Adams v. Sussman & Hertzberg, Ltd.
Annotate this Case
THIRD DIVISION
August 27, 1997
No. 1-95-2801
JOHN W. ADAMS, )
)
Plaintiff-Appellant, )
) APPEAL FROM THE CIRCUIT
v. ) COURT OF COOK COUNTY.
)
SUSSMAN & HERTZBERG, LTD., an )
Illinois Corporation; WILLIAM A. )
HERTZBERG, LTD., an Illinois ) HONORABLE DANIEL J.
Corporation; HARVEY SUSSMAN; ) WHITE, JUDGE PRESIDING.
WILLIAM HERTZBERG and SANDRA )
HERTZBERG, )
)
Defendants-Appellees. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Plaintiff brought this legal malpractice action to recover damages
allegedly occasioned by the defendants' negligence in failing to prosecute
plaintiff's lawsuit against Hertz corporation and a Hertz employee for
intentional infliction of emotional distress, malicious prosecution, and
defamation. At trial, the defendants' admitted their breach of duties but
contended that the plaintiff could not establish that he would have been
successful in proving his claims in the underlying action. At the conclusion
of trial, the jury returned a general verdict against the defendants in the
amount of $300,000.
The defendants filed a motion for judgment notwithstanding the verdict.
The trial court granted the motion with respect to plaintiff's underlying
claim of intentional infliction of emotional distress and plaintiff's claim
for punitive damages but denied the motion with respect to plaintiff's claims
for malicious prosecution and defamation ordering instead that a new trial be
granted on those claims. Plaintiff filed a petition for leave to appeal
pursuant to Supreme Court Rule 306(a)(1) (155 Ill. 2d R. 306(a)(1)) which was
granted by this court.
The issues raised by the plaintiff in this appeal are: (1) whether the
plaintiff established his underlying claim for intentional infliction of
emotional distress; (2) whether the plaintiff was entitled to punitive damages
in the attorney malpractice action where those damages were recoverable in the
underlying action; and (3) whether the trial court erred in vacating the
judgment in its entirety and ordering a new trial. The defendants argue
pursuant to Supreme Court Rule 306(a) that the trial court erred in failing to
grant judgment notwithstanding the verdict on plaintiff's underlying claims
for malicious prosecution and defamation.
In a legal malpractice action, a plaintiff must prove the existence of
an attorney-client relationship; a duty arising from that relationship; a
proximate causal relationship between the breach of duty and damages
sustained; and actual damages. E.g., Glass v. Pitler, 276 Ill. App. 3d 344,
657 N.E.2d 1075 (1995). Damages are not presumed; the plaintiff must
affirmatively plead and prove that he suffered injury as a result of the
attorney's malpractice. Glass, 276 Ill. App. 3d 344, 657 N.E.2d 1075;
Sheppard v. Krol, 218 Ill. App. 3d 254, 578 N.E.2d 212 (1991). Where the
attorney's negligence is alleged to have occurred during the attorney's
representation of the client in an underlying action that never reached trial
because of that negligence, the plaintiff is required to prove that but for
the attorney's negligence he would have been successful in that underlying
action. Sheppard, 218 Ill. App. 3d 254, 578 N.E.2d 212; Dunavan v.
Calandrino, 167 Ill. App. 3d 952, 522 N.E.2d 347 (1988). As a result, the
malpractice plaintiff is required to prove a case-within-a-case, that is, the
plaintiff is required to prove the underlying action and what his recovery
would have been in that prior action absent the alleged malpractice. Glass,
276 Ill. App. 3d 344, 657 N.E.2d 1075; Nika v. Danz, 199 Ill. App. 3d 296, 556 N.E.2d 873 (1990).
The evidence presented by the plaintiff in support of his underlying
lawsuit against Hertz corporation and the Hertz employee for intentional
infliction of emotional distress, malicious prosecution and defamation is as
follows.
On March 10, 1979, the plaintiff, an IBM employee, was driving an
automobile that had been leased from defendant Hertz corporation by another
IBM employee, Sharon Kendall, who had been in Chicago on business. At
approximately 6 p.m., the plaintiff was stopped by a Chicago police officer,
Alan Lucas, because the license plates on the rental vehicle had expired.
Lucas testified that the plaintiff told him that the automobile was leased and
that he did not have a copy of the lease agreement with him. Lucas ran a name
and vehicle check and, after being advised that the plaintiff was wanted on
traffic warrants, arrested the plaintiff. Lucas stated that the plaintiff
then told him that the automobile was leased by a friend who let him use it.
He stated that the plaintiff's arrest on the street was based solely on the
outstanding traffic warrants. Lucas testified that upon arriving at the
police station, he contacted Hertz security manager, Ronald Dziagwa, and
confirmed that the vehicle belonged to Hertz and that it had not been reported
stolen. Lucas stated that after his conversation with Dziagwa, Lucas charged
the plaintiff with criminal trespass to vehicles, the traffic violation, and
the traffic warrants.
On cross-examination, Lucas stated that he issued two traffic citations
to the plaintiff; one dealt with restrictions on the back of plaintiff's
driver's license and the other dealt with the display of registration plates
and stickers. He stated that he became suspicious of the plaintiff when the
plaintiff did not produce a rental agreement and because the plaintiff gave
conflicting accounts of who had leased the vehicle. Lucas testified that the
plaintiff first told him that he had rented the car and after being told that
he was under arrest the plaintiff told him that his friend leased the car. He
admitted that his police report only said that the plaintiff said the car was
rented from Hertz. Lucas did not recall what he told Dziagwa but stated that
he probably told Dziagwa that the plaintiff told him that his friend rented
the car.
Ronald Dziagwa testified that he received a telephone call from Officer
Lucas. Lucas told him that the plaintiff had been stopped driving a Hertz
automobile with expired license plates. He also told him that the plaintiff
initially stated that the car belonged to a friend; that there was no rental
agreement in the car; and that there was not a valid driver's license. Lucas
did not tell him that the plaintiff was an IBM employee or that the plaintiff
had given the police his IBM I.D. card. Dziagwa testified that he contacted
the O'Hare Hertz office and was told that Sharon Kendall, an IBM employee, had
used a "Company I.D." to lease the automobile on February 11, 1979 and was to
return the vehicle on February 14, 1979. After Dziagwa unsuccessfully
attempted to contact Kendall, he telephoned Lucas and authorized him to sign a
complaint on Hertz's behalf charging the plaintiff with criminal trespass to
motor vehicles, a misdemeanor.
Dziagwa testified that Kendall returned his telephone call at 8:30 p.m.,
eastern standard time, and that she told Dziagwa that she had given the car to
the plaintiff. After talking to Kendall, Dziagwa telephoned Lucas and told
him to "be ready for trouble on this one." He did not discuss with Lucas the
possibility of withdrawing the complaint. He stated that at the direction of
his superiors, he never signed the complaint and never appeared in court.
Dziagwa did not personally advise the plaintiff that Hertz would not proceed
with the prosecution because "that was between [the plaintiff] and somebody
else." It was Dziagwa's understanding that someone had spoken to the
plaintiff about dropping the charges.
On cross-examination, Dziagwa stated that, when he received the
telephone call from Officer Lucas, Lucas told him that the plaintiff was under
arrest for some other charge. Lucas also told him that there was no rental
agreement in the car. When asked whether he was told about any violations of
the restrictions on the plaintiff's driver's license, Dziagwa testified that
he thought the officer told him that the plaintiff did not have a valid
driver's license. He stated that if a person does not have a valid driver's
license or if a person operates a Hertz vehicle in violation of his license
restrictions that he would be driving in violation of the Hertz rental
agreement and would be considered an unauthorized user.
Kendall testified by evidence deposition that she leased an automobile
from Hertz on February 11, 1979 for one day. On February 12, 1979, she
returned to her residence in Boston and gave the automobile to the plaintiff
because he needed it for business purposes but did not notify Hertz as to the
change. Kendall also testified that on March 10, 1979, she received a message
to call Dziagwa regarding plaintiff's arrest in relation to a Hertz rental car
and that at approximately 8:30 eastern standard time she spoke with Dziagwa
who told her to call Officer Lucas.[fn1] After her conversation with Lucas,
Kendall telephoned Dziagwa. During that conversation, Dziagwa told her that
he was not going to let the plaintiff go and for his reasons referred to
plaintiff's "license plates, the warrant out for his arrest, and past offenses
in other places along with cars, something to do with car theft."
Kendall also testified that she had several conversations with a man
named Mr. Remy who was a manager at Hertz. Remy promised to get the situation
straightened out and told her that "the charges would be cleared up" as soon
as the plaintiff would come to his office and show his IBM identification.
Kendall further testified that the only people she talked to about the
incident and Dziagwa's statements were the plaintiff's mother and sister.
Kendall stated that after the incident she did not feel differently about the
plaintiff and her respect for the plaintiff never changed.
The plaintiff testified that on March 10, 1979 he was stopped by two
police officers who told him that he was driving an automobile with expired
license plates. He stated that he told the officers that he did not know the
plates were expired because the automobile was a rental car from Hertz. He
also told them that Sharon Kendall had rented the car and had given it to him
to use while his personal automobile was being repaired. The plaintiff
testified that he provided the officers with his driver's license and with his
IBM identification card. He stated that the police returned to their car,
talked on the radio, and then arrested him for criminal trespass to a motor
vehicle. The plaintiff stated that after his arrest, he was handcuffed,
photographed, fingerprinted, shuttled to two police stations, interrogated and
incarcerated through the night until he was released on bail on Sunday, March
11, 1979. When questioned concering his reaction to his arrest and
incarceration, he stated that he was afraid and fearful about his career and
what his colleagues, friends and loved ones would think and hear about his
being charged with a criminal act that he did not commit. He stated that he
cried when his mother arrived at the police station to post bail. The
plaintiff testified that he was unable to give a major presentation the
following Monday because his slides and presentation materials were in the
confiscated Hertz automobile. He stated that he was forced to take time off
from work to attend the court hearing with respect to the criminal charges and
that he had to tell his immediate supervisor, Booker Daniels, about his
arrest.
The plaintiff testified concerning his job mobility and the awards and
recognition he received as an IBM employee. He stated that, a month after his
arrest, he was asked by his immediate supervisor who knew about the arrest, to
resign as a marketing manager and be put on an "improvement plan." He refused
and was moved into a lateral position at a smaller office which generated less
revenue and thereafter, during the remaining thirteen years that he remained
at IBM, was never given the opportunity to be in a significant, high
visibility job at IBM. On cross-examination, the plaintiff admitted that his
salary increased regularly beginning with a monthly salary of $600 in 1975;
$1,654 in 1978; $1,935 in 1980; $4,950 in 1986 and $6,795 in 1991 when he left
IBM.
Plaintiff's immediate supervisor and an IBM branch manager, Booker
Daniels, testified concerning plaintiff's performance at IBM. He stated that
the plaintiff was "rookie of the year for the district" in 1975. According to
Daniels, the plaintiff did not follow the normal career path. He did not "go
to the normal staff assignment" after working as a marketing representative
and instead was promoted directly to a marketing manager position in 1978.
With respect to a written evaluation prepared on the plaintiff in January
1979, before the March 10, 1979 incident, Daniels stated that he considered
plaintiff's first-year performance as a marketing manager to be acceptable;
that the plaintiff needed to improve in the area of engendering trust in
leadership; and that the plaintiff exceeded his goal requirements and received
high evaluations with respect to quota and actual sales achievements on the
written evaluation prepared in January 1979. Daniels admitted that the
plaintiff's performance as marketing manager was not as successful as it was
when he was a sales representative. Daniels explained that, as a marketing
manager, the plaintiff had a "slow start" in the performance category of
"rapport and relationship with administration"; that the plaintiff's time
response to customer complaints needed improvement; and that the plaintiff was
given the lowest acceptable rating in the management and personnel
responsibilities category. Daniels testified that the plaintiff's performance
did not improve after the January 1979 evaluation as was required.
Daniels stated that he did not consider the March 10 incident in his
evaluation of plaintiff's job performance. He stated that the incident was
not reported in plaintiff's personnel file at IBM. In his opinion, the event
did not damage the plaintiff's reputation.
The plaintiff's complaint in the underlying action against Hertz and
Dziagwa, which was dismissed on December 16, 1985 for failure to comply with
discovery orders, sought compensatory damages in the amount of $300,000 for
intentional infliction of emotional distress; $350,000 for the wilful
violation of plaintiff's constitutional rights; $750,000 for defamation;
$250,000 for false imprisonment; $50,000 for conversion; $305 for lost income;
$500 for restitution of attorney fees; and $750,000 in punitive damages.
During the pendency of the instant malpractice action and pursuant to
defendants' motion, the trial court granted summary judgment in defendants'
favor as to several of plaintiff's underlying claims leaving for trial the
claims of intentional infliction of emotional distress, defamation and
malicious prosecution. As punitive damages were recoverable with respect to
the claims for malicious prosecution and defamation, the trial court refused
to strike that request for relief and the malpractice action proceeded to
trial. At the conclusion of plaintiff's case, the defendants moved for a
directed verdict. That motion was denied. At the conclusion of trial, the
jury returned a general verdict in plaintiff's favor in the amount of
$300,000. The court then granted defendants' motion for judgment
notwithstanding the verdict with respect to plaintiff's claims for intentional
infliction of emotional distress and for punitive damages and granted a new
trial on the claims for malicious prosecution and defamation.
Disposition of the instant appeal requires that we first consider
whether judgment notwithstanding the verdict was proper with respect to
plaintiff's underlying intentional infliction of emotional distress claim and
then whether judgment notwithstanding the verdict should have been entered
with respect to plaintiff's underlying claims for malicious prosecution and
defamation. If the evidence at trial was sufficient to support either of the
latter two claims, then we must address the issue of whether punitive damages
recoverable under those claims can be recovered as compensatory damages in
this attorney malpractice action. Finally, we must determine whether the
general verdict returned in the instant case should have been set aside and a
new trial ordered when judgment on some but not all of the underlying claims
was vacated.
I. Intentional Infliction of Emotional Distress
The trial court's grant of judgment notwithstanding the verdict is
proper only when all of the evidence, when viewed in its aspect most favorable
to the opponent, so overwhelmingly favors the movant that no contrary verdict
based on the evidence could ever stand. E.g., Pedrick v. Peoria & Eastern
R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967); Kennan v. Checker Taxi Co.,
250 Ill. App. 3d 155, 620 N.E.2d 1208 (1993). To prove a cause of action for
intentional infliction of emotional distress, the plaintiff must establish
three elements: (1) extreme and outrageous conduct; (2) intent or knowledge
by the actor that there is at least a high probability that his or her conduct
would inflict severe emotional distress and reckless disregard of that
probability; and (3) severe and emotional distress. Public Finance Corp. v.
Davis, 66 Ill. 2d 85, 360 N.E.2d 765 (1976); Knysak v. Shelter Life Insurance
Co., 273 Ill. App. 3d 360, 652 N.E.2d 832 (1995); Hearon v. City of Chicago,
157 Ill. App. 3d 633, 510 N.E.2d 1192 (1987). Extreme and outrageous conduct
sufficient to create liability for intentional infliction of emotional
distress is defined as conduct that exceeds all bounds of human decency and
that is regarded as intolerable in a civilized community. Public Finance
Corp., 66 Ill. 2d 85, 360 N.E.2d 765; Khan v. American Airlines, 266 Ill. App.
3d 726, 639 N.E.2d 210 (1994). The tort does not extend to " 'mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities' "
(McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806 (1988), quoting Restatement
(Second) of Torts 46, comment d, at 73 (1965)); and the infliction of such
emotional distress as fright, horror, grief, shame, humiliation and worry is
not sufficient to give rise to a cause of action. The emotional distress
required to support the cause of action must be so severe that no reasonable
person could be expected to endure it. Public Finance Corp., 66 Ill. 2d 85,
360 N.E.2d 765. See generally Restatement (Second) of Torts 46, comment j,
at 77 (1965). The intensity and the duration of the distress are factors to
be considered in determining its severity. Lundy v. Calumet City, 209 Ill.
App. 3d 790, 567 N.E.2d 1101 (1991).
In the instant case the plaintiff failed to prove severe emotional
distress. There is no doubt that the plaintiff suffered shame, humiliation
and worry as a result of Hertz's request that the plaintiff be charged with
criminal trespass to vehicles. In this regard, we first note that the
plaintiff presented no evidence to show that the processing that occurred at
the police station was the result of the charge brought by Hertz rather than
the result of his arrest based upon the outstanding warrant. Moreover, even
if it could be attributable to the Hertz charge, the type of emotional
distress suffered by the plaintiff does not support a claim for intentional
infliction of emotional distress. Actionable distress is that which is so
severe that no reasonable person could be expected to endure it. See Public
Finance, 66 Ill. 2d 85, 360 N.E.2d 765; Khan, 266 Ill. App. 3d 726, 639 N.E.2d 210 (recurring nightmares and problems with sleeping and fear of re-arrest is
not severe distress); Lundy, 209 Ill. App. 3d 790, 567 N.E.2d 1101
(embarrassment or distress suffered by plaintiff police officers when they
were stripped of badges and guns and relieved of duty until they could undergo
a psychological reevaluation did not support claim for intentional infliction
of emotional distress). Here, when questioned concerning his
reaction to his arrest and incarceration, the plaintiff stated that he was
afraid; that he was fearful about his career and what his colleagues, friends
and loved ones would think and hear about his being charged with a criminal
act that he did not commit; and that he cried when his mother arrived at the
police station to post bail. There was no evidence to show the severity of
the distress he suffered, i.e., that he was hospitalized, sought and received
psychiatric treatment, or even was prescribed medication. See Knysak v.
Shelter Life Insurance Co., 273 Ill. App. 3d 360, 652 N.E.2d 832 (1995)
(depression and distress suffered as a result of insurer's failure to pay
insured spouse's medical bills was not severe or extreme emotional distress).
See generally Restatement (Second) of Torts 46, comment k, at 78 (1965)
(while bodily harm is not required it affords evidence that distress was
genuine and severe). Absent proof that the emotional distress suffered by the
plaintiff was so severe so as to exceed all bounds of human decency, the
stringent test established for this tort has not been satisfied. See, e.g.,
Public Finance Corp., 66 Ill. 2d 85, 360 N.E.2d 765; Knysak, 273 Ill. App. 3d
360, 652 N.E.2d 832; Khan, 266 Ill. App. 3d 726, 639 N.E.2d 210.
In addition to the failure to prove severe and emotional distress, the
plaintiff failed to prove extreme and outrageous conduct. The plaintiff
argues that Dziagwa and Hertz engaged in extreme and outrageous conduct when
they caused his arrest on a criminal charge that he did not commit and refused
to dismiss the charge against him thereby requiring him attend a court
hearing. We disagree.
The evidence, viewed in its aspect most favorable to the plaintiff, does
not support an intentional infliction of emotional distress claim. The nature
of the conduct alleged against Dziagwa does not rise to the level of extreme
outrageousness so as to go beyond all possible bounds of decency. Initially,
we note that Dziagwa was not the cause of defendant's arrest by Officer Lucas.
Lucas' uncontroverted testimony showed that the plaintiff was placed under
arrest after a name and vehicle check showed the existence of traffic warrants
based upon outstanding traffic violations. The evidence showed that after the
plaintiff was taken into custody and brought to the police station, Lucas
telephoned Hertz and spoke to Dziagwa. After Dziagwa was unable to reach
Kendall, the IBM employee who had leased the vehicle, Dziagwa told Lucas to
charge the plaintiff with criminal trespass to a vehicle. At that time
Dziagwa was unaware that the plaintiff was an IBM employee[fn2] and knew only
that the vehicle should have been returned to Hertz more than a month earlier.
Dziagwa's decision to authorize the complaint made under these circumstances
cannot be said to be outrageous conduct. See Khan, 266 Ill. App. 3d 726, 639 N.E.2d 210 (conduct of airline employees in allegedly entrapping plaintiff and
having him arrested did not go beyond all possible bounds of decency);
Anderson v. Forest Park, 238 Ill. App. 3d 83, 606 N.E.2d 205 (1992) (police
officers' removal of plaintiff from her residence and subjecting her to
involuntary mental examination did not support a claim for intentional
infliction of emotional distress). Even if later that evening Dziagwa may
have become aware of the fact that the plaintiff was an IBM employee and that
he was authorized to use the rental vehicle, Dziagwa's failure to withdraw the
criminal complaint still would not have risen to the level of extreme
outrageousness. As will be more fully discussed below with respect to
plaintiff's malicious prosecution claim, after that complaint was signed, the
furtherance and prosecution of the criminal action was in the control of the
state's attorney; and neither Dziagwa nor Hertz could have withdrawn the
complaint. See 55 ILCS 5/3-9005(a)(1) (West 1994) (it is the duty of the
state's attorney to prosecute criminal proceedings); People v. Eisele, 77 Ill.
App. 3d 766, 396 N.E.2d 662 (1979) (state's attorney can file motion to nol-
pros where defendant charged by complaint and witness could not identify
defendant at trial). Moreover, aside from the fact that a private complainant
lacks the power to preempt the discretion of the prosecutor to proceed on the
complaint, any omission in failing to inform the prosecutor of newly
discovered information relevant to the criminal action set in motion would
arguably, at best, constitute passive conduct that by its very nature could
not rise to the level of outrageous conduct.
II. Malicious Prosecution
With respect to the underlying claim for malicious prosecution, the
plaintiff was required to prove: (1) the commencement or continuation of an
original or criminal judicial proceeding by the defendant; (2) the termination
of the prosecution in favor of the plaintiff in a manner indicative of the
innocence of the plaintiff; (3) the absence of probable cause for such
proceeding; (4) the presence of malice; and (5) damages resulting to the
plaintiff. E.g., Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238 (1996);
Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229 (1980); Vincent
v. Williams, 279 Ill. App. 3d 1, 664 N.E.2d 650 (1996); Khan, 266 Ill. App. 3d
726, 639 N.E.2d 210 (1994). The burden is on the plaintiff to prove each of
these elements; and the absence of any one of them bars a plaintiff from
recovery. See Swick, 169 Ill. 2d 504, 662 N.E.2d 1238.
At trial and during this appeal, the defendants argue that they were
entitled to judgment notwithstanding the verdict on plaintiff's claim for
malicious prosecution because the plaintiff did not establish termination of
the prosecution in a manner indicative of the innocence of the plaintiff and
because the plaintiff did not establish absence of probable cause. While we
do not agree with their first contention, we do find merit with respect to the
second contention.
The evidence at trial regarding the favorable termination element showed
that Dziagwa did not appear in court to testify against the plaintiff and that
the State's Attorney dismissed the charges. In Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238 (1996), a case of first impression, the court dealt with
the issue of whether a nolle prosequi by the State's Attorney constitutes a
favorable termination in malicious prosecution actions. In that regard the
court stated:
"In a criminal context, a nolle prosequi 'is not a final
disposition of a case but *** is a procedure which reverts the
matter to the same condition which existed before the commencement
of the prosecution.' (People v. Woolsey (1990), 139 Ill. 2d 157,
163, 564 N.E.2d 764). In the civil malicious prosecution context,
the majority rule is that a criminal proceeding has been
terminated in favor of the accused when a prosecutor formally
abandons the proceeding via a nolle prosequi, unless the
abandonment is for reasons not indicative of the innocence of the
accused. [Citations.] The abandonment of the proceedings is not
indicative of the innocence of the accused when the nolle prosequi
is the result of an agreement or compromise with the accused,
misconduct on the part of the accused for the purpose of
preventing trial, mercy requested or accepted by the accused, the
institution of new criminal proceedings, or the impossibility or
impracticability of bringing the accused to trial. (Restatement
(Second) of Torts 660, 661 (1977).) We find that the majority
rule best reflects the need to balance an individual's right to be
free from unreasonable criminal prosecutions with the public
policy which favors the exposure of crime. (See Joiner, 82 Ill. 2d at 44, 411 N.E.2d 229 ('[p]ersons acting in good faith who have
probable cause to believe crimes have been committed should not be
deterred from reporting them by the fear of unfounded suits by
those accused').)" 169 Ill. 2d at 512-13, 662 N.E.2d at 1242-43.
In Swick, the plaintiff alleged that the nolle prosequi was entered
because of a lack of evidence showing his guilt. The nolle prosequi order did
not reflect the reason for its entry. No evidence was produced at trial to
prove that the nolle prosequi order was entered in a manner indicative of the
plaintiff's innocence. However, recognizing that the issue was one of first
impression, the court remanded the case to give the plaintiff the opportunity
to prove his assertion.
In the instant case, the defendants argue that the plaintiff here, as in
Swick, did not establish the specific nature of the dismissal, that is,
whether the charges were dismissed by a nolle prosequi order or whether the
case was stricken from the docket with leave to reinstate (see Vincent, 279
Ill. App. 3d 1, 664 N.E.2d 650 (striking case from docket with leave to
reinstate is not a legal termination in favor of the accused)). We disagree.
Dziagwa testified that he did not and would not testify against the plaintiff
in the criminal action because he had been ordered by his superiors not to do
so. This testimony clearly established the reason for the dismissal of the
criminal action, the State's inability to prove its case against the accused.
A dismissal on that basis is a termination in favor of the accused indicative
of the accused's innocence. See Reell v. Petritz, 224 Ill. App. 65 (1922)
(dismissal of larceny charge by prosecutor was termination of the proceeding
in favor of the plaintiff); Farris v. Messimore, 219 Ill. App. 582 (1920)
(dismissal of charge by justice of peace for failure of complaining witness to
appear was a termination of the proceeding in favor of the plaintiff). See
also Rich v. Baldwin, 133 Ill. App. 3d 712, 479 N.E.2d 361 (1985) citing Loeb
v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 847 (1980) (dismissal of criminal
charges based upon plaintiff's speedy trial motion constituted termination of
the proceedings in favor of the plaintiff since prosecutor's failure to
proceed on the merits implies lack of reasonable grounds for the prosecution).
We find merit, however, with defendants' second malicious prosecution
contention that the plaintiff did not establish an absence of probable cause
by Dziagwa to commence or continue the criminal proceedings. As stated in
Mack v. First Security Bank, 158 Ill. App. 3d 497, 502, 511 N.E.2d 714, 717
(1987), probable cause is "a state of facts *** that would lead a person of
ordinary care and prudence to believe or to entertain an honest and sound
suspicion that the accused committed the offense charged." The existence of
probable cause is a mixed question of law and fact. Mack, 158 Ill. App. 3d
497, 511 N.E.2d 714. "'Whether the circumstances proved to show probable
cause are true is a question of fact, but, if true, whether they amount to
probable cause is a question of law to be decided by the court.'" Ely v.
National Super Markets, Inc., 149 Ill. App. 3d 752, 758, 500 N.E.2d 120, 124
(1986) quoting 25 Ill. L. & Prac. Malicious Prosecution 42 (1956). A person
has probable cause to believe that the misdemeanor offense of criminal
trespass to vehicles has been committed when the accused "knowingly and
without authority enters any vehicle *** of another without his consent."
Ill. Rev. Stat. 1977, ch. 38, par. 21-2 now codified at 720 ILCS 5/21-2 (West
1996).
Viewing the facts in the light most favorable to the plaintiff, it is
clear that the plaintiff failed to prove that Dziagwa lacked probable cause at
the time he authorized Lucas to sign the criminal complaint on behalf of
Hertz. The uncontroverted facts establish probable cause as a matter of law.
See Ely, 149 Ill. App. 3d 752, 500 N.E.2d 120 (applying Pedrick standard and
reversing malicious prosecution verdict). As noted above, it was undisputed
that at the time Dziagwa authorized Lucas to charge the plaintiff with
criminal trespass to vehicles, Dziagwa had been advised by Lucas that the
plaintiff had been stopped driving a vehicle with expired license plates; that
the plaintiff had been arrested due to an outstanding warrant; that the
plaintiff stated that the car was leased and belonged to a friend; and that
there was no rental agreement in the car. Upon further investigation, Dziagwa
discovered that the vehicle had been leased to IBM by Sharon Kendall, an IBM
employee, and that the vehicle should have been returned to Hertz more than a
month earlier. Conflicting evidence existed with respect to whether Dziagwa
had been informed by Lucas that the plaintiff's driver's license was invalid.
While Dziagwa testified that he thought he had been told that fact, Lucas only
testified that the plaintiff was cited for violating one of the restrictions
on his driver's license. However, even if Dziagwa's consideration of that
fact was improper, the other information known by Dziagwa and discussed above
was sufficient to establish probable cause for the charge of criminal trespass
to vehicles at the time that charge was made.
The plaintiff argues that Dziagwa did not have probable cause because he
knew that the Hertz vehicle had not been reported stolen and that the vehicle
had been leased to IBM by one of its employees, the defendant's friend, and
that the defendant was authorized to use the vehicle. We disagree.
Plaintiff's authority to drive the Hertz vehicle was not derived from
plaintiff's friendship with Kendall but from his employment status with IBM.
In that regard there was no evidence showing that at the time Dziagwa
authorized the charge against the plaintiff that Dziagwa knew that the
plaintiff was an IBM employee and that he was authorized to drive the vehicle
leased by IBM. Even if the plaintiff's testimony that he gave Lucas his IBM
identification card is to be believed, that testimony would at best establish
Lucas's knowledge, not Dziagwa's knowledge, of plaintiff's status as an IBM
employee. The plaintiff presented no evidence to establish that Lucas
disclosed that information to Dziagwa so as to contradict Dziagwa's testimony
denying any knowledge of that fact. Thus, since the only evidence at trial
showed that Dziagwa did not know of the plaintiff's employment with IBM and
his authority to drive a vehicle leased by that entity, and given the other
facts known by Dziagwa at the time he authorized the charge, one can only
conclude that Dziagwa had probable cause to believe that the plaintiff's use
of the vehicle was unauthorized.
The plaintiff also argues that even if Dziagwa had probable cause to
authorize the initial charging of the plaintiff, he did not have probable
cause to continue the criminal proceedings and thus he and Hertz were liable
for malicious prosecution on that basis as well. Liability for malicious
prosecution can be imposed when an active part is taken in continuing or
procuring the continuation of criminal proceedings. Restatement (Second) of
Torts 655, at 413 (1977). With respect to the type of participation that is
required, the Restatement (Second) of Torts states in pertinent part as
follows:
"[T]he defendant must take an active part in their prosecution
after learning that there is no probable cause for believing the
accused guilty. It is not enough that he appears as a witness ***
and thereby aids in the prosecution of the charges which he knows
to be groundless. His share in continuing the prosecution must be
active, as by insisting upon or urging further prosection. The
fact that he initiated the proceedings does not make him liable
*** merely because he intentionally refrains from informing a
public prosecutor, into whose control the prosecution has passed,
of subsequently discovered facts that clearly indicate the
innocence of the accused." Restatement (Second) of Torts 655,
comment c, at 414 (1977).
See Denton v. Allstate Insurance Co., 152 Ill. App. 3d 578, 504 N.E.2d 756
(1986) (citing Restatement (Second) of Torts 655 (1977) and stating that
defendant's delay in reporting to police its settlement of plaintiff's
insurance claim for theft of his automobile did not constitute active
encouragement or participation in criminal proceedings for attempted theft
instituted by police officer).
Here, while the plaintiff may well be correct in his contention that
Dziagwa did not have probable cause to continue the criminal proceedings if
Kendall informed him that the plaintiff was an IBM employee and had authority
to use the vehicle, the evidence at trial showed that neither Dziagwa nor
Hertz acted affirmatively to continue the criminal proceedings after that
knowledge was acquired. As discussed above, Dziagwa did not attend the
criminal hearing. There was no evidence established that he or anyone else at
Hertz took any action to pursue the criminal action against the plaintiff.
Moreover, once the complaint was initiated by Hertz, the prosecution of the
action became the duty of the state's attorney (see Ill. Rev. Stat. 1979, ch.
14, par. 5(1) now codified at 55 ILCS 5/3-9005(a)(1) (West 1994) (it is the
duty of the state's attorney to initiate and prosecute criminal proceedings);
see People v. Pankey, 94 Ill. 2d 12, 445 N.E.2d 284 (1983) (the State's
Attorney prosecutes all actions by and for the People of the State of
Illinois)); and the dismissal of that action must be pursuant to court order
(see Ill. Rev. Stat. 1979, ch. 38, par. 114-1 now codified at 725 ILCS 5/114-1
(West 1994); see also 725 ILCS Ann. 5/111-1, Committee Comments--1963, at 111
(Smith-Hurd 1992) ("[t]he distinction of the complaint rests in the fact that
neither the grand jury nor the state's attorney sign the written statement
charging the crime")). While Hertz could have notified the State's Attorney
that it would not testify against the plaintiff in the criminal action, the
ultimate decision on whether to continue to prosecute the plaintiff would have
been with the State's Attorney. See People v. Eisele, 77 Ill. App. 3d 766,
396 N.E.2d 662 (1979) (where defendant charged by complaint and witness could
not identify him at trial, proper action by State's Attorney is to file a
motion to nol-pros). Thus, since the evidence at trial showed that Dziagwa
and Hertz did not actively participate in the criminal prosecution after
initiating that action, the plaintiff did not establish his malicious
prosecution action against them and the attorney malpractice defendants were
entitled to judgment notwithstanding the verdict on that claim.
III. Defamation
Plaintiff's defamation claim against Dziagwa and Hertz asserted
defamation per se based upon a statement made by Dziagwa to Kendall in which
Dziagwa allegedly imputed that the plaintiff had committed a crime. The
alleged defamatory statement was explained by Kendall as follows:
"He [Dziagwa] said I am not letting this guy go and proceeded to
give his reasons for not letting this guy go, his license plates,
the warrant out for his arrest and past offenses in other places
along with cars, something to do with car theft."
A statement is considered to be defamatory if it tends to cause harm to
the reputation of another by lowering that person in the eyes of the community
or deterring third persons from associating with the person. Restatement
(Second) of Torts 559 (1977). In Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 201, 206 (1992) our supreme court defined defamation
per se as a "statement [that] is apparent on its face; that is, when the words
used are so obviously and materially harmful to the plaintiff that injury to
his reputation may be presumed." There are four common law categories of
statements that are considered to be defamatory per se: (1) words which
impute the commission of a criminal offense; (2) words that impute infection
with a loathsome communicable disease; (3) words that impute an inability to
perform or want of integrity in the discharge of duties of office or
employment; and (4) words that prejudice a party, or impute lack of ability,
in his or her trade, profession or business. E.g., Costello v. Capital Cities
Communications, Inc., 125 Ill. 2d 402, 532 N.E.2d 790 (1988). In order to
constitute slander per se for imputing the commission of a crime, the crime
must be an indictable one, involving moral turpitude and punishable by death
or by imprisonment in lieu of a fine. Ely v. National Super Markets, Inc.,
149 Ill. App. 3d 752, 500 N.E.2d 120 (1986). A statement is not defamatory if
the words and implications, given their natural and obvious meaning, may
reasonably be innocently interpreted. Mittelman v. Witous, 135 Ill. 2d 220,
552 N.E.2d 973 (1989); Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195
(1982). This determination is a question of law. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207 (1996).
Here, the plaintiff argues that Dziagwa's words were defamatory per se
because they imputed the commission of a criminal offense.[fn3] The
defendants argue that the alleged statement by Dziagwa did not reasonably
impute the commission of a criminal offense. On appeal, they also argue that
the common interest privilege existed. This latter argument is waived because
it was not raised in the trial court. See Mittelman, 135 Ill. 2d 220, 552 N.E.2d 973; Downes Swimming Pool, Inc. v. North Shore National Bank, 124 Ill.
App. 3d 457, 464 N.E.2d 761 (1984).
In support of their first contention the defendants rely on Trembois v.
Standard Ry. Equipment Manufacturing Co., 337 Ill. App. 35, 84 N.E.2d 862
(1949). In that case, the alleged defamatory statements were that the
plaintiff was "mixed in a rape charge"; that "the police arrested him for
jumping bond on the rape charge,"; that the plaintiff "was arrested for
supposedly jumping bond in connection with rape"; that the plaintiff "was
arrested for rape"; and that the plaintiff "was picked up by the police." The
Trembois court found that these words did not impute the commission of the
crime of rape or state that the plaintiff was a rapist. The court noted that
being arrested for an offense and being charged with an offense is not
evidence of guilt of that offense.
Here, as in Trembois, the statements attributed to Dziagwa did not
definitively impute the commission of a crime. The first part of Dziagwa's
statement disclosed that the plaintiff was being held by the police because a
warrant had been issued for the plaintiff's arrest. That statement did not
impute the commission of a crime but, rather, that the defendant had been
arrested. See Trembois, 337 Ill. App. 35, 84 N.E.2d 862. Dziagwa's reference
to "past offenses in other places along with cars, something to do with car
theft" also does not impute the commission of a crime. That statement, like
the statement in Trembois that the plaintiff therein was "mixed in a rape
charge," is vague. It also does not clearly and definitively refer to a
specific offense that is indictable and punishable by death or imprisonment.
It does not state that plaintiff had committed a car theft; but rather, that
he had committed past unspecified offenses that had something to do with car
theft. While the words charging the commission of a crime need not meet the
technical requirements which are necessary for an indictment, the words must
fairly impute the commission of a crime. Crinkley v. Dow Jones & Co., 119
Ill. App. 3d 147, 456 N.E.2d 138 (1983). See Owen v. Carr, 134 Ill. App. 3d
855, 478 N.E.2d 658 (1985), aff'd, 113 Ill. 2d 273, 497 N.E.2d 1145 (1986)
(statement that plaintiff was "trying to 'intimidate' " a judge did not impute
commission of criminal offense of intimidation because term "intimidation" has
a broader, noncriminal meaning). Here, Dziagwa's alleged statement did not
fairly impute that the plaintiff had committed a car theft or any other
indictable criminal offense. Thus, viewing the evidence in a light most
favorable to the plaintiff, we must conclude that the plaintiff did not
establish his underlying claim of defamation per se and the defendants were
entitled to judgment notwithstanding the verdict on that claim as well.
IV. Disposition
For the reasons discussed above, we affirm the trial court's grant of
judgment notwithstanding the verdict to the defendants on plaintiff's
underlying intentional infliction of emotional distress claim. We reverse the
trial court's denial of defendants' motion for judgment notwithstanding the
verdict on plaintiff's underlying malicious prosecution and defamation claims.
As a result, the issues raised in plaintiff's appeal regarding his right to
recover punitive damages in this attorney malpractice action and regarding the
propriety of the trial court's order directing a new trial on the malicious
prosecution and defamation counts have been rendered moot.
For the foregoing reasons, the judgment of circuit court of Cook County
is affirmed in part and reversed in part.
Affirmed in part; reversed in part.
CAHILL AND LEAVITT, JJ., concur.
[fn1]It is unclear from Kendall's testimony whether she told
Dziagwa or Lucas that the plaintiff was an authorized user, that
she and the plaintiff were IBM employees, and that there should
be no problem.
[fn2]Although the plaintiff testified that he told Officer Lucas,
at the time of his arrest, that he was an IBM employee, neither
Lucas nor Dziagwa testified that Lucas relayed that information
to Dziagwa.
[fn3]The plaintiff does not argue defamation per quod apparently
because he could not prove special damages. While damages are
presumed when the statement is defamatory per se (Kolegas v.
Heftel Broadcasting Corp., 154 Ill. 2d 1, 607 N.E.2d 201 (1992)),
they must be alleged and proved when the statement is defamatory
per quod (see Schaffer v. Zekman, 196 Ill. App. 3d 727, 554 N.E.2d 988 (1990)). Bryson v. News America Publications, Inc.,
174 Ill. 2d 77, 672 N.E.2d 1207 (1996). Here the plaintiff did
not prove that he was damaged by Dziagwa's alleged statement to
Kendall. Kendall testified that after the March 10, 1979
incident she did not feel differently about the plaintiff and her
respect for the plaintiff never changed.
August 27, 1997
No. 1-95-2801
JOHN W. ADAMS, )
)
Plaintiff-Appellant, )
) APPEAL FROM THE CIRCUIT
v. ) COURT OF COOK COUNTY.
)
SUSSMAN & HERTZBERG, LTD., an )
Illinois Corporation; WILLIAM A. )
HERTZBERG, LTD., an Illinois ) HONORABLE DANIEL J.
Corporation; HARVEY SUSSMAN; ) WHITE, JUDGE PRESIDING.
WILLIAM HERTZBERG and SANDRA )
HERTZBERG, )
)
Defendants-Appellees. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Plaintiff brought this legal malpractice action to recover damages
allegedly occasioned by the defendants' negligence in failing to prosecute
plaintiff's lawsuit against Hertz corporation and a Hertz employee for
intentional infliction of emotional distress, malicious prosecution, and
defamation. At trial, the defendants' admitted their breach of duties but
contended that the plaintiff could not establish that he would have been
successful in proving his claims in the underlying action. At the conclusion
of trial, the jury returned a general verdict against the defendants in the
amount of $300,000.
The defendants filed a motion for judgment notwithstanding the verdict.
The trial court granted the motion with respect to plaintiff's underlying
claim of intentional infliction of emotional distress and plaintiff's claim
for punitive damages but denied the motion with respect to plaintiff's claims
for malicious prosecution and defamation ordering instead that a new trial be
granted on those claims. Plaintiff filed a petition for leave to appeal
pursuant to Supreme Court Rule 306(a)(1) (155 Ill. 2d R. 306(a)(1)) which was
granted by this court.
The issues raised by the plaintiff in this appeal are: (1) whether the
plaintiff established his underlying claim for intentional infliction of
emotional distress; (2) whether the plaintiff was entitled to punitive damages
in the attorney malpractice action where those damages were recoverable in the
underlying action; and (3) whether the trial court erred in vacating the
judgment in its entirety and ordering a new trial. The defendants argue
pursuant to Supreme Court Rule 306(a) that the trial court erred in failing to
grant judgment notwithstanding the verdict on plaintiff's underlying claims
for malicious prosecution and defamation.
In a legal malpractice action, a plaintiff must prove the existence of
an attorney-client relationship; a duty arising from that relationship; a
proximate causal relationship between the breach of duty and damages
sustained; and actual damages. E.g., Glass v. Pitler, 276 Ill. App. 3d 344,
657 N.E.2d 1075 (1995). Damages are not presumed; the plaintiff must
affirmatively plead and prove that he suffered injury as a result of the
attorney's malpractice. Glass, 276 Ill. App. 3d 344, 657 N.E.2d 1075;
Sheppard v. Krol, 218 Ill. App. 3d 254, 578 N.E.2d 212 (1991). Where the
attorney's negligence is alleged to have occurred during the attorney's
representation of the client in an underlying action that never reached trial
because of that negligence, the plaintiff is required to prove that but for
the attorney's negligence he would have been successful in that underlying
action. Sheppard, 218 Ill. App. 3d 254, 578 N.E.2d 212; Dunavan v.
Calandrino, 167 Ill. App. 3d 952, 522 N.E.2d 347 (1988). As a result, the
malpractice plaintiff is required to prove a case-within-a-case, that is, the
plaintiff is required to prove the underlying action and what his recovery
would have been in that prior action absent the alleged malpractice. Glass,
276 Ill. App. 3d 344, 657 N.E.2d 1075; Nika v. Danz, 199 Ill. App. 3d 296, 556 N.E.2d 873 (1990).
The evidence presented by the plaintiff in support of his underlying
lawsuit against Hertz corporation and the Hertz employee for intentional
infliction of emotional distress, malicious prosecution and defamation is as
follows.
On March 10, 1979, the plaintiff, an IBM employee, was driving an
automobile that had been leased from defendant Hertz corporation by another
IBM employee, Sharon Kendall, who had been in Chicago on business. At
approximately 6 p.m., the plaintiff was stopped by a Chicago police officer,
Alan Lucas, because the license plates on the rental vehicle had expired.
Lucas testified that the plaintiff told him that the automobile was leased and
that he did not have a copy of the lease agreement with him. Lucas ran a name
and vehicle check and, after being advised that the plaintiff was wanted on
traffic warrants, arrested the plaintiff. Lucas stated that the plaintiff
then told him that the automobile was leased by a friend who let him use it.
He stated that the plaintiff's arrest on the street was based solely on the
outstanding traffic warrants. Lucas testified that upon arriving at the
police station, he contacted Hertz security manager, Ronald Dziagwa, and
confirmed that the vehicle belonged to Hertz and that it had not been reported
stolen. Lucas stated that after his conversation with Dziagwa, Lucas charged
the plaintiff with criminal trespass to vehicles, the traffic violation, and
the traffic warrants.
On cross-examination, Lucas stated that he issued two traffic citations
to the plaintiff; one dealt with restrictions on the back of plaintiff's
driver's license and the other dealt with the display of registration plates
and stickers. He stated that he became suspicious of the plaintiff when the
plaintiff did not produce a rental agreement and because the plaintiff gave
conflicting accounts of who had leased the vehicle. Lucas testified that the
plaintiff first told him that he had rented the car and after being told that
he was under arrest the plaintiff told him that his friend leased the car. He
admitted that his police report only said that the plaintiff said the car was
rented from Hertz. Lucas did not recall what he told Dziagwa but stated that
he probably told Dziagwa that the plaintiff told him that his friend rented
the car.
Ronald Dziagwa testified that he received a telephone call from Officer
Lucas. Lucas told him that the plaintiff had been stopped driving a Hertz
automobile with expired license plates. He also told him that the plaintiff
initially stated that the car belonged to a friend; that there was no rental
agreement in the car; and that there was not a valid driver's license. Lucas
did not tell him that the plaintiff was an IBM employee or that the plaintiff
had given the police his IBM I.D. card. Dziagwa testified that he contacted
the O'Hare Hertz office and was told that Sharon Kendall, an IBM employee, had
used a "Company I.D." to lease the automobile on February 11, 1979 and was to
return the vehicle on February 14, 1979. After Dziagwa unsuccessfully
attempted to contact Kendall, he telephoned Lucas and authorized him to sign a
complaint on Hertz's behalf charging the plaintiff with criminal trespass to
motor vehicles, a misdemeanor.
Dziagwa testified that Kendall returned his telephone call at 8:30 p.m.,
eastern standard time, and that she told Dziagwa that she had given the car to
the plaintiff. After talking to Kendall, Dziagwa telephoned Lucas and told
him to "be ready for trouble on this one." He did not discuss with Lucas the
possibility of withdrawing the complaint. He stated that at the direction of
his superiors, he never signed the complaint and never appeared in court.
Dziagwa did not personally advise the plaintiff that Hertz would not proceed
with the prosecution because "that was between [the plaintiff] and somebody
else." It was Dziagwa's understanding that someone had spoken to the
plaintiff about dropping the charges.
On cross-examination, Dziagwa stated that, when he received the
telephone call from Officer Lucas, Lucas told him that the plaintiff was under
arrest for some other charge. Lucas also told him that there was no rental
agreement in the car. When asked whether he was told about any violations of
the restrictions on the plaintiff's driver's license, Dziagwa testified that
he thought the officer told him that the plaintiff did not have a valid
driver's license. He stated that if a person does not have a valid driver's
license or if a person operates a Hertz vehicle in violation of his license
restrictions that he would be driving in violation of the Hertz rental
agreement and would be considered an unauthorized user.
Kendall testified by evidence deposition that she leased an automobile
from Hertz on February 11, 1979 for one day. On February 12, 1979, she
returned to her residence in Boston and gave the automobile to the plaintiff
because he needed it for business purposes but did not notify Hertz as to the
change. Kendall also testified that on March 10, 1979, she received a message
to call Dziagwa regarding plaintiff's arrest in relation to a Hertz rental car
and that at approximately 8:30 eastern standard time she spoke with Dziagwa
who told her to call Officer Lucas.[fn1] After her conversation with Lucas,
Kendall telephoned Dziagwa. During that conversation, Dziagwa told her that
he was not going to let the plaintiff go and for his reasons referred to
plaintiff's "license plates, the warrant out for his arrest, and past offenses
in other places along with cars, something to do with car theft."
Kendall also testified that she had several conversations with a man
named Mr. Remy who was a manager at Hertz. Remy promised to get the situation
straightened out and told her that "the charges would be cleared up" as soon
as the plaintiff would come to his office and show his IBM identification.
Kendall further testified that the only people she talked to about the
incident and Dziagwa's statements were the plaintiff's mother and sister.
Kendall stated that after the incident she did not feel differently about the
plaintiff and her respect for the plaintiff never changed.
The plaintiff testified that on March 10, 1979 he was stopped by two
police officers who told him that he was driving an automobile with expired
license plates. He stated that he told the officers that he did not know the
plates were expired because the automobile was a rental car from Hertz. He
also told them that Sharon Kendall had rented the car and had given it to him
to use while his personal automobile was being repaired. The plaintiff
testified that he provided the officers with his driver's license and with his
IBM identification card. He stated that the police returned to their car,
talked on the radio, and then arrested him for criminal trespass to a motor
vehicle. The plaintiff stated that after his arrest, he was handcuffed,
photographed, fingerprinted, shuttled to two police stations, interrogated and
incarcerated through the night until he was released on bail on Sunday, March
11, 1979. When questioned concering his reaction to his arrest and
incarceration, he stated that he was afraid and fearful about his career and
what his colleagues, friends and loved ones would think and hear about his
being charged with a criminal act that he did not commit. He stated that he
cried when his mother arrived at the police station to post bail. The
plaintiff testified that he was unable to give a major presentation the
following Monday because his slides and presentation materials were in the
confiscated Hertz automobile. He stated that he was forced to take time off
from work to attend the court hearing with respect to the criminal charges and
that he had to tell his immediate supervisor, Booker Daniels, about his
arrest.
The plaintiff testified concerning his job mobility and the awards and
recognition he received as an IBM employee. He stated that, a month after his
arrest, he was asked by his immediate supervisor who knew about the arrest, to
resign as a marketing manager and be put on an "improvement plan." He refused
and was moved into a lateral position at a smaller office which generated less
revenue and thereafter, during the remaining thirteen years that he remained
at IBM, was never given the opportunity to be in a significant, high
visibility job at IBM. On cross-examination, the plaintiff admitted that his
salary increased regularly beginning with a monthly salary of $600 in 1975;
$1,654 in 1978; $1,935 in 1980; $4,950 in 1986 and $6,795 in 1991 when he left
IBM.
Plaintiff's immediate supervisor and an IBM branch manager, Booker
Daniels, testified concerning plaintiff's performance at IBM. He stated that
the plaintiff was "rookie of the year for the district" in 1975. According to
Daniels, the plaintiff did not follow the normal career path. He did not "go
to the normal staff assignment" after working as a marketing representative
and instead was promoted directly to a marketing manager position in 1978.
With respect to a written evaluation prepared on the plaintiff in January
1979, before the March 10, 1979 incident, Daniels stated that he considered
plaintiff's first-year performance as a marketing manager to be acceptable;
that the plaintiff needed to improve in the area of engendering trust in
leadership; and that the plaintiff exceeded his goal requirements and received
high evaluations with respect to quota and actual sales achievements on the
written evaluation prepared in January 1979. Daniels admitted that the
plaintiff's performance as marketing manager was not as successful as it was
when he was a sales representative. Daniels explained that, as a marketing
manager, the plaintiff had a "slow start" in the performance category of
"rapport and relationship with administration"; that the plaintiff's time
response to customer complaints needed improvement; and that the plaintiff was
given the lowest acceptable rating in the management and personnel
responsibilities category. Daniels testified that the plaintiff's performance
did not improve after the January 1979 evaluation as was required.
Daniels stated that he did not consider the March 10 incident in his
evaluation of plaintiff's job performance. He stated that the incident was
not reported in plaintiff's personnel file at IBM. In his opinion, the event
did not damage the plaintiff's reputation.
The plaintiff's complaint in the underlying action against Hertz and
Dziagwa, which was dismissed on December 16, 1985 for failure to comply with
discovery orders, sought compensatory damages in the amount of $300,000 for
intentional infliction of emotional distress; $350,000 for the wilful
violation of plaintiff's constitutional rights; $750,000 for defamation;
$250,000 for false imprisonment; $50,000 for conversion; $305 for lost income;
$500 for restitution of attorney fees; and $750,000 in punitive damages.
During the pendency of the instant malpractice action and pursuant to
defendants' motion, the trial court granted summary judgment in defendants'
favor as to several of plaintiff's underlying claims leaving for trial the
claims of intentional infliction of emotional distress, defamation and
malicious prosecution. As punitive damages were recoverable with respect to
the claims for malicious prosecution and defamation, the trial court refused
to strike that request for relief and the malpractice action proceeded to
trial. At the conclusion of plaintiff's case, the defendants moved for a
directed verdict. That motion was denied. At the conclusion of trial, the
jury returned a general verdict in plaintiff's favor in the amount of
$300,000. The court then granted defendants' motion for judgment
notwithstanding the verdict with respect to plaintiff's claims for intentional
infliction of emotional distress and for punitive damages and granted a new
trial on the claims for malicious prosecution and defamation.
Disposition of the instant appeal requires that we first consider
whether judgment notwithstanding the verdict was proper with respect to
plaintiff's underlying intentional infliction of emotional distress claim and
then whether judgment notwithstanding the verdict should have been entered
with respect to plaintiff's underlying claims for malicious prosecution and
defamation. If the evidence at trial was sufficient to support either of the
latter two claims, then we must address the issue of whether punitive damages
recoverable under those claims can be recovered as compensatory damages in
this attorney malpractice action. Finally, we must determine whether the
general verdict returned in the instant case should have been set aside and a
new trial ordered when judgment on some but not all of the underlying claims
was vacated.
I. Intentional Infliction of Emotional Distress
The trial court's grant of judgment notwithstanding the verdict is
proper only when all of the evidence, when viewed in its aspect most favorable
to the opponent, so overwhelmingly favors the movant that no contrary verdict
based on the evidence could ever stand. E.g., Pedrick v. Peoria & Eastern
R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967); Kennan v. Checker Taxi Co.,
250 Ill. App. 3d 155, 620 N.E.2d 1208 (1993). To prove a cause of action for
intentional infliction of emotional distress, the plaintiff must establish
three elements: (1) extreme and outrageous conduct; (2) intent or knowledge
by the actor that there is at least a high probability that his or her conduct
would inflict severe emotional distress and reckless disregard of that
probability; and (3) severe and emotional distress. Public Finance Corp. v.
Davis, 66 Ill. 2d 85, 360 N.E.2d 765 (1976); Knysak v. Shelter Life Insurance
Co., 273 Ill. App. 3d 360, 652 N.E.2d 832 (1995); Hearon v. City of Chicago,
157 Ill. App. 3d 633, 510 N.E.2d 1192 (1987). Extreme and outrageous conduct
sufficient to create liability for intentional infliction of emotional
distress is defined as conduct that exceeds all bounds of human decency and
that is regarded as intolerable in a civilized community. Public Finance
Corp., 66 Ill. 2d 85, 360 N.E.2d 765; Khan v. American Airlines, 266 Ill. App.
3d 726, 639 N.E.2d 210 (1994). The tort does not extend to " 'mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities' "
(McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806 (1988), quoting Restatement
(Second) of Torts 46, comment d, at 73 (1965)); and the infliction of such
emotional distress as fright, horror, grief, shame, humiliation and worry is
not sufficient to give rise to a cause of action. The emotional distress
required to support the cause of action must be so severe that no reasonable
person could be expected to endure it. Public Finance Corp., 66 Ill. 2d 85,
360 N.E.2d 765. See generally Restatement (Second) of Torts 46, comment j,
at 77 (1965). The intensity and the duration of the distress are factors to
be considered in determining its severity. Lundy v. Calumet City, 209 Ill.
App. 3d 790, 567 N.E.2d 1101 (1991).
In the instant case the plaintiff failed to prove severe emotional
distress. There is no doubt that the plaintiff suffered shame, humiliation
and worry as a result of Hertz's request that the plaintiff be charged with
criminal trespass to vehicles. In this regard, we first note that the
plaintiff presented no evidence to show that the processing that occurred at
the police station was the result of the charge brought by Hertz rather than
the result of his arrest based upon the outstanding warrant. Moreover, even
if it could be attributable to the Hertz charge, the type of emotional
distress suffered by the plaintiff does not support a claim for intentional
infliction of emotional distress. Actionable distress is that which is so
severe that no reasonable person could be expected to endure it. See Public
Finance, 66 Ill. 2d 85, 360 N.E.2d 765; Khan, 266 Ill. App. 3d 726, 639 N.E.2d 210 (recurring nightmares and problems with sleeping and fear of re-arrest is
not severe distress); Lundy, 209 Ill. App. 3d 790, 567 N.E.2d 1101
(embarrassment or distress suffered by plaintiff police officers when they
were stripped of badges and guns and relieved of duty until they could undergo
a psychological reevaluation did not support claim for intentional infliction
of emotional distress). Here, when questioned concerning his
reaction to his arrest and incarceration, the plaintiff stated that he was
afraid; that he was fearful about his career and what his colleagues, friends
and loved ones would think and hear about his being charged with a criminal
act that he did not commit; and that he cried when his mother arrived at the
police station to post bail. There was no evidence to show the severity of
the distress he suffered, i.e., that he was hospitalized, sought and received
psychiatric treatment, or even was prescribed medication. See Knysak v.
Shelter Life Insurance Co., 273 Ill. App. 3d 360, 652 N.E.2d 832 (1995)
(depression and distress suffered as a result of insurer's failure to pay
insured spouse's medical bills was not severe or extreme emotional distress).
See generally Restatement (Second) of Torts 46, comment k, at 78 (1965)
(while bodily harm is not required it affords evidence that distress was
genuine and severe). Absent proof that the emotional distress suffered by the
plaintiff was so severe so as to exceed all bounds of human decency, the
stringent test established for this tort has not been satisfied. See, e.g.,
Public Finance Corp., 66 Ill. 2d 85, 360 N.E.2d 765; Knysak, 273 Ill. App. 3d
360, 652 N.E.2d 832; Khan, 266 Ill. App. 3d 726, 639 N.E.2d 210.
In addition to the failure to prove severe and emotional distress, the
plaintiff failed to prove extreme and outrageous conduct. The plaintiff
argues that Dziagwa and Hertz engaged in extreme and outrageous conduct when
they caused his arrest on a criminal charge that he did not commit and refused
to dismiss the charge against him thereby requiring him attend a court
hearing. We disagree.
The evidence, viewed in its aspect most favorable to the plaintiff, does
not support an intentional infliction of emotional distress claim. The nature
of the conduct alleged against Dziagwa does not rise to the level of extreme
outrageousness so as to go beyond all possible bounds of decency. Initially,
we note that Dziagwa was not the cause of defendant's arrest by Officer Lucas.
Lucas' uncontroverted testimony showed that the plaintiff was placed under
arrest after a name and vehicle check showed the existence of traffic warrants
based upon outstanding traffic violations. The evidence showed that after the
plaintiff was taken into custody and brought to the police station, Lucas
telephoned Hertz and spoke to Dziagwa. After Dziagwa was unable to reach
Kendall, the IBM employee who had leased the vehicle, Dziagwa told Lucas to
charge the plaintiff with criminal trespass to a vehicle. At that time
Dziagwa was unaware that the plaintiff was an IBM employee[fn2] and knew only
that the vehicle should have been returned to Hertz more than a month earlier.
Dziagwa's decision to authorize the complaint made under these circumstances
cannot be said to be outrageous conduct. See Khan, 266 Ill. App. 3d 726, 639 N.E.2d 210 (conduct of airline employees in allegedly entrapping plaintiff and
having him arrested did not go beyond all possible bounds of decency);
Anderson v. Forest Park, 238 Ill. App. 3d 83, 606 N.E.2d 205 (1992) (police
officers' removal of plaintiff from her residence and subjecting her to
involuntary mental examination did not support a claim for intentional
infliction of emotional distress). Even if later that evening Dziagwa may
have become aware of the fact that the plaintiff was an IBM employee and that
he was authorized to use the rental vehicle, Dziagwa's failure to withdraw the
criminal complaint still would not have risen to the level of extreme
outrageousness. As will be more fully discussed below with respect to
plaintiff's malicious prosecution claim, after that complaint was signed, the
furtherance and prosecution of the criminal action was in the control of the
state's attorney; and neither Dziagwa nor Hertz could have withdrawn the
complaint. See 55 ILCS 5/3-9005(a)(1) (West 1994) (it is the duty of the
state's attorney to prosecute criminal proceedings); People v. Eisele, 77 Ill.
App. 3d 766, 396 N.E.2d 662 (1979) (state's attorney can file motion to nol-
pros where defendant charged by complaint and witness could not identify
defendant at trial). Moreover, aside from the fact that a private complainant
lacks the power to preempt the discretion of the prosecutor to proceed on the
complaint, any omission in failing to inform the prosecutor of newly
discovered information relevant to the criminal action set in motion would
arguably, at best, constitute passive conduct that by its very nature could
not rise to the level of outrageous conduct.
II. Malicious Prosecution
With respect to the underlying claim for malicious prosecution, the
plaintiff was required to prove: (1) the commencement or continuation of an
original or criminal judicial proceeding by the defendant; (2) the termination
of the prosecution in favor of the plaintiff in a manner indicative of the
innocence of the plaintiff; (3) the absence of probable cause for such
proceeding; (4) the presence of malice; and (5) damages resulting to the
plaintiff. E.g., Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238 (1996);
Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229 (1980); Vincent
v. Williams, 279 Ill. App. 3d 1, 664 N.E.2d 650 (1996); Khan, 266 Ill. App. 3d
726, 639 N.E.2d 210 (1994). The burden is on the plaintiff to prove each of
these elements; and the absence of any one of them bars a plaintiff from
recovery. See Swick, 169 Ill. 2d 504, 662 N.E.2d 1238.
At trial and during this appeal, the defendants argue that they were
entitled to judgment notwithstanding the verdict on plaintiff's claim for
malicious prosecution because the plaintiff did not establish termination of
the prosecution in a manner indicative of the innocence of the plaintiff and
because the plaintiff did not establish absence of probable cause. While we
do not agree with their first contention, we do find merit with respect to the
second contention.
The evidence at trial regarding the favorable termination element showed
that Dziagwa did not appear in court to testify against the plaintiff and that
the State's Attorney dismissed the charges. In Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238 (1996), a case of first impression, the court dealt with
the issue of whether a nolle prosequi by the State's Attorney constitutes a
favorable termination in malicious prosecution actions. In that regard the
court stated:
"In a criminal context, a nolle prosequi 'is not a final
disposition of a case but *** is a procedure which reverts the
matter to the same condition which existed before the commencement
of the prosecution.' (People v. Woolsey (1990), 139 Ill. 2d 157,
163, 564 N.E.2d 764). In the civil malicious prosecution context,
the majority rule is that a criminal proceeding has been
terminated in favor of the accused when a prosecutor formally
abandons the proceeding via a nolle prosequi, unless the
abandonment is for reasons not indicative of the innocence of the
accused. [Citations.] The abandonment of the proceedings is not
indicative of the innocence of the accused when the nolle prosequi
is the result of an agreement or compromise with the accused,
misconduct on the part of the accused for the purpose of
preventing trial, mercy requested or accepted by the accused, the
institution of new criminal proceedings, or the impossibility or
impracticability of bringing the accused to trial. (Restatement
(Second) of Torts 660, 661 (1977).) We find that the majority
rule best reflects the need to balance an individual's right to be
free from unreasonable criminal prosecutions with the public
policy which favors the exposure of crime. (See Joiner, 82 Ill. 2d at 44, 411 N.E.2d 229 ('[p]ersons acting in good faith who have
probable cause to believe crimes have been committed should not be
deterred from reporting them by the fear of unfounded suits by
those accused').)" 169 Ill. 2d at 512-13, 662 N.E.2d at 1242-43.
In Swick, the plaintiff alleged that the nolle prosequi was entered
because of a lack of evidence showing his guilt. The nolle prosequi order did
not reflect the reason for its entry. No evidence was produced at trial to
prove that the nolle prosequi order was entered in a manner indicative of the
plaintiff's innocence. However, recognizing that the issue was one of first
impression, the court remanded the case to give the plaintiff the opportunity
to prove his assertion.
In the instant case, the defendants argue that the plaintiff here, as in
Swick, did not establish the specific nature of the dismissal, that is,
whether the charges were dismissed by a nolle prosequi order or whether the
case was stricken from the docket with leave to reinstate (see Vincent, 279
Ill. App. 3d 1, 664 N.E.2d 650 (striking case from docket with leave to
reinstate is not a legal termination in favor of the accused)). We disagree.
Dziagwa testified that he did not and would not testify against the plaintiff
in the criminal action because he had been ordered by his superiors not to do
so. This testimony clearly established the reason for the dismissal of the
criminal action, the State's inability to prove its case against the accused.
A dismissal on that basis is a termination in favor of the accused indicative
of the accused's innocence. See Reell v. Petritz, 224 Ill. App. 65 (1922)
(dismissal of larceny charge by prosecutor was termination of the proceeding
in favor of the plaintiff); Farris v. Messimore, 219 Ill. App. 582 (1920)
(dismissal of charge by justice of peace for failure of complaining witness to
appear was a termination of the proceeding in favor of the plaintiff). See
also Rich v. Baldwin, 133 Ill. App. 3d 712, 479 N.E.2d 361 (1985) citing Loeb
v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 847 (1980) (dismissal of criminal
charges based upon plaintiff's speedy trial motion constituted termination of
the proceedings in favor of the plaintiff since prosecutor's failure to
proceed on the merits implies lack of reasonable grounds for the prosecution).
We find merit, however, with defendants' second malicious prosecution
contention that the plaintiff did not establish an absence of probable cause
by Dziagwa to commence or continue the criminal proceedings. As stated in
Mack v. First Security Bank, 158 Ill. App. 3d 497, 502, 511 N.E.2d 714, 717
(1987), probable cause is "a state of facts *** that would lead a person of
ordinary care and prudence to believe or to entertain an honest and sound
suspicion that the accused committed the offense charged." The existence of
probable cause is a mixed question of law and fact. Mack, 158 Ill. App. 3d
497, 511 N.E.2d 714. "'Whether the circumstances proved to show probable
cause are true is a question of fact, but, if true, whether they amount to
probable cause is a question of law to be decided by the court.'" Ely v.
National Super Markets, Inc., 149 Ill. App. 3d 752, 758, 500 N.E.2d 120, 124
(1986) quoting 25 Ill. L. & Prac. Malicious Prosecution 42 (1956). A person
has probable cause to believe that the misdemeanor offense of criminal
trespass to vehicles has been committed when the accused "knowingly and
without authority enters any vehicle *** of another without his consent."
Ill. Rev. Stat. 1977, ch. 38, par. 21-2 now codified at 720 ILCS 5/21-2 (West
1996).
Viewing the facts in the light most favorable to the plaintiff, it is
clear that the plaintiff failed to prove that Dziagwa lacked probable cause at
the time he authorized Lucas to sign the criminal complaint on behalf of
Hertz. The uncontroverted facts establish probable cause as a matter of law.
See Ely, 149 Ill. App. 3d 752, 500 N.E.2d 120 (applying Pedrick standard and
reversing malicious prosecution verdict). As noted above, it was undisputed
that at the time Dziagwa authorized Lucas to charge the plaintiff with
criminal trespass to vehicles, Dziagwa had been advised by Lucas that the
plaintiff had been stopped driving a vehicle with expired license plates; that
the plaintiff had been arrested due to an outstanding warrant; that the
plaintiff stated that the car was leased and belonged to a friend; and that
there was no rental agreement in the car. Upon further investigation, Dziagwa
discovered that the vehicle had been leased to IBM by Sharon Kendall, an IBM
employee, and that the vehicle should have been returned to Hertz more than a
month earlier. Conflicting evidence existed with respect to whether Dziagwa
had been informed by Lucas that the plaintiff's driver's license was invalid.
While Dziagwa testified that he thought he had been told that fact, Lucas only
testified that the plaintiff was cited for violating one of the restrictions
on his driver's license. However, even if Dziagwa's consideration of that
fact was improper, the other information known by Dziagwa and discussed above
was sufficient to establish probable cause for the charge of criminal trespass
to vehicles at the time that charge was made.
The plaintiff argues that Dziagwa did not have probable cause because he
knew that the Hertz vehicle had not been reported stolen and that the vehicle
had been leased to IBM by one of its employees, the defendant's friend, and
that the defendant was authorized to use the vehicle. We disagree.
Plaintiff's authority to drive the Hertz vehicle was not derived from
plaintiff's friendship with Kendall but from his employment status with IBM.
In that regard there was no evidence showing that at the time Dziagwa
authorized the charge against the plaintiff that Dziagwa knew that the
plaintiff was an IBM employee and that he was authorized to drive the vehicle
leased by IBM. Even if the plaintiff's testimony that he gave Lucas his IBM
identification card is to be believed, that testimony would at best establish
Lucas's knowledge, not Dziagwa's knowledge, of plaintiff's status as an IBM
employee. The plaintiff presented no evidence to establish that Lucas
disclosed that information to Dziagwa so as to contradict Dziagwa's testimony
denying any knowledge of that fact. Thus, since the only evidence at trial
showed that Dziagwa did not know of the plaintiff's employment with IBM and
his authority to drive a vehicle leased by that entity, and given the other
facts known by Dziagwa at the time he authorized the charge, one can only
conclude that Dziagwa had probable cause to believe that the plaintiff's use
of the vehicle was unauthorized.
The plaintiff also argues that even if Dziagwa had probable cause to
authorize the initial charging of the plaintiff, he did not have probable
cause to continue the criminal proceedings and thus he and Hertz were liable
for malicious prosecution on that basis as well. Liability for malicious
prosecution can be imposed when an active part is taken in continuing or
procuring the continuation of criminal proceedings. Restatement (Second) of
Torts 655, at 413 (1977). With respect to the type of participation that is
required, the Restatement (Second) of Torts states in pertinent part as
follows:
"[T]he defendant must take an active part in their prosecution
after learning that there is no probable cause for believing the
accused guilty. It is not enough that he appears as a witness ***
and thereby aids in the prosecution of the charges which he knows
to be groundless. His share in continuing the prosecution must be
active, as by insisting upon or urging further prosection. The
fact that he initiated the proceedings does not make him liable
*** merely because he intentionally refrains from informing a
public prosecutor, into whose control the prosecution has passed,
of subsequently discovered facts that clearly indicate the
innocence of the accused." Restatement (Second) of Torts 655,
comment c, at 414 (1977).
See Denton v. Allstate Insurance Co., 152 Ill. App. 3d 578, 504 N.E.2d 756
(1986) (citing Restatement (Second) of Torts 655 (1977) and stating that
defendant's delay in reporting to police its settlement of plaintiff's
insurance claim for theft of his automobile did not constitute active
encouragement or participation in criminal proceedings for attempted theft
instituted by police officer).
Here, while the plaintiff may well be correct in his contention that
Dziagwa did not have probable cause to continue the criminal proceedings if
Kendall informed him that the plaintiff was an IBM employee and had authority
to use the vehicle, the evidence at trial showed that neither Dziagwa nor
Hertz acted affirmatively to continue the criminal proceedings after that
knowledge was acquired. As discussed above, Dziagwa did not attend the
criminal hearing. There was no evidence established that he or anyone else at
Hertz took any action to pursue the criminal action against the plaintiff.
Moreover, once the complaint was initiated by Hertz, the prosecution of the
action became the duty of the state's attorney (see Ill. Rev. Stat. 1979, ch.
14, par. 5(1) now codified at 55 ILCS 5/3-9005(a)(1) (West 1994) (it is the
duty of the state's attorney to initiate and prosecute criminal proceedings);
see People v. Pankey, 94 Ill. 2d 12, 445 N.E.2d 284 (1983) (the State's
Attorney prosecutes all actions by and for the People of the State of
Illinois)); and the dismissal of that action must be pursuant to court order
(see Ill. Rev. Stat. 1979, ch. 38, par. 114-1 now codified at 725 ILCS 5/114-1
(West 1994); see also 725 ILCS Ann. 5/111-1, Committee Comments--1963, at 111
(Smith-Hurd 1992) ("[t]he distinction of the complaint rests in the fact that
neither the grand jury nor the state's attorney sign the written statement
charging the crime")). While Hertz could have notified the State's Attorney
that it would not testify against the plaintiff in the criminal action, the
ultimate decision on whether to continue to prosecute the plaintiff would have
been with the State's Attorney. See People v. Eisele, 77 Ill. App. 3d 766,
396 N.E.2d 662 (1979) (where defendant charged by complaint and witness could
not identify him at trial, proper action by State's Attorney is to file a
motion to nol-pros). Thus, since the evidence at trial showed that Dziagwa
and Hertz did not actively participate in the criminal prosecution after
initiating that action, the plaintiff did not establish his malicious
prosecution action against them and the attorney malpractice defendants were
entitled to judgment notwithstanding the verdict on that claim.
III. Defamation
Plaintiff's defamation claim against Dziagwa and Hertz asserted
defamation per se based upon a statement made by Dziagwa to Kendall in which
Dziagwa allegedly imputed that the plaintiff had committed a crime. The
alleged defamatory statement was explained by Kendall as follows:
"He [Dziagwa] said I am not letting this guy go and proceeded to
give his reasons for not letting this guy go, his license plates,
the warrant out for his arrest and past offenses in other places
along with cars, something to do with car theft."
A statement is considered to be defamatory if it tends to cause harm to
the reputation of another by lowering that person in the eyes of the community
or deterring third persons from associating with the person. Restatement
(Second) of Torts 559 (1977). In Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 201, 206 (1992) our supreme court defined defamation
per se as a "statement [that] is apparent on its face; that is, when the words
used are so obviously and materially harmful to the plaintiff that injury to
his reputation may be presumed." There are four common law categories of
statements that are considered to be defamatory per se: (1) words which
impute the commission of a criminal offense; (2) words that impute infection
with a loathsome communicable disease; (3) words that impute an inability to
perform or want of integrity in the discharge of duties of office or
employment; and (4) words that prejudice a party, or impute lack of ability,
in his or her trade, profession or business. E.g., Costello v. Capital Cities
Communications, Inc., 125 Ill. 2d 402, 532 N.E.2d 790 (1988). In order to
constitute slander per se for imputing the commission of a crime, the crime
must be an indictable one, involving moral turpitude and punishable by death
or by imprisonment in lieu of a fine. Ely v. National Super Markets, Inc.,
149 Ill. App. 3d 752, 500 N.E.2d 120 (1986). A statement is not defamatory if
the words and implications, given their natural and obvious meaning, may
reasonably be innocently interpreted. Mittelman v. Witous, 135 Ill. 2d 220,
552 N.E.2d 973 (1989); Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195
(1982). This determination is a question of law. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207 (1996).
Here, the plaintiff argues that Dziagwa's words were defamatory per se
because they imputed the commission of a criminal offense.[fn3] The
defendants argue that the alleged statement by Dziagwa did not reasonably
impute the commission of a criminal offense. On appeal, they also argue that
the common interest privilege existed. This latter argument is waived because
it was not raised in the trial court. See Mittelman, 135 Ill. 2d 220, 552 N.E.2d 973; Downes Swimming Pool, Inc. v. North Shore National Bank, 124 Ill.
App. 3d 457, 464 N.E.2d 761 (1984).
In support of their first contention the defendants rely on Trembois v.
Standard Ry. Equipment Manufacturing Co., 337 Ill. App. 35, 84 N.E.2d 862
(1949). In that case, the alleged defamatory statements were that the
plaintiff was "mixed in a rape charge"; that "the police arrested him for
jumping bond on the rape charge,"; that the plaintiff "was arrested for
supposedly jumping bond in connection with rape"; that the plaintiff "was
arrested for rape"; and that the plaintiff "was picked up by the police." The
Trembois court found that these words did not impute the commission of the
crime of rape or state that the plaintiff was a rapist. The court noted that
being arrested for an offense and being charged with an offense is not
evidence of guilt of that offense.
Here, as in Trembois, the statements attributed to Dziagwa did not
definitively impute the commission of a crime. The first part of Dziagwa's
statement disclosed that the plaintiff was being held by the police because a
warrant had been issued for the plaintiff's arrest. That statement did not
impute the commission of a crime but, rather, that the defendant had been
arrested. See Trembois, 337 Ill. App. 35, 84 N.E.2d 862. Dziagwa's reference
to "past offenses in other places along with cars, something to do with car
theft" also does not impute the commission of a crime. That statement, like
the statement in Trembois that the plaintiff therein was "mixed in a rape
charge," is vague. It also does not clearly and definitively refer to a
specific offense that is indictable and punishable by death or imprisonment.
It does not state that plaintiff had committed a car theft; but rather, that
he had committed past unspecified offenses that had something to do with car
theft. While the words charging the commission of a crime need not meet the
technical requirements which are necessary for an indictment, the words must
fairly impute the commission of a crime. Crinkley v. Dow Jones & Co., 119
Ill. App. 3d 147, 456 N.E.2d 138 (1983). See Owen v. Carr, 134 Ill. App. 3d
855, 478 N.E.2d 658 (1985), aff'd, 113 Ill. 2d 273, 497 N.E.2d 1145 (1986)
(statement that plaintiff was "trying to 'intimidate' " a judge did not impute
commission of criminal offense of intimidation because term "intimidation" has
a broader, noncriminal meaning). Here, Dziagwa's alleged statement did not
fairly impute that the plaintiff had committed a car theft or any other
indictable criminal offense. Thus, viewing the evidence in a light most
favorable to the plaintiff, we must conclude that the plaintiff did not
establish his underlying claim of defamation per se and the defendants were
entitled to judgment notwithstanding the verdict on that claim as well.
IV. Disposition
For the reasons discussed above, we affirm the trial court's grant of
judgment notwithstanding the verdict to the defendants on plaintiff's
underlying intentional infliction of emotional distress claim. We reverse the
trial court's denial of defendants' motion for judgment notwithstanding the
verdict on plaintiff's underlying malicious prosecution and defamation claims.
As a result, the issues raised in plaintiff's appeal regarding his right to
recover punitive damages in this attorney malpractice action and regarding the
propriety of the trial court's order directing a new trial on the malicious
prosecution and defamation counts have been rendered moot.
For the foregoing reasons, the judgment of circuit court of Cook County
is affirmed in part and reversed in part.
Affirmed in part; reversed in part.
CAHILL AND LEAVITT, JJ., concur.
[fn1]It is unclear from Kendall's testimony whether she told
Dziagwa or Lucas that the plaintiff was an authorized user, that
she and the plaintiff were IBM employees, and that there should
be no problem.
[fn2]Although the plaintiff testified that he told Officer Lucas,
at the time of his arrest, that he was an IBM employee, neither
Lucas nor Dziagwa testified that Lucas relayed that information
to Dziagwa.
[fn3]The plaintiff does not argue defamation per quod apparently
because he could not prove special damages. While damages are
presumed when the statement is defamatory per se (Kolegas v.
Heftel Broadcasting Corp., 154 Ill. 2d 1, 607 N.E.2d 201 (1992)),
they must be alleged and proved when the statement is defamatory
per quod (see Schaffer v. Zekman, 196 Ill. App. 3d 727, 554 N.E.2d 988 (1990)). Bryson v. News America Publications, Inc.,
174 Ill. 2d 77, 672 N.E.2d 1207 (1996). Here the plaintiff did
not prove that he was damaged by Dziagwa's alleged statement to
Kendall. Kendall testified that after the March 10, 1979
incident she did not feel differently about the plaintiff and her
respect for the plaintiff never changed.
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