Opinion
1-22-1007
06-30-2023
CAROLYN KAY, Plaintiff-Appellant v. 801 SOUTH PLYMOUTH COURT MASTER ASSOCIATION BOARD OF DIRECTORS, JENNIFER BLOOM HINES, individually and as an agent of 801 SOUTH PLYMOUTH COURT MASTER ASSOCIATION BOARD OF DIRECTORS, 801 SOUTH PLYMOUTH COURT APARTMENT CONDOMINIUM ASSOCIATION and RICHARD WEINDORFER, Defendants (RICHARD WEINDORFER, Defendant-Appellee)
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 2020 L 10428 Honorable Daniel J. Kubasiak Judge, Presiding
JUSTICE D.B. WALKER delivered the judgment of the court. Presiding Justice McBride and Justice Reyes concurred in the judgment.
ORDER
D.B. WALKER, JUSTICE
¶ 1 Held: We affirm the trial court's dismissal of all counts against the defendant. None of the allegedly defamatory statements rise to the level of defamation per se and plaintiff's defamation per quod claim was insufficiently pled. The trial court did not abuse its discretion by failing to offer a fourth opportunity to replead.
¶ 2 Plaintiff Carolyn Kay served as a volunteer board member on the Master Association Board and the Apartment Condominium Association Board for her residential building at 801 South Plymouth Court. Between June and September 2020, Defendant Richard Weindorfer sent out three newsletter emails to residents of the building who had signed up to receive them. Plaintiff subsequently filed a complaint alleging that defendant, among others, had publicly defamed her. After an initial complaint and an amended complaint, all defendants other than Weindorfer were dismissed. After the third amended complaint, defendant moved to strike portions of the complaint related only to the already-dismissed additional defendants and to dismiss the remainder of the complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2615 (West 2022)). In this appeal, plaintiff seeks reversal of the dismissal of her third amended complaint.
¶ 3 BACKGROUND
¶ 4 Plaintiff served as a volunteer board member on the Master Association Board and the Apartment Condominium Association Board for the property where she lived, 801 S. Plymouth Court. At some point in time prior to the events of this case, defendant began attending board meetings and circulating an email newsletter to interested residents of the property that detailed the events of the board meetings he attended. Between June and September 2020, defendant sent out three emails to his subscribers regarding the events of the board meetings that took place between May and September 2020. On September 30, 2020, plaintiff filed a civil complaint alleging four counts against various defendants, including one count against defendant alleging "Defamation (Actual Malice)."
¶ 5 Several iterations of motions to dismiss and repleading followed, during which time all other defendants were dismissed and only Weindorfer remained. The first amended complaint continued to describe the count against defendant as "Defamation (Actual Malice)." The trial court declined to rule on the first amended complaint and granted plaintiff leave to file a second amended complaint. The second amended complaint still termed the count against defendant "Defamation (Actual Malice)." Defendant moved to dismiss the second complaint in a combined motion under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2022)). The trial court denied defendant's section 2-615 motion, finding that plaintiff had sufficiently pled a cause of action for defamation per se. The trial court also denied defendant's section 2-619 motion and granted him leave to plead "defense of truth" as an affirmative defense. Five days later, the trial court issued a second opinion in which it found that "Defamation (Actual Malice)" was not a valid claim recognized under Illinois law, but it did so with regard to one of the other claims and did not mention the claim against defendant in that opinion.
¶ 6 Defendant filed a motion to reconsider pointing out the discrepancy between the trial court's order as to the claim against his co-defendant and its order as to the claim against him. The trial court granted defendant's motion to reconsider and dismissed the claim against defendant with prejudice under section 2-615. Plaintiff moved for reconsideration of the trial court's order, arguing that a dismissal with prejudice was inconsistent with its other dismissals, which had been without prejudice. Plaintiff sought leave to file a third amended complaint. The trial court granted the motion to reconsider, dismissed the claim against defendant without prejudice, and granted leave to file a third amended complaint.
¶ 7 In her third amended complaint, plaintiff alleged defamation per se with largely the same argumentation which was under the header "Defamation (Actual Malice)" in her previous complaints. She also added for the first time a claim of defamation per quod. Both claims alleged that emails sent by defendant on June 22, July 24, and September 22, 2020 all contained defamatory statements. The only difference between the two claims was a single paragraph in each. In the per se claim, plaintiff claimed that "[t]he foregoing statements made by [defendant] are defamatory per se and thus an award of punitive damages, including an element of attorney's [sic] fees and costs, is justified and warranted." In the per quod claim, plaintiff asserted that "[t]he foregoing false statements made by [defendant] are defamatory per quod, harm her reputation and cause injury, thus an award of punitive damages, including an element of attorney's [sic] fees and costs, is justified and warranted." Plaintiff alleged that "[t]hroughout 2018, 2019 and 2020 [defendant] has been circulating his own email newsletter. *** [Defendant's] emails are a series of personal attacks and ad hominem insults and degradations of [plaintiff]."
¶ 8 In the interest of presenting the issues at bar in this case in full, we will include here the pertinent portions of the emails. Although the excerpted passages are lengthy, each represents only a portion of the email from which they are excerpted, and a fuller context makes clear that the emails were not primarily focused on plaintiff. For example, the June email spanned four pages and 23 paragraphs, but only two of those paragraphs included remarks that plaintiff alleged to be defamatory.
¶ 9 The first of the three emails in question was sent on June 22, 2020 and included the following:
"Subject: What is going on at 801 May & June 2020
Dear Fellow Apartment Owners,
There were two 801 SPC board meetings over the last several weeks: the Master Board met on June 16th, and the Apartment Board on May 27th. Here is my take on those meetings. As always, any items of particular interest will be in italics. Also, please join our 801 Google Group, Aaron Price does a great job of objectively reporting on the Apartment Board meetings. *** Also, to ensure you are receiving the official minutes from these gathering [sic], please contact Property Manager, Matt Dursch.
* * *
Illegal Carolyn
Over the last few weeks you may have received an illegal email from Carolyn Kay illegally distributing Meribeth's photoshop renderings of the railings. In the illegal email, Carolyn illegally asked you to vote, and to illegally provide your vote to her and Matt. She should not have done this, it is illegal. She did not get permission from the Master Board, who is in charge of this project. She did not ask Matt for his permission to accept such votes. She seems to think Matt is her personal assistant, he is to do anything she wants, and he is not allowed to question her (see my previous emails for examples). Since she has not worked in an office setting since 1995 she does not know, offices no longer have personal assistants. Carolyn has once again overstepped the boundaries as a board member with regards to the Master. Last time she did this, the Master Board censured her. We will see what the future holds.
* * *
Carolyn's Minute Issues
Usually approving the minutes from a prior board meeting is quick and simple. This time it was not because Carolyn protested. At the March 31st meeting, Carolyn hijacked the proceedings to push through her two propaganda motions that could have financially hurt the association. Jennifer, as Secretary, added to the minutes details about the discussion and clarifications about tabling the second motion. Carolyn did not like the added verbiage, explaining how there were already policies in place relating to her motions and implying that they were pointless and a waste of time, which they were. Carolyn's motions were financial based, and as I said in previous emails, she is not to be trusted when it comes to monetary issues. The minutes were passed without changes, despite Carolyn's objections." (emphasis in original)
¶ 10 The second of the three emails was sent on July 24, 2020, and included the following:
"Subject: What is going on at 801 in July 2020
Dear Fellow Apartment Owners,
My hope is to have a concise board meeting. But then Carolyn Kay happens. She bullies, she lies, she wastes time and money (your money), causes frustration and aggravation, and finally loses. Then she vows to come back and cause more destruction. That is what happened at the July 21 Apartment Board meeting. This will be explained in the Other Business*** section.
* * *
Other Business***
Meribeth began by recounting the numerous emails from Carolyn received by the board members and management since the last board meeting. Apparently Carolyn was not happy with the minutes that were approved in May from the March 31, 2020 Apartment board meeting. She specifically did not like the bullet points that were added by Jennifer, as association Secretary, clarifying the discussion related to Carolyn's motions.
Just to remind my fellow owners, at the March board meeting Carolyn hijacked the discussion early on to promote her agenda and to make her and Rene look like our protectors, which they are not. Here is a copy of the approved minutes from that meeting:
* * *
When you read the minutes above as presented, Carolyn and Rene are bumbling fools that don't know what they are doing, are confused about our rules, and have no idea about running the association's business, which is all true. But, if you take away the bullet points, read the motions by themselves, and then the outcome with the names of how board members voted, they come across as saviors, when they really are false prophets looking out for their own interests. That is why Carolyn is not happy with the minutes. She looks like the fool that she is. (Please review my email dated Tuesday, April 7, 2020.)" (emphasis in original)
¶ 11 The last of the three emails was sent on September 20, 2020, though the record does not include the date stamp or subject line. That email included the following:
"Dear Fellow Apartment Owners,
There were two 801 SPC Master Board meetings over as many months: the first was on August 11th and the second September 17th. Here is my brief take on those meetings. *** You may want to contact [the property manager] about past minutes since I will be adding a commentary*** about Carolyn Kay at the end and will be referring to those documents.
* * *
Commentary about Carolyn Kay***
Dictatorial Demands
Once again Carolyn Kay is spreading lies and fear here at 801 SPC. She is making demands that she has no right to. Rene and she can't just order the Master board to allow them to attend an Executive Session since they are part of the 801 SPC Apartment board. She often forgets that the Apartments have a majority on the seven member Master board with Bonnie, Meribeth, Jackie, and Jennifer. Carolyn and Rene are useless.
Senility
In her illegal email, Carolyn claimed that the 2017 special assessment related to the driveway ramp. It did not. She knows this. She sent out hundreds of annoying emails, with false facts, spreading lies about the special assessment. It only pertained to the apartment projects. Her confusion on this issue raises severe questions about her senility.
* * *
Financial Fearmongering
Never trust any financial document from Carolyn. She does not understand anything financial or accounting related. She discredited Bonnie, but Bonnie is a CPA. If you ever received anything from Carolyn with a dollar sign on it, consider it wrong and fearmongering. All you have to do is look at the January 2020 Apartment board election where she claimed, we were to have $20,000 per person special assessment if she was not elected back to the board. Because of this lie a unit owner lost the sale of her condo when she had hoped to move closer to her grandchildren.
Carolyn's illegal emails alarm me. Her mental abilities alarm me. She does not understand facts which alarms me. Her colluding alarms me. And her fearmongering is alarming, costly, and destructive. Do not listen to anything she says, publishes, or distributes." (emphasis in original)
¶ 12 Plaintiff alleged in her third amended complaint that: 1) "[defendant's] statements that [plaintiff] sent illegal emails and 'not to be trusted with money' [sic] are defamatory, as the statements prejudice [plaintiff] or impute a lack of ability in her profession as a board member and state she committed criminal or illegal acts;" 2) "[defendant's] statements that [plaintiff] sent out 'illegal' emails and illegally shared information are defamatory, as they tend to harm [plaintiff] and her personal, business, and professional reputation to the extent it lowers her in the eyes of the community;" 3) "[defendant's] statements that [plaintiff] engaged in illegal emails are defamatory, as they impute the commission of a crime." Plaintiff further alleged that defendant's statements are incapable of innocent construction, were published with knowledge that they were false or with reckless disregard for the truth or falsity of the statements, and were "phrased as factual assertions and not mere subjective opinions." Plaintiff alleged that as a result of defendant's statements, "[plaintiff] has suffered injuries, including mental suffering, personal humiliation, and impartment [sic] of personal and professional reputation and standing in the community."
¶ 13 Defendant filed a motion to strike and dismiss portions of plaintiff's third amended complaint pursuant to section 2-603 of the Code of Civil Procedure (735 ILCS 5/2-603 (West 2022)) and section 2-615. The motion to strike argued that the portion of the complaint addressing already-dismissed prior codefendants should be stricken, as it no longer represented plaintiff's current cause of action. In the motion to dismiss, defendant argued that even if his statements were classified as defamation per se, they were nonetheless not actionable because they were defendant's "subjective views, interpretations, theories, conjectures, or surmises" and therefore were protected speech under the First Amendment. U.S. Const. amend. I. As to the defamation per quod count, defendant argued that because plaintiff failed to plead special damages, her pleading as to that count was deficient and should be dismissed.
¶ 14 Plaintiff argued in response to defendant's motion to dismiss that defendant had already asserted his protected speech argument in his motion to dismiss the second amended complaint and that decision should be the law of the case under the doctrine of res judicata since the court denied that motion. Plaintiff went on to assert not merely that the court had found her pleading to be sufficient, but that the court had ruled in that previous order that the statements were defamation per se. Plaintiff also asserted in her response that her defamation per quod claim was sufficient to reasonably inform defendant of the nature of the claim and so it was not deficient.
¶ 15 In his reply to plaintiff's response to his motion to dismiss the third amended complaint, defendant explicitly denied that he was asserting an innocent construction defense and reasserted that his was a First Amendment defense. He further reiterated that the defamation per quod claim lacked any facts establishing special damages and was therefore deficient.
¶ 16 On June 10, 2022, the trial court issued the order that is the subject of this appeal. In that order, the trial court granted defendant's motion to dismiss, finding that: "[plaintiff] has not sufficiently set forth causes of action for defamation per se or per quod, as the alleged statements are either protected speech or not pled with the requisite specificity to state a cause of action under Illinois law." The trial court opined that each of the defamatory statements highlighted by the trial court did not rise to the standard of defamation per se, but its reasoning and finding was ultimately that all of the statements were protected speech. With regard to the defamation per quod claim, the trial court found that since plaintiff only sought damages for harm to her reputation, "plaintiff has therefore not pled actual damages as required to state a cause of action for defamation per quod."
¶ 17 Plaintiff filed a timely notice of appeal July 7, 2022, and this appeal follows.
¶ 18 ANALYSIS
¶ 19 Plaintiff argues that the trial court erred in granting defendant's motion to dismiss because her third amended complaint sufficiently stated a cause of action for defamation per se. In support of this argument, plaintiff asserted that defendant's various allegedly defamatory statements contained verifiable facts in language incapable of innocent construction and in a context that presented them as fact. We disagree and affirm the trial court's decision because the allegedly defamatory statements are all protected speech under the First Amendment.
¶ 20 Plaintiff further argues that the trial court erred in granting defendant's motion to dismiss her defamation per quod claim because it was adequately pled, and even if it was not, the trial court was obligated to allow plaintiff to replead the claim. We disagree and affirm the trial court's decision because plaintiff failed to plead special damages and the trial court was within its discretion to dismiss this claim with prejudice rather than offering a fifth attempt at pleading.
¶ 21 Plaintiff makes no arguments with regard to the section 2-603 motion to strike.
¶ 22 I. Standard of Review
¶ 23 "The preliminary construction of an allegedly defamatory statement is a question of law." Green v. Rogers, 234 Ill.2d 478, 492 (2009). Accordingly, it was appropriate for the trial court to engage in such an analysis at the motion to dismiss stage. Tuite v. Corbitt, 224 Ill.2d 490, 510 (2006) (finding such preliminary construction appropriate in the context of a section 2615 motion to dismiss).
¶ 24 "A section 2-615 motion tests the legal sufficiency of the complaint, asking whether the allegations of the complaint, construed in the light most favorable to the petitioner, state sufficient facts to establish a cause of action upon which relief may be granted." Dent v. Constellation NewEnergy, Inc., 2022 IL 126795, ¶ 25. "A complaint should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved that would entitle plaintiff to recovery." Id. The standard of review is de novo. Id. "De novo review means that we perform the same analysis that a trial judge would perform. In addition, we may affirm on any basis appearing in the record, whether or not the trial court relied on that basis and whether or not the trial court's reasoning was correct." Khan v. Fur Keeps Animal Rescue, Inc., 2021 IL App (1st) 182694, ¶ 25.
¶ 25 II. Defamation Per Se
¶ 26 "To state a claim for defamation, a plaintiff must allege facts showing that (1) the defendant made a false statement about the plaintiff, (2) the defendant made an unprivileged publication of that statement to a third party, and (3) the publication caused damages." Dent, 2022 IL 126795, ¶ 26. "A defamatory statement is a statement that harms a person's reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him." Solaia Technology, LLC v. Specialty Pub. Co., 221 Ill.2d 558, 579 (2006). "If a defamatory statement is actionable per se, the plaintiff need not plead or prove actual damage to her reputation to recover." Bryson v. News America Publications, Inc., 174 Ill.2d 77, 87 (1996). "Rather, statements that fall within these actionable per se categories are thought to be so obviously and materially harmful to the plaintiff that injury to her reputation may be presumed." Id.
"Illinois law recognizes five categories of statements which are considered actionable per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a loathsome communicable disease; (3) those imputing an inability to perform or want of integrity in the discharge of duties of office or employment; (4) those that prejudice a party, or impute lack of ability, in his or her trade, profession or business; and (5) those imputing adultery or fornication." Van Horne, 185 Ill.2d 299, 307 (1998).
¶ 27 Expressions of opinion, even ones that are defamatory per se, enjoy constitutional protection under the First Amendment. Solaia Technology, LLC, 221 Ill.2d at 581; U.S. Const. amend. I. However, merely couching a factual statement in the language of opinion does not earn it constitutional protection. Bryson, 174 Ill.2d at 99-100. "Thus, the test to determine whether a defamatory statement is constitutionally protected is a restrictive one. Under Milkovich, a statement is constitutionally protected under the first amendment only if it cannot be 'reasonably interpreted as stating actual facts.'" Id. at 100 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). "If it is clear that the writer is exploring 'a subjective view, an interpretation, a theory, conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable." Brennan v. Kadner, 351 Ill.App.3d 963, 969 (2004) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)). In determining whether a statement is opinion, "several considerations aid our analysis: whether the statement has a precise and readily understood meaning; whether the statement is verifiable; and whether the statement's literary or social context signals that it has factual content." Solaia Technology, LLC, 221 Ill.2d at 581.
¶ 28 Plaintiff argues that a number of statements made across a series of emails all constitute defamation per se. We will examine each email in turn. First, however, we will address plaintiff's argument that the trial court ruled that plaintiff had, in fact, stated a valid claim of defamation per se in her second amended complaint, and that that ruling should have controlled when the trial court considered the motion to dismiss the third amended complaint under the doctrine of res judicata. "Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action." Piagentini v. Ford Motor Co., 387 Ill.App.3d 887, 890 (2009). A repleaded complaint is not a subsequent action and so res judicata is not relevant to this circumstance. Further, an order that provides leave to replead is not a final order and so the doctrine of res judicata is not implicated by such an order. Smith v. Central Illinois Regional Airport, 207 Ill.2d 578, 587 (2003).
¶ 29 A. June 22, 2020 Email
¶ 30 Defendant's June 22, 2020 email is set out above in ¶ 9. It begins with an introductory sentence noting what meetings had recently taken place, followed by the sentence: "Here is my take on those meetings." This statement at the very beginning drapes the entire email in the garb of opinion. That slant is reiterated in the following sentence, in which defendant recommends another individual's report, stating that he "does a great job of objectively reporting on the Apartment Board meetings." The choice to call the alternative option objective reporting further reinforces to the reader that what they are reading is not fact-it is opinion. Nonetheless, we will review the allegedly defamatory statements contained in this email to see if they present actionable statements of verifiable fact.
¶ 31 In her third amended complaint, plaintiff first quoted the entirety of the section titled "Illegal Carolyn." She claims that the statements therein constitute defamation per se, specifically they "prejudice [plaintiff] or impute a lack of ability in her profession as a board member and state she committed criminal or illegal acts," that "they tend to harm [plaintiff] and her personal, business, and professional reputation to the extent that it lowers her in the eyes of the community," and they "impute the commission of a crime."
¶ 32 Defendant's statements do not rise to the level of imputing the commission of a crime. "To constitute defamation per se based on imputing the commission of a crime, the crime must be an indictable one, involving moral turpitude and punishable by death or imprisonment, not by a fine." Kapotas v. Better Government Ass'n, 2015 IL App (1st) 140534, ¶ 51. Here, plaintiff fails to even specify what crime defendant's statements impute. The context, which references failure to receive permission from the Master Board and the property manager, Matt, suggests that the meaning here is exactly what defendant argues: that by "illegal," defendant meant "in violation of bylaws." Plaintiff makes much of the fact that no bylaws have been entered into the record, but a reader need not know the exact content of the bylaws to understand from the context that what is being conveyed is a breach of bylaws, not the commission of a crime punishable by death or imprisonment. While condominium board disputes may be contentious and one might argue that some breaches of bylaws could involve moral turpitude, bylaw violations are not punishable by death or imprisonment.
¶ 33 In her complaint, plaintiff uses language that suggests that these statements could fall under "words that impute a person lacks ability or otherwise prejudices that person in her or his profession." Solaia Technology, LLC, 221 Ill.2d at 580. However, plaintiff is retired and her position as a board member is a volunteer position, so we cannot say it qualifies as a profession. The position does, however, come with a fiduciary responsibility and so it does constitute an "office" potentially within the meaning of the category of defamation per se covering statements "imputing an inability to perform or want of integrity in the discharge of duties of office or employment." Van Horne, 185 Ill.2d at 307. However, these comments fail to even fit under that category. There is no question that nothing about the statement imputes an inability on the plaintiff's part to perform the duties of her office, so all that would remain is a want of integrity. An assertion that someone violated a bylaw does not rise to the level of imputing a lack of integrity. People make mistakes. People do things that they believe to be within a set of rules that turn out to be violations of those rules. Merely alleging an infraction, even if vehemently and with hyperbolic rhetoric, does not impute a lack of integrity.
¶ 34 Also included in the June email is a subsection titled "Carolyn's Minute Issues." The statements in this section are clearly statements of opinion. Defendant's suggestion that plaintiff's motions could have "financially hurt" the association is grounded in no specific facts whatsoever and is purely speculative. Defendant's assertion that plaintiff "is not to be trusted when it comes to such monetary issues" casts doubt on plaintiff's ability in financial matters, but there is nothing in the statement to suggest it is based on specific facts. It is opinion and, as such, it is protected. Solaia Technology, LLC, 221 Ill.2d at 581. There is nothing in the June email that rises to the level of defamation per se.
¶ 35 B. July 24, 2020 Email
¶ 36 Defendant's July 24, 2020 email is set out above in ¶ 10. This email does not start with the same mention that it is defendant's "take" that started off the June email. Instead, defendant immediately complains about plaintiff in the introductory paragraph, which is highlighted as defamation per se in plaintiff's third amended complaint. None of these complaints are specific, much less based on specific facts. Certainly, defendant's comments come off as intentionally insulting and demeaning, but they fit none of the categories of defamation per se and therefore are not actionable. Van Horne, 185 Ill.2d at 307.
¶ 37 The second section highlighted in the July email receives considerable attention in plaintiff's brief. The specific wording of that second section and a careful reading thereof is key to our decision on that wording, so we will repeat it here:
"When you read the minutes above as presented, Carolyn and Rene are bumbling fools that don't know what they are doing, are confused about our rules, and have no idea about running the association's business, which is all true. But, if you take away the bullet points, read the motions by themselves, and then the outcome with the names of how board members voted, they come across as saviors, when they really are false prophets looking out for their own interests. That is why Carolyn is not happy with the minutes. Here, she looks like the fool that she is. (Please review my email dated Tuesday, April 7, 2020.)" (emphasis in original)
¶ 38 Plaintiff asserts that the words "which is all true" make clear that these statements are presented as fact, not as opinion. However, that reading disregards the context of the words. Defendant starts the paragraph by drawing attention to the appearance presented to a reader of the minutes and, by saying "which is all true," he marks his agreement that the appearance described reflects reality. He then contrasts this with how plaintiff appears when the motions are read alone and how that appearance does not reflect reality but is instead an illusion. This is a rhetorical device, not a signal to the reader that he has shifted from opinion to verifiable fact.
¶ 39 Read properly, the paragraph presents only opinion and is therefore protected speech, whether or not it rises to defamation per se. Defendant was describing his interpretation of the meeting minutes and plaintiff's motions. In doing so, he certainly insulted plaintiff by agreeing with the appearance that she was a fool who had no idea what she was doing, but that opinion was not stated in a context that suggested he was articulating a verifiable fact. Brennan, 351 Ill.App.3d at 969.
¶ 40 C. September 23, 2020 Email
¶ 41 Defendant's September 23, 2020 email is set out above in ¶ 11. The September email contains the same statement in the first paragraph as the June email, stating that the email contains his "take" on the meetings covered in the email. This once again applies a patina of opinion to the contents of the email. This is further reinforced by the fact that most of the allegedly defamatory statements in this email are included under the sub-header "Commentary about Carolyn Kay."
¶ 42 The first portion of commentary that plaintiff alleges to be defamatory is under the sub header "Dictatorial Demands." Most notably, in this section defendant asserts that plaintiff "is spreading lies and fear here at 801 SPC." While this phrase points to no specific facts, it is clearly in reference to the preceding section about an email allegedly sent by plaintiff to the residents of the property. That previous section described a statement made at the meeting regarding the email that said it was untrue, that it was sowing discord, and explaining what the speaker asserted to be the truth of the matters allegedly misstated by plaintiff. In this context, especially under the "commentary" sub-header, defendant's comments are clearly his subjective opinion on the preceding material. His statements in no way suggest special knowledge of any underlying facts that would suggest to the reader that he is stating a fact rather than providing commentary. Id.
¶ 43 Plaintiff also claims that defendant's comments about her possible senility are defamatory. This section, too, appears to be mere commentary on the preceding section regarding the board member's statement about plaintiff's alleged email. Defendant's statement that "[plaintiff's] confusion on this issue raises severe questions about her senility" makes no statement of verifiable fact whatsoever. One cannot verify whether questions have truly been raised, and to say questions are raised may generate a specter of the possibility that a person is senile, but it does not factually assert that she is senile.
¶ 44 The last portion of statements alleged by plaintiff to be defamatory are not under the greater header of "Commentary about Carolyn Kay" but are under the sub-header "Financial Fearmongering." The first portion of these comments speaks ill of plaintiff's understanding of financial matters, but none of these judgments are associated with particular facts in any way. They are clearly stated as opinion.
¶ 45 The second portion asserts that plaintiff lied during efforts to be reelected to the board and that lie caused a unit owner to lose the sale of her condo. In this instance, a specific fact is cited: that plaintiff disseminated a lie about what would result if she were not reelected. However, the lie itself is incapable of verification, as it was purely a speculative comment about a future occurrence. Furthermore, efforts to be reelected are not part of the duties of office. As such, even if defendant's assertion is taken as fact, it does not fall into any of the categories of defamation per se. More generally, claiming that someone disseminated an email containing a subjective statement that allegedly led to a negative occurrence does not fall into any of the defamation per se categories. If the assertion were that plaintiff had, in the course of her duties of office, intentionally caused that event, it could be arguable that such an assertion impugned plaintiff's integrity in executing the duties of her office. That is not the case here.
¶ 46 Plaintiff argues on appeal that describing as opinion the statement about an owner losing her apartment is plain error. As we find no error at all, we need not delve into plain error analysis.
¶ 47 The last portion of allegedly defamatory statements are textbook opinion. Defendant states that plaintiff's actions and qualities alarm him, that her actions are costly and destructive, and that readers should "not listen to anything she says, publishes, or distributes." Nothing could be more clearly a statement of subjective opinion. Defendant has a low opinion of plaintiff and wishes to share that opinion with those who will listen. While defendant's opinion may be offensive or bothersome to plaintiff, defendant's statements are still opinion and therefore not actionable. Solaia Technology, LLC, 221 Ill.2d at 581.
¶ 48 Accordingly, we affirm the trial court's decision to dismiss plaintiff's defamation per se claim because many of the allegedly defamatory statements do not constitute defamation per se, and all of them are constitutionally protected statements of opinion.
¶ 49 III. Defamation Per Quod
¶ 50 "If a defamatory statement does not fall within one of the limited categories of statements that are actionable per se, the plaintiff must plead and prove that she sustained actual damage of a pecuniary nature ('special damages') to recover." Bryson, 174 Ill.2d at 87-88. The trial court found that plaintiff failed to plead special damages and dismissed plaintiff's per quod claim accordingly. Plaintiff argues that "[w]hile actual damages are required they need not be pleaded with exacting specificity." Plaintiff cites no authority for this contention, but the accuracy of this assertion is irrelevant because plaintiff failed to plead special damages at all. Plaintiff claimed only that the statements "harm[ed] her reputation and cause[d] injury." Even in plaintiff's defamation per se claim, the only damages alleged were 1) "[the allegedly defamatory statements] tend to harm Carolyn and her personal, business, and professional reputation to the extent that it lowers her in the eyes of the community" and 2) "[a]s a direct and proximate result of [defendant's] defamatory statements, [plaintiff] has suffered injuries, including mental suffering, personal humiliation, and impartment [sic] of personal and professional reputation and standing in the community." Nowhere in her complaint does she allege "actual damage of a pecuniary nature" or anything that can be interpreted as special damages. See Id. As such, we agree with the trial court's decision to dismiss the per quod claim.
¶ 51 Plaintiff argues that the trial court was obligated to allow her to replead her defamation per quod claim because the third amended complaint was the first time she had pled it. We disagree.
¶ 52 "The trial court has discretion with respect to allowance of amendments to pleadings." Deasey v. City of Chicago, 412 Ill. 151, 156 (1952). "We will review only a manifest abuse of such discretion." Lowrey v. Malkowski, 20 Ill.2d 280, 285 (1960). In both Deasey and Lowrey, our supreme court assumed that refusal to allow repleading was nonprejudicial to the plaintiffs because plaintiffs failed to provide a proposed amendment. Id.; Deasey, 412 Ill. at 156. Here, too, we have no proposed amendment to review, as plaintiff never moved for leave to amend a fourth time. Further, even on appeal, plaintiff makes no suggestion as to how an opportunity to amend would cure the defective third amended complaint. Accordingly, we cannot find that the trial court abused its discretion, and we affirm its decision to dismiss the per quod count with prejudice.
¶ 53 CONCLUSION
¶ 54 For the foregoing reasons, we affirm the decision of the trial court.
¶ 55 Affirmed.