The Illinois Appellate Court 1st District 4th Division has affirmed a decision by Cook County Circuit Court Judge James N. O’Hara. The plaintiff Joseph Abbas was the president and principal partner of a luxury car dealership known as Bentley of Downers Grove, Gold Coast Bentley and Gold Coast Lamborghini.
Charter One was Abbas’ principal business lender. Defendant Michael Weininger is an attorney, principal partner of his own law firm and Charter One’s legal representative.
In early 2009, Abbas’ dealership began experiencing financial difficulties and Abbas agreed to sell it to Joseph Perillo. Abbas and Perillo completed a purchase agreement on Aug. 10, 2009.
During this time, Abbas remained in default on his loan obligations to Charter One. In Septemer 2009, the bank exercised its right pursuant to the Illinois Uniform Commercial Code to sell Abbas’ collateral. The sale took place on Sept. 2, 2009.
On Sept. 25, 2009, Abbas and Perillo executed a second and final amendment to their purchase agreement, according to which Perillo acquired all of the dealership’s inventory, fixtures, intellectual property, other assets and goodwilll at the sale for about $3.84 million.
Several days later, around Sept. 29, 2009, an Illinois Secretary of State police officer confronted Abbas at his office and issued him 27 citations for failing to transfer title of the vehicles he had sold, in violation of section 3-113 of the Illinois Vehicle Code. The violations all related to sales made by Abbas prior to his sale of the dealership.
On Oct. 2, 2009, Weininger, who was then representing Charter One in an unrelated dispute between the bank, Abbas and certain other individuals, sent the following e-mail to Perillo and to the attorneys for Bentley Motors:
“The IL Secretary of State Police arrested Abbas today on 27 counts and he posted bond. This is an excerpt from an e-mail I received moments ago.”
In response, on Oct. 19, 2009, Abbas filed a five-count complaint against Weininger, his firm and Charter One. The fourth and final amended complaint, filed Nov. 15, 2010, brought claims of 1) defamation per se, 2) defamation per quod), 3) false light, 4) intentional infliction of emotional distress, 5) negligent infliction of emotional distress, and 6) negligence.
The defendants moved to dismiss, contending inter alia, that the allegedly defamatory statement in the e-mail sent by Weininger was substantially true.
Abbas conceded that his claims for intentional and negligent infliction of emotional distress and negligence should be stricken, and the case proceeded only on the counts of defamation per se, defamation per quod and false light.
On April 27, 2011, the circuit court dismissed Abbas’ fourth amended complaint with prejudice pursuant to section 2-619 of the Civil Procedure Code. The court specifically found that the citations issued to Abbas by the Illinois Secretary of State police “amounted to an arrest, and therefore, the statement [in the email] [wa]s substantially true” and not actionable.
On appeal, Abbas argued that the trial court improperly dismissed his claim of defamation per se, by finding that the issuance of the citations constituted an arrest.
The court noted that each of the 27 citations has a notation of “how the arrest was made” and that Abbas posted bond for all the citations. Given that, the court wrote, “We cannot but find the ‘gist’ or ‘sting’ of the allegedly defamatory statement, the IL Secretary of State Police arrested Abbas today on 27 counts and he posted bond,’ to be true.”
That Abbas was not handcuffed, physically restrained, finger printed, “Mirandized,” or deprived of his liberty or any personal property, the court found unpersuasive. It wrote “…our courts have been clear that ‘no formal declaration of arrest is necessary for an arrest to occur’…and that an arrest need not rise to the level of physical custody.”
The case was reported in the Chicago Daily Law Bulletin.
Kreisman Law Offices has been handling Cook County business litigation matters for more than 36 years in and around Chicago, Cook County, and surrounding areas, including Oak Park, Hoffman Estates, Skokie, Chicago’s Logan Square, Lincolnwood, Des Plaines, and Hinsdale.
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