Joseph v. Collis

Decision Date26 April 1995
Docket NumberNos. 2-94-0213,2-94-0327,s. 2-94-0213
Citation272 Ill.App.3d 200,649 N.E.2d 964
Parties, 208 Ill.Dec. 604 Joseph JOSEPH et al., Plaintiffs-Appellants, v. Richard L. COLLIS III et al., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

George C. Pontikes, Darlene A. Blaszczak, George C. Pontikes & Associates, Chicago, for Mark Entwistle, Joseph Joseph and Guy Spinelli.

Wylie, Mulherin, Rehfeldt & Varchetto, P.C., Louis A. Varchetto, Stephen A. Rehfeldt, Wheaton, for Colleen T. Horek.

John J. Henely, John J. Henely, Ltd., Chicago, for Alice Doyle.

Kubiesa & Power, Ltd., Kenneth T. Kubiesa, Barbara J. Gosselar, Oakbrook Terrace, for Carol Josefowicz, Donald F. Olson and Janice A. Vanek.

Bauer & Hotte, P.C., James G. Bauer, Elmhurst, for James C. Zakos, Richard L. Collis III, James P. Hershoff and Lawrence E. Schoenbeck.

Justice THOMAS delivered the opinion of the court:

Plaintiffs, Joseph Joseph, Guy Spinelli, and Mark Entwistle, appeal from: (1) the trial court's order dismissing the plaintiffs' amended complaint for libel against defendants Janice Vanek, Donald Olson, Colleen Horek, and Carol Josefowicz; and (2) the trial court's order dismissing the plaintiffs' second amended complaint for libel against defendant James Zakos. These appeals, designated as case No. 2-94-0327 and case No. 2-94-0213, respectively, have been consolidated. We affirm both orders of the trial court.

The record reveals the relevant facts to be as follows. In an attempt to get a referendum question on the ballot for the November 3, 1992, general election in the City of Elmhurst (City), the plaintiffs caused petitions to be circulated for signature by registered voters. The proposed question, if approved by voters, would have reduced the number of aldermen representing each ward in the City from two to one. The plaintiffs caused the question to be filed with the City on or about August 17, 1992. At that time, Spinelli and Entwistle were aldermen of the City.

Upon receipt of the question, an eight-member committee was formed for the purpose of attacking the question. The committee was a voluntary association; it was not associated with any official function of the City. The membership of the committee included Richard Collis, Lawrence Schoenbeck, James Hershoff, Alice Doyle, Vanek, Olson, Horek, and Josefowicz. Schoenbeck, Vanek, and Josefowicz also were aldermen of the City.

On August 24, 1992, members of the committee filed formal objections to the question with the City clerk, claiming that the petitions filed in support thereof were defective. Among the defects alleged were that a number of the voter signatures on the petitions submitted by the plaintiffs in favor of the question were invalid and that the plaintiffs had declared under oath that they had personally obtained the signatures of voters on the petitions when they, in fact, had not. The Elmhurst electoral board held hearings concerning the petitions, during which the proponents of the petitions stipulated that there were technical defects in the petitions and that the number of valid signatures on the petitions were insufficient for the question to be placed on the ballot.

The plaintiffs filed a five-count amended complaint seeking recovery for libel. The amended complaint alleges that on or about August 24, 1992: (1) Collis published a certain press release concerning the plaintiffs' activities as circulators of the petitions; (2) Collis and Hershoff had a conversation with a Chicago Tribune reporter, during which Collis told the reporter that Spinelli and Entwistle had committed fraud and perjury in connection with the petitions submitted with regard to the question, and during which Hershoff told the reporter that Spinelli and Entwistle had committed a Class 3 felony; and (3) Schoenbeck, at a public meeting in the City Hall, told Spinelli and Entwistle that they were guilty of fraud in connection with the petitions submitted with regard to the question. The statements made by Collis, Hershoff, and Schoenbeck were printed and published in editions of the Elmhurst Press on August 26, 1992, and August 28, 1992, and in editions of the Chicago Tribune on or about August 27, 1992.

The plaintiffs did not allege that Vanek, Olson, Horek, or Josefowicz personally made any defamatory statements. Rather, in their amended complaint, the plaintiffs alleged that the August 24, 1992, press release was published by Collis "individually and on behalf of" the other committee members and that the August 24, 1992, defamatory statements of Collis, Hershoff, and Schoenbeck were made by them "individually and on behalf of" the other committee members. The amended complaint also contained allegations that the August 24, 1992, statements of Collis, Hershoff, and Schoenbeck were false and published with knowledge of falsity or with reckless disregard as to the truth or falsity of the statements. Thus, the plaintiffs sought recovery against all eight committee members; by Joseph in counts I and II, by Spinelli in count III, and by Entwistle in count IV.

Also alleged in the amended complaint was that on or about August 24, 1992, Zakos, a realtor/developer with a business located in Elmhurst, attended a finance committee meeting of the City council. At the meeting, Zakos stated that Spinelli had disclosed confidential financial information submitted by Zakos and his partners to City officials in violation of Spinelli's duties as an alderman. This statement was published in newspaper articles. In their amended complaint, the plaintiffs further alleged that the August 24, 1992, statement made by Zakos was false and published with knowledge of falsity or with reckless disregard as to the truth or falsity of the statements. Thus, Spinelli sought recovery against Zakos in count V.

All eight committee members and Zakos filed motions to dismiss. This appeal only concerns the motions filed by Vanek, Olson, Horek, Josefowicz, and Zakos. Horek filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1992)), premised on the factual and legal insufficiency of the amended complaint. In her motion, Horek pointed to the absence of factual allegations that Horek made or authorized the alleged defamatory statements, and the absence of a legal basis for recovery against her for the statements of other committee members simply by virtue of her membership on the committee.

Defendants Vanek and Josefowicz jointly filed a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1992)) and a memorandum in support thereof. Attached to the memorandum were their own affidavits, which stated that neither of them ever made any statement or published any documents concerning the plaintiffs, and that neither of them ever authorized Collis, Hershoff, or Schoenbeck to make any statement on their behalf. No counteraffidavits were filed by the plaintiffs. Their motion while titled as pursuant to section 2-619, was, in fact, a joint motion pursuant to sections 2-615 and 2-619 as the motion and memorandum contained assertions similar to Horek's motion both as to the factual and legal insufficiencies of the amended complaint.

Defendants Olson and Zakos also filed motions to dismiss pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 1992)). Olson similarly pointed to the factual and legal insufficiencies of the amended complaint and as affirmative matter alleged that the statements were privileged. Zakos likewise pointed to the factual insufficiency of the second amended complaint and raised as affirmative matter that the City council is a legislative branch of the City, that his statement was made during a meeting of the council's finance committee, a legislative proceeding, and was therefore privileged.

A hearing on the various motions to dismiss was held on October 28, 1993. At the hearing, the plaintiffs attempted to submit a photograph which depicted the committee members, excluding Olson, sitting by Collis at a press conference while Collis made the alleged defamatory statements; however, the trial court refused to consider the photograph. The trial court entered an order granting the motions of Vanek, Olson, Horek, and Josefowicz and dismissing the action with prejudice as against them, having determined that the statements of the other committee members, Collis, Schoenbeck, and Hershoff, could not be attributed to them or each other. The trial court denied the plaintiffs' subsequent motion to reconsider the order dismissing these parties. The plaintiffs filed a timely appeal from the order dismissing the action against Vanek, Olson, Horek, and Josefowicz.

The October 28, 1993, order additionally provided that the court was taking Zakos' motion to dismiss under advisement and called for the submission of supplemental memoranda by the parties after which time the court would rule by mail. The memoranda were to address the issues of whether Zakos made the alleged defamatory statement, whether the statement was libelous, and, if so, whether the statement was privileged.

Thereafter, the plaintiffs filed a second amended complaint naming as defendants only Collis, Schoenbeck, Hershoff, and Zakos. Zakos again filed a section 2-615 and a section 2-619 motion to dismiss. The trial court later issued its opinion concerning Zakos' motion by mail. The court found, as a matter of law, that the statements attributed to Zakos, even if made directly by Zakos, were not actionable. The court found Spinelli to be a public figure and that his actions and comments were open to comment and criticism. Even if the statements were made with malice and a reckless disregard for the truth, the court found them not libelous. Accordingly, the court caused an order to be entered on December 23, 1993, dismissing the action against Zakos with prejudice. The plaintiffs filed...

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