Mittelman v. Witous
| Citation | 525 N.E.2d 922,121 Ill.Dec. 615,171 Ill.App.3d 691 |
| Decision Date | 18 May 1988 |
| Docket Number | No. 86-1409,86-1409 |
| Parties | , 121 Ill.Dec. 615, 56 USLW 2719 Robert H. MITTELMAN, Plaintiff-Appellant, v. John J. WITOUS and James T. Ferrini, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Bridgman, Paul B. O'Flaherty, Jr., and Michael J. Wagner, of counsel), for defendants-appellees.
Plaintiff, Robert Mittelman, appeals the circuit court of Cook County's denial of his motion to vacate the dismissal of his first-amended complaint for slander per se, and intentional and willful interference with his "prospective business relationship and contractual expectancy" with the law firm of Clausen, Miller, Gorman, Caffrey, and Witous, P.C. (Clausen Miller) and for leave to file a second-amended complaint against defendants, John J. Witous and James T. Ferrini.
The following facts are taken from plaintiff's first-amended complaint, the well-pleaded allegations of which were taken as true for purposes of defendants' motion to dismiss. Plaintiff was an associate attorney at Clausen Miller at the time the events leading to this litigation arose. Defendants Witous and Ferrini are attorneys and were members of Clausen Miller's board of directors at that time. In January, 1979, Witous assigned plaintiff to prepare for trial two insurance subrogation actions, generally known as the Kerr-McGee cases, which were pending in a Mississippi state court. Witous retained ultimate responsibility for both cases. The cases had been filed in a Mississippi state court in July and November 1978. Certain defendants in the July 1978 action interposed the six-year Mississippi statute of limitations as an affirmative defense. No Count I of plaintiff's first-amended complaint further alleged that Witous' statement was false and was intended to injure plaintiff by causing criticism properly directed to Witous to be deflected to plaintiff, to Witous' advantage and plaintiff's detriment. Count I also alleged that Witous' statement was intended to and did damage and cause harm to plaintiff's professional reputation. Count II alleged that Witous' statement caused or contributed to the firm's decision to terminate plaintiff's employment, which had been of indefinite duration, and that Witous thus wilfully and intentionally interfered with plaintiff's prospective business relation and contractual expectancy. Count III alleged that, after Ferrini informed him of Witous' statement, plaintiff told Ferrini the true facts. It further alleged that, although Ferrini owed plaintiff a duty to take reasonable steps to protect plaintiff's professional reputation and to prevent further injury to him and although Ferrini informed Witous and others of the true facts, Ferrini and Witous conspired to withhold those facts from the remaining members of the board of directors. Count III lastly alleged that Ferrini thus breached his duty to plaintiff, adopted Witous' statement as his own and intentionally and wilfully interfered with plaintiff's prospective business relation and contractual expectancy.
[121 Ill.Dec. 617] defendant in the November 1978 action interposed the defense. In April 1982, the defendants in the November 1978 action moved for leave to raise the statute of limitations as an affirmative defense and the defendants in both cases moved for dismissal on the basis of a 1969 Mississippi supreme court case, M.T. Reed v. Jackson Plating Co., which they had recently discovered. The Mississippi court granted the motions. On or about that date, as plaintiff alleged in his first-amended complaint, Witous stated to Ferrini and other members of Clausen Miller's board of directors that plaintiff "sat" on the statute of limitations defense with knowledge of M.T. Reed for three years and as a result cost the firm a considerable amount of money. The firm had taken the Kerr-McGee cases on a contingent fee basis.
Pursuant to defendants' motion to dismiss plaintiff's complaint, the trial court struck Count I on the basis of the innocent-construction rule. The court reasoned, inter alia, that Witous' statement was so unclear and nebulous that it was open to all kinds of interpretations and that nothing in the complaint indicated that Witous meant plaintiff should have dismissed the Kerr-McGee cases before the statute of limitations defenses were raised. The court also concluded that a qualified privilege did not "come into play" in ruling on Count I. However, it did state that, if it did, Witous' alleged motive in making the statement, i.e., to deflect criticism from himself to plaintiff, would be an insufficient allegation of the ill will or malice required to overcome the privilege. The trial court struck Count II on the basis of the privilege. As plaintiff's counsel conceded, the qualified privilege which precluded liability for defamation also precluded Witous' liability for tortious interference with the contract. The trial court also struck Count III, based on plaintiff's counsel's further concession that Count III could not stand based on the court's application of the innocent-construction rule to Count I. Finally, because there had already been two complaints filed, the trial court dismissed the action and informed plaintiff's counsel of his right to move to vacate that final order within thirty days as long as he tendered a second-amended complaint with the motion.
Plaintiff's proposed second-amended complaint alleged certain facts in addition to those alleged in the first-amended complaint. Count I additionally alleged: (1) when plaintiff first reviewed the files after assignment of the Kerr-McGee cases to him in January 1979, he noted a legal memorandum from local counsel in Mississippi stating that the statute of limitations was not a problem in the case filed in July 1978; (2) plaintiff reviewed the law cited in the memorandum and concluded that it supported the memorandum's conclusion; (3) settlement overtures were rejected after consultation with Clausen Miller's clients in the Kerr-McGee cases; (4) plaintiff kept Witous informed of his activities on the Plaintiff's second-amended complaint also contained a new Count II for slander per quod against Witous based on the same statement as Count I. Plaintiff realleged Counts II and III of the first-amended complaint as Counts III and IV of the second-amended complaint.
[121 Ill.Dec. 618] cases from January 1979 to April 1982; (5) After the Kerr-McGee defendants filed the April 1982 motions, plaintiff told Witous that he was not aware of a possible problem with the statute of limitations until the presentation of those motions; (6) at that time, plaintiff also advised Witous, Ferrini and others that, in his opinion, M.T. Reed was directly on point with the Kerr-McGee cases; (7) on or about September 3, 1982, the date of dismissal of the Kerr-McGee cases, Witous, Ferrini and other members of Clausen Miller's board of directors discussed the firm's financial situation, "including a serious cash flow problem"; (8) in the course of this discussion, Witous was [171 Ill.App.3d 698] criticized for his handling of the Kerr-McGee cases because, inter alia, their dismissal would cost the firm a considerable amount of money and thus exacerbate its financial crisis; (9) at that time, to deflect that criticism from himself to plaintiff and make plaintiff the scapegoat for the problem, Witous stated the waste of time and money in preparing the Kerr-McGee cases was not his fault but that of plaintiff, who "sat" on the statute of limitations defense with knowledge of M.T. Reed and its applicability for three years without attempting to settle in order to cut the firm's probable losses; (10) the statement was false, Witous knew it was false "or had no reasonable basis for believing it to be true" and "was made maliciously, with an evil motive to injure plaintiff without just cause or excuse."
In denying plaintiff's motions to vacate the dismissal of the first-amended complaint and for leave to file the second-amended complaint, the trial court concluded that plaintiff's new Count I added nothing to the cause of action for defamation per se and that, as a matter of law, Witous' statement could reasonably be interpreted innocently, i.e., as non-defamatory. The trial court further concluded that plaintiff's new Count II was also insufficient as a matter of law under the innocent-construction rule. The trial court concluded that there was nothing substantively different in plaintiff's new Count III in comparison to the prior pleading and that plaintiff's allegations of malice were still insufficient to overcome the qualified privilege which applied to Witous' statement. Finally, the court concluded that, as to plaintiff's new Count IV, Ferrini did not have the duty alleged by plaintiff.
OPINIONPreliminarily, because it is the duty of a reviewing court to consider its jurisdiction and to dismiss an appeal where jurisdiction is lacking (Archer Daniels Midland Co. v. Barth (1984), 103 Ill.2d 536, 539, 83 Ill.Dec. 332, 470 N.E.2d 290) and because the procedural history of this case may cause some doubt as to the appealability of the trial court order from which plaintiff appeals, we address that question sua sponte. Unlike a trial court's nonfinal and nonappealable orders merely dismissing a complaint and denying a motion to reconsider that dismissal (Ben Kozloff, Inc. v. Leahy (1986), 149 Ill.App.3d 504, 103 Ill.Dec. 217, 501 N.E.2d 238), we believe it is beyond peradventure that both the order denying the motion to vacate and the order granting the motion to dismiss the first-amended complaint were final and appealable.
The dismissal order provides that "plaintiff's action is dismissed in all its counts." It was thus...
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Tunca v. Painter, s. 1–09–3384
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Mittelman v. Witous
...the appellate court affirmed the circuit court's order of dismissal as it pertained to the count against Ferrini. (171 Ill.App.3d 691, 710, 121 Ill.Dec. 615, 525 N.E.2d 922.) Pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315), we granted Witous' petition for leave to appeal. The dismiss......
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