Iii v. Krislov

• Decision Date: 08 November 2010
• Docket Number: No. 1–09–3478.,1–09–3478.
• Parties: Robert J. STEIN III, Plaintiff–Appellee,v.Clinton A. KRISLOV and Krislov and Associates, Ltd., Defendants–Appellants.
• Court: United States Appellate Court of Illinois

405 Ill.App.3d 538

939 N.E.2d 518

345 Ill.Dec. 675

Robert J. STEIN III, Plaintiff–Appellee,

v.Clinton A. KRISLOV and Krislov and Associates, Ltd., Defendants–Appellants.

No. 1–09–3478.

Appellate Court of Illinois, First District, First Division.

Nov. 8, 2010.

Ungaretti & Harris LLP, of Counsel: Susan G. Feibus, Richard H. Tilghman IV and Seth A. Horvath, Chicago, IL, for Appellants.DiVincenzo Schoenfield Swartzman, of Counsel: Anthony S. DiVincenzo, and Law Offices of Bahtiar Hoxha, of Counsel: Bahtiar Hoxha, Chicago, IL, for Appellee.Justice LAMPKIN delivered the opinion of the court:

[345 Ill.Dec. 677 , 405 Ill.App.3d 538] The question before us is whether we have jurisdiction to review the trial court's order denying a motion to dismiss based upon the Citizen Participation Act (735 ILCS 110/1 et seq. (West Supp. 2007)). Defendants, Clinton Krislov and Krislov & Associates, Ltd. (K&A), filed the motion to dismiss in response to a libel action brought by plaintiff, Robert Stein. For

[345 Ill.Dec. 678 , 939 N.E.2d 521]

the following reasons, we find that we lack jurisdiction to review the trial court's order.

FACTS

Plaintiff is an attorney that was employed by K&A from 1994–2001. Krislov is the sole shareholder. After leaving K&A, plaintiff and his firm were named as one of three firms representing the plaintiff on a motion for class certification in an action in a federal district court in Pennsylvania. While performing unrelated research, Krislov discovered plaintiff's motion for class certification in the Pennsylvania case. Attached to the motion was a description of plaintiff's and his firm's prior experience. On June 13, 2005, Krislov sent an unsigned letter to the judge presiding over the Pennsylvania case, advising that the representations made by plaintiff regarding his experience were “beyond puffing” and were “simply misstatements, known by the filers to be untrue.” The federal judge contacted the attorneys for the parties and provided them with a copy of Krislov's letter. On June 24, 2005, plaintiff responded by letter to the federal judge, disputing Krislov's claims and providing supporting documentation to verify plaintiff's and his firm's experience. On July 14, 2005, Krislov sent a reply letter to the federal judge, responding to plaintiff's June 24, 2005, letter. Ultimately, class certification was granted as to count 1 and denied for reasons unrelated to Krislov's letter, as to counts 2 and 3.

On May 10, 2006, plaintiff filed his first amended complaint against defendants, alleging libel and libel per se as a result of Krislov's letter, in addition to claims for vacation and bonus pay allegedly owed to him from his K & A employment. Defendants filed a motion under section 2–619 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619 (West 2004)) to dismiss the libel claims, arguing that the June 13, 2005, letter was absolutely privileged. On September 20, 2006, the trial court granted defendant's motion to dismiss the libel claims. In response, plaintiffs filed a motion to reconsider. On December 6, 2006, the trial court reversed its September 20, 2006, order, finding instead that the June 13, 2005, letter was not absolutely privileged. The libel claims were reinstated.

On January 11, 2007, defendants moved to reconsider the December 6, 2006, order. On February 1, 2008, the trial court denied the motion to reconsider, finding that “[a]bsolute privileges must be narrowly construed, and where an attorney has injected himself into litigation with which he has absolutely no connection, we do not find that any kind of absolute privilege exists” (emphasis in original), and that Krislov had no absolute duty under the Illinois Rules of Professional Conduct to report misconduct elsewhere.

On February 29, 2008, plaintiff filed a third amended complaint, ¹ realleging the libel claim and claims for uncompensated vacation and bonus pay. On August 26, 2009, defendants filed a motion to reconsider the trial court's February 1, 2008, order denying defendants' motion to reconsider the trial court's September 20, 2006, finding that the letter was not absolutely privileged. Defendants additionally filed a motion to dismiss the libel claim based on the Citizen Participation Act (Act). Defendants argued, for the first time, that they were immunized under the Act because the libel suit was filed in response to Krislov's exercise of his constitutional rights to free speech and participation in government.

[939 N.E.2d 522 , 345 Ill.Dec. 679]

On November 20, 2009, the trial court denied defendants' motion to reconsider its finding that the letter was not absolutely privileged where defendants relied on Ficaro v. Funkhouser, Vegosen, Liebman & Dunn, Ltd., 234 Ill.2d 519, 336 Ill.Dec. 482, 920 N.E.2d 1072 (2009) (July 31, 2009) (unpublished order pursuant to Supreme Court Rule 23), to support the allegation that there had been a change in the law. The trial court held that defendants' reliance on an unpublished, nonprecedential order was improper. The trial court further held that the Act, which was enacted on August 28, 2007, could not provide immunity because it was not created until after plaintiff's June 13, 2005, letter and the filing of plaintiff's lawsuit on May 10, 2006, and the Act did not have retroactive application.

Defendants filed a notice of interlocutory appeal citing Supreme Court Rule 307(a) (188 Ill.2d R. 307(a)) and section 20(a) of the Act (735 ILCS 110/20(a) (West Supp.2007)) on December 17, 2009.

DECISION

The threshold question before us is whether we have jurisdiction to review the trial court's denial of defendants' motion to dismiss plaintiff's libel claim on the basis of the Act. “When jurisdiction is lacking, the court must dismiss the appeal on its own motion.” Almgren v. Rush–Presbyterian–St. Luke's Medical Center, 162 Ill.2d 205, 210, 205 Ill.Dec. 147, 642 N.E.2d 1264 (1994).

The recently created Act protects against lawsuits known as “Strategic Lawsuits Against Public Participation” (SLAPP) in government. 735 ILCS 110/5 (West Supp.2007). The Act provides:

“The threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights [to petition, speak freely, associate freely, and otherwise participate in and communicate with government]. 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.” 735 ILCS 110/5 (West Supp.2007).

Defendants contend this court has jurisdiction to review this appeal as an interlocutory appeal based on Rule 307(a) and the language of section 20(a) of the Act. We disagree.

Article VI, section 6, of the Illinois Constitution grants the right to appeal from final judgments. Ill. Const.1970, art. VI, § 6. The Illinois Constitution further states that “[t]he Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.” Ill. Const.1970, art. VI, § 6. “There is no corresponding constitutional right to appeal from interlocutory orders of the circuit court. Rather, article VI, section 6, vests this court with the authority to provide for such appeals, by rule, as it sees fit. [Citation.] Except as specifically provided by those rules, the appellate court is without jurisdiction to review judgments, orders or decrees which are not final. [Citation.]”

[345 Ill.Dec. 680 , 939 N.E.2d 523]

Almgren, 162 Ill.2d at 210, 205 Ill.Dec. 147, 642 N.E.2d 1264. Rule 307 describes the instances when an appeal may be taken from an interlocutory order as of right. 188 Ill.2d R. 307. In relevant part, Rule 307(a)(1) provides for interlocutory appeals from a trial court order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (Emphasis added.) 188 Ill.2d R. 307(a)(1).

An injunction is “ ‘a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate to restrain upon the party in the exercise of his real or supposed rights.’ ” In re A Minor, 127 Ill.2d 247, 261, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989), quoting Wangelin v. Goe, 50 Ill. 459, 463 (1869). When determining whether a trial court's action constitutes an appealable injunctive order, the substance of the action, not the form, is relevant. In re A Minor, 127 Ill.2d at 260, 130 Ill.Dec. 225, 537 N.E.2d 292. Temporary restraining orders and orders staying or denying the stay of proceedings are reviewable. In re A Minor, 127 Ill.2d at 260–61, 130 Ill.Dec. 225, 537 N.E.2d 292. In addition, review may be taken from orders compelling arbitration ( Glazer's Distributors of Illinois, Inc. v. NWS–Illinois, LLC, 376 Ill.App.3d 411, 423, 315 Ill.Dec. 203, 876 N.E.2d 203 (2007)) as well as, in the case of In re A Minor, where there was an order compelling a newspaper not to publish the name of a minor involved in the proceeding ( In re A Minor, 127 Ill.2d at 261, 130 Ill.Dec. 225, 537 N.E.2d 292). In contrast, denials of motions to dismiss are not reviewable. See, e.g., Murges v. Bowman, 254 Ill.App.3d 1071, 1084, 194 Ill.Dec. 214, 627 N.E.2d 330 (1993); In re Petition of Filippelli, 207 Ill.App.3d 813, 817–18, 152 Ill.Dec. 725, 566 N.E.2d 412 (1990); ...