Ladao v. Faits

Digitally signed by

Reporter of

Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2019.06.13

07:58:22 -05'00'

Ladao v. Faits, 2019 IL App (1st) 180610

Appellate Court RONALD LADAO, Plaintiff-Appellee, v. LAUREN FAITS,

Caption Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-18-0610

Filed February 19, 2019

Modified upon

denial of rehearing April 23, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-004625; the

Review Hon. James E. Snyder, Judge, presiding.

Judgment Affirmed.

Counsel on Mudd Law Offices, of Chicago (Charles Lee Mudd Jr., Michelle A.

Appeal Kuipers, and Nick Vogel, of counsel), for appellant.

Richard E. Steck and Associates, of Chicago (Richard E. Steck, of

counsel), for appellee.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with

opinion.

Justices Lavin and Hyman concurred in the judgment and opinion.

OPINION

¶1 Defendant, Lauren Faits, appeals from a judgment entered in favor of plaintiff, Ronald

Ladao, following a jury trial on plaintiff’s claims of libel and false light. On appeal, defendant

argues that the trial court erred in (1) failing to instruct the jury on her affirmative defenses of

protected opinion and substantial truth, (2) giving an incorrect instruction on abuse of qualified

privilege, (3) denying her motion for judgment notwithstanding the verdict on the issue of

whether plaintiff presented sufficient evidence that defendant abused her qualified privilege,

(4) failing to rule during summary judgment on whether defendant’s statements constituted

protected opinions, and (5) allowing plaintiff to recover damages on both his libel claim and

his false light claim. For the reasons that follow, we affirm.

¶2 BACKGROUND

¶3 In his first amended complaint, plaintiff alleged that in 2016 defendant published several

false and defamatory statements about him in a post on her blog, “Geek Girl Chicago.” The

blog post at issue, which was attached to plaintiff’s first amended complaint, stated that in

2003, defendant, then a minor, attended an anime cosplay1 convention in Chicago. The post

then went on to describe the following incident:

“Thirteen years ago, I was under 18—a minor. I was attending an anime convention

in the Chicago area. A group of cosplayers, including myself, headed up to a hotel

room to change out of our costumes. We were followed. While we were undressing, a

photographer began slamming into our room’s locked door in an attempt to break in.

The room had one of those sliding locks, which broke open under the force. The

photographer rushed in with a camera, attempting to get nude photos and/or video of

underage cosplayers.

This photographer’s name was Ron ‘Soulcrash’ Ladao.

From the start, I was absolutely clear about how wrong this was. Amidst girls’

screaming of ‘No!’ and ‘What is wrong with you?’ and ‘Go away!’ I made it clear that

this act was unacceptable. I threatened to call the police if he did not immediately leave

us alone. He left, but not without grinning and calling me a rude name because I had

touched his camera to point it away from the girls.” (Emphasis in original.)

In the post, defendant described plaintiff’s actions as “sexual assault.”

¶4 The allegedly defamatory statements at issue on this appeal were that plaintiff “rushed

in[to a hotel room] with a camera, attempting to get nude photos and/or video of underage

[girls]” and that “[t]his was a sexual assault.” 2 Plaintiff alleged that these statements

1

“Anime” is defined as “a style of animation originating in Japan that is characterized by stark

colorful graphics depicting vibrant characters in action-filled plots often with fantastic or futuristic

themes.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/anime

(last visited Feb. 13, 2019) [https://perma.cc/PDW8-UEUX]. “Cosplay” is “the activity or practice of

dressing up as a character from a work of fiction (such as a comic book, video game, or television

show).” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/cosplay

(last visited Feb. 13, 2019) [https://perma.cc/4R5P-5EJS].

2

Plaintiff’s first amended complaint also included other allegedly defamatory statements that

appear to have been included simply to provide context and preserve any claim of error related to the

-2-

constituted libel per se because they accused him of conduct that was damaging to his

reputation as a professional photographer and videographer and because they accused him of

criminal conduct. Plaintiff also alleged that these statements placed him in a false light. As a

result of these statements, plaintiff alleged, he suffered harm to his reputation and career,

humiliation, and emotional distress.

¶5 Defendant moved for summary judgment on both counts of the first amended complaint. In

her motion, defendant argued that her statements were protected by a qualified privilege and

she did not abuse that privilege. She also argued that her statements were protected opinion,

substantially true, or should be considered rhetorical hyperbole. After briefing on the motion,

the trial court issued an order denying defendant’s motions as to both counts of the first

amended complaint. More specifically, the trial court held that although defendant’s

statements were subject to a qualified privilege, there existed a genuine issue of material fact

regarding whether defendant abused that privilege. The trial court also found that defendant

failed to carry her burden of proving that, as a matter of law, her statements were protected

opinions, hyperbole, or substantially true.

¶6 Thereafter, the matter proceeded to a jury trial. At trial, plaintiff testified that he attended

the 2003 convention both as a participant and as a staffer taking videos of some of the events.

That morning, defendant, who plaintiff knew through Internet forums, had stored her

belongings in plaintiff’s hotel room. After the convention was over, plaintiff, defendant, and a

group of others went back to plaintiff’s hotel room so that defendant and some others could

change out of their costumes. Two males remained in the room with defendant and others

while defendant and the others changed, but plaintiff was outside of the hotel room. Plaintiff

testified that he thought it would be a good prank to open the door to the hotel room while they

were in there. In the process of doing so, he broke the lock of the hotel room. The guys that

were in the room with defendant laughed. Plaintiff then shut the door and left.

¶7 Plaintiff denied that he ever tried to get any nude photos or videos of the people inside the

hotel room. He also denied slamming into the door of the hotel room and testified that, instead,

he used his key to open the door and only pushed the door enough to surprise the room’s

occupants. He further denied hearing anyone threatening to call the police or calling him a

name.

¶8 Plaintiff also introduced a video of the incident at issue. Although this video was played for

the jury as evidence, it was not included in the record on appeal.

¶9 Plaintiff went on to testify that in the years following the 2003 incident, he and defendant

had positive interactions, including seeing each other at conventions and being friends on

Facebook. He also testified that defendant had used some of his photography work on her blog.

During those interactions, there had been no mention of the 2003 incident.

¶ 10 Since defendant’s blog post regarding the 2003 incident, plaintiff had not received much

independent photography work and he had been excluded from some events.

¶ 11 During her testimony, defendant testified that she did not recall any arrangement with

plaintiff to store her belongings in his hotel room during the convention, although he did agree

to allow her group to use his room to change out of their costumes. Defendant testified that

trial court’s dismissal of those statements on plaintiff’s initial complaint. As the parties agree that the

statements currently at issue are limited to those quoted above, we need not consider the other

statements in the first amended complaint.

-3-

after plaintiff left the hotel room, the door burst back open so hard that the lock broke. At that

moment, defendant was partially undressed and holding clothes up to cover herself. She also

testified that because she knew that plaintiff had a camera, she was worried that someone in the

room would be hurt or raped.

¶ 12 When questioned about the video shown to the jury, defendant testified that although

plaintiff did not literally follow the group to the hotel room, he did join them on their way to the

room. She also acknowledged that plaintiff was not holding a camera when he entered the

room, but she believed that the video showed him slamming against the door and attempting to

rush into the room. Although he opened the main lock with his key, he broke the chain lock

when he entered the room. Defendant admitted that the video played for the jury did not

contain any screaming and that it did not depict her saying anything after plaintiff entered the

room. It also did not show plaintiff calling defendant a rude name. Nevertheless, defendant

testified that after seeing the video played for the jury, she still believed that what she wrote

was true.

¶ 13 Defendant further testified that she did not claim that the blog post was anything other than

her personal opinion and that, although her memory was not 100% accurate at the time she

wrote the post, she did not lie about any of the events that she remembered. She believed at the

time of writing, and still believed at the time of trial, that plaintiff was trying to get

photographs of nude underage individuals. She also still believed that plaintiff’s actions

constituted sexual assault because he entered the room knowing that people were undressing

and because he did not turn off the camera.

¶ 14 Defendant admitted that following the 2003 incident, she continued to interact with

plaintiff, but testified that she kept all interactions professional and only interacted with him to

the extent that she could not get the photographs she needed elsewhere and where any

face-to-face contact would be minimal.

¶ 15 She testified that she published the post with the purpose of specifically identifying

plaintiff; she could have written the post without identifying plaintiff. She denied, however,

that her purpose was to convince others not to hire plaintiff or to prevent him from

photographing events. Defendant acknowledged that she did not do any research or

investigation into the incident or the accuracy of her recollection before publishing her blog

post. She also acknowledged that she never took down the post or apologized to plaintiff for

any of its contents, although she did write a follow-up post following the release of the video of

the incident to clarify that her recollection was “shaky” on some of the details.

¶ 16 Following closing arguments, the matter was submitted to the jury. After deliberations, the

jury returned a verdict in favor of plaintiff on both counts. With respect to plaintiff’s claim for

libel, the jury awarded plaintiff $65,000 in compensatory damages and $20,000 in punitive

damages. On plaintiff’s claim for false light, the jury awarded plaintiff $5000 in compensatory

damages and $20,000 in punitive damages.

¶ 17 Defendant then filed a motion for judgment notwithstanding the verdict. In it, she argued

plaintiff had failed to prove that she had abused her qualified privilege, the trial court failed to

instruct the jury on her affirmative defenses of protected opinion and substantial truth, the trial

court misstated the law on the abuse of qualified privilege, the trial court failed to rule on

defendant’s motion for summary judgment regarding whether her statements were opinions or

statements of fact, and plaintiff should not be allowed to recover damages for both libel and

false light. Following briefing and a hearing on defendant’s motion, the trial court denied it,

-4-

and defendant filed this timely appeal.

¶ 18 ANALYSIS

¶ 19 On appeal, defendant argues that the trial court erred in (1) failing to instruct the jury on her

affirmative defenses of protected opinion and substantial truth, (2) giving an incorrect

instruction on abuse of qualified privilege, (3) denying her motion for judgment

notwithstanding the verdict on the issue of whether plaintiff presented sufficient evidence that

defendant abused her qualified privilege, (4) failing to rule during summary judgment on

whether defendant’s statements constituted protected opinions, and (5) allowing plaintiff to

recover damages on both his libel claim and his false light claim. We address each of these

contentions in turn.

¶ 20 Jury Instructions

¶ 21 Defendant first argues that the trial court erred in failing to instruct the jury on her

affirmative defenses of protected opinion and substantial truth and in incorrectly instructing

the jury on abuse of qualified privilege. We conclude that defendant has waived review of

these contentions, because she failed to object to the jury instructions given by the trial court

and the trial court’s failure to give defendant’s requested objections.

¶ 22 Generally, the determination of which jury instructions are to be given falls within the trial

court’s discretion and will not be disturbed absent an abuse of that discretion. Baumrucker v.

Express Cab Dispatch, Inc., 2017 IL App (1st) 161278, ¶ 63. To preserve any complaint

regarding the trial court’s determinations on jury instructions or verdict forms, a party must

(1) make a specific objection during the jury instruction conference or when the instructions

are read to the jury and (2) submit a remedial instruction or verdict form to the trial court. Id.

Failure to do so results in waiver of the issue on appeal. Id.; Motsch v. Pine Roofing Co., 178

Ill. App. 3d 169, 176 (1988) (defendants’ contention that the trial court failed to instruct the

jury on an affirmative defense and on other requirements of the plaintiff’s claim was waived by

the defendants’ failure to object in the trial court and to submit a proper instruction to the trial

court). In addition,

“[t]o raise an issue on appeal concerning the giving of or the failure to give an

instruction, the appellant must provide the reviewing court with the content of the

instruction conference establishing that the appellant there raised the argument that he

advances on appeal or else he is barred from raising it in the reviewing court.” Brown v.

Decatur Memorial Hospital, 83 Ill. 2d 344, 350 (1980).

See Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 575 (1993).

¶ 23 Here, the record on appeal contains two discussions on jury instructions between the trial

court and the parties. Both of these discussions took place on the last day of trial, and it appears

from the transcript that they do not constitute the entirety of the jury instruction conference.

First, only a few instructions and a single verdict form were addressed during the discussions

contained in the record on appeal; the record does not include a discussion of all the

instructions that were proposed by the parties or ultimately given. Specifically, there are no

references in the discussions in the record to defendant’s request for instructions on protected

opinion and substantial truth or to defendant’s complaint regarding the wording of the

instruction on abuse of the qualified privilege. Second, the trial court stated on the record that it

-5-

had “made an effort over several days” to get the jury instructions done and was “trying to hold

a jury instruction conference, fourth try.” From these statements, it appears that the jury

instruction conference was conducted piecemeal over the course of several hearings held prior

to and during the trial. Despite this, as mentioned above, the only transcripts included in the

record on appeal are those of the two jury instruction discussions held on the last day of trial;

there are no transcripts of the other hearings where jury instructions were discussed.

¶ 24 Nowhere in the transcripts we have are there objections by defendant to the trial court’s

abuse of qualified privilege instruction or its failure to include an instruction on protected

opinions or substantial truth. If defendant objected on these issues during some other

discussion on the jury instructions, we have no way of knowing because not all of the

transcripts were included in the record on appeal. Because defendant has failed to provide us

with a sufficient record to demonstrate that she registered the necessary objections, we must

conclude that she has waived her contentions regarding the jury instruction given by the trial

court. See Brown, 83 Ill. 2d at 350.

¶ 25 In her petition for rehearing, which we deny, defendant contends that the two discussions

on jury instructions that are in the record do, in fact, represent the entirety of the discussions on

the jury instructions and verdict forms. We find it difficult to reconcile the trial court’s

statements that it had attempted on four occasions over the course of “several days” to hold a

jury instruction conference with the notion that the two transcribed discussions that were held

on the last day of trial constituted the entirety of jury instructions discussions. Nevertheless,

even if we accept defendant’s contention as true, it only strengthens our conclusion that

defendant waived her claims of error regarding the jury instructions by failing to object.

Whereas before there remained the possibility that defendant objected during a portion of the

jury instruction conference not included in the record, if the discussions on the record

constitute the entirety of the jury instruction conference, then there is no question that

defendant failed to object and, therefore, waived any claim of error with respect to the jury

instructions.

¶ 26 We also observe that, in the record, there were references by the trial court and the parties

to lists of disputed and undisputed instructions. The record on appeal, however, does not

contain these lists of proposed instructions. Although the common law record contains a

number of jury instructions, they are not clearly identified as being proposed by one party or

the other, nor are they marked as given or refused. What is clear from the record is that

defendant’s proposed instructions on protected opinion, substantial truth, and abuse of the

qualified privilege appear only as exhibits attached to her motion for judgment

notwithstanding the verdict. Given that there is no complete set of defendant’s proposed jury

instructions in the record and given that the portions of the jury instruction conference that

appear in the record do not indicate the substance of defendant’s proposed instruction, we

cannot say that defendant tendered the required remedial instructions for consideration. See

Baumrucker, 2017 IL App (1st) 161278, ¶ 63.

¶ 27 In her petition for rehearing, defendant attempts to avoid application of the waiver rule in

this respect by contending that the record demonstrates that she did have a complete set of jury

instructions and proposed verdict forms to submit to the trial court, but the trial court did not

request that they be filed or allow defendant to file them. The record does not support this

contention. Rather, the record indicates that the trial court requested and defendant submitted a

set of proposed instructions to the trial court. There is certainly nothing in the record to support

-6-

defendant’s contention that the trial court would not allow her to file her proposed instructions

and verdict forms. It appears, instead, that despite tendering a set to the trial court, defendant

never made any attempt to properly file them or ensure that they were placed in the file after

they were submitted to the trial court. To the extent that defendant did submit her proposed

instructions for filing and they were inadvertently omitted from the file or the record on appeal,

defendant failed to make any effort to supplement the record on appeal. Defendant was surely

aware of this procedure, as she sought to have the record supplemented with other documents.

Accordingly, we see no reasons to alter our conclusion that the record before us does not

demonstrate that defendant submitted the necessary remedial instructions.

¶ 28 Defendant argues that her counsel did, in fact, attempt to object but that the trial court was

impatient with defense counsel, thereby making any attempt at objecting futile. From our

review of the transcript in the record, it appears that the trial court’s frustration with defense

counsel was justified and resulted from defense counsel’s failure to articulate legal objections

to plaintiff’s proposed instructions, both during trial and on previous occasions. Specifically,

when the trial court asked defense counsel for objections on some of the plaintiff’s proposed

instructions or verdict forms, defense counsel responded simply that they had submitted

alternate instructions or forms but could not articulate a legal basis for choosing defendant’s

instructions or forms over plaintiff’s. In addition, as mentioned, the trial court indicated that it

had attempted to discuss the jury instructions with the parties on other occasions, but that those

attempts were not fruitful because of defense counsel’s failure to articulate their legal positions

and follow the trial court’s directives on preparing for the jury instruction conference. Based

on this, we disagree that it would have been futile for defendant to attempt to object but instead

conclude that defendant failed to take advantage of her opportunities to object.

¶ 29 Because defendant has failed to present a sufficient record demonstrating that she

adequately preserved any error with respect to the jury instructions, we must conclude that she

has waived these contentions. See Brown, 83 Ill. 2d at 350; see also Foutch v. O’Bryant, 99 Ill.

2d 389, 391-92 (1984) (“[A]n appellant has the burden to present a sufficiently complete

record of the proceedings at trial to support a claim of error, and in the absence of such a record

on appeal, it will be presumed that the order entered by the trial court was in conformity with

law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of

the record will be resolved against the appellant.”).

¶ 30 Abuse of Qualified Privilege

¶ 31 Defendant next argues that the trial court erred in denying her motion for judgment

notwithstanding the verdict, because plaintiff failed to present sufficient evidence at trial that

defendant abused her qualified privilege. As defendant has failed to present a sufficient record

on which we may review this claim, we must conclude that the trial court did not err in denying

defendant’s motion for judgment notwithstanding the verdict in this respect. Foutch, 99 Ill. 2d

at 391-92.

¶ 32 In ruling on a motion for judgment notwithstanding the verdict, the trial court must view

the evidence presented at trial in the light most favorable to the nonmovant and should grant

the motion only if that evidence “ ‘so overwhelmingly favors [a] movant that no contrary

verdict based on that evidence could ever stand.’ ” York v. Rush-Presbyterian-St. Luke’s

Medical Center, 222 Ill. 2d 147, 178 (2006) (quoting Pedrick v. Peoria & Eastern R.R. Co., 37

Ill. 2d 494, 510 (1967)). “In other words, a motion for judgment n.o.v. presents ‘a question of

-7-

law as to whether, when all of the evidence is considered, together with all reasonable

inferences from it in its aspect most favorable to the plaintiffs, there is a total failure or lack of

evidence to prove any necessary element of the [plaintiff’s] case.’ ” Id. (quoting Merlo v.

Public Service Co. of Northern Illinois, 381 Ill. 300, 311 (1942)). A trial court should not grant

judgment notwithstanding the verdict if “ ‘reasonable minds might differ as to inferences or

conclusions to be drawn from the facts presented.’ ” Id. (quoting Pasquale v. Speed Products

Engineering, 166 Ill. 2d 337, 351 (1995)). We review de novo the trial court’s decision

whether to grant or deny a motion for judgment notwithstanding the verdict. Lawlor v. North

American Corp. of Illinois, 2012 IL 112530, ¶ 37.

¶ 33 Where a qualified privilege exists, a statement that might otherwise be considered

defamatory is protected due to the circumstances under or occasion on which it was made.

Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 24 (1993). “This

privilege is based on the policy of protecting honest communications of misinformation in

certain favored circumstances in order to facilitate the availability of correct information.” Id.

Qualified privileges exist in situations where there is involved an interest held by the person

publishing the statement, the person to whom the matter is published, some other third person,

or the public. Id. at 29. Typically, in the absence of a qualified privilege, a defamation plaintiff

is only required to show that the defendant was negligent in making the allegedly defamatory

statement. Id. at 24. Where a defendant demonstrates the existence of a qualified privilege for

making the statement, however, there is a heightened standard of proof, and the plaintiff must

demonstrate that the defendant abused the privilege. To do so, the plaintiff must demonstrate

that the defendant had “a direct intention to injure another, or *** a reckless disregard of [the

defamed party’s] rights and of the consequences that may result to him.” (Internal quotation

marks omitted.) Id. at 30. Our supreme court has stated that whether a defendant abused the

privilege is a factual inquiry that examines whether the defendant acted in good faith in making

the statement, the statement was properly limited in its scope, and the statement was sent only

to the proper parties. Id. at 27. In addition, an abuse of the privilege may consist of “any

reckless act which shows a disregard for the defamed party’s rights, including the failure to

properly investigate the truth of the matter,[3] limit the scope of the material, or send the

material to only the proper parties.” Id. at 30.

¶ 34 The record reveals that there exists a video of the 2003 incident on which defendant’s

alleged defamatory statements are based. This video was played for the jury at trial, and the

parties were questioned extensively about it during their trial testimony. During closing

arguments, both parties referred to and relied on what was depicted in the video to make their

arguments as to whether plaintiff carried his burden of proof at trial. Despite all of this,

defendant failed to include the video in the record on appeal.4

¶ 35 Defendant’s failure to include the video in the record on appeal precludes us from

conducting any meaningful review of the trial court’s denial of defendant’s motion for

3

Defendant takes issue with the proposition that a failure to investigate the truth of the statement

may evidence recklessness, but we need not address defendant’s concerns in this respect because our

decision does not depend on its inclusion as an example of recklessness.

4

We note that plaintiff’s brief indicates that the video is available to access on YouTube. While this

may be true, our review is limited to what is in the record, and we have no way of ascertaining whether

the video available online is the same as the one shown to the jury.

-8-

judgment notwithstanding the verdict on the issue of whether plaintiff carried his burden of

demonstrating that defendant abused her privilege. Specifically, the standard for ruling on a

motion for judgment notwithstanding the verdict required the trial court to evaluate all of the

evidence presented at trial in the light most favorable to the plaintiff and to draw all reasonable

inferences from that evidence in favor of the plaintiff. York, 222 Ill. 2d at 178. To succeed on

her motion, defendant had to demonstrate that there was a total lack of evidence of abuse of the

privilege or that the evidence was so overwhelmingly in her favor that the jury’s verdict could

not stand. Id. Central to this analysis is a review of all of the trial evidence. Without the ability

to review the video—which appears to have been a key piece of evidence—we have no basis

on which to determine whether the trial court properly reviewed and weighed the evidence

regarding defendant’s abuse of the privilege. Because the video captured the incident at issue,

it would be integral in determining of whether defendant acted in good faith or with reckless

disregard of plaintiff’s rights in making her statements.

¶ 36 It is well established law in the state of Illinois that an appellant bears the burden of

presenting the reviewing court with a sufficiently complete record to support his or her claim

of error. Foutch, 99 Ill. 2d at 391. An appellant’s failure to provide a complete record to the

reviewing court results in the presumption that the trial court’s challenged ruling was proper

under the applicable law and facts. Id. at 392. If any doubts arise from the incompleteness of

the record, they will be resolved against the appellant. Id. Here, defendant’s failure to include

the video in the record on appeal creates doubts as to whether there was a lack of evidence on

defendant’s abuse of her qualified privilege. It also completely precludes any review of her

claim of error on the issue. Accordingly, we must conclude that the trial court’s denial of

defendant’s motion for judgment notwithstanding the verdict in this respect was properly

granted.

¶ 37 In her petition for rehearing, defendant admits that the video should have been included in

the record in appeal because she requested and submitted the entire record on appeal.

According to defendant, if the video was not included in the record, there was nothing she

could have done to resolve the issue. This is because plaintiff introduced the video at trial, and

any version of the video that defendant would submit to supplement the record would not be

the same video that was shown to the jury. Defendant’s contention is not well taken. First, if

the video was part of the trial court record, as defendant acknowledges it should have been but

was somehow inadvertently omitted from the record on appeal, defendant could have

contacted the clerk of the trial court to locate the video and seek leave from the trial court to

supplement the record on appeal. It certainly is not uncommon for documents or exhibits to be

inadvertently omitted from the record on appeal; yet the solution is simple, and defendant has

offered no explanation why she was unable to resolve the issue. Second, even if the video was

somehow omitted from the trial court’s file, defendant identifies no reason why she could not

have sought the assistance of the trial court and plaintiff’s counsel in ensuring that the correct

version of the video was made part of the record. In either situation, Illinois Supreme Court

Rule 329 (eff. July 1, 2017) provides a simple and straightforward solution:

“Material omissions or inaccuracies [in the record] may be corrected by stipulation of

the parties or by the trial court, either before or after the record is transmitted to the

reviewing court ***. Any controversy as to whether the record accurately discloses

what occurred in the trial court shall be submitted to and settled by that court and the

record made to conform to the truth.”

-9-

Because defendant failed to take advantage of this process and resolve the issue of the

insufficient record, we are not swayed from our original position that her failure to submit a

sufficient record precludes review of her claim.

¶ 38 Failure to Rule

¶ 39 Defendant next argues that the trial court erred in failing to rule, during summary

judgment, whether defendant’s statements constituted protected opinions as a matter of law.

There is no dispute between the parties that the issue of whether an alleged defamatory

statement is one of opinion or fact is a question of law. See Hadley v. Subscriber Doe, 2014 IL

App (2d) 130489, ¶ 36. According to defendant, the trial court failed to rule on this issue of law

raised in defendant’s motion for summary judgment and, instead, viewed it as a question of

fact to be determined by the jury. We disagree.

¶ 40 In her motion for summary judgment, defendant asked the court to rule, as a matter of law,

that her statements qualified as protected opinions. Accordingly, defendant bore the burden of

demonstrating that her statements were protected opinions. See Pecora v. County of Cook, 323

Ill. App. 3d 917, 933 (2001) (“The burden of proof and the initial burden of production in a

motion for summary judgment lie with the movant.”). In its order denying defendant’s motion

for summary judgment, the trial court specifically made the following findings:

“Here, Faits has not shown that, as a matter of law, she merely stated opinion,

hyperbole, or truth.”

“While not as cloaked in insinuation as the publication in Hadley, Faits’ publication

can be reasonably interpreted as a statement of fact; primarily that Ladao was

attempting to engage in illegal activity, specifically child pornography.”

“Based on the record before the Court, Faits has not met her burden of showing that

there is no question of fact regarding whether the statements made in her blog post

constitute opinion, hyperbole, or are substantially true.”

From these statements, it is abundantly clear to us that the trial court did, in fact, rule on the

question presented by defendant; it found that defendant failed to carry her burden of

establishing that her statements were entitled to protection as opinions. The fact that the trial

court did not make a strong, affirmative finding that defendant’s statements were ones of fact is

irrelevant because a statement is either one of fact or one of opinion, hyperbole, or rhetoric. By

holding that defendant failed to establish as a matter of law that her statements were opinion,

hyperbole, or rhetoric, it necessarily follows that defendant’s statements would be treated as

statements of fact.

¶ 41 Defendant’s belief that the trial court did not rule on this issue is based on the fact that the

trial court’s order did not include a discussion of the factors to be considered when determining

whether a statement is one of opinion or fact. See Hadley, 2014 IL App (2d) 130489, ¶ 36

(identifying factors). A trial court, however, is not obligated to provide a detailed discussion of

its analysis, and it is not reversible error for the trial court to fail to provide any such

discussion. Makowski v. City of Naperville, 249 Ill. App. 3d 110, 115 (1993). Moreover, we

find it absurd that the trial court’s failure to provide a play-by-play of its analysis could

somehow negate or defeat its clear statement that defendant failed to demonstrate that her

statements were protected opinions.

- 10 -

¶ 42 In sum, defendant asked the trial court to hold that her statements constituted protected

opinions. As the movant, defendant bore the burden of establishing that she was entitled to

such a holding. The trial court clearly found that defendant failed to carry that burden and did

not establish that her statements were protected opinions. Defendant makes no contention that

the trial court was incorrect in that finding. Thus, we see no basis on which to reverse.

¶ 43 Double Recovery

¶ 44 Finally, defendant contends that the jury’s award of damages on both libel and false light

constitutes impermissible double recovery because plaintiff’s claims for libel and false light

were based on the same statements. Defendant argues that although a plaintiff may

simultaneously pursue claims of defamation and false light, recovery may be had on only one

theory. Plaintiff responds that the cases cited by defendant are not binding and that because

claims of defamation and false light protect different rights, recovery on both is permitted. We

need not resolve this dispute, however, as we conclude that defendant has, once again, waived

any claim of error in this respect.

¶ 45 The special verdict form given to the jury permitted the jury to award damages to plaintiff

on both his libel and false light claims. Defendant claims that she submitted to the trial court a

proposed instruction stating that the plaintiff could not recover on both theories for the same

statements, that the trial court rejected her proposed instruction, and that the trial court failed to

instruct the jury on this point. The record before us, however, does not support this contention.

¶ 46 As discussed above, defendant failed to provide a complete record of the jury instruction

conferences, and we can find no defense objection to the given special verdict form on the

basis that it permits double recovery. We also cannot find anywhere in the transcripts before us

any discussion of defendant’s proposed instruction on double recovery or the trial court’s

rejection of that instruction. Defendant provides no assistance in our search, as the only record

citations provided in support of her contention direct us to the jury instructions that were

ultimately given to the jury and her proposed instruction attached as an exhibit to her motion

for judgment notwithstanding the verdict. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (requiring

the argument section of an appellant’s brief to include citations to the pages of the record relied

on). Because defendant has failed to demonstrate that she properly preserved this claimed

error, we must consider it waived. See Antol v. Chavez-Pereda, 284 Ill. App. 3d 561, 570

(1996) (defendant’s claim of impermissible double recovery waived where the defendant

failed to object to the verdict form allowing double recovery); see also Baumrucker, 2017 IL

App (1st) 161278, ¶ 63 (to preserve claims of error on jury instructions or verdict forms, a

party must make a specific objection during the jury instruction conference or when the

instructions are read to the jury and submit a remedial instruction or verdict form to the trial

court).

¶ 47 Again, defendant’s contention in her petition for rehearing that the jury instruction

discussions that appear in the record on appeal constitute the entirety of the jury instruction

conference reaffirms our position that she waived any contention regarding double recovery. If

the record on appeal contains all of the discussions that were had on the proposed verdict

forms, then there can be no question in our minds that defendant did not object to the given

verdict form on the basis that it permitted double recovery or propose her own jury instruction

on double recovery that the trial court rejected.

- 11 -

¶ 48 CONCLUSION

¶ 49 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 50 Affirmed.

- 12 -