Appellate Court Affirms Dismissal of Defamation Suit Spawned from Contentious Divorce

Divorce proceedings can be contentious but some can be more contentious than others. In the case of disbarred McHenry County lawyer, Mark McCombs, a contentious divorce led to his filing of a defamation and malicious prosecution lawsuit. The First District Appellate Court affirmed the trial court’s dismissal of the complaint in which McCombs alleged that his former wife defamed him and had him falsely charged with harassment. The Court also affirmed the denial of sanctions that McCombs sought against his ex-wife in the suit.

McCombs and his former wife, Kathryn Crivolio, started divorce proceedings in 2010. The proceedings soon became contentious. So contentious in fact that at one point in the proceedings, the judge entered an order prohibiting McCombs “from filing any pleadings in this matter without first seeking leave of court [ ] to do so.”

Shortly before the divorce proceedings began, McCombs, who had served as special counsel to the Village of Calumet Park from 2002 to 2010, was indicted for stealing between $600,000 to $800,000 from the Village. McCombs pled guilty and was sentenced to six years in prison. A few months later in January 2012, he was disbarred.

While McCombs was in prison, he conversed with his wife via email. In one of the email exchanges, Crivolio allegedly wrote to McCombs: “You have stolen from me, your employers, your client’s (sic) and your own mother.” McCombs alleged that Crivolio also published this statement to his children, family, and others, which he alleged “lowered [him] in the eyes of the community.” The complaint pled claims for both defamation per se and defamation per quod. Circuit Judge Kathy Flanagan dismissed the complaint with prejudice on the grounds that the allegations lacked substance.

The appellate court affirmed the dismissal of the defamation claims, finding that they suffered from a “total lack of precision and particularity.” The complaint, the Court explained, “fails to identify with any particularity what was conveyed to a third party, when it was conveyed, how it was conveyed, or even precisely to whom it was conveyed.”

The only purportedly defamatory statement that the complaint identified specifically was in an email sent only to McCombs. This email could not form the basis of a defamation claim because it lacked the second element of a prima facie claim for defamation: publication to a third party. Although the court acknowledged that the complaint referenced the email and alleged that his former wife “published that statement to others,” the Court found these allegations to be insufficient because they did not specify what was actually said or who the “others” were to whom the statement was published.

In a defamation claim, the Court explained, “[i]t is the words used by a defendant that matters.” While the Court acknowledged that a plaintiff “need not set forth the exact defamatory words that were used” to state a claim, it stressed that the “substance of the statement must be pled with ‘sufficient precision and particularity’ so as to permit judicial review of its defamatory content and to allow the defendant to properly formulate an answer and identify any potential affirmative defenses complaint.” The Court found that the complaint did not do this but instead contained only “vague and generic summaries.”

The defamation per quod claim also failed for another reason: McCombs failed to allege any special damages resulting from the defamation. Unlike in a defamation per se claim, the Court explained, damages are not presumed in defamation per quod claims. Thus, to state a claim, the plaintiff must plead with specificity the special (i.e. pecuniary) damages suffered as a result of the defamation.

Lubin Austermuehle’s defamation and slander lawyers near Wheaton and Oakbrook have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state defamation, libel and slander laws. We assist businesses and owners who are the victims of defamatory and slanderous attacks on their businesses and reputations.

You can read the Court’s entire opinion here.

Our DuPage County defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense here. Here you can find an arbitration decision where we successfully defended our client’s right to post negative opinions on YouTube about a used car dealer. We recently required a defendant who publicized an allegedly false lawsuit concerning our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16,000,000.00 defamation per se suit in federal district court.

We also handle emergency commercial litigation involving preliminary injunctions and temporary restraining orders (TROs), defamation, libel, and covenants not to compete, franchise, distributor and dealer wrongful termination, and trade secrets along with various other types of business disputes involving shareholders, partnerships, closely-held businesses and employee or executive breaches of fiduciary duties. Our Naperville business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses, and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Elmhurst and Wilmette, near Park Ridge and Highland Park, we serve clients throughout Illinois and the Midwest. You can contact us online here or call us on our toll-free number at 833-306-4933 or locally at 630-333-0333.

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