Hopewell v. Vitullo

Second Division
September 22, 1998

No. 1-97-3946

EARL W. HOPEWELL, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant and ) Cook County.
Cross-Appellee, )
)
v. )
)
LOUIS VITULLO and )
WILDMAN, HARROLD, ALLEN and DIXON, )
) Honorable
Defendants-Appellees and ) Dean M. Trafelet,
Cross-Appellants. ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:

Plaintiff Earl W. Hopewell (Hopewell) sued defendant Louis
Vitullo (Vitullo), a partner of defendant Wildman, Harrold, Allen
and Dixon (WHAD), for defamation. The trial court granted
defendants' motion to dismiss with prejudice pursuant to section
2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615
(West 1996)), on the basis that the alleged defamatory statement
was nonactionable opinion. The trial court also granted
defendants' motion to dismiss without prejudice on the basis that
Hopewell failed to plead sufficient facts establishing that
Vitullo made the alleged defamatory statement with actual malice.
Hopewell filed a motion for reconsideration and leave to file a
second amended complaint, which the trial court denied. Hopewell
appeals, and we have jurisdiction pursuant to Supreme Court Rules
301 and 303. 155 Ill. 2d Rs. 301, 303.
Hopewell raises the following issues: (1) whether the
alleged defamatory statement--"fired because of incompetence"--is
actionable; (2) whether he pled sufficient facts establishing
that Vitullo made the alleged defamatory statement with actual
malice; and (3) whether defendants abused their qualified
privilege. Vitullo and WHAD filed a motion to dismiss Hopewell's
appeal, raising the issue of whether Hopewell's postjudgment
motion tolled the period for filing a notice of appeal pursuant
to Supreme Court Rule 303. In addition, Vitullo and WHAD cross-
appeal and raise the issue of whether they were cloaked with an
absolute privilege. For the following reasons, we affirm.
I. FACTS
In February of 1992, Hopewell was hired to be treasurer and
chief financial officer (CFO) of the Carol Moseley Braun for U.S.
Senate Committee (the Committee). Under the employment contract,
the Committee was to compensate Hopewell $7,000 per month for his
services. Vitullo was a Committee member, adviser to the
Senator, and lawyer for the Senator and the Committee.
In March 1996, Senator Braun sent a memorandum to Hopewell
informing him that, from that point on, he would be working on a
volunteer basis. Refusing to work on a volunteer basis, Hopewell
filed a lawsuit against the Senator and the Committee, charging
the Senator and the Committee with breach of contract,
retaliatory discharge, and violation of the Illinois Wage Payment
and Collection Act (820 ILCS 115/1 et seq. (West 1996)). The
complaint in that suit specifically alleged, inter alia, that
Hopewell objected to certain campaign finance irregularities and
that he was retaliatorily discharged as a result. It also
averred that the Committee owed him approximately $177,000 of
unpaid wages and that the Senator owed him approximately $20,000
for work performed in connection to the Senator's personal
finances.
Upon filing the above complaint, Hopewell and his attorney
also commented to the press regarding the Senator's campaign
finances. In turn, the Senator directed Vitullo to answer the
press' questions regarding Hopewell's lawsuit. The following
day, the Chicago Tribune reported on the accusations against the
Senator and the Committee while also including Vitullo's response
that Hopewell "was fired because of incompetence." Hopewell
answered Vitullo's comment by filing the instant lawsuit against
Vitullo and WHAD for defamation.
II. STANDARD OF REVIEW
As mentioned above, the trial court granted defendants'
motion to dismiss, which defendants filed under section 2-615 and
section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS
5/2-615, 2-619 (West 1992). A motion to dismiss pursuant to
section 2-615 "challenges only the legal sufficiency of the
complaint and admits the truth of all well-pleaded factual
allegations." Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 407
(1996). Under a section 2-615 motion, the question is whether
the complaint alleges sufficient facts entitling plaintiff to
relief. Bryson v. News America Publications Inc., 174 Ill. 2d 77, 86 (1996). On the other hand, a motion to dismiss pursuant
to section 2-619(a)(9) presents affirmative matters that avoid
the legal effect of plaintiff's claim. Golden v. Mullen, 295
Ill. App. 3d 865, 869 (1997). The question for the court under
section 2-619 is "whether there exists a genuine issue of
material fact precluding dismissal or, absent an issue of
material fact, whether dismissal is proper as a matter of law."
Golden, 295 Ill. App. 3d at 869.
Nevertheless, when reviewing motions to dismiss under either
section, the court applies a de novo review. Lawson v. City of
Chicago, 278 Ill. App. 3d 628, 634 (1996). The court must accept
as true all well-pleaded facts in the complaint and all
reasonable inferences that can be drawn from those facts in the
light most favorable to the plaintiff. Bryson, 174 Ill. 2d at
86.
III. DISCUSSION

A. Defendants' Motion To Dismiss Hopewell's Appeal

Initially, we must address defendants' motion to dismiss
Hopewell's appeal that was taken with this case. Defendants
argue that Hopewell's motion for reconsideration and for leave to
file a second amended complaint was insufficient to toll the time
period for filing an appeal because it did not request
appropriate relief and because it failed to assert an adequate
basis for reconsideration. We disagree. Hopewell's motion for
reconsideration is the most common type of postjudgment motion
recognized by the Illinois Supreme Court; it explained why the
case law that the trial court used actually supported a finding
in his favor. Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 347 (1990); see 735 ILCS 5/2-1203 (West 1996). As such, we
conclude that Hopewell's motion qualifies as a postjudgment
motion under Rule 303(a) and that it extended the period for
filing a notice of appeal. Beck v. Stepp, 144 Ill. 2d 232, 240
(1991); 155 Ill. 2d R. 303(a). Therefore, we deny defendants'
motion to dismiss Hopewell's appeal.
B. Whether "Fired Because of Incompetence" is
Nonactionable Opinion

Hopewell contends that the trial court erred when it found
that the alleged defamatory statement--Hopewell "was fired
because of incompetence"--was nonactionable opinion. We
disagree.
The defamation action provides redress for false statements
of fact that harm reputation. Quinn v. Jewel Food Stores, Inc.,
276 Ill. App. 3d 861, 865 (1995); Mittelman v. Witous, 135 Ill. 2d 220, 239 (1989); Doherty v. Kahn, 289 Ill. App. 3d 544, 555
(1997); 1 M. Polelle & B. Ottley, Illinois Tort Law 5.01, at 5-2
(2d ed. 1998) (hereinafter Illinois Tort Law). " 'A statement is
considered defamatory if it tends to cause such harm to the
reputation of another that it lowers that person in the eyes of
the community or deters third persons from associating with
him.' " Illinois Tort Law 5.01, at 5-2 to 5-3, citing Kolegas
v. Heftel Broadcasting Corp., 154 Ill. 2d 1 (1992); see
Restatement (Second) of Torts 559 (1977). Statements published
to third parties are defamatory per se if they: "(1) impute the
commission of a criminal offense; (2) impute infection with a
loathsome communicable disease; (3) impute inability to perform
or want of integrity in the discharge of duties of office or
employment; or (4) prejudice a party, or impute lack of ability,
in his trade, profession or business." Mittelman, 135 Ill. 2d at
238-39; Kirchner v. Greene, 294 Ill. App. 3d 672, 679 (1998).
In this case, the comment that Hopewell was "fired because
of incompetence" qualifies as defamatory per se, for it imputes
an inability to perform or discharge the duties of office or
employment and prejudices Hopewell by imputing a lack of ability
in his profession. Hopewell maintains that, since the statement
is defamatory per se, it should be considered an actionable
statement of fact.
However, Hopewell's argument is misplaced because
classification of Vitullo's statement as defamatory per se has no
bearing on whether the alleged defamatory statement is
actionable. Although a statement falls into a per se category,
to be actionable, Hopewell must show that the statement is not
protected speech under the first amendment to the United States
Constitution (U.S. Const., amend. I). Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 99-100 (1996). This
determination is a matter of law for the court to decide.
Doherty, 289 Ill. App. 3d at 557.
Prior to 1990, courts "perceived a fundamental distinction
between statements of fact and statements of opinion for first
amendment purposes." Bryson, 174 Ill. 2d at 99. However, in
Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990), the Supreme Court rejected this dichotomy
between opinion and fact and asserted that there no longer is a
separate first amendment privilege for statements of opinion.
Milkovich, 497 U.S. at 19, 111 L. Ed. 2d at 18, 110 S. Ct. at
2706. The Court explained that a wholesale first amendment
protection of "opinion" was overly broad since "expressions of
'opinion' may often imply an assertion of objective fact."
Milkovich, 497 U.S. at 18, 111 L. Ed. 2d at 17, 110 S. Ct. at
2705; Kumaran v. Brotman, 247 Ill. App. 3d 216, 228 (1993).
Instead, the Court held that a statement will receive first
amendment protection only if it cannot be reasonably interpreted
as stating actual facts about the plaintiff. Milkovich, 497 U.S.
at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706; Bryson, 174 Ill. 2d at 100; Kolegas, 154 Ill. 2d at 14-15. See Restatement
(Second) of Torts 566, at 170 (1977) ("[a] defamatory
communication may consist of a statement in the form of an
opinion, but a statement of this nature is actionable only if it
implies the allegation of undisclosed defamatory facts as the
basis for the opinion").
Our supreme court adopted this test in Kolegas and applied
it again in Bryson. We note, however, that neither Hopewell nor
defendants in this case articulated or applied this test in their
arguments. Nonetheless, we give due consideration to their
arguments where congruous with the principles announced in
Milkovich and adopted by our supreme court.
To determine whether a statement reasonably presents or
implies the existence of facts about the plaintiff, we review
three considerations, all of which were used by courts prior to
Milkovich. Milkovich, 497 U.S. at 24, 111 L. Ed. 2d at 21, 110 S. Ct. at 2708-09 (Brennan, J., dissenting, joined by Marshall,
J.). First, we consider whether the language of the statement
has a precise and readily understood meaning, while bearing in
mind that the first amendment protects overly loose, figurative,
rhetorical, or hyperbolic language, which negates the impression
that the statement actually presents facts. Bryson, 174 Ill. 2d
at 100; Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861,
865-67 (1995); Barakat v. Matz, 271 Ill. App. 3d 662, 671-72
(1995); Kumaran, 247 Ill. App. 3d at 228; Milkovich, 497 U.S. at
21, 111 L. Ed. 2d at 19, 110 S. Ct. at 2707; Levin v. McPhee, 119 F.3d 189, 196 (2d Cir. 1997); Levinsky's, Inc. v. Wal-Mart
Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997). Second, we
consider whether the general tenor of the context in which the
statement appears negates the impression that the statement has
factual content. Bryson, 174 Ill. 2d at 101; Quinn, 276 Ill.
App. 3d at 865; Barakat, 271 Ill. App. 3d at 672; Kumaran, 247
Ill. App. 3d at 228; Milkovich, 497 U.S. at 21, 111 L. Ed. 2d at
19, 110 S. Ct. at 2707; Levin, 119 F.3d at 196. Lastly, we
consider whether the statement is susceptible of being
objectively verified as true or false. Bryson, 174 Ill. 2d at
100-01; Quinn, 276 Ill. App. 3d at 865; Barakat, 271 Ill. App. 3d
at 671-72; Kumaran, 247 Ill. App. 3d at 228; Piersall v.
Sportsvision of Chicago, 230 Ill. App. 3d 503, 510 (1992);
Milkovich, 497 U.S. at 21, 111 L. Ed. 2d at 19, 110 S. Ct. at
2707; Levin, 119 F.3d at 196. While this approach considers the
context within which the alleged defamatory statement appears,
its emphasis is on whether the statement contains an objectively
verifiable assertion. See Milkovich, 497 U.S. at 19-21, 111 L. Ed. 2d at 18-19, 110 S. Ct. at 2706-07. See generally D. McLean,
Clarification of Fact/Opinion Distinction Badly Needed, 15 Comm.
& L. 55, 55, 61-63 (December 1993); Note, Post-Milkovich
Defamation: Is Everyone Still Entitled to Their Opinion?, 65 St.
John's L. Rev. 1105, 1108-09 (1991); N. Bowman, Milkovich Meets
Modern Federalism in Libel Law: The Lost Opinion Privilege Gives
Birth To the Enhanced State Constitutional Protection, 42 DePaul
L. Rev. 583, 592, 607 (1992).
Before analyzing the statement at issue, we first note how
we read the statement "fired because of incompetence."
Considering that Hopewell has freely admitted in his pleadings
against the Senator and to the press that he was "fired," we
interpret the statement to mean that the basis for his firing was
because he was incompetent or not capable.
After review of the considerations outlined above, we find
that "fired because of incompetence" is nonactionable opinion.
First, the statement does not have a precise and readily
understood meaning. Regardless of the fact that "incompetent" is
an easily understood term, its broad scope renders it lacking the
necessary detail for it to have a precise and readily understood
meaning. There are numerous reasons why one might conclude that
another is incompetent; one person's idea of when one reaches the
threshold of incompetence will vary from the next person's.
Without the context and content of the statement to limit the
scope of "incompetent," we cannot say that there is a precise
meaning relating to the alleged defamatory statement.
Second, the tenor and context of the article in which the
statement appeared also plainly show that the statement was
nonactionable opinion. The article in which Vitullo's statement
was found was riddled with allegations concerning the Senator's
campaign financial affairs. The article asserted that these
allegations were from either Hopewell's complaint or Hopewell's
attorney. Readers easily could conclude that Vitullo's statement
as well as Hopewell's allegations were efforts at posturing
before the ensuing legal battle between the Senator and Hopewell.
Moreover, there were no other assertions within the article
developing Vitullo's accusation.
Lastly, the veracity of the statement cannot be verified.
Although the public might infer undisclosed and unassumed facts
that support Vitullo's opinion, the statement is so ambiguous and
indefinite that any inferable facts flow from numerous possible
facts that might conceivably support the conclusion that Hopewell
was "incompetent." Without a more specific reference to
Hopewell's conduct or character to narrow the undisclosed,
implied facts to a finite group, one cannot reasonably determine
which implied fact or set of facts was necessary to support
Vitullo's opinion. As such, any reasonable determination of
whether the statement's possible underlying facts are indeed
false is foreclosed because it would entail an endless analysis
of each and every fact connected with the execution of Hopewell's
duties as treasurer and CFO of the Committee. Thus, we find that
the statement is too broad, conclusory, and subjective to be
objectively verifiable.
Moreover, our observation of the social context and setting
in which the statement was published also leads us to conclude
that readers would readily consider it an opinion without factual
support. See Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d
861, 865 (1995); Barakat v. Matz, 271 Ill. App. 3d 662, 672
(1995); Kumaran, 247 Ill. App. 3d at 228. In light of today's
ever controversial political climate and the conflict between the
parties, the public most likely understood Vitullo's statement as
substanceless rhetoric. Vitullo's statement followed a barrage
of accusations from Hopewell's complaint and his attorney. The
statement was essentially Vitullo's attempt to divert attention
away from the Senator and the Committee's alleged mismanagement
of campaign finances. As such, the social context undercuts a
finding that the statement is actionable.
Even though our analysis leads us to conclude that the
statement is nonactionable opinion, we note that the cases
Hopewell cites for support are unpersuasive and distinguishable
from the instant case. In each of those cases where the court
found the alleged defamatory statements to be actionable, the
court also found specific verifiable facts underlying those
statements. See Barakat, 271 Ill. App. 3d at 672 (defendant's
remarks that "defendant 'had patients from [plaintiff] before';
that defendant 'found nothing wrong with his patients'; that
plaintiff's 'practice was a joke'; that plaintiff was not 'any
good as a doctor'; and that plaintiff's 'opinion wasn't any
good' " were found to be at least statements mixed with fact and
opinion because the court believed that there was "an underlying
factual basis which could be verified, i.e., previous patients
from plaintiff which were examined by defendant"); Quality
Granite Construction Co. v. Hurst-Rosche Engineers, Inc., 261
Ill. App. 3d 21, 26-27 (1994) (court found the defendant's
statement that " 'the [plaintiff]'s failure to complete the
project in a timely manner, substandard workmanship, reluctance
to complete punch list items and inability to correctly interpret
the contract documents, plans and specifications as bid' " were
actionable statements of mixed opinion and fact because the
assertions were verifiable). But see McGuire v. Jankiewicz, 8
Ill. App. 3d 319, 319 (1972) (the court found the statement
" 'you could not have chosen a worse attorney' " to be defamatory
per se, but the court never sought to determine whether it was
one of fact or opinion).
In fact, we find that the case law addressing statements
similar to the one in the instant case further supports our
conclusion that Vitullo's statement is one of nonactionable
opinion. In Doherty, the court found the statements "that
plaintiff was 'incompetent,' 'lazy,' 'dishonest,' 'cannot manage
a business,' and/or 'lacks the ability to perform landscaping
services' " to be nonactionable opinion because there were no
specific facts at the root of the statements. Doherty, 289 Ill.
App. 3d at 554, 556-57. Similarly, in Piersall, the court found
defendant's statement that "[plaintiff] is a liar" to be
nonactionable opinion because it lacked a factual basis
surrounding the statement. Piersall, 230 Ill. App. 3d at 511.
In conclusion, we note that in one sense all opinions imply
facts; however, the question of whether a statement is actionable
is one of degree. Illinois Tort Law 5.02, at 5-5. "The vaguer
and more generalized the opinion the more likely the opinion is
non-actionable as a matter of law. To say that a businessman is
guilty of 'poor management' is, therefore, not defamatory."
Illinois Tort Law 5.02, at 5-5. In light of the authority
reviewed above, we conclude that the alleged defamatory
statement--"fired because of incompetence"--is too vague and
general to support an action for defamation as a matter of law.

IV. CONCLUSION
Having found that Hopewell failed to allege an actionable
defamatory statement to support his cause of action for
defamation, we need not address the remaining issues raised on
appeal. Therefore, for the above reasons, we affirm the circuit
court of Cook County.
Affirmed.
TULLY and COUSINS, JJ., concur.