                        Nos. 2--07--0173 & 2--07--0204 cons. Filed: 2-1-08
______________________________________________________________________________

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

J. MAKI CONSTRUCTION COMPANY           )   Appeal from the Circuit Court
and JOHN MAKI, SR.,                    )   of Lake County.
                                       )
      Plaintiffs-Appellees,            )
                                       )
v.                                     )   No. 05--L--503
                                       )
CHICAGO REGIONAL COUNCIL OF            )
CARPENTERS, JOEL POGOSE, DANIEL        )
McMAHON, and RANDY DROGOS,             )   Honorable
                                       )   Mitchell L. Hoffman,
      Defendants-Appellants.           )   Judge, Presiding.
______________________________________________________________________________

J. MAKI CONSTRUCTION COMPANY           )   Appeal from the Circuit Court
and JOHN MAKI, SR.,                    )   of Lake County.
                                       )
      Plaintiffs-Appellants,           )
                                       )
v.                                     )   No. 05--L--503
                                       )
CHICAGO REGIONAL COUNCIL OF            )
CARPENTERS, JOEL POGOSE, DANIEL        )
McMAHON, and RANDY DROGOS,             )   Honorable
                                       )   Mitchell L. Hoffman,
      Defendants-Appellees.            )   Judge, Presiding.
______________________________________________________________________________

        JUSTICE BOWMAN delivered the opinion of the court:

        There once was a union that called plaintiffs' work crappy; this made plaintiffs quite

unhappy; at trial, the jury filled plaintiffs' purse; but, alas, on appeal, we must reverse.
Nos. 2--07--0173 & 2--07--0204 cons.



       On May 10, 2006, plaintiffs, J. Maki Construction Company and John Maki, Sr., filed

their second amended complaint alleging two counts of defamation against defendants, the

Chicago Regional Council of Carpenters (the Union), Joel Pogose, Daniel McMahon, and Randy

Drogos. In count I, plaintiffs alleged that a handbill, containing a limerick, that defendants

handed out to members of the public was defamatory, imputing to plaintiffs professional

incompetence. In count II, plaintiffs alleged that a banner that defendants published at public

sites contained defamatory statements imputing to Maki a criminal conviction. On September

13, 2006, the trial court granted summary judgment in favor of defendants as to count II of

plaintiffs' second amended complaint. A jury trial was held on count I, and on September 20,

2006, the jury found in favor of plaintiffs, awarding them $2,353,000 in damages. Defendants

filed a posttrial motion for judgment notwithstanding the verdict or a new trial, which was

denied on January 19, 2007. Defendants timely appealed and argue that the judgment should be

reversed or, alternatively, that defendants should be given a new trial because: (1) the trial court

erred in ruling that the parties were not involved in a "labor dispute" as defined by the National

Labor Relations Act (the Act) (29 U.S.C. §152 (2000)); (2) plaintiffs failed to establish that

defendants acted with actual malice; (3) plaintiffs failed to prove actual damages; (4) the trial

court gave improper jury instructions; (5) the trial court admitted unduly prejudicial evidence;

(6) the handbill was not defamatory; and alternatively (7) the jury award was excessive and must

be reduced. In a consolidated appeal, plaintiffs appeal the order granting summary judgment in

favor of defendants as to count II of the complaint, arguing that the trial court erred in deciding

that the defense of truth applied, thereby barring the defamation claim. As to defendants' appeal,

we reverse. As to plaintiffs' appeal, we affirm.

                                       I. BACKGROUND

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                                        A. The Parties

       Plaintiff J. Maki Construction Company is a construction contractor that builds single-

family homes in Lake County, including homes in a subdivision of the Village of Johnsburg.

Plaintiff John Maki is the president and owner of the company, which is a nonunion construction

company. Defendant the Chicago Regional Council of Carpenters is a labor union in Lake

County.   At all relevant times, defendant Dan McMahon served as the director of field

organizing for the Union; defendant Joel Pogose served as the lead organizer; and defendant

Randy Drogos served as an organizer. Between 1969 and 2005, Maki was a member of the

Union. He resigned his membership in April 2005.

                                          B. Pretrial

       On May 10, 2006, plaintiffs filed their second amended complaint. In count I, plaintiffs

alleged defamation against defendants for conduct beginning on or about May 21, 2005, when

defendants handed out a handbill to members of the public.        The handbill contained the

following language:

              "ACCORDING TO THE NORTHWEST HERALD PAPER CONSIDER THIS

       BEFORE YOU BUY:

              THERE ONCE WAS A MAN NAMED MAKI, WHO DIDN'T WANT YOU TO

       KNOW HIS HOUSES WERE CRAPPY.

              'IF MY HOMEBUYER HAS WINDOWS THAT LEAK, THEY WON'T TAKE

       A PEEK, AND SEE THE WHOLE HOUSE IS CRAPPY.'

              SO SAID A MAN NAMED MAKI!

              ONE 'LUCKY' HOMEBUYER IN JOHNSBURG IS QUOTED; [sic]

              'THERE'S JUST THE ONE ISSUE: THE WINDOWS WERE INSTALLED

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        INCORRECTLY.'

                [internet web address for Northwest Herald article]

        AN INFORMED HOMEBUYER IS A SMARTER HOMEBUYER."                              (Emphasis in

        original.)

        The handbill further contained the following in small print:

                "THE CARPENTERS UNION IS CURRENTLY ENGAGED IN A LABOR

                DISPUTE WITH MAKI CONSTRUCTION OVER THE PAYMENT OF

                SUBSTANDARD WAGES AND BENEFITS. WE SEEK ONLY TO INFORM

                THE PUBLIC."

        Plaintiffs alleged that the handbill imputed that they were unable to perform their

profession competently. The referenced article in the Northwest Herald discussed homeowners'

dissatisfaction with plaintiffs' work because their homes had leaky windows caused by improper

installation.

        In count II of the complaint, plaintiffs alleged defamation against defendants for conduct

beginning on or about December 8, 2005, when defendants posted the following banner at

various locations in Lake County:

                "SHAME ON STATE BANK OF THE LAKES FOR DOING BUSINESS WITH

        JOHN MAKI; [sic] CONVICTED OF DEFRAUDING THE UNION AND FINED

        $752,150.00."

Plaintiffs alleged that the banner imputed a criminal conviction to Maki, thereby establishing

defamation per se to Maki individually. Defendants filed their answer to plaintiffs' complaint,

including the affirmative defenses of truth and that the Act protects otherwise actionable

defamatory statements when made during a labor dispute.

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Nos. 2--07--0173 & 2--07--0204 cons.



       On August 4, 2006, defendants filed their motion for summary judgment, arguing that (1)

the use of the word "crappy" constituted nothing more than rhetorical hyperbole, incapable of

having a precise definition, and (2) the statements made on the banner were true. In the motion,

defendants argued that on February 14, 2005, Drogos filed internal union charges against Maki,

including the specific charge that Maki was defrauding the Union. On December 3, 2005, after a

hearing, the Union found Maki guilty of the charges and fined him $752,150. The banner was

displayed beginning on or about December 8, 2005, and taken down by the end of March 2006.

On April 5, 2006, the United Brotherhood of Carpenters and Joiners of America (the

International Union) affirmed the Union's guilty verdicts but reduced the fine to $500,900.

       On September 13, 2006, a hearing was held on defendants' motion for summary

judgment. The trial court denied defendants' motion as to count I, finding that a genuine issue of

fact remained regarding the "crappy" quote in the handbill. The trial court found that because

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 of the

word "conviction" to be appropriate and truthful and granted summary judgment in favor of

defendants. Many courts describe internal disciplinary sanctions by a union as "convictions,"

and the trial court held that if the "Supreme Court can call this disciplinary action a conviction

*** so can a union or anybody else." On September 19, 2006, the trial court ruled on several

motions in limine, including defendants' motion to exclude any materials, such as the banner,

that were published after the handbill. Defendants argued that post-handbill materials were

irrelevant to prove their intent at the time of the handbill and would be overly prejudicial if

admitted. The trial court disagreed and admitted the banner and other materials, finding that

such evidence was relevant to the issue of punitive damages because plaintiffs could use such

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Nos. 2--07--0173 & 2--07--0204 cons.



evidence to show a pattern of conduct whereby defendants intended to harm plaintiffs' business

and future business prospects. However, the court reserved its right to change its ruling upon

defendants' renewed objection during trial.

                                           C. The Trial

       Jeff Miller testified first for plaintiffs. Miller, an organizer for the Union, reported to

Pogose and worked with Drogos. The only campaign that the Union conducted against plaintiffs

was to inform the public that plaintiffs were paying substandard wages and benefits to their

employees. The purpose of the handbill was to inform the public about a leaky window problem

with homes constructed by plaintiffs. He was not certain who developed the handbill, how many

were handed out, or who handed them out. Miller testified that Drogos created banners. Miller

originally worked in Milwaukee but was brought in by the Union to work on this particular

campaign. He did not know why the campaign was initiated but Miller himself followed Maki

around, including to Maki's barber, the golf course, restaurants, and downtown Chicago. Miller

would hand out materials at these places in order to inform the public of the Union's campaign

against plaintiffs. Miller never heard Maki say that his houses were "crappy," and he did not

actually read the newspaper article that the handbill referenced.

       Pogose testified for plaintiffs next. As lead organizer, Pogose met with Drogos and

Miller regarding campaigns, such as the "area standards" campaign that the Union was staging

against plaintiffs. The term "area standards" means wages and benefits; therefore, the Union had

an issue with the wages and benefits that plaintiffs paid their employees. The purpose of the

handbill, according to Pogose, was to "inform the public about leaky windows." Despite the use

of the quotation marks in the handbill, Pogose never heard Maki state that his homes were

"crappy," and Pogose thought that the handbill was intended to convey the Union's opinion and

                                                -6-
Nos. 2--07--0173 & 2--07--0204 cons.



not what Maki actually said. He admitted that the Northwest Herald article contained no such

quote by Maki. The use of the quotation marks was intended to draw attention to the limerick.

Pogose did not know where the handbill went once it was distributed.

       Drogos participated in the creation of the banners that were displayed, and he consulted

with Pogose before filing internal union charges against Maki. Pogose further participated in an

ambulatory picketing campaign, which involved following Maki around town and picketing

wherever he was. Pogose believed that there was a certain quality in the work of a carpenter

who was paid the area standards rate, and the handbill was part of the Union's area standards

campaign. Specifically, Pogose testified as follows:

              "Q. Now, as to quality, the issue of quality, and the payment of area standard

       wages, it's still your testimony, is it not, that the more someone's paid the more quality

       that would be expected from their work?

              A. Yes.

              Q. And, certainly, if you're getting paid less than the area standard rates, you

              would presume that the quality would be lacking, correct?

              A. Could be, yes.

              Q. And that's your opinion?

              A. My opinion."

       McMahon, who supervised Drogos and Pogose, testified next for plaintiffs. McMahon

reviewed the internal union charges that Drogos filed against plaintiffs. The Union's campaign

against plaintiffs centered solely on the Union's goal of upholding area standard wages and

benefits, which plaintiffs were not paying. No one from the Union ever asked an employee of

plaintiffs to join the Union. McMahon wrote the limerick and created the handbill at the end of

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Nos. 2--07--0173 & 2--07--0204 cons.



March 2005 and submitted the handbill to other Union organizers, his supervisor, and the

Union's attorneys for input and approval. The Union's attorneys added the website link to the

Northwest Herald article that McMahon relied on for his statement regarding the leaky windows.

McMahon had no other information that the homes constructed by plaintiffs contained any

problems.   The article discussed complaints by owners of homes constructed by plaintiffs,

specifically discussing leaky windows that caused ice buildup and water damage. McMahon

testified that he used quotation marks in the handbill for emphasis, though he changed his

testimony and admitted that in his deposition he stated the quotation marks were used so that the

reader would conclude that Maki made the statement. McMahon admitted that he never heard

Maki speak in limerick or state plaintiffs' homes were "crappy." He did not believe a reasonable

person would actually think that Maki made the statements in the handbill. The intent of the

handbill was to elicit a smile or laugh and to make the reader aware that the Union and plaintiffs

were involved in a labor dispute. However, under cross-examination, McMahon admitted that

he wanted people to think that Maki spoke the quoted words.

       The goal of an area standards campaign is to make the general public aware that the area

standards for wages and benefits are not being paid, undermining the standards for wages and

benefits across the region. The failure of employers to pay the area standards for wages and

benefits, according to McMahon, results in lower wages and benefits for all carpenters. In

conjunction with the Union's area standards campaign, the handbill, which measured

approximately 8½ by 11 inches, was distributed at sales offices for plaintiffs' homes or at the

offices of plaintiffs' business. The handbill was handed out for approximately 2 or 2½ months.

       Drogos testified next. Drogos reported to Pogose, who reported to McMahon. Drogos

did not participate in the creation of any banners. While the handbill was being distributed,

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Drogos was filing internal union charges against plaintiffs. In 1974, Drogos worked with Maki

on a Union job, and he recalled the name in the nonunion J. Maki Construction Company. Upon

further investigation, Drogos discovered that Maki was still a member of the Union, and Drogos

began the internal union charges that resulted in the $752,150 fine.         Under the Union's

constitution, a member has an obligation to hire Union members whenever possible, and

plaintiffs were in violation of this obligation.     Drogos did not know if problems besides the

leaky windows existed in homes built by plaintiffs. He also did not know what plaintiffs paid

their employees. He denied that his goal was to aggravate or agitate plaintiffs or to harm their

business. However, he admitted that notes he wrote regarding the campaign indicated that at one

point the Union had completed "seven days of aggravation" and that the fact that plaintiffs'

salespersons had to drop home prices was an "exceptional sign."

       Terrance McGann, an attorney, testified next. McMahon sent McGann the handbill for

review, and McGann reviewed the document, reviewed the Northwest Herald article, performed

some research, and approved the handbill for distribution.

       Maki testified next for plaintiffs. Maki owns J. Maki Construction Company, which had

been in business for approximately 25 years and employed approximately 40 people. Maki was

a member of the Union but J. Maki Construction Company was not affiliated with the Union.

Maki had never been sued by one of his homeowners and had never been cited for violating any

building code or ordinance. The Union never warned him that he could be fined for running a

nonunion business, a status he never attempted to hide from the Union. After the Union filed

internal charges against him, Maki was fined $752,150, but the Union never explained how it

arrived at that figure. Maki appealed the fine and the Union continued its ambulatory picketing

against him. He was followed from his home to his office and to other places that he went. At

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those locations, Union members would display banners and hand out handbills, including others

besides the handbill at issue in this appeal. However, Maki did not know if the handbill at issue

was distributed at various locations to which the Union followed him, such as the golf course

and his barber. Other banners and handbills were admitted over defendants' objection, but with

the limiting instruction that the documents were admitted only for the purpose of showing

whether defendants bore any malice towards plaintiffs at the time that the handbill in question

was distributed. Some of the banners poked fun at Maki's weight and the amount of money that

he was spending on attorney fees.

       In response to the Union's campaign, Maki sent out to his customers and employees a

letter explaining that his employees are paid by the hour on a merit-based plan and receive health

insurance, access to a 401(k) savings plan, death benefits, and paid vacations. Additionally, he

helped his carpenters purchase homes in subdivisions that he developed. He admitted that he

paid his carpenters between $12 and $30 per hour, less than the area standard wage of

approximately $48 per hour. He did not find the handbill at issue humorous, and he never stated

that his homes were "crappy."       There were approximately 200 homes in the Johnsburg

development and, of those, 30 homeowners complained of leaking windows. The windows were

installed by his carpenters using flashing tape rather than caulk, and, when the homeowners

complained, plaintiffs caulked the windows.      None of the homeowners had any structural

damage to their homes as a result of any of the leaks. A joint letter to the homeowners from

plaintiffs and the window manufacturer confirmed that there were acceptable methods of

installation besides the manufacturer's recommended method of caulking and that they would

honor all homeowner warranties whether still in the warranty period or not. As to damages,

Maki claimed he had spent over $100,000 in legal fees.

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Nos. 2--07--0173 & 2--07--0204 cons.



       On cross-examination, Maki admitted that while working on Union jobs, he received the

area standard, including pension, health insurance, and disability benefits.      He voluntarily

maintained his Union membership after he began his nonunion company but was unaware of any

bylaws that he had to follow as a member. He went to the National Labor Relations Board

(NLRB) in the spring of 2005 to complain about the Union's picketing. He admitted that the

NLRB ordered the Union to cease and desist picketing of his company but that it did not state

that the Union could not continue to distribute the handbill. He admitted that the other banners

and handbills and the picketing harmed his reputation as did the handbill at issue and that he was

not specifically seeking lost profits. He did not have to lay off any employees due to lack of

work during that time, and he believed that most people were more angry with the Union than

with him. He did not know of anyone who believed the statements in the handbill.

       Tommy Oliver, an organizer for the Union, testified next for plaintiffs. Oliver was not

involved in the Union's campaign against plaintiffs. He stated that a home could have a leaky

window and that the rest of the home could still be considered "fine."

       Defendants called Michael Shipman as their first witness. Shipman was a construction

superintendent for Maki's company. He saw the handbill at issue when it was distributed, and he

was told by Maki to just ignore it. He was familiar with the windows that were installed in the

Johnsburg homes. The manufacturer recommended that the windows be installed with caulk

because the tape that plaintiffs used would not adhere properly when installed in cold weather

and would begin to pull away. The leaky windows in the Johnsburg homes caused some

staining, damaged oak trim, and caused mold and water damage.

       Tim Lehm, Maki's son-in-law and employee, testified next for defendants. Lehm resides

in a Johnsburg home that was built by plaintiffs. He admitted that windows were not installed

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Nos. 2--07--0173 & 2--07--0204 cons.



according to the manufacturer's recommendations and that some homeowners experienced leaky

windows.

       After the parties rested, the trial court ruled on various jury instructions, including three

that defendants now raise in their brief. First, defendants claim that the trial court erred in

instructing the jury that plaintiffs had to prove their case by a preponderance of the evidence

rather than by clear and convincing evidence. Second, the trial court erred in failing to instruct

the jury that plaintiffs had to prove that the statements were made with actual malice. Third, the

trial court erred in defining malice as "ill will" or having "evil intentions." Defendants proffered

alternative instructions but the trial court instructed the jury using plaintiffs' proffered

instructions. In its rulings, the trial court found that the handbill was not published in connection

with a labor dispute, and it refused to instruct the jury that plaintiffs had to prove that defendants

acted with actual malice in publishing the handbill. Instead, the trial court instructed the jury

that defendants had a qualified privilege to publish the handbill but lost the privilege if they

acted with malice. The jury was instructed that malice meant that defendants published the

"defamatory communication with wanton disregard for Plaintiffs' rights, with ill will, and with

an evil intention to defame and injure Plaintiff. To find that Defendant acted with malice, you

must be persuaded, considering all the evidence in the case, that it is more probably true than not

true that Defendant acted maliciously as defined above."            Additionally, over defendants'

objection, the trial court admitted into evidence other handbills and banners, along with

testimony regarding ambulatory picketing.

       The jury returned a verdict in favor of plaintiffs, awarding them $2,353,000 in

nonspecific damages.      Defendants moved for judgment notwithstanding the verdict and,

alternatively, for a new trial. On January 19, 2007, the trial court issued its order denying

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defendants' motion. Specifically, the court stated that it found that the word "crappy," used in

this context, could not be innocently construed, because a reasonable reader of the handbill

"would be expected to conclude that the entire house ha[d] construction defects similar to leaky

windows." Further, the trial court did not find a connection between the handbill and the

existence of a labor dispute, citing National Labor Relations Board v. Local Union No. 1229,

346 U.S. 464, 476, 98 L. Ed. 195, 204, 74 S. Ct. 172, 178-79 (1953). It stated that "the jury may

well have concluded that the handbill was little more than an attempt by the Defendants to

damage Maki's business until such time as Maki complied with its demands." The trial court

further stated that defendants failed to present any evidence that showed a nexus between the

carpenters' wages and benefits and the quality of homes constructed by plaintiffs, noting that

Pogose testified that there was no connection between the two. As to the admissibility of the

other handbills and banners, the trial court noted that the proper limiting instruction was given

with each admission. As to the damages issue, the trial court found that defendants waived the

issue when they failed to object to the verdict form that did not itemize the verdict. However,

the trial court addressed the issue despite waiver, stating that it would assume that the jury

ascertained the damages award based on what plaintiffs had requested. Under that method, the

jury likely granted $1.2 million in compensatory damages and the remaining $1.1 in punitive

damages. The amount of punitive damages was not excessive given the guideposts for analyzing

punitive damages set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 574-75, 134

L. Ed. 2d 809, 826, 116 S. Ct. 1589, 1598-99 (1996).           Therefore, the trial court denied

defendants' motion for judgment notwithstanding the verdict or for a new trial.

                                         II. ANALYSIS

                                     A. Defendants' Appeal

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        Defendants argue that the handbill at issue is not defamatory because it is nothing more

than an opinion. Defendants first made this argument in the trial court in their motion for

summary judgment, which was denied. The trial court found that because the handbill used

quotation marks, some might interpret that Maki, rather than the Union, was stating that the

houses were "crappy." Defendants again raised the argument in their posttrial motion, which

also was denied based on the trial court's determination that the word could not be innocently

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 statement is defamatory if it tends to harm a person's reputation to the extent that it

lowers that person in the eyes of the community or deters others from associating with that

person." Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006). Statements may be defamatory per quod

or per se. Tuite, 224 Ill. 2d at 501. "A statement is defamatory per se if its defamatory character

is obvious and apparent on its face and injury to the plaintiff's reputation may be presumed,"

whereas a plaintiff must plead and prove special damages in a defamation per quod action.

Tuite, 224 Ill. 2d at 501. There are five categories of statements that constitute defamation per

se: "(1) statements imputing the commission of a crime; (2) statements imputing the infection

with a loathsome communicable disease; (3) statements imputing an inability to perform or want

of integrity in performing employment duties; (4) statements imputing a lack of ability or that

otherwise prejudice a person in his or her profession or business; and (5) statements imputing

adultery or fornication." Tuite, 224 Ill. 2d at 501. Here, plaintiffs allege that the handbill, which

characterizes their work as "crappy," was defamation per se, imputing a lack of competence in

their professional ability.


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       However, "statements which do not contain factual assertions are protected under the first

amendment and may not be the basis of a defamation action." Kolegas v. Heftel Broadcasting

Corp., 154 Ill. 2d 1, 14 (1992). The test to determine whether a defamatory statement is

constitutionally protected is restrictive; only statements that cannot reasonably be interpreted as

stating actual facts are protected under the first amendment. Kolegas, 154 Ill. 2d at 14-15.

However, couching a factual assertion as an opinion is not free from a defamatory action.

Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 100 (1996). The Illinois Supreme

Court has considered several nonexclusive factors in determining whether a statement constitutes

an opinion or factual assertion: (1) whether the statement has a precise and readily understood

meaning; (2) whether the statement is verifiable; and (3) whether the statement's literary or

social context signals that it has factual content.      Solaia Technology, LLC v. Specialty

Publishing Co., 221 Ill. 2d 558, 581 (2006).

       We must now delve into the meaning of the word "crappy"--a dirty job for any court.

Using the factors described, we cannot say as a matter of law that "crappy," as it is used here,

implies anything more than a nonactionable opinion.        First, the word "crappy" is a vague

descriptive term.   Webster's Dictionary defines "crappy" as "markedly inferior in quality:

LOUSY." Webster's Third New International Dictionary 530 (1986). The American Heritage

Dictionary defines "crappy" as "inferior, worthless" or "miserable; poorly" or "mean;

contemptible." American Heritage Dictionary of the English Language ___ (4th ed. 2000).

When used to describe a home, the word may mean multiple things to multiple people. The trial

court concluded that "crappy" would mean that the entire house would have construction defects

similar to leaky windows.     We disagree, as many people may define a "crappy" house in

countless ways, ranging from defects to decorating tastes. Even so, the trial court erred in


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ending its analysis here; we will continue to consider the other factors used by the supreme

court.

         Second, the statement in the handbill cannot be verified; one cannot verify whether

plaintiffs' homes are actually "crappy." In Flowers v. Carville, 310 F.3d 1118, 1126-27 (9th Cir.

2002), the plaintiff alleged defamation for the following comments by various defendants

referring to the plaintiff's allegation of having an affair with then-presidential candidate Bill

Clinton: (1) that the defendant would not comment on that "tabloid trash"; (2) that the

Associated Press news reporter could not put that "crap on the wire"; and (3) that the defendant

wrote "Another Thursday, another Star story, another garbage day." The court characterized the

words "trash," "crap," and "garbage" as nothing more than "generic invective" and stated that the

"law provides no redress for harsh name-calling."        Flowers, 310 F.3d at 1127. The court

specifically stated that these words were not defamatory whether the statements were directed at

the plaintiff, the Star newspaper, or the situation as a whole. Flowers, 310 F.3d at 1127.

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

concluded that the term "trashy," when used to describe the plaintiff's store, was "loose language

that cannot be objectively verified" and was a vague, imprecise term. Likewise, "crappy" is

imprecise, and we cannot determine a method by which to measure the "crappiness" of a home.

         Finally, the literary and social context of the word "crappy" does not signal factual

content. Rather, the word is used as rhetorical hyperbole. In Old Dominion Branch No. 496,

National Association of Letter Carriers 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 their

names in a " 'List of Scabs' " along with a document defining a scab as, among other things, one

who " 'carries a tumor of rotten principles,' " is rejected by even the devil, and a traitor to his


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God, country, family, and class. The Court found that the term "scab" and the definition's use of

words such as "traitor" were simply words used in a "loose, figurative sense to demonstrate the

union's strong disagreement with the views of workers opposing unionization." Letter Carriers,

418 U.S. at 284, 41 L. Ed. 2d at 762, 94 S. Ct. at 2781. "Expression of such an opinion, even in

the most pejorative terms, is protected under federal labor law." Letter Carriers, 418 U.S. at 284,

41 L. Ed. 2d at 762, 94 S. Ct. at 2781; see also Pease v. International Union of Operating

Engineers Local 150, 208 Ill. App. 3d 863, 870 (1991) (finding statements, " 'He's dealing with

half a deck' " and " 'I think he's crazy,' " mere name calling, rhetorical hyperbole, or words

employed only in a loose, figurative sense and thus nonactionable). Likewise, in this case, the

handbill's "crappy" limerick was obviously used in a "loose, figurative sense," intending to

demonstrate the Union's disagreement with plaintiffs' failure to pay the area standards.

Defendants did not attempt to hide their dispute with plaintiffs, as the handbill contained a clear

statement that the dispute existed.

       The trial court opined that because the statement, "If my homebuyer has windows that

leak, they won't take a peek, and see the whole house is crappy," was within quotation marks, it

appeared that the statement was the opinion of plaintiffs rather than the Union. We disagree.

The Supreme Court has addressed false attribution of quotations and has stated that, while a self-

condemnatory quotation may carry more force than the criticism of another, "quotations do not

always convey that the speaker actually said or wrote the quoted material." Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 512, 115 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 quotation marks even where no reasonable reader would assume that the quotation marks

automatically imply the truth of the quoted material. Masson, 501 U.S. at 512, 115 L. Ed. 2d at


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469, 111 S. Ct. at 2430. This logic clearly applies here. We cannot agree with the trial court that

a reasonable reader would assume that Maki actually referred 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 nonactionable statements of opinion, and we

reverse the jury verdict on count I of plaintiffs' complaint. See Bryson, 174 Ill. 2d at 100

(determining as a matter of law whether a reasonable fact finder could conclude that the

allegedly defamatory statement was an assertion of fact).

                                      B. Plaintiffs' Appeal

       In their appeal, plaintiffs argue that the trial court erred in granting defendants' motion

for summary judgment on count II of the complaint. Count II alleged defamation for the

following banner:

               "SHAME ON STATE BANK OF THE LAKES FOR DOING BUSINESS WITH

       JOHN MAKI; [sic] CONVICTED OF DEFRAUDING THE UNION AND FINED

       $752,150.00."

Plaintiffs argued that the word "convicted" imputes a criminal conviction to Maki. The trial

court ruled that the use of the word "convicted" was accurate and truthful because Maki had been

convicted in internal union proceedings. On appeal, plaintiffs argue that the term "convicted"

cannot be innocently construed in a noncriminal sense and that the trial court should not have

looked to Supreme Court cases to determine a plain and obvious meaning of the word. In

plaintiffs' opinion, the issue of whether "convicted" was defamatory should have been a question

of fact for the jury. Defendants argue that the trial court was correct in deciding that the banner

was truthful and argue that the innocent construction doctrine should not apply to the banner

because the trial court properly decided the summary judgment motion on their affirmative


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defense of truth.

       "A motion for summary judgment is properly granted where the pleadings, depositions,

admissions, and affidavits establish that no genuine issue of material fact exists and that the

[movant] is entitled to summary judgment as a matter of law." Maxit, Inc. v. Van Cleve, 376 Ill.

App. 3d 50, 54 (2007). Summary judgment is a drastic means of disposing of litigation and

should be granted only where 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, 377-78 (2007). In

ruling on a motion for summary judgment, the court must construe the evidence in the light most

favorable to the nonmoving party. Thomson Learning, Inc. v. Olympia Properties, LLC, 365 Ill.

App. 3d 621, 626 (2006). We review de novo the trial court's ruling on a motion for summary

judgment. Maxit, 376 Ill. App. 3d at 55.

       As discussed, there are five categories of statements that constitute defamation per se:

"(1) statements imputing the commission of a crime; (2) statements imputing the infection with a

loathsome communicable disease; (3) statements imputing an inability to perform or want of

integrity in performing employment duties; (4) statements imputing a lack of ability or that

otherwise prejudice a person in his or her profession or business; and (5) statements imputing

adultery or fornication." Tuite, 224 Ill. 2d at 501. However, even if a statement falls into a

defamation per se category, it will not be actionable per se if it is reasonably capable of an

innocent construction. Tuite, 224 Ill. 2d at 502. A statement must be considered in context,

" 'with the words and implications therefrom given their natural and obvious meaning.' " Tuite,

224 Ill. 2d at 503, quoting Chapski v. Copley Press, 92 Ill. 2d 344, 352 (1982). 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


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Nos. 2--07--0173 & 2--07--0204 cons.


question for the jury if the innocent construction issue is resolved in the plaintiff'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. Loyola University of Chicago, 318 Ill. App. 3d 443, 451 (2000). Only "substantial truth" is

required for the defense. Wynne, 318 Ill. App. 3d at 452. While determining "substantial truth"

is normally a question for the jury, the question is one of law where no reasonable jury could

find that substantial truth had not been established. Wynne, 318 Ill. App. 3d at 452. Substantial

truth refers to the fact that a defendant need prove the truth of only the "gist" or "sting" of the

statement. American International Hospital v. Chicago Tribune Co., 136 Ill. App. 3d 1019, 1022

(1985).

          It is undisputed that at the time the banner was published, Maki had been convicted of

violating the Union's bylaws and fined $752,150. The question is whether the word "convicted"

was a truthful and appropriate word to describe the situation. We agree with the trial court that

the word "convicted" was truthful and appropriate in the context of the internal union charges.

As the trial court and defendants pointed out, the Supreme Court and federal circuits have

referred to internal union disciplinary actions as convictions. See International Brotherhood of

Boilermakers v. Hardeman, 401 U.S. 233, 246, 28 L. Ed. 2d 10, 21, 91 S. Ct. 609, 617 (1971);

Snyder v. Freight, Construction, General Drivers, Warehousemen & Helpers, Local No. 287, 175

F.3d 680, 684 (9th Cir. 1999); Murphy v. International Union of Operating Engineers, 774 F.2d

114, 119-121 (6th Cir. 1985); National Labor Relations Board v. Oil, Chemical & Atomic

Workers International Union, 619 F.2d 708, 714 (8th Cir. 1980); Feltington v. Moving Pictures

Machine Operators 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 disciplinary actions


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as "convictions." See Curtis v. International Alliance of Theatrical Stage Employees & Moving

Picture Machine Operators of the United States & Canada, 687 F.2d 1024, 1027 (7th Cir. 1982).

If the courts may characterize the Union's disciplinary action against Maki as a conviction,

certainly the Union may also do so. In this case, no reasonable jury could find that the banner

was not substantially true and, therefore, the trial court properly granted summary judgment to

defendants. Having found that the affirmative defense of truth applied here, we need not address

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

                                        III. CONCLUSION

       In conclusion, we find that the handbill containing the limerick was not actionable, as it

did not contain any factual assertions; thus, as to defendants' appeal, we reverse the jury verdict

on count I of plaintiffs' complaint. As to plaintiffs' appeal, we affirm the trial court's granting of

summary judgment in favor of defendants on count II of plaintiffs' complaint.

       No. 2--07--0173, Reversed.

       No. 2--07--0204, Affirmed.

       GILLERAN JOHNSON and ZENOFF, JJ., concur.




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