement as defamatory per se has no bearing on whether the alleged defamatory statement is actionable. Although a statement falls into a per se category, to be actionable, Hopewell must show that the statement is not protected speech under the first amendment to the United States Constitution (U.S. Const., amend. I). Bryson v. News America Publications, Inc., 174 Ill.2d 77, 99-100, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). This determination is a matter of law for the court to decide. Doherty, 289 Ill.App.3d at 557, 224 Ill.Dec. 602, 682 N.E.2d 163. Prior to 1990, courts "perceived a fundamental distinction between statements of fact and statements of opinion for first amendment purposes." Bryson, 174 Ill.2d at 99, 220 Ill.Dec. 195, 672 N.E.2d 1207. However, in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court rejected this dichotomy between opinion and fact and asserted that there no longer is a separate first amendment privilege for statements of opinion. Milkovich, 497 U.S. at 19, 110 S.Ct. at...