{ "id": 1725034, "name": "JEFFREY BECKER et al., Plaintiffs-Appellants and Cross-Appellees, v. KATHLEEN T. ZELLNER, d/b/a Kathleen T. Zellner and Associates, et al., Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Becker v. Zellner", "decision_date": "1997-09-16", "docket_number": "No. 2-96-1309", "first_page": "116", "last_page": "131", "citations": [ { "type": "official", "cite": "292 Ill. App. 3d 116" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "286 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544491 ], "year": 1997, "pin_cites": [ { "page": "887" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0882-01" ] }, { "cite": "128 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3526004 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "533" }, { "page": "533" }, { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0531-01" ] }, { "cite": "381 Ill. 81", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2556993 ], "year": 1942, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/ill/381/0081-01" ] }, { "cite": "285 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295614 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "647" }, { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0641-01" ] }, { "cite": "184 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640087 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "184" }, { "page": "184" }, { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0155-01" ] }, { "cite": "217 Ill. App. 3d 803", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5282769 ], "year": 1991, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0803-01" ] }, { "cite": "845 F. Supp. 592", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3883188 ], "year": 1994, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/f-supp/845/0592-01" ] }, { "cite": "53 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390400 ], "year": 1977, "pin_cites": [ { "page": "653", "parenthetical": "allegation that plaintiff lost income and continued to lose income as a result of patients leaving its nursing home sufficient to support special damages" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0644-01" ] }, { "cite": "190 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518602 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "530" }, { "page": "530-31", "parenthetical": "plaintiff's allegation of special damages insufficient to support defamation per quod where plaintiff did not allege that customers stopped doing business with it as a result of defendant's alleged actions" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0524-01" ] }, { "cite": "273 Ill. App. 3d 388", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258737 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "394" }, { "page": "396" }, { "page": "396" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0388-01" ] }, { "cite": "223 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255899 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "9" }, { "page": "9" }, { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0001-01" ] }, { "cite": "135 Ill. App. 3d 190", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600697 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "200" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0190-01" ] }, { "cite": "241 Ill. App. 3d 738", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2436189 ], "year": 1992, "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0738-01" ] }, { "cite": "267 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333062 ], "year": 1994, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0767-01" ] }, { "cite": "261 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5371590 ], "year": 1994, "pin_cites": [ { "page": "343", "parenthetical": "trial court may not consider matters unsupported by affidavit" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0338-01" ] }, { "cite": "38 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2804842 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "175" }, { "page": "175", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0172-01" ] }, { "cite": "113 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626095 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "540" }, { "page": "540", "parenthetical": "innocent construction rule properly considered under section 48(l)(i) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48(l)(i) (now 735 ILCS 5/2 - 619(a)(9) (West 1994)))" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0536-01" ] }, { "cite": "161 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467335 ], "year": 1987, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0476-01" ] }, { "cite": "188 Ill. App. 3d 527", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2691639 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "530" }, { "page": "530" }, { "page": "532-33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0527-01" ] }, { "cite": "260 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2864731 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0313-01" ] }, { "cite": "269 Ill. App. 3d 648", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365958 ], "year": 1995, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0648-01" ] }, { "cite": "165 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483553 ], "year": 1995, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0523-01" ] }, { "cite": "281 Ill. App. 3d 489", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150174 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "492" }, { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0489-01" ] }, { "cite": "154 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820830 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0001-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "287 Ill. App. 3d 16", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521036 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "20" }, { "page": "21" }, { "page": "21" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0016-01" ] }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "weight": 15, "year": 1996, "pin_cites": [ { "page": "86" }, { "page": "86" }, { "page": "86" }, { "page": "86-87" }, { "page": "86" }, { "page": "91" }, { "page": "92" }, { "page": "88" }, { "page": "90" }, { "page": "90" }, { "page": "90" }, { "page": "90" }, { "page": "88" }, { "page": "93" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "275 Ill. App. 3d 587", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906726 ], "year": 1995, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0587-01" ] }, { "cite": "271 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. 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KATHLEEN T. ZELLNER, d/b/a Kathleen T. Zellner and Associates, et al., Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nPlaintiffs, Jeffrey, Steven, and Thomas Becker (collectively, plaintiffs), appeal the dismissal of their complaint against defendants, Kathleen T. Zellner (Zellner) and Kathleen T. Zellner & Associates, P.C. (collectively, defendants). Defendants cross-appeal the denial of their motion for sanctions. We affirm in part, reverse in part, and remand.\nPreliminarily, we note that defendants have filed a motion to dismiss plaintiffs\u2019 appeal. This motion was ordered to be taken with the case. We deny defendants\u2019 motion and will consider the merits of plaintiffs\u2019 appeal.\nThe following summary of facts is taken from the pleadings. On May 6,1996, plaintiffs filed a five-count complaint against defendants in which they alleged that, as paralegals, they assisted defendants in their representation of Frank Lyons during the fall of 1994. On May 9, 1995, Sharon Wendt, a friend of Lyons, called defendants in order to obtain plaintiffs\u2019 telephone number for Lyons. Lyons apparently wanted plaintiffs to work with his new attorney. In the presence of an associate of her firm, defendant Zellner accepted Wendt\u2019s call and placed it on a speakerphone. Zellner then allegedly told Wendt (1) that during plaintiffs\u2019 employment with her, they had submitted \"a $45,000 bill for five pages of worthless memorandum\u201d; (2) that Lyons should not contact plaintiffs; and (3) that plaintiffs were \"devious\u201d and that they would try to \"get into the back door\u201d when charging Lyons for their services.\nPlaintiffs\u2019 complaint further alleged that later on May 9, 1995, Lyons \"left a message on their answering machine stating that he wanted to know whether Plaintiffs were going to stick him with a $45,000.00 bill.\u201d Lyons did not hire plaintiffs to assist him in the preparation of his case, and their \"business relationship and reputation\u201d with Lyons were \"never the same\u201d after Zellner\u2019s telephone conversation with Wendt.\nOn March 19, 1996, plaintiffs\u2019 attorney sent defendants a letter in an attempt to negotiate a settlement regarding payments allegedly owed to them. On March 21, 1996, defendants responded with a letter to plaintiffs\u2019 attorney (March 21 letter), in which Zellner stated: \"My only settlement offer to you in regard to the [plaintiffs] is that I will not seek sanctions against you if you do not file this lawsuit. Your clients will be countersued for their fraudulent misrepresentations to this firm about their prior unauthorized practice of law ***.\u201d\nOn May 6, 1996, plaintiffs filed their complaint against defendants. Plaintiffs alleged that defendant Zellner had committed slander per se, slander per quod, and commercial disparagement during her May 9, 1995, telephone conversation with Wendt. Additionally, plaintiffs sought damages against defendants for intimidation and extortion based on the March 21 letter.\nOn June 7, 1996, defendants filed a motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014 615 (West 1994)). On the same day, defendants filed a motion for sanctions pursuant to Supreme Court Rule 137 (155 111. 2d R. 137) based on the intimidation and extortion counts of plaintiffs\u2019 complaint.\nOn July 16, 1996, defendants filed a motion to stay plaintiffs\u2019 discovery pending the trial court\u2019s decision with respect to their section 2 \u2014 615 motion. On July 18, 1996, the trial court granted defendants\u2019 motion to stay plaintiffs\u2019 discovery.\nOn August 6, 1996, plaintiffs filed their response to defendants\u2019 section 2 \u2014 615 motion to dismiss. Plaintiffs argued that defendants\u2019 motion to dismiss was improperly brought pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 1994)) because it impermissibly raised \"affirmative factual defenses based upon extrinsic facts unsupported by affidavit.\u201d On the same date, plaintiffs also filed a motion for sanctions against defendants pursuant to Rule 137 (155 Ill. 2d R. 137).\nOn September 30, 1996, the trial court granted defendants\u2019 section 2 \u2014 615 motion to dismiss plaintiffs\u2019 complaint. The trial court found that count I (slander per se) was subject to the innocent construction rule; count II (slander per quod) was insufficiently pleaded; count III (commercial disparagement) was not a recognized cause of action; and count IV (intimidation) and count V (extortion) were subject to absolute privilege. The trial court also denied each party\u2019s motions for Rule 137 sanctions.\nIn a subsequent order of October 7, 1996, the trial court stated that its dismissal of plaintiffs\u2019 complaint was \"with prejudice.\u201d (Emphasis in original.) Additionally, the trial court denied plaintiffs\u2019 oral motion for discovery for purposes of amending their complaint. Plaintiffs and defendants thereafter filed their respective appeal and cross-appeal.\nOn appeal, plaintiffs contend that the trial court erred in (1) granting defendants\u2019 motion to dismiss; (2) barring them from conducting any discovery prior to its ruling on the motion to dismiss; (3) denying their oral motion to conduct discovery for purposes of amending their complaint; (4) determining that Zellner\u2019s allegedly defamatory statements were capable of an innocent construction; and (5) finding that allegations of intimidation and extortion were governed by the doctrine of absolute privilege. Defendants contend in their cross-appeal that the trial court erred in denying their motion for sanctions.\nI\nPlaintiffs\u2019 first contention on appeal is that the trial court erred in granting defendants\u2019 section 2 \u2014 615 motion to dismiss. According to plaintiffs, defendants\u2019 motion was improper because it \"impermissibly raised affirmative factual defenses based upon extrinsic facts unsupported by affidavit.\u201d In other words, plaintiffs contend that it was improper for defendants to raise the affirmative defenses of innocent construction and absolute privilege in their section 2 \u2014 615 motion. As such, the trial court erred in granting defendants\u2019 improper motion to dismiss. To examine this contention fully, we must first discuss the differences between a section 2 \u2014 615 motion and a section 2 \u2014 619 motion.\nA\nOur supreme court has recently counseled that \"meticulous practice\u201d dictates that parties specifically, and properly, designate whether their motions to dismiss are pleaded pursuant to section 2 \u2014 615 or section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 1994)). See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). The misdesignation of a motion to dismiss, however, is not always fatal to the movant\u2019s right to prevail. Scott Wetzel Services v. Regard, 271 Ill. App. 3d 478, 481 (1995). Reversal may be required if the nonmovant is prejudiced by the movant\u2019s improper motion practice. See Illinois Graphics, 159 Ill. 2d at 484; Buais v. Safeway Insurance Co., 275 Ill. App. 3d 587, 589 (1995).\nHere, plaintiffs\u2019 complaint was dismissed pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 1994)). Section 2 \u2014 615 provides for dismissal for \"defects in [the] pleadings\u201d where the complaint is \"substantially insufficient in law.\u201d 735 ILCS 5/2 \u2014 615 (West 1994). Motions to dismiss pursuant to this section attack only the legal sufficiency of the complaint. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). As such, a section 2 \u2014 615 motion \"does not raise affirmative factual defenses but alleges only defects on the face of the complaint.\u201d Bryson, 174 Ill. 2d at 86. A reviewing court must accept as true all well-pleaded facts and reasonable inferences that may be drawn therefrom (Bryson, 174 Ill. 2d at 86) and determine whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, \"sufficiently set forth a cause of action on which relief may be granted\u201d (Brock v. Anderson Road Ass\u2019n, 287 Ill. App. 3d 16, 20 (1997)). A claim should not be dismissed unless it appears that no set of facts can be proved that would entitle the plaintiff to recovery. Bryson, 174 Ill. 2d at 86-87.\nIn contrast, section 2 \u2014 619(a)(9) of the Code allows for dismissal on the pleadings if \"the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 1994). Again, all well-pleaded facts are deemed admitted. Brock, 287 Ill. App. 3d at 21. However, the moving party under section 2 \u2014 619 \"admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim.\u201d Brock, 287 Ill. App. 3d at 21. The granting of either a section 2 \u2014 615 or a section 2 \u2014 619 motion to dismiss is reviewed de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993); Brock, 287 Ill. App. 3d at 21.\nThus, it is apparent that a motion to dismiss under section 2 \u2014 615 differs significantly from a motion for involuntary dismissal under section 2 \u2014 619. A section 2 \u2014 615 motion is solely concerned with defects on the face of the complaint. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 8 (1992); Yu v. Kobayashi, 281 Ill. App. 3d 489, 492 (1996). In contrast, a section 2 \u2014 619 motion admits the legal sufficiency of the complaint (Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530 (1995)), but asks for a dismissal based on other affirmative matters of law or easily proved issues of fact (Yu, 281 Ill. App. 3d at 492; Harris v. News-Sun, 269 Ill. App. 3d 648, 650 (1995)). Because of these differences, affirmative defenses are only generally properly pleaded in a section 2 \u2014 619 motion, where the legal sufficiency of the complaint is admitted. Raising such defenses in a section 2 \u2014 615 motion would completely contradict the purpose of bringing such a motion, where the movant is expressly challenging the sufficiency of the complaint itself. Thus, affirmative defenses may not be raised in a section 2 \u2014 615 motion. Bryson, 174 Ill. 2d at 86; Illinois Graphics, 159 Ill. 2d at 484-85.\nB\nDespite these principles, the Appellate Court, First District, has repeatedly recognized that trial courts may apply the innocent construction rule when deciding a motion to dismiss brought pursuant to section 2 \u2014 615. See, e.g., Taradash v.Adelet/ ScottFetzer Co., 260 Ill. App. 3d 313 (1993); Heerey v. Berke, 188 Ill. App. 3d 527, 530 (1989). The rationale of these decisions seems to be that, while \"the question of whether a statement is reasonably understood as defamatory is generally a question of fact for the jury, it is nevertheless the role of the court to determine, in the first instance, if the alleged defamatory remark is reasonably susceptible to an innocent construction.\u201d Heerey, 188 Ill. App. 3d at 530; see Berkos v. National Broadcasting Co., 161 Ill. App. 3d 476, 485 (1987). In other words, even though innocent construction is an affirmative defense and would normally only be raised in a section 2 \u2014 619 motion, a court may review it under a section 2 \u2014 615 motion because of the nature of the cause of action and the defense. Only the court may determine whether an allegation is capable of an innocent construction, and that determination can be made from the four corners of the complaint. As such, the first district has concluded that pleading innocent construction as an affirmative defense in a section 2 \u2014 615 motion is proper. We find this reasoning to be persuasive. Therefore, we hold that trial courts may properly apply the innocent construction rule when ruling on both section 2 \u2014 615 and section 2 \u2014 619 motions to dismiss.\nContrary to plaintiffs\u2019 contention, both in their brief and at oral argument, this court has never held that the innocent construction rule may only be applied in cases involving a section 2 \u2014 619 motion. Plaintiffs\u2019 citations to Cartwright v. Garrison, 113 Ill. App. 3d 536, 540 (1983), and Kilbane v. Sabonjian, 38 Ill. App. 3d 172, 175 (1976), are misplaced. In both cases, we held that whether allegedly defamatory language was subject to the innocent construction rule could properly be considered under a motion for involuntary dismissal. Cartwright, 113 Ill. App. 3d at 540 (innocent construction rule properly considered under section 48(l)(i) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48(l)(i) (now 735 ILCS 5/2 \u2014 619(a)(9) (West 1994)))); Kilbane, 38 Ill. App. 3d at 175 (same). We did not hold that the innocent construction rule can only be considered under section 2 \u2014 619 or that it may never be considered under section 2 \u2014 615. Accordingly, defendants did not improperly raise the affirmative defense of innocent construction in their section 2 \u2014 615 motion to dismiss.\nC\nEven though defendants properly raised their affirmative defense of innocent construction, their motion to dismiss was insufficient for another reason. In their motion to dismiss, defendants argued, at some length, that the comments Zellner allegedly made during her telephone conversation with Wendt were in the context of a \"billing dispute.\u201d According to defendants, it was this context which made Zellner\u2019s remarks merely a matter of opinion and not capable of rising to the level of slander per se. Defendants did not attach any affidavits in support of their motion to dismiss.\nHowever, plaintiffs did not allege in their complaint that Wendt called Zellner in regard to a billing dispute between plaintiffs and defendants. Moreover, there is nothing in the pleadings that indicates that Wendt knew or should have known of such a dispute when she called Zellner. All that plaintiffs alleged in their complaint was that Wendt called Zellner in order to obtain plaintiffs\u2019 telephone number for Lyons. Thus, by arguing in their motion to dismiss that the Zellner/Wendt telephone conversation occurred during a \"billing dispute\u201d and that this context frames Zellner\u2019s comments as anything but slander per se, defendants were pleading facts that were extrinsic to plaintiffs\u2019 complaint.\nIt is axiomatic that, in ruling on a section 2 \u2014 615 motion, the trial court may consider only the allegations of the complaint and may not consider other supporting material. Bryson, 174 Ill. 2d at 91. Thus, facts relating to the \"billing dispute\u201d as alleged by defendants cannot properly be considered under their section 2 \u2014 615 motion. As a result, we may consider whether defendants\u2019 motion would be proper under section 2 \u2014 619. See Bryson, 174 Ill. 2d at 92.\nIt is equally well settled that under section 2 \u2014 619 any grounds for dismissal not appearing on the face of the complaint must be supported by affidavit. 735 ILCS 5/2 \u2014 619(a) (West 1994); Illinois Graphics, 159 Ill. 2d at 485. Because the extrinsic facts defendants alleged in their motion to dismiss are crucial to their arguments yet were not submitted via affidavit, their motion to dismiss, even when construed as a section 2 \u2014 619(a)(9) motion, is legally insufficient. See Waterford Executive Group, Ltd. v. Clark/ Bardes, Inc., 261 Ill. App. 3d 338, 343 (1994) (trial court may not consider matters unsupported by affidavit).\nThe trial court should not have acquiesced in this improper motion practice. See Summers v. Village of Durand, 267 Ill. App. 3d 767, 768 (1994). In order to determine whether a reversal is necessary, we must now examine whether plaintiffs were prejudiced by the trial court\u2019s error. See Schwanke, Schwanke & Associates v. Martin, 241 Ill. App. 3d 738, 744 (1992). If plaintiffs were prejudiced by defendants\u2019 improper motion practice, we may either \"reverse without addressing the merits of the motion as argued on appeal\u201d (Eddings v. Dundee Township Highway Commissioner, 135 Ill. App. 3d 190, 200 (1985)), or, in the interests of judicial economy, we may review the merits of the dismissal (Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1, 9 (1991)).\nD\nIn order to determine whether plaintiffs were prejudiced, we must examine the impact of defendants\u2019 improper motion to dismiss. The record does not indicate whether the trial court expressly considered whether the Zellner/Wendt telephone conversation occurred in the context of a \"billing dispute.\u201d However, the trial court dismissed plaintiffs\u2019 cause of action with prejudice as a result of its review of defendants\u2019 improperly pleaded motion to dismiss. We believe that plaintiffs therefore suffered sufficient prejudice to allow us either to reverse the trial court\u2019s decision (Eddings, 135 Ill. App. 3d at 200) or, in the interests of judicial economy, to consider the merits of the dismissal (Bank of Northern Illinois, 223 Ill. App. 3d at 9). In the interests of judicial economy, we will review the merits of the dismissal of each of the counts of plaintiffs\u2019 complaint. See Bank of Northern Illinois, 223 Ill. App. 3d at 9.\nE\nDefendants\u2019 motion to dismiss was labeled as a section 2 \u2014 615 motion and was treated as such by the parties and the trial court. It sought the dismissal of plaintiffs\u2019 complaint for \"failure to make a claim for which relief may be granted.\u201d Accordingly, the question on review is \"whether sufficient facts are contained in the pleadings which, if established, could entitle [plaintiffs] to relief.\u201d Illinois Graphics, 159 Ill. 2d at 488. A cause of action should be dismissed when it is apparent that no set of facts can be proved that would entitle the nonmovant to relief. Illinois Graphics, 159 Ill. 2d at 488.\n1\nTHE SLANDER PER SE COUNT\nIn count I of their complaint, plaintiffs alleged that Zellner had committed slander per se during her conversation with Wendt. Specifically, plaintiffs pointed to Zellner\u2019s alleged statements that they had submitted \"a $45,000 bill for five pages of worthless memorandum,\u201d that Lyons should not contact them, and that they were \"devious\u201d and \"would try to get into the back door.\u201d According to plaintiffs, these alleged statements constituted slander per se because they pertained to plaintiffs\u2019 \"profession and employment.\u201d The trial court found the statements \"susceptible of an innocent construction as a matter of law\u201d and dismissed the per se count.\nThe four categories of statements that are considered actionable per se include:\n\"(1) [Wlords that impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.\u201d Bryson, 174 Ill. 2d at 88.\nEven if words fall into a per se category, the claim will not be actionable if the words are capable of an innocent construction. Bryson, 174 Ill. 2d at 90. Under the innocent construction rule, courts consider the statement \"in context, giving the words, and their implications, their natural and obvious meaning.\u201d Bryson, 174 Ill. 2d at 90. Importantly, only a reasonable innocent construction will negate the per se effect of an allegedly defamatory statement. Bryson, 174 Ill. 2d at 90. Courts decide, as a matter of law, whether an allegedly defamatory statement is reasonably capable of being innocently construed. Bryson, 174 Ill. 2d at 90.\nPlaintiffs argue that Zellner\u2019s alleged statements fall into the fourth per se category, as words that impute their lack of abilities as paralegals. We agree. In context, Zellner\u2019s allegedly defamatory statements were obviously intended to describe and denigrate plaintiffs\u2019 abilities as paralegals. She allegedly called plaintiffs\u2019 work product \"worthless,\u201d labeled them as \"devious,\u201d and, in an apparent attempt to further impugn their characters, told Wendt that they would try to \"get into the back door\u201d during their billing process. The natural and obvious meaning of these words prejudices plaintiffs and imputes a lack of ability in their profession as paralegals. See Bryson, 174 Ill. 2d at 88.\nDespite counsel\u2019s humorous and creative attempt at oral argument to the contrary, the natural and obvious meanings of \"worthless\u201d and \"devious\u201d are negative. Webster\u2019s Dictionary defines \"devious\u201d as \"hard to pin down or bring to agreement\u201d and lists as synonyms \"shifty, tricky, unscrupulous, [and] unfair.\u201d Webster\u2019s Third New International Dictionary 619 (1986). Moreover, Webster\u2019s defines \"worthless\u201d as \"lacking value or material worth\u201d and lists \"useless\u201d as a synonym. Webster\u2019s Third New International Dictionary 2637 (1986). Counsel\u2019s alternative definitions of these words at oral argument were accurate, but the mere existence of other dictionary definitions does not automatically indicate an innocent construction. See Bryson, 174 Ill. 2d at 93. Rather, under the innocent construction rule, we are neither required to \"strain to find an unnatural but possibly innocent meaning for words where the defamatory meaning is far more reasonable,\u201d nor are we required to \"espouse a naivet\u00e9 unwarranted under the circumstances.\u201d Bryson, 174 Ill. 2d at 94. Thus, we reject defendants\u2019 contention that Zellner\u2019s alleged statements can be innocently construed. Accordingly, we reverse the trial court\u2019s dismissal of count I of plaintiffs\u2019 complaint.\n2\nTHE SLANDER PER QUOD COUNT\nIn count II of their complaint, plaintiffs alleged that Zellner had committed slander per quod during her conversation with Wendt. In pertinent part, defendants responded in their motion to dismiss that the plaintiffs\u2019 allegations of damages were insufficient to support their cause of action. The trial court found that plaintiffs\u2019 special damages were insufficiently and vaguely pleaded, and it accordingly dismissed the per quod count.\nIn their complaint, plaintiffs alleged that Zellner\u2019s statements to Wendt \"caused or contributed to Plaintiffs losing prospective employment opportunities with respect to the preparation of a civil complaint to be filed in federal court on behalf of the Lyonses.\u201d As a result of this loss, plaintiffs averred that they \"have suffered injury to their reputation, loss of income, loss of prospective economic advantage, and injury to business relationships.\u201d\nIt is well settled that, in order to prevail on a claim for defamation per quod, a plaintiff must allege special damages with particularity. Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388, 394 (1995). General allegations such as damage to one\u2019s health or reputation, economic loss, and emotional distress are insufficient to state a cause of action for defamation per quod. Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., 190 Ill. App. 3d 524, 530 (1989); Heerey, 188 Ill. App. 3d at 532-33.\nIn this case, plaintiffs alleged special damages with particularity. Plaintiffs alleged that Zellner\u2019s telephone conversation with Wendt, a close friend of Frank Lyons, \"caused or contributed to Plaintiffs losing prospective employment opportunities with respect to the preparation of a civil complaint to be filed in federal court on behalf of the Lyonses.\u201d In other words, plaintiffs alleged that a third party actually stopped doing business with them as a result of Zellner\u2019s alleged statements. This allegation is sufficient to support a claim of defamation per quod. Compare Halpern v. News-Sun Broadcasting Co., 53 Ill. App. 3d 644, 653 (1977) (allegation that plaintiff lost income and continued to lose income as a result of patients leaving its nursing home sufficient to support special damages), with Downers Grove Volkswagen, 190 Ill. App. 3d at 530-31 (plaintiff\u2019s allegation of special damages insufficient to support defamation per quod where plaintiff did not allege that customers stopped doing business with it as a result of defendant\u2019s alleged actions). If plaintiffs properly establish their damages as alleged in their complaint, they could be entitled to relief. See Illinois Graphics, 159 Ill. 2d at 488. Accordingly, we reverse the trial court\u2019s dismissal of count II of plaintiffs\u2019 complaint.\n3\nTHE COMMERCIAL DISPARAGEMENT COUNT\nCount III of plaintiffs\u2019 complaint sounded in commercial disparagement against defendants. Specifically, according to plaintiffs, Zellner\u2019s alleged statement to Wendt that plaintiffs had prepared, for $45,000, \"five pages of worthless memorandum,\u201d was \"made maliciously and with the intent to disparage the quality of the services Plaintiffs perform.\u201d\nThere is scant authority regarding the tort of commercial disparagement. Currently, it is disputed as to whether a cause of action for commercial disparagement remains viable in Illinois. See Barry Harlem Corp., 273 Ill. App. 3d at 396, citing Appraisers Coalition v. Appraisal Institute, 845 F. Supp. 592, 610 (N.D. Ill. 1994). This court has not recognized such a claim. As we last stated in Kolegas v. Heftel Broadcasting Corp., 217 Ill. App. 3d 803, 810 (1991), aff\u2019d in part & rev\u2019d in part on other grounds, 154 Ill. 2d 1 (1992), \"[t]he common-law tort known as publication of an injurious falsehood has not been recognized in Illinois. [Citation.] Nor has its subspecies, the tort of commercial disparagement.\u201d\nHowever, the Appellate Court, First District, seemingly conditionally recognized the tort of commercial disparagement. According to that court, \"plaintiff must show that defendant made false and demeaning statements regarding the quality of another\u2019s goods and services\u201d in order to state a claim for commercial disparagement. Barry Harlem Corp., 273 Ill. App. 3d at 396. In Barry Harlem Corp., however, the court did not review the merits of the commercial disparagement claim; rather, it held that, because the plaintiffs complaint failed to state a cause of action for defamation per se, it also failed to state a cause of action for commercial disparagement. Barry Harlem Corp., 273 Ill. App. 3d at 396.\nSimilarly, the Appellate Court, Fourth District, stated that a commercial disparagement claim is one based on \"words criticizing the quality of goods or services.\u201d Suhadolnik v. City of Springfield, 184 Ill. App. 3d 155, 184 (1989). As a prerequisite to a commercial disparagement claim, the court held that a plaintiff must identify a third party with whom the plaintiff had an expectancy of doing business. Suhadolnik, 184 Ill. App. 3d at 184. Because the plaintiffs complaint failed to allege a business expectancy with a third party, the court affirmed the dismissal of the commercial disparagement count. Suhadolnik, 184 Ill. App. 3d at 184.\nThus, it appears that courts have been hesitant to recognize the tort of commercial disparagement. According to precedent from this district, commercial disparagement is not a viable cause of action. We decline to stray from that precedent in this case. Accordingly, the trial court properly dismissed count III of plaintiffs\u2019 complaint.\n4\nTHE EXTORTION AND INTIMIDATION COUNTS\nBased on the March 21 letter from Zellner to plaintiffs\u2019 attorney, plaintiffs alleged in count IV of their complaint that defendants committed intimidation by mail in violation of sections 12 \u2014 6(a)(4) and (a)(5) of the Criminal Code of 1961 (Code) (720 ILCS 5/12 \u2014 6(a)(4), (a)(5) (West 1994)). They further alleged in count V that defendants attempted to extort them, in violation of both the common law and sections 12 \u2014 6(a)(4) and (a)(5) of the Code (720 ILCS 5/12 \u2014 6(a)(4), (a)(5) (West 1994)).\nSections 12 \u2014 6(a)(4) and (a)(5) of the Code state in relevant part:\n\"(a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another, whether in person, by telephone or by mail, a threat to perform without lawful authority any of the following acts:\n* * *\n(4) Accuse any person of an offense; or\n(5) Expose any person to hatred, contempt, or ridicule ***.\u201d 720 ILCS 5/12 \u2014 6(a)(4), (a)(5) (West 1994).\nThe purpose of the intimidation statute is to prohibit the making of specific threats that are intended to compel others to act against their will. People v. Byrd, 285 Ill. App. 3d 641, 647 (1996). \"Implicit in the word 'threat\u2019 as it is used in the intimidation statute is the requirement that the expression, in its context, has a reasonable tendency to create apprehension that its originator will act according to its tenor.\u201d Byrd, 285 Ill. App. 3d at 647.\nMoreover, \"extortion\u201d and \"blackmail\u201d are synonymous terms. People v. Mahumed, 381 Ill. 81, 84 (1942). \"Blackmail\u201d is an \"[ujnlawful demand of money or property under threat to do bodily harm, to injure property, to accuse of crime, or to expose to disgraceful defects.\u201d Black\u2019s Law Dictionary 170 (6th ed. 1990). Finally, setting forth a \"hard bargaining position,\u201d threatening to institute civil suits, or declaring \"that one intends to use the courts to insist upon what he believes to be his legal rights\u201d are not actionable. Enslen v. Village of Lombard, 128 Ill. App. 3d 531, 533 (1984).\nIn pertinent part, the March 21 letter from Zellner to plaintiffs\u2019 attorney states, \"My only settlement offer to you in regard to [plaintiffs] is that I will not seek sanctions against you if you do not file this lawsuit. Your clients will be countersued for their fraudulent misrepresentations to this firm about their prior unauthorized practice of law ***.\u201d The first part of this letter relative to Zellner not filing a motion for sanctions is not directed at plaintiffs but rather at their attorney. At most, such a statement is a \"hard bargaining position\u201d (see Enslen, 128 Ill. App. 3d at 533) and certainly does not rise to the level of intimidation, extortion, or blackmail. It represents Zellner\u2019s view of the situation at the time \u2014 she obviously believed plaintiffs\u2019 claims to be frivolous and, as such, had determined that she would seek sanctions against plaintiffs\u2019 attorney if he proceeded with such a meritless suit. We are not judging the merits of plaintiffs\u2019 underlying billing dispute with defendants as that matter is not before us. We find only that Zellner\u2019s statement regarding the filing of a motion for sanctions against plaintiffs\u2019 attorney does not constitute intimidation, extortion, or blackmail against plaintiffs.\nThe second part of the March 21 letter, in which Zellner indicates that she will sue plaintiffs if they proceed with their suit, is likewise not actionable as intimidation, extortion, or blackmail. As we have previously stated, defendants and plaintiffs are equally entitled to threaten to institute civil suits in order to vindicate their rights. See Enslen, 128 Ill. App. 3d at 533. Nothing in the record convinces us that defendants made this threat in bad faith or without an honest belief that a cause of action against plaintiffs exists. See Enslen, 128 Ill. App. 3d at 533. Therefore, we find no basis in fact for determining that the March 21 letter constitutes an attempt by defendants to intimidate, extort, or blackmail plaintiffs. See Illinois Graphics, 159 Ill. 2d at 488 (cause of action should be dismissed under section 2 \u2014 615 where no set of facts could be proved that entitle nonmovant to relief). Accordingly, we affirm the trial court\u2019s dismissal of counts IV and V of plaintiffs\u2019 complaint.\nWe may affirm the trial court on any basis in the record. Trustees of Wheaton College v. Peters, 286 Ill. App. 3d 882, 887 (1997). Therefore, because of our holding with respect to counts IV and V, we need not consider plaintiffs\u2019 contention that the trial court improperly extended the affirmative defense of absolute privilege to cases involving intimidation and extortion rather than defamation. This contention is irrelevant to our determination because, given the language of the March 21 letter, there is no set of facts that, if established, would entitle plaintiffs to recovery. See Illinois Graphics, 159 Ill. 2d at 488.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nGEIGER, P.J., and DOYLE, J., concur.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Jeffrey Becker, Steven Becker and Thomas Becker, all of Monee, appellants pro se.", "Kathleen T. Zellner and Daniel W. Pisani, both of Kathleen T. Zellner & Associates, of Naperville, for appellees." ], "corrections": "", "head_matter": "JEFFREY BECKER et al., Plaintiffs-Appellants and Cross-Appellees, v. KATHLEEN T. ZELLNER, d/b/a Kathleen T. Zellner and Associates, et al., Defendants-Appellees and Cross-Appellants.\nSecond District\nNo. 2 \u2014 96\u20141309\nOpinion filed September 16, 1997.\nRehearing denied October 17, 1997.\nJeffrey Becker, Steven Becker and Thomas Becker, all of Monee, appellants pro se.\nKathleen T. Zellner and Daniel W. Pisani, both of Kathleen T. Zellner & Associates, of Naperville, for appellees." }, "file_name": "0116-01", "first_page_order": 134, "last_page_order": 149 }