Pompa v. Swanson

ILLINOIS OFFICIAL REPORTS

Appellate Court

Pompa v. Swanson, 2013 IL App (2d) 120911

Appellate Court JOSEPH POMPA, Plaintiff-Appellant, v. PAUL SWANSON, Defendant-

Caption Appellee.

District & No. Second District

Docket No. 2-12-0911

Filed May 6, 2013

Held Plaintiff’s complaint alleging defamation per se and intentional

(Note: This syllabus interference with the expectation of a retirement gift was properly

constitutes no part of dismissed for failure to state a cause of action, since there was no

the opinion of the court indication the statements defendant made about the work plaintiff

but has been prepared performed for the trade union to which they belonged were intended to

by the Reporter of defame plaintiff, the statements were an expression of defendant’s

Decisions for the nonactionable opinion during a union meeting on whether to give plaintiff

convenience of the a gift, and they were subject to a qualified privilege, and Illinois courts

reader.)

have not extended the tort of intentional interference with prospective

economic advantage to include interference with an expected retirement

gift.

Decision Under Appeal from the Circuit Court of Kane County, No. 11-L-548; the Hon.

Review Judith M. Brawka, Judge, presiding.

Judgment Affirmed.

Counsel on Stanley H. Jakala and Barbara J. Bell, both of Berwyn, for appellant.

Appeal

Gary K. Mickey, Bernard K. Weiler, and Jessica L. Drahos, all of

Mickey, Wilson, Weiler, Renzi & Anderson, P.C., of Aurora, for

appellee.

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Joseph Pompa, appeals from an order of the circuit court of Kane County

dismissing with prejudice his two-count, amended complaint filed against defendant, Paul

Swanson. Plaintiff contends that he stated a claim for defamation per se in count I and a

claim for intentional interference with the expectation of a retirement gift in count II.

Because plaintiff failed to state a claim for either defamation per se or intentional

interference with the expectation of a retirement gift, we affirm.

¶2 I. BACKGROUND

¶3 The following facts are derived from the allegations in count I of plaintiff’s amended

complaint. Plaintiff was employed by Carpenters Union 839 from 1979 to 2010. During his

tenure, plaintiff was elected five times to the office of financial secretary and served a total

of 20 years in that position. He also worked several years as a business manager for the

union. While employed for the union, plaintiff had a “good reputation,” was a “highly valued

employee and union officer,” and performed all of his job responsibilities in a “satisfactory

manner.”

¶4 Defendant also worked for the union and served one term as president. Defendant

expressed his dislike of plaintiff to both plaintiff and other union employees. Defendant also

was jealous of plaintiff’s influence in union matters, particularly elections.

¶5 In 2009, defendant, in an effort to undermine certain union election candidates supported

by plaintiff, circulated a flyer among union members. The flyer stated that plaintiff was paid

a salary based on 80 hours per month when the average financial secretary’s salary was based

on 25 to 30 hours per month. In reality, plaintiff’s salary was based on 80 hours per month

because that was the amount of time he actually spent on that job per month. In the 2009

election, only two of the six candidates supported by defendant were elected. This angered

defendant, who continued to refuse to speak to plaintiff.

¶6 On or about September 30, 2010, plaintiff decided to retire. The union, in appreciation

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for work performed by its full-time employees, would, on a “regular basis,” provide those

employees with substantial retirement “gifts.” For example, six prior employees received

retirement gifts ranging from a weekend at Lake Geneva, with all expenses paid, to $30,000,

consisting of money from the union and the proceeds from a retirement party.

¶7 On or about October 8, 2010, the executive board met for the purpose of discussing

plaintiff’s “retirement gift.” Defendant attended the meeting in his capacity as a business

representative. Defendant had no duty to speak at the meeting about plaintiff’s job

performance and did so only by permission.

¶8 During the meeting, defendant stated that plaintiff “was not deserving of any [retirement]

gift.” Although plaintiff was not present, several former coworkers later told him that

defendant made false statements about him in an attempt to deprive him of a “customary

retirement gift.” Upon information and belief, defendant stated that plaintiff had “performed

his job unsatisfactorily” and thus did not deserve a retirement gift. Further, upon information

and belief, defendant falsely stated that plaintiff was overpaid because his salary was based

on 80 hours per month while the average financial secretary’s salary was based on 25 to 30

hours per month. The executive board voted not to give plaintiff a retirement gift.

¶9 The amended complaint further alleged that defendant’s statement that plaintiff

performed his job unsatisfactorily was false. It also alleged that the statement that plaintiff’s

salary was based on 80 hours per month while the average salary was based on 25 to 30

hours was false. Such statements were allegedly false because: (1) plaintiff was

overwhelmingly elected financial secretary five times; (2) plaintiff actually worked 80 hours

per month; and (3) plaintiff was well respected for his diligence and commitment to the

union, and even defendant had praised plaintiff in the past.

¶ 10 The following statements by defendant to the executive board were alleged to be

defamatory per se: (1) that plaintiff did not deserve a retirement gift given his poor job

performance, because it imputed “incompetency to [plaintiff] and/or lack of integrity”; and

(2) that plaintiff was overpaid, because it imputed that plaintiff’s actions as financial

secretary were “imprudent and/or he lacked integrity.” It was further alleged that defendant

made these statements knowing them to be false or with reckless disregard as to their truth,

because defendant knew that plaintiff enjoyed an “excellent professional reputation.”

Defendant’s statements were willful and wanton and calculated to cause plaintiff to lose a

substantial retirement gift. Defendant also made these statements with actual malice.

¶ 11 Count II alleged that plaintiff had a “reasonable expectation of receiving a retirement

gift,” defendant knew of that reasonable expectation, defendant purposely interfered with that

reasonable expectation by defaming plaintiff at the board meeting, and such defamation

resulted in plaintiff’s not receiving a retirement gift despite his 31 years of service with the

union.

¶ 12 Defendant filed a motion pursuant to section 2-615 of the Code of Civil Procedure (735

ILCS 5/2-615 (West 2010)), seeking dismissal of both counts of plaintiff’s amended

complaint. After written briefing and oral argument, the trial court granted defendant’s

motion with prejudice as to both counts. Plaintiff, in turn, filed this timely appeal.

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¶ 13 II. ANALYSIS

¶ 14 Plaintiff raises the following issues in this appeal: (1) whether he sufficiently stated a

claim for defamation per se by alleging that defendant falsely told the executive board that

he was overpaid and did a poor job as a union employee; and (2) whether he can bring a

cause of action for intentional interference with an expected retirement gift, based on

defendant’s defamatory statements which caused the board to deny him the gift. We consider

each issue in turn.

¶ 15 A section 2-615 motion to dismiss tests the legal sufficiency of a complaint. Green v.

Rogers, 234 Ill. 2d 478, 491 (2009). “On review, the issue is whether the allegations of the

complaint, when construed in the light most favorable to the plaintiff, are sufficient to

establish a cause of action upon which relief may be granted.” (Internal quotation marks

omitted.) Id. All facts apparent from the face of the pleadings and any attached exhibits must

be considered. Id. “A cause of action should not be dismissed under section 2-615 unless it

is clearly apparent that no set of facts can be proved that would entitle the plaintiff to

recovery.” Id. Review of a trial court’s dismissal under section 2-615 is de novo. Id.

¶ 16 To state a defamation claim, a plaintiff must present facts showing that the defendant

made a false statement about the plaintiff, that the defendant made an unprivileged

publication of the statement to a third party, and that the publicized statement damaged the

plaintiff. Id. A defamatory statement is one that harms a person’s reputation to the extent it

lowers the person in the eyes of the community or deters the community from associating

with him. Id.

¶ 17 “A statement is defamatory per se if its harm is obvious and apparent on its face.” Id.

Relevant to this case, there are two categories of statements that are considered defamatory

per se: (1) words that impute that a person is unable to perform, or lacks integrity in

performing, his employment duties; and (2) words that impute a person’s lack of ability, or

otherwise prejudice a person, in his profession. See id. at 491-92.

¶ 18 Although a complaint for defamation per se need not set forth the allegedly defamatory

words in haec verba, the substance of the statement must be pled with sufficient precision

and particularity so as to permit initial judicial review of its defamatory content and to allow

the defendant to properly formulate an answer and identify any potential defenses. Id. at 492.

Where the alleged statements are pled strictly on “information and belief,” and none of the

allegedly defamatory words are quoted, the question becomes whether the complaint

nevertheless sets forth the substance of the statements with sufficient precision and

particularity so as to permit both initial judicial review and the formulation of both an answer

and any affirmative defenses. Id. This heightened pleading standard reflects the important

policy consideration that a properly pled defamation per se claim relieves the plaintiff from

proving actual damages. Id. at 495. The preliminary construction of an allegedly defamatory

statement is a question of law, and the appellate court’s review is de novo. Id. at 492.

¶ 19 Here, initially, we conclude that, while plaintiff used the phrase “[u]pon information and

belief” in referring to the allegedly defamatory per se statements, unlike in Green plaintiff

specified the precise nature of the two operative statements. The two alleged statements, that

plaintiff was overpaid and performed his job unsatisfactorily, were sufficiently precise to

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allow initial review and to permit defendant to respond.

¶ 20 That said, a statement that is allegedly defamatory per se is not actionable if it is

reasonably capable of an innocent construction. Solaia Technology, LLC v. Specialty

Publishing Co., 221 Ill. 2d 558, 580 (2006). The innocent-construction rule requires a court

to consider the statement in context and to give the words of the statement, and any

implications arising therefrom, their natural and obvious meaning. Id. If, as so construed, the

statement may reasonably be innocently interpreted, it is not actionable per se. Id. A

statement reasonably capable of a nondefamatory interpretation, given its verbal or literary

context, should be so interpreted. Id. That is, the court must interpret the words of the

statement as they appear to have been used and according to the idea they were intended to

convey to a reasonable listener. Id. However, when the defendant clearly intended, and

unmistakably conveyed, a defamatory meaning, a court should not strain to see an

inoffensive gloss on the statement. Id.

¶ 21 In this case, we consider whether the two allegedly defamatory per se statements are

capable of an innocent construction. When viewed in the context of the union board meeting

specially set to consider whether plaintiff should receive a retirement gift, defendant’s

statements were clearly intended to convey and support his position that plaintiff did not

deserve such a gift. Of course, defendant was entitled to express his views on that topic and

was given permission to do so during the meeting. Such statements, as alleged, were made

for the limited purpose of providing information to the board concerning the narrow issue

of plaintiff’s potential gift. Additionally, the statements were made in a confined setting with

a limited audience that had gathered for a specific purpose. There is no indication from the

allegations that defendant clearly intended and unmistakably conveyed the statements to

defame plaintiff as opposed to merely attempting to influence the board’s decision regarding

plaintiff’s gift. Because the allegedly defamatory per se statements are capable of an innocent

construction, they are not actionable, and the trial court properly dismissed count I on that

basis.

¶ 22 Alternatively, even if an allegedly defamatory per se statement is not subject to an

innocent construction, it still might enjoy constitutional protection as an expression of

opinion. Id. at 581. However, there is no artificial distinction between opinion and fact. Id.

“[A] false assertion of fact can be defamatory even when couched within apparent opinion

or rhetorical hyperbole.” Id. “[I]t is well established that statements made in the form of

insinuation, allusion, irony, or question, may be considered as defamatory as positive and

direct assertions of fact.” (Internal quotation marks omitted.) Id. Nor can a defendant “escape

liability for defamatory factual assertions simply by claiming that the statements were a form

of ridicule, humor, or sarcasm.” Id. Several considerations inform the court in assessing

whether a particular statement is actionable fact versus protected opinion: (1) “whether the

statement has a precise and readily understood meaning”; (2) “whether the statement is

verifiable”; and (3) “whether the statement’s literary or social context signals that it has

factual content.” Id.

¶ 23 Here, the alleged statement that plaintiff “performed his job unsatisfactorily” is a classic

form of opinion when assessed via the above-stated factors. First, it does not have a precise

and readily understood meaning. The characterization of someone performing his job

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unsatisfactorily, absent reference to specific factual criteria for measuring that performance,

is merely a generalized, if not vague, description of job performance. Second, the statement

is not verifiable in this context. There are no allegations regarding any particular parameters

of job performance that would allow a reasonable person to ascertain whether in fact plaintiff

performed his job satisfactorily or otherwise. For instance, there are no allegations that

defendant based his statement on any actual performance reviews or that actual performance

reviews would show that defendant’s characterization was false. Third, the context in which

the statement was made does not indicate that it was factual. Rather, based on the allegations,

it is apparent that the board considered defendant’s statements for the sole purpose of

deciding whether to provide plaintiff with a retirement gift. There is no indication that the

board was considering whether in fact plaintiff had performed his job satisfactorily over the

years. Nor is it reasonable to infer that anyone listening would have perceived the statement

as factual in terms of how plaintiff actually had performed his job over the course of his 31-

year tenure. For all these reasons, we agree with the trial court that the statement that plaintiff

performed his job unsatisfactorily was nonactionable opinion.

¶ 24 The remaining statement, that plaintiff was overpaid, is also opinion as opposed to fact.

As the trial court explained, this is a perfect example of opinion because whether someone

is overpaid is highly subjective. Therefore, the statement does not have a precise and readily

understood meaning under most circumstances, including those alleged here. Further, such

a statement is not verifiable, as regardless of what plaintiff was actually paid in relation to

the amount and quality of his work, reasonable people could certainly disagree as to whether

the pay was excessive. Finally, in the context of a decision as to whether to provide plaintiff

with a retirement gift, which was obviously a discretionary one as reflected by the meeting

and vote, no reasonable person would conclude that the statement was based on any

underlying factual content. While the statement referred to the number of hours worked per

month, it still stated an opinion based on that information. Plaintiff does not assert that the

hours he reportedly worked per month were false, but rather asserts that it was false to say

he was overpaid based on those hours. The operative word for purposes of plaintiff’s

defamation claim is “overpaid.” The use of that word is a classic form of opinion in the

context alleged. Therefore, we agree with the trial court that this statement was nonactionable

opinion.

¶ 25 Defendant alternatively contends that his statements are qualifiedly privileged as they

were made during a union meeting about official business. Plaintiff does not contend that a

qualified privilege does not exist in this case. Rather, he responds that he has overcome the

privilege. In support, he points to his allegations that defendant made the statements

intending to harm him, that defendant knew they were false, and that defendant made them

with a reckless disregard for their truth or falsity.

¶ 26 “A defamatory statement is not actionable if it is privileged.” Naleway v. Agnich, 386 Ill.

App. 3d 635, 639 (2008) (citing Solaia, 221 Ill. 2d at 585). There are two classes of

privileged statements: those subject to an absolute privilege and those that are conditionally

or qualifiedly privileged. Id. A qualified privilege can be exceeded, and thereby defeated, in

circumstances where the defendant makes false statements with an intent to injure or with

reckless disregard for their truth. Id.

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¶ 27 “A qualified privilege protects communications that would normally be defamatory and

actionable, in order to effect the policy of protecting honest communication of

misinformation in certain favored circumstances and thus facilitate the availability of correct

information.” Id. “To determine if a qualified privilege exists, a court looks only to the

occasion itself for the communication and determines as a matter of law and general policy

whether the occasion created some recognized duty or interest to make the communication

so as to make it privileged.” (Internal quotation marks omitted.) Id. at 639-40. In deciding

whether a qualified privilege exists, a court is to consider only the general type of

communication, not the particular communication involved in the case under consideration.

Id. at 640. The issue of whether a qualified privilege exists is one of law, but whether the

defendant abused the privilege in making the allegedly defamatory statement is a question

of fact. Id.

¶ 28 The threshold question here is whether a qualified privilege exists for statements made

during a union meeting and pertaining to official union business. The parties agree that those

statements are subject to a qualified privilege. Notwithstanding this agreement, we will

address the issue.

¶ 29 Our research does not reveal any Illinois case holding that there is a qualified privilege

for allegedly defamatory statements made during a union meeting and concerning official

union business. The Court of Appeals for the Seventh Circuit, however, in applying Illinois

law related to qualified privilege in similar contexts, has held that such a privilege exists for

defamatory statements made in the context of a union meeting. Sullivan v. Conway, 157 F.3d

1092, 1098 (7th Cir. 1998). In so ruling, the Seventh Circuit explained that it would be a

disservice to the administration of a union if the responsible officers of a union were

inhibited by fear of defamation suits from making, within the confines of nonpublic meetings

devoted to the affairs of the union, candid criticisms of persons. Id. While that case is not

binding on this court, we consider its reasoning persuasive and agree that such a qualified

privilege should apply in the context alleged in this case.

¶ 30 Having said that, we must next decide whether plaintiff has overcome the privilege by

alleging sufficient facts to show that defendant made the statements with the intent to injure

plaintiff or with reckless disregard for the truth of the statements. In that regard, plaintiff

points to the allegations that defendant disliked him, was jealous of him, was angered by

certain election results, and has refused to speak to plaintiff for several years, as supporting

his additional allegations that defendant made the statements intending to injure him or with

reckless disregard for their truth.

¶ 31 These allegations, even when viewed in the light most favorable to plaintiff, are

insufficient to overcome the qualified privilege at issue here. While it is evident from the

amended complaint that defendant was not fond of plaintiff and desired that plaintiff not

receive a retirement gift, such allegations do not imply that defendant spoke with the intent

to injure plaintiff in the sense of his reputation. Nor is there any indication that defendant

spoke with reckless disregard for the truth. Even if such statements were considered factual,

they were subject to differing views and were made as part of a discussion regarding whether

plaintiff should receive a retirement gift. A plaintiff is required to supply more significant

allegations of malice in this context; otherwise, speakers who desire to make “candid

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criticisms” during nonpublic, union meetings might be inhibited from doing so by fear of a

defamation suit. See id. Therefore, we hold that plaintiff’s allegations do not overcome the

qualified privilege accorded defendant’s statements during an official union meeting.

¶ 32 Having concluded that count I was properly dismissed for the foregoing reasons, there

is no need to address, as an alternative basis for dismissing the defamation per se claim, the

issue of whether plaintiff was a limited public figure. However, we note that it appears

unlikely that he was, as it is not alleged that he was a prominent union executive involved

in a public controversy. See Dubinsky v. United Airlines Master Executive Council, 303 Ill.

App. 3d 317, 335-36 (1999).

¶ 33 In count II of his amended complaint, plaintiff alleged that he had a reasonable

expectation of receiving a retirement gift and that defendant intentionally interfered with that

expectation when he made the false statements to the executive board. He further alleged that

this expectation was based on the union policy of having provided retirement gifts to certain

retiring employees in appreciation of their work. In contending that he has stated a cause of

action for the intentional interference with this prospective retirement benefit, plaintiff relies

on the case of Nemeth v. Banhalmi, 99 Ill. App. 3d 493 (1981). In that regard, he asserts that

Nemeth recognized a cause of action for the intentional interference with an expectancy

under a will and that that tort is “close in nature” to the claim he brings here.

¶ 34 While Illinois courts recognize the more general tort of intentional interference with

prospective economic advantage (see Village of Itasca v. Village of Lisle, 352 Ill. App. 3d

847, 858 (2004)), no Illinois court has extended the tort to include interference with an

expected retirement gift. Moreover, the facts as alleged here do not satisfy one of the

necessary elements of the tort of intentional interference with prospective economic

advantage.

¶ 35 To properly plead the tort, a plaintiff must allege, among other things, a reasonable

expectancy of receiving the economic advantage. Id. Plaintiff here has alleged that he

expected to receive a gift and that the gift depended on a vote of the executive board of the

union. As such, the expectancy was conditional at best and certainly not reasonable under the

alleged circumstances. Further, while we need not decide whether a retirement gift could ever

satisfy the tort, it is highly doubtful, as by its very nature any “gift” is contingent on the

whims of the giver. It is clear here that, as alleged, the gift was nothing more than a hoped-

for benefit and not one that plaintiff could count on receiving had it not been for defendant’s

statements.

¶ 36 Further, the Nemeth case is consistent with this conclusion as opposed to supporting

plaintiff’s contention. In Nemeth, the court extended the tort of intentional interference with

prospective economic advantage to an expectation of a bequest under a will. Nemeth, 99 Ill.

App. 3d at 496-99. In doing so, however, the court emphasized that the expectancy had been

“perfected” as opposed to being a “mere possibility” under the will. Id. at 499; see also In

re Estate of Hoover, 160 Ill. App. 3d 964, 966 (1987). In the present case, unlike in Nemeth

and Hoover, plaintiff alleged a mere possibility of receiving a retirement gift.

¶ 37 The fact that certain other retired employees received various gifts upon retirement does

not alter this conclusion. Plaintiff does not allege that all prior retirees received retirement

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gifts. While he argues that those prior situations reflected a formal policy of providing

retirement gifts for all retirees such as himself, the allegations regarding prior retirees simply

paint a picture of the ad hoc nature of such gifts. Further, even if such a policy existed,

plaintiff has not alleged under what circumstances such gifts were given or what factors, if

any, were considered by the executive board in giving them. If any policy is reflected by

plaintiff’s allegations, it is one of the executive board merely considering whether to provide

a retirement gift. That is precisely what the executive board did in this case.

¶ 38 Because Illinois law has not extended the tort of intentional interference with prospective

economic advantage to retirement gifts, and because this case does not present allegations

upon which this court would extend the tort, the dismissal of count II was proper.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we affirm the dismissal with prejudice of plaintiff’s amended

complaint.

¶ 41 Affirmed.

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