August v. Hanlon

• Decision Date: 17 October 2012
• Docket Number: 2–11–1280.,Nos. 2–11–1252,s. 2–11–1252
• Citation: 2012 IL App (2d) 111252,975 N.E.2d 1234
• Parties: Charles AUGUST, Plaintiff–Appellant, v. Robert T. HANLON, Defendant–Appellee. Charles August, Plaintiff–Appellee, v. Robert T. Hanlon, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 111252

975 N.E.2d 1234

Charles AUGUST, Plaintiff–Appellant,

v.Robert T. HANLON, Defendant–Appellee.

Charles August, Plaintiff–Appellee,

v.Robert T. Hanlon, Defendant–Appellant.

Nos. 2–11–1252, 2–11–1280.

Appellate Court of Illinois, Second District.

Sept. 6, 2012.

Rehearing Denied Oct. 17, 2012.

R. Mark Gummerson, Adrian M. Gosch, Jamie R. Wombacher, Gummerson Rausch Wand Lee Wombacher, LLC, Woodstock, for Charles August.

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

OPINION

Justice HUDSON delivered the judgment of the court, with 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, 356 Ill.Dec. 733, 962 N.E.2d 418. 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, 345 Ill.Dec. 546, 939 N.E.2d 389 (2010); Mund v. Brown, 393 Ill.App.3d 994, 995, 332 Ill.Dec. 935, 913 N.E.2d 1225 (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, 356 Ill.Dec. 733, 962 N.E.2d 418 (citing John C. Barker, Common–Law and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993)); Wright Development Group, LLC, 238 Ill.2d at 630, 345 Ill.Dec. 546, 939 N.E.2d 389; 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, 345 Ill.Dec. 546, 939 N.E.2d 389). 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, 345 Ill.Dec. 546, 939 N.E.2d 389. 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, 345 Ill.Dec. 546, 939 N.E.2d 389. 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, 345 Ill.Dec. 546, 939 N.E.2d 389. 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.”

¶ 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 employmentand 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...