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07/18/89 Genevieve Marczak, v. Drexel National Bank Et Al

July 18, 1989

GENEVIEVE MARCZAK, PLAINTIFF-APPELLANT

v.

DREXEL NATIONAL BANK ET AL., DEFENDANTS-APPELLEES

IN POWERS

v.

DELNOR HOSPITAL (1986), 148 ILL. APP. 3D 844, 499 N.E.2D 666, PLAINTIFF BASED A DEFAMATION ACTION ON THE FOLLOWING STATEMENT:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

542 N.E.2d 787, 186 Ill. App. 3d 640, 134 Ill. Dec. 441 1989.IL.1111

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BILANDIC delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Genevieve Marczak, appeals from the trial court's dismissal of her first amended complaint and the denial of her motion for leave to file a second amended complaint. She argues that the complaint sufficiently alleged defamation and that she was not precluded from recovery for unjust dismissal and intentional interference with a business relationship by the National Bank Act of 1864. 12 U.S.C. § 24 (1982).

Plaintiff's first amended complaint was filed against Drexel National Bank (hereinafter the Bank) and John Colgan, Russ Ewert and Ann Nickel, who are officers of the Bank. Count I alleges defamation; count II alleges intentional interference with employment relationship; and count III alleges unjust dismissal. The complaint alleged that plaintiff

"Ms. Marczak did not perform up to the high standards expected of officers of the Bank. She had some problems getting along with her supervisors and other officers; at times she was uncooperative and did not have the Bank's best interest at heart; and she did recently refuse to perform one of the responsibilities of her position (petty cash)."

The report, signed by the individual defendants as officers of the Bank, also stated that plaintiff had received several prior verbal reprimands about her conduct.

Pursuant to defendants' section 2-615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), the trial court dismissed all three counts, finding: (1) there is no defamation per se ; (2) there are insufficient allegations of malice; and (3) the actions are precluded by the National Banking Act (12 U.S.C. § 24 (1982)). The court also denied plaintiff leave to file a second amended complaint, finding that it failed to cure the defects in the original and first amended complaint.

A trial court's power to allow amendments should be freely exercised in order that litigants may fully present their causes of action. (Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 988, 483 N.E.2d 924.) Factors to be considered in determining whether the trial court's discretion in permitting or denying amendments was properly exercised is whether the proposed amendment would cure a defective pleading; whether other parties would sustain prejudice or surprise by virtue of the proposed amendments; and whether previous opportunities to amend pleadings could be identified. (Hoffman v. Nustra (1986), 143 Ill. App. 3d 259, 265, 492 N.E.2d 981, appeal denied (1986), 112 Ill. 2d 575.) The court may consider the ultimate efficacy of a claim in passing on a motion to amend a pleading and may deny leave if the proposed amendment does not cure the defect. Schenker v. Chicago Title & Trust Co. (1984), 128 Ill. App. 3d 488, 470 N.E.2d 1264, appeal denied (1985), 101 Ill. 2d 593. I

Count I of the proposed second amended complaint alleges that the language used by plaintiff's employer in the employee termination report constitutes defamation per se. A defamation is the publication of anything injurious to the good name or reputation of another, or which tends to bring him or her into disrepute. (Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340, 207 N.E.2d 452.) The gravamen of an action for defamation is the damage to plaintiff's reputation in the eyes of other persons. (Cowper v. Vannier (1959), 20 Ill. App. 2d 499, 503, 156 N.E.2d 761.) Words are held to be defamatory per se where they impute: (1) commission of a criminal offense; (2) infection with a communicable disease; (3) inability to perform, or want of integrity to discharge duties of office or employment; and (4) prejudicing a particular party in his trade, profession or calling. Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 805, 387 N.E.2d 714, aff'd (1980), 83 Ill. 2d 146, 419 N.E.2d 350, cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.

A defamation can never be per se if the words themselves are capable of an innocent construction. (John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148; Jacobs v. Gasoline Retailers Association (1975), 28 Ill. App. 3d 7, 10, 328 N.E.2d 187, appeal denied (1975), 60 Ill. 2d 597.) Plaintiff's assertion that the Illinois Supreme Court repudiated the innocent construction rule is misplaced. In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, "the Illinois Supreme Court has chosen not to discard the innocent construction rule, but to give it a special gloss." (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 581, 506 N.E.2d 1370, appeal denied (1987), 116 Ill. 2d 554.) Chapski formally added reasonableness to such innocent constructions. See Harris, 154 Ill. App. 3d at 581.

"The continuous dissatisfaction . . . [plaintiff] has indicated in both written communications and verbally, regarding personnell [ sic ] policies and procedures, as well as the continued friction and tension created within the department because of her expressed attitudes and feelings about the nursing profession ...


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