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01/13/87 Stanly J. Stewart, v. Chicago Title Insurance

January 13, 1987

STANLY J. STEWART, PLAINTIFF-APPELLANT

v.

CHICAGO TITLE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

503 N.E.2d 580, 151 Ill. App. 3d 888, 104 Ill. Dec. 865 1987.IL.19

Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On August 2, 1985, plaintiff, Stanly J. Stewart, filed suit in the circuit court of Macoupin County against defendants, Chicago Title Insurance Company (Chicago Title) and David A. Weaver, alleging that he had been libeled by the defendants. He sought compensatory and punitive damages. On March 20, 1986, the circuit court allowed a motion by the defendants attacking the sufficiency of plaintiff's amended complaint and dismissed the suit in bar of action. Plaintiff has appealed. We affirm.

In summary, the amended complaint alleged that (1) plaintiff is a farmer residing in and owning farmland in Macoupin County, (2) Weaver, while acting in the scope of his employment for Chicago Title, prepared a letter of commitment to furnish title insurance covering plaintiff's farmland to the State Bank of Farmersville (State Bank) which sought to foreclose a mortgage on that land, (3) the letter dated August 2, 1984, was sent by defendants to State Bank's attorney, John Squires, (4) the letter requested that parties receiving the letter should contact defendant to be more thoroughly informed of the contents of the letter, (5) as a result of the letter, Squires contacted Weaver, discussed the contents with the defendant, and, upon Weaver's advice, sent the letter to several people, (6) the letter contained false statements concerning plaintiff which Weaver either knew to be false or about which Weaver had been reckless in determining their truth, and (7) as a result, plaintiff was defamed and injured in his business and profession.

A copy of Weaver's purported letter to Squires was attached to the amended complaint. It stated that its purpose was to explain "Exception No. 21 of Schedule B" of Chicago Title's commitment for a title policy concerning plaintiff's real estate in question. The letter stated in part:

"Because of the Declaration of Homestead Rights and Declaration of Land Patent, noted at exception No. 20 of Schedule B, I first of all want to let you, and your client, know that you may be involved with an unusual and potentially troublesome situation. My guess is that Mr. Stewart is a member of a militant farm group (similar to the Possee Commitatus' [ sic ]) whose usual practice is to attempt to disrupt the legal system and to complicate foreclosure proceedings as much as possible. Their theory seems to be that the declarations create a new chain of title as to their interest and that, when the mortgage is foreclosed and the deed issued therefrom, that deed is of no effect since it relates back only to the mortgage which was recorded prior to their Declarations. In effect, then, they claim that their Declarations, when recorded, create a new chain of title and a perfect and true allodial title' in themselves, free and clear of all prior interests, liens and encumbrances."

The letter also discussed a similar situation in Montgomery County and stated that there, the landowner upon whose property foreclosure proceedings had been brought had filed suit in the Federal court seeking large damages against numerous people involved in the foreclosure proceedings. The letter concluded that defendant "may not contest this vigorously, but the recorded Declarations lead me to believe that you may have a real struggle on your hands."

The motion of the defendant upon which the case was dismissed contended that the complaint showed on its face that (1) the letter was subject to a qualified privilege because it was intended for a small group of people (a) who had a special interest in being informed of the contents of the letter, and (b) to whom the writer owed a duty to make the disclosure (see Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 150 N.E.2d 202); (2) the reference to plaintiff in the letter concerned only matters of the writer's opinion; and (3) the letter was subject to an innocent construction. The trial court concluded that the references in the letter to plaintiff stated mere opinions of the writer as to plaintiff's propensities. We agree.

Recently, in Owen v. Carr (1986), 113 Ill. 2d 273, 497 N.E.2d 1145, the supreme court held that a statement allegedly made by a lawyer concerning another lawyer and later published in a professional journal was not defamatory for the primary reason that, under the innocent-construction rule as modified by Chaski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, the statement could reasonably be construed as a mere statement of the allegations in a case brought by a client of the lawyer making the statement. The Owen court then said:

"We observe, too, that the Supreme Court has recognized a constitutional privilege for expressions of opinion. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.) Whether a statement is to be Judged to be one of fact or one of opinion is a matter of law (Lewis v. Time Inc. (9th Cir. 1983), 710 F.2d 549), and the involved language must be considered in context to determine whether the statement should be construed to be an expression of opinion (Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin (1974), 418 U.S. 264, 41 L. Ed. 2d 745, 94 S. Ct. 2770; Ollman v. Evans (D.C. Cir. 1984), 750 F.2d 970). As stated, the statements may reasonably be viewed as an expression of Carr's opinion regarding his client's allegations against Owen. Carr's acknowledgment that he did not know the specific information Owen gave the Judicial Inquiry Board shows that his statement was not a factual charge and actionable as a matter of law." (Emphasis added.) Owen v. Carr (1986), 113 Ill. 2d 273, 280-81, 497 N.E.2d 1145, 1148.

After the decision of the United States Supreme Court in Gertz, section 566 of the Restatement (Second) of ...


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