Antonacci v. Seyfarth Shaw, LLP , 2015 IL App (1st) 142372 ( 2015 )

2015 IL App (1st) 142372
FIRST DIVISION
August 17, 2015
No. 1-14-2372
LOUIS B. ANTONACCI, an individual, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 12 L 013240
)
SEYFARTH SHAW, LLP, a Partnership, and ) Honorable
ANITA J. PONDER, an individual, ) Eileen M. Brewer and
) Thomas Hogan,
Defendants-Appellees. ) Judges Presiding.
JUSTICE HARRIS delivered the judgment of the court with opinion.
Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Louis B. Antonacci, appeals the order of the circuit court granting defendants
Seyfarth Shaw, LLP (Seyfarth) and Anita J. Ponder's motion to dismiss his amended complaint
alleging defamation per se, tortious interference, fraudulent misrepresentation, and promissory
estoppel. Mr. Antonacci also seeks review of the court's denial of his second petition to
substitute judge for cause, and its orders quashing subpoenas served upon the City of Chicago
(City) and other third parties. On appeal, he contends the trial court erred (1) in dismissing his
claim for defamation per se where Ms. Ponder suggested that Mr. Antonacci gave legal advice in
violation of ethics rules and that Mr. Antonacci was to blame for a project being completed past
the due date; (2) in dismissing his claim for tortious interference with prospective economic
No. 1-14-2372
advantage where Ms. Ponder told lies about him and his work resulting in the termination of his
employment with Seyfarth; (3) in dismissing his claim for fraudulent misrepresentation where
Seyfarth attorneys affirmatively represented to Mr. Antonacci that Ms. Ponder was a good
attorney to work for, and he relied on that misrepresentation in accepting an offer employment
with Seyfarth; (4) in denying his second petition for substitution of judge for cause where the
trial judge displayed "favoritism and antagonism" making a "fair judgment impossible"; and (5)
in quashing subpoenas he served upon the City of Chicago and other third parties. 1 For the
following reasons, we affirm.
¶2 JURISDICTION
¶3 The trial court granted defendants' motion to dismiss upon reconsideration on July 23,
2014. Plaintiff filed his notice of appeal on July 29, 2014. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final
judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶4 BACKGROUND
¶5 The following facts are relevant to the issues on appeal. In August 2011, Seyfarth hired
Mr. Antonacci, who was licensed to practice law in Washington, D.C., as an attorney to support
Ms. Ponder, a partner in its government contracts practice group in Chicago. According to
Seyfarth's offer, Mr. Antonacci's employment was "at-will" meaning "either [Mr. Antonacci] or
[Seyfarth] can terminate [his] employment with or without cause or notice." Ms. Ponder
1
Mr. Antonacci's brief does not address the dismissal of his claim of promissory estoppel;
therefore he has waived review of that issue pursuant to Illinois Supreme Court Rule 341(h)(7)
(eff. Feb. 6, 2013) ("[p]oints not argued are waived and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing").
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No. 1-14-2372
assigned him to a project for the city that involved conducting interviews, research, and
fact-finding.
¶6 The working relationship between Ms. Ponder and Mr. Antonacci became strained and on
October 12, 2011, Seyfarth's professional development consultant Kelly Grofon sent an email to
several members of Seyfarth's human resources staff after speaking with Ms. Ponder. The
email, which addressed Ms. Ponder's "feedback" on Mr. Antonacci, stated:
"Trying to make the most of it, but it is not working out. Lou was hired primarily
to work with her in Government Contract PG in Chicago, they even expedited hiring
process. During hiring process, she explained the project without mentioning name of
client to confirm his interest in work that he would be initially doing and confirm his
capability in performing it. He assured them in process that he had significant interest
in that project and developing firm's local Gov't Contract practice. He was hired
knowing his experience was not state and local, but was federal. But, his asset was he
had worked for another major law firm for a few years and would integrate well into our
firm.
Shortly after he was hired, they had meetings with client that Anita thought he did
not act appropriately in the sense that he was asking the wrong questions, providing
advice to them, which he should not have been doing. A. he's not licensed in IL B. he
wasn't knowledgeable about local procurement C. he wasn't knowledgeable of City of
Chicago's process. Anita brought to his attention privately after meetings and Lou was
very defensive. According to her, he handled criticism very inappropriately. He made
comments undermining Anita's expertise in gov't procurement. The relationship
continued to go downhill. He then had separate meetings with clients that Anita was
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aware of, but knew he had limited time to complete project. He missed deadlines that
were initially set and have now been extended by the client and Anita. Recently, he
told Anita he was able to meet the deadline and do the project. Then told her he
couldn't, even with assistance with a second attorney. He had assured them in the
interview he could do project on his own with limited supervision, but now can't.
Anita reported this to leadership (Kevin Connelly, Dave Rowland, Kate Perrelli).
Kevin spoke with Lou and the Lou didn't show up to work one day after him/Anita had
agreed to meet to discuss how to move forward. Lou gave Anita a revised schedule of
what he could do by the deadline date and most of it was after the deadline date. So,
Anita took on much more responsibility of the project and gave much of it to a Houston
attorney. She told Lou he will not be responsible anymore for the project – but, Anita
did give him another assignment, in which he was trying to reach out more to her and
discuss with her and show interest. The attorney in Houston had to leave town for
personal issue, so Lou agreed to do some work on her behalf yesterday. Anita found out
Lou had reached out to pro bono director, which she assumed was to do more work
without her. Now that license issue is coming up, his attitude has changed and he
appears to act more interested the last few days. Anita feels his actions have been
unsettling and inconsistent with what he portrayed in the interview.
She thinks her relationship with working with him in future is highly speculative.
So, she does not feel we should be going out of our way to make exceptions for him and
wants to leave door open for future options.
Let me know how you think we should proceed."
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¶7 In his amended complaint, Mr. Antonacci alleged that Ms. Ponder gave him the
assignment "with an impending deadline, on which Ms. Ponder had done little or no work
already." Their working relationship was fine until September when "a discussion between Ms.
Ponder and a client revealed that Ms. Ponder was wholly unaware of critical case law on the very
issue on which she had been hired to provide legal guidance." Embarrassed "that her ignorance
had been exposed," Ms. Ponder criticized Mr. Antonacci and yelled at him. She told him to
review the relevant case law and prepare a memorandum summarizing the decisions.
¶8 On October 4, 2011, "Ms. Ponder set an arbitrary deadline of October 17, 2011, for Mr.
Antonacci to present her with a substantially completed draft of the project" despite the fact the
project was not due until three weeks after the deadline. She thus gave Mr. Antonacci two
weeks to complete all of the work and reserved for herself three weeks for review. Mr.
Antonacci alleged that this arbitrary deadline "was set by Ms. Ponder in a malicious attempt to
criticize Mr. Antonacci and damage his career."
¶9 Mr. Antonacci met with Seyfarth partners Jason Stiehl and Dave Rowland for guidance.
Stiehl indicated that the firm was aware of complaints against Ms. Ponder's unreasonable and
unprofessional behavior, and that Ms. Ponder was "on an island" because people refused to work
with her. Rowland told him that others have found Ms. Ponder difficult to work with. On the
advice of Stiehl and Rowland, Mr. Antonacci proposed an alternative schedule to Ms. Ponder for
completion of the project. Mr. Antonacci alleged that Ms. Ponder called him into her office and
proceeded "to scream at [him] in an unprofessional manner for approximately 90 minutes." She
made several accusations about his conduct and performance and although "he attempted to
excuse himself from her office after 45 minutes, [she] insisted that he stay so that she could
continue yelling at him for an additional 45 minutes."
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¶ 10 On the advice of Rowland, Mr. Antonacci spoke with partner Mary Kay Klimesh who
suggested that he prepare a comprehensive schedule for completing the project on time. Mr.
Antonacci alleged that "[u]nder the proposed schedule, [he] would be working every day and
every weekend through the completion of the project, which would be well ahead of the client's
deadline." He sent the proposed schedule to Ms. Ponder who did not respond until four days
later when she informed him in an email that he was no longer responsible for working on the
project. After several weeks, however, "with Ms. Ponder unable to get any other attorneys to
assist her with the project, Ms. Ponder again assigned Mr. Antonacci to complete the project."
¶ 11 Mr. Antonacci alleged that Ms. Ponder made the statements in the email "to criticize Mr.
Antonacci's professional judgment, diligence, and character in order to discredit him and threaten
his employment, while at the same time protecting [her] reputation and employment." He
further alleged that "[u]pon information and belief, Ms. Ponder maliciously made numerous false
statements concerning Mr. Antonacci to Ms. Pirelli, Ms. Gofron, Mr. Rowland, Mr. Connelly,
and others." He alleged "[u]pon information and belief," Ms. Ponder made false statements to
the client Mr. Antonacci worked with, blaming Mr. Antonacci for her failure to complete the
project on time.
¶ 12 Mr. Antonacci also alleged that he spoke with other partners about his concerns regarding
Ms. Ponder and his continued employment with Seyfarth. He was assured that he would
continue to be employed in the firm's commercial litigation group in Chicago. Mr. Antonacci
applied to take the Illinois bar examination in July 2012 and Seyfarth reimbursed him for the
filing fee he paid to take the exam. He actively sought work with other attorneys at Seyfarth
and his performance evaluations from those partners were "uniformly positive." Mr. Antonacci
also declined an offer from a recruiter to apply as a candidate for an associate position with a law
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firm in Washington, D.C. Despite these assurances, on May 22, 2012, Mr. Antonacci's
employment with Seyfarth was terminated and he was told to be out of the office by midnight.
Mr. Antonacci alleged the reason given for his termination was that he had been hired to work
for Ms. Ponder and "we all know how that worked out."
¶ 13 Mr. Antonacci filed a four-count complaint against Seyfarth and Ms. Ponder, alleging (1)
defamation per se based on the Ponder email, (2) intentional interference with prospective
economic advantage based on the defamatory statements, (3) fraudulent misrepresentation based
on statements and omissions made when he interviewed with Seyfarth, and (4) promissory
estoppel based on assurances made regarding his job security at Seyfarth. Defendants filed a
motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS
5/2-619.1 (West 2010)), which the trial court granted. The trial court dismissed the defamation
and intentional interference counts without prejudice, with leave to replead, and dismissed the
fraudulent misrepresentation and promissory estoppel counts with prejudice.
¶ 14 Two weeks later, Mr. Antonacci filed a motion requesting that the trial judge, Judge
Eileen Brewer, recuse herself from the proceedings because she was biased against him. Judge
Brewer denied the motion, and Mr. Antonacci filed a petition for substitution of judge for cause.
In the petition, Mr. Antonacci alleged that Judge Brewer demonstrated "personal bias and
prejudicial conduct, which prevents the parties from receiving a fair consideration of the matters
at issue." After briefing and oral argument, Judge Lorna Propes denied the petition finding that
Judge Brewer did not demonstrate actual prejudice or bias.
¶ 15 While the substitution of judge petition was pending, Mr. Antonacci filed his amended
complaint, repleading counts I and II for defamation per se and tortious interference respectively,
and repleading counts III and IV to preserve them for appeal. Defendants moved to dismiss the
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amended complaint pursuant to section 2-619.1, arguing that a qualified privilege exists as a
matter of law for employment evaluations. Before the hearing on defendants' motion, Mr.
Antonacci filed a motion for leave to file a surreply which he presented on December 5, 2013,
one day before the scheduled hearing. The motion also requested sanctions against defendants'
counsel for alleged misrepresentation of law and facts in their reply brief. The trial court did
not grant Mr. Antonacci's motions and after oral argument, dismissed with prejudice his tortious
interference claim pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)).
However, the trial court denied the motion to dismiss as to count I, defamation per se, finding
Mr. Antonacci's claim that Ms. Ponder stated he should not have given advice sufficiently
alleged that "Plaintiff had engaged in the unauthorized practice of law." Both parties filed
motions for reconsideration.
¶ 16 Meanwhile, Mr. Antonacci served subpoenas on the city seeking depositions of
employees Stephen Patton and Jamie Rhee, and documents that may show Ms. Ponder made
defamatory statements about him to the city. He also served a subpoena on the company,
Toomey Reporting, Inc., and its court reporter whom he hired to transcribe the December 5,
2013, hearing on his motion for leave to file a surreply. Mr. Antonacci sought to discover
whether Seyfarth's counsel requested that the court reporter alter the transcript so that the trial
court did not appear biased against him. Additionally, he sought forensic examination of the
court reporter's audio recording device and laptop.
¶ 17 The city, Toomey, and the court reporter filed motions to quash. The trial court granted
the city's motion but ordered an in camera review of certain documents referring to Seyfarth's
request for an extension of the deadline on the project worked on by Mr. Antonacci. Mr.
Antonacci alleged that he never saw the documents ordered for in camera review. After
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hearing cross motions regarding the subpoena request on the court reporter, the trial court
allowed an audio recording of the December 5, 2013, hearing to be played and the recording
matched the transcript. Mr. Antonacci alleged that "[t]he transcript did not reflect [his]
recollection of the proceedings." Specifically, it "did not reflect Judge Brewer's express refusal
to consider the Affidavits submitted by Mr. Antonacci pursuant to Section 2-619(c)" nor did it
reflect "Judge Brewer's erratic, periodic screaming at Mr. Antonacci throughout the proceeding
'I'M NOT LOOKING AT IT!' " The trial court found Mr. Antonacci's statements and
allegations "outrageous" and denied his request for forensic examination of the equipment. The
trial court granted the motions to quash.
¶ 18 Four days later, Mr. Antonacci filed his second petition for substitution of judge for
cause. He again alleged that Judge Brewer was biased against him as evidenced by her recent
rulings against him, and added that her bias resulted from "her political affiliations and
professional relationships" which were "inextricably intertwined with" Ms. Ponder and the city.
Specifically, Mr. Antonacci alleged that Judge Brewer was an attorney for the city's law
department from 1988 to 1994, while Ms. Ponder worked for the city's Department of
Procurement Services from 1984 to 1989, and was director of contract compliance from 1986 to
1989. He also alleged they had connections through Cook County board presidents John
Stroger and Bobbie Steele. The petition was heard before Judge Thomas Hogan on December
6, 2013. At the hearing, Judge Brewer unequivocally stated, "I do not know Anita Ponder."
Mr. Antonacci alleged, however, that when he delivered to Judge Brewer a draft affidavit asking
her to attest to the fact that she did not know Ms. Ponder, Judge Brewer refused to do so. Judge
Hogan subsequently denied the petition for substitution of judge for cause.
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¶ 19 With the motions for reconsideration before it, the trial court denied Mr. Antonacci's
motion and granted defendants' motion. It found Ms. Ponder's statement that Mr. Antonacci
should not have been giving advice could be construed innocently, and allowed Mr. Antonacci
leave to replead his defamation per se count. He waived amendment and stood on his pleading.
The trial court then issued its written ruling and dismissed the amended complaint with
prejudice. Mr. Antonacci filed this timely appeal.
¶ 20 ANALYSIS
¶ 21 Defendants filed their motion to dismiss pursuant to section 2-619.1 of the Code, which
combines a section 2-615 motion to dismiss based upon insufficient pleadings with a section
2-619 motion to dismiss based upon certain defects or defenses. 735 ILCS 5/2-619.1 (West
2010). In a motion to dismiss under either section, the court must accept all well-pleaded facts
in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.
Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003).
Also, exhibits attached to the complaint are a part of the complaint and if a conflict exists
between facts contained in the exhibits and those alleged in the complaint, factual matters in the
exhibits control. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co., 114 Ill.
2d 278, 287 (1986). Furthermore, this court reviews the determination of the trial court, not its
reasoning, and therefore we may affirm on any basis in the record whether or not the trial court
relied on that basis or its reasoning was correct. Leonardi v. Loyola University of Chicago, 168
Ill. 2d 83, 97 (1995). We review the trial court's determination on motions to dismiss pursuant
to sections 2-615 and 2-619 de novo. Edelman, 338 Ill. App. 3d at 164.
¶ 22 Mr. Antonacci first alleges that the trial court erred in dismissing his claim for
defamation per se. To state a claim for defamation, the plaintiff must allege "facts showing that
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the defendant made a false statement about the plaintiff, that the defendant made an unprivileged
publication of that statement to a third party, and that this publication caused damages." Green
v. Rogers, 234 Ill. 2d 478, 491 (2009). A defamatory statement damages the plaintiff's
reputation in that it lowers the person in the eyes of the community or deters the community
from associating with him. Id.
¶ 23 "A statement is defamatory per se if its harm is obvious and apparent on its face." Id.
Five categories of statements are considered defamatory per se: (1) words imputing that a person
has committed a crime; (2) words imputing that a person is infected with a loathsome
communicable disease; (3) words imputing a person cannot perform or lacks integrity in
performing employment duties; (4) words imputing a person lacks ability or otherwise prejudices
him in his profession; and (5) words imputing a person has engaged in adultery or fornication.
Id. at 491-92. A claim for defamation per se must plead the substance of the statement with
sufficient particularity and precision so as to permit judicial review of the defamatory content.
See Mittelman v. Witous, 135 Ill. 2d 220, 229-30 (1989), abrogated on other grounds by Kuwik
v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (1993).
¶ 24 Even if an alleged statement falls into a defamation per se category, it is not per se
actionable if it is reasonably capable of an innocent construction. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 90 (1996). Pursuant to the innocent construction rule, the
court considers the statement in context and gives the words of the statement, and any
implications arising therefrom, their natural and obvious meaning. Id. Furthermore, "a
statement 'reasonably' capable of a nondefamatory interpretation, given its verbal or literary
context, should be so interpreted. There is no balancing of reasonable constructions ***."
Mittelman, 135 Ill. 2d at 232. However, when the defendant clearly intended or unmistakenly
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conveyed a defamatory meaning, "a court should not strain to see an inoffensive gloss on the
statement." Green, 234 Ill. 2d at 500. The preliminary construction of an allegedly
defamatory statement is a question of law we review de novo. Tuite v. Corbitt, 224 Ill. 2d 490,
511 (2006).
¶ 25 On appeal, Mr. Antonacci contends that defendants made the following defamatory
statements against him based on Ms. Ponder's email to Ms. Grofon: (1) he engaged in the
unauthorized practice of law by giving legal advice when he was not licensed to practice in
Illinois; (2) he was incapable of performing his job as evidenced by the missed deadlines, his
lack of enthusiasm for projects Ms. Ponder assigned to him, and his lack of time management
skills; (3) he misrepresented that "he could waive into the bar of the State of Illinois prior to"
being hired; (4) he failed to show up for work on a day he was supposed to meet with Ms.
Ponder about the city project; and (5) he concealed the fact that he had spoken to Seyfarth's pro
bono director. Mr. Antonacci also alleges that, "[u]pon information and belief, Ms. Ponder
maliciously made numerous false statements concerning [him] to Ms. Pirelli, Ms. Gofron, Mr.
Rowland, Mr. Connelly and others subsequent to" the email, and "[u]pon information and
belief," she also made such statements to the client, city of Chicago. He alleges that the
statements Ms. Ponder made "blamed Mr. Antonacci for her failure to complete her project in a
timely and effective manner."
¶ 26 As shown by Ms. Ponder's email reproduced above, Ms. Ponder stated that she "thought
[Mr. Antonacci] did not act appropriately in the sense that he was asking the wrong questions,
providing advice to them, which he should not have been doing" since he was not licensed in
Illinois, nor was he "knowledgeable about local procurement" or "City of Chicago's process."
If the statement that Mr. Antonacci improperly provided advice while not licensed in Illinois
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implies he engaged in the unauthorized practice of law, it may be actionable as defamation per se
since it questions his integrity in the performance of his profession. Defendants argue,
however, that the mere act of providing legal advice while not currently state-licensed is not
necessarily an unauthorized practice of law.
¶ 27 Rule 5.5(c)(1) of the Illinois Rules of Professional Conduct (Ill. R. Prof Conduct (2010)
R. 5.5(c)(1) (eff. Jan. 1, 2010)) provides that "[a] lawyer admitted in another United States
jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction that *** are undertaken in association with a
lawyer who is admitted to practice in this jurisdiction and who actively participates in the
matter." At the time Mr. Antonacci allegedly provided the advice, he was licensed in
Washington D.C. and working on a project assigned to him by Ms. Ponder, who is presumably
licensed in Illinois. Ms. Ponder actively participated in the project. As such, Mr. Antonacci
engaged in no wrongdoing and the statement referring to his actions is therefore not defamatory.
Additionally, the statement could be viewed as an expression of opinion protected from claims of
defamation per se. See Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558,
581 (2006); Pompa v. Swanson, 2013 IL App (2d) 120911, ¶ 22. Ms. Ponder could be stating
her opinion that in light of the fact that Mr. Antonacci had not yet taken the Illinois bar
examination, and given his inexperience in local procurement and the city's process, he should
not have rendered certain advice to the city. Dismissal of this claim was proper.
¶ 28 As for Mr. Antonacci's remaining allegations of defamation per se based on Ms. Ponder's
email, those statements are capable of an innocent construction read in context of the email as a
whole and given the purpose of the correspondence. Tuite, 224 Ill. 2d at 512 (the innocent
construction rule requires that a writing be read " 'as a whole' " (quoting John v. Tribune Co., 24
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Ill. 2d 437, 442 (1962)). Ms. Ponder's email, read as a whole, addressed Mr. Antonacci's
working relationship with her and his fit as an employee of Seyfarth. In his interview, Mr.
Antonacci assured the firm that he was capable of, and interested in, performing work for Ms.
Ponder. He was hired primarily to work with her in the government contract group of the firm.
In considering him for the position, Seyfarth knew that Mr. Antonacci's experience was at the
federal, rather than state or local, level. However, he assured Seyfarth that he could work on
projects alone and, given his background with large firms, defendants believed he "would
integrate well into the firm."
¶ 29 Ms. Ponder soon discovered that Mr. Antonacci's experience was not a good fit with the
job at Seyfarth. Mr. Antonacci scheduled "separate meetings with clients" when he "knew he
had limited time to complete project." He "missed deadlines" and Ms. Ponder had to ask for an
extension. Mr. Antonacci gave her a "revised schedule of what he could do by the deadline
date and most of it was after the deadline date." She had to assign the project to another
attorney. Ms. Ponder gave Mr. Antonacci another assignment, and he reached out to her and
showed interest. However, she also "found out" that Mr. Antonacci "had reached out to pro
bono director, which she assumed was to do more work without her." With the licensing issue
approaching, Mr. Antonacci's attitude "changed and he appears to act more interested." Ms.
Ponder felt that "his actions have been unsettling and inconsistent with what he portrayed in the
interview." She believed that the future of their working relationship "is highly speculative"
and felt that Seyfarth should not "be going out of our way to make exceptions for him and wants
to leave door open for future options."
¶ 30 Each of these statements was specifically confined to the context of Mr. Antonacci's
working relationship with Ms. Ponder and his fit with Seyfarth, and the audience for the email
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was limited to several human resources personnel. In this context, we cannot reasonably
conclude that Ms. Ponder's statements accused Mr. Antonacci of actions and misconduct that
imputes a general lack of integrity in the performance of his duties as a lawyer or prejudices him.
Rather, the more reasonable conclusion is that Ms. Ponder stated her belief that Mr. Antonacci
was not a good fit with Seyfarth and did not work well with her. The statements are reasonably
capable of an innocent construction and therefore they are not defamatory per se. Green, 234
Ill. 2d at 502-03.
¶ 31 Mr. Antonacci disagrees, arguing that Ms. Ponder made those statements "to criticize
[his] professional judgment, diligence, and character in order to discredit him and threaten his
employment, while at the same time protecting [her] reputation and employment." He supports
his argument with allegations that she was embarrassed that the client discovered her "ignorance"
of critical case law, gave Mr. Antonacci arbitrary deadlines that were difficult to meet, and yelled
at him "in an unprofessional manner for approximately 90 minutes." However, under the
innocent construction rule, we consider the written statement in context and give the words of the
statement, and any implications arising therefrom, their natural and obvious meaning. Bryson,
174 Ill. 2d at 90. Notwithstanding Mr. Antonacci's unsupported allegations that Ms. Ponder
lied about the events described in the email, the natural and obvious meaning of the statements
are reasonably capable of innocent construction and should be so interpreted. Mittelman, 135
Ill. 2d at 232.
¶ 32 Mr. Antonacci also alleges that, "[u]pon information and belief, Ms. Ponder maliciously
made numerous false statements concerning [him] to Ms. Pirelli, Ms. Gofron, Mr. Rowland, Mr.
Connelly and others subsequent to" the email, and "[u]pon information and belief," she also
made such statements to the client, City of Chicago. In Green, our supreme court determined
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that in a claim for defamation per se, where actual damages need not be alleged, the plaintiff
must plead with "a heightened level of precision and particularity" to protect defendants from
baseless claims of serious wrongdoing. Green, 234 Ill. 2d at 495. The supreme court did not
favor the use of the phrase, "upon information and belief," but found that pleadings based "upon
information and belief" could survive dismissal if the plaintiff sufficiently pleads the factual
basis informing his belief. Id. Here, Mr. Antonacci does not specify what was said to these
parties, how the statements were made or when they were made. As such, his "pleadings do not
allege sufficient facts to state a cause of action for defamation per se and the trial court properly
dismissed" the claim. Grundhoefer v. Sorin, 2014 IL App (1st) 131276, ¶ 23.
¶ 33 Since the trial court properly dismissed Mr. Antonacci's claim for defamation per se, it
follows that he cannot maintain his claim for tortious interference. See Jacobson v. CBS
Broadcasting, Inc., 2014 IL App (1st) 132480, ¶ 54 ("In light of the fact that plaintiff's actions
for defamation, false light, and invasion of privacy have been rejected, those actions can no
longer serve as a basis for her claims of *** tortious interference with a business expectation.").
Furthermore, the issue of whether the trial court erred in quashing subpoenas seeking depositions
and documents that may show Ms. Ponder made defamatory statements about him to the city is
now moot. A reviewing court will not decide moot questions, or consider issues not essential to
the disposition of the causes before it. Condon v. American Telephone & Telegraph Co., 136
Ill. 2d 95, 99 (1990).
¶ 34 Mr. Antonacci next contends that the trial court erred in dismissing his fraudulent
misrepresentation claim against defendants. He alleges that when he interviewed for the
position at Seyfarth, the firm's attorneys assured him that "Ms. Ponder was a good person for
whom to work and that other Seyfarth attorneys actively sought to work with her." However,
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he soon discovered that Ms. Ponder was "unreasonable, vindictive, and unable to manage people
or projects *** which led to his ultimate termination." To plead and prove a claim for
fraudulent misrepresentation, a plaintiff must show: (1) a false statement of material fact; (2) the
party making the false statement knew of its falsity; (3) an intent to induce the other party to act;
(4) the other party reasonably relied on the truth of the statement; and (5) the other party suffered
damages resulting from such reliance. Neptuno Treuhand-Und Verwaltungsgesellschaft MBH
v. Arbor, 295 Ill. App. 3d 567, 571 (1998).
¶ 35 A statement of opinion, however, cannot form the basis of an action for fraudulent
misrepresentation. Id. at 572. " 'A representation is one of opinion rather than fact if it only
expresses the speaker's belief, without certainty, as to the existence of a fact.' " Id. at 571
(quoting Marino v. United Bank of Illinois, N.A., 137 Ill. App. 3d 523, 527 (1985)). A
comment to section 538A of the Restatement (Second) of Torts states that "[o]ne common form
of opinion is a statement of the maker's judgment as to quality, value, authenticity or similar
matters as to which opinions may be expected to differ." Restatement (Second) of Torts §
538A cmt. b, at 83 (1977). A statement that a person is "[i]ntelligent, industrious and
innovative" is an opinion that describes personal qualities, "and whether they exist in a given
individual is a matter upon which individual judgment may be expected to differ." Arbor, 295
Ill. App. 3d at 572. Similarly, the statement that Ms. Ponder was a good person to work for and
whom others actively sought to work with, is one of opinion. Therefore, it cannot form the
basis of an action for fraudulent misrepresentation and the trial court properly dismissed this
claim. Id.
¶ 36 Additionally, given the unambiguous terms of Mr. Antonacci's employment contract with
Seyfarth, it was not reasonable for him to rely on representations regarding the security of his
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employment. When interpreting a contract, a court's primary objective is to ascertain the intent
of the parties at the time they executed the contract. Owens v. McDermott, Will & Emery, 316
Ill. App. 3d 340, 344 (2000). Where the contract's language is clear and unambiguous, we must
ascertain the parties' intent exclusively through the contract's terms given their plain and ordinary
meaning. Id. According to Mr. Antonacci's employment contract with Seyfarth, his
employment was "at-will" meaning "either [Mr. Antonacci] or [Seyfarth] can terminate [his]
employment with or without cause or notice." An employer may terminate an at-will employee
"for any reason or for no reason" so long as the termination does not violate "clearly mandated
public policy." Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 525 (1985).
¶ 37 Mr. Antonacci's final contention is that the trial court erred in denying his second petition
for substitution of judge. He argues that during the proceedings, Judge Brewer "displayed a
deep-seated favoritism and antagonism that would make fair judgment impossible." A trial judge
is presumed to be impartial, and the challenging party bears the burden of overcoming this
presumption. Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). Allegations of judicial bias or
prejudice are viewed in context and evaluated in terms of the judge's specific reaction to the
situation at hand. People v. Jackson, 205 Ill. 2d 247, 277 (2001). A determination to disqualify
a judge due to bias or prejudice is not " 'a judgment to be lightly made.' [Citation.]" Eychaner,
202 Ill. 2d at 280.
¶ 38 Mr. Antonacci alleges that Judge Brewer was biased as evidenced by her recent rulings
against him and that her bias resulted from "her political affiliations and professional
relationships" which were "inextricably intertwined with" Ms. Ponder and the city. Mr.
Antonacci alleged that Judge Brewer was an attorney for the city's law department from 1988 to
1994, while Ms. Ponder worked for the city's Department of Procurement Services from 1984 to
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No. 1-14-2372
1989, and was director of contract compliance from 1986 to 1989. He also alleged they had
connections through Cook County board presidents John Stroger and Bobbie Steele. However,
at the hearing on his petition, Judge Brewer unequivocally stated, "I do not know Anita Ponder."
Even if she had known her, that fact alone is not enough to disqualify Judge Brewer from presiding
over the case. "It is generally held that a judge need not disqualify [herself] just because a friend
appears before [her] in court." People v. Buck, 361 Ill. App. 3d 923, 933 (2005) (trial judge not
necessarily disqualified from presiding over a case where one of the attorneys supported his
election campaign in the past, but did not donate money or actively participate in the campaign).
¶ 39 As for Judge Brewer's rulings against him, "[a] judge's rulings alone almost never
constitute a valid basis for a claim of judicial bias or partiality." Eychaner, 202 Ill. 2d at 280.
Mr. Antonacci also refers to Judge Brewer's antagonism toward him during the proceedings,
particularly at the December 5, 2013, hearing where he asked to submit his surreply. Mr.
Antonacci contends that Judge Brewer's expressly refused to consider the affidavits he submitted
pursuant to section 2-619(c), and she would erratically and periodically scream at him
throughout the proceeding, "I'M NOT LOOKING AT IT!" The transcript of the hearing,
however, reflects only Judge Brewer's frustration with Mr. Antonacci's attempt to submit a
surreply one day before the hearing and at no point does she scream, "I'M NOT LOOKING AT
IT." A display of displeasure or irritation with an attorney's behavior is not necessarily evidence
of judicial bias against a party or his counsel. Jackson, 205 Ill. 2d at 277. There is no evidence
in the record that Judge Brewer acted in a hostile manner or was biased against Mr. Antonacci
due to her alleged connection with Ms. Ponder, and the trial court properly dismissed this claim.
¶ 40 Mr. Antonacci contends, without citation to authority, that the trial court erred in
quashing the subpoenas he served upon Toomey and court reporter Peggy Anderson. He argues
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that the discovery he requests will tend to prove that the transcript of the December 5, 2013,
hearing "was fraudulently altered" to delete "Judge Brewer's hostile outbursts" toward him and
will bolster his petition for substitution of judge for cause. A reviewing court will not overturn
the trial court's discovery order absent an abuse of discretion. Wisniewski v. Kownacki, 221 Ill.
2d 453, 457 (2006). A discovery request must meet the threshold requirement of relevance to
the matters at issue in the case, and the trial court should deny discovery where insufficient
evidence is shown that the discovery is relevant. Dei v. Tumara Food Mart, Inc., 406 Ill. App.
3d 856, 866 (2010). Although the trial court here quashed Mr. Antonacci's subpoena requests,
it did allow the parties to hear the audio recording of the December 5, 2013, hearing from the
court reporter's computer. There is no dispute that the transcript of the hearing matched the
audio recording. Mr. Antonacci's request for further discovery amounts to an improper "
'fishing expedition' " conducted " 'with the hope of finding something relevant.' [Citation.]"
Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 659 (2002). The trial court did not abuse
its discretion in denying this discovery request. Id.
¶ 41 Mr. Antonacci also argues in his brief that the trial court erred in denying his motion for
leave to file a surreply instanter. However, he provides very little analysis and no support from
case law. He cites section 2-1007 of the Code for the proposition that the trial court may extend
time to do any act, upon good cause shown, prior to entry of judgment, but the cases he cites in
support of his argument, Sullivan v. Power Construction, Inc., 108 Ill. App. 3d 653 (1982) and
Grossman Clothing Co., v. Gordon, 110 Ill. App. 3d 1063 (1982), are not section 2-1007 cases.
Therefore, pursuant to Rule 341(h)(7), he has forfeited the issue for review.
¶ 42 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 43 Affirmed.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
LOUIS B. ANTONACCI, an individual,
Plaintiff-Appellant,
v.
SEYFARTH SHAW, LLP, a partnership, and
ANITA J. PONDER, an individual,
Defendants-Appellees.
No. 1-14-2372
Appellate Court of Illinois
First District, First Division
August 17, 2015
JUSTICE HARRIS delivered the judgment of the court with opinion.
Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Honorable Eileen M. Brewer and Thomas Hogan, Judges Presiding.
Law Offices of Louis B. Antonacci, 360 H Street NE, Unit 334, Washington, DC
20002, (Louis B. Antonacci, of counsel), for APPELLANT.
Perkins Coie LLP, 131 South Dearborn Street, Suite 1700, Chicago, IL
60603, (Matthew J. Gehringer and Bates McIntyre Larson, of counsel), for APPELLEES.
Stephen R. Patton, Corporation Counsel of the City of Chicago, 30 North LaSalle Street,
Suite 800, Chicago, IL 60602, (Benna Ruth Solomon, Myriam Zreczny Kasper and
Suzanne M. Loose, of counsel), for NON-PARTY APPELLEE City of Chicago.