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Kurczaba v. Pollock

December 27, 2000

CHRISTOPHER KURCZABA AND HORN, WHITCUP, ARCE, VILLASUSCO & KURCZABA, PLAINTIFFS-APPELLANTS,
v.
SCOTT POLLOCK, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Burke.

As amended March 13, 2001

Appeal from the Circuit Court of Cook County. Honorable Sophia H. Hall, Judge Presiding.

Plaintiffs Christopher Kurczaba (Kurczaba) and Horn, Whitcup, Arce, Villasuso & Kurczaba (Horn) (also collectively referred to as plaintiffs) appeal from an order of the circuit court dismissing their complaint alleging defamation per se, defamation per quod, and false light invasion of privacy against defendant Scott Pollock (Pollock or defendant) pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1998)). On appeal, plaintiffs contend that the trial court erred in dismissing their complaint because they set forth sufficient facts to sustain each cause of action and no privilege is applicable to defendant's conduct. For the reasons set forth below, we affirm in part, reverse in part, and remand in part.

STATEMENT OF FACTS

Kurczaba and Pollock are both licensed attorneys who concentrate their practice in immigration law, particularly within the Chicago Polish community. Horn is a law firm that also concentrates its practice in immigration law. Both Kurczaba and Horn are well known in the Polish community. Kurczaba is the president of the Polish American Congress, which is an umbrella organization representing over 75 Polish-American organizations. Kurczaba and his family are also principals in a business, Sunrise Travel (Sunrise), which provides travel-related services to individuals in the Chicago area. Sunrise derives much of its business from the Polish community. Similarly, Kurczaba obtains much of his legal business as a result of referrals from members of the Polish community, including individuals working for or associated with Polish newspapers.

Pollock represents various individuals in a class action lawsuit, Malus, et al. v. Sunrise Travel & Tours, Inc., No. 97 CH 1398 (the Malus action). In August 1998, Pollock filed an eight count amended complaint (the Malus complaint), without leave of court. The Malus complaint contained allegations of wrongdoing by Sunrise and its owners, Kurczaba's parents, Pola and Edward Kurczaba, Leonard Whitcup (Whitcup), the law firm of Whitcup & Arce, and the Baranow Corporation of which Kurczaba was the registered agent. Kurczaba was also a member of the law firm of Whitcup & Arce. The Malus complaint alleged wrongdoing in the nature of unauthorized practice of law by individuals not licensed as attorneys, who were associated with the Malus defendants, and assistance by Whitcup and his law firm in the unauthorized practice of law. The Malus complaint also contained individual counts on behalf of four of the class members, alleging fraud, negligence and consumer fraud. Kurczaba was not named as a defendant in the Malus complaint.

Sometime after the Malus complaint was filed, Whitcup & Arce dissolved. Many of its members then formed the Horn firm, including Kurczaba. Horn distributed an advertisement to the legal community, in Polish, which announced the new firm and contained Kurczaba's photograph (the ad).

In October or November 1998, before being granted leave to file an amended complaint, Pollock mailed a package containing a copy of the ad stapled to the Malus complaint to various prominent members and institutions of the Chicago and Polish communities, including three Polish newspapers, the Polish Consul General and Minister Plenipotentiary, the Polish National Alliance, the National President of the Polish-American Congress, the President of the Advocates Society (an association of Polish-American attorneys), the Chicago Tribune, and the Department of Labor.

On November 20, 1998, plaintiffs filed a complaint for preliminary and injunctive relief against Pollock, alleging causes of action for false light invasion of privacy and intentional interference with prospective economic advantage. On January 15, 1999, Pollock filed a motion to dismiss plaintiffs' complaint, arguing that the complaint failed to plead sufficient facts to sustain the causes of action and that his conduct was protected by an absolute privilege. Pollock further argued that Horn could not sustain a cause of action for false light invasion of privacy because it was not a natural person. The trial court granted Pollock's motion on April 8. On August 6, plaintiffs were granted leave to file an amended complaint. In the amended complaint (complaint), plaintiffs alleged causes of action for defamation per se, defamation per quod, and false light invasion of privacy.

In general, plaintiffs' complaint alleged that the Malus complaint alleged dishonesty, deception, fraud, and professional malfeasance by the Malus defendants and that these allegations of misconduct were all false. Plaintiffs also alleged that Kurczaba was mentioned in the allegations of the Malus complaint, was identified as Pola's son, and was an attorney with Whitcup. Plaintiffs further alleged that Pollock was aware that some of the allegations in the Malus complaint were false or that he acted in reckless disregard of the truth or falsity of the allegations in disseminating the package. Plaintiffs also alleged that Kurczaba had a relationship and engaged in continuous discussions and activities with those individuals and entities to whom the package was disseminated. According to plaintiffs' complaint, Pollock sent the package to damage Kurczaba's and Horn's reputations. Plaintiffs also alleged that they had suffered injury to their personal and professional reputations.

With respect to plaintiffs' allegation of defamation per se (count I), plaintiffs alleged that the Malus complaint contained false statements regarding the professional integrity of the Malus defendants, and false statements about the manner in which the Malus defendants conducted business and the manner in which the attorneys handled immigration matters. Plaintiffs alleged that, by sending the Malus complaint along with the ad, Pollock was attempting to connect Horn and Kurczaba to the allegations of wrongdoing in the Malus complaint. Pollock's conduct also suggested that Kurczaba and Horn lacked professional integrity, handled matters in an inappropriate and negligent manner, imputed to plaintiffs an inability to perform their duties, and imputed a want of integrity in discharging their duties as attorneys. Plaintiffs alleged they had suffered prejudice in their profession. Plaintiffs also alleged that Pollock's conduct was wilful and malicious.

With respect to plaintiffs' allegation of defamation per quod (count II), plaintiffs alleged that Pollock's attachment of the ad to the Malus complaint injured and damaged their reputations because the recipients of these documents would draw and had drawn the conclusion that plaintiffs lacked integrity and professional ability. Plaintiffs also alleged that they suffered loss of business income, great embarrassment, public humiliation, mental anguish and emotional distress.

Lastly, with respect to plaintiffs' allegation of false light invasion of privacy (count III), plaintiffs alleged that Pollock intended to and did defame them by placing them in a false light by widely disseminating the package. Plaintiffs further alleged that Pollock's conduct was wilful and malicious, and was designed to intentionally cause injury to their personal and professional reputations.

On September 10, Pollock filed a motion to dismiss plaintiffs' complaint, arguing that plaintiffs failed to set forth sufficient facts to sustain their causes of action, truth was a defense to defamation, and that his conduct was protected by various privileges.

The trial court granted Pollock's motion to dismiss on November 15, finding that Pollock was privileged in circulating the documents because it was a fair report of a true complaint and the ad. With respect to the defamation per se count, the trial court concluded that plaintiffs failed to satisfy the pleading requirements for such a claim. With respect to the defamation per quod count, the trial court concluded that plaintiffs failed to sufficiently plead special damages. Lastly, with respect to the false light invasion of privacy count, the trial court concluded that the law firm could not sustain such a cause of action because the court was persuaded by case law from other jurisdictions that a partnership could not be subject to a false light invasion of privacy action. This appeal followed.

ANALYSIS

A motion to dismiss pursuant to section 2--615 of the Code tests the legal sufficiency of the plaintiff's complaint. Lykowski v. Bergman, 299 Ill. App. 3d 157, 162, 700 N.E.2d 1064 (1998). "In determining the legal sufficiency of a complaint, all well-pleaded facts are taken as being true and all reasonable inferences from those facts are drawn in favor of the plaintiff." Lykowski, 299 Ill. App. 3d at 162. "The question on appeal from the granting of a section 2--615 motion is whether the allegations in the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted." Lykowski, 299 Ill. App. 3d at 162-63. A section 2--615 motion "does not raise affirmative factual defenses but alleges only defects on the face of the complaint." Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207 (1996). "[F]or purposes of a section 2--615 motion, a court may not consider 'affidavits, affirmative factual defenses or other supporting materials.' [Citation]" Kirchner v. Greene, 294 Ill. App. 3d 672, 677, 691 N.E.2d 107 (1998). We review the trial court's decision de novo. Lykowski, 299 Ill. App. 3d at 162.

TRUTH AS A DEFENSE

In nonpublishable material, we conclude that the truth defense was not a basis to dismiss plaintiffs' complaint because Kurczaba was not named as a defendant in the Malus complaint and the statements contained in the complaint had not been proven as true.

[NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23] DEFAMATION PER SE

In nonpublishable material, we conclude that the dissemination of the Malus complaint could constitute defamation per se, that the mterial defendant disseminated was not subject to an innocent construction and, accordingly, that the trial court erred in dismissing count I of plaintiffs' complaint.

[NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23] DEFAMATION PER QUOD

Plaintiffs contend that they pled adequate allegations for defamation per quod (count II), including special damages. According to plaintiffs, based on Bryson, allegations of general economic loss alone are now sufficient allegations of special damages and, because they pled that their reputations were damaged and they lost business and income, they sufficiently pled special damages. Defendant contends that plaintiffs failed to sufficiently plead special damages because plaintiffs did not plead any facts to show how their reputations were tarnished, what business was lost or any monetary loss. The trial court dismissed this count, finding that plaintiffs' allegations of special damages were insufficient.

"Statements are considered defamatory per quod if the defamatory character of the statement is not apparent on its face, and extrinsic facts are required to explain its defamatory meaning." Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 201 (1992). If a defamatory statement does not fall within a per se category, "the plaintiff must plead and prove that she sustained actual damage of a pecuniary nature ('special damages') to recover." Bryson, 174 Ill. 2d at 87-88.

The parties seem to agree that the only issue before this court, as to count II, is whether plaintiffs sufficiently pled special damages. We first observe, contrary to plaintiffs' argument, that Bryson did not change the requirements for pleading special damages. In Bryson, the court stated that "the plaintiff must plead and prove that she sustained actual damage of a pecuniary nature ('special damages') to recover." Bryson, 174 Ill. 2d at 87-88. Additionally, the court stated that "the plaintiff must plead and prove actual damage to her reputation and pecuniary loss resulting from the defamatory statement ('special damages') to recover." Bryson, 174 Ill. 2d at 104. These are the only two statements the court made concerning special damages. It did not otherwise address the ...


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