Tuite v. Corbitt

• Decision Date: 30 June 2005
• Docket Number: No. 1-03-3768.,1-03-3768.
• Citation: 830 N.E.2d 779
• Parties: Patrick A. TUITE, Plaintiff-Appellant, v. Michael CORBITT, Sam Giancana, and Harper Collins Publishers, Inc., Defendants-Appellees.
• Court: Illinois Supreme Court

830 N.E.2d 779

Patrick A. TUITE, Plaintiff-Appellant, v. Michael CORBITT, Sam Giancana, and Harper Collins Publishers, Inc., Defendants-Appellees.

No. 1-03-3768.

Appellate Court of Illinois, First District, Second Division.

June 7, 2005.

Rehearing Denied June 30, 2005.

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Deutsch, Levy and Engel, Chartered, Chicago (Paul M. Levy, Phillip J. Zisook and Brian D. Saucier, of counsel), for Appellant.

Jenner & Block, Chicago (David P. Sanders, of counsel); Hogan & Hartson L.L.P., New York City (Slade R. Metcalf and Jeffrey O. Grossman, of counsel), for Appellees.

Justice GARCIA delivered the opinion of the court:

In May 2003, the plaintiff, Patrick Tuite, filed a complaint for defamation per se, false light invasion of privacy, and intentional infliction of emotional distress against the defendants, Michael Corbitt, Sam Giancana, and Harper Collins Publishers, for statements made in their book, Double Deal. In August 2003, the defendants filed a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2002)). In November 2003, the trial court granted the defendants' motion finding that the statements at issue were not defamatory per se under the innocent construction rule, the plaintiff failed to allege special damages for his false light claim, and the statements were not so extreme and outrageous to sustain a claim for intentional infliction of emotional distress. The plaintiff appeals, arguing (1) when read in context, the statements are not reasonably capable of an innocent construction and the trial court erred in dismissing his defamation and false light invasion of privacy claims, and (2) his complaint adequately alleged a cause of action for intentional infliction of emotional distress. For the reasons that follow, we affirm the judgment of the trial court.

I. BACKGROUND

Corbitt and Giancana co-authored the book Double Deal, which was published by Harper Collins. The plaintiff's complaint alleges that Corbitt is a self-admitted professional criminal, whose life of crime was in the service of the Chicago mafia, also known as the Outfit, while Giancana is the godson and namesake of Chicago mafioso Sam "Momo" Giancana. Double Deal is a nonfiction book that chronicles the criminal activities of Corbitt and others within organized crime in the Chicago area. The book was touted as "The Inside Story of Murder, Unbridled Corruption, and the Cop Who Was a Mobster," and the title referred to the fact that Corbitt, who was both a police officer and a trusted mafia insider, "played both ends" making him the "consummate double dealer."

The plaintiff alleges that the following statements from the book concerning the 1985 trial of alleged Chicago mob boss Joey Aiuppa are false and defamatory per se in that they impute criminal wrongdoing to the plaintiff, want of integrity as an officer of the court and in the performance of his ethical duties as an attorney, and an inability to perform his professional duties as a criminal defense attorney.

"Unfortunately for the Outfit, during Strawman, the FBI had uncovered tons of evidence connecting the Chicago bosses to the guys in Kansas City. When the FBI started calling this new case against Chicago's top bosses Strawman II, it was pretty clear they were on a roll.

Although Strawman II put a crimp in Chicago's top guys, particularly Joey Aiuppa, at first they figured they could beat the charges. But then when witnesses starting [sic] lining up against them, they began to get worried. * * * From what I understood, they knew enough to bury just about everybody who was anybody in the Outfit.

And it was no use trying to take them out, either. * * * [T]hey were virtually untouchable.

* * * [B]y the time the trial got under way in 1985, there were guys flipping left and right. It was pretty clear that the Chicago Outfit was going to take a major hit. Sal told me Joey Aiuppa figured he was going away for sure if he didn't get some better representation. At seventy-seven, Joey Aiuppa was an old man, and he didn't want to die in prison. He was desperate to walk away from those charges and wanted to bring in Pat Tuite, an attorney who'd represented mob cases in the past. But Sal said that Aiuppa had run into a wall with Tuite. Supposedly, the big-shot lawyer told Aiuppa that he'd need a million-dollar retainer before he'd even walk in the door.

It might seem crazy, playing hardball with an Outfit boss like that, but Tuite had his reasons; he was far from stupid. He knew that Outfit guys had a reputation for not paying their attorneys. They'd get off and then leave the lawyer holding the bag. If the guy made any noise about his bill, it was `take me to court,' which, of course, no one ever had the balls to do.

So now Aiuppa and his pals had a dilemma. They didn't want to go on their kick, take their defense money out of their own pockets. So what did they do? They decided to go to Las Vegas — the now crime-free town — and let their skim pay Tuite.

[In the next paragraphs, Corbitt describes how he and others traveled to Utah to pick up duffle bags containing $1 million in one-hundred-dollar bills and delivering it to another individual in Chicago. After they returned to Chicago, Corbitt states, `I understand Tuite got his retainer later that night.']

After Tuite was on the case, all the guys were sort of semijubilant [sic]. Everybody figured Tuite had it all handled. To Aiuppa and his codefendants, it was like it was a done deal, like they were all going to be acquitted. So you can imagine their reaction when they were all found guilty the following January — 1986. * * * And what about Tuite? What kind of explanation could he possibly have given for this result? I can't think of one that would've satisfied me — not after advancing him a million bucks for his legal fees. And I guess that's why, for the life of me, I've never understood why Pat Tuite didn't get whacked. Go figure."

The plaintiff asserts that these statements are false because (1) he only served as a consultant to Aiuppa's attorneys and he was not retained by Aiuppa, was not the attorney of record, and did not participate in and did not represent Aiuppa at the trial; and (2) he did not demand or receive a retainer of $1 million cash and did not knowingly receive any payment for his consulting services that was comprised of illegally obtained funds. Additionally, he claims the statements falsely imply the plaintiff would use all or a portion of the $1 million cash retainer to commit bribery or other criminal conduct so as to ensure that he "had it all handled" and that the acquittal of Aiuppa and his codefendants was "a done deal."

The plaintiff also alleges that statements in the author's note in the book, Corbitt's statements on the "Today Show," and Corbitt's comments that he was surprised that Tuite had not been "whacked" were extreme and outrageous and caused him severe emotional distress. Corbitt writes in the author's note, "there's a good chance somebody's gonna get whacked over this book. But hey, if they do, well ... f____ em. Those are the people I don't give two s____ about. That's right. I don't care. Far as I'm concerned, they had it comin." On the "Today Show" he stated that the book had "put [others] in jeopardy" and that someone might get "whacked" as a result. The plaintiff alleges that he suffered anxiety and feared for his safety and the safety of those around him as a result of the statements.

In May 2003, the plaintiff sued the defendants for defamation per se, false light invasion of privacy, and intentional infliction of emotional distress. In August 2003, the defendants filed a motion to dismiss. The plaintiff then filed an amended complaint and attached a full copy of Double Deal as an exhibit. The trial court granted the defendants' motion to dismiss, explaining that it read Double Deal, "cover to cover, as the court is required to do when assessing the innocent construction rule." The court then found that "the words themselves permit an innocent construction whether that construction is more reasonable than any other construction, is something that the court does not engage in as long as there is a reasonable construction." Additionally, the court found that because the plaintiff did not plead special damages the false light claim also failed. Further, "the marketing statement at the front of the book and the other allegations are too vague and express opinions and don't rise to the level of outrageousness that this court requires when looked at in a reasonable person's standard."

This appeal followed.

II. ANALYSIS

On appeal, the plaintiff argues (1) when read in context, the statements are not reasonably capable of an innocent construction and (2) his complaint adequately alleged a cause of action for intentional infliction of emotional distress.

A. Standard of Review

A motion to dismiss filed pursuant to section 2-615 of the Code attacks the legal sufficiency of a plaintiff's complaint. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). When reviewing a motion to dismiss, a court must accept as true all well-pleaded facts and interpret the allegations in the complaint in the light most favorable to the plaintiff. Bryson, 174 Ill.2d at 86, 220 Ill.Dec. 195, 672 N.E.2d 1207. A court will not dismiss a cause of action unless it appears that no set of facts could be proved which would entitle the plaintiff to recover. Bryson, 174 Ill.2d at 86-87, 220 Ill.Dec. 195, 672 N.E.2d 1207. "The question to be determined is whether sufficient facts are contained in the pleadings which, if established, may entitle the plaintiff to relief." Stroger v. Regional Transportation Authority, 201 Ill.2d 508, 516, 268 Ill.Dec. 417, 778 N.E.2d 683 (2002). The applicable standard of review for a section 2-615 motion is de novo. Str...