Atkinson v. Affronti

• Court: Appellate Court of Illinois
• Decided: December 21, 2006
• Docket: 1-05-3992 Rel
• Status: Published

Opinion

SIXTH DIVISION December 22, 2006

No. 1-05-3992

KEVIN ATKINSON ) Appeal from the ) Circuit Court Plaintiff-Appellant ) of Cook County. ) v. ) No. 04 L 004492 ) RALPH AFFRONTI, EDWARD JUERGENSEN, ) FRANK O'LONE and FRANK A. MARCO, ) Honorable ) Robert Lopez-Cepero, Defendants-Appellees. ) Judge Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, Kevin Atkinson, sued defendants Ralph Affronti,

Edward Juergensen and Frank O'Lone for false arrest and Frank A.

Marco for defamation and making statements that place him in a

"false light before the public." The circuit court dismissed

defendant Marco from this case pursuant to section 2-619(a)(9) of

the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9)

(West 2004)), based on an attorney's absolute privilege to

publish defamatory statements pursuant to section 586 of the

Restatement (Second) of Torts (Restatement (Second) of Torts §

(1977)). Plaintiff appeals the judgment assigning error to the

circuit court for granting defendant Marco's motion to dismiss

because: (1) the privilege does not apply to defamatory

communication to another prior to the commencement of litigation;

and (2) questions of fact exist as to whether defendant Marco had

a good-faith belief that plaintiff's employer was liable under

the doctrine of respondeat superior. For the reasons that 1-05-3992

follow, we affirm the judgment of the circuit court.

BACKGROUND

The following facts are derived from the well-pleaded facts

in plaintiff's complaint and the reasonable inferences drawn

therefrom, which, for purposes of this appeal, must be accepted

as true (In re Chicago Flood Litigation, 176 Ill. 2d 179, 184

(1997)), as well as the various evidentiary materials submitted

by both parties in connection with defendant's motion to dismiss.

See Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996)

(in ruling on a section 2-619 motion for dismissal, the court may

properly consider "external submissions of the parties"); In re

Petition for Submittal of the Question of Annexation to the

Corporate Authorities of the City of Joliet, 282 Ill. App. 3d

684, 688 (1996) (court may consider when ruling on section 2-619

motion to dismiss "pleadings, depositions, affidavits [citation],

and other evidence offered by the parties").

On July 18, 2003, plaintiff was employed as a site

superintendent by the Dobbins Group (Dobbins), a general

contractor, to oversee construction at a jobsite referred to as

Fort Sheridan. On that morning, members of the Ceramic Tile,

Terrazzo & Granite Cutters Union Local No. 67 (Local 67) began

picketing the jobsite because Polco Flooring, a nonunion

contractor, was subcontracted by Dobbins to perform the floor

installation. Picketers, including defendant Affronti, were

confronted by plaintiff, who came out of a Dobbins trailer and

2 1-05-3992

complained that the demonstration was obstructing the workers.

Affronti stated that plaintiff subsequently came out of the

trailer and threw the picketers' food and drinks to the ground

during lunch. According to defendants, plaintiff was simply

ignored.

On July 22, 2003, Affronti and others again picketed the

Fort Sheridan jobsite. Plaintiff allegedly insulted the

picketers, who then called the Highland Park police and

complained that plaintiff was harassing them. Officer Weng of

the Highland Park police spoke to plaintiff and he agreed to stay

away of the picketers. On July 25, 2003, Affronti and others

commenced picketing the Fort Sheridan jobsite again and also

displayed a large inflatable rat that belonged to Local 67 to

publicize the nonunion labor employed on the project. Affronti

swore in his affidavit that he observed plaintiff stab the

inflatable rat with an object and leave the scene in his car.

Affronti called Officer Weng and filed a police report.

Plaintiff contends that Juergensen and O'Lone also accused

him of cutting the inflatable rat. As a result of these

accusations, plaintiff was arrested on July 28, 2003. Plaintiff

maintains that the allegations against him were false and that

all charges against him were dropped when another came forward

and admitted that he, and not plaintiff, damaged the balloon.

Defendant swore in his affidavit in support of his motion to

dismiss that he had received a call from Frank O'Lone of Local

3 1-05-3992

67, advising him that plaintiff, Dobbins' superintendent, damaged

Local 67's property while they were engaged in a labor dispute at

Fort Sheridan. O'Lone employed defendant's firm to represent

Local 67 in this matter and requested that defendant take all

necessary steps, including legal proceedings, to recover money

for damage to its property. Defendant issued the following

letter to Dobbins on behalf of Local 67:

"Dear Sir/Madam:

Please be advised that this office represents the Ceramic

Tile Layers Union Local 67 who are engaged in a labor

dispute with Polco Flooring at the Fort Sheridan jobsite.

The purpose of this letter is to advise you of certain

wrongful acts committed by your employee Kevin Atkinson. As

your superintendent, he has destroyed and damaged property

belonging to our Local.

Our labor dispute is not with you, but with Polco

Flooring and why Mr. Atkinson has taken these actions is

unfortunate. The purpose of the letter is to put you on

notice and to advise you that we intend on holding the

Dobbins Group responsible for the property damage.

Local 67 is engaged in a lawful and peaceful picket

against Polco Flooring. We intend on holding your company

responsible for any interference or damage caused by the

Dobbins Group. Please call me if you have any questions or

wish to discuss this matter."

4 1-05-3992

Defendant further indicated in his affidavit that litigation was

contemplated in good-faith, under serious consideration and

authorized by Local 67. Ultimately, no lawsuit was filed,

because Local 67 was paid for the damage to the inflatable rat by

a third party and no other confrontations occurred at the Fort

Sheridan jobsite.

Defendant filed his motion to dismiss based on absolute

immunity pursuant to section 586 of the Restatement (Second) of

Torts. The circuit court, in a written order, found that the

privilege "expressly applies to letters made prior to a legal

proceeding" and that defendant had a good-faith belief that

plaintiff was acting within the scope of his employment when the

alleged damage occurred. The circuit court further held that

plaintiff's failure to counter or contradict defendant's

affidavits necessarily requires the court to accept defendant's

facts as true for purposes of the motion and grant judgment in

his favor. Plaintiff now appeals.

ANALYSIS

I. APPLICATION OF THE PRIVILEGE

Plaintiff contends that defendant was not entitled to the

privilege under section 586 of the Restatement (Second) of Torts

because the communication is to a third party that occurred prior

to litigation. Plaintiff cites to Golden v. Mullen, 295 Ill. App. 3d 865 (1997), and Thompson v. Frank, 313 Ill. App. 3d 661

(2000), for the proposition that Illinois courts have not

5 1-05-3992

extended this privilege to out-of-court statements to other

persons. Golden, 295 Ill. App. 3d at 872 (declining to expand

the privilege to cover communications made by an attorney to his

client's spouse.) Thompson, 313 Ill. App. 3d at 664 (holding

that "an absolute privilege does not bar a libel action based on

an allegedly defamatory communication between one party's

attorney and the spouse of the opposing party to pending

litigation"). We disagree and find the authority upon which

plaintiff relies to be inapposite.

The defense of absolute privilege in a defamation action

involving statements made by an attorney is set forth in section

586 of the Restatement (Second) of Torts and provides as follows:

"An attorney at law is absolutely privileged to publish

defamatory matter concerning another in communications

preliminary to a proposed judicial proceeding, or in the

institution of, or during the course and as a part of, a

judicial proceeding in which he participates as counsel, if

it has some relation to the proceeding." (Emphasis added)

Restatement (Second) of Torts, §586 (1977). See also Golden v. Mulllen, 295 Ill. App. 3d 865, 869-70 (1997).

The privilege extends to out-of-court communications between

opposing counsel (Dean v. Kirkland, 301 Ill. App. 495 (1939)), to

out-of-court communications between attorney and client related

to pending litigation (Weiler v. Stern, 67 Ill. App. 3d 179

(1978)), to out-of-court communications between attorneys

6 1-05-3992

representing different parties suing the same entities (Libco

Corp. v. Adams, 100 Ill. App. 3d 314 (1981)), to statements made

during quasi-judicial proceedings (Richardson v. Dunbar, 95 Ill.

App. 3d 254 (1981)), to communications necessarily preliminary to

a quasi-judicial proceeding (Parrillo, Weiss & Moss v. Cashion,

181 Ill. App. 3d 920 (1989)), and to out-of-court communications

between an attorney and opposing parties in demand letters prior

to litigation (Simon v. Oltmann 98-C-1759 (N.D. Ill. August 31,

2001)).

In Golden, this court recognized that the only requirement

is that the communication pertain to proposed or pending

litigations and that "[a]ll doubts should be resolved in favor of

a finding of pertinency, which is a question of law for the

court." Golden, 295 Ill. App. 3d at 870, citing Skopp v. First

Federal Savings of Wilmette, 189 Ill. App. 3d 440, 447-48 (1989),

and Macie v. Clark Equipment Co., 8 Ill. App. 3d 613, 615 (1972).

If, however, the defamatory statements have "no connection

whatever with the litigation," then no privilege will attach.

Golden, 295 Ill. App. 3d at 870; Restatement, (Second) of Torts §586, Comment c, at 248 (1977). The privilege is predicated on

the tenet that although defendant's conduct is otherwise

actionable, because he is acting in furtherance of some interest

of social importance, the communication is protected and no

liability will attach, even at the expense of uncompensated harm

to the plaintiff's reputation. Golden, 295 Ill. App. 3d at 870,

7 1-05-3992

citing Weber v. Cueto, 209 Ill. App. 3d 936, 942 (1991); Libco,

100 Ill. App. 3d at 317. We are convinced that the same public

policy considerations that protect an attorney's statements made

to his or her client during the course of a legal proceeding

necessarily protect prelitigation communications such as the

letter defendant sent to plaintiff's employer.

An attorney must be at liberty to candidly and zealously

represent his client in communications to potential opposing

parties in litigation or other proceedings without the specter of

civil liability for his statements clouding his efforts. Were we

to accept plaintiff's argument that extending the privilege to

communications to others prior to litigation goes beyond the

scope of the privilege, we would obstruct more than just an

attorney's ability to properly represent his client. Such a

limitation on the privilege could frustrate an attorney's ability

to settle or resolve cases favorably for his client without

resorting to expensive litigation or other judicial processes.

Under plaintiff's rule, an attorney may be liable for

defamation by demanding that several potentially culpable

defendants settle a dispute out of court. Frequently, the best

strategy for certain disputes is to avoid formal proceedings and

resolve matters out of court. An attorney could be stymied by

this rule from putting forth his best evidence supporting his

client's position that might otherwise deter formal litigation

and spare his client's time and resources, as well as those of

8 1-05-3992

potential defendants. There is, in our view, an incalculable

social and economic benefit to litigants, taxpayers, attorneys

and the general public in settling cases that would otherwise add

to the already clogged dockets and further strain our thinly

spread judicial resources. We therefore hold that the absolute

privilege which applies to defamatory statements made by an

attorney during pending litigation applies to prelitigation

defamatory statements made in written communications to a

potential litigant.

II. PERTINENCY REQUIREMENT

Plaintiff asserts that the privilege cannot be applied here

because defendant must prove that he had a good-faith belief that

Dobbins was responsible for plaintiff's acts. He argues that

concluding, as defendant did, that Dobbins would be vicariously

liable for plaintiff's acts based on self-serving statements from

his client was insufficient. He also claims that had defendant

conducted a reasonable investigation and waited three additional

days prior to communicating with Dobbins, he would have been made

aware that another party acknowledged responsibility. However,

plaintiff offers no authority to support his assertion that an

attorney must first investigate a client's claim for legal

sufficiency prior to issuing a demand letter. We disagree with

plaintiff and hold that defendant did not have to prove a good-

faith belief that Dobbins was responsible for plaintiff's acts or

conduct an investigation to verify his client's statements.

9 1-05-3992

The privilege affords complete immunity, irrespective of the

attorney's knowledge of the statement's falsity or the attorney's

motives in publishing the defamatory matter. Restatement

(Second) of Torts §586, Comment a, at 247 (1977); Weber v. Cueto,

209 Ill. App. 3d 936, 942 (1991). The only requirement is that

the communication pertain to proposed or pending litigation. The

pertinency requirement is not applied strictly, and the privilege

will attach even where the defamatory communication is not

confined to specific issues related to the litigation. Golden,

295 Ill. App. 3d at 870; Libco, 100 Ill. App. 3d at 317. In the

instant case, defendant's letter was directed to Dobbins,

plaintiff's employer, and described the conduct of plaintiff, its

employee. The letter further indicated that defendant's client

intended to hold Dobbins financially responsible for plaintiff's

conduct. Here, notwithstanding the aforementioned requirement

and its liberal application, the alleged defamatory statements

relate only to the specific issues of the potential litigation,

namely plaintiff's stabbing the inflatable rat which was

interfering with progress at the Fort Sheridan site construction

while performing his duties as superintendent for Dobbins. We

find, as a matter of law, the content of defendant's letter to

Dobbins meets the pertinency requirement.

Moreover, even if defendant was required to show a good-

faith belief that Dobbins was vicariously liable for plaintiff's

conduct based on his client's statements, the evidence in the

10 1-05-3992

record here shows far more than a good-faith belief. The

doctrine of respondeat superior permits an employer to be held

vicariously liable for the torts of his employee if they are

committed within the scope of that employment. Pyne v. Witmer,

129 Ill. 2d 351, 359 (1989), citing Darner v. Colby, 375 Ill.

558, 566-67 (1941), and Gomien v. Wear-Ever Aluminum, Inc., 50

Ill. 2d 19, 21 (1971); see generally Restatement (Second) of

Agency §219 (1958). Although there is no precise definition for

"scope of employment," our supreme court in Pyne identified the

following broad criteria found in section 228 of the Restatement

(Second) of Agency which provides, in pertinent part:

" '(1) Conduct of a servant is within the scope of

employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized

time and space limits;

(c) it is actuated, at least in part, by a purpose

to serve the master, * * *

* * *

(2) Conduct of a servant is not within the scope of

employment if it is different in kind from that authorized,

far beyond the authorized time or space limits, or too

little actuated by a purpose to serve the master.' "

Pyne, 129 Ill. 2d at 360, quoting Restatement (Second) of Agency §228 at 504 (1958).

11 1-05-3992

Defendant's conclusion that Dobbins could be held liable for

plaintiff's actions is clearly supported by the statements that

were made to him by representatives of Local 67. In the

uncontested affidavits attached to defendant's motion to dismiss,

defendant states that he was contacted by Local 67 to represent

them in recovering money for damage to its property caused by

plaintiff. Defendant was told by his client that plaintiff was

employed by Dobbins to supervise the construction at the Fort

Sheridan site at approximately 9:30 a.m. when the incident

occurred. It was further alleged that plaintiff stabbed the

inflatable rat because it was interfering with the construction

work, for which plaintiff was responsible, at the Fort Sheridan

site. These unrebutted statements in the record support the

conclusion that Dobbins would be vicariously liable for

plaintiff's conduct. Plaintiff's act of stabbing the inflatable

rat was actuated, at least in part, by a purpose to serve the

master by clearing an obstruction, at the Fort Sheridan site,

during regular business hours and thus imputes liability to

Dobbins under the doctrine of respondeat superior. If a party moving for dismissal or summary judgment supplies

facts which, if not contradicted, would entitle the party to a

judgment as a matter of law, the opposing party cannot rely on

bare allegations alone to raise issues of material fact. Barber- Coleman Co. v. A&K Midwest Installation Co., 236 Ill. App. 3d

1065, 1070-71 (1992). Facts contained in an affidavit in support

12 1-05-3992

of a motion to dismiss which are not contradicted by counter-

affidavit must be taken as true for purposes of the motion.

Barber-Coleman Co., 236 Ill. App. 3d at 1071. We, like the

circuit court in this case, find that defendant had a good-faith

belief that Dobbins was responsible for plaintiff's conduct. We

also hold that an attorney is not required to undertake an

investigation or wait until statements made by their clients are

proven true prior to communicating with potential litigants in

order to be protected under the privilege.

III. CONCLUSION

For the foregoing reasons, we hold that the absolute

privilege in the section 586 of the Restatement (Second) of Torts

applies to defamatory statements in written communications from

an attorney to a potential litigant to the extent that the

communication pertains to proposed litigation or other

proceedings. Defendant's communication in this case pertained to

proposed litigation and he was not required to undertake any

investigation to determine the truthfulness or accuracy of his

clients' statement before the absolute privilege could be applied

to him. As a result, the circuit court properly applied the

privilege to defendant's statement and dismissed all claims

against him. Accordingly, the judgment of the circuit court is

affirmed.

FITZGERALD-SMITH, PJ., and JOSEPH GORDON, J., concur.