2020 IL App (1st) 191652 No. 1-19-1652 Opinion filed November 25, 2020 Fourth Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ RICHARD L. DENT and RLD RESOURCES, LLC, ) Appeal from the ) Circuit Court of Petitioners-Appellants, ) Cook County. ) v. ) No. 19 L 2910 ) CONSTELLATION NEWENERGY, INC.; CNE GAS ) SUPPLY, LLC; CONSTELLATION ENERGY GAS ) CHOICE, LLC; and CONSTELLATION NEW ) ENERGY-GAS DIVISION, LLC, ) Honorable ) Patricia O’Brien-Sheahan, Respondents-Appellees. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Petitioners, Richard Dent and RLD Resources, LLC (RLD), appeal the circuit court’s
dismissal with prejudice of their petition for presuit discovery pursuant to Illinois Supreme Court
Rule 224 (eff. Jan. 1, 2018). The petition sought disclosure from respondents, Constellation
NewEnergy, Inc.; CNE Gas Supply, LLC; Constellation Energy Gas Choice, LLC; and
Constellation New Energy-Gas Division, LLC (collectively, Constellation), of the names and No. 1-19-1652
addresses of three unidentified people who published allegedly defamatory statements about Dent
that caused respondents to terminate their contractual arrangements with petitioners.
¶2 On appeal, petitioners argue that the dismissal of their petition should be reversed because
the trial court misapplied the law and erroneously treated respondents’ motion to dismiss for failure
to state a claim as a motion for summary judgment. Specifically, petitioners argue that they met
their burden to show this discovery was necessary because they pled sufficient allegations of a
defamation claim to overcome a motion to dismiss for failure to state a claim.
¶3 For the reasons that follow, we reverse the judgment of the circuit court. 1
¶4 I. BACKGROUND
¶5 On March 18, 2019, petitioners filed a verified petition for presuit discovery against
Constellation. Petitioners alleged that prior to October 2018, they were party to several energy
supply and marketing contracts with Constellation and all of these contracts were terminable at
will.
¶6 Petitioners alleged that, in September 2018, two attorneys representing Constellation—
Grace Speights and Theos McKinney III—visited petitioners’ office and told Dent that certain
allegations had been made against him. Specifically, a woman, who was a Constellation employee
and whom Constellation’s attorneys refused to identify (Person A), alleged that Dent, in June 2016
at a Constellation-sponsored golfing event in the Philadelphia area, said to her that “she had a butt
like a sister.” Person A also alleged that Dent, in July 2018 at another Constellation-sponsored
pregolf party on the patio of the Chicago Shedd Aquarium, groped her. Furthermore, in connection
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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with the same July 2018 golf event, Constellation had arranged for the distribution of guest passes,
polo shirts and similar items at the Marriott Hotel on Adams Street in Chicago, and a man, whom
Constellation’s attorneys refused to identify (Person B), told Constellation that he had observed
Dent at the hotel collecting the golf materials and that Dent was drunk and disorderly at that time.
¶7 The petition alleged that Dent told Constellation’s attorneys at that September 2018
meeting that all of these allegations were completely false and that the attorneys responded that
Constellation would review its contractual arrangements with Dent and RLD as a result of these
allegations. On October 1, 2018, Constellation sent Dent and RLD a notice terminating all of
Constellation’s contracts with them. This termination notice was included as an exhibit to the
petition. Another petition exhibit, a December 2019 letter from Constellation’s counsel to
petitioners’ counsel, stated that Constellation had hired a third party, whom Constellation refused
to identify (Person C), 2 to investigate the claims against Dent. This letter also stated that Dent’s
denials were not credible and that the investigation concluded that the reports accurately described
behavior that violated the company’s code of conduct, was outside the norms of socially acceptable
behavior, and demeaned Constellation employees. The petition alleged, on information and belief,
that Person C investigated the claims against Dent before the termination notice was issued and
that Person C published or republished to Constellation the statements of Persons A and B.
¶8 The petition concluded with allegations that the statements published by Persons A, B, and
C concerning Dent were made as statements of fact, were false, were not privileged, and were the
cause in fact and proximate cause of Constellation’s termination of all its contractual arrangements
with petitioners. Furthermore, the statements imputed to Dent acts of moral turpitude and
2 Person C was revealed in later proceedings to be multiple people, Persons C.
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impugned his character, reputation and good name. The petition asserted that Persons A, B, and C
may be responsible in damages to petitioners and that this presuit discovery was necessary because
Constellation refused to provide to petitioners the names and addresses of Persons A, B, and C.
¶9 Constellation moved to dismiss the petition under section 2-615 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-615 (West 2018)), arguing that the petition was substantially
insufficient because the alleged defamatory statements were qualifiedly privileged and that
petitioners failed to allege facts showing that the privilege was abused. In this motion,
Constellation disclosed that Person B was an employee and made the alleged defamatory
statements, which described his observations of Dent on the day in question, in the course of
Constellation’s investigation of Person A’s allegations. Constellation also disclosed that Persons
C were the attorneys Constellation retained to investigate Person A’s allegations.
¶ 10 Specifically, Constellation argued that the alleged defamatory statements were qualifiedly
privileged as a matter of law as statements made to an employer by a victim of sexual harassment
concerning inappropriate touching experienced while at work (Person A), statements made to the
employer by a witness (Person B) as part of Constellation’s investigation consistent with its legal
obligations, and statements of the investigators/lawyers (Persons C) relating their findings to
Constellation. Constellation also argued that petitioners failed to allege facts sufficient to
overcome this qualified privilege, i.e., by alleging facts that, if true, would suffice to demonstrate
a direct intent to injure petitioners or a reckless disregard for their rights.
¶ 11 Furthermore, Constellation urged the court to dismiss the petition with prejudice and not
allow petitioners leave to replead because, according to Constellation, any amendment would be
futile where Constellation had retained third-party counsel to conduct an independent, attorney-
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client privileged investigation of the allegations, that investigation included meeting with Dent to
inform him of the allegations and obtain his side of the story, Constellation weighed the evidence
and decided in good faith to credit its employees’ version of events, there was no basis to infer any
knowledge of falsity or reckless disregard for the truth, and Constellation did not disclose the
findings of the investigation to any third party, other than in privileged communications with its
lawyers.
¶ 12 In their response, petitioners argued that Constellation’s section 2-615 motion to dismiss
should be denied on procedural and substantive grounds. First, although Constellation presented
its motion as a section 2-615 motion to dismiss, which attacks only the legal sufficiency of the
complaint and defects apparent on the face of the complaint, Constellation improperly introduced
new facts regarding Persons B and C and evidence that attacked the factual, rather than the legal,
sufficiency of the Rule 224 petition. Constellation also improperly raised the affirmative defense
of qualified privilege in its section 2-615 motion to dismiss. Second, Constellation’s motion failed
under section 2-615 of the Code because the court must accept as true all well-pleaded facts and
any reasonable inferences arising therefrom and should not dismiss the Rule 224 petition unless it
was apparent that no set of facts could be proved that would entitle petitioners to a judgment in
their favor. Petitioners argued that their alleged facts—that three unidentified people fabricated
and published completely false and defamatory stories about Dent and then published those stories
to a third-party—are more than sufficient to state a prima facie defamation case and defeat any
qualified privilege claim.
¶ 13 In its reply, Constellation argued that petitioners’ allegations, taken as true, established that
the allegedly defamatory statements were qualifiedly privileged because all of the statements were
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made by an employee victim, a witness, and investigators as part of an employer’s sexual
harassment investigation and that petitioners failed to plead facts showing that the alleged
defamatory statements were intentionally false.
¶ 14 In June 2019, the trial court dismissed petitioners’ Rule 224 petition with prejudice,
determining sua sponte to dispose of the petition for failure to comply with Rule 224. Specifically,
the court, citing Low Cost Movers, Inc. v. Craigslist, Inc., 2015 IL App (1st) 143955, found that a
Rule 224 petition was an inappropriate vehicle to attempt to learn the names of Persons A, B, and
C because petitioners knew the identities of the Constellation respondents and their attorneys, Rule
224 was satisfied once a petitioner has identified someone who may be sued, and the Constellation
respondents may be liable for damages.
¶ 15 Petitioners moved the court to reconsider its dismissal of the petition with prejudice,
arguing that their Rule 224 petition was not the type of impermissible fishing expedition disfavored
by the law because petitioners knew everything necessary to bring a defamation action against
Persons A, B, and C except their identities. Furthermore, the Constellation respondents-in-
discovery did not identify themselves or anyone else as a party who had engaged in the defamation
of Dent.
¶ 16 In its response, Constellation argued that the trial court’s dismissal of the Rule 224 petition
with prejudice was correct because, in accordance with relevant case law, Rule 224’s purpose was
satisfied since petitioners already knew the identity of a party—namely, Constellation—that was
involved in the events that gave rise to the termination of the at-will contracts between petitioners
and Constellation. Constellation argued that the absence of a viable claim against it did not mean
that Rule 224 discovery continued until petitioners ascertained the identity of a party that engaged
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in the wrongdoing that coincided with petitioners’ defamation cause of action. In addition,
Constellation argued that dismissal of the Rule 224 petition was also proper based on the qualified
privilege that covers statements made during the course of an employer’s sexual harassment
investigation and that petitioners failed to overcome this privilege by alleging facts demonstrating
an abuse of that privilege.
¶ 17 After hearing oral argument, the trial court issued a July 2019 written order denying
petitioners’ motion to reconsider the dismissal. The court stated that the specific, narrow purpose
of Rule 224 allows a petitioner to obtain the identity of a potential defendant when the petitioner
lacks knowledge of anyone who may be liable in damages but the record here established that
petitioners had knowledge that Constellation may be liable in damages based on the terminated
contracts.
¶ 18 Petitioners appealed.
¶ 19 II. ANALYSIS
¶ 20 A. Presuit Discovery Under Rule 224
¶ 21 Petitioners argue the trial court erred in ruling that Low Cost Movers, Inc. required
dismissal with prejudice of their Rule 224 petition. Specifically, petitioners argue that the trial
court’s ruling undermined the purpose of Rule 224, the alleged facts in their petition showed that
no cause of action lies against Constellation or its attorneys for either defamation or breach of
contract, and Low Cost Movers, Inc. was distinguishable from this case.
¶ 22 This court generally reviews the trial court’s ruling pursuant to Rule 224 for an abuse of
discretion. Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 711 (2010). However, statutory
construction constitutes a question of law, which we review de novo. Sardiga v. Northern Trust
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Co., 409 Ill. App. 3d 56, 61 (2011); see also Thomas v. Weatherguard Construction Co., 2015 IL
App (1st) 142785, ¶ 63 (de novo consideration means the appellate court performs the same
analysis that a trial judge would perform). Rule 224, titled “Discovery Before Suit to Identify
Responsible Persons and Entities,” provides in pertinent part as follows:
“(a) Procedure.
(1) Petition.
(i) A person or entity who wishes to engage in discovery for
the sole purpose of ascertaining the identity of one who may be
responsible in damages may file an independent action for such
discovery.
(ii) The action for discovery shall be initiated by the filing of
a verified petition in the circuit court of the county in which the
action or proceeding might be brought or in which one or more of
the persons or entities from whom discovery is sought resides. The
petition shall be brought in the name of the petitioner and shall name
as respondents the persons or entities from whom discovery is
sought and shall set forth: (A) the reason the proposed discovery is
necessary and (B) the nature of the discovery sought and shall ask
for an order authorizing the petitioner to obtain such discovery. The
order allowing the petition will limit discovery to the identification
of responsible persons and entities and where a deposition is sought
will specify the name and address of each person to be examined, if
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known, or, if unknown, information sufficient to identify each
person and the time and place of the deposition.” (Emphases added.)
Ill. S. Ct. R. 224(a)(1) (eff. Jan. 1, 2018).
¶ 23 It is well settled that our rules are to be construed in the same manner as statutes (Ill. S. Ct
R. 2 (eff. July 1, 2017); People v. Norris, 214 Ill. 2d 92, 97 (2005)), and the cardinal rule of
interpreting statutes is to ascertain and give effect to the intent of the legislature (McNamee v.
Federated Equipment & Supply Co., 181 Ill. 2d 415, 423 (1998)). The best evidence of such intent
is the statutory language itself, which is to be given its plain meaning. Johnston v. Weil, 241 Ill.
2d 169, 175 (2011). Where the meaning is unclear, courts may consider the law’s purpose and the
evils the law was intended to remedy. Id. at 175-76. A statute’s language is ambiguous when it is
capable of being understood by reasonably well-informed individuals in multiple ways. MD
Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 288 (2008). Although a court should first
consider the language of the statute or rule, a court must presume that the court in promulgating a
rule, like the legislature in enacting a statute, did not intend absurdity or injustice. See State Farm
Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540-41 (1992).
¶ 24 The plain language of Rule 224 allows a petitioner to engage in discovery to ascertain the
identity of multiple persons and entities who may be responsible in damages. The court’s clear
intent in promulgating Rule 224 was to provide a mechanism to enable a person or entity, before
filing a lawsuit and with leave of court, to identify parties who may be responsible in damages;
however, the court’s order allowing the petition will limit discovery to the identification of
responsible persons and entities. Roth v. St. Elizabeth’s Hospital, 241 Ill. App. 3d 407, 414 (1993)
(citing Ill. S. Ct. R. 224, Committee Comments (adopted Aug. 1, 1989)); see also Shutes v. Fowler,
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223 Ill. App. 3d 342, 345-46 (1991) (Rule 224 allows a party to engage in limited presuit discovery
about the identity of those who may be responsible in damages “to streamline the court process”).
¶ 25 “[T]he only use and purpose of Rule 224 is to ascertain the identity of a potential
defendant.” (Emphasis omitted.) Roth, 241 Ill. App. 3d at 416. Once a potential defendant’s
identity is learned, a petitioner can then file a case and use either the discovery provisions of the
rules or the Code to conduct full discovery of those named as respondents-in-discovery to
determine who in fact was responsible, i.e., liable. Id. In Roth, the petitioner already knew the
identity of several healthcare providers who might have been responsible in damages for the
decedent’s treatment. Id. at 419. Nevertheless, the petitioner was still allowed under Rule 224 to
obtain the name of an additional doctor who acted as a consultant but whose identity was not
revealed by the hospital records. Id. The court, however, ruled that the petitioner was not allowed
to use Rule 224 to conduct a fishing expedition for information about a physician’s impressions of
the decedent’s medical conditions and whether the physician had ordered tests to determine
whether the decedent had sepsis. Id. at 420.
¶ 26 In Beale v. EdgeMark Financial Corp., 279 Ill. App. 3d 242, 244 (1996), a stock pledger,
who claimed that his stock was sold at a time when the directors had reason to believe that the sale
of the corporation was imminent, filed a Rule 224 petition for presuit discovery that went beyond
the names and addresses of people who could be responsible in damages. When he filed his
petition, he knew the identity of at least one defendant. Id. The trial court ruled that the petitioner
was entitled to discovery of a document that constituted the corporation’s full response to an
inquiry from its regulatory agency because the court believed the document would identify certain
people who could be responsible in damages. Id. at 245. Specifically, the agency had sent the
corporation a list of the names and addresses of 36 individuals and married couples and asked the
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corporation to identify whether the listed people had any affiliation with the corporation that could
have made them privy to nonpublic information about the corporation’s activities regarding the
issue in question. Id. at 247.
¶ 27 This court affirmed the trial court, stating that the document was within the scope of Rule
224 because the mere list of 36 names and addresses did little if anything to narrow the universe
of potential defendants from the general members of the stock-purchasing public and the document
included additional connecting facts to establish which people were affiliated with the corporation
without disclosing specific facts of insider trading or actual acts of wrongdoing. Id. at 253-54.
Moreover, this court rejected the argument that the petitioner was not entitled to use Rule 224
because he already knew the identity of some defendants and had even filed a federal lawsuit
against them, which was pending at the time the trial court ruled on the Rule 224 petition. Id. at
251 n.3. This court explained that “Roth did not hold that Rule 224 discovery [was] not permitted
where the petitioner knows the name of a potential defendant”; rather, the petition in Roth was
denied because it sought specific information concerning actual liability. Id.; see also Malmberg
v. Smith, 241 Ill. App. 3d 428 (1993) (petitioner, who already knew the identity of the potential
libel defendant, a coemployee, and knew that he had accused the petitioner of illegal drug use
while on duty, could not use Rule 224 to discover the contents of the coemployee’s statement);
Guertin v. Guertin, 204 Ill. App. 3d 527, 531 (1990) (petitioners, who speculated that their sister-
in-law had exerted undue influence in the execution of a will by a deceased relative, could not use
Rule 224 to depose the sister-in-law and bank officials before the filing of a complaint because the
identity of the defendant was already known).
¶ 28 Based on the plain language of Rule 224 and the relevant caselaw, we find that the trial
court abused its discretion when it sua sponte dismissed the petition with prejudice based on the
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trial court’s determination that presuit discovery of the identity of Persons A, B, and C was not
necessary because petitioners knew the identity of Constellation and its attorneys. The trial court’s
ruling does not comport with the intent of Rule 224 to assist a potential plaintiff in seeking redress
against people or entities if the potential plaintiff meets the requirement to demonstrate the reason
why the proposed discovery seeking the identity of certain individuals is necessary. Here,
petitioners met that requirement, alleging that Persons A and B made completely false defamatory
statements about Dent and then published those statements to Person C, an investigator, who then
reported the defamatory statements to Constellation, which terminated its at-will contracts with
petitioners. As discussed below, at this phase of the proceedings, any affirmative defense of a
qualified privilege was not relevant in determining whether petitioners met the requirement to
show the necessity of presuit discovery under Rule 224. Under the facts as alleged by petitioners
and contrary to the trial court’s ruling, Constellation and its attorneys were not “individuals or
entities who stand in the universe of potential defendants” responsible in damages for defamation
or breach of contract. Beale, 279 Ill. App. 3d at 252. Constellation and its attorneys were not the
entity or people who made the alleged false and defamatory statements about Dent’s conduct at
the events sponsored by Constellation; they were merely participants in the subsequent
investigation of the alleged defamatory statements that resulted in the termination of petitioners’
at-will contracts.
¶ 29 The extent of a petitioner’s permissible inquiry to limit or define the universe of potential
defendants “must be determined by the trial judge on a case-by-case basis and in consideration of
the cause of action alleged. When in the trial court’s discretion the petitioner seeks to establish
actual liability or responsibility rather than potentiality for liability, discovery should be denied.”
Id. at 252-53. Here, however, since the sought-after information of the identity of Persons A, B,
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and C pertained only to their potential for liability and not to actual liability, the allowance of that
discovery would not have exceeded the scope of Rule 224. Therefore, it was an abuse of discretion
for the trial court to sua sponte dismiss with prejudice petitioners’ Rule 224 petition. “In reaching
this conclusion, we are mindful of concerns regarding [the] use of Rule 224 to conduct fishing
expeditions” (id. at 254) and opening the lid to Pandora’s box to enable every potential plaintiff
with competent counsel to push the limits of permissible presuit discovery beyond the identity of
responsible persons (Roth, 241 Ill. App. 3d at 421 (Lewis, J., specially concurring)). “However,
we correspondingly recognize the need to allow the trial court to exercise its discretion within the
scope and latitude of the rule, to establish boundaries, given the nature of the case before it, and to
grant limited discovery to acquire information which would suggest the potentiality of liability so
as to make the subsequent filing of a lawsuit a fruitful pursuit.” Beale, 279 Ill. App. 3d at 254.
¶ 30 Finally, Low Cost Movers, Inc., does not support the trial court’s determination that presuit
discovery under Rule 224 was not necessary based on petitioners’ knowledge of the identity of
Constellation, the respondent-in-discovery, and its attorneys. In Low Cost Movers, Inc., the
petitioner, an online advertiser alleged that its ads had been flagged and deleted from a website
since 2011 and sought presuit discovery from the respondent-in-discovery, the website operator,
to obtain the identity of anyone who had flagged the advertiser’s advertisements for removal from
the website. 2015 IL App (1st) 143955, ¶ 4. The respondent disclosed that since 2014 it had
removed, on its own initiative, all of the advertiser’s ads based on violations of respondent’s terms
of use. Id. ¶ 5. The respondent asked the petitioner to propose a limited date range so that
respondent could assess the cost and feasibility of running a search to identify who had flagged
petitioner’s ads before 2014. Id. ¶ 6. After the petitioner failed to provide any proposed dates, the
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respondent argued that it had complied with its obligations under Rule 224, and the trial court
sua sponte dismissed the petitioner’s Rule 224 petition. Id.
¶ 31 Thereafter, the petitioner moved to vacate the dismissal, conceding that the respondent had
identified itself as one potential defendant but arguing that petitioner should still be allowed to
discover if others might have flagged its ads before 2014. Id. ¶ 7. The respondent argued that there
was every reason to believe it had removed the ads before 2014. Id. The trial court denied the
motion to vacate, finding that the purpose of Rule 224 had been satisfied because at least one
potential defendant had been identified. Id. The reviewing court stated that “Rule 224 was not
intended to permit a party to engage in a wide-ranging, vague, and speculative quest to determine
whether a cause of action actually exist[ed]” and held that the trial court’s dismissal of the petition
was not an abuse of discretion based on the respondent’s disclosure of itself as a potential
defendant and the petitioner’s failure to provide any date range to limit the respondent’s search.
Id. ¶¶ 17-18.
¶ 32 Unlike Low Cost Movers, Inc., in the instant case no potential defendant has been
identified. Furthermore, petitioners’ discovery request was not a wide-ranging, vague, and
speculative quest to determine whether a cause of action actually existed. Petitioners are not
speculating that someone may have defamed Dent; Constellation told petitioners that three specific
although unnamed people had made specific factual allegations about Dent.
¶ 33 For the foregoing reasons, we reverse the trial court’s dismissal with prejudice of
petitioners’ Rule 224 petition to discover the identity of Persons A, B, and C.
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¶ 34 B. Sufficiency of the Rule 224 Petition
¶ 35 Petitioners contend that Constellation improperly cloaked a motion for summary judgment
as a section 2-615 motion to dismiss and introduced new facts not contained in the Rule 224
petition or its exhibits to assert affirmative defenses based on claims of attorney-client privilege
and the qualified privilege of an employee to report harassment to an employer. These new facts
included Person B’s status as a Constellation employee, Person B somehow witnessing the alleged
sexual harassment of Person A even though they were at different locations at the time in question,
and Person C’s status as an attorney.
¶ 36 Petitioners argue that, for purposes of withstanding a 2-615 motion to dismiss, their petition
sufficiently alleged all the required elements of a defamation claim against Persons A, B, and C
where petitioners alleged that the statements about Dent were defamatory because they imputed to
him acts of moral turpitude and impugned his character, good name, and reputation; the statements
were completely false, were made as statements of fact, and were not privileged; and the statements
caused Constellation to terminate several contracts with petitioners, who suffered damages as a
result. Petitioners also argue that, in the context of a section 2-615 motion to dismiss, the issue of
the existence of a qualified privilege for the defamatory statements must be determined based on
the facts alleged in their Rule 224 petition and the court must interpret the allegations in the light
most favorable to petitioners and accept as true all well-pleaded facts and reasonable inferences
that can be drawn from those facts.
¶ 37 Constellation does not challenge petitioners’ allegations on the bases that either the alleged
defamatory statements did not harm Dent’s reputation or that the harm was not obvious and
apparent on the face of the statements or that Dent admitted committing the acts alleged in the
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statements or that the statements were reasonably capable of an innocent construction or the
statements were merely expressions of opinion.
¶ 38 Instead, Constellation argues that the discovery petitioners seek is not necessary because
the petition does not state a claim for defamation. Specifically, Constellation argues that the
alleged defamatory statements were all qualifiedly privileged and that petitioners failed to
overcome that privilege by pleading sufficient facts to demonstrate that the privilege was abused.
Constellation asserts that (1) Person A’s statements were qualifiedly privileged as statements by a
victim of sexual harassment to an investigator engaged by her employer, (2) Person B’s statements
were qualifiedly privileged because he was a witness who related to the investigator observations
of Dent at an event during the same July 2018 golf outing where one of the alleged incidents of
harassment occurred, and (3) the statements by Person C, the investigator hired by Constellation,
relating the findings of that investigation to Constellation were also qualifiedly privileged.
¶ 39 Constellation argues that petitioners’ conclusory allegation that the statements were false
does not meet their burden to allege specific facts showing abuse of the privilege. According to
Constellation, the facts alleged in the petition tended to show that Constellation and the alleged
speakers did not recklessly disregard the truth or falsity of the statements because Constellation
retained an outside investigator to investigate the allegations of sexual harassment, the investigator
interviewed the victim and witness and then met with Dent and gave him the opportunity to explain
his side of the story, Dent’s denial of the allegations was found not credible, and Constellation
kept the findings of the investigation confidential, disclosing them only in privileged
communications with its lawyers.
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¶ 40 Although the issue of whether a qualified privilege exists is a question of law for the court,
the issue of whether the privilege was abused is a question of fact for the jury. See Kuwik v.
Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 25 (1993). Statements covered by
a qualified privilege may still be actionable if the privilege is abused. Gibson v. Philip Morris,
Inc., 292 Ill. App. 3d 267, 275 (1997). An abuse of a qualified privilege may consist of any reckless
act that shows a disregard for the defamed party’s rights, including the failure to properly
investigate the truth of the matter, to limit the scope of the material, or to send the material to only
the proper parties. Kuwik, 156 Ill. 2d at 31-32.
¶ 41 Rule 224 requires petitioners to demonstrate that discovery of the identity of the individuals
designated as Persons A, B, and C was necessary. See Hadley v. Subscriber Doe, 2015 IL 118000,
¶ 25. To ascertain whether petitioners satisfied Rule 224’s necessity requirement, the court must
evaluate whether they presented sufficient allegations of a defamation claim to withstand a section
2-615 motion to dismiss. See id. at 27. In the context of a Rule 224 petition, a section 2-615 motion
to dismiss tests the legal sufficiency of a petition by asking whether the allegations of that petition,
when viewed in the light most favorable to the petitioner, state sufficient facts to establish a cause
of action upon which relief may be granted. See id. ¶ 29.
“All facts apparent from the face of the [petition], including any attached exhibits,
must be considered. A circuit court should not dismiss a [petition] under section 2-
615 unless it is clearly apparent no set of facts can be proved that would entitle the
[petitioner] to recovery. [Citation.] The standard of review is de novo. [Citation.]
To state a cause of action for defamation, a [petitioner] must present facts
showing the [potential] defendant made a false statement about the [petitioner], the
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[potential] defendant made an unprivileged publication of that statement to a third
party, and the publication caused damages. [Citation.] A defamatory statement is
one that harms a person’s reputation because it lowers the person in the eyes of
others or deters others from associating with her or him. [Citation.]” Id. ¶¶ 29-30.
¶ 42 Constellation brought its motion to dismiss pursuant to section 2-615 of the Code, but its
arguments rest on its contention that the alleged defamatory statements are protected by a qualified
privilege for statements made in the reporting and investigation of sexual harassment in the
workplace. Constellation argues this privilege should bar disclosure of the identity of Persons A,
B, and C because petitioners failed to overcome this privilege by alleging facts showing an abuse
of that privilege. We disagree.
¶ 43 Facts not alleged in or attached to the complaint cannot support a section 2-615 motion.
Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 654 (1994). In essence, Constellation’s argument
raises an affirmative defense and improperly attempts to introduce at this presuit stage new facts
to support its affirmative defense of a qualified privilege. If allowed, such a maneuver would
prejudice petitioners, whose response to the affirmative defense would be hindered based on their
inability to conduct any discovery without knowing the identity of Persons A, B, and C.
¶ 44 Privilege is an affirmative defense that may be susceptible to resolution by a motion for
summary judgment or a motion to dismiss under section 2-619 of the Code (735 ILCS 5/2-619
(West 2018)) (see Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677, ¶ 15), but privilege
should not be considered when resolving a section 2-615 motion to dismiss (see Becker v. Zellner,
292 Ill. App. 3d 116, 122 (1997) (generally, “affirmative defenses may not be raised in a section
2-615 motion”); Maxon, 402 Ill. App. 3d at 712 (an affirmative defense is not considered under a
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section 2-615 analysis)). We will confine our review to the standards for reviewing section 2-615
motions and not consider alleged facts not shown on the face of the petition or in its attached
exhibits. See Visvardis v. Ferleger, 375 Ill. App. 3d 719, 724 (2007).
¶ 45 “[A] court must take as true all well-pled allegations of fact contained in the complaint and
construe all reasonable inferences therefrom in favor of the plaintiff.” Vernon v. Schuster, 179 Ill.
2d 338, 341 (1997). In ruling on a motion to dismiss, the court will construe pleadings liberally.
Pfendler v. Anshe Emet Day School, 81 Ill. App. 3d 818, 821 (1980). However, the court will not
admit conclusions of law and conclusory allegations not supported by specific facts. Village of
South Elgin v. Waste Management of Illinois, Inc., 348 Ill. App. 3d 929, 930-31 (2004). “A plaintiff
is not required to prove his case in the pleading stage; rather, he must merely allege sufficient facts
to state all the elements which are necessary to constitute his cause of action.” Claire Associates
v. Pontikes, 151 Ill. App. 3d 116, 123 (1986).
¶ 46 Defamation can be either defamation per se or defamation per quod. Stone v. Paddock
Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. A statement is defamatory per se if its harm is
obvious and apparent on its face. Id. ¶ 25. When a statement is defamatory per se, a plaintiff need
not plead actual damage to his or her reputation because the statement is deemed to be so obviously
and materially harmful that injury to the plaintiff’s reputation is presumed. Id. However, because
a claim of defamation per se relieves a plaintiff of the obligation to prove actual damages, it must
be pled with a heightened level of precision and particularity. Id. Illinois recognizes five categories
of statements that are defamatory per se: (1) words imputing the commission of a criminal offense,
(2) words imputing an infection with a loathsome communicable disease, (3) words imputing an
individual’s inability to perform his employment duties or a lack of integrity in performing those
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duties, (4) words imputing a lack of ability in an individual’s profession or prejudicing an
individual in his or her profession, and (5) words imputing an individual’s engagement in
fornication or adultery. Id. The third and fourth categories are generally relevant here: words
prejudicing Dent in his profession and imputing a lack of integrity based on his alleged drunk and
disorderly condition at an event sponsored by Constellation, a party engaged in several contracts
with Dent and his firm, and his alleged sexual harassment of a Constellation employee at that
event.
¶ 47 Petitioners alleged that Person A falsely stated that Dent verbally and physically sexually
harassed her at two events sponsored by her employer, Constellation. Additionally, petitioners
alleged that Person B falsely stated that Dent was drunk and disorderly at the Constellation-
sponsored event in Chicago. Persons A and B then reported these false statements to Person C, an
unknown investigator, who then reported this information to Constellation, which decided to
terminate its contracts with petitioners based on its investigation regarding the false statements.
These allegations are sufficient to withstand dismissal under a section 2-615 analysis, which does
not consider affirmative defenses like the alleged existence of a qualified privilege.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, we reverse the judgment of the circuit court that dismissed with
prejudice petitioners’ Rule 224 presuit discovery petition and remand this cause for further
proceedings consistent with this order.
¶ 50 Reversed and remanded.
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No. 1-19-1652
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-L-2910; the Hon. Patricia O’Brien Sheahan, Judge, presiding.
Attorneys Paul G. Neilan, of Law Offices of Paul G. Neilan, P.C., of for Highland Park, for appellants. Appellant:
Attorneys Terri L. Mascherin and Christian L. Plummer, of Jenner & Block for LLP, of Chicago, for appellees. Appellee:
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