August v. Hanlon

ILLINOIS OFFICIAL REPORTS

Appellate Court

August v. Hanlon, 2012 IL App (2d) 111252

Appellate Court CHARLES AUGUST, Plaintiff-Appellant, v. ROBERT T. HANLON,

Caption Defendant-Appellee.–CHARLES AUGUST, Plaintiff-Appellee, v.

ROBERT T. HANLON, Defendant-Appellant.

District & No. Second District

Docket Nos. 2-11-1252, 2-11-1280 cons.

Filed September 6, 2012

Rehearing denied October 17, 2012

Held The Citizen Participation Act, Illinois’s version of an anti-SLAPP statute,

(Note: This syllabus did not immunize defendant from liability in plaintiff’s action for slander

constitutes no part of and false light invasion of privacy, since plaintiff’s complaint was not

the opinion of the court based solely on defendant’s constitutional rights and participation in

but has been prepared government and the burden never shifted to plaintiff to show defendant

by the Reporter of was immune under the Act.

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of McHenry County, No. 06-LA-371; the

Review Hon. Michael W. Feetterer, Judge, presiding.

Judgment No. 2-11-1252, Reversed and remanded.

No. 2-11-1280, Affirmed.

Counsel on R. Mark Gummerson, Adrian M. Gosch, and Jamie R. Wombacher, all

Appeal of Gummerson Rausch Wand Lee Wombacher, LLC, of Woodstock, for

Charles August.

Gerald P. Baggott III, of Law Offices of Robert T. Hanlon & Associates,

P.C., of Woodstock, for Robert T. Hanlon.

Panel JUSTICE HUDSON delivered the judgment of the court, with opinion.

Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Charles August, filed in the circuit court of McHenry County a complaint

against defendant, Robert Hanlon. As amended, the complaint contained one count of slander

per quod and one count of false light invasion of privacy. The trial court granted defendant’s

motion for summary judgment on the basis that the Citizen Participation Act (Act) (735

ILCS 110/1 et seq. (West 2010)) provided defendant immunity from the claims alleged by

plaintiff. In conjunction with the judgment, the trial court denied defendant’s request for

attorney fees. Thereafter, each party filed a motion to reconsider and defendant filed a motion

for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). The trial court

denied the relief requested by the parties, and they both appealed. In appeal No. 2-11-1252,

plaintiff argues that the trial court erred in finding that the Act applies to this case. In appeal

No. 2-11-1280, defendant challenges the trial court’s denial of attorney fees and sanctions.

On our own motion, we consolidated the parties’ appeals. For the reasons that follow, we

find that the Act does not apply to the facts of this case and that, therefore, defendant’s

requests for attorney fees and sanctions are moot. Accordingly, the judgment of the trial court

is affirmed in part and reversed in part and the cause is remanded for further proceedings.

¶2 I. BACKGROUND

¶3 This case involves the application of the Act, Illinois’s version of an anti-SLAPP statute.

735 ILCS 110/1 et seq. (West 2010). The term “SLAPP” is an acronym for “Strategic

Lawsuits Against Public Participation.” Sandholm v. Kuecker, 2012 IL 111443, ¶ 1. SLAPPs

are lawsuits aimed at preventing citizens from exercising certain constitutional rights or at

punishing those who have done so. Wright Development Group, LLC v. Walsh, 238 Ill. 2d

620, 630 (2010); Mund v. Brown, 393 Ill. App. 3d 994, 995 (2009). SLAPPs use the threat

of money damages or the prospect of the cost of defending against the suits to “chill” a

party’s speech or protest activity and discourage opposition by others. Sandholm, 2012 IL

111443, ¶ 34 (citing John C. Barker, Common-Law and Statutory Solutions to the Problem

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of SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993)); Wright Development Group, LLC, 238

Ill. 2d at 630; see also 735 ILCS 110/15 (West 2010) (discussing the public policy behind

the Act).

¶4 The Act, which became effective in August 2007 (Pub. Act 95-506 (eff. Aug. 28, 2007);

see 735 ILCS 110/99 (West 2010)), seeks to extinguish SLAPPs and protect citizen

participation in government in three principal ways (Wright Development Group, LLC, 238

Ill. 2d at 632). First, it immunizes citizens from civil actions “based on, relate[d] to, or ***

in response to” any acts made “in furtherance of the [citizens’] constitutional rights to

petition, speech, association, and participation in government.” 735 ILCS 110/15 (West

2010); Wright Development Group, LLC, 238 Ill. 2d at 632. Second, the Act establishes an

expedited legal process to dispose of SLAPPs in both the trial court and the appellate court.

735 ILCS 110/5, 20 (West 2010); Wright Development Group, LLC, 238 Ill. 2d at 632. Third,

the Act mandates that a party who prevails in a motion under the Act shall be awarded

“reasonable attorney’s fees and costs incurred in connection with the motion.” 735 ILCS

110/25 (West 2010); Wright Development Group, LLC, 238 Ill. 2d at 632. We note that the

Act has been written more broadly than anti-SLAPP statutes in other states (Mark J.

Sobczak, Comment, SLAPPed in Illinois: The Scope and Applicability of the Illinois Citizen

Participation Act, 28 N. Ill. U. L. Rev. 559, 573 (2008)) and that the legislature has

mandated that the Act be liberally construed (735 ILCS 110/30(b) (West 2010)).

¶5 The initial complaint in this case was filed on November 22, 2006. The complaint was

amended on November 14, 2007, and September 9, 2008. The second amended complaint

alleged as follows. Plaintiff was a business agent and union organizer for Local 150 of the

International Union of Operating Engineers. On June 5, 2006, defendant, an attorney licensed

to practice law in Illinois, filed in the circuit court of McHenry County a complaint on behalf

of Merryman Excavation, Inc. (Merryman), and against multiple parties, including plaintiff.

The Merryman lawsuit alleged that plaintiff and another individual (R.W. Smith, Jr.) stole

money from Merryman by soliciting a donation for a charitable endeavor through Smith’s

business, a food and drink establishment named “Jesse Oaks,” but keeping the money rather

than forwarding it to a charity.

¶6 On June 7, 2006, defendant had a telephone conversation with Charles Keeshan, a

newspaper reporter. Keeshan informed defendant that he was gathering information for an

article to be published in the Daily Herald concerning the Merryman lawsuit and that he was

seeking defendant’s comments about the allegations therein. On June 8, 2006, Keeshan’s

article was published in the Daily Herald. Charles Keeshan, Businessman Alleges He Was

Scammed Out of $10,000, Daily Herald, June 8, 2006. The article states that Merryman filed

suit accusing plaintiff, Smith, and a third individual of defrauding it out of the $10,000 that

Merryman thought was going to charity. In the article, defendant is quoted as stating that

“[Merryman] opened up [its] checkbook and wrote a big check, only to find out that not only

did none of the money go to a disabled kid, but that Jesse Oaks isn’t a kid, it’s a biker bar.”

As alleged in the article, defendant also claimed that he “asked for Smith’s documentation

proving the money was donated but so far his requests have gone unanswered.” Also with

respect to the request for documentation, defendant is quoted as saying that he and Merryman

had “seen nothing like that. This isn’t a case of a mere misunderstanding.”

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¶7 According to plaintiff, defendant’s statements to Keeshan “were factual comments on a

pending lawsuit which was designed to falsely accuse [plaintiff] of defrauding and stealing

from defendant’s client.” Plaintiff alleged that defendant, in the presence of Keeshan,

“uttered and published false and defamatory statements about, of and concerning [him].”

Plaintiff asserted that a third party reading the Daily Herald article in which the statements

were published “would reasonably understand the defamatory statements complained of were

of and concerning [plaintiff] at the time said statements were made.” Plaintiff complained

that defendant’s statements to Keeshan contained “false allegations” that plaintiff had stolen

money from Merryman when plaintiff solicited the charitable donation. According to

plaintiff, defendant had received documentation and a letter from Smith’s attorney

identifying the charities that received Merryman’s donation. Plaintiff alleged that defendant

“knew or should have known his comments would be further published in the Daily Herald,

thus extending his utterance and publication beyond the newspaper reporter and to the

general public.”

¶8 Count I of the complaint alleged slander per quod. Plaintiff alleged that defendant’s false

and defamatory statements “maliciously slandered Plaintiff, wrongfully intending to bring

Plaintiff into public disgrace and scandal and further wrongfully intending to injure and to

destroy the Plaintiff’s good name, credit and reputation throughout McHenry County and

adjoining counties and to bring him into disrepute among his colleagues and co-workers, and

otherwise; and to generally discredit him by falsely and maliciously speaking, uttering and

publishing, concerning Plaintiff, said defamatory false and scandalous words.” Plaintiff

claimed that, as a direct and proximate result of defendant’s false and defamatory comments,

he was not selected to run for the position of treasurer of Local 150, a position that would

have benefitted him with an annual salary increase of between $40,000 and $45,000. Plaintiff

also claimed that, as a direct and proximate result of defendant’s false and defamatory

comments, he was unable to act in his role as a principal fundraiser for a local charity.

¶9 Count II of the complaint alleged false light invasion of privacy. Plaintiff alleged that

defendant’s false and defamatory statements “maliciously slandered [him], wrongfully

intending to bring [plaintiff] into public disgrace and scandal and further wrongfully

intending to injure and to destroy [plaintiff’s] good name, credit and reputation throughout

McHenry County and adjoining counties and to bring him into disrepute among his

colleagues and co-workers, cause him to be regarded as a person unfit and untrustworthy to

discharge the duties of his employment and office, cause him to be regarded as a person

having committed criminal acts involving moral turpitude, prejudice him with his colleagues,

and co-workers, and otherwise; and to generally discredit him by falsely and maliciously

speaking, uttering and publishing concerning [plaintiff], said defamatory false and

scandalous words.” Plaintiff alleged that defendant’s false statements placed him in a false

light before the public and were made with actual malice. In support of this claim, plaintiff

again cited his claims that he was not selected to run for the position of treasurer of Local

150 and that he was unable to act in his role as a principal fundraiser for a local charity.

¶ 10 On December 2, 2008, defendant filed a motion to strike “designated immaterial matter”

and multiple motions for judgment on the pleadings. See 735 ILCS 5/2-615(a), (e) (West

2008). On May 8, 2009, the trial court entered a written order granting in part defendant’s

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motion to strike but denying all of defendant’s motions for judgment on the pleadings. In

addition, the court ordered defendant to file an answer to the second-amended complaint. On

March 17, 2011, defendant’s attorney of record was granted leave to withdraw from

representing defendant. Subsequently, defendant filed his pro se appearance.

¶ 11 On March 29, 2011, defendant filed a pro se motion for summary judgment based upon

immunity under the Act (735 ILCS 5/2-1005 (West 2010); 735 ILCS 110/1 et seq. (West

2010)). Defendant also filed a memorandum of law in support of his motion for summary

judgment, with various attachments, including his own affidavit. Defendant alleged that

plaintiff’s lawsuit amounted to a SLAPP action in that the claims therein “are not only based

on [defendant’s] actions as an officer of the court, but according to the complaint are based

upon and relate to the actions undertaken by [defendant] on behalf of his clients to petition

the government for redress of grievances.” In conjunction with his request for summary

judgment, defendant requested reimbursement for “costs and attorney fees in bringing this

motion.” See 735 ILCS 110/25 (West 2010).

¶ 12 On May 16, 2011, plaintiff filed a response to defendant’s motion for summary judgment

and a memorandum of law in support thereof. Among other things, plaintiff argued in his

memorandum that defendant is not entitled to immunity under the Act, because the acts

complained of in plaintiff’s complaint were not “based upon, relate[d] to, or in response to”

any act of defendant in furthering his own constitutional rights. See 735 ILCS 110/15 (West

2010). Instead, plaintiff asserted, his complaint was brought to seek damages for the injuries

he sustained as a result of defendant’s wrongful conduct. Plaintiff also argued that the Act

does not apply to defendant because he was not exercising his own constitutional right to

petition but was merely representing Merryman in the exercise of its constitutional rights. In

addition, plaintiff contended that the Act does not apply retroactively to cases such as this,

which were filed prior to its effective date.

¶ 13 On July 28, 2011, the court held a hearing on defendant’s motion for summary judgment.

After the parties argued their respective positions, the court granted defendant’s motion.

Initially, the court, relying on Shoreline Towers Condominium Ass’n v. Gassman, 404 Ill.

App. 3d 1013 (2010), held that the Act is procedural and therefore applies retroactively.

Next, the court rejected plaintiff’s argument that the Act does not apply to defendant because

he was not exercising his own constitutional right to petition but was merely representing

Merryman in the exercise of its constitutional rights. The court noted that the Act defines the

word “person” to include “two or more persons who have a joint or common interest.” See

735 ILCS 110/10 (West 2010). However, unable to find any case law from Illinois

addressing whether the Act protects the statements and actions of an attorney made in the

course of his or her representation of a client, the court looked to case law from California.

See, e.g., Taheri Law Group v. Evans, 72 Cal. Rptr. 3d 84 (Cal. Ct. App. 2008). The court

interpreted the case law from California as “consistently h[olding] that the California anti-

SLAPP immunity can apply to the actions of extrajudicial statements of attorneys made

during the scope of their representation.” This body of case law from California, combined

with the Act’s definition of “person” and the Act’s requirement that it be liberally construed

(see 735 ILCS 110/30(b) (West 2010)), persuaded the court that the Act “can apply to and

afford immunity to attorneys who petition the government on behalf of their clients.”

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¶ 14 The court then reviewed plaintiff’s second amended complaint and determined that it is

“based upon the actions of Defendant.” The court determined that defendant’s act of filing

a lawsuit against plaintiff on Merryman’s behalf constituted “conduct genuinely aimed at

procuring favorable government action, result or outcome.” The court also determined that

defendant’s comments to Keeshan, which referenced the Merryman lawsuit, are covered

under the Act. The court further found that “there was nothing else to really look at or present

to me on behalf of the Plaintiff that clearly establishes that the Defendant’s comments were

not covered by the [Act].” The court denied defendant’s request for attorney fees given that

defendant represented himself in the case.

¶ 15 On August 26, 2011, plaintiff filed a motion to reconsider the trial court’s grant of

summary judgment in defendant’s favor. On August 29, 2011, defendant filed a motion to

reconsider the trial court’s denial of his request for attorney fees. That same day, defendant

also filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1,

1994). In the latter motion, defendant urged the trial court to sanction plaintiff and his

attorney “for advancing this case without any factual basis for its claims in support of the

allegations contained in [plaintiff’s] complaint.” Defendant requested sanctions “in an

amount equal to the total amount of attorneys fees and costs incurred by [defendant] in

defense of this action.” On November 1, 2011, the trial court denied defendant’s motion to

reconsider, but continued the matter until November 8, 2011, for ruling on plaintiff’s motion

to reconsider and defendant’s motion for sanctions. On November 8, 2011, the trial court

denied both plaintiff’s motion to reconsider and defendant’s motion for sanctions. Plaintiff

filed a notice of appeal on December 7, 2011, and defendant filed a notice of appeal on

December 8, 2011.

¶ 16 II. ANALYSIS

¶ 17 In appeal No. 2-11-1252, plaintiff argues that the trial court erred in granting defendant’s

motion for summary judgment. Plaintiff raises three contentions in support of his argument.

Relying on the supreme court’s recent decision in Sandholm, 2012 IL 111443, plaintiff first

contends that the Act does not apply to the facts of this case. Second, plaintiff contends that

defendant does not fall within the Act’s definition of “person,” because he was not exercising

his own constitutional right to petition but was merely representing a client in the exercise

of its constitutional rights. Finally, plaintiff asserts that the trial court erred in looking to

California law in determining that defendant was a “person” as defined under the Act. In

appeal No. 2-11-1280, defendant challenges the trial court’s denials of his request for

attorney fees under the Act and his motion for sanctions pursuant to Illinois Supreme Court

Rule 137 (eff. Feb. 1, 1994).

¶ 18 Prior to addressing the merits of the issues raised on appeal, we review the pertinent

portions of the Act to place the parties’ arguments in context. As noted above, the Act

became effective in August 2007.1 735 ILCS 110/99 (West 2010). Section 5 of the Act (735

1

Before this court, plaintiff does not expressly renew his argument that the Act does not

apply retroactively. Indeed, as the trial court noted, the only published opinion that has addressed

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ILCS 110/5 (West 2010)), which sets forth the public policy considerations underlying the

statute, provides:

“Pursuant to the fundamental philosophy of the American constitutional form of

government, it is declared to be the public policy of the State of Illinois that the

constitutional rights of citizens and organizations to be involved and participate freely

in the process of government must be encouraged and safeguarded with great diligence.

The information, reports, opinions, claims, arguments, and other expressions provided

by citizens are vital to effective law enforcement, the operation of government, the

making of public policy and decisions, and the continuation of representative democracy.

The laws, courts, and other agencies of this State must provide the utmost protection for

free exercise of these rights of petition, speech, association, and government

participation.

Civil actions for money damages have been filed against citizens and organizations

of this State as a result of their valid exercise of their constitutional rights to petition,

speak freely, associate freely, and otherwise participate in and communicate with

government. There has been a disturbing increase in lawsuits termed ‘Strategic Lawsuits

Against Public Participation’ in government or ‘SLAPPs’ as they are popularly called.

The threat of SLAPPs significantly chills and diminishes citizen participation in

government, voluntary public service, and the exercise of these important constitutional

rights. This abuse of the judicial process can and has been used as a means of

intimidating, harassing, or punishing citizens and organizations for involving themselves

in public affairs.

It is in the public interest and it is the purpose of this Act to strike a balance between

the rights of persons to file lawsuits for injury and the constitutional rights of persons to

petition, speak freely, associate freely, and otherwise participate in government; to

protect and encourage public participation in government to the maximum extent

permitted by law; to establish an efficient process for identification and adjudication of

SLAPPs; and to provide for attorney’s fees and costs to prevailing movants.”

¶ 19 Section 15 of the Act provides:

“This Act applies to any motion to dispose of a claim in a judicial proceeding on the

grounds that the claim is based on, relates to, or is in response to any act or acts of the

moving party in furtherance of the moving party’s rights of petition, speech, association,

or to otherwise participate in government.

Acts in furtherance of the constitutional rights to petition, speech, association, and

participation in government are immune from liability, regardless of intent or purpose,

except when not genuinely aimed at procuring favorable government action, result, or

outcome.” 735 ILCS 110/15 (West 2010).

¶ 20 Section 10 of the Act defines certain terms used in the Act. For instance, a “claim” is

the retroactivity issue held that the Act is procedural and therefore applies retroactively. Shoreline

Towers Condominium Ass’n, 404 Ill. App. 3d at 1022-23.

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defined to include “any lawsuit, cause of action, claim, cross-claim, counterclaim, or other

judicial pleading or filing alleging injury.” 735 ILCS 110/10 (West 2010). “Government” is

defined as “a branch, department, agency, instrumentality, official, employee, agent, or other

person acting under color of law of the United States, a state, a subdivision of a state, or

another public authority including the electorate.” 735 ILCS 110/10 (West 2010). A “person”

under the Act includes “any individual, corporation, association, organization, partnership,

2 or more persons having a joint or common interest, or other legal entity.” 735 ILCS 110/10

(West 2010).

¶ 21 Section 20 of the Act sets forth the expedited legal process applicable to alleged SLAPPs.

Under that provision, when a motion is filed pursuant to the Act, “a hearing and decision on

the motion must occur within 90 days after notice of the motion is given to respondent.”2 735

ILCS 110/20(a) (West 2010). The Act requires the appellate court to “expedite any appeal

or other writ, whether interlocutory or not, from a trial court order denying that motion or

from a trial court’s failure to rule on that motion within 90 days.” 735 ILCS 110/20(a) (West

2010). Although discovery is suspended pending a decision on the motion, “discovery may

be taken, upon leave of court for good cause shown, on the issue of whether the movants acts

are not immunized from, or are not in furtherance of acts immunized from, liability by [the]

Act.” 735 ILCS 110/20(b) (West 2010). The trial court is required to grant the motion and

dismiss the claim “unless the court finds that the responding party has produced clear and

convincing evidence that the acts of the moving party are not immunized from, or are not in

furtherance of acts immunized from, liability by [the] Act.” 735 ILCS 110/20(c) (West

2010). Section 25 of the Act provides that the court “shall award a moving party who

prevails in a motion under [the] Act reasonable attorney’s fees and costs incurred in

connection with the motion.” 735 ILCS 110/25 (West 2010). Furthermore, as noted above,

the legislature expressly provided that the Act “shall be construed liberally to effectuate its

purposes and intent fully.” 735 ILCS 110/30(b) (West 2010). With these principles in mind,

we turn first to plaintiff’s appeal.

¶ 22 A. Appeal No. 2-11-1252

¶ 23 Plaintiff contends that the trial court erred in granting defendant’s motion for summary

judgment based on the immunity provided by the Act. Initially, plaintiff suggests that we

should review the trial court’s ruling on defendant’s motion for summary judgment as a

dismissal pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS

5/2-619(a)(9) (West 2010)). We disagree. The Act applies to “any motion to dispose of a

claim in a judicial proceeding.” (Emphasis added.) 735 ILCS 110/15 (West 2010). Further,

for the purposes of the Act, a “motion” is defined as “any motion to dismiss, for summary

judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.”

(Emphasis added.) 735 ILCS 110/10 (West 2010). In this case, defendant sought to dispose

of plaintiff’s claim by filing a motion for summary judgment, and the Act expressly

permitted him to do so. See Wright Development Group, LLC, 238 Ill. 2d at 642 (Freeman,

2

In the present case, defendant waived the 90-day decision period.

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J., specially concurring, joined by Thomas and Burke, JJ.) (suggesting that movants asserting

immunity under the Act must do so pursuant to the normal means provided under the Code

as section 10 expressly directs).3

¶ 24 In any event, for purposes of our analysis, any distinction between a motion for summary

judgment and a motion to dismiss under section 2-619(a)(9) is immaterial. Summary

judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file,

when viewed in the light most favorable to the nonmoving party, show that there is no

genuine issue of material fact and that the moving party is entitled to a judgment as a matter

of law. 735 ILCS 5/2-1005(c) (West 2010); Myers v. Levy, 348 Ill. App. 3d 906, 913 (2004).

Similarly, in reviewing a motion to dismiss under section 2-619(a)(9), the relevant inquiry

is “ ‘whether the existence of a genuine issue of material fact should have precluded the

dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.’ ”

Sandholm, 2012 IL 111443, ¶ 55 (quoting Kedzie & 103rd Currency Exchange, Inc. v.

Hodge, 156 Ill. 2d 112, 116-17 (1993)); see also International Profit Associates, Inc. v. Linus

Alarm Corp., 2012 IL App (2d) 110958, ¶ 9 (noting that a section 2-619 dismissal resembles

the grant of a motion for summary judgment). The interpretation and application of the Act

presents an issue of law, subject to de novo review. Wright Development Group, LLC, 238

Ill. 2d at 634; Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st)

102644, ¶ 13. Likewise, we review de novo a grant of summary judgment. Colburn v. Mario

Tricoci Hair Salon & Day Spas, Inc., 2012 IL App (2d) 110624, ¶ 32.

¶ 25 Turning to the merits, plaintiff first argues that the supreme court’s recent decision in

Sandholm, 2012 IL 111443, which interpreted section 15 of the Act, precludes defendant

from obtaining relief under the Act. In Sandholm, the plaintiff was employed as a basketball

coach and athletic director at a public high school. Although the plaintiff received positive

evaluations of his job performance during his entire tenure, the defendants began a campaign

to remove him as basketball coach and athletic director due to their disagreement with his

coaching style. The plaintiff filed a complaint against the defendants, alleging that they made

multiple false and defamatory statements in various media as part of their campaign to

3

We recognize that the supreme court has stated that a “motion to dismiss based on the

immunity conferred by the Act *** is more appropriately raised in a section 2-619(a)(9) motion.”

Sandholm, 2012 IL 111443, ¶ 54. However, in so holding, the Sandholm court was not dealing with

a motion for summary judgment. Instead, the Sandholm court made this remark in the context of

distinguishing between a motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615

(West 2008)) and a motion to dismiss under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9)

(West 2008)). The court explained that a motion pursuant to section 2-615 challenges only the legal

sufficiency of a complaint and alleges only defects on the face of the complaint. Sandholm, 2012 IL

111443, ¶ 54. In contrast, a motion to dismiss under section 2-619(a)(9) of the Code admits the legal

sufficiency of the plaintiff’s complaint (Johannesen v. Eddins, 2011 IL App (2d) 110108, ¶ 15), but

asserts an affirmative defense or other matter that avoids or defeats the plaintiff’s claim (Sandholm,

2012 IL 111443, ¶ 54). The court reasoned that a motion to dismiss filed in accordance with the Act

is more properly categorized as a section 2-619(a)(9) motion because the immunity the Act provides

is an affirmative matter avoiding the legal effect of or defeating the claim. Sandholm, 2012 IL

111443, ¶ 54.

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remove him. The plaintiff’s complaint consisted of multiple counts of defamation per se,

false light invasion of privacy, civil conspiracy to interfere with prospective business

advantage, and slander per se. The defendants moved to dismiss the plaintiff’s complaint on

the basis that the Act provided them with immunity. The trial court granted the defendants’

motion, and this court affirmed. See Sandholm v. Kuecker, 405 Ill. App. 3d 835 (2010). The

supreme court allowed the plaintiff’s petition for leave to appeal.

¶ 26 The supreme court determined that the legislature intended the Act “to target only

meritless, retaliatory SLAPPs and did not intend to establish a new absolute or qualified

privilege for defamation.” Sandholm, 2012 IL 111443, ¶ 50. The court stated that, if it was

the intent of the legislature to create such a privilege, it would have explicitly stated so.

Sandholm, 2012 IL 111443, ¶ 50. In accordance with this determination, and invoking the

rules of statutory construction, the supreme court interpreted the phrase “ ‘based on, relates

to, or is in response to’ ” in section 15 of the Act to mean “solely based on, relating to, or in

response to ‘any act or acts of the moving party in furtherance of the moving party’s rights

of petition, speech, association, or to otherwise participate in government.’ ” (Emphasis in

original.) Sandholm, 2012 IL 111443, ¶ 45 (quoting 735 ILCS 110/15 (West 2008)). The

court expounded, “[s]tated another way, where a plaintiff files suit genuinely seeking relief

for damages for the alleged defamation or intentionally tortious acts of defendants, the

lawsuit is not solely based on defendant’s rights of petition, speech, association, or

participation in government. In that case, the suit would not be subject to dismissal under the

Act.” Sandholm, 2012 IL 111443, ¶ 45.

¶ 27 The court explained that its interpretation of the Act “allows a court to identify meritless

SLAPP suits subject to the Act” and serves “to ameliorate the ‘particular danger inherent in

anti-SLAPP statutes *** that when constructed or construed too broadly in protecting the

rights of defendants, they may impose a counteractive chilling effect on prospective

plaintiffs’ own rights to seek redress from the courts for injuries suffered.’ ” Sandholm, 2012

IL 111443, ¶ 48 (quoting Mark J. Sobczak, Comment, SLAPPed in Illinois: The Scope and

Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 575 (2008)).

The court further explained that “construing the Act to apply only to meritless SLAPPs

accords with another express goal in section 5 [of the Act]: ‘to strike a balance between the

rights of persons to file lawsuits for injury and the constitutional rights of persons to petition,

speak freely, associate freely, and otherwise participate in government.’ [Citation.]”

Sandholm, 2012 IL 111443, ¶ 49.

¶ 28 Applying the foregoing, the supreme court noted that under the Act the defendants had

the initial burden of proving that the plaintiff’s lawsuit was solely based on, related to, or in

response to the defendants’ acts in furtherance of their rights of petition, speech, or

association, or to participate in government. Sandholm, 2012 IL 111443, ¶ 56. If the

defendants met their burden, then, and only then, would the burden shift to the plaintiff to

provide clear and convincing evidence that the defendants’ acts were not immunized from

liability under the Act. Sandholm, 2012 IL 111443, ¶ 56. After examining the parties’

pleadings, the supreme court concluded that the plaintiff’s lawsuit was not solely based on,

related to, or in response to the acts of the defendants in furtherance of their rights of petition

and speech. Sandholm, 2012 IL 111443, ¶ 57. The court determined that the “true goal” of

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the plaintiff’s lawsuit was not to chill participation in government or stifle political

expression, but to seek damages for the personal harm to his reputation from the defendants’

alleged defamatory and tortious acts. Sandholm, 2012 IL 111443, ¶ 57.

¶ 29 Sandholm was decided on January 20, 2012, while this case was pending appeal. We note

that, as a general rule, a decision of our supreme court applies retroactively to causes pending

at the time it is announced, including cases on direct review in the appellate court. Miller v.

Gupta, 174 Ill. 2d 120, 128 (1996). According to plaintiff, application of Sandholm to this

case demonstrates that the trial court erred in granting summary judgment to defendant under

the Act. We agree.

¶ 30 Pursuant to the procedure set forth in Sandholm, defendant had the initial burden of

proving that plaintiff’s lawsuit was solely based on, related to, or in response to defendant’s

acts in furtherance of his rights of petition, speech, or association, or to participate in

government. Viewing the pleadings, affidavits, depositions, and admissions on file in the

light most favorable to plaintiff, we find that defendant has failed to meet this burden.

Instead, we find that plaintiff’s objective in filing suit was not solely to interfere with and

burden defendant’s right to petition, but to seek damages for the personal harm to his

reputation resulting from defendant’s allegedly false and defamatory statements. We note for

instance that, in count I of plaintiff’s complaint, which alleged slander per quod, plaintiff

alleged that the comments defendant made to Keeshan “maliciously slandered Plaintiff,

wrongfully intending to bring Plaintiff into public disgrace and scandal and further

wrongfully intending to injure and to destroy the Plaintiff’s good name, credit and reputation

throughout McHenry County and adjoining counties and to bring him into disrepute among

his colleagues and co-workers, and otherwise.” Moreover, plaintiff alleged that, as a direct

and proximate result of defendant’s false and defamatory statements, he was not selected to

run for treasurer of Local 150. Plaintiff claimed that holding the position of treasurer would

have benefitted plaintiff with $40,000 to $45,000 per year in additional income. Plaintiff

further alleged that, as a direct and proximate result of defendant’s false and defamatory

statements, he was unable to act in his role as a principal fundraiser for a local charity.

¶ 31 Similarly, in count II of the complaint, which alleged false light invasion of privacy,

plaintiff alleged that defendant “maliciously slandered [him], wrongfully intending to bring

[plaintiff] into public disgrace and scandal and further wrongfully intending to injure and to

destroy [plaintiff’s] good name, credit and reputation throughout McHenry County and

adjoining counties and to bring him into disrepute among his colleagues and co-workers,

cause him to be regarded as a person unfit and untrustworthy to discharge the duties of his

employment and office, cause him to be regarded as a person having committed criminal acts

involving moral turpitude, prejudice him with his colleagues, and co-workers, and otherwise;

and to generally discredit him by falsely and maliciously speaking, uttering and publishing,

concerning [plaintiff], said defamatory false and scandalous words.” Plaintiff supported these

allegations with the same examples provided with respect to count I. In other words, the

allegations in plaintiff’s complaint, which were supported by concrete examples, were at

least, in part, undertaken to protect plaintiff’s reputation and goodwill in the community. In

this regard, we also note that, despite the fact that defendant filed multiple section 2-615

motions to dispose of plaintiff’s complaint, the trial court found that the allegations in

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plaintiff’s complaint were sufficient to survive all of those motions and the court ordered

defendant to answer the complaint. Thus, the trial court believed that defendant had pleaded

sufficient facts for his complaint to go forward. We therefore conclude that defendant has

failed to prove that plaintiff’s complaint was solely based on defendant’s exercise of his

constitutional rights of petition, speech, association, or to participate in government. Thus,

the burden never shifted to plaintiff to provide clear and convincing evidence that

defendant’s acts are not immune from liability under the Act. Accordingly, we find that the

trial court erred in granting defendant summary judgment.

¶ 32 Defendant nevertheless insists that he made the threshold showing that plaintiff’s lawsuit

was based on, related to, or in response to his petitioning activities alone. In his appellee’s

brief, this argument is not clearly articulated and is largely undeveloped. As a result, we

would be warranted in finding this argument forfeited. See Ill. S. Ct. R. 341(h)(7), (i) (eff.

July 1, 2008); Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 924 (2007). Defendant

attempted to clarify this position during oral argument. In particular, defendant claimed that

allegations in plaintiff’s complaint regarding his failure to be selected to run for treasurer of

Local 150 were not true. In support of this claim, defendant relied principally on two

documents: the affidavit attached to the memorandum in support of his motion for summary

judgment and a document from the general counsel for Local 150. We find defendant’s

position unpersuasive.

¶ 33 In his complaint, plaintiff alleged that, “[a]s was customary, every candidate selected to

run on the slate of President Bill Dugan was elected to their respective positions in the 2007

Local 150 elections.” Plaintiff further alleged that the individual who was ultimately selected

to replace plaintiff and run on Dugan’s slate of candidates for the treasurer position was, in

fact, elected as treasurer. Initially, we note that the significance of the document from the

general counsel is not apparent to us. Although it references another individual serving as the

treasurer of Local 150, we do not read it as establishing, as defendant claims, that plaintiff

was never slated to run for treasurer, and defendant does not explain how this document

supports his claim. As far as the affidavit is concerned, defendant merely asserted that two

of the candidates running on the slate of the candidate challenging Dugan for president of

Local 150 were actually elected. However, there was no assertion that either of these

candidates won the race for treasurer or that the individual who allegedly replaced plaintiff

as the candidate for treasurer on Dugan’s slate was not elected as treasurer. Therefore, we

find this evidence insufficient to shift the burden to plaintiff.

¶ 34 Alternatively, defendant urges us to uphold summary judgment on the basis of either the

attorney-litigation privilege or the fair-reporting privilege. Initially, we find that these

arguments have been forfeited because defendant did not raise them in the trial court. Hytel

Group, Inc. v. Butler, 405 Ill. App. 3d 113, 127 (2010). Defendant insists that he raised the

attorney-litigation privilege “within the motion to dismiss before the court below.” However,

defendant filed multiple motions to dismiss and, in contravention of the rules of our supreme

court, defendant does not reference the page of the record where he raised the attorney-

litigation privilege in the trial court. See Ill. S. Ct. R. 341(h)(7), (i) (eff. July 1, 2008)

(providing that the appellee’s argument shall contain his or her contentions and the reasons

therefor, “with citation of the authorities and the pages of the record relied on” (emphasis

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added)). Defendant’s failure to comply with Rule 341 provides a separate basis for finding

forfeiture. See People v. Johnson, 192 Ill. 2d 202, 206 (2000). In any event, our independent

review of the record indicates that defendant raised the attorney-litigation privilege only in

response to plaintiff’s first amended complaint. He did not raise it with respect to the second

amended complaint, which is presently before us.

¶ 35 Forfeiture notwithstanding, we briefly address why neither privilege is applicable here.

Illinois courts have invoked the attorney-litigation privilege as set forth in section 586 of the

Restatement (Second) of Torts. See, e.g., Atkinson v. Affronti, 369 Ill. App. 3d 828, 831-36

(2006); Thompson v. Frank, 313 Ill. App. 3d 661, 664-65 (2000). That provision states as

follows:

“An attorney at law is absolutely privileged to publish defamatory matter concerning

another in communications preliminary to a proposed judicial proceeding, or in the

institution of, or during the course and as a part of, a judicial proceeding in which he

participates as counsel, if it has some relation to the proceeding.” Restatement (Second)

of Torts § 586 (1977).

The privilege, which is absolute, is based upon “a public policy of securing to attorneys as

officers of the court the utmost freedom in their efforts to secure justice for their clients.”

Restatement (Second) of Torts § 586 cmt. a (1977). Because the privilege provides complete

immunity, its scope is necessarily narrow. Edelman, Combs & Latturner v. Hinshaw &

Culbertson, 338 Ill. App. 3d 156, 165 (2003). Thus, the privilege is available only when the

publication: (1) was made in a judicial proceeding; (2) had some connection or logical

relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved

litigants or other participants authorized by law. Kurczaba v. Pollock, 318 Ill. App. 3d 686,

702 (2000).

¶ 36 In this case, the allegedly defamatory statements were made outside of the judicial

proceeding to a newspaper reporter who was not connected to the lawsuit. While the

attorney-litigation privilege has been extended to out-of-court communications between

opposing counsel, to out-of-court communications between attorney and client related to

pending litigation, to out-of-court communications between attorneys representing different

parties suing the same entities, to statements made during quasi-judicial proceedings, to

communications necessarily preliminary to quasi-judicial proceedings, and to posttrial

remarks related to judical proceedings made by an attorney to his or her client (see Golden

v. Mullen, 295 Ill. App. 3d 865, 870-71 (1997) (and cases cited therein)), defendant does not

cite any authority that this privilege applies to extrajudicial statements made by an attorney

to a third party with no connection to the litigation. In fact, the only case defendant cites as

“instructive,” Cummins v. Heaney, No. 05 C 3396, 2005 WL 2171066 (N.D. Ill. Aug. 31,

2005), is readily distinguishable. Significantly, Cummins did not involve an attorney’s

statements to the media. Rather, it involved an out-of-court chain of e-mails between

attorneys representing opposing parties pertaining to litigation scheduling. Thus, Cummins

is of no import here.

¶ 37 More important, our research reveals that Illinois courts have expressly declined to

extend the attorney-litigation privilege to third parties not connected with the litigation (see

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Kurczaba, 318 Ill. App. 3d at 705 (“Illinois clearly limits the attorney litigation privilege and

has refused to extend it to third-party communications unrelated to a lawsuit.”); Thompson,

313 Ill. App. 3d at 664 (holding that attorney-litigation privilege does not apply to out-of-

court communication between an attorney and an opposing party’s spouse); Lykowski v.

Bergman, 299 Ill. App. 3d 157, 166 (1998) (noting that statements made to the media

concerning a case are not part of the judicial proceeding and therefore are not privileged

(citing Prosser and Keeton on Torts § 114, at 819-20 (W. Page Keeton et al. eds. 5th ed.

1984))); Golden, 295 Ill. App. 3d at 872 (declining to extend attorney-litigation privilege to

out-of-court communication between attorney and former client’s spouse)). Defendant does

not provide a cogent reason for departing from this authority, and he does not explain how

doing so would further the privilege’s public policy goal. For these reasons, we conclude that

the attorney-litigation privilege is not applicable to the allegedly defamatory statements made

by defendant in this case.

¶ 38 Likewise, we conclude that the fair-reporting privilege has no application to this case.

The fair-reporting privilege is set forth in section 611 of the Restatement (Second) of Torts

as follows:

“The publication of defamatory matter concerning another in a report of an official

action or official proceeding or of a meeting open to the public that deals with a matter

of public concern is privileged if the report is accurate and complete or a fair abridgment

of the occurrence reported.” Restatement (Second) of Torts § 611 (1977).

This section was adopted by the Illinois Supreme Court in Catalano v. Pechous, 83 Ill. 2d

146, 167-68 (1980). “The basis of this privilege is the interest of the public in having

information made available to it as to what occurs in official proceedings and public

meetings.” Restatement (Second) of Torts § 611 cmt. a (1977). Although the privilege is

commonly exercised by newspapers, broadcasting outlets, and others in the business of

reporting news to the public, it is not limited to the media. Kurczaba, 318 Ill. App. 3d at 707;

Restatement (Second) of Torts § 611 cmt. c (1977). In this case, defendant merely asserts that

“the Daily Herald’s accurate reporting of the claims made in the judicial record are [sic]

privileged because of the public’s interest in having information made available to it as to

what occurs in judicial proceedings.” (Emphasis added.) While the fair-reporting privilege

might arguably apply to the newspaper that published the article upon which plaintiff’s

complaint is based, defendant fails to explain how the fair-reporting privilege extends to him.

Accordingly, even absent forfeiture, we would reject this argument.

¶ 39 As a result of our findings, we do not address the other arguments for reversal raised by

plaintiff. In addition, we express no opinion on the actual merits of plaintiff’s causes of

action. We simply hold that plaintiff’s lawsuit is not a SLAPP within the meaning of the Act

and, thus, is not subject to summary judgment.

¶ 40 B. Appeal No. 2-11-1280

¶ 41 In appeal No. 2-11-1280, defendant insists that the trial court erred in denying reasonable

attorney fees under the Act in connection with its grant of summary judgment in his favor.

Defendant also challenges the trial court’s decision to deny sanctions pursuant to Illinois

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Supreme Court Rule 137 (eff. Feb. 1, 1994). Plaintiff responds that we lack jurisdiction “to

hear the appeal in regard to [defendant’s] request for awarding attorney’s fees,” because

defendant failed to file his notice of appeal within the appropriate time frame. Plaintiff

further argues that, in any event, defendant is prohibited from recovering attorney fees under

Illinois law and that the trial court properly denied defendant’s request for sanctions pursuant

to Rule 137. We find that we have jurisdiction over defendant’s appeal. However, given our

decision to reverse the trial court’s grant of summary judgment pursuant to the Act, we find

that the issue of the propriety of an award of attorney fees and sanctions is moot.

¶ 42 Plaintiff insists that defendant’s appeal is untimely because the trial court denied his

motion to reconsider the ruling on the attorney fee issue on November 1, 2011, but defendant

did not file his notice of appeal until December 8, 2011, more than 30 days later. We

disagree. Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008) provides in relevant part

that a notice of appeal “must be filed with the clerk of the circuit court within 30 days after

the entry of the final judgment appealed from, or, if a timely posttrial motion directed

against the judgment is filed *** within 30 days after the entry of the order disposing of the

last pending postjudgment motion directed against that judgment or order, irrespective of

whether the circuit court had entered a series of final orders that were modified pursuant to

postjudgment motions.” (Emphasis added.) In this case, we note the following sequence of

events. On July 28, 2011, the trial court granted defendant’s motion for summary judgment

and denied defendant’s request for attorney fees under the Act. On August 26, 2011, plaintiff

filed a timely motion to reconsider the trial court’s grant of summary judgment in

defendant’s favor. On August 29, 2011, defendant filed a timely motion to reconsider the

trial court’s denial of attorney fees under the Act.4 That same day, defendant filed his motion

for sanctions. On November 1, 2011, the trial court denied defendant’s motion to reconsider.

On November 8, 2011, the trial court denied plaintiff’s motion to reconsider and defendant’s

motion for sanctions. On December 8, 2011, defendant filed his notice of appeal. We find

that defendant’s notice of appeal was timely because it was filed within 30 days after the

entry of the order disposing of plaintiff’s motion to reconsider (and defendant’s motion for

sanctions), which was the last pending postjudgment motion directed against the July 28,

2011, order. Nevertheless, because we are reversing the judgment of the trial court granting

defendant’s motion for summary judgment under the Act, defendant’s claim that the trial

court erred in denying his request for attorney fees is moot. Sandholm, 2012 IL 111443, ¶ 63.

¶ 43 Defendant further claims that the trial court abused its discretion in denying his request

for sanctions pursuant to Rule 137. Defendant reasons that “[s]ince the Legislature defined

4

A postjudgment motion must be filed within 30 days after the trial court’s ruling. 735 ILCS

5/2-1203 (West 2010). Although August 29, 2011, was more than 30 days after the trial court’s

ruling, defendant’s motion to reconsider was timely because the thirtieth day fell on a weekend. See

5 ILCS 70/1.11 (West 2010) (“The time within which any act provided by law is to be done shall

be computed by excluding the first day and including the last, unless the last day is Saturday or

Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and

then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a

holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”).

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a SLAPP as an abuse of the judicial process, and the court [found] the subject action was in

fact a SLAPP, the decision not to sanction [plaintiff’s attorney] and the Plaintiff/Appellee

demonstrates the denial was an abuse of discretion and sanctions are warranted.” However,

we have reversed the trial court’s grant of summary judgment under the Act. Thus, we find

defendant’s argument for sanctions moot as well.

¶ 44 III. CONCLUSION

¶ 45 Accordingly, for the reasons set forth above, we reverse the circuit court of McHenry

County’s grant of defendant’s motion for summary judgment pursuant to the Act. We affirm

the denials of defendant’s request for attorney fees and Rule 137 sanctions. This cause is

remanded for further proceedings.

¶ 46 No. 2-11-1252, Reversed and remanded.

¶ 47 No. 2-11-1280, Affirmed.

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