Golden v. Mullen

• Decision Date: 22 August 1997
• Docket Number: No. 1-96-2931,1-96-2931
• Citation: Golden v. Mullen, 693 N.E.2d 385, 295 Ill.App.3d 865, 230 Ill.Dec. 256 (Ill. App. 1997)
• Parties: , 230 Ill.Dec. 256 Bruce P. GOLDEN, Plaintiff-Appellant, v. Terence C. MULLEN and Mullen & Winthers, P.C., Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 385

693 N.E.2d 385

295 Ill.App.3d 865, 230 Ill.Dec. 256

Bruce P. GOLDEN, Plaintiff-Appellant, v. Terence C. MULLEN and Mullen & Winthers, P.C., Defendants-Appellees.

No. 1-96-2931.

Appellate Court of Illinois First District, Fifth Division.

Decided Aug. 22, 1997.

As Modified on Denial of Rehearing May 1, 1998.

Edward A. Berman, P.C., Bruce P. Golden & Associates, Bruce P. Golden, argued, Chicago, for Plaintiff-Appellant.

Michael Weininger, Lawrence M. Karlin of Katz, Randall & Weinberg, Chicago, for Defendants-Appellees.

MODIFIED OPINION UPON DENIAL OF REHEARING

Justice HOURIHANE delivered the opinion of the court:

Plaintiff, Bruce P. Golden (Golden), appeals the dismissal of his defamation action against Terence C. Mullen (Mullen) and the law firm of Mullen & Winthers, P.C. (firm). The principle issue on appeal is whether the circuit court erred by extending the absolute privilege that attaches to defamatory statements of attorneys made in the course of judicial proceedings to post-litigation statements made to the client. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Golden and Mullen are Illinois attorneys. The complaint ¹ alleges that in 1994 and 1995 Mullen and his firm represented Charles W. Sullivan (Sullivan) in litigation against William E. Switzer (Switzer) in Cook and DuPage counties, such representation allegedly "end[ing]" on June 23, 1995, and October 13, 1995, respectively. Switzer was represented by Golden.

On November 14, 1995, Mullen wrote a letter to Sullivan and his wife on firm stationery which states in relevant part:

"Thank you for your letter of October 20, 1995. Although I am in agreement with your suggestion to just walk away from a bad situation there are three things I want you to know:

1) The attorney representing Mr. Switzer is a raving lunatic. I have been told by every attorney who has worked on this file that they have never met such a deranged lawyer. One even suggested that this lawyer was legally incompetent. When I said I was in over my head on this case, that's what I was referring to. A law firm our size is just not equipped to deal with constant legal abuse inflicted by a rougue [sic] attorney." (Emphasis added.)

On January 17, 1996, Mullen wrote another letter, addressed only to Sullivan, which states:

"The last time you wrote to me, you expressed your frustrations over this case. You asked me to reduce your bill of around $1,900.00 to zero balance. I sympathised [sic] with your frustrations, and I still do. However, it is wrong to now threaten me with a malpractice lawsuit unless I pay to you the $5,900.00 you paid to our law firm during this case as a refund. Not only did we not commit any malpractice, we paid $5,000.00 out of our own pockets to defend us in the Federal lawsuit that Switzer's crazy lawyer filed. I'm sorry Chuck, I really am, but I'm not responsible for the destruction of your business or the other things stated in your letter." (Emphasis added.)

Plaintiff alleges that the statements were false and that Mullen knew they were false or had no reasonable basis for believing the statements to be true or that the statements were made in reckless disregard of whether they were true or false. Golden sought special and/or presumed damages under theories of defamation per se (count I) and defamation per quod (count II), and punitive damages for willful, wanton and reckless conduct (count III).

Mullen filed a combined motion to dismiss under sections 2-615(a) and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(a), 2-619(a)(9) (West 1996)). In his 2-615 motion, Mullen asserted that while the statements in his letters may have been disparaging, they do not constitute actionable libel; that the statements are non-actionable expressions of opinion; and that even if defamatory, the statements do not fall within any of the recognized categories of defamation per se.

In his 2-619 motion, Mullen contended that the letters were written in connection with recently concluded, pending or contemplated judicial proceedings and thus were absolutely privileged; that, alternatively, the letters were conditionally privileged; and that Golden had not pleaded and could not prove special damages. Mullen's 2-619 motion was supported by his own affidavit detailing the history of his representation of Sullivan in the DuPage County litigation, Golden's extensive motion practice in the course of the litigation, Mullen's knowledge of related litigation in Cook County, and his involvement as a co-defendant in related federal litigation brought by Switzer against Sullivan.

Attached to Mullen's affidavit were, among other things, copies of two letters Sullivan wrote to Mullen. The first, dated October 20, 1995, was apparently written after receiving Mullen's invoice for legal services. Sullivan expressed his frustration and anger over the American legal system, attorneys in general, and Mullen's handling of the litigation. Sullivan also raised the specter of a malpractice suit against Mullen, and suggested that Mullen clear his account and consider it closed. The second letter, dated January 10, 1996, was written in response to Mullen's letter of November 14, 1995. Sullivan again raised the possibility of a malpractice claim against Mullen and the firm, and requested return of approximately $6,000 in legal fees paid to Mullen. Mullen responded with his January 17, 1996, letter.

In response to Mullen's 2-615 motion, Golden asserted that Mullen's statements are not capable of an innocent construction; that imputing insanity is defamatory per se; and that Mullen's statements do not qualify as non-actionable expressions of opinion.

As to Mullen's 2-619 motion, Golden argued that Mullen's statements were made to protect his own economic interests and thus do not constitute the type of communication covered by the absolute privilege; that the occasion under which the statements were made did not trigger application of a conditional privilege; and that even assuming a conditional privilege applied, Mullen abused the privilege by failing to investigate the truth of the statements. Golden's response was supported by portions of the deposition testimony of David Axelrod, who represented Sullivan in the federal suit, by his own affidavit detailing the litigation, and by affidavits from Switzer and two other satisfied clients.

The circuit court dismissed the complaint with prejudice pursuant to Mullen's 2-619 motion, finding that the absolute privilege of attorneys to make defamatory remarks related to judicial proceedings also applies to post-trial remarks made to a client. The court also held that, as a matter of law, Mullen's statements were conditionally privileged and that Mullen had not abused the privilege.

Golden filed a motion to reconsider in which he generally reargued his position and, for the first time, asserted that any privilege cannot extend to Mrs. Sullivan, to whom Mullen's first letter was also addressed. The circuit court denied this motion, as well as Golden's subsequent motions for leave to file a "First Amended Complaint" and an "Amendment to the First Amended Complaint". This appeal followed. 155 Ill.2d R. 301.

ANALYSIS

Section 2-619(a)(9) of the Code provides for involuntary dismissal of a cause of action where the claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2-619(a)(9) (West 1996). "Affirmative matter" is something in the nature of a defense that completely negates the cause of action or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint. Fancher v. Central Illinois Public Service Co., 279 Ill.App.3d 530, 534, 216 Ill.Dec. 55, 664 N.E.2d 692 (1996). In a defamation action, the issue of absolute privilege is an affirmative defense that may be raised and determined in a section 2-619 motion. Harris v. News-Sun, 269 Ill.App.3d 648, 651, 206 Ill.Dec. 876, 646 N.E.2d 8 (1995). This court reviews the grant of a motion to dismiss under section 2-619 on a de novo basis. Corluka v. Bridgford Foods of Illinois, Inc., 284 Ill.App.3d 190, 192, 219 Ill.Dec. 647, 671 N.E.2d 814 (1996). The question on appeal is whether there exists a genuine issue of material fact precluding dismissal, or absent an issue of material fact, whether dismissal is proper as a matter of law. Corluka, 284 Ill.App.3d at 192, 219 Ill.Dec. 647, 671 N.E.2d 814.

Golden does not claim that an issue of material fact precludes dismissal. Rather, he argues that the circuit court erred by extending the absolute privilege to Mullen's post-litigation statements. Whether a statement is privileged is a question of law. Barakat v. Matz, 271 Ill.App.3d 662, 667, 208 Ill.Dec. 111, 648 N.E.2d 1033 (1995).

The defense of absolute privilege in a defamation action involving statements made by an attorney is set forth in the Restatement (Second) of Torts, § 586 (1977) (Restatement) and provides 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."

The privilege extends to out-of-court communications between opposing counsel (Dean v. Kirkland, 301 Ill.App. 495, 23 N.E.2d 180 (1939)), to out-of-court communications between attorney and client related to pending litigation (Weiler v. Stern, 67 Ill.App.3d 179, 23 Ill.Dec. 855, 384 N.E.2d 762 (1978)), to out-of-court communications between attorneys representing different parties suing the same entities (Libco Corp. v. Adams, 100 Ill.App.3d 314, 55 Ill.Dec. 805, 426 N.E.2d 1130 (1981)), to statements made during quasi-judicial proceedings (Richardson v. Dunbar, ...