Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff, Reverend L.R. Davis, filed an action for libel against the defendants, the News-Sun and reporter Adrienne Drell, arising from a series of newspaper articles published by the defendants. Defendants' motion to strike and dismiss was granted by the trial court, and plaintiff appeals that order.
The complaint alleged that the plaintiff, a citizen of Lake County and founder of a nonprofit religious organization known as Christian Fellowship, Inc., was a person of good name and reputation held in high esteem by his acquaintances in personal, religious, and business capacities and by the general public; that Adrienne Drell was a reporter for and agent of the News-Sun and was separately and jointly responsible for the decision to publish the articles complained of; that the News-Sun was in the business of publishing and distributing newspapers to the general public; and that a series of articles appeared in the News-Sun which contained false statements injurious to plaintiff's good name and reputation in his individual capacity and as founder and director of Christian Fellowship, Inc.
In eight separate counts, one for each day on which the articles were published, the plaintiff set out allegedly defamatory statements from each of the articles, which appeared on the front page of and elsewhere within the News-Sun from February 1980 through December 1980. The first articles reported, among other things, that "[s]everal disillusioned former members of the Good News Singers describe L.R. Davis, the leader of the widely known, Waukegan-based religious organization, as a manipulator who: Lured some of them into homosexual encounters; Promoted illegal absences from the U.S. Navy; Encouraged large personal contributions — $100,000 in one family's case." The subsequent articles further detailed these charges. They stated that plaintiff "seduced male members of his group against their will"; referred to the plaintiff as "the latest example of questionable leadership that has been accepted without question because he acted in the name of Christianity"; revealed an investigation by the U.S. Navy arising out of the News-Sun disclosure; said that the plaintiff broke "federal laws by encouraging Navy personnel to take illegal absences"; reported that the plaintiff left the United Pentecostal Church in 1968 "in a wave of controversy and criticism for his alleged homosexual advances to young men"; and stated that Lake County court officials were no longer sending young men on probation to plaintiff for supervision after complaints that plaintiff "pressured the youths into homosexual relationships by suggesting noncompliance with his will could mean revocation of their probationary sentences and prison."
The complaint further alleged that the enumerated statements from the articles were made in full knowledge that they were untrue or in a reckless disregard of their truth or falsity and for the purpose of injuring plaintiff in his good name as a private person and as founder and director of Christian Fellowship, Inc.; that there was no attempt to verify the falsity of the defamatory statements; that defendants had a duty not to publish false statements against plaintiff; that they maliciously and intentionally published false statements for distribution to the general public for the purpose of harming plaintiff's good name and reputation both individually and as founder and director of Christian Fellowship, Inc.; and that as a direct and proximate result of the publication of the defamatory statements plaintiff was injured personally and as founder and director of Christian Fellowship, Inc., and was seeking damages and punitive damages. Eight exhibits consisting of the newspaper articles in question were attached to the complaint.
Defendants filed a motion to strike and dismiss. The motion stated that it appeared from the complaint and its attached articles that all of the articles were reports of governmental proceedings and therefore subject to a qualified privilege and that the complaint did not make any allegations of fact showing that the articles were motivated solely by actual malice so as to defeat the privilege; that the complaint did not make any allegations of fact showing actual malice; that the fair comment rule should apply, requiring that the articles be read without conclusions as to actual malice; that the fair construction rule should apply, under which the articles could be fairly read and construed not to be libelous; that the articles contained expressions of opinions which could not be libelous as a matter of law; that to permit the filing of this action and recovery of damages would violate the first amendment to the Constitution of the United States and section 4, article I of the Constitution of the State of Illinois of 1970; that it appeared from the articles that they were published for good motives and for justifiable ends and were therefore protected under the same article; that plaintiff was a public figure who must allege facts showing actual malice, that actual malice would not be inferred, and that the complaint did not allege any facts showing actual malice; and that the complaint did not allege facts showing actual damage suffered by the plaintiff.
The trial court held that the statements printed by defendants were libelous per se and incapable of innocent construction. However, the trial court found that defendants had a qualified privilege in that plaintiff was a public figure who had injected himself into the public arena far beyond his small ministry. The trial court concluded that plaintiff had failed to allege actual malice on the part of defendants in that there were no specific factual allegations in the complaint as to how or why defendants should have known or knew the statements were false. A judgment was entered granting defendants' motion and dismissing the complaint.
On appeal, the plaintiff asserts that at the time the newspaper articles at issue were published he was a private individual and not a public figure but that his complaint did properly allege malice. The defendants disagree on both points. They also state that the plaintiff took the position in the trial court and in his docketing statement that he had not alleged actual malice and argue that he is improperly changing his position on appeal.
The issues before this court are (1) whether the trial court erred in granting the defendants' motion to dismiss and (2) whether plaintiff has raised matter on appeal inconsistent with his earlier position.
• 1 The defendants' "Motion to Strike and Dismiss" did not designate the section of the Civil Practice Act under which they were proceeding. Proper practice dictates that a party specifically designate whether his motion to dismiss is governed by section 45 (Ill. Rev. Stat. 1979, ch. 110, par. 45), recodified as section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615), or section 48 (Ill. Rev. Stat. 1979, ch. 110, par. 48), recodified as section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619), since the requirements and consequences of the sections are considerably different. (Davis v. Weiskopf (1982), 108 Ill. App.3d 505, 508-10; Galayda v. Penman (1980), 80 Ill. App.3d 423, 424-25, appeal denied (1980), 81 Ill.2d 584.) However, when a motion is not properly labeled the court will look at the substance of the motion to determine which section governs. (See Lerner v. Zipperman (1982), 104 Ill. App.3d 1098.) The major distinction is that section 48 allows for the assertion of affirmative matter that does not appear on the face of the complaint. Hayna v. Arby's, Inc. (1981), 99 Ill. App.3d 700, 710; Szczurek v. City of Park Ridge (1981), 97 Ill. App.3d 649, 655, appeal denied (1981), 85 Ill.2d 575.
In view of the issues raised in defendants' motion to dismiss, i.e., qualified privileges to report governmental proceedings and to report about public figures, constitutional protections, the fair-comment rule, and the innocent-construction rule, it appears that the motion was filed pursuant to section 48(1)(i). That section clearly includes affirmative defenses. (Millsaps v. Bankers Life Co. (1976), 35 Ill. App.3d 735, 742, appeal denied (1976), 63 Ill.2d 552.) In the instant case, the defendants could not challenge the plaintiff's actual malice allegation as insufficient to state a cause of action until they properly asserted the qualified privileges, to which plaintiff's alleged status as a public figure was relevant, via section 48. Thus, this appears to be a hybrid motion.
• 2 The trial court's ruling that the plaintiff was a public figure was based on the plaintiff's complaint, to which allegedly defamatory newspaper articles were attached, defendants' motion to strike and dismiss, and the briefs submitted by the parties. There was no evidentiary hearing, nor did the defendants support their motion with affidavits. All pleadings were unverified. The factors described by the trial court in its memorandum regarding the plaintiff's status could not have been extracted from the body of the plaintiff's complaint. Rather, the trial court apparently relied on information reported in the attached newspaper articles. The question that arises under these circumstances is the propriety of the trial court's consideration of information and articles that were laced with statements charged to be defamatory, or whether there was a competent factual presentation available from which the trial court could properly have reached its decision.
Section 48 requires a party to submit affidavits in support of a motion to dismiss if the grounds for dismissal do not appear on the face of the pleading. It is therefore necessary to delineate what the "face of the pleading" comprises. Section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36), recodified as section 2-606 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-606), states:
"Exhibits. If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his pleading an affidavit stating facts showing that the instrument is not accessible to him. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes."
Since plaintiff's claim was founded upon the newspaper articles, the plaintiff was required to attach copies of the articles to his complaint. The defendants' motion to dismiss relied upon the articles to show that the plaintiff was a public figure, and such a finding was basic to the court's dismissal of the complaint.
The case law reveals that exhibits attached to a complaint must be considered to be an integral part of the complaint (Fowley v. Braden (1954), 4 Ill.2d 355, 360; Theodosakis v. Austin Bank (1981), 93 Ill. App.3d 634, 637), and become a part thereof for all purposes. (First National Bank v. Minke (1981), 99 Ill. App.3d 10, 13; Sharkey v. Snow (1973), 13 Ill. App.3d 448, 451.) Facts stated in such exhibits are considered the same as having ...