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12/21/89 Robert H. Mittelman, v. John J. Witous

December 21, 1989




Before we consider Mittelman's slander per se count, in which he seeks presumed damages, we will first discuss certain preliminary matters that bear upon a plaintiff's right to recover presumed damages. This portion of our Discussion will necessarily touch upon the requisite mental state of the defendant as affected by the context in which the statement is published. We will also review categories of words considered to be defamatory per se in Illinois. Thereafter, we will address factors pertaining to any claim of defamation, and will determine whether the statement at issue is a constitutionally protected expression of opinion, or whether it is a statement of fact which is actionable if it is false, not subject to privilege, made with the requisite mental state, and incapable of a reasonable nondefamatory construction. We will conclude our Discussion with Mittelman's claim that Witous tortiously interfered with Mittelman's relationship with Clausen Miller.


552 N.E.2d 973, 135 Ill. 2d 220, 142 Ill. Dec. 232 1989.IL.1992

Date Filed: December 21, 1989; Modified on Denial of Rehearing April 9, 1990.

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Myron T. Gomberg, Judge, presiding.


JUSTICE CALVO delivered the opinion of the court. JUSTICE MILLER took no part in the consideration or decision of this case.


Plaintiff, Robert Mittelman, filed an action in the circuit court of Cook County charging defendant, John Witous, with slander per se and intentional, willful interference with Mittelman's "prospective business relationship and contractual expectancy" with the law firm of Clausen, Miller, Gorman, Caffrey and Witous, P.C. (Clausen Miller). Witous served on Clausen Miller's board of directors. Mittelman's first amended complaint also charged James Ferrini, another member of Clausen Miller's board of directors, with breaching a duty to Mittelman in that Ferrini failed to take reasonable steps to protect Mittelman's professional reputation, adopted Witous' statement as his own, and thereby intentionally and willfully interfered with Mittelman's prospective business relationship and contractual expectancy. Pursuant to defendant's motion to dismiss Mittelman's first amended complaint, the circuit court struck all three counts thereof as insufficient, advising Mittelman that he could move to vacate the order of dismissal within 30 days if he tendered a second amended complaint with his motion. Mittelman subsequently moved to vacate the order of dismissal and tendered a four-count second amended complaint, adding a count alleging slander per quod. Mittelman's motion to vacate the order of dismissal and for leave to file the second amended complaint was denied, based upon what the circuit court perceived as inadequacies in the second amended complaint. From this order, Mittelman appealed.

The appellate court, one Justice Dissenting, reversed the circuit court's order insofar as counts against Witous were concerned; however, the appellate court affirmed the circuit court's order of dismissal as it pertained to the count against Ferrini. (171 Ill. App. 3d 691, 710.) Pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315), we granted Witous' petition for leave to appeal. The dismissal of Ferrini as a party is not at issue in this appeal.

As it appears the circuit court's refusal to vacate its order of dismissal and allow Mittelman to file his second amended complaint was premised upon the circuit court's belief that Mittelman's second amended complaint was insufficient as a matter of law, we will examine the pertinent allegations thereof, assuming the truth of factual allegations therein (see Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 298; Dubrovin v. Marshall Field's & Co. Employee's Credit Union (1989), 180 Ill. App. 3d 992, 995), to determine the sufficiency of Mittelman's second amended complaint.

In January of 1979, Mittelman, an associate with Clausen Miller, was assigned by Witous, the president of Clausen Miller, to prepare for trial two cases, generally known as the Kerr-McGee cases, then pending in the circuit court of Lowndes County, Mississippi. Mittelman alleges Witous remained the attorney with ultimate responsibility for both cases.

The Kerr-McGee cases were insurance subrogation actions undertaken on behalf of the Kemper Insurance Group. The actions arose out of two separate failures of a splice in a power line which supplied electricity to a plant owned by Kerr-McGee Corporation. The original splicing was done in October of 1969. The first failure occurred in June of 1972, and was repaired within a few days; however, the splice failed again in December 1972. As a result of the splice failures, the plant lost its source of power and was rendered inoperable for the time required for repairs. Consequently, Kerr-McGee suffered a loss of profits which was covered under an insurance policy issued by Kemper.

In December 1973, both cases were referred by Kemper to Clausen Miller for evaluation of subrogation potential. In January 1974, Witous advised Kemper that the subrogation potential in both cases was excellent and that the applicable statute of limitations was six years. Witous received authorization to file suit in March of 1974. Suit was filed in the case of the June 1972 failure on June 8, 1978, in a Federal district court in Mississippi. Due to lack of complete diversity of citizenship, the complaint was dismissed in Federal court and the action was filed in the circuit court of Lowndes County, Mississippi, in July of 1978. Certain defendants in that suit raised the six-year statute of limitations as an affirmative defense. An action for the December 1972 failure was filed in the circuit court of Lowndes County in November of 1978. No defendants in that case raised the statute of limitations.

When Mittelman first reviewed the files he noted a legal memorandum from local counsel in Mississippi stating, in substance, that there was no need to worry about the statute of limitations defense interposed in the case of the June 1972 failure because a Mississippi tolling provision applied to actions removed from Federal to State court. Mittelman reviewed the statutory authority and case law cited in the memorandum and satisfied himself that the cited authorities supported the memorandum's Conclusion that the statute of limitations would not be a problem.

From January 1979 until April 1982, Mittelman prepared the cases for trial, keeping Witous informed of his activities. In the course of trial preparation, considerable time and money were expended, and a settlement overture was rejected.

By April 1982, preparations for trial had been completed and Mittelman appeared in Lowndes County circuit court for pretrial conference. Defendants presented a motion for leave to amend their answers in the case of the December 1972 failure so as to raise the statute of limitations as an affirmative defense. Defendants moved to dismiss both cases based upon a 1969 Mississippi Supreme Court decision (M.T. Reed Construction Co. v. Jackson Plating Co. (Miss. 1969), 222 So. 2d 838) they had recently discovered while researching another matter. Mittelman objected to the motion for leave to file the defense, arguing that the motion was untimely and that defendants had waived, or should be estopped from asserting, the defense since Kemper and Clausen Miller had expended considerable time and money in preparation for trial. The matter was set over for briefing and Mittelman returned to Chicago.

Upon his return, Mittelman advised Witous of developments in the case and presented portions of the case files for his review. Mittelman informed Witous that Mittelman had not been aware of a possible problem with the statute of limitations until presentation of defendants' motions at the pretrial conference. Further, Mittelman advised Witous, Ferrini and others that, in Mittelman's opinion, the case relied upon by defendants was directly on point. Mittelman, Witous and others prepared responses to defendants' motions; however, on September 3, 1982, the Mississippi circuit court granted defendants' motions and dismissed the Kerr-McGee cases pursuant to the M.T. Reed decision.

On or about September 3, 1982, Witous had a Discussion with other members of Clausen Miller's board of directors concerning, generally, the firm's financial status, and specifically, a serious cash flow problem. In the course of the Discussion criticism was directed at Witous for his handling of the Kerr-McGee cases, including the fact that suit was not filed for over four years after authorization was given, and the fact that dismissal on the basis of the statute of limitations would cost the firm a considerable amount of money. At that time, Witous allegedly stated the waste of time and money in preparing the Kerr-McGee cases was not his fault, but that of Mittelman, who sat on the statute of limitations defense with knowledge of M.T. Reed and its applicability for three years without attempting to settle in order to cut the firm's probable losses.

In count I of his second amended complaint, Mittelman alleged the foregoing statement was "false" and Witous "knew it was false or had no reasonable basis for believing it to be true." Further, Mittelman alleged Witous' statement was made "maliciously, with an evil motive to injure [Mittelman] without just cause or excuse." Finally, Mittelman alleged that, as a result of the statement, he suffered "damage to his professional reputation."

In count II, alleging slander per quod, Mittelman reiterated his allegations with respect to falsity, Witous' knowledge thereof and malice. In addition, Mittelman claimed that Witous' statement caused or contributed to the decision of Clausen Miller to terminate Mittelman and, as a result, he was "injured in an amount not less than $90,000 of lost salary and income."

In count III, Mittelman alleged his employment would have been continued "but for" the statements of Witous which "caused, or contributed, to the firm's decision to terminate" Mittelman. Mittelman claimed Witous "intentionally and willfully interfered" with Mittelman's prospective business relationship and contractual expectancy "without intending thereby to further the interests of the Clausen Miller firm."

Witous first contends that Mittelman's second amended complaint is insufficient because it fails to set forth Witous' statement " in haec verba." Witous cites defamation cases, holding that the words alleged to be defamatory must be set forth "clearly and with particularity" (O'Donnell v. Field Enterprises, Inc. (1986), 145 Ill. App. 3d 1032, 1042; Wilson v. Hunk (1977), 51 Ill. App. 3d 1030, 1035), and cases broadly stating that "all distinctions between libel and slander have been abolished in Illinois." 171 Ill. App. 3d at 699; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154, 159-60.

Witous has waived his right to claim the statement was not alleged with sufficient particularity. Issues raised for the first time on appeal will not normally be considered by a court of review. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303.) As this court observed in People v. McAdrian (1972), 52 Ill. 2d 250, 254, the failure to urge a particular theory before the circuit court will often cause the opposing party to refrain from presenting pertinent rebuttal evidence on such theory, or, as possibly occurred in this case, caused Mittelman to refrain from rendering Witous' statement with greater specificity.

Were we to consider Witous' contention on the merits, we would nonetheless reject it. There is nothing to indicate that Witous' actual words are not set forth in Mittelman's second amended complaint. Neither failure to enclose the statement in quotation marks, nor Mittelman's use of the third person rather than the first person, result in lack of precision in the complaint.

Moreover, even if the "precise" statement is not set forth, as required by a recent appellate decision (see Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 187), the statement is nonconclusory, which distinguishes it from the statement at issue in Wilson, and the substance of the statement is readily ascertainable so as to permit judicial review of it for defamatory content. Some authorities have distinguished between a charge of libel and one of slander in the context of pleading, requiring that the defamatory words be set forth in haec verba in the former case, but not in the latter. (53 C.J.S. Libel & Slander § 133 (1987).) Such a rule makes good sense, particularly in the context of this case. Libelous material, being printed, is easier to obtain, thereby facilitating word for word duplication; whereas a defamatory statement communicated verbally to someone other than plaintiff is often difficult to reproduce verbatim, although the substance and meaning of the statement may be beyond dispute. Defendants have adequate procedural means at their disposal in the circuit court to ensure specificity in pleading (Ill. Rev. Stat. 1987, ch. 110, pars. 2-607, 2-612); therefore, where, as here, Witous did not require greater specificity below, we find Mittelman's nonconclusory, factual statement adequate to permit meaningful review.

Witous next raises several contentions concerning the "innocent construction rule," which arose from obiter dictum in John v. Tribune Co. (1962), 24 Ill. 2d 437. In Valentine v. North American Co. (1974), 60 Ill. 2d 168, 171, this court stated that the innocent construction rule had been "consistently applied by the appellate courts in this State." Three Justices Dissented in Valentine, disagreeing with the majority's Conclusion that the statement at issue was subject to an innocent construction. (Valentine, 60 Ill. 2d at 172-73.) By the time of this court's decision in Chapski v. Copley Press (1982), 92 Ill. 2d 344, there was agreement that the rule had been applied "in something less than a completely uniform fashion" (Chapski, 92 Ill. 2d at 348), and the rule was modified in an effort to avoid "the inconsistencies, inequities and confusion" which were apparent from interpretations and applications of the rule. (Chapski, 92 Ill. 2d at 351.) There is now some question as to whether the rule can be used in deciding statements are expressions of opinion (see Horowitz v. Baker (1988), 168 Ill. App. 3d 603, 608) and whether the rule applies to per quod, as opposed to per se, actions (Harris Trust & Savings Bank v. Phillips ...

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