Nos. 2--07--0173 & 2--07--0204 cons. F iled: 2-1-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ J. MAKI CONSTRUCTION COMPANY ) Appeal from the Circuit Court and JOHN MAKI, SR., ) of Lak e C ou nt y. ) Plaintiff s-Appell ees, ) ) v. ) No. 05--L--503 ) CHICAGO REGI ONAL COUNCI L OF ) CARPENTERS, JOEL POGOSE, DANIEL ) McMAHON , and RANDY DROGOS, ) Honorab le ) Mitchell L. Hoffman, Defend ants-App ellants. ) Judge , Pres idin g.

______________________________________________________________________________ J. MAKI CONSTRUCTION COMPANY ) Appeal from the Circuit Court and JOHN MAKI, SR., ) of Lak e C ou nt y. ) Plaintiff s-Appell ants, ) ) v. ) No. 05--L--503 ) CHICAGO REGI ONAL COUNCI L OF ) CARPENTERS, JOEL POGOSE, DANIEL ) McMAHON , and RANDY DROGOS, ) Honorab le ) Mitchell L. Hoffman, Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: There once was a union that called plaintiffs ' wor k crappy; this made

plaintiff s quite unhappy; at trial, the jury filled plaintiffs' purse; but, alas, on appeal, we must rever se.Nos. 2-- 07--0173 & 2--07 --0204 c ons.

-2-

OnM ay 10, 200 6, plaintiffs, J. Maki Construction Company and John Maki, Sr., filed their second amended complaint alleging two c ounts of de famati on against defendants, the Chica go Regional Council of Carpenters (the Union), Joel Pogose, Dan iel M cMahon, and Randy Dro gos. I n count I , plaintif fs alleg ed that a

handbill, containi

ng a lime

rick, tha t defend ants handed out to membe

rs of the public wa s defama

tory , imputing

to plain tiffs professional incompetence. In count II, plaintiffs allege d that a banner th at defe ndants pub lished at p

ublic sites contained defamatory statements imputing to Maki a crimin al conviction. On September 13, 2006, the trial court gra nted summary judg

ment in favor of defendants as to count II of plaintiff s' second amended complaint. A jury trial was held on count I, and on Sep tember 2 0, 2006, the jury found in favor of p lain tiffs, awarding

them $2,35 3,000 in da

mages. Defend

ants filed a posttria

l motion for

judgmen t notwithsta

nding the verdict o r anew trial, which was denied on January 19, 2007. Defend ants timely appealed a nd argue that the judgment should be reversed or, alternatively , that defendants should be give n a new trial because: (1) the trial court erred in ruling that the parties were not involved in a "labor dispute" as def ine d by the National Labor Relations Ac t (the Act ) (29 U.S.C. §152 (2000)); (2) plaintiffs failed to establish that d efendant s acted with actual malice; (3) plaintiffs failed to prove a ctual damages; (4) the trial
co urt gave improper jury

instructions; (5) the trial court admitted unduly pre judicial evi dence ; (6) the handbill was not defamat ory; and alternatively (7) the ju ry award was excess ive and mu st be reduced. In a

consolidated ap peal, pla intiffs a ppeal the order g ranting summary judgmen t in favor of defendants as to c oun t II of the complaint, arguing that the trial court e rred in deciding that the defense of truth applied, thereby barring the defa

mati on claim. As to defe ndants'appeal,
we reve rse. As to

plaintiff s' appe al, we affirm.

I. BACKGROUNDNos. 2-- 07--0173 & 2--07 --0204 c ons.

-3- A. The Parties PlaintiffJ. Maki Construction Company is a construction contractor that builds singlefamily homes in Lake County , including homes in a subdivision of the Vil lage of J ohnsb urg. Pla intiff John M aki is the president and owner of the company , which is a nonunion construction
co mp an y. Defendant the Chicago Regiona l Council of Carpenters is a l ab or union in Lake Co un ty. At a ll rel evant time s, defen dant Dan McMahon s erved a s the dire ctor of f ield organizingfor the Union; defendant Joel Pogose served asthe lead organizer; and defendant Randy Drogos served as an org anizer. Between 19 69 and 2005, Maki was a member of the Union. He resigned his membership in April 2005. B. Pretrial OnM ay 10 , 2006, plaintiffs filed their second amended complaint. I n count I, plaintiffs alleged defamation against defendants for c onduct beginning on or ab o ut May 21, 2005, when defenda nts handed o

ut a handb ill to membe rs of the public. The handbill contained the following language:

"ACCORDING

TO THE NORTHWES T HE RALD PA PE R C ONS IDER THIS BEFORE YOU BUY: THE RE ONCE WAS A MAN NAMED MAKI, WHO DI DN'T WANT YOU TO KNOW HIS HOUSES WERE CRAPPY. 'IF MY HO MEBU

YER H AS WI N DOWS THAT LEAK, THEY WON'T T AKE A PEEK , AND S EE THE WHOLE HO USE IS C RAPP Y.' SO SAID A MAN NAMED MAKI ! ONE 'L UCKY' H OMEBUY

ER IN JOHNSBURG

IS QU OTED; [ sic ] 'THERE'S JUST THE ONE ISSUE: THE WINDO WS WERE INSTALL EDNos. 2-- 07--0173 & 2--07 --0204 c ons.

-4-

INCORRECTLY.' [internet web address for Northwest Herald ar ticle] AN INFORMED HOMEB UYER IS A SMARTER HOM EBUYER." (Emphasi s in original.) The hand bill further conta

ined the f ollowing in small pr

int: "THE CARPENTERS UNION I S CURRENTL Y ENG AGED IN A L ABOR DISPUTEWITH MAKI CONSTRUCTI ON O VER THE PAYMENT OF SUBSTANDARD WAGES AND B ENEFI TS. WE SEEK O NLY T O IN

FORM THE PUBLI C." Plaintiffs allege d that the handbill im

puted tha t they were unable to

perfor m their profession

competently. The r

eferenced article in the Northwe st Herald discus sed hom eowners' dissatisfactionwith plaintiffs' work because their homes had lea ky windows caus ed by

im proper installation. Incount II

of the c omplaint, plaintiffs alleged defamation aga inst defendants for conduct beginning on or about December 8, 2005, when defenda nts posted the followi ng banner at
va ri ou s l oc at io ns in Lak e C ou nt y:

"SHAME ON STATE BANK OF THE L AKES FOR DOING B USINESS WITH JOHN MAK I ; [ sic ] CONVICTED OF DEFRAUDI NG THE UNION AN

D FINED $752,150.00." Plaintiffs alleged that the banner imput ed a crim inal conviction to Maki, thereby e stablishing defamation per se

to Maki individually. Defendant s filed their an swer to pl aintiffs ' compla int, including the affirmative de fenses of truth and

that the Act prote cts other wise act ionable defamatory

statements when made during a labor dispute.Nos. 2-- 07--0173 & 2--07 --0204 c ons.

-5-

OnAugust 4 , 2006, de fendant s filed the ir motion f or summa r y judgment, a

rguing that (1) the use of the word "crappy " constituted nothing more than rhetorical hy perbole, incapable of having a precise d efinition, and (2) the statements made on the banner were true. In the motion, defenda nts argued that on Fe br ua ry 14, 2005, Drogos f iled inter nal union c

harge s again st Maki, including the specific charge that Maki wa s defraudin g the Union. On December 3, 2005, afte r a hearin g, the Union found Maki guilty of the charges and fined him $752,150. The banne r was displayed begi nning on or about December 8, 2005, and take n down by the end of Ma rch 200 6
. OnApril 5, 2006, the United Brotherhood of Carpenters and Joiners of Amer ica (the International Union) aff

irmed the Union's guilty

verdicts but reduced the fine to $500,900. OnSeptember 13, 2006, a hearing was held on defe ndants' motion for summary judgmen t. The trial court denied defendants' motion as to count I , finding that a genuine issue of fact remained regardi ng the "crappy" q uote in the handbill. The tria l court fo und that be cause the handbill used quotation marks, some might interpret that Maki, rather than the Union, was stating that the houses were "crappy ." As to count II , the trial court found the Union' s use o f the
w ord" conviction" to be appropriate and truthful and g ranted summary judg

ment in favor of defenda nts. Many courts desc

ribe internal disciplinary sanc tions by a union as " convictions," and the trial court held that if the "Supreme Court can call this disciplinary act ion a conviction

*** so can a u

nion o r anybody

else." On September 19, 2006, the trial court ruled on seve ral motions in limine , including defendants' motion to exclude any mate rials, such as the banner, that were published after the handbill. Defendants a rgued that post-han dbill materials were irrelevant to prov e their inten t at the time of the ha

ndbill and

would be overly

prejudic ial if admitted. The tria

l court dis agreed and a dmitted the banner and other materials, finding that suchevidenc e was re levant to the issue of punit ive da mage s because plaintiffs could use suchNos. 2-- 07--0173 & 2--07 --0204 c ons.

-6-

evidence to show a pattern of conduct whereby defendants intended to harm plaintiffs' bu sines s and future busines s prospe cts. However, the court reserved its rig ht to change its ruling upon defenda nts' re newed ob jection d uring tr ial. C. The Trial Jeff Miller te stified f

irst for p laintiff

s. Mille r , an org anizer for the Union, repor ted to Pogose and worked with Drogos. The only cam pai gn that the Union conducted against plaintiffs
was to inform the public that plaintiff s were p ay

ing subst andard wages a

nd benef its to their employ ees. The purp ose of the

handbill was to inform the public about a leaky window problem with homes constructed by pla intiffs. He was no t certain who developed the handbill, how many
were handed o

ut, or who

handed them out. Mill er test ifi ed that Drogos created banne rs. Miller origina lly worked in Milwaukee but was brought in by the Uni on to wor k on this particular campaign. He did not know why the c ampaign was initiated but Miller himself followed Maki around, including to Maki's barber, the g olf course, restaurants, and downtown Chicago. Miller would hand o ut mat erial s at th ese pl aces in order t o info rm the publ ic of t he Uni on's ca mpaign againstplaintiffs . Mille r never heard Maki say that his houses were "crappy ," and he did not actually re ad the newspaper article that the handbill refe renced. Pogose testified f

or plaintiff

s next. As lead organizer, Pogose met with Drogos and Miller regar ding ca mpaigns , such as t

he "ar ea stand ards" c ampaig

n that t he Union was staging againstplai nti ffs. The term "area standar ds" means wages and bene fits; therefore, the Union had
anissue with the wages and benefits tha t plaintiffs pa id their employees. The purpose of the handbill, accord

in g to P ogose, was to "i

nform the public ab out leaky

windows." Despite t

he use of the quotation marks in the handbill, Pogose never heard Maki state that his homes wer e "crappy ," and Pogo se thoug ht that the

handbill was intended to convey the Union's opinion andNos. 2-- 07--0173 & 2--07 --0204 c ons.

-7-

notwhat M ak i a ct ua ll y said. He admitted that the Northwest Herald article containe d no such quote by M aki. The

use of the

quota ti on marks was intended to draw attention to the limerick. Pogose did not know where the handbill went once it was distributed. Drogos participated in t

he creation of the banners that were display ed, and he consulted with Pogose b efore f

iling inte rnal union charg es aga

inst Maki. P ogose f

urther p articipa

te d in an ambulatory

picketing campaign, which involved following Maki around town and picketing
w herever he was. Pogose believed that there was a certain quality in the wor k of a carp ente r who was paid the area standards rate, a nd the handbil l was part of the Union's area standa rds campaig n. Specif ically, Pogose

testifie d as follows: "Q. Now, as to quality, the issue of qua lity, and the pay

ment of area standard wages , it's still your testimony , is it not, tha t th e more someone' s paid the more qua

lity that would be expected from their work? A. Yes. Q. And, certainly , if you'r e getting paid less than the area standard rates, y

ou would pre sume that t

he qualit y would be la

cking, correct? A. Could be , ye s. Q. And that's y

our opinion? A. My opinion." McMahon, who supervised Drogos and Pogose, testified ne xt for p laintiffs. McMahon reviewed the inter nal union c

harge s that Dro gos file d again st plaintif fs. The Union 's camp aign
a gain st plaintiffs centered solely on the Union's goal of upholding are a standard wages and benefit s, which plaintiffs were not pay ing. No one from the Union ever aske d an employee of plaintiffs to join the Union. McMahon wrote the limerick and created the handbill at the end ofNos. 2-- 07--0173 & 2--07 --0204 c ons.

-8-

March 2005 and submitted the handbill to other Union organizers, his supervisor, and the Union 's attorneys for

input and appr oval. The Union's attorneys added the website link to the Northwe st

Herald a rticle that McMahon relie d on for hi s stateme nt rega rding the l eaky

windows. McMahon

had n o other

information that the homes constructed by plaintiffs contained any problems
. The artic le discus sed compl aints by owners o f homes c onstruct ed by plaintiff s, specific all y

discussing leaky

windows that caused ice buildup and water damag e. McMahon testified that he used quotation marks in the handbill for emphasis, though he chang ed h i s test imony and ad mitted that in his deposition he stated the quotation marks were used so that the reader would conclude that Maki made the stat ement. McMahon admitted that he never heard Maki speak in limerick or state plaintiffs' homes were " crappy." He did not b elieve a reasona ble person would actually think that Maki made the sta tements in the handbill. Th e intent of the handbill w as to elicit a s mile or laugh and to make the reader a ware that the Union and plaintiffs
were involved i

n a labor dis pute. However, under cross-examination, McMahon admitted that he wanted people to think that Maki spoke the quoted words. The goal of an area standar ds campaign is to make the gener al public aware that the area standards for wag es and be nefits ar e not bein

g paid, undermin

ing the s tandards for wages and benefit s across t

he reg ion. The f

ailure o f employ

ers to pa y the area s tandards for wages and benefit s, accord

ing to Mc Mahon, re sults in lower wag es a nd b ene fit s fo r al l ca rpe nt ers . In conjunctionwith the Union's area standards campaig n, the hand

bill, w hich measured approxima

tely 81⁄2 by 11 inches , was distr

ibuted at sales of fices for plain

t iffs' homes or at the offices of plaintiffs' business. The handbill was handed out for approximately 2 or 21⁄2 months. Drogos testified next. Drogos reported to Pogose, who reported to Mc Mahon. Drogos did not partic ipate in the crea tion of an

y ba nners. Whi le the ha

ndbill was being distributed,Nos. 2-- 07--0173 & 2--07 --0204 c ons.

-9-

Drogos was filin

g inter nal union c

harge s again st plaintif

fs. I n 1974, Dr

ogos wor ked wit h Mak i
ona Union job, and he recalled the name in the nonunion J. Maki Constru ction Company. Upon further investigation, Drogos discovered that Maki was still a member of the U ni on, and Drogos began the int ernal uni on cha rges th at res ulted in th e $752 ,150 f ine. U nder t he Uni on's constitution, a member

has an ob ligati on to hire Union members whenever possible, and plaintiffs were in violati on of this obligation. Drogos did not know if problems besides the leaky windows existed in homes built by plaintiffs. He al so did not know wha t plaintif fs paid thei remployees . He deni ed that hi s goal w as to ag grava te or agitate pla

intiffs or to harm the ir business. Howev er, he a dmit ted th at not es he wr ote rega rding t he camp aign indicate d that at one pointthe Union

had compl eted "s even da ys o f agg

ravation" and that the fa ct that pla

intiffs' salesperson s had to drop home prices w as an "excepti onal sign." TerranceMcGa

nn, a n attorney

, test ifie d next . McMahon sent McGann the handbill for review, and McGann reviewed t he document, reviewed the Northwest Hera ld article, performed some research, and approved the ha ndbill for distribution. Maki testified next for plaintiffs. Maki owns J. Maki Construction Compan y , which had been in busines s for approximately 25 y ears and employed a pproximately 40 people. Maki was
a member of the Union but J. Maki Construction Company was not affiliated with the Union. Maki had neve

r been su ed by one of his

homeowne

rs and ha d never b een cited for

violating any building code or ordinance . The Union never w arned h im th at he co uld b e fined for run ning a nonunion business, a status he never attempted to hide from the Union. After the Union filed i nt ernal charg es aga

inst him, Ma

ki was fined $752,1 50, but the Union nev er explained how it arrived at th at fi gu re . M ak i a pp ea le d t he fi ne an d t he Un io n c on ti nu ed it s a mb ul at or y p icketin g aga inst him. H e was followed from his home to his office and to other places tha t he went. AtNos. 2-- 07--0173 & 2--07 --0204 c ons.

-10-

those loca ti ons, Union members would display banne rs and hand out handbills, including others besides the handb ill at issue in this app eal. How ever, Ma ki d id not kno w if the handbill at issue
was d istributed a t various location s to which t

he Union f

ollowed h

im, such a s the gol f course and his b arber. Other ba

nners an d handbill s were a

dmitted ove

r defen dants' o bjection , but with the limiting in struction t hat the documents were admitted only for the purpose of showing whether defenda nts bore a

ny malice towards pla

intiffs a t the time that the ha

ndbillin que stion
was distributed. Some of the banners poked fun at Maki's weig ht and the amount of money that he was spending on attorney fees. Inresponse to the Union 's campaig n, Maki se

nt out to his c

ustomers a

nd employ

ees a letter explaining that his employees ar e pa id by the hour on a merit- based pla n and rec eive hea

lth insurance, acce ss to a 40 1(k) savings plan, death benefits, and paid vac ations. Additionally, he helped his carpenters purchase homes in subdivisions that he developed. He adm itted that he paid his carpen

ters between $12 and $30 per hour, less than the area standard wage of approxima

tely $48 per hour. He did not find the handbill at issue humor ous, and he never stated that his homes were "crappy ." There were ap prox imately 200 homes in the Johnsburg development

and, of those, 30 homeowners complained o f leaki ng w indows. The windows were installed by his carpe

nters using flashing tape rather tha n caulk, and, when the h o meowners complained, pl ai nt if

fs ca ul ke d t he wi nd ow s. No ne of th e h om eo wn er s h ad an y s tructural damage to their homes as a result of any of the leaks. A joint letterto the homeowners from plaintiffs and the w indow manu facturer confirmed that there we re acceptable methods of installation besides the manufacturer's re commended method of caulki ng and that they would honor all homeowner warranties whether still in t he wa rranty

period or

not. As to d

amage s, Maki claimed he had spent over $100,000 in legal fe es.Nos. 2-- 07--0173 & 2--07 --0204 c ons.

-11-

Oncross-examination, Maki admitted that while working on Union jobs, he received the
area standard, including pension, health insurance, and disability benef its. H e volunta

rily maintained

hi s U ni on me mb er sh ip af te r h e b eg an hi s n on un io n c om pa ny bu t was unaware of any bylawsthat he had to follow as a member. He went to the National Labor Rel ations Board (NLRB) in the spring of 2005 to complain about the U nion's picke ting. He admitted that the NLRB ordere d the Union to ceas e and de sist p icket ing o f his comp any but that it d

id not state that the Union could not continue to distribute the handbill. He adm itted that the other banners and handbills and the picketing harmed his reputation as did the handb ill at issue and that he was notspecifica ll y s eeking lost profits. He did not have to lay off any e

mployees due to lack of work during t hat ti me, and he believed that most people were more ang ry with the Union than with him. He did not know of anyone who be lieved the statements in the handbill. Tommy Oliver, a n orga nizer for the Union , testifie d next for p lainti ffs. Oliver was not involved in the Union's ca

mp aign ag ainst plaintiffs. He stated that a home could have a leaky window and t hat the rest of the home co uld stil l be consid ered "fine." Defend ants called Michael Shipman as their firs t witness. Shipman was a construction superintendent

for Maki's company . He saw the handb ill at issue w hen it was distributed, and he
was told by Maki to just ignore it. He wa s familiar with the windows that were installed in t he Johnsburg homes. The manufa cturer recomme

nded that the windows be insta

lled with c aulk because the tape that plain

tiffs use d would not

adhere properl y w hen insta lled in co ld weath e r and wou ld b eg in to

pul l aw ay . Th e le aky win dow s in

the Jo h nsburg

homes ca

used some staining, damaged oak trim, and cause d mold and water damage. Tim Lehm , Maki's

son-in-la w and emp loyee, test

ifie d nex t for defendants. Lehm r esides ina Johnsburg home that was built by plaintiffs. He admitted that wind ows were not installedNos. 2-- 07--0173 & 2--07 --0204 c ons.

-12-

according to the man

ufactur er's r ecommen dations a nd that s o me homeowners experienced leaky windows. After the parti es rested, the trial court ruled on various jury instructions, including three that defendants now raise in their brief. First, def endants claim that the trial court er red in instructing the jury

that plain

tiffs had to prove t heir case by

a preponderance of the evidenc e rather than by clea

r and convincing evidence. Second, the tr ial court err e d in failing to instruct the jur y tha t plaintiffs had to prove that the statements were made with actual malice . Third, the trial court er

red in de fining malice a s "ill will " or hav ing "e vil intenti ons. " Defendants proffered alternative instructi ons b ut the tri al court instructed the jury using plaintiffs' proffered instructions
. In its

rulings , the tria

l court fo und that the handbil l was not pu blished in connecti o n with a labor dispute, an d it re fused to i nstruct the jury

that plain

tiffs had to prove t

hat defe ndants acted with actu al malice in publishing the handbill. Instead, the tria l court instructed the jury that defendants had a qualified pr ivil ege to publish the handbill but lost the privilege if they acted wi th ma li ce . T he ju ry was instructed that malice meant that defendants published the "defamatory

communic ation with

wanton di srega

rd for Pla intiffs' rights, with ill will , and with
anevil intention to defame and injure Plaintiff. T o find t hat Defendant acted with malice, y ou must be persuaded, considering all the evidence in the case, that it is more probably true than not true that Defendant acted maliciously as define d above. " Additionally , over de fendant s' objection, the trial

court ad

mi tted into evidenc e other handbills a nd banne rs, along with testimony reg arding ambulatory picketing. The jury returned a ver dic t in favor

of plainti ffs, awa

rding them $2,353 ,000 in nonspec ific damages. Defendants m oved for judgment notwithstanding the verdict and, al te rn at iv el y, for a ne

w trial. On January

19, 2007, t

he trial c ourt is sued i ts order denyingNos. 2-- 07--0173 & 2--07 --0204 c ons.

-13-

defenda nts' motion. Specifically, the cour t stated that it fou

nd that the

word "c rappy," used i

n this context, could not be innocently construed, be cause a reasonable re ader of the handb ill "would be expected to conclude that the entire house ha[d] construction defects similar to leaky windows." Further, the tria l court did not find a connection between the handbill and the existence of a lab or dis pute, citi ng National Labor Relations Boar d v. Local Union No. 1229 , 34 6 U. S. 464, 476, 98 L. Ed. 195, 204, 74 S. Ct. 172, 178-79 (1953). It state d that "the jury ma y well hav e conclu

ded that t

he handb ill was littl e more than an att empt by the Defe

ndants t o damage Maki's busin ess until such time as Maki complied with its demands." The trial court further stated tha

t defend ants fail ed to pre sent any evidenc e that showed a nexus b etween the carpen ters' wages and benefits and the quality of homes constructed by plaintiffs, noting that Pogose testified that there was no con nection b etw een the two. As to the admissibility of the other handbills and banners, the trial court noted that the p roper limiting instruction was given with each admission. As to the damages issue, the trial court found that de fendants waived the issue when the

y f ailed to o bject to the verdict form tha t did not ite

miz e the verdict. However, the trial court ad dressed the issue despite waiver, stating that it would assume that the jury ascertained

the dam ages award b ased on what plaintiffs had requested. Under that method, the jury likely gra

nted $1.2 million in compensatory damag es and the remaining $1.1 in punitive damage s. The amount of pu nitive damages was not excessive given the g uideposts for analyzing punitive damages set forth in BMW of North America, I nc. v. Gore , 517 U.S. 559, 574-75, 134 L. Ed. 2d 809, 826, 116 S. Ct. 1589, 15 98-99 (1996 ). Therefore, the trial court denied defendants' motion for judgment notwithstanding the ver dict or for a new trial. II. AN ALYS IS A. Defendants' AppealNos. 2-- 07--0173 & 2--07 --0204 c ons.

-14-

Def endantsargue that the handbill at issue is not defamatory because it is no thing mor e thanan opinion. Defendants first made this argument in the tri al c ourt in their motion for
sum mary judgment, which was denied. The trial court found that bec ause the ha ndbill use d quotation marks, some might interpret that Maki, rather than the Un ion, was stating that the houses were "crapp y." De f endants again raised the arg ument in their posttrial motion, which also was d enied based on the tria l court' s determi

nation tha

t the word

could not b e innoce

ntly construed. We review de novo the question of whether a statement constitutes an opinion or a factual assertion , as it is a question of law. Quinn v. Jewel Food Stores, Inc. , 276 Ill. App. 3d 861, 865 (1995). "A statemen

t is defamatory

if it tends

to harm a

person' s reputat

ion to the e

xtent that it lowers that person in the e ye s of the c ommunity

or deters others from associating with that person." Tuite v. Corbitt , 224 I ll. 2d 49 0, 50 1 ( 20 06 ). St at em en ts ma y be de fa ma to ry per quod
or per se . Tuite , 2 24 Ill . 2 d a t 5 01 . " A s ta te me nt is de fa ma to ry per se if its defamatory c

haracter is obvious and apparent on its face and injury to the plaintiff' s rep utation may be presume d," whereas a plaintiff must plead and prove special damage s in a defamation per qu od a ction. Tuite , 224 Ill. 2d at 501. There are five cat egories of s tatements that constitute defamation per
se : "(1) sta

tements im

puting the commissi on of a cr ime; (2) s tatements imputing the infection with a loathsome communicable disease; (3) s tatement s im puting an inability to perf orm or want of integr ity in pe rform ing e mploy ment duties; (4) statements imputing a lack of ability or that otherwis e prejudice a person in hi s or her prof ession or business; and (5) statements imputing adultery or fornication. " Tuite , 224 Ill. 2d at 501. Here, plaintiffs allege that the handbill, which charac teriz es their work as "crappy," was defamation per se , imputing a lack of competence i n th ei r p ro fe ss io na l a bi li ty.Nos. 2-- 07--0173 & 2--07 --0204 c ons.

-15-

However, "statements which do not contain factual a ssertions are protected u

nder the first amendment

and may not be the bas is of a defamat ion action ." Kolegas v. Hefte l Br oadcast ing Corp. , 15 4 Il l. 2d 1, 14 (1 99 2) . T he te st to de te rm in e w he th er a d ef am at or y s t atement i s constitut i onally

protected is restrictive; only statements that cannot reasonably be interpreted as statin g actual facts are protected unde r the first amendment. Kolegas , 154 Ill. 2d at 14-15
. However, couching

a factu al asser tion as an

opinion is n

ot freefrom a defamatory action. Bryson v. News America Publications, Inc
. , 174 I ll. 2d 77, 10 0 (1996). The I llinois Supr eme Courthas considered several non excl usive factors in determining whether a stateme nt constitutes
anopini on or fact

ual assertion: (1) whether the statement has a prec ise and readily understood meani ng; (2) whether the st at ement is verifiable; and (3) whether the statement' s literary or
so cial cont ext signals that it has factual content. Solaia Te chnolog y, L LC v. Sp ecialty Publishing Co. , 221 Ill. 2d 558, 581 (2006). We must now delve int

o the mea

ning of t he word " crappy"--a d

irty job for a

ny c ourt. Using the factors desc

ribed, w e canno t say

as a matte

r of law t hat " cra ppy," a s it is used here, implies any

thing mor

e than a n

onactionable o pinion. First, the word "crappy " is a vague descriptive term. Webster's Dictionary defines "crappy " as "markedly inferior in qu al it y: LOUSY." Webster's Third New I nternational Dictionary

530 (198 6). The A meric an Heri tage Dictionary

defines "crappy " as "inferi or, wo rthless" or "miserable; poorly " or "mean; contemptible." American Heritage Dictionar y of the English Languag e ___ (4th ed. 200 0). When used to describe a home, the wo rd ma y mean multiple things to multiple people. The trial court concluded that "crappy " would mean that the entire house would have construction defect s similar to leaky window s. We disa gree, as many people ma

y de fine a " crappy" house i n countles s ways, ra

nging from defects to decorating tas tes. Even so, the tr

ial cour t erred inNos. 2-- 07--0173 & 2--07 --0204 c ons.

-16-

ending its analy

si s here; we

will contin

ue to cons ider the

other fa ctors use d by

the supre

me court. Second, the statement in the han dbill ca nnot be verified; one cannot verify whether plaintiff s' homes ar

e actua lly "crappy ." In Flowers v. Carvil le , 310 F.3d 1118, 1126-27 (9th Cir. 2002), the plaintiff alleged d efamati o n for the following

comments by va

rious def endants referring to the plaintiff

's allegat ion of hav

ing an affair with then-p residen tial cand idate Bi ll Clint on: (1) that t

he defe ndant wou

ld not comme

nt on that " tabloid tr

ash"; ( 2) th at th e Associated

Press news reporter c ould not put that "crap on the wire"; and (3) tha t the defendant wrote"A noth er Thursday, another S tar story, another garbage da y." The court characterized the words "trash," "crap," and "garbag e" as nothing more than "g eneric invective" and stated that the "law provides no redre ss for ha

rsh name -call ing." Flowe rs , 310 F.3d at 1127. The court spec ifically

stated tha

t these words were

not defa matory whether the state ments wer

e dir ected a t the plaintiff, the Star newspaper, or the situation as a whole. Flowers , 310 F.3d at 1127. Si mi la rl y, in Lev insky

v. Wal- Mart Stores, Inc. , 127 F.3d 122, 130 (1st Cir. 1997), the court concluded

th at th e term "trash y," when us ed to d escri be the plain tiff's store , was "l oose l anguage that cannot be objectively

verified" and was a vag ue, imprecise term. Like wise, "c rappy " is imprecise, and we cannot determine a method by which to measure the "crappiness" of a home. Fi na ll y, the liter

ary and socia

l conte x t of the word "crappy " does not signal factual content. Rather, the w ord is used as rhetorical hy perbole. In Old Dominion Branch No. 496, National Associat

ion of L etter Ca

rriers v . Austin , 418 U.S. 264, 268 , 41 L. Ed. 2d 745, 752, 94 S. Ct . 2770, 2779 (1974), the plaintiffs filed suit against the defendant union for publishing the i r
names in a " 'List of Sca

bs' " along with a document def ining a scab as, among other things, one who " 'carries a tumor of rot ten princ iples,'" is reje cted by even the devil, an d a traitor to hisNos. 2-- 07--0173 & 2--07 --0204 c ons.

-17-

God, country, fa

mily, and class. The Cour t found that the term "scab" and the def inition's use of words such as "trait or" were simply words used in a "loose, figurative sense to demonstrate the unio n's strong disagreement with the views of wor kers opposing un ionizat ion." Letter Carriers , 418 U.S. at 284 , 41 L. Ed. 2d at 7 62, 94 S. Ct. a t 27 81. "Expr

ession of such an o

pinion, even in the most pejor

ativ e terms, is protecte d under federal labor law." Letter Carriers , 418 U.S. at 284, 41 L. Ed. 2d at 762, 94 S. C t. at 2781; see also Pease v. International Union of O perating Engineers Local 150 , 20 8 Il l. App. 3d 8 63, 870 (1 991) (fi nding sta tements, " 'He' s dealing

with h alf a deck' " and " 'I think he' s crazy,' " mere name calling, rhe torical hyper

bole, or words employed only in a loose, fig

urative sense and thus nonactionable). Likew ise, in this case, the handb ill's "crap

py" limerick

was obvio

usly used in a " loose, fi g urative sense," intending to de mon strate

the Union 's disag

reemen t with plain

tiffs' f ailure to pay the are a standa

rds. Defend ants did not attempt to hide their dispute with plaintiffs, a s the handb ill contained a clear statement that the dispute existed. The trial cou

rt opin ed that beca

use the statement, "If

my homebuy

er has windows that leak, they won't take a pe ek, and s ee the w hole house

is crappy," was within

quotation

marks, it appeared that the st

atement was the opi

nion of pla

inti ffs rath er than the Union. We disagree. The Supreme Court has addressed false attribution of quotations and has stated t hat, while a selfcondemnatory

quot ation may car

ry more for

ce than the criticism of another, "quotations do not al wa ys convey that the spe aker actually said or wrote the quoted m aterial." Masson v. New Yorker Magazine, I

nc. , 50 1 U. S. 496 , 51 2, 1 15 L. Ed. 2d 447, 469, 111 S. Ct. 2419, 2430 (1991). The Supreme Court acknowledged that punctuation marks have many uses and that writers may
use quo tation marks even where no reasonable r eader would assume that the quotation mar k s automatic ally

imply the tr uth of the qu oted material. Masson , 501 U.S. at 512, 115 L. Ed. 2d atNos. 2-- 07--0173 & 2--07 --0204 c ons.

-18-

469, 111 S. Ct. at

2430. This

logic c learly

applies here. We c annot ag ree with the trial court that
a reasona ble rea der woul d assume t

hat Maki a

ctually ref

erred to his

homes as " crappy" in limerick, simply because quotation marks were used. Thus, under the circumstances of this case,
we find as a matter of law that the handbill contains nonact ionable statements of opinion, and we
revers e the jury verdict on count I of plaintiffs' complaint. See Bryson , 174 Ill. 2d at 10 0 (determiningas a matter of law whether a rea sonable fact finder could conclude that t he allegedly defamatory

statement was an assertion of fact).

B. Plaintiffs' Appeal Intheir appeal, plaintiffs argue that the trial c ourt err ed in granting defendants' motion for summary judgme

nt on count I

I of t he compla

int. Count I

I all eged d

efama tion forthe following banner:

"SHAME ON STATE BANK OF THE L AKES FOR DOING B USINESS WITH JOHN MAKI ; [ sic ] C O NVICTED OF DEF RAUDING THE UNI ON AND FINE

D $752,150.00." Plaintiffs argued that the word "convicted" imputes a crimina l conviction to Maki. The trial court ruled that the use of the word "convicted" wa s accurate and truthful because Ma ki had been convicted in internal union proceedings. O n appeal, plaintiffs argue that the term "c onvicted" cannot be innoce

ntly construe d in a nonc

rimi nal sen se and that the trial court should not have looked to Supreme Court cases to determine a plain and ob vious mea nin g of th e wo rd. In plaintif f s' opinion, the issue of whether "convicted" wa s defamatory should have been a question of fact for the jury . Defendants argue that the trial c ourt was correct in deciding that the banne r
was truthfu l and argue that the innocent construction doctrine should not apply to the ban ne r because the trial court pr operly decided the summa

ry judgmen t motion on their affirmativeNos. 2-- 07--0173 & 2--07 --0204 c ons.

-19-

defense of truth. "A motion for

summary

judgmen t i s pr operly

grante d where

the plea dings, d eposition s, admissions , and affidavits establish that no genuine is sue of material fact exists and that the [movant] is entitle d to summar y ju dgment a s a matte

r of law." Maxit, Inc. v. Van Cleve , 376 I ll. App. 3d 50, 54 (2007). Summary judg ment is a drastic means of dispo sing o f lit iga tion and should be granted only

whe re the right of

the moving party

is free and clear of doubt. Universal Underwriters Insurance Co. v. Judge & James, Ltd. , 372 Ill. App. 3d 372, 377-7 8 (20 07) . In ruling on a motion for summary judg ment, the court must constru e the evide nce in the light most favora ble to the nonmoving party. Thomson L ear ni ng, Inc. v. O lymp ia P rop ert ies , LLC , 365 I ll. App. 3d 621, 626 (2006). W e review de novo the trial court's ruling on a motion for summary judgment
. Maxit , 376 Ill. App. 3d at 55. As discusse d, there

are fiv e categories of

statemen ts th at c onstitute defamation per se : "(1) statements imputing the c ommission o f a crime; (2) statements imputing the infection with a loathsome

communic able dise ase; (3)statemen ts imputing

an inabil ity

to perform or want of integr ity in perfo rming employ

ment duties; (4) statements imputing a lack of ability or that otherwis e prejudice a person in his or her profession or busine ss; and (5) statements imputing adultery or fornicati on." Tuite , 224 Ill. 2d at 501. However, eve n if a statement fa lls i nto a defamation per se

category , it will not be a ctionable per s e if it is reasonably ca pable of an inn ocent construction. Tuite , 224 Ill. 2d at 502. A statement must be considered in cont ext ,

" 'with the words and implicat ions therefr om given thei r natural and o bvious mea ning.' " Tuite , 224 Ill. 2d a t 503 , quot ing Chapski v. Copley Press , 92 Ill. 2d 344, 352 (1982). The pre lim inary determination

of whether the innocent construction rule applies is a question of law f or the court , andw hether the statement was understood to be defamatory or to refer to the plaintiff i s aNos. 2-- 07--0173 & 2--07 --0204 c ons.

-20-

questionfor the jury if the innocent construction issue is resolved in the plaint iff's favor. Tuite , 224 Ill. 2d at 503. A defendant is also not liable for a defamatory statement if the statement is true. Wynne
v. Loyo la Uni versi ty of Chi cago , 318 Ill. App. 3 d 443, 451 ( 2000). Onl y "substantial tru th" i s required for the defense. Wynne , 318 Ill. App. 3d at 452. While determining "substant ial truth " is normall

y a questio n for the

jury , the question is one of law where no r

easonab le jury

could find t hat s ubstantial truth had not been established. Wynne , 318 Ill. App. 3d at 452. Substantial truth refers to the fact that a defend ant need pr ove the truth of only the " gist" or "sting" of the statemen t. American Interna

tional Hospital v. Chicago Tribune Co. , 136 Ill. App. 3d 1019, 1022 (1985). It is undisp uted that at the time the banner was published, Maki had been convicte d of violating the Union's byla ws and fined $752,150. The question is whether the w ord "convicted"
was a truthful and appropriate word to describe the situation. We ag ree with the trial court that the word "c onvicte d " was tr uthful an d appropriate in t

he context of the inte

rnal union charg es. As the trial court and defen dants p ointed out, the Supreme Court and federal circuits have referr ed to internal union disciplinary actions as c onvictions. See International Brothe rhood o f Boilermakers v. Hardem an , 401 U.S. 233, 246, 28 L. Ed. 2d 10, 21, 91 S. Ct. 609, 617 (1971); Snyder v. Freight, Construction, General Drivers, Ware housemen & Helpers, Local No. 287 , 175 F.3d 680, 684 ( 9th Cir. 199 9); Murphy v. I nternational Union of Operating Engine ers , 774 F.2d 114, 1 19-1 21 (6th Cir . 1985); National Labor Relations Boar

d v. Oil, Che

mical & A

tomic Workers International Union , 619 F.2d 708, 714 (8t h Cir. 1980 ); Feltington v. Moving Pictures Machine Op erators Union Local 306 , 605 F.2d 1251, 1255 (2d Cir. 1979) . Upon this court ' s review, we found that the Seventh Circuit has also referred to internal union disciplina ry act ionsNos. 2-- 07--0173 & 2--07 --0204 c ons.

-21-

as "convictions." See Curtis v. International Alliance of Thea trical Stage Employ

ees & Mov ing Picture Machine

Operators of the

United Sta

tes & Canada , 6 87 F.2d 1024, 1027 (7th Cir. 1982). If th e c ou rt s m ay c haracterize the Union's disciplinary action against Maki as a conviction, certain ly the Union may also do so. I n this case, no reasonable jury co uld find tha t the banner
was not substantially true and, there f ore, t he trial c ourt prop erly grante d summary

judgmen t to defenda nts. Having

found tha

t the aff irmative defense of truth a pplied he re, we need not a

ddress plaintiffs' argument that "convicted" is incapable of being innocently construed. III. CONCL

USION In conclusi on, we fi

nd that the

handbill c ontaining

the limer ick was not actionable, as i t did not contain any fa

ctual assertions; thus, as to defendants' appeal, we reverse the jury

verdict
o ncount I

of plainti ffs' c omplaint. A s to plainti ffs' a ppeal, w e affir

m the tria l court' s g ranti ng o f summary judgme

nt in favor of defendants on count II of plaintiffs' complaint. No. 2--07--0173, Reversed. No. 2--07--0204, Affirmed. GIL LERAN JOHNSON and ZENOF F, JJ., concur.