Stratman v. Brent

• Decision Date: 06 August 1997
• Docket Number: No. 2-96-1306,2-96-1306
• Citation: 291 Ill.App.3d 123,683 N.E.2d 951
• Parties: , 225 Ill.Dec. 448 Joseph STRATMAN, Plaintiff-Appellant, v. Robert BRENT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 951

683 N.E.2d 951

291 Ill.App.3d 123, 225 Ill.Dec. 448

Joseph STRATMAN, Plaintiff-Appellant, v. Robert BRENT, Defendant-Appellee.

No. 2-96-1306.

Appellate Court of Illinois Second District.

Aug. 6, 1997.

Lawrence D. Wechter, Byron L. Matten & Associates, P.C., Oakbrook Terrace, for Joseph L. Stratman.

Joseph C. Loran, Murphy, Hupp, Foote, Mielke & Kinnally, P. Scott Courtin, Courtin Law Office, Aurora, for Robert Brent.

Justice McLAREN delivered the opinion of the court:

The plaintiff, Joseph Stratman, appeals the trial court's granting of the defendant's, Robert Brent's, motion on the pleadings, motion to dismiss, and summary judgment in this action for slander. The trial court granted the defendant's motion on the pleadings and motion to dismiss based on section 2--201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1987, ch. 85, par. 2--201 (now 745 ILCS 10/2--201 (West 1994))). The trial court granted the defendant's motion for summary judgment on count II of the plaintiff's third amended complaint based on a release signed by the plaintiff. We reverse and remand.

The issues raised in this appeal concern the legal sufficiency of the plaintiff's third amended complaint and the defendant's motions directed against that complaint. The following facts are taken from the record. The plaintiff worked as a police officer for the City of Aurora from December 1977 to June 1985. During that period, the defendant was the police chief of the City of Aurora. In January and August 1987, the plaintiff applied for positions with the United Stated Drug Enforcement Agency (DEA) and the Bureau of Alcohol, Tobacco, and Firearms (BATF), respectively. The Federal Bureau of Investigation (FBI) conducted a background check of the plaintiff for the DEA, and the Department of the Treasury (DT) conducted a background check for the BATF. Both the FBI and the DT interviewed the defendant regarding the plaintiff's employment with the City of Aurora.

Count I of the plaintiff's third amended complaint alleges that the defendant made the following statements about the plaintiff to the DT:

"a. That the plaintiff was involved in a fatal shooting on March 20, 1979 and subsequent to that shooting, the plaintiff declined any offers of counseling;

b. That the plaintiff was given the nickname [']Code Red[,'] which is the Aurora Police Department unofficial designation for mentally disturbed person;

c. That the plaintiff became a loner soon after the shooting and that the plaintiff became unpredictable and displayed an increasingly negative attitude, in fact a pervasive negative attitude;

d. That the plaintiff became incapable of handling stress and that the defendant was relieved when the plaintiff resigned;

e. That the defendant was keeping a close eye on the plaintiff prior to his resignation and monitoring him with the idea of finding just cause to fire him and was glad to see the plaintiff leave;

f. That the defendant would not rehire the plaintiff and if the plaintiff attempted to return to the Aurora Police Department, the defendant would go to any length to prevent his return and would subject the plaintiff to every psychological screening available;

g. That the defendant could have [a] department wide mutiny if the plaintiff returned;

h. The other officers would not work with the plaintiff; [and]

i. That the defendant would not recommend the plaintiff for employment with the United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms."

Count II of the plaintiff's third amended complaint alleges that the defendant made the following statements about the plaintiff to the FBI:

"a. That the plaintiff had been involved in an incident wherein he shot a burglar and after the shooting, the plaintiff did not have, or ask for any counseling;

b. That before the plaintiff left the department and a considerable time after the shooting, the plaintiff began to act strangely;

c. That the plaintiff was nicknamed [']Code Red['] by his fellow officers and that [']Code Red['] is the Aurora Police Department code word for a person acting crazy;

d. That although the official file on the plaintiff indicates that he was eligible for rehire, the defendant would not rehire the plaintiff without careful psychiatric study and testing; [and]

e. That the plaintiff should be given psychological testing before the final consideration for hiring be given."

The plaintiff also alleged that the defendant's statements were false, the defendant had limited contact with the plaintiff during the plaintiff's employment, the defendant had no personal knowledge upon which to base his statements, and that the defendant failed to conduct any investigation to verify the plaintiff's alleged conduct, behavior, and performance. Further, the plaintiff alleged that, before the defendant made the slanderous statements to the FBI and the DT, the defendant told the FBI during another interview that "he had no reason to question the plaintiff's honesty, loyalty, or trustworthiness, * * * and he would recommend the plaintiff for employment with a law enforcement agency." Neither the DEA nor the BATF offered employment to the plaintiff.

In the defendant's amended answer to the plaintiff's third amended complaint, the defendant admitted that he had been interviewed as part of the federal government's background investigation of the plaintiff. However, the defendant denied that he made slanderous statements about the plaintiff. The defendant asserted the affirmative defenses of (1) truth; (2) common-law absolute government official privilege; (3) statute of limitations; (4) the execution of a release by the plaintiff; and (5) immunity pursuant to section 2--201 of the Tort Immunity Act. The trial court denied the plaintiff's motion to strike the defendant's affirmative defenses. The defendant attached a copy of the alleged release to his answer. The defendant filed a motion for judgment on the pleadings and a motion to dismiss based on sections 2--615(b) and (e) of the Code of Civil Procedure (735 ILCS 5/2--615(b), (e) (West 1994)), alleging that the plaintiff failed to state a cause of action because the defendant's alleged statements were protected expressions of opinion and capable of innocent construction. The defendant also filed a section 2--619(a)(9) (735 ILCS 5/2--619(a)(9) (West 1994)) motion to dismiss, alleging immunity based on section 2--201 of the Tort Immunity Act. In addition, the defendant filed a motion for summary judgment only on count II of the plaintiff's third amended complaint based on the alleged release. The defendant attached a copy of the release to the motion for summary judgment. The plaintiff filed a letter signed by the defendant commending the plaintiff on his involvement with a burglary incident and a letter signed by the defendant praising the plaintiff for his service with the department upon the plaintiff's resignation.

The trial court granted the defendant's motion on the pleadings and his motion to dismiss based on immunity and granted the defendant's motion for summary judgment based on the release, but denied the defendant's motion to dismiss based on innocent construction. The trial court then dismissed the plaintiff's third amended complaint with prejudice. This timely appeal followed. The plaintiff filed a motion to strike portions of the defendant's reply brief. That motion was taken with this appeal.

The plaintiff argues that the trial court improperly dismissed his complaint based on section 2--201 of the Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 2--201). The plaintiff claims that the defendant's alleged act is not immune under this provision because it was not a discretionary act. The plaintiff explains that the defendant had no duty to provide prospective employers with statements regarding former employees. Thus, the defendant's act was not unique to the defendant's position as a police chief. The plaintiff also claims that the defendant's decision to provide the statement was not a policy decision. The defendant argues the decision to make the statements was a discretionary act and that it is not necessary to establish that the defendant made a policy decision. We agree with the plaintiff.

The standards guiding our review of the trial court's decision to grant the defendant's section 2--619(a)(9) motion are clear. Section 2--619(a)(9) of the Code of Civil Procedure provides for dismissal if "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9) (West 1994). Thus, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. T & S Signs, Inc. v. Village of Wadsworth, 261 Ill.App.3d 1080, 1083, 199 Ill.Dec. 467, 634 N.E.2d 306 (1994). For purposes of a section 2--619 motion, all well-pleaded facts in the complaint are deemed admitted and only the legal sufficiency of the complaint is at issue. Sisk v. Williamson County, 167 Ill.2d 343, 346, 212 Ill.Dec. 558, 657 N.E.2d 903 (1995); Kubian v. Alexian Brothers Medical Center, 272 Ill.App.3d 246, 250, 209 Ill.Dec. 303, 651 N.E.2d 231 (1995). However, exhibits attached to the complaint become part of the complaint and will also be considered. Abbott v. Amoco Oil Co., 249 Ill.App.3d 774, 778-79, 189 Ill.Dec. 88, 619 N.E.2d 789 (1993). Thus, "the trial court may consider pleadings, depositions, and affidavits." Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995). "We review an order granting a section 2--619(a)(9) motion de novo, considering whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Bainter v. Village of Algonquin, 285...