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Popp v. O'Neil

May 15, 2000

JOHN J. POPP, JR.,
PLAINTIFF-APPELLANT,
V.
TIMOTHY D. O'NEIL, WILLIAM C. MURPHY, ROBERT B. HUPP, ROBERT M. FOOTE, CRAIG S. MIELKE, PATRICK M. KINNALLY, PAUL G. KRENTZ, JOSEPH C. LORAN, AND GERALD K. HODGE, INDIV. AND D/B/A PARTNERS OF THE LAW FIRM OF MURPHY, HUPP, FOOTE, MIELKE, AND KINNALLY,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 96--L--458 Honorable Timothy Q. Sheldon, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

The plaintiff, John Popp, Jr., appeals from the May 20, 1999, order of the circuit court of Kane County dismissing his complaint with prejudice pursuant to section 2--619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619(a)(9) (West 1998)). The plaintiff brought the instant action seeking to recover damages for allegedly libelous statements contained in a letter written by the defendant, Timothy O'Neil, who was an associate with the law firm of Murphy, Hupp, Foote, Mielke, & Kinnally (the Murphy firm). In dismissing the plaintiff's complaint, the trial court found that the content of the letter was absolutely privileged and could not form the basis of a libel action. We affirm.

The following facts are taken from the plaintiff's complaint. On November 29, 1995, Timothy O'Neil sent a letter to Michael Fleming on the letterhead of the Murphy firm. At this time, Fleming was allegedly a business associate of the plaintiff. The purpose of the correspondence was to advise Fleming that the Murphy firm would not be representing him in a potential personal injury claim. Among the stated reasons for this decision was the following:

"Further compounding the problem, one of the witnesses is John Popp of Aurora. If this firm were to undertake representing you, John Popp would hurt you tremendously because of our representation. We have just finished legal proceedings against Popp and his company in which we have won a substantial judgment. Popp lied on the stand in that case, and because he hates this firm, would not do you any favors. For the reasons above, we will decline to represent you in this case. However, that does not mean that another attorney would have the same view of the case or have the problem with John Popp."This letter was mailed to Fleming's residence. The letter was apparently opened by Fleming's wife and its contents were read by both Fleming and his wife.

On October 1, 1996, the plaintiff filed a complaint against O'Neil and each of the partners of the Murphy firm. The plaintiff alleged that the statements in the letter were libelous per se, as they falsely and maliciously accused him of committing the offense of perjury. The plaintiff alleged that the letter was read by Fleming, his wife, and "numerous other people and business associates."

On December 9, 1996, the defendants moved to dismiss the plaintiff's complaint pursuant to section 2--619(a)(9) of the Code (735 ILCS 5/2--619(a)(9) (West 1996)). The defendants argued that the plaintiff's complaint was barred by the affirmative defense of truth. Specifically, the defendants argued that O'Neil's statement that "Popp lied on the stand" was true. On April 1, 1997, following a hearing, the trial court granted the defendants' motion and dismissed the plaintiff's complaint with prejudice. The plaintiff filed an appeal and this court reversed the dismissal, finding that genuine issues of material fact existed as to whether the plaintiff had actually lied on the stand. See Popp v. O'Neil, No. 2--97--0696 (1998) (unpublished order under Supreme Court Rule 23).

On remand, the defendants again moved to dismiss the complaint pursuant to section 2-619(a)(9) of the Code. In the motion, the defendants argued that O'Neil's letter was absolutely privileged and could not form the basis of a libel action. The defendants argued that the letter was a privileged communication between an attorney and a potential client preliminary to a proposed judicial proceeding.

In support of the motion, the defendants attached the affidavit of O'Neil. In his affidavit, O'Neil stated that, prior to November 29, 1995, he had consulted with Fleming about the possibility of representing Fleming in a civil action arising out of a bar fight that had occurred between Fleming and Michael Prate. After speaking with Fleming, O'Neil obtained a copy of the police report concerning the fight. The report identified the plaintiff as a possible witness. Thereafter, O'Neil prepared and sent to Fleming the allegedly defamatory letter.

In response to the motion to dismiss, the plaintiff submitted the affidavits of Fleming and his wife, Ginger Fleming. In his affidavit, Fleming stated that he had left a telephone message with the defendants' law firm sometime during the first two weeks of November 1995 concerning injuries that he had sustained in a bar fight. In the third week of November 1995, Fleming received a telephone call from O'Neil, who asked him to identify any witnesses to the injury. After Fleming advised O'Neil that the plaintiff had been with Fleming at the time of the fight, O'Neil told Fleming that he did not want to be associated with the plaintiff and that neither he nor the Murphy law firm would be able to take Fleming's case. Fleming indicated in his affidavit that he never had an opportunity to ask O'Neil to represent him, nor did he ever consider himself to be a client of O'Neil or the Murphy firm. Several days after this telephone conversation, Fleming received O'Neil's letter.

In her affidavit, Ginger Fleming stated that she had never been a client of the Murphy firm. She further stated that, on or about November 29, 1995, she opened and read a letter that had been addressed to her husband and that had been written by O'Neil. Ginger Fleming stated that she knew the plaintiff and that, prior to reading O'Neil's letter, had always thought highly of his character and honesty.

On May 20, 1999, following a hearing, the trial court granted the defendants' motion for summary judgment. The trial court found that O'Neil's communication to Fleming was pertinent to Fleming's proposed litigation and was therefore absolutely privileged. The trial court therefore concluded that the letter could not serve as the basis for the plaintiff's claim of libel. The plaintiff filed a timely notice of appeal.

The plaintiff's sole contention on appeal is that the trial court erred in finding that O'Neil's letter was absolutely privileged. The plaintiff argues that, at the time that O'Neil wrote the letter, Fleming was not a potential client. Rather, the plaintiff argues that O'Neil had already verbally rejected representation of Fleming prior to publishing the letter. The plaintiff therefore contends that, at the time the letter was written, the defendants were not engaged in the representation of a "client." Alternatively, the plaintiff argues that, even if such a privilege was applicable, it cannot extend to communications that were published to Fleming's wife. Finally, the plaintiff argues that the legislature's enactment of the Slander and Libel Act (740 ILCS 145/1 et seq. (West 1998)) displaced the common law privilege relied upon by the defendants.

A section 2--619 motion may be used to dispose of issues of law or easily proved issues of fact. Neade v. Engel, 277 Ill. App. 3d 1004, 1007 (1996). The motion may be granted when the claim asserted is barred by some affirmative matter defeating the claim. 735 ILCS 5/2-- 619(a)(9) (West 1998). The trial court should grant a section 2--619 motion if, after construing the documents in the light most favorable to the non-movant, it finds no disputed issues of fact. Draper v. Frontier Insurance Co., 265 Ill. App. 3d 739, 742 (1994). In a defamation action, the issue of absolute privilege is an affirmative defense that may be raised and determined by a section 2-619 motion to dismiss. Harris v. News-Sun, 269 Ill. App. 3d 648, 651 (1995). Whether a particular statement is privileged is a question of law. Barakat v. Matz, 271 Ill. App. 3d 662, 667 (1995).

Under certain circumstances, an attorney is absolutely privileged to make defamatory statements. The scope of the privilege is set forth in the Restatement (Second) of Torts ...


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