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Hopewell v. Vitullo

September 22, 1998

EARL W. HOPEWELL, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
LOUIS VITULLO AND WILDMAN, HARROLD, ALLEN AND DIXON, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Court of Cook County.

Honorable Dean M. Trafelet, Judge Presiding.

Plaintiff Earl W. Hopewell (Hopewell) sued defendant Louis Vitullo (Vitullo), a partner of defendant Wildman, Harrold, Allen and Dixon (WHAD), for defamation. The trial court granted defendants' motion to dismiss with prejudice pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), on the basis that the alleged defamatory statement was non-actionable opinion. The trial court also granted defendants' motion to dismiss without prejudice on the basis that Hopewell failed to plead sufficient facts establishing that Vitullo made the alleged defamatory statement with actual malice. Hopewell filed a motion for reconsideration and leave to file a second amended complaint, which the trial court denied. Hopewell appeals, and we have jurisdiction pursuant to Supreme Court Rules 301 and 303. 155 Ill. 2d Rs. 301, 303.

Hopewell raises the following issues: (1) whether the alleged defamatory statement--"fired because of incompetence"--is actionable; (2) whether he pled sufficient facts establishing that Vitullo made the alleged defamatory statement with actual malice; and (3) whether defendants abused their qualified privilege. Vitullo and WHAD filed a motion to dismiss Hopewell's appeal, raising the issue of whether Hopewell's postjudgment motion tolled the period for filing a notice of appeal pursuant to Supreme Court Rule 303. In addition, Vitullo and WHAD cross-appeal and raise the issue of whether they were cloaked with an absolute privilege. For the following reasons, we affirm.

I. FACTS

In February of 1992, Hopewell was hired to be treasurer and chief financial officer (CFO) of the Carol Moseley Braun for U.S. Senate Committee (the Committee). Under the employment contract, the Committee was to compensate Hopewell $7,000 per month for his services. Vitullo was a Committee member, adviser to the Senator, and lawyer for the Senator and the Committee.

In March 1996, Senator Braun sent a memorandum to Hopewell informing him that, from that point on, he would be working on a volunteer basis. Refusing to work on a volunteer basis, Hopewell filed a lawsuit against the Senator and the Committee, charging the Senator and the Committee with breach of contract, retaliatory discharge, and violation of the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 1996)). The complaint in that suit specifically alleged, inter alia, that Hopewell objected to certain campaign finance irregularities and that he was retaliatorily discharged as a result. It also averred that the Committee owed him approximately $177,000 of unpaid wages and that the Senator owed him approximately $20,000 for work performed in connection to the Senator's personal finances.

Upon filing the above complaint, Hopewell and his attorney also commented to the press regarding the Senator's campaign finances. In turn, the Senator directed Vitullo to answer the press' questions regarding Hopewell's lawsuit. The following day, the Chicago Tribune reported on the accusations against the Senator and the Committee while also including Vitullo's response that Hopewell "was fired because of incompetence." Hopewell answered Vitullo's comment by filing the instant lawsuit against Vitullo and WHAD for defamation.

II. STANDARD OF REVIEW

As mentioned above, the trial court granted defendants' motion to dismiss, which defendants filed under section 2-615 and section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 1992). A motion to dismiss pursuant to section 2-615 "challenges only the legal sufficiency of the complaint and admits the truth of all well-pleaded factual allegations." Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 407 (1996). Under a section 2-615 motion, the question is whether the complaint alleges sufficient facts entitling plaintiff to relief. Bryson v. News America Publications Inc., 174 Ill. 2d 77, 86 (1996). On the other hand, a motion to dismiss pursuant to section 2-619(a)(9) presents affirmative matters that avoid the legal effect of plaintiff's claim. Golden v. Mullen, 295 Ill. App. 3d 865, 869 (1997). The question for the court under section 2-619 is "whether there exists a genuine issue of material fact precluding dismissal or, absent an issue of material fact, whether dismissal is proper as a matter of law." Golden, 295 Ill. App. 3d at 869.

Nevertheless, when reviewing motions to dismiss under either section, the court applies a de novo review. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996). The court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts in the light most favorable to the plaintiff. Bryson, 174 Ill. 2d at 86.

III. DISCUSSION

A. Defendants' Motion To Dismiss Hopewell's Appeal

Initially, we must address defendants' motion to dismiss Hopewell's appeal that was taken with this case. Defendants argue that Hopewell's motion for reconsideration and for leave to file a second amended complaint was insufficient to toll the time period for filing an appeal because it did not request appropriate relief and because it failed to assert an adequate basis for reconsideration. We disagree. Hopewell's motion for reconsideration is the most common type of postjudgment motion recognized by the Illinois Supreme Court; it explained why the case law that the trial court used actually supported a finding in his favor. Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 347 (1990); see 735 ILCS 5/2-1203 (West 1996). As such, we conclude that Hopewell's motion qualifies as a postjudgment motion under ...


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