Naleway v. Agnich

• Decision Date: 31 October 2008
• Docket Number: No. 2-06-1275.,2-06-1275.
• Citation: 897 N.E.2d 902
• Parties: David M. NALEWAY and A.N., Plaintiffs-Appellants, v. Karen L. AGNICH, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

897 N.E.2d 902

David M. NALEWAY and A.N., Plaintiffs-Appellants, v. Karen L. AGNICH, Defendant-Appellee.

No. 2-06-1275.

Appellate Court of Illinois, Second District.

October 31, 2008.

Barry A. Bomberg, Brian S. Schwartz, Barry A. Gomberg & Associates, Attorneys At Law, Chicago, IL, for Appellant.

Michael Resis, Thomas P. Scherschel, Ellen L. Green, Bradley G. Rausa, SmithAmundson LLC, St. Charles, IL, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Plaintiffs, David Naleway and his six-year-old daughter A.N., appeal from a jury verdict in favor of defendant, Karen Agnich, on plaintiffs' action for defamation and false-light invasion of privacy in connection with defendant's accusing Naleway of sexually abusing A.N. On appeal, plaintiffs argue that the trial court tendered an incorrect jury instruction and that the trial court erred in barring them from questioning defendant regarding her charge of misconduct against the judge presiding over the trial. For the reasons that follow, we affirm the judgment of the trial court.

In 2003, Naleway was married to defendant's sister, Kristine, and A.N. was three years of age. Late in 2003, A.N. underwent surgery to remove a deep and hairy mole from her back and to remove growths called molluscum contagiosum from her thighs, buttocks, and groin. Just before surgery, Kristine and defendant met with A.N.'s dermatologist, Dr. Annette Wagner. Defendant, a podiatrist, informed Dr. Wagner that she was concerned that the molluscum growths were actually genital warts caused by sexual abuse. (In his testimony, Naleway stated that defendant never asked him if he had any genital warts; he testified that he in fact did not.) Dr. Wagner examined A.N. while she was under anesthesia before the surgery and determined that the growths were in fact molluscum and not genital warts. She testified that she also performed a thorough physical examination, including a genital examination, on A.N. and found no signs of abuse. Dr. Wagner recalled that she thereafter informed Kristine and defendant that the growths were not genital warts. She further recalled that she communicated "clearly" that she had performed a full physical examination and "had absolutely no concerns and found nothing on physical exam to substantiate concerns for sexual abuse."

Though defendant testified that she had professionally treated A.N. in connection with her surgery by prescribing pain medication afterwards and also by rendering medical opinions upon Kristine's request, Kristine and Naleway both testified that they never sought defendant's professional advice, never relied on any professional advice from defendant, and did not ask for defendant's prescription. Kristine further testified that she did not personally tell defendant about A.N.'s surgery and did not want defendant to be present. In response, defendant adduced testimony from a police officer who interviewed Kristine and recalled her saying that she had shown A.N.'s molluscum to defendant.

On the weekend following her surgery, A.N. stayed with defendant (at defendant's insistence, according to Kristine's testimony). Defendant testified that, over the course of the weekend, A.N. revealed, through conversation and conduct, that Naleway had sexually abused her, and defendant testified that she relayed her suspicions to Kristine. Defendant reported that she told Kristine that, if Kristine did not do something about the abuse, defendant would. Kristine testified that defendant warned that defendant's complaint might lead to Naleway and Kristine losing custody of A.N. (Plaintiffs adduced this testimony from Kristine, as well as testimony regarding what Kristine termed defendant's "obsess[ion]" with A.N. and testimony regarding defendant's low opinion of Kristine's parenting skills, to imply that defendant was motivated to gain custody of A.N. herself.) Kristine testified that she did not believe defendant's allegations either when they were made or when they were discussed at trial.

That night, after relaying her allegations to Kristine, defendant contacted the Department of Children and Family Services (DCFS) and reported her suspicions, and, for A.N.'s safety, DCFS ordered Naleway to leave the residence. The next day, Naleway, Kristine, and A.N. were interviewed by investigators from the local police and DCFS. Ultimately, neither police nor DCFS pursued the case beyond their initial investigation. Naleway testified that he arranged for a letter to be sent to defendant to inform her that DCFS had opted not to pursue investigation of him.

A.N.'s pediatrician testified that defendant also contacted him in September to relay her accusations against Naleway. The pediatrician recalled that he replied by telling defendant that the molluscum were not genital warts and that he did not suspect abuse.

In December of the same year, defendant again contacted DCFS with a new charge against Naleway. Just as with the first charge, DCFS conducted an initial investigation and did not pursue the case further.

The following January, plaintiffs filed suit against defendant for, among other things, defamation based on defendant's sexual-abuse accusations against Naleway. The matter proceeded to a jury trial, and the jury found in favor of defendant. Plaintiffs timely appealed, without filing a posttrial motion (see 735 ILCS 5/2-1202 (West 2006)).

While this appeal was pending, defendant moved to dismiss the appeal or, alternatively, for summary affirmance of the judgment, due to plaintiffs' failure to file a posttrial motion. See Johnson v. Transport International Pool, Inc., 345 Ill. App.3d 471, 473, 280 Ill.Dec. 704, 802 N.E.2d 1225 (2003) ("if the trial court has entered judgment on a jury verdict, and a party fails to file a posttrial motion, that party has forfeited appellate review of all waivable issues"). In response to the motion, plaintiffs suggested that we could consider the issues under the plain-error doctrine or under the principle that procedural default is a limitation on the parties and not on the court. In a separate order, we summarily affirmed the trial court's judgment on three of plaintiffs' five arguments. We now address only the two remaining issues.

Before addressing those two remaining issues, we provide a brief background of the legal principles underlying this case. To establish defamation, a plaintiff must present facts showing that the defendant made a defamatory statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 579, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006). "A defamatory statement is a statement that harms a person's reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him." Solaia, 221 Ill.2d at 579, 304 Ill.Dec. 369, 852 N.E.2d 825. Statements that do not contain factual assertions are protected under the first amendment and may not form the basis of a defamation action. J. Maki Construction Co. v. Chicago Regional Council of Carpenters, 379 Ill.App.3d 189, 199-200, 318 Ill.Dec. 50, 882 N.E.2d 1173 (2008). Likewise, a statement may not form the basis of a defamation action where it is substantially true. J. Maki Construction, 379 Ill.App.3d at 203, 318 Ill.Dec. 50, 882 N.E.2d 1173.

There are two types of defamatory statements: defamation per se and defamation per quod. Brennan v. Kadner, 351 Ill.App.3d 963, 968, 286 Ill.Dec. 725, 814 N.E.2d 951 (2004). In an action for defamation per quod, the plaintiff must plead and prove actual damages in order to recover. Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill.2d 381, 390, 317 Ill.Dec. 855, 882 N.E.2d 1011 (2008) (summarizing appellate court decision). If a defamatory statement is actionable per se, on the other hand, the plaintiff need not plead or prove actual damage to his or her reputation to recover. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 87, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). "Rather, statements that fall within these actionable per se categories are thought to be so obviously and materially harmful to [the plaintiff] that injury to the plaintiff's reputation may be presumed." Bryson, 174 Ill.2d at 87, 220 Ill.Dec. 195, 672 N.E.2d 1207.

"In Illinois, there are five categories of statements that are considered defamatory per se: (1) words that impute a person has committed a crime; (2) words that impute a person is infected with a loathsome communicable disease; (3) words that impute a person is unable to perform or lacks integrity in performing her or his employment duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or his profession; and (5) words that impute a person has engaged in adultery or fornication." Solaia, 221 Ill.2d at 579-80, 304 Ill.Dec. 369, 852 N.E.2d 825. Plaintiffs asserted that defendant made defamatory statements accusing Naleway of a crime; plaintiffs thus accused defendant of defamation per se.

At trial, defendant did not deny that she made the allegedly defamatory statements about Naleway; instead, she sought refuge under a qualified privilege and under the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1 et seq. (West 2002)).

A defamatory statement is not actionable if it is privileged. Solaia, 221 Ill.2d at 585, 304 Ill.Dec. 369, 852 N.E.2d 825. The presence or absence of a privilege is a question of law. Solaia, 221 Ill.2d at 585, 304 Ill.Dec. 369, 852 N.E.2d 825. "There are two classes of privileged statements: those subject to an absolute privilege, and those subject to a conditional or qualified privilege." Solaia, 221 Ill.2d at 585, 304 Ill.Dec. 369, 852 N.E.2d 825. "An absolute privilege provides a complete bar to a claim for defamation, regardless of the defendant's motive or...