No. 2--06--1055 Filed: 7-30-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

JOHN GREEN, ) Appeal from the Circuit Court

) of Du Page County

Plaintiff-Appellant, )

)

v. ) No. 06--L--208

)

STEVEN ROGERS, ) Honorable

) Robert K. Kilander

Defendant-Appellee. ) Judge, Presiding.

______________________________________________________________________________

PRESIDING JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

On March 3, 2006, the plaintiff, John Green, filed a complaint against the defendant, Steven

Rogers, then president of the Clarendon Hills Little League (CHLL), alleging causes of action for

defamation per se and civil conspiracy. The plaintiff subsequently issued subpoenas to each of the

individual members of the CHLL board. On May 10, 2006, the trial court quashed the subpoenas and

stayed discovery pending resolution of a motion to dismiss the plaintiff's complaint. On July 13,

2006, the trial court granted the defendant's motion to dismiss the plaintiff's first amended complaint

pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West

2006)). The plaintiff filed a motion to reconsider the May 10 and July 13, 2006, orders. On

September 21, 2006, the trial court denied the plaintiff's motion to reconsider. The plaintiff appealed

from these orders. This court reversed the trial court's determination and remanded the case for

additional proceedings. Green v. Rogers, No. 2--06--1055 (2007) (unpublished order under Supreme
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Court Rule 23). The defendant filed a petition for leave to appeal. Our supreme court denied the

defendant's petition but, under its supervisory authority, directed this court to vacate our judgment

and reconsider it in light of Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill. 2d 381

(2008). We affirm in part, reverse in part, and remand for additional proceedings consistent with this

opinion.

BACKGROUND

The plaintiff lives with his wife and three children in the Village of Clarendon Hills (the

Village). He is a practicing dentist and attorney, and from 2000 to 2004 he served in some capacity

in CHLL. On March 3, 2006, the plaintiff filed a complaint asserting claims of defamation per se and

civil conspiracy against the defendant. In his complaint, the plaintiff alleged the following.

The plaintiff had been a volunteer for CHLL since 2000 and had managed, coached, and

served as the minor league director. In December 2004, the plaintiff submitted his name to coach a

CHLL team. In January 2005, the plaintiff announced that he was a candidate for Village trustee with

the election to be held on April 5, 2005. On March 4, 2005, the defendant sent the plaintiff an e-mail

stating that the CHLL board had decided not to assign the plaintiff as a coach for the year. The email stated that the board's "decision was based on a long pattern of behavior which [was] not

consistent with what [the CHLL board felt was] acceptable for our coaches." Prior to March 4,

2005, the plaintiff had never been informed by CHLL of any conduct unacceptable for coaching and

had never been disciplined or advised as to any complaints about his coaching.

On March 7, 2005, the plaintiff sent the defendant an e-mail indicating that he sought an

immediate appeal of the board's decision. The defendant responded by letter that denied the plaintiff's

request for an appeal hearing. On March 11, 2005, the defendant sent an e-mail to the plaintiff that
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clarified the board's ruling. The defendant explained that the board's decision barred the plaintiff from

being a coach or manager only for the 2005 season. The plaintiff was still eligible to be a parent

volunteer. On the same date, the plaintiff sent a reply indicating that he "respectfully disagreed" with

the board's decision to "not allow [him] to coach [his] only son." The plaintiff implored the defendant

to "do the right thing" and allow the plaintiff to coach his son. The defendant sent a reply indicating

that the board declined to reverse its decision.

In March 2005, during the plaintiff's political campaign for trustee of the Village, the plaintiff

was advised by two of his running mates that trustee Terry Pocius and Village resident Mary Church

Brown informed them that the plaintiff was denied a coaching position with CHLL because of his

temper and inappropriate behavior with children. Pocius and Brown also indicated that the defendant

was the source of those comments.

The plaintiff alleged that on or about March 4, 2005, the defendant made and published

statements about the plaintiff that he knew were false and were made to humiliate, embarrass, and

harm the plaintiff as a candidate and damage his reputation in the community. Specifically, the

defendant allegedly stated that the plaintiff: "(a) *** exhibited a long pattern of misconduct with

children which was not acceptable for CHLL coaches; (b) *** abused players, coaches and umpires

in CHLL; and (3)*** was unfit to be assigned as a CHLL coach to insinuate to the community that

the plaintiff was guilty of inappropriate behavior with children and others associated with CHLL."

The plaintiff alleged that the defendant knowingly and intentionally made and published these

defamatory statements about the plaintiff to the CHLL board, members of CHLL, and residents of

the Village.
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The plaintiff further alleged that the defendant conspired with others to knowingly allow such

defamatory statements to be disseminated beyond the CHLL board. The defendant denied the

plaintiff an opportunity to respond to the false charges. The defendant also failed to set forth any

specific behavior of the plaintiff that justified barring him as a coach. The plaintiff alleged that in

January 2006 he again submitted his name to coach a CHLL team and his application was again

denied. The plaintiff alleged that the defendant's defamatory statements had damaged his reputation

in the community and his reputation as an attorney and dentist. Additionally, the plaintiff has had to

endure public ridicule and personal embarrassment.

In count I of the plaintiff's complaint, alleging defamation per se, the plaintiff realleged the

foregoing facts and alleged that the defendant intentionally made defamatory and false statements

about the plaintiff to one or more third parties, including the CHLL board, members of CHLL, and

residents of the Village. The defendant's statements allegedly impugned the plaintiff's character and

integrity as a dentist and an attorney and disparaged his reputation as a competent coach for youth

sports. In count II, for civil conspiracy, the plaintiff realleged the foregoing and further alleged that

the defendant engaged in a scheme with other members of the CHLL board and with the plaintiff's

political opponents to prevent the plaintiff from being assigned as a CHLL coach, to harm the

plaintiff's reputation, and to embarrass him politically and in the community. The plaintiff requested

compensatory and special damages in excess of $50,000 and punitive damages in excess of $100,000.

On April 14, 2006, the plaintiff issued subpoenas to each of the individual members of the

CHLL board. The subpoenas each contained 28 demands for production of documents. On April

26 and 27, respectively, the defendant filed a motion for a protective order to stay discovery and a

motion to quash the subpoenas, on behalf of all of the parties to whom the subpoenas were served.
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In his motion to stay discovery, the defendant indicated that he would be filing a motion to dismiss

the plaintiff's complaint. The defendant argued that the trial court had the power to stay discovery

in order to prevent unnecessary annoyance and expense. The defendant requested that the trial court

stay discovery until the defendant's motion to dismiss was resolved. On May 2, 2006, the defendant

filed a motion to dismiss the plaintiff's complaint pursuant to section 2--619.1 of the Code (735 ILCS

5/2--619.1 (West 2006)).

On May 10, 2006, a hearing was held on the defendant's motions to quash the subpoenas and

stay discovery. The plaintiff's counsel indicated that the subpoenas would provide information that

the plaintiff would like to use in an amended complaint. Defense counsel argued that there was no

point in allowing such extensive discovery until there was a ruling on the defendant's motion to

dismiss. The trial court noted that the documents being subpoenaed from the members of the CHLL

board would be available through the defendant since he was the president of the board. The trial

court did not find it appropriate to subpoena information from third parties until it was clear whether

the information would be available from the defendant. The trial court granted the motion to quash

and the motion to stay discovery.

On June 5, 2006, the plaintiff filed a motion for leave to amend his complaint and a motion

to vacate the protective order staying discovery. In addition to the original allegations, the amended

complaint alleged that the CHLL board held a meeting on March 4, 2005, to select coaches and

managers for the 2005 season and that the defendant made the allegedly defamatory statements about

the plaintiff to the board members and other Village residents at that meeting. The plaintiff named

the board members as David Killpack, Hartwell Morse, Eric Nolan, Steve Garnett, and Doug

Denlinger. The plaintiff specified that two of the Village residents were Terry Pocius and Mary
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Church Brown. The plaintiff also alleged that he had submitted his name to be a coach in January

2006. The plaintiff incorporated the original allegations and further alleged that the defendant had

made the same defamatory statements to the board members and Village residents at a February 27,

2006, CHLL board meeting held to select coaches for the 2006 season. The plaintiff added an

additional count for defamation per se based on the defendant's February 27, 2006, statements. In

sum, counts I and II of the amended complaint were for defamation per se and count III was based

on civil conspiracy.

On June 12, 2006, oral argument was held on the plaintiff's motion to amend his complaint

and motion to vacate the protective order staying discovery. The plaintiff indicated that his main

concern as to his inability to obtain discovery was the one-year statute of limitations on defamation

claims. The plaintiff acknowledged, however, that the statute was tolled by the filing of the

complaint. The plaintiff asserted that there were other publications made by other third parties that

would be revealed in the subpoenaed records. The trial court indicated that it was not concerned

about other potential defendants and invited the plaintiff to file additional suits against any third

parties. The trial court stated that it wanted to have an initial hearing on the defendant's motion to

dismiss before allowing further discovery. Therefore, the trial court granted the plaintiff's motion to

amend and continued the plaintiff's motion to vacate the protective order until after a hearing on the

motion to dismiss.

On June 16, 2006, the defendant filed a motion to dismiss the first amended complaint

pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 2006)). In his motion, the

defendant argued that the allegations did not state a claim for defamation or civil conspiracy.

Specifically, the defendant argued that the alleged statements were not defamatory per se. The
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defendant argued that there was no nexus between the alleged statements regarding the plaintiff's

suitability to be a little league coach and the plaintiff's ability as an attorney or dentist. Additionally,

the defendant argued that the alleged statements did not impute the commission of a criminal offense.

The defendant also argued that the statements were not actionable because they were

susceptible to an innocent interpretation. The defendant argued that "abuse" could mean verbal abuse

well below the level of criminal conduct. Additionally, the defendant argued that "misconduct" could

mean something as innocuous as taking the children to Dairy Queen without their parents' permission.

Finally, the defendant argued that the alleged statements were not actionable because they were

expressions of opinion and not fact. The defendant argued that the alleged statements were general

and not supported by any specific facts. For example, there was no explanation of the plaintiff's

temper, there was no description of any form of abuse, and there was no explanation of why the

plaintiff was unfit to coach. The defendant argued that the alleged statements were not actionable

because they were not tied to any particular verifiable factual circumstance.

On July 13, 2006, a hearing was held on the defendant's motion. Following argument, the trial

court noted what it thought were a number of peculiarities present in the plaintiff's complaint.

Specifically, the trial court noted that the complaint alleged that the defendant made the identical

defamatory statements on March 4, 2005, and February 27, 2006. The trial court also noted that, in

defamation suits, the alleged defamatory statements are usually very specific and surrounded by

quotation marks. The trial court noted that the defamatory statements alleged in the plaintiff's

complaint seemed to be summations of what may have been said. The trial court also noted that the

complaint alleged only that the statements may have been made to some people, but was not specific

as to who was there when the statements were made.
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Thereafter, the trial court determined that the plaintiff's complaint failed to state a cause of

action for defamation or civil conspiracy. The trial court stated that the alleged defamatory

statements were insufficient as a matter of law to state a claim for defamation per se. The trial court

also found that the statements were simply opinions capable of innocent construction. The trial court

thus dismissed counts I and II for defamation per se. The trial court then dismissed count III for civil

conspiracy because it was dependent on the defamation claims in counts I and II. The trial court

clarified that it was a dismissal without prejudice and cautioned the plaintiff to review Supreme Court

Rule 137 (155 Ill. 2d R. 137) prior to filing any further pleadings. The trial court denied the plaintiff's

motion to vacate the protective order staying discovery. Finally, the trial court granted the plaintiff

30 days to file an amended pleading.

On August 10, 2006, the plaintiff stood on his first amended complaint and filed a motion to

reconsider the order dismissing that complaint and the order denying him the right to subpoena

relevant documents from third parties in support of his claims. On September 21, 2006, following

a hearing, the trial court denied the motion to reconsider. Thereafter, the plaintiff filed a timely notice

of appeal.

ANALYSIS

On appeal, the defendant argues that the trial court erred in granting the defendant's motion

to dismiss and in denying him the right to conduct additional discovery.

"The question presented by a section 2--615 motion to dismiss is whether the

allegations of the complaint, when viewed in a light most favorable to the plaintiff, are

sufficient to state a cause of action upon which relief can be granted. [Citation.] Illinois is

a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient
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complaint. [Citation.] The plaintiff is not required to prove his or her case, but must allege

sufficient facts to state all the elements of the asserted cause of action. [Citation.]

When ruling on a section 2--615 motion to dismiss, the trial court should admit all

well-pleaded facts as true and disregard legal and factual conclusions that are unsupported

by allegations of fact. [Citation.] If, after disregarding any legal and factual conclusions, the

complaint does not allege sufficient facts to state a cause of action, the trial court must grant

the motion to dismiss. [Citation.] The standard of review on a section 2--615 dismissal is de

novo. [Citation.]" Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill. App. 3d 177,

182 (2003).

A. Relevant Case Law on Defamation Per Se

A statement is defamatory if it "tends to cause such harm to the reputation of another that it

lowers that person in the eyes of the community or deters third persons from associating with [him]."

Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87 (1996). "To state a defamation claim,

a plaintiff must present facts that a defendant made a false statement about a plaintiff, [that] the

defendant made an unprivileged publication of that statement to a third party, and that this publication

caused damages." Seith v. Chicago Sun-Times, Inc., 371 Ill. App. 3d 124, 134 (2007). If a plaintiff

alleges that a statement is defamatory per se, he need not plead or prove actual damages to his

reputation; statements that are defamatory per se "are thought to be so obviously and materially

harmful to the plaintiff that injury to [his] reputation may be presumed." Bryson, 174 Ill. 2d at 87.

Illinois recognizes five categories of statements that are defamatory per se: (1) those imputing the

commission of a criminal offense; (2) those imputing infection with a communicable disease; (3) those

imputing an inability to perform or want of integrity in the discharge of duties of office or
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employment; (4) those that prejudice a party or impute lack of ability in the party's trade, profession,

or business; and (5) those imputing adultery or fornication. Bryson, 174 Ill. 2d at 88-89. The

plaintiff alleges that the defendant's statements fall within the first, third, and fourth categories of

defamation per se.

Even if a statement falls into one or more of these categories, a statement will not be deemed

defamatory per se if it is reasonably capable of an "innocent construction." Bryson, 174 Ill. 2d at 90.

The "innocent construction rule" "requires a court to consider the statement in context and to give

the words of the statement, and any implications arising from them, their natural and obvious

meaning." Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 580 (2006). A court

must interpret the words of the statement as they appear to have been used and according to the idea

they were intended to convey to the reasonable reader. Bryson, 174 Ill. 2d at 93. When the

defendant clearly intended and unmistakably conveyed a defamatory meaning, a court should not

strain to see an inoffensive gloss on the statement. Bryson, 174 Ill. 2d at 93. The preliminary

determination of whether the innocent construction rule applies is a question of law for the court, and

whether the statement was understood to be defamatory or to refer to the plaintiff is a question for

the jury if the innocent construction issue is resolved in the plaintiff's favor. Tuite v. Corbitt, 224 Ill.

2d 490, 503 (2006). The innocent construction rule has been deemed a proper ground for dismissal

of a complaint pursuant to section 2--615. Tuite v. Corbitt, 358 Ill. App. 3d 889, 900 (2005).

Additionally, if a statement is defamatory per se, but not subject to an innocent construction,

it still may enjoy constitutional protection under the first amendment. Solaia Technology, 221 Ill. 2d

at 581. The first amendment to the United States Constitution states, in part, that "Congress shall

make no law *** abridging the freedom of speech ***." U.S. Const., amend. I. The United States
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Supreme Court has long held that its provisions are also binding on the states through the due process

clause of the fourteenth amendment. Imperial Apparel, 227 Ill. 2d at 393, citing Murdock v.

Pennsylvania, 319 U.S. 105, 108, 87 L. Ed. 1292, 1295-96, 63 S. Ct. 870, 872 (1943). The

provisions of the first amendment have been interpreted as limiting the reach of state defamation law.

Imperial Apparel, 227 Ill. 2d at 394.

"Whether and to what extent the Constitution constrains state defamation law depends

on the circumstances of the case at issue. Two considerations must be taken into account.

The first is whether the plaintiff is a public figure or official or is, instead, *** a private figure.

The second is whether the speech at issue is of public concern. [Citation.]" Imperial Apparel,

227 Ill. 2d at 394.

The question of whether the plaintiff is a public or private figure affects the standard of

liability. If the plaintiff is a public figure, the first amendment precludes him from obtaining redress

in a defamation action unless he can prove that the allegedly defamatory statements were made with

actual malice. Imperial Apparel, 227 Ill. 2d at 394. If the plaintiff is a private figure, the first

amendment does not impose any restriction on the liability standards that states may adopt. Imperial

Apparel, 227 Ill. 2d at 394. In Illinois, ordinary negligence is the liability standard. Troman v. Wood,

62 Ill. 2d 184, 198 (1975).

In contrast to a plaintiff's status, the content of the challenged speech bears on the standard

that must be satisfied in order to recover punitive damages. Imperial Apparel, 227 Ill. 2d at 395.

Specifically, "[w]here the cause of action is based on defamatory statements concerning a matter of

public concern, punitive damages may not be imposed absent a showing of actual malice." Imperial

Apparel, 227 Ill. 2d at 395.
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In addition to governing standards regarding fault, falsity, and punitive damages, the first

amendment imposes limits on the type of speech that may be the subject of state defamation actions.

Imperial Apparel, 227 Ill. 2d at 397. Specifically, in Milkovich v. Lorain Journal Co., 497 U.S. 1,

20, 111 L. Ed. 2d 1, 19, 110 S. Ct. 2695, 2706 (1990), the Supreme Court held that a statement will

receive first amendment protection only if it "cannot be reasonably interpreted as stating actual facts"

about the plaintiff. The Milkovich Court balanced the first amendment's guarantee of free, uninhibited

discussion with society's interest in preventing and redressing attacks on reputation. Milkovich, 497

U.S. at 22, 111 L. Ed. 2d at 20, 110 S. Ct. at 2707-08. The Court rejected what it called "an artificial

dichotomy between opinion and fact" and noted that expressions of opinion may often imply

assertions of objective fact and, in such cases, would be considered actionable. See Milkovich, 497

U.S. at 19, 111 L. Ed. 2d at 18, 110 S. Ct. at 2706; see also Howell v. Blecharczyck, 119 Ill. App.

3d 987, 993 (1983) (a statement of opinion that implies the existence of an undisclosed defamatory

fact is actionable).

To determine whether a statement reasonably presents or implies the existence of facts about

the plaintiff, we review three considerations: "whether the statement has a precise and readily

understood meaning, whether the statement is verifiable, and whether the statement's literary or social

context signals that it has factual content." Solaia Technology, 221 Ill. 2d at 581. In doing so, we

bear in mind that the first amendment protects overly loose, figurative, rhetorical, or hyperbolic

language, which negates the impression that the statement actually presents facts. Hopewell v.

Vitullo, 299 Ill. App. 3d 513, 518 (1998). Whether a statement qualifies as constitutionally protected

speech under the first amendment is a matter of law for the court to decide. Hopewell, 299 Ill. App.
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3d at 518. To determine whether a statement is fact or opinion, a court must evaluate the totality of

the circumstances. Piersall v. SportsVision of Chicago, 230 Ill. App. 3d 503, 510 (1992).

"The principle that an allegedly defamatory statement is protected by the first amendment

unless the plaintiff shows that the statement is factual has been found to apply to three types of

actions: those brought by public officials, those brought by public figures, and those brought by

private individuals against media defendants." Imperial Apparel, 227 Ill. 2d at 398-99. "Whether the

privilege afforded by the first amendment to statements that are not factual also extends to statements

made by one private party about another on a matter of purely private concern is unsettled." Imperial

Apparel, 227 Ill. 2d at 399.

B. Defamation Per Se: Application of Law to the Facts of this Case

1. Defamation Per Se and the Innocent Construction Rule

In the present case, the allegations in the plaintiff's complaint state a cause of action for

defamation per se. The plaintiff alleged that the defendant made three defamatory statements: (1) that

the plaintiff exhibited a long pattern of misconduct with children, (2) that the plaintiff abused players,

coaches, and umpires in CHLL; and (3) that the plaintiff was unfit to be assigned as a CHLL coach.

The complaint indicates that, in addition to having served as a CHLL coach for the 2000 through

2004 seasons, the plaintiff is a practicing attorney and dentist. The first two alleged statements are,

at a minimum, defamatory under the fourth category of defamation per se because the statements are

prejudicial to the plaintiff in his dental and legal professions.

"Statements that have been deemed defamatory per se by Illinois courts under the third and/or

fourth categories have always been related to job performance; to succeed, the plaintiff must have

been accused of lacking ability in his trade or doing something bad in the course of carrying out his
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job." (Emphasis in original.) Cody v. Harris, 409 F.3d 853, 857 (7th Cir. 2005), citing Clarage v.

Kuzma, 342 Ill. App. 3d 573 (2003), and Parker v. House O'Lite Corp., 324 Ill. App. 3d 1014

(2001). For example, in Parker, the plaintiff, whose job was drafting lighting specifications for a new

hospital, was accused of rigging the specifications so that only his brother-in-law would be able to

qualify for the job. Parker, 324 Ill. App. 3d at 1019. This alleged " 'want of integrity' " was in

performing the plaintiff's duties of employment, and the court stated that it constituted defamation

per se. Parker, 324 Ill. App. 3d at 1025, quoting Van Horne v. Muller, 185 Ill. 2d 299, 307 (1998).

Conversely, attacks related to personal integrity and character have not been deemed

defamatory per se. Cody, 409 F.3d at 858, citing Heying v. Simonaitis, 126 Ill. App. 3d 157 (1984).

"In Heying, the court held that statements made by doctors regarding personality conflicts between

the plaintiff nurse and her fellow employees did not impugn her ability as a nurse." Cody, 409 F.3d

at 858, citing Heying, 126 Ill. App. 3d at 164. Nonetheless, "[i]n some cases, personal integrity is

so intertwined with job skills, that an attack upon it could constitute defamation per se." Cody, 409

F.3d at 858, citing Kumaran v. Brotman, 247 Ill. App. 3d 216 (1993). In Kumaran, the court found

that the plaintiff stated a cause of action for defamation per se where a newspaper article alleged that

the plaintiff had brought several nonmeritorious lawsuits to "scam" settlement money from the

defendants. Kumaran, 247 Ill. App. 3d at 225. The court concluded that the accusations contained

in the article prejudiced the plaintiff in his profession as a substitute teacher "because a teacher would

be expected to set a good example and function as a role model for his young, impressionable

students." Kumaran, 247 Ill. App. 3d at 227. The court essentially concluded that personal integrity

was a job requirement for being a teacher.
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The facts in the present case present a situation similar to that in Kumaran. The first two

alleged defamatory statements accuse the plaintiff of engaging in misconduct that could impute a lack

of ability and prejudice the plaintiff in his dental and legal professions. Similar to the holding in

Kumaran that personal integrity is a job requirement for teachers, both the dental and legal

professions require persons admitted to practice to be of good moral character. See 225 ILCS

25/9(b) (West 2006); 188 Ill. 2d R. 701(a). Additionally, the Illinois Dental Practice Act prohibits

engaging in "dishonorable, unethical, or unprofessional conduct of a character likely to *** harm the

public." 225 ILCS 25/23(11) (West 2006). Accordingly, the allegations that the plaintiff had a long

pattern of misconduct with children and abused players, coaches, and umpires in CHLL impute a lack

of ability and are prejudicial to the plaintiff's dental and legal professions since such professions

require a high level of moral character. Misconduct and abuse, especially as to children, is

undoubtedly the type of behavior that would lower the public's perception of the plaintiff's moral

character. Moreover, the statements are prejudicial to the plaintiff in his dental profession because

it is likely that some of the plaintiff's patients are children. The parents of those children would be

reluctant to send them to a dentist who "exhibited a long pattern of misconduct with children" and

"abused" children.

Turning to the third alleged statement--that the plaintiff was unfit to be assigned as a CHLL

coach--we hold that it is not defamatory per se, because it does not prejudice the plaintiff or impute

a lack of ability in his professions. Rather, it is capable of an innocent construction. In Anderson v.

Vanden Dorpel, 172 Ill. 2d 399, 415 (1996), our supreme court held that an employer's comments

to an employee's prospective employer that she did not "follow up on assignments" and did not get

along with her coworkers could reasonably be construed to signify "nothing more than that the
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plaintiff did not fit in with [the defendant's] organization and perform well in that particular position."

The court determined that, because it was capable of such an innocent construction, it would not

support an action for defamation per se. Anderson, 172 Ill. 2d at 416. The defendant's alleged

statement that the plaintiff was unfit to coach can reasonably be construed in a similar fashion. It

could mean nothing more than that the plaintiff did not fit in with the board members of CHLL. As

it can be innocently construed, it does not support an action for defamation per se. Anderson, 172

Ill. 2d at 416.

We must next consider whether the first two alleged defamatory statements, which we

determined to be defamatory per se, are capable of an innocent construction. Construing the

complaint in the light most favorable to the plaintiff, we hold that the defendant's alleged statements,

when they are considered in context and their words and implications are given their natural and

obvious meaning, are not reasonably capable of an innocent construction. Although there are varying

levels of misconduct and abuse of children, any degree of such behavior can hardly be considered

innocent. In this context, we cannot find an innocent construction for the defendant's alleged

statements.

In his appellee brief, the defendant relies on Harrison v. Chicago Sun-Times, Inc., 341 Ill.

App. 3d 555, 570 (2003), for the proposition that the defendant's alleged statements are susceptible

of an innocent construction. In Harrison, the defendant published a news story that stated that the

plaintiff had kidnapped her child. Harrison, 341 Ill. App. 3d at 560. The plaintiff argued that the

defendant's news story was defamatory per se because it imputed the commission of a criminal

offense. Harrison, 341 Ill. App. 3d at 562-63. Even though the word "kidnapped" carried a specific

meaning denoting a crime under the Illinois criminal statutes, the court found that it was susceptible
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of an innocent construction because there were also noncriminal meanings of the word. See Harrison,

341 Ill. App. 3d at 570-71 (noting that in custody and Hague Convention contexts the reasonable

construction of the word "kidnapped" does not refer to the violation of a criminal statute).

Harrison may have been persuasive here if the defendant's alleged statements were defamatory

per se on the basis that they imputed the commission of a criminal offense. It is reasonable to argue

that there may be noncriminal contexts for misconduct with children and abuse of players in CHLL.

However, because the defendant's alleged statements are defamatory per se because they prejudice

the plaintiff in his professions, Harrison is not persuasive.

2. First Amendment Protection

Finally, as explained in Imperial Apparel, we must address whether the alleged defamatory

statements are protected by the first amendment, thus precluding or constraining the plaintiff's

defamation claims. Relative to first amendment constraints on state defamation law, we must address

the status of the parties, the standard of liability, and the standard for punitive damages. The first

consideration is whether the plaintiff is a public official or is merely a private figure. In his complaint,

the plaintiff alleged that in January 2005 he announced that he was a candidate for Village trustee and

that the election was to be held on April 5, 2005. Candidates for public office have been held to be

public officials for defamation purposes. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed.

2d 35, 41, 91 S. Ct. 621, 625 (1971) (stating that the first amendment "has its fullest and most urgent

application precisely to the conduct of campaigns for political office"). Accordingly, the plaintiff was

a public official for defamation purposes from the time he announced his campaign for trustee until

the election in April 2005. Count I is based on alleged defamatory statements made on March 4,

2005. Since these statements were during the plaintiff's political campaign, he is a public official as
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to count I. However, count II is based on statements that were made on February 27, 2006. This

court can take judicial notice of the Du Page County Election Commission website that shows the

plaintiff lost his campaign for Village trustee. Nordine v. Illinois Power Co., 32 Ill. 2d 421, 428

(1965) (courts may take judicial notice of public records); see also www.dupageelections.com (April

5, 2005, consolidated election). Accordingly, the plaintiff is a private figure as to count II and the

liability standard is ordinary negligence. See Troman, 62 Ill. 2d at 198.

With respect to the liability standard of count I, we must next address whether the alleged

defamatory statements relate to the plaintiff's official conduct. In New York Times Co. v. Sullivan,

376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726 (1964), the Supreme Court held

that the first and fourteenth amendments require "a federal rule that prohibits a public official from

recovering damages for a defamatory falsehood relating to his official conduct unless he proves that

the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless

disregard of whether it was false or not." (Emphasis added.) That the actual malice standard applies

only to comments relating to "official conduct" has been broadly construed to reach "anything which

might touch on an official's fitness for office." Garrison v. Louisiana, 379 U.S. 64, 77, 13 L. Ed. 2d

125, 134, 85 S. Ct. 209, 217 (1964). As many things can touch on someone's "fitness for office," this

restriction to the actual malice standard is rarely applied. Dixon v. International Brotherhood of

Police Officers, 504 F.3d 73, 88 (1st Cir. 2007). As explained in Monitor Patriot Co., 401 U.S. at

274-75, 28 L. Ed. 2d at 42, 91 S. Ct. at 627-28:

"Indeed, whatever vitality the 'official conduct' concept may retain with regard to occupants

of public office, [citation] it is clearly of little applicability in the context of an election

campaign. The principal activity of a candidate in our political system *** consists in putting
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before the voters every conceivable aspect of his public and private life that he thinks may

lead the electorate to gain a good impression of him. *** Any test adequate to safeguard

First Amendment guarantees in this area must go far beyond the customary meaning of the

phrase 'official conduct.'

Given the realities of our political life, it is by no means easy to see what statements

about a candidate might be altogether without relevance to his fitness for the office he seeks."

Based on the foregoing, we conclude that the alleged defamatory statements contained in count I of

the plaintiff's first amended complaint, accusing the plaintiff of a long pattern of misconduct with

children and abuse of children and others in CHLL, relate to the plaintiff's fitness for office and that

the actual malice standard applies.

Under the New York Times standard, a statement has been made with actual malice if it was

made "with knowledge that it was false or with reckless disregard of whether it was false or not."

New York Times, 376 U.S. at 280, 11 L. Ed. 2d at 706, 84 S. Ct. at 726. In the present case, the

plaintiff properly alleged actual malice. Specifically, in paragraph 24 of his first amended complaint,

the plaintiff stated that the defendant made the alleged defamatory statements "which he knew were

false." See Krueger v. Lewis, 342 Ill. App. 3d 467, 473 (2003) (actual malice was sufficiently alleged

where the complaint stated that the statements were made by the defendant " 'in full knowledge that

they were untrue or in reckless disregard of their truth or falsity' "). Thus, the plaintiff has properly

alleged the elements of a defamation claim as required by the first amendment and sufficient to survive

a section 2--615 motion to dismiss. In summary, the plaintiff is a public official as to count I and a

private figure as to count II. The plaintiff has properly alleged actual malice in count I.
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The second consideration is whether the speech at issue is of public concern. If so, punitive

damages may not be imposed absent a showing of actual malice. This consideration is relevant

because the plaintiff requested punitive damages in counts I and II. Whether a publication addresses

a matter of public concern "must be determined by the content, form, and context of a given

statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d

708, 720, 103 S. Ct. 1684, 1690 (1983). A matter of public concern is any matter of political, social,

or other concern in the community, rather than merely a personal grievance. Connick, 461 U.S. at

146, 75 L. Ed. 2d at 719, 103 S. Ct. at 1690. Whether statements address a matter of public concern

is a question of law. Landstrom v. Illinois Department of Children & Family Services, 892 F.2d 670,

678-79 (7th Cir. 1990).

In the present case, the defendant allegedly indicated that the plaintiff exhibited a long pattern

of misconduct with children and abused players, coaches, and umpires in CHLL. This content is a

matter of public concern to the Village community. See Terry v. Davis Community Church, 131 Cal.

App. 4th 1534, 1547, 33 Cal. Rptr. 3d 145, 154 (2005) (youth group leader's alleged misconduct was

matter of public concern because public has interest in matters affecting its youth); Turner v. Devlin,

174 Ariz. 201, 205, 848 P.2d 286, 290 (1993) (police conduct, especially with respect to treatment

of children, was matter of public concern). The form and context of the statements also favor a

determination that the alleged defamatory statements are a matter of public concern. The statements

were made by the defendant, as president of CHLL, during times that the CHLL board was choosing

coaches and managers for the upcoming season. Although the alleged statements were made only

to a limited number of people, they are not thereby deprived of first amendment protection. See

Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158, 165 (2d Cir. 2006)
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(although a defamatory letter was sent only to one person and the members of the board of education,

this fact did not remove it from first amendment protection). Moreover, the statements are not

merely a personal grievance. Rather, since the statements were made when the CHLL board was

choosing coaches and managers for the upcoming season, the purpose of the statements was to alter

public opinion or to bring alleged wrongdoing to light. Such a purpose indicates that the statements

are a matter of public concern. See Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985)

(speech is a matter of public concern if it was made for the purpose of bringing wrongdoing to light

or to raise issues of public concern, rather than to further some purely private interest).

Accordingly, because the statements at issue are a matter of public concern, punitive damages

may not be imposed absent a showing of actual malice. As stated, the plaintiff properly alleged actual

malice in count I, which was required because the plaintiff is a public official as to that count. The

plaintiff also properly alleged actual malice as to count II. Specifically, in paragraph 33 of the first

amended complaint, the plaintiff alleged that the defendant made the defamatory statements "which

he knew were false." See New York Times, 376 U.S. at 280, 11 L. Ed. 2d at 707, 84 S. Ct. at 726

(a statement has been made with actual malice if it was made with knowledge that it was false). Thus,

the plaintiff's requests for punitive damages are legally sufficient.

Having determined the constraints the first amendment places on this defamation suit, we must

next address whether the alleged statements are constitutionally protected under the first amendment

as stating actual fact. As stated above, courts consider several factors in determining whether a

statement is factual. First, courts look to whether the statement has a precise and readily understood

meaning. Solaia Technology, 221 Ill. 2d at 581. The term "misconduct" is defined as "[a] dereliction

of duty; unlawful or improper behavior." Black's Law Dictionary 1013 (7th ed. 1999). The term
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"abuse," relative to the treatment of others, is defined as "physical or mental maltreatment, often

resulting in mental, emotional, sexual, or physical injury." Black's Law Dictionary 10 (8th ed. 2004).

Here, the statements that the plaintiff "exhibited a long pattern of misconduct" and "abused players,

coaches, and umpires" have a readily understood meaning. Such statements would conjure up images

in the listeners' minds of verbal abuse, sexual abuse, or some type of physical abuse. However, the

statements are not precise in the sense that they do not give insight into the exact type of abuse or

misconduct to which the defendant was referring. Thus, this consideration does not significantly aid

our analysis.

We next consider whether the statements are susceptible to being objectively verifiable as true

or false. Solaia Technology, 221 Ill. 2d at 581. Viewing the complaint in the light most favorable

to the plaintiff, we believe that the defendant's statements are susceptible to being objectively

verifiable. The plaintiff's amended complaint alleges that he had been a CHLL coach for the 2000

through 2004 seasons. Information could be gathered from those who interacted with the plaintiff

during those seasons to determine if the defendant's allegations are true.

Finally, we consider whether the statements' social context signals that they have factual

content. Solaia Technology, 221 Ill. 2d at 581. In Gregory v. McDonnell Douglas Corp., 17 Cal.

3d 596, 552 P.2d 425, 131 Cal. Rptr. 641 (1976), the California Supreme Court noted that the social

context in which words were used had to be considered when characterizing those words as fact or

opinion:

"Thus, where potentially defamatory statements are published in a public debate, a heated

labor dispute, or in another setting in which the audience may anticipate efforts by the parties

to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language
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which generally might be considered as statements of fact may well assume the character of

statements of opinion." Gregory, 17 Cal. 3d at 601, 552 P.2d at 428, 131 Cal. Rptr. at 644.

In the present case, the social context signals that the defendant's alleged statements have

factual content. A CHLL board meeting where the members are picking coaches for the coming

season is not the type of social context where one would expect the use of "epithets, fiery rhetoric

or hyperbole." Moreover, the defendant's allegations were not merely that the plaintiff was abusive,

rude, or incapable of appropriately managing a little league team. The defendant allegedly stated that

the plaintiff "exhibited a long pattern of misconduct" and "abused" CHLL players, coaches, and

umpires. A "pattern" of misconduct implies that the plaintiff engaged in a series of acts of misconduct

against children. See Black's Law Dictionary 1149 (7th ed. 1999) (defining "pattern" as "[a] mode

of behavior or series of acts that are recognizably consistent"). Here, by using the terms "exhibited

a long pattern of misconduct" and "abused," the defendant implies that his statements are based on

specific factual events. See Moriarty v. Greene, 315 Ill. App. 3d 225, 235 (2000), quoting Haynes

v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) (a statement is actionable if a defendant

is claiming to be in possession of objectively verifiable facts, rather than exploring a "subjective view,

an interpretation, a theory, conjecture or surmise"); see also Howell, 119 Ill. App. 3d at 993 (a

statement that implies the existence of an undisclosed defamatory fact is actionable).

Under the relevant considerations, the defendant's alleged statements can be reasonably

interpreted as stating actual facts about the plaintiff and are, therefore, not entitled to first amendment

protection. See Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706. Thus, the

plaintiff's first amended complaint states a cause of action for defamation per se. In light of this

determination, we reverse the trial court's order dismissing the plaintiff's amended complaint.
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In so ruling, we note that in Imperial Apparel the court stated that this principle, that an

alleged defamatory statement is protected by the first amendment unless the plaintiff shows that the

statement is factual, had been applied to actions by public officials. This is the situation presented by

count I. However, the court further noted that whether the privilege afforded by the first amendment

to statements that are not factual extends to statements made by one private party about another on

a matter of purely private concern was unsettled. Imperial Apparel, 227 Ill. 2d at 399. Additionally,

the supreme court did not comment on whether the privilege has been extended to statements made

by a private party to a nonmedia defendant on a matter of public concern, the situation presented by

count II of the plaintiff's amended complaint. Nonetheless, as in Imperial Apparel, we need not

resolve these issues, because the statements at issue purportedly state actual fact and are not afforded

first amendment protection.

We further note that the defendant relies on Doherty v. Kahn, 289 Ill. App. 3d 544, 557

(1997), abrogated on other grounds, Soh v. Target Marketing Systems, Inc., 353 Ill. App. 3d 126,

131 (2004), and Wynne v. Loyola University of Chicago, 318 Ill. App. 3d 443, 452 (2000), in arguing

that the statements at issue are mere expressions of opinion. In Doherty, the plaintiff filed a complaint

for defamation per se based on statements the defendant allegedly made to the plaintiff's potential

landscaping customers. Doherty, 289 Ill. App. 3d at 554. The defendant allegedly stated that the

plaintiff "was 'incompetent,' 'lazy,' 'dishonest,' 'cannot manage a business,' and/or 'lacks the ability to

perform landscaping services.' " Doherty, 289 Ill. App. 3d at 554. The reviewing court found that

these statements were mere expressions of opinion. Doherty, 289 Ill. App. 3d at 556. In the present

case, unlike in Doherty, the defendant did not simply state that the plaintiff was abusive, rude, or

unfit, had a bad temper, or was incapable of coaching a CHLL team. As explained above, in context,
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the defendant's alleged statements implied that there was a specific factual basis for his statements.

Thus, we do not find Doherty persuasive.

In Wynne, the plaintiff's claim for defamation per se was based on a memo that the defendant

had written regarding the plaintiff. Wynne, 318 Ill. App. 3d at 447. In the memo, the defendant

wrote that the plaintiff made " 'bizarre telephone calls' " to colleagues; the plaintiff " 'appeared to

wheedle, persuade, nag, and domineer' " for changes in the university's special education program;

" 'nothing ever seemed to satisfy [the plaintiff]' "; the defendant found meetings involving the plaintiff

to be " 'uniformly unpleasant' "; and the plaintiff " 'began striking various deals' " with the dean.

Wynne, 318 Ill. App. 3d at 452. At the start of the memo, the defendant had cautioned that what was

written was " 'simply a summary of [the defendant's] own feelings about [her] experiences with [the

plaintiff].' " Wynne, 318 Ill. App. 3d at 452. The reviewing court determined that none of these

words were defamatory per se, because they were not capable of verification and the defendant was

merely expressing her opinion. Wynne, 318 Ill. App. 3d at 452.

Wynne is also unpersuasive. As explained by the Wynne court: "in one sense all opinions

imply facts, the question of whether a statement of opinion is actionable as defamation is one of

degree; the vaguer and more generalized the opinion, the more likely the opinion is nonactionable as

a matter of law." Wynne, 318 Ill. App. 3d at 452. Viewed in context, the statements in Wynne were

vaguer and more general than the statements at issue in the present case and it was clear that the

Wynne defendant was simply stating her opinion. In the present case, the statements that the plaintiff

exhibited a long pattern of misconduct and abused players, coaches, and umpires in CHLL, when

viewed in context, were more specific and implied that the defendant had a factual basis for his
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statements. Additionally, unlike in Wynne, there was no specific indication that the statements were

merely the defendant's opinion.

C. Discovery

The plaintiff's second contention on appeal is that the trial court abused its discretion when

it stayed discovery until it ruled on the defendant's motion to dismiss. "A trial court has great latitude

in ruling on discovery matters. [Citation.] A trial court's rulings on such matters will not be disturbed

absent a manifest abuse of discretion." Adkins Energy, 347 Ill. App. 3d at 380-81. "A court abuses

its discretion only where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable

person would adopt the court's view." Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App. 3d 504,

513 (2005).

We cannot say that the trial court abused its discretion in staying discovery pending a ruling

on the defendant's motion to dismiss. See Adkins Energy, 347 Ill. App. 3d at 381 (reviewing court

found that the trial court did not abuse its discretion in staying discovery until it resolved whether the

plaintiff's complaint stated a cause of action). The trial court explained that the information being

subpoenaed from the CHLL board members should have been available from the defendant as

president of the CHLL. The trial court did not find it appropriate to subpoena information from third

parties until it was clear whether the information would be available from the defendant. At a hearing

on the plaintiff's motion to vacate the protective order staying discovery, the plaintiff asserted that

his main concern with the inability to obtain discovery was the one-year statute of limitations on

defamation claims. The plaintiff acknowledged at the hearing, however, that the statute was tolled

by the filing of the complaint. Under these circumstances, the trial court's determination was not

unreasonable. Moreover, because we determined that the plaintiff's first amended complaint stated
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a cause of action for defamation per se, the protective order staying discovery did not harm the

plaintiff. See Adkins Energy, 347 Ill. App. 3d at 381 (indicating that an order staying discovery

would be harmful if discovery were necessary to resist a motion to dismiss).

D. Civil Conspiracy

Finally, we address whether the trial court properly dismissed count III, the plaintiff's claim

for civil conspiracy. " 'Civil conspiracy consists of a combination of two or more persons for the

purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose

by unlawful means.' " Karas v. Strevell, 227 Ill. 2d 440, 466 (2008), quoting Adcock v. Brakegate,

Ltd., 164 Ill. 2d 54, 62 (1994). "Conspiracies are often intentionally 'shrouded in mystery,' which by

nature makes it difficult for the plaintiff to allege with complete specificity all of the details of the

conspiracy." Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill. App. 3d 759, 771 (2007), quoting

Adcock, 164 Ill. 2d at 66. However, "the complaint must contain more than the conclusion that there

was a conspiracy, it must allege specific facts from which the existence of a conspiracy may properly

be inferred." Fritz v. Johnston, 209 Ill. 2d 302, 318 (2004). "The mere characterization of a

combination of acts as a conspiracy is insufficient to withstand a motion to dismiss." Buckner v.

Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23 (1998).

In the present case, in addition to incorporating the allegations contained in the defamation

claims, the plaintiff alleged:

"53. On information and belief, Defendant engaged in a scheme with Hartwell Morse

and Eric Nolan, and with Plaintiff's political opponents, including Terry Pocius, Mary Church

Brown and Paul Pederson, to defame Plaintiff by disseminating false statements about Plaintiff
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being involved in a long pattern of misconduct and being unfit to coach in CHLL so as to

harm Plaintiff's reputation and to embarrass him in the community."

The plaintiff additionally alleged that, in furtherance of the conspiracy, the defendant intentionally

published and otherwise disseminated the defamatory statements at issue.

The plaintiff's allegations fail to state a cause of action for civil conspiracy. "In Illinois, a

plaintiff must plead the facts essential to his cause of action; unsupported conclusions are not

enough." Buckner, 182 Ill. 2d at 24. Here, the complaint does not allege any concert of action on

the part of Hartwell Morse, Eric Nolan, and Paul Pederson. The complaint never identifies Morse,

Nolan, or Pederson, or the roles they played in the case. The complaint merely indicates that Nolan

and Morse were two of the people to whom the defamatory statements were made and that Pederson

was a political opponent. With respect to Pocius and Brown, the complaint indicated that Pocius was

a prior Village trustee and that Brown was a resident of the Village. The complaint also indicated

that Pocius and Brown informed the plaintiff's running mates, during the plaintiff's campaign for

Village trustee, of the defendant's alleged defamatory statements made in March 2005. However, the

fact that Pocius and Brown may have repeated the defendant's alleged defamatory statements is not

evidence of a conspiracy. See McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133-34

(1999) ("[a]ccidental, inadvertent, or negligent participation in a common scheme does not amount

to conspiracy"). The plaintiff has provided nothing more than a conclusory allegation that a

conspiracy existed. Such conclusory allegations are not sufficient to state a cause of action for

conspiracy. See Buckner, 182 Ill. 2d at 24. Although the trial court dismissed the conspiracy claim

on the basis that it was dependent on the defamation claims, we may affirm on any basis appearing
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in the record regardless of the trial court's reasoning. Bell Leasing Brokerage, LLC v. Roger Auto

Service, Inc., 372 Ill. App. 3d 461, 469 (2007).

CONCLUSION

For the foregoing reasons, we reverse the judgment of the circuit court of Du Page County

dismissing the plaintiff's claims for defamation per se (counts I and II) and remand for additional

proceedings consistent with this opinion. However, we affirm the dismissal of the plaintiff's claim for

civil conspiracy (count III).

Affirmed in part and reversed in part; cause remanded.

BOWMAN and HUTCHINSON, JJ., concur.