Appeal from the Circuit Court of Cook County. No. 98-L-1062 Honorable Jennifer Duncan-Brice, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Theis
Plaintiff, Lynda S. Gardner, brought this four-count complaint in the circuit court of Cook County to recover damages for injury to her reputation and business resulting from allegedly defamatory statements published by defendants, Senior Living Systems, Inc. (SLS), Bruce Paller, and Barry Gruber, in letters to their present and potential customers. The circuit court granted defendants' motion to dismiss with prejudice pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 1998)), on the basis that the publications were susceptible to an innocent construction and were otherwise not actionable. For the following reasons, we reverse and remand for further proceedings.
Plaintiff was a former employee of SLS, a company that sells, services, and provides technical support for its line of computer software to the health-care industry. Plaintiff had worked in the company's support department, providing computer services and training to SLS customers for about three years. In September 1996, she resigned and went to work as an independent sales representative on a commission basis for Answers on Demand, a competitor of SLS.
In count I of her complaint, plaintiff alleged that, shortly after her resignation, defendant Paller, her former support manager at SLS, authored and published a letter about her to SLS customers. That letter is attached to plaintiff's complaint. Therein, she directs attention to statements made by Paller that she claims falsely accused her of being "unethical" and taking actions that were "illegal." She additionally alleged that the letter falsely accused her of "soliciting SLS clients and contracting her services" for SLS software training or custom work, falsely accused her of failing to remove SLS software from her computer, maliciously stated that she had "refused to sign a non-disclosure agreement" with SLS, and threatened SLS customers with "possible future problems" if they made use of her services. As a result, she alleged that the letter impugned her integrity and prejudiced her in her business. She sought compensatory and special damages, as well as punitive damages for the allegedly malicious acts.
Count II was directed at SLS for having approved or ratified the Paller letter and alleged liability under the doctrine of respondeat superior. Count III was directed at defendant Gruber. Plaintiff alleged that, two weeks after the Paller letter, Gruber, vice president of SLS, authored and published a separate letter to SLS customers and/or sales prospects, specifically addressing her. That letter is also attached to plaintiff's complaint. Therein, she directs attention to Gruber's postscript, which she claims falsely and maliciously accused her of "software piracy and industrial espionage related to theft of trade secrets," maliciously stated that "suit will be filed shortly" against her and threatened recipients of the letter that such lawsuit would likely affect any client that does business with her. As a result, she alleged that the Gruber letter impugned her integrity and prejudiced her in her business. She sought compensatory and special damages as well as punitive damages on account of the alleged malicious acts. Lastly, count IV was directed at SLS for having approved or ratified the Gruber letter and alleged liability under the doctrine of respondeat superior.
Defendants subsequently filed a motion to dismiss the complaint for failure to state a cause of action pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)). The trial court granted the motion with prejudice and denied plaintiff's motion for reconsideration.
On appeal, plaintiff contends that the trial court erred as a matter of law in finding that the complaint was legally insufficient. Specifically, she argues that these statements fall into one of the recognized categories of words that are actionable per se and are not capable of a reasonable innocent construction. Defendants maintain that the dismissal of the complaint was proper because the language contained in the letters does not constitute libel per se, is subject to the Illinois innocent construction rule, and is absolutely privileged.
In considering whether the trial court properly dismissed the complaint, we note that a motion to dismiss under section 2-615 attacks the legal sufficiency of the complaint. Van Horne v. Muller, 185 Ill. 2d 299, 305, 705 N.E.2d 898, 902 (1998). The court must take all well-pleaded facts as true and draw all reasonable inferences from those facts that are favorable to the plaintiff. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207, 1213 (1996). Exhibits attached to the complaint are included as part of the complaint and must also be considered in that determination. Kirchner v. Greene, 294 Ill. App. 3d 672, 677, 691 N.E.2d 107, 112 (1998). A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. Van Horne, 185 Ill. 2d at 305, 705 N.E.2d at 902. The standard of review governing dismissals pursuant to section 2-615 is de novo. Kirchner, 294 Ill. App. 3d at 679, 691 N.E.2d at 113.
With this standard in mind, we consider whether plaintiff's allegations state a cause of action for defamation per se. A statement is defamatory if it impeaches a person's reputation and thereby lowers that person in the estimation of the community or deters third parties from dealing with that person. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 201, 206 (1992). The question of whether a statement is actionable is a question of law, and each case must be decided on its own facts and circumstances. Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 741, 743, 415 N.E.2d 434, 441, 442 (1980). However, certain words are considered libelous per se because their publication is so obviously and naturally hurtful to the person aggrieved that proof of their injurious character is unnecessary. Mittelman v. Witous, 135 Ill. 2d 220, 239, 552 N.E.2d 973, 982 (1989). Accordingly, in such cases, the plaintiff need not plead or prove actual damage to reputation. Van Horne, 185 Ill. 2d at 307, 705 N.E.2d at 903.
Statements that fall into the category of defamatory per se include those that (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or lack of integrity in the discharge of duties of office or employment; (4) prejudice a party or impute lack of ability in her trade, profession or business; and (5) those that impute adultery or fornication. Van Horne, 185 Ill. 2d at 307, 705 N.E.2d at 903.
Applying these categories to the present case, we first consider the Paller letter. Plaintiff asserts that the statement falsely accusing her of "illegal" actions based upon her leaving with SLS software are actionable per se because they impute the commission of the crime of theft and thereby prejudiced her in her business. Despite defendants' assertion that the word "theft" does not appear in the statement, it is not necessary that the words state the commission of a crime in terms of art or with the particularity of an indictment for such words to be libelous. Catalano v. Pechous, 83 Ill. 2d 146, 157, 419 N.E.2d 350, 355 (1980). However, the crime must be an indictable one, involving moral turpitude and punishable by imprisonment or death. Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 46, 684 N.E.2d 935, 947 (1997).
The crime of theft is punishable by imprisonment and is committed when a person knowingly obtains or exerts unauthorized control over property of the owner and intends to permanently deprive the owner of the use or benefit of the property. 720 ILCS 5/16-1(a)(1)(A) (West 1996). Therefore, the statements by Paller to his customer, that plaintiff left with SLS software, that despite many requests never returned the computer to have the software removed, and that SLS believed these actions to be illegal, when taken in the light most favorable to the plaintiff, are sufficient to impute the commission of a theft. Additionally, these statements would be sufficient to subject plaintiff to the criminal offense of unlawful use of recorded sounds or images. 720 ILCS 5/16-7 (West 1996).
However, even if a statement is defamatory per se, it may not be regarded as defamatory if the statement is reasonably capable of an innocent construction. Bryson, 174 Ill. 2d at 90, 672 N.E.2d at 1215. To determine whether a statement is capable of an innocent construction, the court must consider it in context, giving the words and their implications their natural and obvious meaning. Bryson, 174 Ill. 2d at 90, 672 N.E.2d at 1215. Whether an innocent ...