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Marc Jacobson v. Sherry Gimbel

March 27, 2013

MARC JACOBSON,
PLAINTIFF-APPELLANT,
v.
SHERRY GIMBEL,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 10-L-1069 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Marc Jacobson, appeals from a circuit court order dismissing his second amended complaint alleging defamation by defendant, Sherry Gimbel. On appeal, plaintiff argues that the trial court erred by: (1) dismissing his original complaint; (2) dismissing his first amended complaint, because certain allegations contained in his first amended complaint related back to his original complaint; and (3) dismissing his second amended complaint, because the trial court improperly determined that the alleged defamatory per se statements are capable of an innocent construction. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On March 28, 2009, Stuart Gimbel, defendant's husband, committed suicide. The Lake County coroner's office determined that the cause of Stuart's death was suffocation due to the inhalation of helium.

¶ 4 On November 19, 2010, plaintiff filed a complaint against defendant, alleging defamation per se. Paragraphs 1 through 11 alleged the following. Plaintiff was a friend and business associate of Stuart's. In the mid-afternoon of the day Stuart committed suicide, plaintiff received a text message from Stuart reading:

"I'm gonna be taking my life and I want you to take care of my family and notify them. *** You can come by way of the back door. I'm leaving it open. Thanks for everything. Bye." After receiving Stuart's text message, plaintiff immediately left his home and, as instructed, entered Stuart's home through an unlocked door. Plaintiff found Stuart in a chair with a plastic bag wrapped around his head. Under the bag was a surgical-type mask with hoses that were attached to a helium tank. Plaintiff immediately pulled the bag off Stuart's head and called 911. The Lake Forest police department and paramedics responded to the 911 call. Stuart was pronounced dead at Lake Forest Hospital that day. The Lake County coroner's office opined that Stuart committed suicide and that his death was caused by suffocation due to the inhalation of helium.

¶ 5 The complaint also alleged the following:

"12. Upon information and belief, after [Stuart's] death and through December 24, 2009, the Defendant has implicated the Plaintiff in her late husband's death.

13. On information and belief, a number of individuals have had numerous and ongoing conversations with the Defendant relating to the Plaintiff coercing [Stuart's] death, including Ronald Fragen, Carol Fragen and Lenny Goldstein.

14. The Plaintiff has been made aware that the Defendant knowingly, intentionally, and with actual malice made false statements about the Plaintiff which implicate that he coerced [Stuart] into killing himself. The defamatory statements include, but are not limited to the following:

a. 'Ask Marc Jacobson about Stuart's death, he helped him.'

b. 'Marc Jacobson helped Stuart kill himself.'

c. 'Marc Jacobson is why Stuart is dead.'

d. 'Marc had a hand in Stuart's death.'

15. With knowledge of the falsity, Defendant made said statements in personal and telephone conversations with the Fragens and Goldstein in such a way that was loud enough for everyone in the general area to hear.

16. The intentionally false statements made by Defendant are considered defamatory per se because the words accuse Plaintiff of coercing Stuart's suicide, which if true, would be a criminal offense in the State of Illinois."

¶ 6 On January 7, 2011, defendant filed a combined motion to dismiss plaintiff's complaint pursuant to sections 2-615, 2-619, and 2-619.1, of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619, 2-619.1 (West 2010)). Defendant argued that, pursuant to section 2-619 of the Code, the complaint should be dismissed because plaintiff signed a general release in favor of defendant on November 16, 2009. Further, defendant alleged that it was clear that plaintiff and his counsel knew that the alleged defamatory statements were made before the release was signed, based upon an email plaintiff's counsel sent to defendant's counsel on November 10, 2009. Defendant attached the email to the motion to dismiss. It states, in part:

"There is one final matter that Marc had asked to address with you. Apparently, several people in the community have been told by Sherry Gimbel that Marc either 'assisted with' or 'pushed Stuart to suicide'. These are not only false, but slanderous statements about my client. Instead of filing suit, he simply would like Sherry to sign a statement stating she will not make any such further remarks, and apologizes for any statements she has made to date." Defendant also alleged that plaintiff signed the release on November 18, 2009. Defendant filed the release under seal. Defendant also argued that plaintiff's claim was barred pursuant to section 13-201 of the Code (735 ILCS 5/13-201 (West 2010)) because it was filed more than one year after plaintiff knew that the alleged defamatory statements had been made. In addition, defendant argued that the complaint failed to state a cause of action (735 ILCS 5/2-615 (West 2010)) because the alleged statements do not constitute defamation per se or defamation per quod.

¶ 7 On March 15, 2011, the trial court granted defendant's motion to dismiss. The trial court's order states:

"[The] Court finds that Plaintiff had knowledge of [the] alleged defamatory statements prior to November 18, 2009[,] and therefore any cause of action for defamatory statements made prior to November 18, 2009[,] are barred pursuant to the November 18, 2009[,] Release." The trial court granted plaintiff 28 days to file a "first amended complaint."

¶ 8 On April 18, 2011, plaintiff filed a first amended complaint realleging paragraphs 1 through 11 from his original complaint. Further, paragraph 15 of plaintiff's first amended complaint alleged the same four defamatory statements alleged in the original complaint, but it alleged that the statements "were made to Lenny Goldstein during the week of December 10, 2009[,] through December 17, 2009." Paragraph 15 also alleged four additional defamatory statements defendant made to Lenny Goldstein during the same period of time, namely:

"e. 'Marc had three-million reasons why he helped Stuart kill himself.'

f. 'Marc should never have helped Stuart kill himself.'

g. 'Marc should have done more to prevent Stuart's death instead of ...


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