## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Jacobson v. Gim bel

, 2013 IL App (2d) 120478

Appellate Court Caption MARC J ACOBSON, Plaintiff-Appellant, v. SHERRY GI MBEL
, Def endant- Appellee

.

District & N o. Second District Docke t No. 2-12-0478

Filed Marc h 27, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff’s second amende d complaint for defa mation was proper ly dismiss ed, since the statements defe ndant made alleg ing that plaintiff “helpe d” defenda

nt’s husband commi t suicide were reasonably capa ble of an innocent interpre tation, and absent a fac tual context, the statements

wer e nonac tionable opinions.

Dec ision Under Review Appea l from the Circuit Court of L ake County
, No. 10-L -1069; the Hon. Marg are t J . Mullen, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Br ian R. Holman, Dennis H. Stefanowic z, and Tara Be t h Davis, all of Holman & Stefanowic z, L L C, of Chicag o, for a ppellant.

Rod Radjenovich, of J effre y S trang e & Associates, of Wil mette, for appellee

.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Z enoff

and Schostok conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Marc J acobson, appea ls from a circ uit court ord er d i s m i s s i n g h i s s econd amende d complaint alleg ing defa mation by defe ndant, Sherry Gimbel. On appea l, plaintiff
argues that the trial court err ed by : (1) dismiss ing his orig inal complaint; (2) dismiss ing his first amende d complaint, beca use cer tain alleg ati ons contained in his first amende d complaint related back to his orig inal complaint; and (3) dismiss ing h i s s econd amende d complaint, beca

use the trial court improperly deter mined that the alleg ed defa matory per se statements ar e ca

pable of an innoce nt construction. We aff irm.

¶ 2 I . BA CKGROUND ¶ 3 On Marc h 28, 2009, Stuart Gimbel, defe ndant’s husband, committed suicide. The L ake County corone r’s off

ice de termined that the cause of Stuart’s dea th was suffoc ation due to the inhalation of he lium. ¶ 4 On N o v e mb e r 1 9
, 2 0 1 0
, p lain ti f f f iled a complaint ag ainst defe ndant, alleg ing de famation
per se

. Pa ra gra p h s 1 throug h 11 alleg ed the following

. Plaintiff was a friend and business associate of Stuart’s. In the mid-aftern o o n o f the day Stuart committed suicide, plaintiff

rec eived a

textmessag e fr om Stuart reading : “I ’m g onna be taking my life and I want you to take car e of my family and notify them. *** You can come by way of the back door. I ’m leaving it open. Thanks for ever y thing. Bye.” After rec eiving Stuart’s text messag e, plaintiff immediately left his home and, as instructed,
enter ed Stuart’s home throug h an unlocked door. Plaintiff found Stuart in a chair with a plastic bag wra

pped around his head. Under the bag was a surg ical-ty pe mask with hoses that

wer e attache d to a helium tank. Plainti ff immediately pulled the bag off Stuart’s head and called 911. The L ake For est police depar tment and para

medics responde d to the 911 call. Stuart was pronounce d dead at L ake Fo rest Hospital that day

. The L ake County corone r’s office opined that Stuart committed suicide and that his death was cause d by suffoc ation due

-2-to the inhalation of helium.

¶ 5 The c omplaint also alleg ed the f ollowing: “12. Upon infor

mation and belief

, afte r [Stuart’s] death a

nd throug h Dec ember

24, 2009, the Def

endant ha s impli cate d the Plaintiff in her late husband’s de ath.
13. On informa t i o n and belief, a number of individuals have had numerous and

o n go ing conver sations with the Def endant relating to the Plaintiff coer cing [S tuart’ s ] death, includingRonald Fra g en, Carol F rag en and L enny Goldstein.
14. The Plaintiff ha s been made awa re that the Def

endant knowing ly
, intentionally
, and with actua l malice made false statements about the Plaintiff which implicate that he

coer ced [S tu ar t ] into killing himself. The defa matory statements include, but are not limit ed to the following : a. ‘A sk Marc J acobson a

bout Stuart’s death, he helped him.’ b. ‘Mar c Jacobson helped Stuart kill himself.’
c. ‘Ma rc Jacobson is why

Stuart is dead.’ d. ‘Mar c had a

hand in Stuart’s death.’
15. Wit h knowledg e of the falsity
, Def endant made said statements in pe rsonal and
t elephone conver sations with the Fr ag ens and Goldstein in such a way that wa s l o u d
enoug h for e veryone in the g ener al ar ea to he ar. 16. The intentionally false statements made by Def endant are considere d defa matory
per se b ecause the words acc use Plaintiff of coer cing Stuart’s suicide, which if true, would be a c riminal offe nse in the State of I llinois .” ¶ 6 On J anuar

y 7, 2011, defe ndant filed a combined motion to dismiss plaintiff’s complaint pursuant to sections 2-615, 2-619, and 2-619.1, of the Code of Civil Procedur e (Code) (735 I L CS 5/2-615, 2-619, 2-619.1 ( West 2010)). Def endant argued that, pursuant to section 2- 619 of the Code, the complaint should be dismiss ed beca use plaintiff signe d a g ener al rele ase in favor of defe ndant on November 16, 2009. Fur ther, defe ndant alleg ed that it was clea r that plaintiff and his counsel knew that the alleg ed defa matory statements wer e made befor e the rele ase was s igne d, based upon a n email plaintiff’s counsel sent to defe ndant’s counsel on November 10, 2009. Def

endant attache d the email to the motion to dismiss

. I t states, in part: “The re is one final matter that Marc had asked to addre ss with you. Appar ently
, sever al people in the community have been told by Sherry Gimbel that Marc either ‘a s s isted with’ or ‘pushe d Stuart to suicide’. These are not onl y false, but slande rous statements ab o u t m y client. I nstead of filing suit, he si mply would like Sherry to sign a stat em en t stating she will not make any such further rema rks, and apolog izes for any statements she has made to date.” Def endant al s o al l eg ed that plaintiff s igne d the release on November 18, 2009. Def endant filed the rele ase under seal. Def endant also argued that plaintiff’s claim was barr ed pursuant to se ction 13-201 of the Code (735 I L CS 5/ 13-201 (West 2010)) beca use it wa s filed more than one y ear afte r plaintiff knew that the alleg ed defa matory statements had been made. In addition, defe ndant argued that the complaint failed to state a cause of action (735 I L CS 5/2- 6 1 5 (West 2010)) beca

use the alleg ed statements do not constitute defa mation per se o r

-3-defa mation per quod

. ¶ 7 On March 1 5
, 2 0 1 1
, t h e t rial court g rante d defe ndant’s motion to dismiss

. The trial court’s or der state s: “[The] Court finds that Plaintiff ha d knowledg e of [t he] a lleg ed defa matory statements pri o r to November 18, 2009[,] and there fore any cause of action for defa matory statements made prior to November 18, 2009[,] are barr ed pursuant to the November 18, 2009[,] Release .” The trial c ourt g rante d plaintiff 28 day s to file a “f irst amended c omplaint.” ¶ 8 On April 18, 2011, plaintiff filed a fi rs t am en d ed complaint rea lleg ing para g raphs 1 throug h 11 from his orig inal complaint. Fur ther, par agr ap h 15 of plaintiff’s first amende d complaint alleg ed the same four defa matory statements alleg ed in the orig inal complaint, but it alleg ed that the statements “we re made to L enny Goldstein during the wee k of Dec ember 10, 2009[,] throug h Dec ember 17, 2009.” Paragraph 15 also alleg ed four additional defa matory statements defe ndant made to L enny Goldstein during the same period of time, namely : “e. ‘ Marc had thre e-million reasons why he helpe d Stuart kill hi mself.’
f. ‘Ma rc should neve r have helped Stuart kill himself.’

g

. ‘Mar c should have done more to preve nt Stuart’s death instead of helping him do it.’ h. ‘Stuart was not mecha nically inclined enough to kill himself. There was no way Stuart could have done this himself, Marc had to have helped him and I know he did.’ ”
In para graph 17, plaintiff alleg ed seven defa matory statements defe ndant made to Carol and Ronald Fr ag en from November 18, 2009, throug h Dec ember 24, 2009. The defa matory statements alleg ed in par ag raph 17 a re: “a. ‘ Ask Marc J acobson a bout Stuart’s death, he helped him.’ b. ‘Mar c helpe d Stuart kill hi mself.’
c. ‘Ma rc Jacobson is why

Stuart is dead.’ d. ‘Mar c had a

hand in Stuart’s death.’
e. ‘Ma rc he lped Stuart kill him self.’ f. ‘Stuart c ouldn’t phy sically kill him self without Marc ’s help.’

g

. ‘Mar c had motivations to he lp Stuart kill himself; he wanted to g et his money .’ ” ¶ 9 On May 18, 2011, defe ndant filed a combined motion to dismiss plaintiff’s first amende d complaint pursuant to sections 2-615, 2-619 and 2-619.1 of the Code. Def endant argued that the newly alleg ed defa

matory statements must be dismiss ed pursuant to section 2-619 of the Code beca

use they wer e time-barr ed pursuant to section 13-201 of the Code. Def endant also
argued that plaintiff’s second amende d complaint must be dismiss ed pursuant to section 2- 615 of the Code beca

use the alleg ed defa

matory statements do not constitute defa mation per

se

. Def endant argued that the alleg ed statements: (1) do not fairly impute the commission of

a crime; (2) are rea sonably capa ble of an innocent cons t ru ct i o n ; and (3) do not impute a crime involvingmoral turpitude.

-4-¶ 10 On J uly 26, 2011, the trial court g rante d defe ndant’s motion to dismiss
, in part. The trial

court dismiss ed any cause of action based on the alleg ed d e f a ma tor y statements in para g raphs 15(e)
, (f)
, (g ), and (h) a n d 1 7 (e ), (f ), and (g ). The trial court struck the allege d defa matory statements in para graphs 15(c) and (d) and 17(c) and (d) and allowed the rema ining alleg ed defa matory statements , i n p ar agraphs 15(a) and (b) and 17(a) and (b), to stand. Def endant
was g iven leave to answer or otherw ise plead a s to these re maining statements. ¶ 11 On September 1, 2011, defe ndant filed a motion to reconsider the trial court’s J uly 26, 2011, order
, arg

uing that the trial court err ed by allowing the rema ining statements to stand. Def endant arg

ued that plaintiff’s alleg ations “ar e fata lly defe ctive in that he failed to plea d
context of the entire conver sations containing the alleg edly defa matory statements.” Def endant argued that, without such context, the trial court could not deter mine whether the statements were susceptible to an in n o cent construction or wer e constitutionally protec ted opinions. ¶ 12 On October 25, 2011, the trial court g rante d defe ndant’s motion to rec onsider, dismiss ed plai n t i ff’s fi rst amende d complaint in its entirety
, and g ave plaintiff leave to file a second amende d complaint. ¶ 13 On Dec ember 15, 20 1 1
, p l ai n t i ff fi l ed h i s s ec o n d am en ded complaint, alleg ing defa mation per se and rea lleg ing para g raphs 1 throug h 11 from his first amende d complaint. Plaintiff’s second a

mended c omplaint also alleg ed the f ollowing: “12. Upon information and belief , afte r [Stuart’s] death a

nd throug h Dec ember

24, 2009, the Def

endant has implicated the Plaintiff in her late husband’s death. The Plaintiff

was made awa

re of these defa

matory statements by Ronald Fr ag en and L enny Goldstein.
13. On information and belief, a number of individuals, including, but not limit ed to, Ronald Fr ag en and L enny Goldstein, had numerous and ong oing conver sations with the Def endant rela

ting to the Plaintiff’s inducement, coer cion, and/or participation in the phy sical ac t by

which [Stuart] committed suicide.
14. The P laintiff has been made aware by Ronald Fr ag en, C ar o l Fr ag en and L enny Goldstein that the Def

endant knowing ly
, intentionally
, and with actua l malice made false
statem en t s about the Plaintiff which implicate the Plaintiff’s involvement and/or participation in [ Stuart’s] death by suicide.
15. The Def

endant’ s defa

matory statements that wer e made to L enny Goldstein during the wee k of Dec ember 10, 2009, throug h Dec ember 17, 2009, include but are not limit ed to the following : a. ‘A sk Marc J acobson a

bout Stuart’s death, he helped him.’ b. ‘Mar c Jacobson helped Stuart kill himself.’
16. The a fore mentioned statements we re ma de to L enny Goldstein during persona l

conver sations with the Def endant while Def

endant was in Palm Springs, California. Venue s for said conver sations and defa matory statements include, but are not limit ed to: dinner at Sweet Sue’s Restaura nt and while driving Def endant to the ai rp ort in California.
17. The context of the conver sations in which the defa matory statements made by the

-5-Def endant to L enny Goldstein wer e made during the Def endant’ s persona l conver sations surrounding the fac ts, cause , police investigation, and fault of [S tuart’s] death by suicide.
18. The Def

endant’ s defa

matory sta t em ents that wer e made to Carol and Ronald Fr ag en during the time period of November 1 8
, 2 0 09 throug h Dec ember 24, 2009, include, but ar e not limited to the following:
a. ‘A sk Marc J acobson a

bout Stuart’s death, he helped him.’ b. ‘Mar c Jacobson helped Stuart kill himself.’
19. The Def

endant made the afor ementioned statements to Carol and Ronald Fr ag en

on at least five separ ate occa sions during the time period of November 18, 2009 throug h Dec ember 24, 2009. The persona l conver sations with the Def endant took place on the phone and in per son while Def endant wa s in Ca lifornia. Venue s for said conver sations and defa matory statem en t s i n clude, but are not limit ed to: the Fr ag en’s [ sic ] home located in California and the Defenda nt’s California residence located in Palm Dese rt, California.
20. The context of the conver sations in which the defa matory statements made by the Def endant to Carol and Ronald Fr ag en wer e mad e during the Def endant’ s persona l

conver sation s s urrounding the facts, cause , police investi g ation, and fault of [ Stuart’s] death by suicide.” ¶ 14 On Fe bruar

y 1, 2012, defe ndant fi l ed a m o t i o n to dismiss plaintiff’s second a mended complaint pursuant to section 2-615 of the Code, arguing that plaintiff’s second amende d

com p l aint was defic ient for lacking context such that the trial court could not apply the innocent construction rule. Defendant argued that plaintiff failed to “set forth the entire

conver sations in their entirety ” and, thus, failed to p l ead defa mation per se with sufficie nt

“ p r ecision and particula

rity .” Def endant arg

ued that there fore the second amende d c o mp lain t failed to state a

claim for de fama

tion per se

. ¶ 15 On April 3, 2012, the trial court g rante d defe ndant’s motion to dismiss plaintiff’s sec ond amende d complaint. The trial court’s order states, in part: “The Court finds that the alleg ed defa matory stat ements, including the use of the word ‘helpe d,’ is capa ble of innocent construction.” ¶ 16 On April 26, 2012, plaintiff filed his notice of appe al.

¶ 17 I I . ANALYSI S ¶ 18 Plaintiff first argues that the trial court err ed b y d i s m i s s i n g h is orig inal complaint. Def endant argu es that plaintiff is barr ed from appea ling the trial court’s dismiss al of his orig inal complaint, beca

use plaintiff failed to rea lleg e, ref er to, incorporate, or prese rve the alleg ed defa

matory statements made prior to the November re l ea se. We agree with defe ndant. ¶ 19 I t is a well-settled rule that a party who files amende d pleading s forf eits any objection to the trial court’s ruling s on any former complaints. Bonhomme v. St. Jame s , 2012 I L 112393, ¶ 23. This court ha s stated: “[F]ollowing entry of an ord er dismiss ing a complaint, if a party files an amende d

-6-complaint that is complete in itself and does not ref er to or adopt the prior pleading
, the party has [forfeited] any challeng e to the order dismiss ing the prior complaint.” Gaylor v. C ampion, Curran, Rausch, Gummerson & Dunlop, P.C. , 2012 I LApp (2d) 110718, ¶ 35 (citing Foxc roft Townhome Owners Ass’n v. Hoffman Rosner Corp.
, 96 I ll. 2d 150, 154-55 (1983) ).
T o av o i d forf

eiture and prese rve claims for appellate revie w, a party can: (1) stand on t h e dismiss ed counts, take a voluntary dismiss al of any rema ining counts, and argue the matter at the appellate level; (2) file an amende d pleading that rea lleg es, incorporates by ref ere nce,

or re fer s to the di smissed counts; or (3) perf ect a n appea l from the dismissal order pr ior to filing a n amende d pleadingthat does not ref er to or a dopt the dismiss ed counts. Id. ¶ 36. ¶ 20 Plaintiff’s first and second amende d one-c ount complaints did not realleg e, re fer to, or adopt the previously dismiss ed orig inal one-c ount complaint that the trial court dismiss ed as barr ed based on the November rele ase. Plaintiff also did not stand on the dismiss ed orig inal complaint or perfec t an appeal from the di smissa l o rd er p ri or t o filing his first and second

one-c ount amende d complaints. There fore
, plaintiff forf eited any challeng e t o the order dismiss ing his orig inal complaint. See id. ¶ 38. Plaintiff in eff ect abandone d and withdre w his origina l complaint. See id. ¶ 21 Next, plaintiff argues that the trial court err ed by dismiss ing his first amende d complaint, beca u s e cer tain alleg ations contained in his first amende d complaint related back to his orig inal complaint. Howeve r, plaintiff’s second amende d complaint rea lleg ed only the four alleg ed defa

matory stat em en t s al leg ed in para g raphs 15(a) and (b) and 17 (a) and (b) of plaintiff’s first amende d complaint. Plaintiff’s second amende d complaint did not rea lleg e, ref er to, or adopt the rema ining a lleg ed def amatory statements alleg ed in his first amende d complaint. P l aint iff also did not stand on his first amende d complaint or perfec t an appeal from the dismissal order prior to filing his sec ond amende d complaint. There fore
, plaintiff forf eited any ch al l en g e to the order di smissi ng his first amende d complaint as i t related t o the statements that he f

ailed to re alleg e in his second amended c omplaint. See id. ¶ 22 Plaintiff argues that he did not forf eit his rig ht to challeng e the trial court’s dismiss al of his first amende d complaint, beca use his second amende d complaint rea lleg ed the dismiss ed defa mation per se count, contained the same operative fac ts, and arose fr o m t he same incidents as his orig inal complaint and the first amende d complaint. Plaintiff err oneously believes that all he had to do was to restate the words “def amation per se ” to avoid forf eiture of the alleg ations of the specific defa matory statements in his dismiss ed complaints. Plaintiff fails to unde rstand that a complaint notifies a defe ndant of the alleg ed cause s of action and of the theories of rec overy

. B o n h o mme , 2012 I L 112393, ¶ 28. Thus, when a complaint is amende d without ref

ere nce to the ear lier fac tual alleg ations, it is expected that these fac tual all ega t i ons are no longe r at issue. Foxc roft Townhome Owners Ass’n
, 96 I ll. 2d at 155. Be cause plaintiff failed to rea lleg e eac h of the fac tual alleg ations he now raises, those fac tual alleg ations are not at issue on appea l. See id

. ¶ 23 Plaintiff also argues that t h e t ri al co u rt er re d b y d i smissi ng his second a mended complaint, beca

use the trial court improperly deter mined that the alleg ed defa matory per se statements wer e ca

pable of an innoce nt construction.

-7-¶ 24 A section 2-615 motion to dismiss tests the leg al sufficie ncy of the complaint. Jacobse n

v. King
, 2012 I L App (2d) 110721, ¶ 11. On revie w, the question is whether the alleg ations of the complaint, when c onstrued in the lig ht most favorable to the plaintiff, and takingall well-plea ded fac ts and all rea sonable infere nces that may be drawn from those fac ts as true,

are sufficie nt to establish a cause of action upon which relief m ay be g rante d. Napleton v. Village of Hinsdale
, 229 I ll. 2d 296, 305 (2008). The plaintiff must alleg e fac ts, not mere conclusions, t o establish his claim as a viable cause of action. Vernon v. S ch uster , 179 I ll. 2d 338, 344 (1997). A cause of action should not be dismiss ed pursuant t o s ec t ion 2-615 unless no set of fac ts can be proved that would entitle the plaintiff to rec over. Isebe rg v. Gross
, 227 I ll. 2d 78, 86 (2007). We revie w de novo the trial court’s dismiss al of plaintiff’s complaint. See Vitro v. Mihelcic , 209 I ll. 2d 76, 81 (2004). ¶ 25 “A defa

matory statement is a statement that harms a person’ s reputation to the extent it lowers the person in the eyes of the community or deter s the community from as sociating with her or him.” Gree n v. Rogers
, 234 I ll. 2d 478, 491 (2 0 0 9 ). T h ere are two ty pes of defa matory statements: defa

mation per se and defa

mation per quod

. Tunca v. Painter
, 2012 I L App (1st) 093384, ¶ 40. In an action for defa mation per quod
, the plaintiff must plead and
prove a ctual dama g es; wher eas in a n action for

defa mation per se , damag es are pre sumed. Impe rial Apparel, Ltd. v. Cosmo’s De signer Direct, Inc

. , 227 I ll. 2d 381, 390 (2008). ¶ 26 “A statement is defa matory per se if its harm is obvious and appar ent on its fac e.” Gree n , 234 I ll. 2d at 4 91. I llinois rec og nizes the following five cate g ories of statements as defa mation per se : (1) words that impute the commission of a crime; (2) words that impute an infe ction with a loathsome communica ble disease ; (3) wor ds that impute an inability to perf orm or lack o f i nteg rity in perf orming employ

ment duties; (4) words that prejudice a party or impute a lack of abilit y in a person’ s profe ssion; and (5) words that impute that a person ha s eng ag ed in adulter y or for nication. Id. at 491-92. ¶ 27 To constitute defa mation per se based on imputing the commission of a crime, the cr ime

m ust be an indictable one, involving moral turpitude and punishable by d ea t h o r imprisonment rathe r than by fine. Moore v. People for the Ethical T r eatment of Animals, Inc.
, 402 I ll. App. 3d 62, 6 9 (2 0 1 0 ). The words do not need to meet the technica l require ments nece ssary for an indictment. Id. Howeve r, the words must fairly impute the commission of a crime. Id. ¶ 28 The innocent construction rule applies in deter mining whether a statement alleg ed to be defa matory per se imputes the commission of a crime. Id. at 70. To deter mine whether a statement is capa

ble of an innocent cons t ru ct i o n , a court must consider the statement in
context and “g ive the words of the statement, and any implications arising from them, their
natura l and obvious meaning .” Gree n , 234 I ll. 2d at 499. I f the statement can be rea sonably innocently

interpre ted, it cannot be a ctionable per se

. Solaia Tec hnology, LLC v. Specialty P ublishing Co.
, 221 I ll. 2d 558, 579 (2006). “ ‘Ther e is no balanc ing of rea son ab l e constructions ***.’ ” Gree n , 234 I ll. 2d at 500 (quoting Mittelman v. W itous
, 135 I ll. 2d 220, 232 (1989))

. In other words, if a statement is rea sonably capa ble of a nond ef

am at o ry interpre tation, give n its contex t, it mus t be so interpre ted. Gree n , 234 I ll. 2d at 500. ¶ 29 A per son commits inducement to commit sui cide whe n he or she , in pertinent par t:

-8-“(2) Wit h knowledg e that another person intends to commi t or attempts to commit suicide, intentionally (i) offe rs and provides the phy sical means by which another person

comm i t s o r at tempts to commit suicide, or (ii) participates in a phy sical act by which another person commits or attempts to commit suicide.” 720 I L CS 5/12-34.5(a) (2) (West 2010). ¶ 30 The basis of plaintiff’s defa mation per se claim is the statements, “Ask Marc J acobson about Stuart’s death, he helped him,” and “Mar c J acobson helped Stuart kill himself.” Plaintiff argues that the statements alleg ed are not capa ble of an i n n o ce n t construction beca use the natura l and obvious meaning of the word “help” is to assist with. Plaintiff supports his argument with the following definitions of “help” : “to g ive assistance or support to” and “to further the advancement of.” Merr iam-Webster Online Dictionary
, http:// www.mer

riam-we bster.com/dictionar y /help (last visited Fe b. 2, 2012). Whil e plaintiff’s interpre tation might be rea sonable, we must deter mine whether the statements can also be rea sonably interpre ted innocently

. Solaia Technology, LLC
, 221 I ll. 2d at 579. I f so, the statements ar e not ac tionable per se

. Id. ¶ 31 T h e s t at em en t s d ef en d an t alleg edly made are rea sonably capa ble of an i n n o ce n t construction. An innocent construction or nondefa matory int erpretation is consistent with plaintiff’s explanation of his behavior befor e and afte r Stuart’s suicide. Plaintiff alleg ed that, just prior to Stuart’s suicide , Stuart sent plaintiff a text messag e stating : “I ’m g onna be taking my life and I want you to take car e of my family and notify them. *** You can come by way of the back door. I ’m leaving it open. Thanks for ever y thing. Bye.” Plaintiff also alleg ed the following . After plaintiff re ceive d Stuart’s textmessag e, plaintiff immediately left home and, “as instructed,” enter ed Stuart’s home throug h an unlocked door. Plaintiff f ound Stuart in a cha ir with a plastic bag wra pped around his he ad. Under the bag

was a surg ical-ty

pe mask with hoses that wer e at t ac h ed t o a helium tank. Plaintiff immediately

pulled the bagoff Stuart’s he ad and c alled 911. ¶ 32 The statements that plaintiff “he l p ed S t u ar t k i l l h i m s elf” and “helpe d him” can be

rea sonably interpre ted to mean that plaintiff fai l ed t o ca l l 911 or the police as soon as he

rec eived the messag e, allowing Stuart to complete the deed. Interpre ted as such, these
statements do not fairly impute the commission of a crime. There fore
, the alleg ed defa matory statements are rea sonabl y capa ble of being interpre ted in a nondefa matory manner

. Ac cording ly
, we must interpre t them innocently

. Gree n , 234 I ll. 2d at 500. Thus, the tri al court prope rly

dismiss ed plaintiff’ s second amended c omplaint. ¶ 33 Def

endant also argues that the alleg ed defa matory statements are expressions of opinion and, there fore
, are not actionable

. Plaintiff argues that defe ndant has forf eited this argument beca use she failed to raise it in her motion to dismiss plaintiff’s second amende d complaint. ¶ 34 Whil e an appellant who fails to raise an issue in the trial court fo rf ei t s t hat issue, an appellee may raise an issue on revie w that was not prese n t ed to the trial court in order to sustain the j u d gm ent, as long as the fac tual basis for the issue was befor e the trial court. Olson v. W

illiams All Seasons Co.
, 2012 I L App (2d) 110818, ¶ 41. In this c ase, the rec ord contains a fac tual basis for defe ndant’s arg ument; the fac ts nece ssary to revie w this issue are

-9-contained in plaintiff’ s second amended c omplaint. Thus, we will addre ss the issue.

¶ 35 A statement that is otherw ise defa matory is pr otected under the first amendment, if the
statem en t i s an expression of the speake r’s opinion. Tunca v. Painter
, 2012 I L App (1st) 093384, ¶ 43. Thu s , “the first amendment prohibits defa mation actions based on loose, figurative languag e that n o rea sonable person would believe prese nted fac ts.” Impe rial Apparel, Ltd.
, 227 I ll. 2d at 397-98. To deter mine whether an alleg ed defa matory statement is protec ted under the first amendment, or whether it can be rea sonably interpre ted as stating
actua l fac ts, the emphasis is on whether it contains an objectively verifia ble asser tion. Schivare lli v. CBS, Inc.
, 333 I ll. App. 3d 755, 760 (2002) (citing Milkovic h v. Lorain Journal Co.
, 497 U.S. 1, 19 (1990)). Whether a stateme nt is of an opinion or a fa ct is a question of law. Moriarty v. Gree ne , 315 I ll. App. 3d 225, 2 3 4 (2000). Gene rally
, wher e an alleg ed defa matory statement lacks a specific fac tual context, the statement is not objectively verifia ble and is a nonactionabl e o pinion. See, e.g. , Schivare lli
, 333 I ll. App. 3d at 762; Dubinsky v . United Airlines Master Exe cutive Counc il , 303 I ll. App. 3d 317, 330 (1999). ¶ 36 For

example, in Schivare lli
, a television commer cial depic ted an investig ative re porter saying to the plaintiff, “ ‘L et’s sum this up for a second, the evidenc e seems to indicate that
you’re cheating the c ity .’ ” Schivare lli , 333 I ll. App. 3d at 758. The ad did not pr ovide any further detail, althoug h the context of the ad “trumpet[ed t h e re p o rt er ’s] ability to dig up hidden corruption, abuse, and unethica l or illeg al conduc t.” Id. at 760. The appellate court held that the statement was not objectively verifia ble beca use it was not made in any specific fac tual context. Id. at 762. The appellate court rea soned that the repor ter did not explain the evidenc e, state how the plaintiff was cheating or why she thought the plaintiff was cheating,

or even explain what she meant by “che ating .” Id. There fo re , the statement was not actionable

. Id. ¶ 37 Simi larly
, in Dubins ky
, t h e p l ai n t i ffs alleg ed that the defe ndants falsely acc used the plaintiffs of criminal conduct related to the employ ee purcha se of United Airlines. Dubinsky
, 303 I ll. App. 3d at 322. Specifica lly
, the plaintiff alleg ed that the d ef en d an t Richards defa med him by calling him a “cr ook” in front o f 3 0 t o 40 pilots and their wives. Id. The appellate cour t s tated, “[o] ne cannot rely on an assumption that those who hear d the
statement wer e completely apprised of all the developments in the *** controve rsy so as to

cre ate a definitive fac tual context for the use of the word ‘cr ook.’ ” Id. at 329-30. The court conclude d that “this g ener al statement, in the absenc e of fac tual context, is a s t at ement of opinion, not objectively

verifia ble and de void of fac tual content.” Id. at 330. ¶ 38 In the prese nt case , defe ndant’s alleg ed statements, “[a]sk Marc J acobson about Stuart’s death, h e helped him,” and “Marc J acobson helped S tuart ki ll himself,” are not actionable beca use they wer e not made in any s p ec i fi c fa ctual context. Plaintiff did not alleg e that defe ndant explained h o w p l ai n tiff helped Stuart, why defe ndant thought plaintiff helped Stuart, what evidenc e defe ndant had that plaintiff helped Stuart, or eve n wh at defe ndant
meant by the term “help.” In the absenc e o f an y fa ct ual context, defe ndant’s alleg ed
statements wer e not ac tionable. See Schivare lli , 333 I ll. App. 3d at 762.

-10-¶ 39 I I I . CONCLUSI ON

¶ 40 For the rea sons stated, we aff irm the trial court’s dismiss al of plaintiff’s second a mended complaint.

¶ 41 Affir

med.

-11-