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Tepper v. Copley Press

November 15, 1999

IVAN H. TEPPER, PLAINTIFF-APPELLANT.
V.
COPLEY PRESS, INC., JIM BERKLAN, AND CHARLES SELLE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 97--L--728

Honorable James C Franz, Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, Ivan H. Tepper, appeals the trial court's dismissal of his complaint alleging, inter alia, that the defendants, Copley Press, Inc., Jim Berklan, and Charles Selle, defamed the plaintiff after writing and publishing a newspaper article about the plaintiff's suspension from the practice of law. We affirm and remand for further proceedings.

The following facts are taken from the record. On June 28, 1996, the Administrator for the Attorney Registration and Disciplinary Commission (ARDC) filed a three-count complaint against the plaintiff alleging misconduct. Count I essentially alleged that the plaintiff failed to provide adequate representation to Betty Johnson, who was involved in an automobile accident in 1991. The plaintiff agreed to represent Johnson on a contingency fee basis but provided no written agreement. The plaintiff neglected the case, failed to file a claim within the statute of limitations period, and failed to advise Johnson about the status of her case. Count II alleged that the plaintiff failed to provide adequate representation to Nicole Drobnick in a dissolution of marriage proceeding. The plaintiff requested and received $350 for subpoena service and witness fees, deposited the check in his general account, and then used the money for personal and business expenses. Count III alleged that the plaintiff failed to provide adequate representation to Robert Neal in an automobile case. The plaintiff agreed to represent Neal on a contingency fee basis but provided no written agreement. The plaintiff nonsuited the case without Neal's knowledge, refiled but failed to serve the defendant, falsely told Neal that the delay was due to bad faith on the part of the insurance company, and generally neglected the case.

The ARDC Hearing Board held a hearing on the matter on December 11, 1996. On May 2, 1997, the ARDC Hearing Board (the Board) filed its report and recommendation finding that the ARDC Administrator proved all three charges against the plaintiff by clear and convincing evidence. More specifically, regarding count I, the Board found the Administrator proved the following charges: (1) failure to provide competent representation to a client; (2) failure to act with reasonable diligence and promptness in representing a client; (3) failure to keep a client reasonably informed about the status of a matter and to comply promptly with reasonable requests for information; (4) failure to execute a written contingent fee agreement; (5) engaged in conduct that was prejudicial to the administration of Justice; and (6) engaged in conduct that tended to defeat the administration of Justice or to bring the courts or the legal profession into disrepute. Regarding count II, the Hearing Board found the Administrator proved the following charges: (1) conversion; (2) failure to deposit client funds in a separate and identifiable account; (3) failure to deposit all nominal or short-term funds of clients, including advances for costs and expenses, in one or more pooled interest-bearing trust accounts; (4) conduct involving dishonesty, fraud, deceit, or misrepresentation; (5) conduct that was prejudicial to the administration of Justice; and (6) conduct that tended to defeat the administration of Justice or to bring the courts or the legal profession into disrepute. Regarding count III, the Hearing Board found the Administrator proved the following charges: (1) failure to provide competent representation to a client; (2) failure to act with reasonable diligence and promptness in representing a client; (3) failure to keep a client reasonably informed about the status of a matter; (4) conduct involving dishonesty, fraud, deceit, or misrepresentation; (5) conduct that was prejudicial to the administration of Justice; and (6) conduct that tended to defeat the administration of Justice or to bring the courts or the legal profession into disrepute. The Hearing Board recommended that the plaintiff be suspended from the practice of law for two years.

Defendant Copley Press, Inc., published an article in its June 14-15, 1997, weekend edition of its newspaper, the News-Sun. The article summarized the Hearing Board's report and recommendation regarding the plaintiff. The article was written by defendant Jim Berklan. Defendant Charles Selle was an editor at the News-Sun.

On September 4, 1997, the plaintiff filed a 15-count complaint against the defendants. The complaint alleged five different causes of action: defamation, false-light invasion of privacy, intentional infliction of emotional distress, civil conspiracy, and interference with prospective economic advantage. All of the claims were based on the premise that the news article contained false and defamatory statements.

In December 1997, the ARDC Review Board reversed the Hearing Board's findings regarding count II. The ARDC Review Board held that the Administrator failed to prove the misconduct charged in count II by clear and convincing evidence.

The defendants moved to dismiss under both section 2--619 and section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West 1996)). The section 2--619 portion of the motion raised the official report privilege and the substantial truth and incremental harm defenses as affirmative bars to the plaintiff's claims. The section 2--615 portion of the motion further contended that the complaint failed to allege any facts specifying which statements contained in the article were false and failed to allege any facts that, if proved, would establish that the defendants knew or should have known that the statements were false. The defendants also stated that the plaintiff otherwise failed to set forth facts establishing a cause of action.

On April 16, 1998, the trial court granted the defendants' section 2--619 portion of the motion to dismiss and dismissed the plaintiff's complaint with prejudice. The order included Rule 304(a) (155 Ill. 2d R. 304(a)) language in accordance with Niccum v. Botti, Marinaccio, Desalvo & Tameling, Ltd., 182 Ill. 2d 6 (1998). On April 20, 1998, the plaintiff filed his notice of appeal. On May 14, 1998, the defendants filed a motion for sanctions under Supreme Court Rule 137. 155 Ill. 2d R. 137 . The trial court has not yet ruled on this motion. However, because the trial court's order contained Rule 304(a) language, we have jurisdiction over this appeal. See Niccum, 182 Ill. 2d at 9. On May 28, 1998, this court denied the defendants' motion to dismiss the appeal.

On appeal, the plaintiff contends that the trial court erred by granting the defendants' motion to dismiss. The plaintiff asserts that the official report privilege, incremental harm doctrine, and the substantial truth defense do not bar his claim. The defendants claim that the trial court properly granted their motion to dismiss and properly ruled that the governmental report privilege barred the plaintiff's claims. We agree with the defendants.

The standard guiding our review of the trial court's decision to grant the defendants' section 2--619 portion of the motion (735 ILCS 5/2--619 (West 1996)) is clear. Section 2--619(a)(9) of the Code of Civil Procedure provides for dismissal if "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9) (West 1996). Thus, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054, 1067 (1999). We review de novo the granting of a section 2--619 motion to dismiss. Aboufariss, 305 Ill. App. 3d at 1067; Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). "The purpose of a section 2--619 motion to dismiss is to provide a mechanism to dispose of issues of law and easily proved issues of fact, and the cause of action should not be dismissed on the pleadings unless it is clearly apparent that no set of facts can be proved which will entitle a plaintiff to recover." Nielsen-Massey Vanillas, Inc. v. City of Waukegan, 276 Ill. App. 3d 146, 151 (1995).

The defendants in this case claim that they were protected by the governmental report privilege. The plaintiff argues that the privilege does not protect the defendants because the news article was not fair or accurate and the defendants published the allegedly defamatory statements with the sole purpose of causing the plaintiff harm. Essentially, the plaintiff alleged in his complaint that defendant Charles Selle, an editor at the News-Sun, wanted to harm the plaintiff because the plaintiff and Selle's wife had opposing interests in a local election and a civil suit. The defendants assert that the news article contained a fair and accurate summary of the ARDC Hearing Board report and that, contrary to the plaintiff's belief, the privilege is not defeated by establishing actual malice. We agree with the defendants.

The governmental report privilege protects news accounts based upon the written and verbal statements of governmental agencies and officials made in their official capacities. Gist v. Macon County Sheriff's Department, 284 Ill. App. 3d 367 (1996). For this privilege our supreme court adopted section 611 of the Restatement of Torts (Restatement of Torts ยง611 (1938)), which then contained a two-prong test for the application of the ...


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