## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Sim m ons v. Cam

pion , 2013 IL App (3d) 120562

Appellate Court Caption GRE G SI MMONS, Plaintiff-Appellant, v. MI CHAEL A. CAMPI ON,

a n d CAMP I ON
, B A RRO W A N D A SS O CI

A T E S, D e f

en d a n ts

- A p p e ll e e s

.

District & N o. Third District Docke t No. 3-12-0562

Rule 23 Order

filed Motion to publ ish allowed Opinion filed May 8, 2013

J une 25, 2013
J une 25, 2013

Held (Note : This s

yl lab us

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

par ed by the Repo rt e r 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

. ) Policeman’s ac tions for damag es under section 15 of the Menta l Health and Deve lopmental Disabilities Conf identiality Act, tortious interfe renc e with a contra ctual or business relationship and fr audulent and ne g lige nt misrepre sentation arising from the disclosure of a psycholog ical evaluation order ed by the police chief wer e properly dismiss ed, since the Act g ave the evaluator the discretion to disclose the evaluation based on his belief that plaintiff posed a threa t of inflicting injury or disease on himself or another, the evaluator’s c onduct was justified and privileg ed fo r p u rposes of the tortious interfe renc e claim, and for purposes of the fra udulent and neg lige nt misrepre sentation claims, the evaluator g ave an op i n i o n t h at plaintiff was not fit for duty
, not a statement of fac t, and there was no indication plaintiff relied on that opinion, but even if he did, the re liance w as not rea sonable.

Dec ision Under Review Appea l from th e Circuit Court of Tazewe ll County
, No. 08-L -46; the Hon. Scott A. Shore and the Hon. Stuart P. Borde n, J udg es, pre siding.J udg ment Affir med.

Counsel on Appea l Shane M. Voyles (argued), of Policemen’s Be n e v o lent L abor Commi ttee, of Spring field, for

appellant.

Robert Marc Chemers, Scott L

. Ander son, Phili p G. Br andt (argued), and Stephen C. Veltman, all of Pretzel & Stouffer, Chtrd., of Chicag o , for appellee s.

Panel J USTI CE CARTER delivered the judgment of the c ourt, with opinion.
J ustices Ly

tton and O’B rien c oncurr ed in the judgment and opinion.

OP INION

¶ 1 In 2008, the plaintiff, Gre g Simm ons, filed a civil complaint ag ainst the defe ndants, Dr. Michae l Campion and Campion, Ba rrow & Associates, in reg ard to a psycholog ical evaluation that Dr. Campion perf ormed on the plaintiff in 2006. In J anuar y 2012, the plaintiff

was allowed to file a third amende d complaint. The defe ndants fi l ed a motion to dismiss
, which the circ uit court grante d afte r a hearing. On appea l, the plaintiff argues that the court

err ed when it dismiss ed the complaint pursuant to section 2-615 of th e C o d e o f Civil Procedur e (the Code) (735 I L CS 5/2-615 (West 2010)) and section 2-619 of the Code (735 I L CS 5/ 2-619 (West 2010)). We a ffirm.

¶ 2 FACTS ¶ 3 The city of Pekin hired the plaintiff as a police office r in 1995. In Marc h 2006, the Pekin police chief order ed the plaintiff to submit to a p sycholog ical evaluation. Def endant Dr. Michae l Campion, a psycholog ist, perf ormed the evaluation at hi s p lace of business on Marc h 23, 2006, wher e the plaintiff signe d a form stating that he understood the proce ss and that contained the followingpara graph:
“It is important to reme mber that the testing experience I S NOT confide ntial in that, in m o s t ca s es, an ag ency , phy sician, insurance company , or attorney has reque sted a repor t. You should have been informed of this prior to your participation in this proce ss. Howeve r, if you have not been informed, please fee l fre e to di s cu s s t h i s with Dr. Campion or a staff member. You will be asked to sign a Release of Information that will designate to whom the r eport will be sent.”(Emphasis in orig inal.) The ne x t da

y , the police depar

tment inf ormed the plaintiff that he had be en found unf it for duty and that he w as prohibited fr om enteringthe police department.

-2-¶ 4 On Marc h 28, 2006, the plaintiff signe d a form that stated he agree d the defe ndants could

rele ase the results of the psycholog ical evaluation to th e p o l ice chief or his designee. The form also stated that the plain t i ff re t ai n ed his right to confide ntiality and other rights available to him under the Mental Hea lt h a n d D e v e lop me ntal Disabilities Confidentiality Act (the Act) (740 I L CS 110/1 et seq. (West 2006)). On Marc h 30, 2006, t h e p l ai n t i ff signe d another form in which he agree d to allow the defe ndants to release the results of the
psycholog ical eva luation to the police chief and the Pekin police department. ¶ 5 Dr. Campion’s written repor t was issued in mid-April 2006. In that repor t, Dr. Campion opined that the plaintiff suffe red from a persona lity disorder, which included narc issist ic,
ag gressive, and para

noid features. Dr. Campion rec ommended that the plaintiff underg o biwee kly thera

py with a licensed psycholog ist for a period of 12 months and that he submit to

a psychiatric evaluation. In early May 2006, the Pekin police depar tment order ed the plaintiff
to comply with Dr. Campion’s rec ommendations and to have his thera pist repor t his progress to Dr. Campion. ¶ 6 The p l ai n t i ff obtained three independe nt psycholog ical evalua tions betwee n May

and November 2 0 0 6 ; all three psycholog ists disagree d with Dr. Campion’s diagnoses and

rec ommendations. ¶ 7 Ba sed on Dr. Campion’s findingthat the plaintiff wa s not fit f or duty
, the plaintiff was

n o t al l owed to work for the Pekin police depar tment betwee n late Marc h 2006 an d September 2008. ¶ 8 The plaintiff initiated the instant case in 2008 when he filed a civil complaint ag ainst the defe ndants in which he alleg ed profe ssional neg lige nce in connec tion with the Marc h 2006
psycholog ical evaluation. The plain t iff was allowed to amend the complaint twice. The second amende d complaint listed four cause s of action: (1) profe ssional neg lige nce; (2) fra udulent misrepre sentation; (3) neg lige nt misrepre sentation; and (4) an action for damag es under se ction 15 of the Ac t (740 I L CS 110/ 15 (West 2006)). ¶ 9 On Dec ember 7, 2011, the circ uit court held a heari n g o n t h e defe ndants’ combined motion for summary judgme nt and to dismiss

. After the hearing, the court grante d summary judgme nt in favor of the defe n d an t s o n count I and grante d dismiss al without prejudice pursuant to section 2-615 of the Code on counts I I
, I I I
, and IV. The court also g ave the plaintiff time to file an amended c omplaint. ¶ 10 On J anuar

y 4, 2012, the plaintiff filed a third amende d complaint in which he listed f our

cause s of action: (1) an action for damag es under section 15 of the Act; (2 ) t o rt i o u s interfe renc e with a contr a c tua l o r b u s in e s s r e lationship; (3) fra udulent misrepre sentation; and (4) neg lige nt misrepre sentation. In the first cause of action, the plaintif f al l ege d that the defe ndants provided “mental health service s” to the plaintiff as define d by the Act and then disclosed confide ntial mental health information in violation of the Act. In the second cause of action, the plaintiff alleg ed that the defe ndants’ disclosures interfe red with the plaintiff’s
contra ctual employ

ment agree ment with the P ekin pol ice department. I n the third ca

use of action, the plaintiff alleg ed that the defe ndants misrepre sented the plaintiff’s mental health
to the Pekin police depar

tment or at least commented on the plaintiff’s mental health without knowing whether those comments wer e true. The pla i n t i ff’s fourth cause of action was an

-3-alternative theory to the third cause of action an d al leg ed that the defe ndants neg lige ntly

misrepre sented the pla intiff’s mental hea lth to the Pekin poli ce department. ¶ 11 Am o n g the fac ts alleg ed in the complaint wer e sever al s t at em en t s re gar d i n g Dr

. Campion’s opinion of the dang er posed by the plaintiff: (1) “De fenda nts told administrators
at the Pekin Police Depa

rtment that it ‘ should take usual and customary proce dures to de al with the possibili ty of ag gressive acting out behavior by Of fi ce r S immons’ ” (empha sis omitted); (2) “De fenda

nts told administrators at the Pekin Police Depa rtment that ‘Ther e are

some indications from his testing that [the plaintiff’s] rese ntment may mount into periods of manic excitement or into acts of brutal hostili ty ’ ”; (3) the plaintiff “may exhibi t a rea diness
to attack those he distrusts”; (4) the plaintiff “ ‘tries to outwit others b y co n t ro l l i ng and exploi ting them befor e they can control and ex p l o it him’ ”; and (5) “De fenda nt labeled Plaintiff with the DSM-IV Ax i s I I d iagnosis of 301.9, ‘Persona lity Disorder NOS (With Nar cissist, Aggressive, a

nd Paranoid Persona lity

Fe ature s).’ ” ¶ 12 In response to the plaintiff’s third amende d complaint, the defe ndants filed a combined motion to dismiss pursuant to se ctions 2-615 and 2-619 of the Code (735 I L CS 5/2-615, 2- 619 (West 20 1 0 ))

. Among the exhibi ts attache d to the motion was an aff idavit from Dr. Campion in which he stated that the disclosure of the fitness-for -duty evalua tion was made
not only wi th the plaintiff’s consent, but also “in g ood faith to otherwise protec t another
person ag ainst a clea

r, imminent risk of serious phy sical or mental injury or disease or death being inflicted by the rec ipient on another .” Also included in the exhibi ts was the plaintiff’s deposition testimony in which the plaintiff stated, inter alia , that he knew he was g oing to

see Dr. Campion f

or a fitness-f

or-duty evaluation after be ing or dere d to do so by the chief

. ¶ 13 On J une 18, 2012, the circ uit court issued a written order i n wh i ch i t gra n t ed t h e defe ndants’ motion t o d i smiss the third amende d complaint. In so ruling
, the court found, inter alia
, that the plaintiff could not have rea sonably expected nor relied upon any confide ntiality claim with reg ard to the evaluation. The court also found that the plaintiff could not plead or establish an y du t y o we d to him by the defe ndants, as there was no thera peutic relationship betwee n the pl aintif f an d Dr. Campion under the Act or any other leg al standard. The court also noted that the plaintiff signe d a form that stated the evaluation was not conf

idential and the repor

t w ould be sent to individuals designated by the plaintiff in a re lease of information form. ¶ 14 The court also found that even if confide ntiality applied, section 11(ii) of the Act would immun ize the defe ndants from liability for the disclosure. The court stated that Dr. Campion’s disclosure was intended to protec t the public from an office r who had been found

u n fi t for duty
, and “[s] uch judgme nt call is within the sole discretion of the mental heal t h profe ssional and, as pointed out by the defense, the P l ai n t i ff offe rs no counter -af fidavit or evidenc e to sug g est bad faith in so communi catinghis findings.” ¶ 15 The court ruled that the plaintiff’s complaint failed to state any cause of action and wa s there fore subject to dismiss al under section 2-615 of the Code. The court also found that the complaint was subject to dismiss al under section 2 -6 1 9 (a) (9) of the Code (735 I L CS 5/2- 619(a) (9) (West 2010)) beca use the defe ndants had established aff irmative matters to defe at the p l aintiff’s cause s of action. Acc ording ly
, the court dismiss ed the complaint with

-4-prejudice

.

¶ 16 The plaintiff filed a notice of appea l from the circ uit court’s ruling s of Dec ember 7, 2011, and June 18, 2012.

¶ 17 ANALYSI S ¶ 18 Be fore we addre ss the p l ai n t i ff’s ar gu m en t s, we will first addre ss a motion that the defe ndants filed with this court that asks us to dismiss the plaintiff’s appeal from the circ uit court’s ruling of Dec ember 7, 2011. In part, that ruling grante d summary judgme nt in favor of the defe ndants on the plaintiff’s profe ssional neg lige nce claim. On appea l, the defe ndants
argue that beca

use the plaintiff did not pre serve his pr ofessional neg lige nce claim afte r the court’s r uling on De cembe r 7, 2011, no appe al may lie from that ruling

. ¶ 19 “ ‘W h er e an amendment is complete in itself and does not ref er to or adopt t h e p ri o r p l ea d i ng , the earlier pleading cea ses to be a part of the rec ord for most purposes, being in eff ect abandone d and withdrawn.’ ” Foxc roft Townhome Owners Ass’n v. Hoffman Rosner Corp.
, 96 I ll. 2d 15 0
, 154 (1983) (quoting Bowman v. County of Lake
, 29 I ll. 2d 268, 272 (1963))

. In this case , the plaintiff’s third amende d complaint did not incorporate or ref ere nce the profe ssional neg lige nce claim from the plaintiff’s previous complaints. The plaintiff has made no attempt on appe al to challeng e the court’s ruling from Dec ember 7, 2011, and counsel for th e p l ai n t i ff confirme d at oral arg ument that the plaintiff had no intention of challeng ing that ruling

. Under these circ umstances, we hold that the plaintiff abandone d any challeng e to the court’s ruling on the profe ssional neg lige nce claim. Acc ording ly
, we grant the defe ndants’ motion to dismiss the appea l from the court’s Dec ember 7, 2011, order and limitour consideration of the a ppeal to the June 18, 2012, order

. ¶ 20 On appea l, the plaintiff arg ues that the circ uit court err ed when it dismiss ed the complaint pursuant t o s ec t i o ns 2-615 and 2-619(a )(9) of the Code. The plaintiff contends that he sufficie ntly pled each of the four cause s of action in the complaint and that the court err ed when it found that the defe ndants had sufficie ntly pled aff irmative matters that defe ated the complaint. ¶ 21 Under

section 2-619.1 of

the Code, a pa

rty may file a motion to dismiss that combines motions on the pleading s under section 2-615 and motions f or involuntary dismiss al under section 2-619. 735 I L CS 5/2-619.1 (West 2010). A motion to dismiss a complaint pursuant to section 2-615 of the Code challeng es the leg al sufficie ncy of a complaint by alleg ing that it fails to state a claim on which relief can be grante d. Oliveira v. Amoco Oil Co.
, 201 I ll. 2d 134, 147 (2002). In contra st, a motion to dismiss filed pursuant to section 2-619 of the Code admits the leg al sufficie ncy of the complaint, but raises a defe nse that alleg edly defe ats the complaint. Patrick Engineering, Inc. v. City of Naperville
, 2 0 1 2 I L 1 1 3 148, ¶ 31. Under section 2-619(a)(9) of the Code–the section cited by the defe ndants in this case–a party seeks involuntary dismiss al by arguing that the claims are “b arre d by other aff irmative matter avoiding the leg al eff

ect of or defe ating the claim[s] .” 735 I L CS 5/2-619(a) (9) (West 2010). When we revie w motions filed pursuant to sections 2-615 and 2-619 of the Code, we acc ept all well-pled fac ts as true and acc ord all rea sonable i n ference s to the nonmoving party

. Patrick Engineering
, 2012 I L 113148, ¶ 31. Howeve r, we will disreg ard all leg al and fac tual

-5-conclusions i n the complaint that are not supported by specific fac tual alleg ations. Patrick Engineering
, 2012 I L 113148, ¶ 31. We revie w a circ uit court’s decision on a mo t i o n to dismiss pursuant to section 2-615 or 2-619 of the Code under the de novo standard. Patrick Engineering, 2012 I L113148, ¶ 31. ¶ 22 Our revie w will focus on the circ uit court’s dismiss al pursuant to section 2-619(a )(9) of the Code. Pleading s, depositions, and aff idavits can be considere d when fac ed with a motion
to dismiss filed pursuant to section 2-619 of the Code. Raintree Homes, Inc. v. Village of Long Grove
, 209 I ll. 2d 248, 262 (2004). We also note that we can aff irm the court’s decision

on any basis supported by the re cord. Lofthous e v. Suburban Trust & Savings Bank of O ak Park, 185 I ll. App. 3d 889, 892 (1989).

¶ 23 I . ACTI ON F OR DAMAGES UND ER SECTI ON 15 ¶ 24 First, the plaintiff co n t en d s he sufficie ntly pled a cause of action for damag es under section 15 of the Act. The plaintiff posits sever al arguments in support of his position on this issue. We disag ree with all of them. ¶ 25 Section 15 of the Act authorizes a person to sue for damag es or other appropriate re lief if that person has been ag grieve d by a v i o l ati on of the Act’s provisions. 740 I L CS 110/15 (West 2006). In rele vant part, the Act g ener ally provides that a rec ipient of m en t al h ealth service s, and the rec ipient’s thera pist, “has the privileg e to ref use to disclose and to preve nt the disclosure of the rec ipient’s rec o rd o r co mmunications,” with cer tain exceptions. 740 I L CS 110/10(a) (West 2006). The Act define s mental health service s as including “examination, diagnosis, ev aluation, trea tment, training
, pharma ceutica ls, afte rca re, habilitation or rehabilitation.” 740 I L CS 110/ 2 (West 2006). The Ac t does not specific ally mention the disclosure of the results of a police off icer ’s fitness eva luation to the office r’s superiors. Sangirardi v. Village of Sti ckne y , 342 I ll. App. 3d 1, 14 (2003). ¶ 26 It is unnece ssary for us to deter mine whether the Act actua lly applies in this case beca use

even assuming, arguendo
, that it did apply
, the plaintiff’s cause of action would not survive a motion to dism iss filed pursuant to section 2-619 of the C ode. I f the Ac t did apply to the fac ts of this case , one of the issues that would have to be addre ssed is whether section 11 of the Act (740 I L CS 110/ 11 (West 2006)) would immuniz e the defenda nts from li ability for their disclosure. Sec tion 11(ii) provides for the disclosure of rec ords and communications: “[W ]hen, and to the extent, a thera pist, in his or her sole discretion, det erm i n es t h at disclosure is nece ssary to initiate or continue civil commitment proce eding s under the laws of this State o r t o o therwise protec t the rec ipient or other person ag ainst a clea r, imminent risk of serious phy sical or mental injury or disease or death bei ng inflicted
upon the rec ipient or by the rec ipient on himself or another [.] ” 740 I L CS 1 1 0 / 11(ii) (West 2006).
Ba sed on the pleading s and supporting materia ls filed in this case , Dr. Campion believed that the plaintiff posed the ty pe of threat described in sectio n 11(ii) of the Act and made his disclosure, in part, pursuant to that belief. Section 11(ii) of the Act place s that dis cr eti on solely with the thera

pist, and, as the circ uit court noted, the pleading s and the exhibi ts do not contain any

thing to sug g est that the disclosure pursuant to that belief was made in bad faith.

-6-Under these circ umstances, we hold that the plaintiff’s cause of action for damag es u n d er

section 15 of the A ct was pr operly dismiss ed pursua

nt to section 2-619(a )(9) of the Code.

¶ 27 I I . TORTI OUS I NTERFERENCE WI TH A CONTRACTUAL
OR BUSI NESS RELATI ONSHI P ¶ 28 S ec o n d
, th e p l ai ntiff argues that he sufficie ntly pled a cause of action for tortious interfe renc e with a c ontrac tual or business re lationship. ¶ 29 The e lements of the tort of intentional inter fer ence with exi sting c ontrac t rights are:

“(1) the exis tence of a valid and enforcea ble contra ct betwee n the plaintiff and another ; (2) the defe ndant’s awa

rene ss of this contra ctual relation; (3) the defe ndant’s intentional and unjustified inducement of a brea ch of the contra ct; (4) a subsequent brea ch by the other, cause d by the defe ndant’s wrong ful conduct; and (5) damages

. [C itation.] ” (Interna l quotation mar k s omitted.) HPI Health Care Servic es, Inc. v. Mt. Vernon Hospital, Inc. , 131 I ll. 2d 145, 154-55 (1989). The issue on a

ppeal c enter s on the third element. ¶ 30 In an action for interfe renc e with contra ct, if a d ef en d an t ’s conduct is privileg ed, the plaintiff car

ries the burden of pleading and proving that the co n du ct was malicious. HPI Health C are Services
, 131 I ll. 2d at 156-57 (desc ribing “malicious” conduct as that which intentionally interfe res with the plai n t i ff’s contra ct and is unjustified). In deter mining whether a defe ndant’s conduct is privileg ed, “[c]ourts will rec ognize a privileg e in intentional interfe renc e with contra ct case s where t h e d ef endant was acting to protec t an interest which the law deems to be of equal or greater va lue than the plaintiff’ s contrac tual rights.” HPI He alth Care Service s , 131 I ll. 2d at 157. ¶ 31 We believe the Four th District’s decision i n T u rn er v. Fletche r , 302 I ll. App. 3d 1051 (1999), is instructive on this issue. In Turner
, a university police office r was place d on leave in November 1995 afte r Dr. David Fletc her found the office r to be unfit for duty

. Turner
, 302 I ll. App. 3d at 1053-54. The office r sued Dr. Fletc her, all egi n g , inter alia
, tortious interfe renc e with contra ct. Turner
, 302 I ll. App. 3d at 1054. The circ uit court dismiss ed the office r’s complaint pursuant to Dr. Fletc her’ s section 2-619 motion. Turner
, 302 I ll. App. 3d
at 1054. On ap peal, the Four th District aff

irmed the circ uit court’s decision, finding
, in rele vant part, that Dr. Fletc her’ s right to “fr eely rende r an opinion” was an interest superior
to the office r’s contra ctual right. Turner
, 302 I ll. App. 3d at 1058. In part, the Four th District cited policy

considera

tions for its decision: “Sound public policy supports rec ognition of a privileg e for statements made under the circ umstances of this case

. An eff ectiv e p ro cess for evaluating fitness of police office rs is essential to ensuring public safe ty and maintaining a reliable
, responsible police forc e. Subjecting evaluators who conscie ntiously fulfill their con t ra ct ual obligations to provide such evaluations to the appre hension that such work may subject
t hem to civil suits would cripple the eff ective administration of such evaluatio n s

. ” Turner , 302 I ll. App. 3d at 1056. The Four th District’s rea soning in Turner is equally applicable to the fac ts of the instant case

-7-and supports the findingof a privilege in the defe ndants’ conduc t.

¶ 32 Wit h reg ard to whether the plaintiff’s complaint sufficie ntly alleg ed that the def endants’ privileg ed conduct was unjustified, we acknow ledg e that “[a] defe ndant who is protec ted by

a privileg e *** is not justified in eng ag ing in conduct which is totally unrelated o r ev en antagonistic to the interest which g ave rise to defe ndant’s privileg e.” HPI Health Care Servic es , 131 I ll. 2d at 158. A complaint must contain specific fac tual alleg ations to support

a rea sonable infere nce that a defe ndant’s conduct was unjustified. HPI Health Care Servic es , 131 I ll. 2d at 158. As was the case in Turner
, we find nothing in the pleading s and supporting materia ls filed in this case to sug g est that the defe ndants’ conduct wa s u n j u s tified. Dr. Campion perf

o r me d his contra ctual obligation to conduct a fitness-for -duty evaluation on the plaintiff and disclosed the results to the Pekin police depar tment and its chief

. As stated by the Four th District in Turner
, “[t] o hold rende ring an unfavor able evalua tion constitutes an abuse of p ri v i l ege would be tantamount to holding the privileg e inapplicable altog ether .” Turner
, 302 I ll. App. 3d at 1059. Under the circ umstances of

the instant case , we hold that the plaintiff’s tortious interfe renc e claim was properly dismiss ed pursuant to section 2- 619(a) (9). See Turner , 302 I ll. App. 3d at 1059.

¶ 33 I I I . FRAUD UL ENT MI SREP RESENTATI ON AND
NEGL I GENT MI SREP RESENTATI ON ¶ 34 The plaintiff’s third and fourth argument s ar e t h at t h e ci rc u i t co u rt err ed when it dismiss ed his fra

udulent an d n eg lige nt misrepre sentation claims. Be cause the elements of these two torts are very s i m i lar ( Neptuno Treuhand-Und Verwalt ungsgesellschaft MBH v. Arbor , 295 I ll. App. 3d 567, 574 (1998)), w e will addre ss them toge ther. ¶ 35 T h e elements of a cause of action for fra udulent misrepre sentation are : “( 1 ) a fa l s e statement of materia l fac t; (2) known or believed to be false by the party making it; (3) intent to induc e the plaintiff to a ct; (4) action by the plaintiff in justifiable relianc e on the truth of the s tatement; and (5) damage to the pl aintiff resulting from such reliance.” Neurosurgery & Spine Surgery, S.C. v. Goldman
, 339 I ll. App. 3d 177, 186-87 (2003). The di fferenc e betwee n fra

udulent misrepre sentation an d n egli g ent misrepre sentation is the mental
state– i.e.
, in the latter claim, the party making the false statement does not have to know the
statement was false. Kopley Group V., L.P. v. Sheridan Edgewater Properties, Ltd.
, 376 I ll. App. 3d 1006, 1017 (2007). ¶ 36 The pleading s and supporting materia ls fil ed i n th i s ca s e i ndicate that the plaintiff’s

cause s of action for fra

udulent misrepre sentation and neg lige nt misrepre sentation are faulty for sever al rea sons, not the least of which being the inability to satisfy the element requiring action taken by the plaintiff in justifiable relianc e on the truth of the defe ndants’ statement. “[N]o rec overy for fra

udulent misrepre sentati on, fra udulent conce alment or neg lige nt misrepre sentation is possible unless plaintiffs can prove justifiable relianc e, i.e.
, that any relianc e was rea sonable.” Neptuno
, 295 I ll. App. 3d at 575; see also Kopley
, 376 I ll. App. 3d at 1018 (statingthat the plaintiff “must have had a right to re ly”). ¶ 37 In this case , Dr. Campion rende red an opinion as to the plaintiff’s fitness for duty
, not a statement of fac t. See Marino v. United Bank of Illinois, N.A.
, 137 I ll. App. 3d 523, 527

-8-(1985) (“[m] atters of fac t are to be distinguished from expressions of opinion, which cannot

form the basis of an action of fra ud”); see also Restatement (Second) of Torts § 538A (1977) (“[a] repre sentation is one of opinion if i t express only (a) the belief of the maker, without

cer tainty
, as to the exis tence of a fac t; or (b) his judgment as to quality
, value, authenticity
, or other matters of j u d gm en t ”)

. Fur ther, there is nothing in the pleading s and supporting materia ls f

iled in this case to sug g est that the plaintiff acte d in relianc e on any thing said by the defe ndants. Whil e the plaintiff did alleg e that “[ d ]efendants’ written repr esenta tions about and c oncer

ning Plainti ff, induced t he P laintiff t o seek tre atment and not per form his duties,” this alleg ation cannot rea sonably be found to meet the justifiable-re liance element. Dr. Campion’s opinion on the plaintiff’s fitness for duty did not induce the plaintiff to seek
treatment. Rather, Dr. Campion opined that the plaintiff was unfit for duty and rec ommended further treat m en t ; i t was the Pekin police depar tment that ordered the plaintiff to comply with that rec ommendation. ¶ 38 In addition, under the circ umstances of this case , even if th e p l ai n t i ff could be said to have relied on any statements made by the defe ndants, such relianc e would not have been

rea sonable. The plaintiff knew the purpose of the evaluation, as evidenc ed by his deposition testimony and by his signatur es on the c onsent forms that described the evaluation pr ocess and soug ht r elea ses to the chief and the Pekin police depar tment. As was noted by the First District in Sangirardi
, a police office r cannot rea sonably expect that the results of a fitness exam will be kept from the police chief because those exams are integral to the hi ring and
rete ntion processe s for police office rs. Sangirardi , 342 I ll. App. 3d at 16. ¶ 39 Under these circ umstances, we hold that the defe n d an t s h av e p re s ented affirmative
matters that defe at the plaintiff’s claims for fra udulen t m i srepr esentation and neg lige nt mi s r ep r e s entation. Acc ording ly
, those two cause s of action wer e properly dismiss e d p u r s u a nt to section 2-619(a)(9) of the Code.

¶ 40 CONCLUSI ON ¶ 41 Be cause the plaintiff’s four cause s of action wer e appropriately dismiss ed p u rsuant to

s ec t ion 2-619(a)(9) of the Code, we aff irm the judgme nt of the circ uit court of Tazewe ll County

.

¶ 42 Affir

med.

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