Resudek v. Sberna

• Decision Date: 26 April 1985
• Docket Number: No. 84-263,84-263
• Parties: , 87 Ill.Dec. 663 John RESUDEK, Plaintiff-Appellant, v. Carmen SBERNA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 789

477 N.E.2d 789

132 Ill.App.3d 783, 87 Ill.Dec. 663

John RESUDEK, Plaintiff-Appellant, v. Carmen SBERNA, Defendant-Appellee.

No. 84-263.

Appellate Court of Illinois,

Second District.

April 26, 1985.

Cichocki & Armstrong, Ltd., Gene L. Armstrong, Oak Park, for plaintiff-appellant.

Garbutt & Jacobson, John P. McGahey & Michael D. Johnson, Chicago, for defendant-appellee.

REINHARD, Justice:

Plaintiff, John Resudek, appeals from the trial court's order granting a motion for summary judgment brought by defendant, Carmen Sberna. Plaintiff, who was formerly an insurance underwriter for Kemper Insurance Company (Kemper), filed this action for slander and tortious inference with contract against defendant, who was engaged in the insurance agency/brokerage business, for a statement made by defendant to another Kemper employee that he, defendant, was "tired of paying for business." Following this statement, Kemper conducted a review of plaintiff's underwriting decisions and, although no evidence of improper decisions was found, plaintiff was terminated because he had accepted gifts in violation of company policy.

The issue raised on appeal by plaintiff is whether there were genuine issues of material fact relating to both of his actions for slander and tortious interference with contract which make the granting of summary judgment improper.

Plaintiff's complaint, as later amended, was in two counts alleging causes of action for "defamation/slander" in count I, and for "interference with contractual relations and/or prospective business advantages," in count II. Essentially, the allegations of the complaint stated that on December 1, 1981, in a telephone conversation with James Flavin, regional director of agencies for Kemper, defendant, who was engaged in the insurance agency/brokerage business, stated, inter alia, "I'm tired of paying for business," and told Flavin he had been paying for lunches, and had bought plaintiff gifts of a stereo, a shirt, and ties. Plaintiff alleged the accusations were false and defamatory, and resulted in the loss of his job as an underwriter with Kemper.

Defendant filed a motion for summary judgment attaching a memorandum of law and fact which contained excerpts from various depositions of Kemper employees, a copy of the Kemper policy on gifts, and correspondence from plaintiff to a Kemper supervisor concerning the gifts from defendant. The full depositions of the four Kemper employees were subsequently filed. In his memorandum, defendant sought summary judgment on the slander count on the basis of the defenses of truth, the innocent construction rule, and the rule of conditional privilege, and on the tortious interference with contract count on the basis of plaintiff's failure "to show any of the four essential elements necessary to sustain such a cause of action." Plaintiff filed a memorandum in opposition to defendant's motion for summary judgment wherein plaintiff basically argued against the legal theories advanced by defendant for summary judgment and further contended that there were genuine issues of material fact which precluded the granting of summary judgment.

In relevant part, the deposition of James Flavin, regional director of agencies for Kemper, revealed that it was his responsibility to work with and maintain relationships with agents and brokers who offer insurance issued by Kemper; that defendant was one of his general agents; that a problem arose with repect to the authenticity of signatures of two proposed insureds on applications submitted by defendant; that he spoke by telephone with defendant about the signatures and was told by defendant they were authentic; that during the conversation, defendant brought up plaintiff's name and said "he was tired of paying for business;" that Flavin responded "do you understand exactly what you're telling me?", and defendant said "I know what I'm telling you;" that Flavin said he would have to go to a higher authority, and defendant said "he didn't care, he was tired of paying for business;" that defendant further said he had been paying for lunches, mentioned a stereo, a shirt and ties, and didn't care where it went from there; and that he, Flavin, assumed all these statements were made about plaintiff. Flavin reported the conversation to his supervisor, and other Kemper employees took over responsibility for resolution of the matter.

In summary, the depositions of three other Kemper employees reveal that as a result of Flavin's reporting of the conversation with defendant, an audit of plaintiff's work with defendant was undertaken, no evidence of improper decisions made by plaintiff, who was the only underwriter for defendant's business, was discovered; plaintiff was requested to provide information about gifts he may have received from defendant, and plaintiff admitted receiving a Sony Betamax tape player, a shirt and ties, and numerous lunches, all paid for by defendant. The depositions further indicate that following the audit, the matter was turned over to the corporate personnel department with the recommendation to terminate plaintiff, and the decision to terminate plaintiff was ultimately made by the personnel department. None of the four depositions on file in this cause are from employees of the personnel department. The understanding of the Kemper employees, whose depositions are contained in the record, is that plaintiff was terminated for the acceptance of gifts in violation of company policy. Also, the fact that an accusation of paying an underwriter for business was made and the fact that plaintiff accepted gifts contrary to company policy created a problem such that plaintiff could not continue to make decisions in the best interests of the company.

The motion for summary judgment was granted by Judge McQueen in a written order without further findings. Plaintiff filed a motion for rehearing which was denied by Judge Geiger, who had been assigned the case following Judge McQueen's retirement.

Before proceeding to our analysis of plaintiff's contentions on appeal, we must consider initially defendant's motion to dismiss the appeal for lack ofjurisdiction. Defendant maintains that Judge McQueen's written order granting his motion for summary judgment does not by its terms expressly enter judgment for any party and therefore cannot be considered to be a judgment. Although there is dated authority that an order granting a motion for summary judgment is not a judgment but merely a ruling that the party is entitled to a judgment (Dowling v. Jensen (1960), 28 Ill.App.2d 174, 171 N.E.2d 107), more recent and authoritative decisions hold that the finality of an order is not necessarily determined by its form (Wilkey v. Illinois Racing Board (1983), 96 Ill.2d 245, 249, 70 Ill.Dec. 496, 449 N.E.2d 843; Bates v. Ulrich (1976), 38 Ill.App.3d 203, 204, 347 N.E.2d 286), and a final judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (Flores v. Dugan (1982), 91 Ill.2d 108, 112, 61 Ill.Dec. 783, 435 N.E.2d 480.) The written order here granted defendant's motion for summary judgment, and there is nothing in the record to otherwise indicate anything but a final judgment for defendant. Defendant's motion to dismiss the appeal is denied.

It is plaintiff's position that the trial court improperly granted summary judgment for defendant. He argues that there are genuine issues of material fact presented in the record which preclude summary judgment. It is well-settled that a reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill.2d 390, 393, 349 N.E.2d 1.) Because summary judgment is such a drastic method of disposing of a case, it should not be employed unless the right of the moving party is free from doubt, and the affidavits and depositions are to be construed against the moving party. Murphy v. Urso (1981), 88 Ill.2d 444, 464, 58 Ill.Dec. 828, 430 N.E.2d 1079.

We first address the slander count. In Illinois, under the common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. This is called slander or libel per se. They are:

1. Those imputing the commission of a criminal offense;

2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;

3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;

4. Those prejudicing a particular party in his profession or trade. (Fried v. Jacobson (1983), 99 Ill.2d 24, 27, 75 Ill.Dec. 398, 457 N.E.2d 392.)

"An Act to revise the law in relation to slander and libel" (Ill.Rev.Stat. 1977, ch. 126, par. 1 et seq.) enlarged the classifications enumerated above by providing that false accusations of fornication, adultery and false swearing are actionable as a matter of law. Only two of the common law categories are relevant here--words imputing inability to perform or want of integrity in the discharge of duties of office or employment and those prejudicing a party in his profession or trade.

The preliminary determination of whether a statement is slanderous per se is one of law. (Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill.App.3d 254, 256, 75 Ill.Dec. 947, 458 N.E.2d 115.) In making that determination, courts also apply the innocent construction rule as set forth in Chapski v. Copley Press (1982), 92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195:

"[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or...