# Clarage v. Kuzma

> Appellate Court of Illinois · July 30, 2003 · 342 Ill. App. 3d 573

URL: https://www.frixlaw.com/law-library/cases/9859838

## Case

- **Full name:** JAMES CLARAGE, Plaintiff-Appellant, v. SHERYL H. KUZMA Et Al., Defendants-Appellees (Donald Wagner, Defendant)
- **Court:** Appellate Court of Illinois
- **Decided:** July 30, 2003
- **Citations:** 342 Ill. App. 3d 573; 276 Ill. Dec. 995; 795 N.E.2d 348
- **Precedential status:** Published
- **Opinion:** Dissent by Lytton
- **Judges:** McDade, Lytton, Slater
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9859838

## How later opinions describe it (automated extraction)

- finding accusations of lying to govern- No. 07-1944 15 ment officials were defamatory per se, where the plaintiff was not accused of lying to family and friends, but rather to government officials with whom it was his job to com- municate honestly
- finding accusations of lying to government officials were defamatory per se, where the plaintiff was not accused of lying to family and friends, but rather to government officials with whom it was his job to communicate honestly
- stating largely the same elements for tortious interference with a business expectancy

## Opinion text

JUSTICE LYTTON, dissenting:
I dissent because I think a qualified privilege applies to all of the counts brought by the plaintiff in this complaint.
1. Defamation
The majority believes that a qualified privilege applies to the facts alleged in this case, but rejects the application of the privilege because of plaintiffs general allegations of the defendants’ reckless disregard of plaintiffs interests.
However, a plaintiff seeking to avoid a qualified privilege must also allege that a defendant’s desire to harm him was independent of and unrelated to an attorney’s obligation to proteet her client (see Schott v. Glover, 109 Ill. App. 3d 230 (1982)) or a township official’s duty to his local government. See Kuwick v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (1993). Plaintiff does not make these allegations, and the majority cannot tell us where these allegations might be.
The essence of Starwood’s September 20 letter states that plaintiff had no discussions with Starwood, that plaintiff had not received an agreement from Starwood for a licensing agreement from a Sheraton Hotel at the resort, and that plaintiff had not submitted an application for a Starwood franchise. The majority has not stated why Kuzma or Scully knew the letter was false, particularly since the letter was substantially true. The majority simply does not and cannot explain why the defendants’ conduct was unrelated to the interests that give rise to the privilege in the first place. See Guice v. Sentinel Technologies, Inc., 294 Ill. App. 3d 97 (1997). Since there is no indication in the pleadings that any of the defendants’ acts were independent of, and unrelated to, the protection of the interests of the township, the trial court should be affirmed.
2. Tortious Interference Claims
A qualified privilege also applies to the tortious interference claims, and the same pleading requirements and defenses apply as discussed above.
The allegations made on these issues include defendants’ contact with Starwood and UIRVDA in their capacities as township attorney and trustee. While somewhat intrusive, their behavior in trying to ascertain the relationship between plaintiff and Starwood was of a fact-finding nature. Fact-finding is surely a function of a township attorney and township official facing the kind of project that plaintiff proposed. To overcome the qualified privilege, a plaintiff must have alleged facts sufficient to prove that defendants acted with actual malice, that is, a desire to harm plaintiff which was independent of and unrelated to their function in protecting the township interests. Citylink Group, Ltd. v. Hyatt Corp., 313 Ill. App. 3d 829 (2000); Schott v. Glover, 109 Ill. App. 3d 230 (1982). The majority never discloses what these allegations are. As stated above, plaintiff had not met its burden of pleading that the defendant’s conduct was unjustified or malicious. See Fellhauer v. City of Geneva, 142 Ill. 2d 495 (1991).
I would affirm the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9859838. Public record. Not legal advice.