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Kakuris v. Klein





APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.


After being discharged, plaintiff brought a defamation action against Chicago Area Council, Boy Scouts of America (Boy Scouts), his former employer, Joseph Klein (Klein), his supervisor and Retail Credit Company (Retail Credit), a credit collecting and reporting company, for allegedly defamatory statements concerning his job performance which were published by Boy Scouts and Klein and republished by Retail Credit. Defendants' motion to strike and dismiss plaintiff's second amended complaint for its failure to state a cause of action was granted by the trial court. Plaintiff appeals.

The following issues are raised for our review: (1) whether statements made by Klein in response to Retail Credit's questionnaire concerning plaintiff are libelous as a matter of law; (2) whether the statements, if libelous, are non-actionable as qualifiedly privileged; (3) whether all causes of action against Klein and Boy Scouts based upon publications specified in count I of plaintiff's second amended complaint are barred by the statute of limitations; (4) whether those publications, if not barred by the statute of limitations, support a cause of action for defamation; (5) whether count II of plaintiff's second amended complaint as against Retail Credit is barred by the statute of limitations; (6) whether statements contained in Retail Credit's "Character-Financial Report" are libelous as a matter of law; and (7) whether those statements are non-actionable as qualifiedly privileged.

Plaintiff's second amended complaint alleged that he was formerly employed as a district scout executive of Boy Scouts. Klein was Boy Scouts' chief executive officer and was generally responsible for supervising administrative functions throughout the Chicago Area Council territory. During plaintiff's six-year tenure at Boy Scouts, he engaged in various union-organizing activities. Klein, dissatisfied with these efforts, threatened plaintiff with termination unless he personally subscribed to defendant's antiunion policies. In August of 1973, plaintiff was instrumental in exposing membership irregularities and the falsification of membership records in the Chicago Area Council along with the misuse of Federal "Model City" funds by Boy Scouts. This expose led to an investigation and report of the incidents by the Chicago Tribune and other newspapers. In retaliation for his union-organizing activities, plaintiff was terminated in November of 1973.

Thereafter, plaintiff sought work with two prospective employers, but was purportedly refused employment because of allegedly defamatory information concerning his job performances which was furnished them in a report from Retail Credit. According to plaintiff, Retail Credit supplied this report without adequately investigating its accuracy. The information contained therein was primarily based on an "employment verification" questionnaire sent to Boy Scouts and completed by Klein.

Boy Scouts and Klein filed a motion to dismiss count I of the second amended complaint on the grounds that the statements made were subject to innocent construction and were privileged. They also argued that actions based on various other publications which were tested on an exhibit to the second amended complaint were barred by the statute of limitations. Retail Credit filed a motion to dismiss count II of the second amended complaint. It alleged similar grounds for dismissal, and added that plaintiff's action was barred under an estoppel theory. Plaintiff had included Retail Credit in the original and second amended complaint, but failed to assert a cause of action against it in the first amended complaint. Retail Credit argued that plaintiff was estopped to replead an action against it in the second amended complaint on the basis of an affidavit of Retail Credit's attorney that it had reason to believe, after dismissal of the original complaint, that it was no longer a defendant in the suit.

The trial court granted defendants' motions and dismissed both counts of plaintiff's second amended complaint with prejudice.

We must initially decide whether the statements by Klein in response to Retail Credit's questionnaire are defamatory as a matter of law.

In the questionnaire, defendants were directed to supply "yes" or "no" answers to questions regarding plaintiff, and to give explanations for answers if in the negative. The answers at issue were responses to the following questions: (1) "Was work record satisfactory?" and (2) "Would you re-employ?" Klein answered both questions negatively. In compliance with the instructions, he added to the first answer: "Lack of achievement in basic goals." To the second, Klein furnished the following explanation: "Mr. Kakuris did not have the qualifications needed to achieve the objectives of the profession." It is plaintiff's contention that these answers are libelous as a matter of law because they prejudice plaintiff in his profession or trade.

• 1 In this jurisdiction, a writing is not defamatory if it may be given an innocent construction. Under this rule, a writing is to be read as a whole and the words given their natural and obvious meaning, and the words allegedly libelous that are capable of being read innocently must be so read and declared non-actionable as a matter of law. (John v. Tribune Co. (1962), 24 Ill.2d 437, 442, 181 N.E.2d 105, 108, cert. denied (1962), 371 U.S. 877, 9 L.Ed.2d 114, 83 S.Ct. 148.) This determination is a question of law to be resolved by the trial court. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 243 N.E.2d 217.) The words under scrutiny are to be stripped of innuendo (Zeinfeld), and must be read in their best possible sense. Wexler v. Chicago Tribune Co. (1979), 69 Ill. App.3d 610, 387 N.E.2d 892.

• 2 Viewed in their entirety, defendants' answers to Retail Credit's questionnaire can be innocently construed and are, therefore, non-actionable. At the onset, we note the broad, general nature of the responses provided by Klein to the questionnaire. The answers at issue merely expressed an opinion that plaintiff proved to be unsatisfactory in his role as a district scout executive. They did not impugn his abilities to function in an executive capacity for another employer at a future date. In fact, in response to an inquiry on the questionnaire to list plaintiff's outstanding traits or abilities, Klein stated: "attractive" and "sales-oriented." Plaintiff's evaluation when read as a whole can be construed as suggesting that plaintiff possessed desirable traits, but for unspecified reasons, failed to adequately perform in his specialized role with Boy Scouts. Not every expression of opinion touching on a person's capabilities or qualifications constitutes a defamation no matter how much the complained of statement may injure the subject person in his own conception. (Anagnost v. Chicago Bar Association (1980), 83 Ill. App.3d 466, 404 N.E.2d 326; Byars v. Kolodziej (1977), 48 Ill. App.3d 1015, 363 N.E.2d 628.) Therefore, we conclude that although all of the answers are not entirely complimentary in nature, they are capable of being read in a nondefamatory fashion and will be interpreted as such by this court.

Plaintiff also argues that there has been a recent trend by the courts> of this State to erode the innocent construction rule, and that this court should not apply the rule to the present case. We observe, however, that the innocent construction rule enjoys continued vitality in Illinois (Bravo Realty, Inc. v. Columbia Broadcasting Systems, Inc. (1980), 84 Ill. App.3d 862, 406 N.E.2d 61; Adreani v. Hansen (1980), 80 Ill. App.3d 726, 400 N.E.2d 679), and has been said to have the desirable benefits of encouraging the robust discussion of daily affairs. (Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App.3d 67, 397 N.E.2d 41.) The appellate court is not the appropriate forum to seek a change in this well-established rule. (Vee See Construction Co. v. Jensen & Halstead, Ltd. (1979), 79 Ill. App.3d 1084, 399 N.E.2d 278.) Accordingly, we will not abandon the rule unless so directed by our supreme court. Because we have found defendant's answers to be nondefamatory, we need not reach the question of whether they are qualifiedly privileged.

Plaintiff next contends that various publications listed on Exhibit "A" to his second amended complaint are defamatory and not barred by the statute of limitations.

Plaintiff's second amended complaint was filed on April 14, 1976. The alleged defamatory statements were made on the following dates: October 9, 1973, October 11, 1973, March 18, 1974, and August 14, 1974. The March 18, 1974, statements are Klein's answers to Retail Credit's questionnaire and need no further discussion. Each of the remaining publications occurred more than one year prior to the filing of the second amended complaint and falls subject to the one-year statute of limitations for libel. (Ill. Rev. Stat. 1973, ch. 83, par. 14.) Plaintiff argues, however, that ...

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