{ "id": 79424, "name": "LOWE EXCAVATING COMPANY, Plaintiff-Appellant and Cross-Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL No. 150 et al., Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Lowe Excavating Co. v. International Union of Operating Engineers Local No. 150", "decision_date": "2002-01-11", "docket_number": "No. 2-00-1363", "first_page": "711", "last_page": "725", "citations": [ { "type": "official", "cite": "327 Ill. App. 3d 711" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "252 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2968748 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "535-36" }, { "page": "536" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0514-01" ] }, { "cite": "313 Ill. App. 3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186484 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "359" }, { "page": "359-60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0356-01" ] }, { "cite": "196 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351251 ], "year": 2001, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0050-01" ] }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "88, 103" }, { "page": "88, 103" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "250 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2919149 ], "year": 1993, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0172-01" ] }, { "cite": "208 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548001 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "872" }, { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0863-01" ] }, { "cite": "124 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217432 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0483-01" ] }, { "cite": "383 U.S. 53", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167192 ], "weight": 15, "year": 1966, "pin_cites": [ { "page": "65" }, { "page": "591" }, { "page": "664" }, { "page": "65" }, { "page": "591" }, { "page": "664" }, { "page": "66" }, { "page": "591" }, { "page": "664" }, { "page": "66" }, { "page": "591" }, { "page": "664" }, { "page": "65" }, { "page": "591" }, { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/us/383/0053-01" ] }, { "cite": "376 U.S. 254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379234 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/376/0254-01" ] }, { "cite": "314 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140114 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0800-01" ] }, { "cite": "317 Ill. App. 3d 590", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026028 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "599" }, { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0590-01" ] }, { "cite": "285 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295544 ], "year": 1996, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0123-01" ] }, { "cite": "180 Ill. App. 3d 39", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615937 ], "weight": 8, "year": 1989, "pin_cites": [ { "parenthetical": "hereinafter Lowe I" }, { "page": "48" }, { "page": "47-48" }, { "page": "48" }, { "page": "47-48" }, { "page": "47" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0039-01" ] } ], "analysis": { "cardinality": 1208, "char_count": 34707, "ocr_confidence": 0.725, "pagerank": { "raw": 1.4003302170226794e-07, "percentile": 0.6445717491637544 }, "sha256": "83a8628febb547cc34dba6f6b7e5fad49555896e550c8514325a93e43fcd6b58", "simhash": "1:c8ea7ce77fcadb2c", "word_count": 5711 }, "last_updated": "2023-07-14T20:55:57.852492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LOWE EXCAVATING COMPANY, Plaintiff-Appellant and Cross-Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL No. 150 et al., Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nThe following facts are taken from the record. Plaintiff, Lowe Excavating Company, is an Illinois corporation engaged in excavating and site preparation services since 1969. Marshall Lowe was the president of Lowe at the time of the incidents at issue. Defendant International Union of Operating Engineers Local No. 150 (the Union) is a labor organization doing business in McHenry County. Defendant Colin \u201cRobert\u201d Darling was a business agent employed by the Union at the time of the incidents at issue.\nOn February 15, 1988, the Union began picketing at a Lowe project site, known as Ballashire Hall, with signs stating:\n\u201cNOTICE TO THE PUBLIC LOWE EXCAVATING DOES NOT PAY THE PREVAILING WAGES AND ECONOMIC BENEFITS FOR OPERATING ENGINEERS WHICH ARE STANDARD IN THIS AREA OUR DISPUTE CONCERNS ONLY SUBSTANDARD WAGES AND BENEFITS PAID BY THIS COMPANY LOCAL 150 International Union of Operating Engineers, AFL-CIO\u201d\nOn February 17, 1988, Lowe filed a complaint seeking a temporary restraining order (TRO), preliminary and permanent injunctions, and damages. The following day, the Union filed a petition for removal to the United States District Court, arguing that Lowe\u2019s claim seeking an injunctive relief was preempted by federal law. On June 10, 1988, the United States District Court for the Northern District of Illinois denied the Union\u2019s petition and remanded the case to the state trial court, stating that \u201cLowe\u2019s complaint does not on its face contain a federal claim.\u201d\nOn June 30, 1988, the trial court enjoined the Union from picketing Lowe in McHenry County until the court ruled on Lowe\u2019s request for a preliminary injunction. On August 11, 1988, the trial court dismissed Lowe\u2019s second amended complaint based on the Union\u2019s claim that the court lacked subject matter jurisdiction due to federal preemption. The court granted Lowe leave to file a third amended complaint.\nOn September 28, 1988, the Union resumed picketing. The following day, Lowe filed a third amended complaint seeking a temporary restraining order, preliminary and permanent injunctions, and damages. Lowe also filed a motion for a temporary restraining order, preliminary injunctions, and the reconsideration of the dismissal of the second amended complaint based on the lack of subject matter jurisdiction. The court again enjoined the Union from picketing Lowe until the court\u2019s ruling on Lowe\u2019s request for a preliminary injunction. On October 6, 1988, the Union filed a motion to dismiss this third amended complaint, again asserting that, based on federal preemption, the trial court lacked subject matter jurisdiction.\nOn October 11, 1988, the court partially granted Lowe\u2019s motion for a temporary restraining order enjoining the Union from \u201cpicketing or otherwise disseminating the fact that Lowe is nonunion.\u201d The court also denied the Union\u2019s motion to dismiss Lowe\u2019s third amended complaint and denied Lowe\u2019s \u201crequest for preliminary injunctive relief relating to area standards, in reckless disregard for the truth,\u201d based on federal preemption grounds. Lowe filed an interlocutory appeal of this decision.\nOn March 3, 1989, this court reversed the trial court\u2019s decision and remanded the case for a hearing. Lowe Excavating Co. v. International Union of Operating Engineers Local No. 150, 180 Ill. App. 3d 39 (1989).\nThe trial on Lowe\u2019s third amended complaint began in April 2000. The four claims proceeding to trial against the Union and Colin Darling, as an individual, were count II, alleging tortious interference with contractual relationship; count TV alleging tortious interference with prospective economic advantage; count V, alleging trade libel; and count VI, alleging negligent interference with contract.\nAt the trial, Darling testified that late in the summer or early in the fall of 1987 he spoke with two Lowe employees, Hartzell Zimmerman and Pasqual Gebbia. Zimmerman and Gebbia told Darling what they were making at the time and what benefits they received. Darling stated that the men showed him their pay stubs and that these were the only pay stubs Darling saw. However, during a deposition in 1994, Darling stated that he had not seen pay stubs. Darling explained at trial that his memory was better at trial in April 2000 than it was when he gave his deposition.\nDarling also testified that in February 1988 the class one wage (top wage) under the Union\u2019s master collective bargaining agreement was $19.40 an hour to be increased to $20.10 an hour on June 1, 1988, and the class two wage was $18.85 an hour. These were the wages that were appropriate for the Ballashire Hall project. The contribution to various fringe benefit funds was $2.20 an hour. Also, the master agreement provided that no more than 1 apprentice was permitted on a job with less than 7 journeymen, 2 apprentices for between 7 and 13 journeymen, and 3 apprentices for between 13 and 22 journeymen.\nIn October 1987 the Union initiated efforts to unionize Lowe\u2019s employees. Marshall Lowe arranged for representatives of the Union to meet with Lowe employees. At the meetings, the Union and Lowe presented the employees with comparisons of their respective wages and benefits.\nDarling testified that, during a meeting with Marshall Lowe in December 1987 or January 1988, Marshall provided several documents, including Lowe\u2019s 401(k) pension plan, profit-sharing plan, and payroll information. Darling gave these documents to the Union\u2019s fund administrator, Larry Bushmaker. Darling talked to Union president Bill Dugan about Zimmerman\u2019s and Gebbia\u2019s claims that they were not getting area standard wages. Darling never asked anyone to investigate Lowe\u2019s wages and benefits paid after the summer of 1987. Early in 1988 Dugan and his assistant, Bill Anderson, and Darling decided that the Union should picket Lowe. Darling stated that, after the initial pickets began, Marshall told Darling that Lowe had a federally funded project but would not tell Darling where the project was.\nMarshall Lowe testified that on February 12, 1988, he sent the Union\u2019s fund administrator, Bushmaker, a letter notifying Bushmaker that another employee meeting was scheduled for March 12, 1988, so that Bushmaker could explain the Union\u2019s fringe benefits to Lowe\u2019s employees. However, Bushmaker never responded to this letter, and the meeting did not take place.\nOn February 12, 1988, Lowe was read a mailgram from the Union over the phone, which stated in part:\n\u201cLocal 150, International Union of Operating Engineers is informed that your company is currently performing construction work at Canterbury Place Retirement Community. Local 150 has attempted to make careful investigation of your company\u2019s policies regarding the payment of area standards to individuals performing construction work at this project. We have determined that the area standards for the operating engineers are not being met at this project. If our information regarding this fact is incorrect, please advise us immediately.\u201d\nDarling testified that after the Union sends notice that it intends to picket it waits 48 hours so that the contractor can prove that it pays prevailing wages. However, Darling stated that this requires \u201csolid evidence\u201d like \u201can audit\u201d before it will decide not to picket.\nIn response to the Union\u2019s mailgram, Marshall Lowe sent the Union a mailgram on February 15, 1988, stating that \u201cwe are paying the area standards and in fact are paying higher wages and fringes to our men.\u201d Marshall Lowe was shocked by the Union\u2019s mailgram because Marshall had been congenial to the Union, providing it access to his employees and their telephone numbers. Further, Marshall had told Darling what he was paying his employees.\nNevertheless, at 6 a.m. on February 15, 1988, the Union began picketing at Lowe\u2019s project at Ballashire Hall. The Ballashire Hall project involved the construction of a nursing home as part of a larger retirement community project called Canterbury. FAMCO was the general contractor for both projects.\nBallashire Hall was a federally funded construction project of the federal Department of Housing and Urban Development (HUD). Employers on HUD projects are required by federal law to pay their employees the prevailing area wage and benefits established by the United States Secretary of Labor. 40 U.S.C.A. \u00a7 267a (West 1982) (the Davis-Bacon Act).\nDarling testified that he knew that the failure to pay prevailing wages on a federal project was a crime. Darling also knew that Lowe was working on other projects at the time, but he chose to picket the Ballashire Hall site because it was a large one, he was familiar with it, and he knew that Lowe was working on a foundation there. Darling used the Union\u2019s preprinted area standards picketing signs and simply added the name \u201cLowe Excavating.\u201d Darling received Lowe\u2019s mail-gram response on February 15, 1988, at his home but did not respond because he was \u201cnot supposed to talk to anybody\u201d because it was not part of his job to do so. Darling stated that the only information he had about Lowe\u2019s wages came from Zimmerman and Gebbia.\nBradley Brei, president of FAMCO, the general contractor of the Ballashire Hall project, testified that he approached Darling on February 15, 1988, while Darling was picketing at the site. Brei told Darling that Brei had \u201calready filed certified payrolls with HUD that Lowe was paying prevailing wage rates and [he] could not understand on what the basis was that he was there or why the pickets were there [sic].\u201d Brei asked Darling, \u201c[H]ow can you picket on a basis that he\u2019s not paying prevailing wage rates when they\u2019ve been certified?\u201d Brei stated that if he turned in false payroll records he would be subject to a federal penalty.\nDarling testified that he responded to questions by Brei and A1 Woods, another FAMCO representative, by telling them to read the picket sign. Darling also told Brei that the only way the picket signs would be removed was if Lowe was removed from the Ballashire Hall job.\nBrei testified that, after speaking with Darling on the picket line, Brei went to his construction trailer and called Marshall Lowe and asked Marshall to remove his people from the site. Lowe\u2019s employees left the Ballashire Hall project site an hour or two later. However, the pickets did not come down. Darling told Brei that Lowe\u2019s equipment also had to be removed. Brei stated that even after the equipment was removed the picketing continued \u201c[flor a period of time.\u201d\nMarshall Lowe testified that both Lowe\u2019s employees and equipment were off the Ballashire Hall project site by 11 a.m. on February 15, 1988. Marshall testified that he knew that Lowe was required to pay prevailing wages at the Ballashire Hall project under the penalty of perjury. Further, Lowe sent certified payrolls for January 1988 to HUD. Marshall stated that Ballashire Hall was the first project for which Lowe paid prevailing wages. Prevailing wages for that project were an hourly rate of $18.60 for class one equipment and $5.55 for benefits. Marshall stated that there was a tremendous amount of work left to be done at the Ballashire Hall project when Lowe was removed, including the sewer work, digging and excavating the foundation, putting fill on the inside of the slab, grading around the building, the parking lot, and gravel and finish grading. Marshall testified that Lowe\u2019s removal from the Ballashire Hall project resulted in $4,680 in lost profits (Lowe\u2019s profit margin was 18%).\nLowe employee Michael Dobler testified that he worked at the Ballashire Hall project site during the picketing. Dobler stated that all of Lowe\u2019s equipment had been removed from the site on the first day of picketing, February 15, 1988. Dobler stated that the picketing continued on February 16 and 17, 1988. On his way to work at 6:30 a.m. on February 17, 1988, Dobler saw picketers at the site carrying the same signs they carried on the prior two days. Dobler did not see the picketers later that day at 3:30 p.m. when he drove past the site.\nDarling contradicted Marshall\u2019s testimony, saying that Lowe\u2019s equipment was not removed until the following day, February 16, 1988. Darling also contradicted Dobler, stating that the picketing stopped on February 16, 1988. Darling stated that he returned to the site on February 17, 1988, but he denied that the pickets were up on that day. Darling stated that after the February picketing Darling met Marshall at a restaurant and Marshall told Darling that Lowe had a federally funded project but Marshall would not reveal where it was.\nFrank Stampler, a certified public accountant (CPA), testified that in April 1988 he and two other CPAs audited Lowe\u2019s wages and benefits for the period of January 13, 1988, to February 16, 1988. Stampler compared Lowe\u2019s wages and benefits to those required by the United States Department of Labor. Stampler stated that for the period of January 13, 1988, to February 16, 1988, Lowe\u2019s employees at the Ballashire Hall project were paid over the federal prevailing wage rate, including any apprentices on the site. Stampler stated that the prevailing rate is composed of the hourly individual wage and benefits added together. The allocation to the profit-sharing plan of each Lowe\u2019s employee was made at the end of each year and was based on certain factors. However, Stampler concluded that Lowe\u2019s operators were paid \u201cin excess of the prevailing rate\u201d at the Ballashire Hall project in 1988.\nJohn P O\u2019Hagan, president of Human Resources Planning Associates, testified that, early in the spring or summer of 1987, and again early in 1988, at Marshall\u2019s request, he compared Lowe\u2019s benefits to the Union\u2019s. O\u2019Hagan concluded that Lowe\u2019s health insurance plan provided more comprehensive and broader coverage than the Union\u2019s. Regarding disability benefits, O\u2019Hagan opined that the two plans were different, but O\u2019Hagan did not say that one plan was better than the other. Lowe\u2019s life insurance benefits were superior to the Union\u2019s.\nIn March 1988, the Congress of Independent Unions (CIU) was certified as the representative of Lowe\u2019s employees. On August 15, 1988, the CIU and Lowe entered into a collective bargaining agreement that provided that Lowe would pay prevailing wages, retroactive to April 15, 1988. R. Richard Davis, vice-president of the CIU, testified that, at all relevant times, the CIU contract base rate was higher than the prevailing wage. However, Davis \u00bfcknowledged that the Union employees received a wage increase every June, while under the CIU contract, Lowe employees did not receive their wage increase until April of the following year, 10 months later than the Union employees. Thus, from June 1988 to April 1989, Lowe employees would earn $.70 less than the Union employees.\nDarling and the Union began picketing again at the Ballashire Hall project site in September 1988, where Lowe was once again working. Darling knew that Lowe was working on the federal part of the Canterbury project at that time. The picketers used the same signs that were used in February. By the summer of 1988, Darling knew the Ballashire Hall project was federally funded. Before the September picketing, Marshall Lowe told Darling that Lowe was paying prevailing wages. On September 28, 1988, Darling received a mailgram from Lowe stating that Lowe was withdrawing from the Ballashire Hall project. The same day, Darling received a second mailgram from Lowe stating that it was paying area standards and that it was setting up a second gate to allow union contractors to enter the site without crossing the picket line.\nMarshall testified that, after Lowe was removed from the FAMCO job in September 1988, Lowe did not work with FAMCO again for five or six years. The trial court did not permit Lowe to admit evidence that it lost $125,000 of work at an 18% profit ($18,750 lost profit) caused by its removal from the Ballashire Hall project in September 1988.\nBrei testified that he was frustrated with Marshall \u201cthat he didn\u2019t get his house in order.\u201d Brei again removed Lowe from the project and replaced Lowe with another contractor to put in the parking lot and perform the grading. However, the Canterbury project was never completed because the developers did not obtain full occupancy.\nAt the close of Lowe\u2019s case, the trial court granted a directed finding in favor of Colin \u201cRobert\u201d Darling, as an individual, as to all counts of Lowe\u2019s third amended complaint. The court also granted a directed finding in favor of the Union as to the claim for negligent interference with contractual relationship and on all counts as to the damage issue.\nThe trial court granted Lowe\u2019s motion to conform its pleadings to the evidence presented at trial.\nThe trial court refused to allow Lowe to present evidence of its attorney fees as a measure of punitive damages, but it allowed Lowe to submit an affidavit as an offer of proof that it had incurred more than $100,000 in fees.\nAfter hearing the evidence and arguments, the trial court found in favor of the Union on all counts. The court found that count V, the trade libel count, was not proved by Lowe because Lowe failed to prove by clear and convincing evidence that the Union\u2019s statements were false, that the Union made these statements knowing them to be false or with reckless disregard of whether the statements were true or false, or that the Union was given information before it began to picket that the Ballashire Hall and Canterbury projects were federally funded. The trial court also ruled in the Union\u2019s favor on the remaining counts, reasoning that there was insufficient proof to establish the remaining counts for interference torts because the Union\u2019s qualified privilege defeated these other claims.\nLowe filed a timely notice of appeal, and the Union and Darling filed a timely notice of cross-appeal.\nWe first address Lowe\u2019s motion to strike the Union\u2019s entire brief. Lowe contends that the Union attempted to improperly supplement the record on appeal by including documents and matters not before the trial court in the appendix to the Union\u2019s response brief and in the argument contained in the Union\u2019s response brief. The Union filed a motion to supplement the record with this material consisting of transcripts from the federal court proceedings. The Union argues that this material was presented to the trial court. Having carefully reviewed the record on appeal, this court now denies both motions. Supreme Court Rule 329 provides in part that \u201c[a]ny controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth.\u201d 134 Ill. 2d R. 329. Here, the Union asks this court to settle this controversy. We are not in a position to know what occurred in the trial court absent support in the record before us. The record before us does not establish that the material at issue was before the trial court. Therefore, we deny the Union\u2019s motion. See Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123, 130 (1996). Thus, we will disregard any material contained in, or attached to, the Union\u2019s brief that is not contained in the record prepared for appeal, but we deny Lowe\u2019s motion to strike the Union\u2019s brief and appendix.\nLowe argues on appeal that the trial court erred by shifting the burden of proof to Lowe regarding the falsity of the Union\u2019s statements and the Union\u2019s knowledge of the falsity of the statements or reckless disregard of whether the statements were true or false. Lowe also argues that the trial court erred by finding in the Union\u2019s favor on the trade libel count.\nIn reviewing a bench trial, we defer to the trial court\u2019s factual findings unless they are against the manifest weight of the evidence. Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590, 599 (2000). We will not substitute our judgment for that of the trial judge as to the credibility of the witnesses and conflicts in the testimony. Wildman, 317 Ill. App. 3d at 599. However, we review a question of law de novo. Hendricks v. Riverway Harbor Service St. Louis, Inc., 314 Ill. App. 3d 800 (2000).\nIn the first appeal in this case, Lowe Excavating Co. v. International Union of Operating Engineers Local No. 150, 180 Ill. App. 3d 39 (1989) (hereinafter Lowe I), this court held that Lowe\u2019s trade libel claim must be evaluated under the New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), standards applied in Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 65, 15 L. Ed. 2d 582, 591, 86 S. Ct. 657, 664 (1966), and followed by Krasinski v. United Parcel Service, Inc., 124 Ill. 2d 483 (1988). Lowe I, 180 Ill. App. 3d at 48. Under this standard, a plaintiff must prove actual malice, that is, that the defendant published defamatory statements \u201cwith knowledge of their falsity or with reckless disregard of whether they were true or false.\u201d Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664. Reckless disregard for the truth includes publishing statements while defendant entertains serious doubts as to the truth of the statements. Pease v. International Union of Operating Engineers Local 150, 208 Ill. App. 3d 863, 872 (1991). The plaintiff must prove actual malice by clear and convincing evidence. Kessler v. Zekman, 250 Ill. App. 3d 172, 188 (1993). To recover damages, the plaintiff must also prove harm resulting from the defamatory statements. Linn, 383 U.S. at 66, 15 L. Ed. 2d at 591, 86 S. Ct. at 664. In addition, despite plaintiffs contention to the contrary, a plaintiff also must prove that the statements at issue were false. Krasinski, 124 Ill. 2d at 490. Lowe\u2019s citation to Lowe I to support its argument that it does not need to prove the falsity of the statements is misplaced. In Lowe I, this court\u2019s statement, \u201c[t]he underlying issue in this case is not whether plaintiff paid wages sufficient to meet area standards\u201d (Lowe I, 180 Ill. App. 3d at 47-48), was made to establish that the issue was not preempted by federal law. This statement does not relieve Lowe from its obligation to prove that the statements were, in fact, false. Lowe ignores the following declaration of this court: \u201cWhile truth or falsity is an important element in the tort of trade libel, it is certainly not the only issue to be considered.\u201d Lowe I, 180 Ill. App. 3d at 48.\nAccordingly, in this case, we must first determine whether the statements at issue were defamatory. There are two types of defamatory statements, defamation per se and defamation per quod. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88, 103 (1996). Ordinarily, when a statement is defamatory per se, damages are presumed, and when a statement is defamatory per quod, the plaintiff must prove special damages. Bryson, 174 Ill. 2d at 88, 103. However, in this case, Lowe must prove damages regardless of which category applies to the Union\u2019s statements. See Linn, 383 U.S. at 66, 15 L. Ed. 2d at 591, 86 S. Ct. at 664. A statement is defamatory per se if the words used are obviously harmful to the plaintiffs reputation because they impute to the plaintiff the commission of a criminal act, the lack of ability in a person\u2019s performance of his profession or business, or a want of integrity in the discharge of his office or employment. See Wynne v. Loyola University of Chicago, 318 Ill. App. 3d-443, 451 (2000). Here, the harmful nature of the Union\u2019s statements was not obvious but required knowledge of an extrinsic fact, that is, that the Ballashire Hall project was federally funded. Therefore, the Union\u2019s statements do not fall under the defamation per se classification.\nHowever, we do believe that the statements fall under the defamation per quod classification. A per quod claim applies when a statement is innocent on its face but extrinsic facts make the statement defamatory or where a statement is defamatory on its face but does not fall into one of the per se categories. Bryson, 174 Ill. 2d at 103. The statements the Union published declared, \u201cLowe Excavating does not pay the prevailing wages and economic benefits for operating engineers which are standard in this area.\u201d Certainly, if one knew, as FAMCO\u2019s Brei did, that the federally funded Ballashire Hall project required Lowe, by law, to pay prevailing wages and benefits, the Union\u2019s statements would be harmful to Lowe\u2019s reputation. Therefore, we determine that the statements at issue here were defamatory.\nWe must now address whether the trial court erred by finding that the statement made by the Union, that \u201cLowe does not pay prevailing wages and economic benefits,\u201d was true. The following facts were uncontroverted. The Ballashire Hall project was a federally funded job. Employers of workers at federally funded jobs were required by federal law to pay prevailing wages. Marshall Lowe, John O\u2019Hagan, and Bradley Brei testified that Lowe paid its employees prevailing wages on the Ballashire H\u00e1ll project. Further, Lowe\u2019s payroll was certified. The Union\u2019s only evidence that arguably challenged this testimony established only that Lowe\u2019s benefits did not match the Union\u2019s point by point and that its wage raises became effective 10 months after the Union\u2019s. Although there were differences in the benefits packages, the Union presented no evidence that Lowe did not pay prevailing wages as a whole as required by federal law to its employees, including any apprentices, at the Ballashire Hall project. Therefore, we determine that the trial court\u2019s finding, that Lowe did not prove the Union\u2019s statements were false, is against the manifest weight of the evidence.\nLowe also argues that the trial court erred by finding that it did not prove that the Union published the defamatory statements with actual malice. Lowe was required to prove by clear and convincing evidence that the Union published defamatory statements \u201cwith knowledge of their falsity or with reckless disregard of whether they were true or false.\u201d Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664. Reckless disregard for the truth means that the defendant published the statements while entertaining serious doubts as to the truth of the statements. Pease, 208 Ill. App. 3d at 872. The following facts were uncontroverted. On the first day of picketing, Brei told Darling that the Ballashire Hall project was a federally funded project, that Lowe\u2019s payroll had been certified and sent to the Department of Labor, and that Lowe was paying prevailing wages for that project. Therefore, at that time, Darling at least should have entertained serious doubts as to the truth of the statements contained on the picket signs. Yet, the Union did not stop picketing, at the earliest, until Lowe removed its employees and equipment from the site the following day and its contractual relationship was terminated. Further, it picketed again in September 1988. Thus, the undisputed facts establish that the trial court\u2019s finding of lack of proof of actual malice is against the manifest weight of the evidence.\nThe Union argues that the defamation claim is preempted by federal law. In Lowe I, this court rejected this argument, deciding that the defamation claim was not preempted by federal law, regardless of whether Lowe \u201cpaid wages sufficient to meet area standards.\u201d Lowe 1, 180 Ill. App. 3d at 47-48. Nothing in the Union\u2019s brief persuades us to revisit this issue or to alter the law of the case.\nThe Union also argues that Lowe\u2019s remaining claims for tortious interference with contract, tortious interference with prospective business advantage, and negligent interference with contract are preempted by federal law. Again, in Lowe I, this court held that \u201cthe merits of the case are of only peripheral concern to the NLRB [National Labor Relations Board].\u201d Lowe I, 180 Ill. App. 3d at 47. Although we discussed cases involving claims of trade libel, we did not limit our holding to Lowe\u2019s trade libel claim. Instead, we discussed the broader issue of \u201cwhether the National Labor Relations Act (NLRA) deprives a State court of jurisdiction to enjoin a union from picketing with placards that contain knowingly false statements, or statements made with reckless disregard for the truth.\u201d Lowe I, 180 Ill. App. 3d at 43. Thus, our holding encompassed all of Lowe\u2019s claims, since all of the claims were grounded in the same conduct. Accordingly, we need not revisit this issue or alter the law of the case.\nWe note that, in Lowe\u2019s notice of appeal to this court, it indicated that it was challenging the trial court\u2019s memorandum of opinion and \u201cpartial directed verdict [sic].\u201d However, the only claim Lowe discusses in its brief is the claim for trade libel. In its reply brief, Lowe makes only passing reference to the other claims of tortious interference with contract, tortious interference with prospective economic advantage, and negligent interference with contract. However, Lowe made no argument citing authority with respect to these claims. Lowe\u2019s passing reference to these other claims without argument or citation to authority is insufficient to preserve this issue on appeal. 177 Ill. 2d R. 341(e)(7) (argument portion of brief \u201cshall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on\u201d and \u201c[pjoints not argued are waived\u201d). Accordingly, we express no opinion on the trial court\u2019s rulings on these claims. See Miller v. Rosenberg, 196 Ill. 2d 50, 56 (2001).\nNext, Lowe argues that the trial court erred by excluding evidence regarding damages caused by the Union\u2019s September 1988 picketing. The Union claims that the trial court\u2019s decision to exclude this evidence was not an abuse of discretion. We agree with the Union. Supreme Court Rule 219(c) authorizes a trial court to impose a sanction on a party who unreasonably fails to comply with the court\u2019s discovery rules or orders. 166 Ill. 2d R. 219(c). We will not disturb a trial court\u2019s decision to exclude evidence as a sanction absent an abuse of discretion. See In re Marriage of Booher, 313 Ill. App. 3d 356, 359 (2000). To determine if a trial court abused its discretion by issuing a sanction, we must consider the following factors: (1) the surprise to the adverse party, (2) the prejudicial effect of the proffered evidence, (3) the nature of the evidence, (4) the diligence of the adverse party in seeking discovery, (5) the timeliness of the adverse party\u2019s objection to the evidence, and (6) the good faith of the party offering the evidence. No single factor is determinative. Booher, 313 Ill. App. 3d at 359-60.\nHere, Lowe waited until the beginning of the trial to inform the Union that it was claiming an additional $18,750 in damages caused by the September 1988 picketing. Lowe now explains that Brei\u2019s lack of cooperation caused its delay in disclosing the amount of damages. Yet, Lowe acknowledges that its counsel forgot to ask Marshall Lowe about the damages at issue, used figures that were available 12 years earlier to calculate these damages, failed to subpoena Brei, and failed to disclose the amount of the claimed damages despite the Union\u2019s prior requests. Further, the admission of the proffered evidence during the trial did not leave the Union with time to verify Lowe\u2019s claim, causing unfair prejudice to the Union. Therefore, we determine that the trial court did not abuse its discretion by excluding the evidence regarding damages caused by the September 1988 picketing.\nNext, Lowe argues that the trial court erred by excluding evidence of its attorney fees as a measure of punitive damages. Although punitive damages are generally disfavored because of their penal nature, punitive damages may be awarded where, as here, the defendant committed a tort with actual malice. See E.J. McKernan Co. v. Gregory, 252 Ill. App. 3d 514, 535-36 (1993). In addition, this court has previously stated that a plaintiffs attorney fees may be included in the amount of the award of punitive damages. See E.J. McKernan Co., 252 Ill. App. 3d at 536. However, in the absence of a statutory provision authorizing an award of attorney fees, attorney fees cannot be awarded as a separate entity distinct from punitive damages. E.J. McKernan Co., 252 Ill. App. 3d at 546. Accordingly, the trial court abused its discretion by excluding evidence of Lowe\u2019s attorney fees in support of its punitive damages claim. On remand, the trial court should consider this evidence if it decides to award punitive damages.\nFinally, we address the Union\u2019s argument on cross-appeal. The Union argues that the trial court erred in denying its petition for costs under section 5 \u2014 118 of the Code of Civil Procedure. 735 ILCS 5/5 \u2014 118 (West 1998). Section 5 \u2014 118 provides for an award of costs to the prevailing party in a civil case. 735 ILCS 5/5 \u2014 118 (West 1998). However, with the determinations made in this disposition, the Union is no longer the prevailing party. Therefore, the trial court\u2019s denial of the Union\u2019s petition for costs is affirmed.\nFor the foregoing reasons, we reverse the trial court\u2019s ruling in the Union\u2019s favor on the trade libel count and its exclusion of evidence of Lowe\u2019s attorney fees for purposes of determining punitive damages. We affirm the trial court\u2019s ruling in the Union\u2019s favor on Lowe\u2019s remaining claims for tortious interference with contract, tortious interference with prospective business advantage, and negligent interference with contract. We further affirm the trial court\u2019s exclusion of the evidence of damages related to the September 1988 picketing and its denial of the Union\u2019s petition for fees, and we remand this cause for further proceedings regarding damages.\nThe judgment of the circuit court of McHenry County is affirmed in part and reversed in part, and the cause is remanded.\nAffirmed in part and reversed in part; cause remanded.\nGEOMETER and CALLUM, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Gerard C. Smetana, of Smetana & Avakian, of Chicago, and Michael E. Avakian, of Center on National Labor Policy, Inc., of North Springfield, Virginia, for appellant.", "Louis E. Sigman, Dale D. Pierson, and Elizabeth A. LaRose, all of Baum, Sigman, Auerback, Pierson, Neuman & Katsaros, of Chicago, and R. Mark Gummerson, of Campion, Curran, Rausch, Gummerson & Dunlop, EC., of Crystal Lake, for appellees." ], "corrections": "", "head_matter": "LOWE EXCAVATING COMPANY, Plaintiff-Appellant and Cross-Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL No. 150 et al., Defendants-Appellees and Cross-Appellants.\nSecond District\nNo. 2-00-1363\nOpinion filed January 11, 2002.\nModified on denial of rehearing February 22, 2002.\nGerard C. Smetana, of Smetana & Avakian, of Chicago, and Michael E. Avakian, of Center on National Labor Policy, Inc., of North Springfield, Virginia, for appellant.\nLouis E. Sigman, Dale D. Pierson, and Elizabeth A. LaRose, all of Baum, Sigman, Auerback, Pierson, Neuman & Katsaros, of Chicago, and R. Mark Gummerson, of Campion, Curran, Rausch, Gummerson & Dunlop, EC., of Crystal Lake, for appellees." }, "file_name": "0711-01", "first_page_order": 729, "last_page_order": 743 }