# Wright Development Group, LLC v. Walsh > Illinois Supreme Court · October 21, 2010 · 238 Ill. 2d 620 URL: https://www.frixlaw.com/law-library/cases/9779768 ## Case - **Full name:** WRIGHT DEVELOPMENT GROUP, LLC, Appellee, v. JOHN WALSH Et Al. (John Walsh, Appellant) - **Court:** Illinois Supreme Court - **Decided:** October 21, 2010 - **Citations:** 238 Ill. 2d 620; 345 Ill. Dec. 546; 939 N.E.2d 389; 2010 Ill. LEXIS 1537 - **Precedential status:** Published - **Opinion:** Concurrence by Freeman - **Judges:** Fitzgerald, Freeman - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9779768 ## Opinion text JUSTICE FREEMAN, specially concurring: I agree with the court that this case must be remanded. I write separately only to address how litigation under the Citizen Participation Act must proceed, an important matter that is unfortunately overlooked in today’s opinion. The court correctly holds that the Act seeks to immunize citizens from civil actions based on acts made in furtherance of a citizen’s free speech rights or right to petition government. 238 Ill. 2d at 633. Statutory immunity provisions are not uncommon — the Tort Immunity Act being a prime example. Section 15 of the Act does not, however, create a “stand-alone” motion as the court implies. See 238 Ill. 2d at 627, 629, 633, 640 (referring to the movant’s motion variously as a “motion under the Act” or as an “Act motion”). Section 15 states in relevant part: “This Act applies to any motion to dispose of a claim *** on the grounds that the claim is based on, relates to, or is in response to any act or acts *** of the moving party’s rights of petition, speech, association, or to otherwise participate in government. Acts in furtherance of [those rights] are immune from liability ***.” 735 ILCS 110/15 (West 2008). Section 10 defines “motion” to include “any motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.” 735 ILCS 110/10 (West 2008). Section 20 then expressly addresses considerations for disposition of such motions including, for example, when hearings must be held and the standard of proof the responding party must meet to defeat the motion. 735 ILCS 110/20 (West 2008). Section 20 also provides that the appellate court “shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion.” 735 ILCS 110/20(a) (West 2008). These statutory provisions make clear that there is no such thing as an “Act motion,” as the court would have it. A movant can seek dismissal based on the immunity granted by the Act under section 2 — 619(a)(9) for example. Such a motion allows for dismissal when the claim asserted against the defendant is barred by other “affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2 — 619(a)(9) (West 2008). The affirmative matter referred to encompasses “all defenses which rely on allegations which are not negations of the essential allegations of the plaintiff’s cause of action.” See 4 R. Michael, Illinois Practice §41.7, at 331 (1989). The use of a section 2 — 619 motion here would be no different than the use of the motion to seek dismissal under the Tort Immunity Act. See Midwest Bank & Trust Co. v. Village of Lakewood, 113 Ill. App. 3d 962 (1983) (and cases cited therein). Other examples of affirmative matter include, in defamation cases, defenses based on privilege, the innocent construction rule, fair comment and truth. See 4 R Michael, Illinois Practice §41.7, at 331-32 (1989) (collecting cases). Accordingly, movants asserting immunity under the Act must do so pursuant to the normal means provided under the Code of Civil Procedure, as section 10 expressly directs. The movant here might have availed himself of section 2 — 619(a)(9) to seek dismissal on the basis of immunity conferred by section 15 of the Act. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993) (noting practice under section 2 — 619 motions); 4 R. Michael, Illinois Practice §41.8, at 333-35 (1989) (explaining that determination of a section 2 — 619 motion can be made as a matter of law on affidavits alone or at the conclusion of an evidentiary hearing). In any section 2 — 619(a)(9) motion to dismiss, once an affirmative matter is properly raised which could defeat the claim, the plaintiff must then come forward with some evidence at least establishing a genuine issue of material fact, otherwise the motion will be granted. The only additional burden established by the Act on a plaintiff is that the plaintiff is required to come forward with clear and convincing evidence that a genuine issue of material fact exists in order to defeat the motion. 735 ILCS 110/20 (c) (West 2008). If such a material fact exists that cannot otherwise be resolved within the statutory provisions of section 2 — 619, denial of the motion would be proper. The use of a section 2 — 619 motion would also avoid questions concerning appellate jurisdiction. If the motion is granted, attorney fees can then be awarded in furtherance of the legislative intent, and an appeal can follow normally as an appeal from a final judgment under Rule 302 (210 Ill. 2d R. 302). If the section 2 — 619 motion is denied, however, the movant should ask the trial judge for a Rule 304(a) finding. See 210 Ill. 2d R. 304(a). Under that rule, an appeal may be taken from a final judgment as to one or more claims if the trial judge expressly finds that there is no just reason to delay the appeal. 210 Ill. 2d R. 304(a). The denial of a section 2 — 619 motion based upon the Act would be a final judgment as to the ability of the defendant to recover statutory attorney fees and costs, as the court correctly notes. 238 Ill. 2d at 633-34. By granting such a request, trial judges would be giving effect to the legislative intent reflected in section 20(a) of the Act, i.e., that interlocutory appeals arising under the Act be heard sooner rather than later. This would further alleviate the need to amend the supreme court rules, in particular Rule 306, as is noted in today’s opinion. 238 Ill. 2d at 629 n.l. This case represents the court’s first opportunity to address this relatively new piece of legislation yet the court fails to make clear how the Act’s provisions are to be properly incorporated into the course of a lawsuit. At oral argument, one member of this court asked specifically about how the use of a freestanding motion fits within pretrial motion practice, particularly with respect to appeals from denials of such motions. That question is not answered today. Instead, the court’s opinion virtually guarantees the filing of more stand-alone “Act motions” in lawsuits such as this. This is problematic because already the appellate court has called the constitutionality of the Act’s interlocutory appeal provisions into question. Mund v. Brown, 393 Ill. App. 3d 994 (2009). In Mund v. Brown, the movant filed a stand-alone motion seeking dismissal pursuant to the Act. The trial court denied the motion, and the movant attempted to appeal the denial. The appellate court raised the issue of appellate jurisdiction sua sponte. In responding to the court’s jurisdictional concerns, the movant argued that section 20 of the Act granted jurisdiction. In rejecting the argument, the appellate court noted that article VI, section 6, of the Illinois Constitution grants to the supreme court alone the power to make rules governing interlocutory appeals. Thus, a statute purporting to grant a right to an interlocutory appeal would not only violate section 6 of the Constitution but would also violate the separation of powers clause contained in article II, section 1. The appeal was then dismissed for lack of jurisdiction. Mund v. Brown, 393 Ill. App. 3d at 998-99 (petition for leave to appeal denied November 25, 2009). Mund raises serious constitutional questions. Those litigants who file the freestanding motion referred to in today’s opinion will face the same jurisdictional hurdle that the movant in Mund did. Presently, and presumably until Rule 306 is officially amended, there is no supreme court rule by which the denial of the freestanding motion can be appealed. If a supreme court rule does not grant the right to appeal from a nonfinal judgment, then there is no right to an interlocutory appeal and the appellate court does not have jurisdiction to hear the appeal. Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93 (2004). In my view, this court should make explicit that the Act operates only in conjunction with normal practice under the Code of Civil Procedure. Doing so avoids the constitutional questions that arise with respect to appellate jurisdiction in cases involving interlocutory appeals taken from so-called freestanding Act motions. If the Act is interpreted as I suggest it must be, these concerns are of no moment. Through Rule 304(a), such interlocutory orders would be appealable, and the legislative intent for swift appeals can easily be achieved without constitutional concerns. In all other respects, I join in the court’s decision. JUSTICES THOMAS and BURKE join in this special concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779768. Public record. Not legal advice.