Missner v. Clifford

• Decision Date: 12 August 2009
• Docket Number: No. 1-08-0686.,1-08-0686.
• Parties: David N. MISSNER, Plaintiff-Appellant, v. Robert A. CLIFFORD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

914 N.E.2d 540

393 Ill. App. 3d 751

David N. MISSNER, Plaintiff-Appellant, v. Robert A. CLIFFORD, Defendant-Appellee.

No. 1-08-0686.

Appellate Court of Illinois, First District, Third Division.

August 12, 2009.

Philip J. Nathanson, Meredith Nathanson, The Nathanson Law Firm, Chicago, IL, for Plaintiff-Appellant.

Peter C. John, Alyssa M. Campbell, Thomas C. Koessl, Williams, Montgomery & John Ltd., Chicago, IL, for Defendant-Appellee.

MODIFIED UPON REHEARING

Justice THEIS delivered the opinion of the Court:

In this defamation action, plaintiff David N. Missner appeals from an order in which the circuit court converted defendant Robert A. Clifford's motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2006)) into a motion for summary judgment under section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2006)), and subsequently granted summary judgment in favor of Clifford. On appeal, Missner argues that the circuit court erred in: (1) converting Clifford's motion to dismiss to a motion for summary judgment; and (2) granting summary judgment for Clifford on the grounds that his publication of defamatory material was protected by the fair report privilege. For the following reasons, we reverse and remand for further proceedings.

In his complaint¹, Missner, an attorney, alleged that he was retained by Nicholas Betzold, Jr. to represent him personally in a chapter 11 bankruptcy proceeding (11 U.S.C. § 1101 et seq. (2000)). In re Betzold, 316 B.R. 906 (Bankr.N.D.Ill.2004). At the same time, Betzold was involved in a separate arbitration proceeding against three minority shareholders of the financial services companies that he controlled. Missner did not represent Betzold or the companies in the arbitration.

Soon after initiating the bankruptcy proceeding, Missner filed a motion in that case to stay the pending arbitration because the arbitrator had an undisclosed relationship and "common association" with attorney Michael Ficaro, who represented the shareholders in the arbitration. In support of his motion, Missner attached the affidavit of a former Federal Bureau of Investigation (FBI) agent named Francis Marrocco, which Betzold's arbitration attorneys obtained while attempting to substitute the arbitrator in that proceeding. Missner asserted that the arbitration attorneys gave him the Marrocco affidavit before he filed the bankruptcy proceeding; he did not participate in procuring the affidavit.

Approximately one year after Missner filed the bankruptcy proceeding and the motion to stay, Ficaro filed a complaint for defamation against Missner and others arising out of the filing of the Marrocco affidavit in the bankruptcy proceeding. Ficaro v. Betzold, No. 05-L-8474 (Cir. Ct. Cook Co.).² Clifford represented Ficaro in that defamation suit through his law firm, Clifford Law Offices. Clifford was listed as "Attorney for Plaintiff" on the original and first amended Ficaro complaints, along with attorneys Richard Burke and Shannon McNulty.

Missner alleged that shortly after filing the first amended complaint in the Ficaro defamation case (Ficaro complaint), Clifford issued a defamatory press statement to the Chicago Tribune and the Chicago Daily Law Bulletin, which accused Missner of the following acts in the course of the bankruptcy proceeding:

"(a) `forg[ing] the signature of an ex-FBI agent to a fictitious, created, false and untrue affidavit ...'

(b) ma[king] `intentional false and scurrilous statements ... in an attempt to improperly influence the outcome of some vigorously contested corporate litigation ...'

(c) concoct[ing] the Marrocco [the ex-FBI agent] affidavit `to try to pressure Ficaro to settle a lawsuit in which his clients were seeking $15 million from the businessman, Nicholas Betzold.'

(d) `intend[ing] to extort Ficaro and his law firm into settling' the lawsuit by using the Marrocco affidavit."

Missner alleged that the press statement constituted defamation per se because it conveyed that he lacked integrity in the discharge of his professional duties and accused him of committing the crimes of forgery and extortion. Missner also alleged that Clifford knowingly made the above false statements to the media, or made them with reckless disregard for their truth or falsity, because Clifford made no inquiries before issuing the statements, as evidenced by the fact that the arbitration attorneys, who allegedly obtained the affidavit, were not named as defendants in the Ficaro complaint. Missner attached no exhibits to his complaint.

In response, Clifford filed a combined motion for summary judgment and motion to dismiss the complaint under section 2-619(a)(9) of the Code. He argued for summary judgment on the grounds that he did not publish the statements of which Missner complains or cause them to be published. He noted that the Ficaro complaint to which Missner refers was verified by Ficaro and signed and filed by attorney Burke. In an affidavit attached to the combined motion, Clifford denied communicating with any newspaper representatives about the Ficaro complaint or the contents of the press statement of which Missner complains. He stated that he was out of town at the time the Ficaro complaint and press statement were issued and that he did not communicate with anyone in his office about the press statement or newspaper articles. He also stated that he did not review or discuss the press statement before it was issued.

Clifford also attached the affidavit of Pamela Menaker, communications partner at Clifford Law Offices. She admitted sending the press statement to the Chicago Tribune by e-mail, but had no recollection of contacting the Chicago Daily Law Bulletin. She drafted the press statement in consultation with Ficaro and Burke, but did not discuss or review the press statement with Clifford. She attached a copy of the press statement, entitled "Statement of Robert A. Clifford in response to the filing of the Amended Complaint before Judge Donald Suriano in Ficaro v. Betzold, et al., No. 5 L 8474," to her affidavit.

Clifford filed a motion to dismiss in the alternative in which he asserted three affirmative defenses. First, he argued that regardless of who published the press statement, the fair report privilege protected that publication because it was a fair abridgement of the contents of a filed complaint. Second, he argued that the statements of which Missner complained could be construed innocently as "an attorney's biased presentation of his client's view of a pending cause of action." Additionally, the press statement could be "reasonably interpreted as referring to someone other than the plaintiffs." Third, he argued that the press statement is an expression of opinion protected by the first amendment. In addition to his and Menaker's affidavits, Clifford attached several exhibits to his combined motion, including a copy of the Ficaro complaint, a copy of the press statement that was sent to the Chicago Tribune, and the articles published in the Chicago Tribune and the Chicago Daily Law Bulletin.

The parties agreed to participate in limited discovery regarding the issues raised in Clifford's combined motion. As part of that agreement, Missner deposed Clifford and Menaker, noting on the record the limited scope of the deposition and the parties' understanding that the witnesses could be recalled to testify about the allegations in the underlying complaint if Missner's case survived the combined motion.

Menaker testified that she sent the press statement and a file-stamped copy of the amended Ficaro complaint to the Chicago Tribune. She relied upon the original and amended Ficaro complaints and Burke for information about that case. She believed she had the authority of the law firm to issue a press statement in Clifford's name. She did not contact Clifford before issuing the press statement. She sent the press statement knowing that the newspaper would only accept it if it was a statement from Clifford individually and not a statement of the law firm.

In his deposition, Clifford testified that Menaker does not serve as an independent spokesperson for the law firm. She issues press statements in Clifford's name with "some measure of direction" from him. When asked whether Menaker acted as his apparent agent in issuing the press statement, Clifford stated that newspapers only accept statements from individuals and not from entities such as law firms. He added that "[u]nquestionably[, the press statement] is sent as a statement of Robert A. Clifford. Unquestionably[,] Pamela Menaker is the one who did it. Unquestionably[,] she ultimately had the authority to do so * * *."

Clifford denied that he had seen the amended Ficaro complaint before it was filed or that he participated in the drafting of it, although he had seen the original complaint before it was filed. He testified that between the time of filing the original and amended Ficaro complaints, he participated in meetings with Ficaro and others pertaining to the case and "whatever pleadings were filed or to be filed." He further stated that up to the time of filing the amended Ficaro complaint, he participated in meetings, discussions, and planning about allegations involving the Marrocco affidavit. He also participated in strategy and planning sessions to discuss how to defend the amended Ficaro complaint.

Clifford acknowledged that Burke was authorized to include his name in the signature block on the Ficaro complaint filed with the court, although Burke signed and filed it with the court, which he also was authorized to do. Clifford stated that he does not routinely sign any pleadings himself. However, he also stated that it was not his firm's practice to routinely include his name on every pleading that was filed. Additionally, Clifford acknowledged that he had the authority to withdraw any pleading if he felt it was improperly filed for any reason,...