2014 IL App (1st) 131276
FIRST DIVISION
October 27, 2014
No. 1-13-1276
DAVA GRUNDHOEFER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 11 L 000736
)
JOHN SORIN, BETTE SORIN and JAMES J. )
ROCHE, Individually, and JAMES J. ROCHE )
ASSOCIATES, ) Honorable
) Randye A. Kogan,
Defendants-Appellees. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Cunningham concurred in the judgment and opinion.
Justice Connors dissented, with opinion.
OPINION
¶1 Plaintiff, Dava Grundhoefer, appeals the order of the circuit court granting the motions
of defendants, John Sorin and Bette Sorin (Sorins), and James J. Roche and James J. Roche
Associates (collectively "Roche"), to dismiss with prejudice Grundhoefer's second amended
complaint alleging malicious prosecution and defamation per se pursuant to section 2-615 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On appeal, Grundhoefer
contends the trial court erred in dismissing her complaint where (1) regarding her malicious
prosecution claim, she alleged sufficient facts showing the Sorins lacked probable cause to bring
the underlying wrongful death suit against her; and (2) regarding her defamation per se claim,
No. 1-13-1276
she sufficiently pled the publication element against all defendants. For the following reasons,
we affirm the trial court's dismissal of the defamation per se counts, but reverse the dismissal of
the count pertaining to malicious prosecution and remand for further proceedings.
¶2 JURISDICTION
¶3 The trial court granted defendants' motions to dismiss, with prejudice, on April 15, 2013.
Plaintiff filed the notice of appeal on April 17, 2013. Accordingly, this court has jurisdiction
pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments
entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶4 BACKGROUND
¶5 Grundhoefer, a licensed physician, was married to the Sorins' son David. David died
on August 11, 2008, when he suffered a fall while climbing on the outside of their residence.
David died intestate and his estate was filed in probate. Grundhoefer was appointed
administrator of the estate and she served upon the Sorins a citation to discover assets. A
dispute between the parties arose during these proceedings, specifically regarding the ownership
of a 2007 Hyundai Santa Fe vehicle. On July 21, 2010, while the probate dispute was pending,
the Sorins filed a wrongful death suit against Grundhoefer in which they alleged that
Grundhoefer prescribed Ambien to David even though a side effect of taking the drug is
sleepwalking, and Grundhoefer knew of David's propensity for sleepwalking. The suit alleged
that Grundhoefer's actions in prescribing Ambien to David were "negligent" or "careless," and
proximately caused David's death.
¶6 Grundhoefer claimed she was never served with the wrongful death suit and only learned
of its existence from a July 22, 2010, Chicago Sun-Times (Sun-Times) article discussing the
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case. Grundhoefer alleged that as a result of the article, a producer from the television show Dr.
Phil contacted her to appear on a show about Ambien. Grundhoefer also reported the wrongful
death claim to her malpractice insurance carrier, her employer, and the Illinois Department of
Financial and Professional Regulation. On August 17, 2010, an order was entered terminating
the probate dispute in favor of the Sorins. The Sorins voluntarily dismissed their wrongful
death suit on October 28, 2010, and have not refiled.
¶7 On January 20, 2011, Grundhoefer filed her original complaint against the Sorins and
defendant Roche, the attorney and law firm representing the Sorins in their underlying wrongful
death suit. The trial court granted the defendants' section 2-615 motions to dismiss and granted
Grundhoefer leave to file an amended complaint. Her second amended complaint contained
five counts. Count I, for malicious prosecution, alleged that the Sorins lacked probable cause in
bringing the wrongful death suit against Grundhoefer because they were not personal
representatives or special administrators of David's estate, and also they should have known that
their suit would be unsuccessful on the merits because they could not establish probable cause.
Count II, for defamation per se, alleged that the Sorins, "upon information and belief,"
personally or through Roche, "communicated or otherwise published" the allegations of fact and
circumstances contained in the wrongful death suit to "a reporter, journalist, writer, employee,
representative and/or agent of the Chicago Sun-Times." Grundhoefer claimed that these false
allegations imputed upon her the commission of the crime of involuntary manslaughter. Count
III also alleged defamation per se against the Sorins regarding the publication of allegations that
imputed upon Grundhoefer an inability or lack of integrity in the discharge of the duties of her
employment as a medical doctor. Counts IV and V, against Roche, mirrored the defamation per
se counts against the Sorins.
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¶8 On March 11, 2013, the trial court granted the defendants' motions to dismiss pursuant to
section 2-615. The trial court found that Grundhoefer's claim for malicious prosecution did not
sufficiently allege an absence of probable cause, nor did it allege a special injury. It also found
that the claims for defamation per se contained allegations based upon "information and belief,"
which did not satisfy the requirement that such claims "be pled with a heightened level of
precision and particularity." Grundhoefer filed this timely appeal.
¶9 ANALYSIS
¶ 10 Grundhoefer appeals the trial court's dismissal of her complaint pursuant to section
2-615. A section2-615 motion to dismiss challenges the legal sufficiency of the complaint.
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). A section 2-615 motion
does not raise factual affirmative defenses; rather, it alleges defects on the face of the complaint.
Id. In determining such a motion, the court reviews the complaint in the light most favorable to
the plaintiff and accepts as true all well-pleaded facts, as well as all inferences reasonably drawn
from those facts. McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988). Thus, the question presented
by a section 2-615 motion to dismiss is whether the pleadings contain sufficient facts which, if
proven, could entitle plaintiff to relief. Bryson, 174 Ill. 2d at 86. "A cause of action should
not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved
under the pleadings which will entitle the plaintiff to recover." Id. at 86-87. We review the
trial court's dismissal pursuant to section 2-615 de novo. Vernon v. Schuster, 179 Ill. 2d 338,
344 (1997).
¶ 11 First, Grundhoefer argues that the trial court erred in dismissing the malicious
prosecution count of her complaint. "A malicious prosecution action is brought to recover
damages suffered by one against whom a suit has been filed maliciously and without probable
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cause." Miller v. Rosenberg, 196 Ill. 2d 50, 58 (2001). The elements of a cause of action for
malicious prosecution are: (1) the commencement or continuance by the defendant of an
original judicial proceeding against the plaintiff; (2) termination of the original proceeding in
favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice; and (5)
special damages. Id. In order to sustain an action for malicious prosecution, the plaintiff must
prove each element. Mangus v. Cock Robin Ice Cream Co., 52 Ill. App. 3d 110, 116 (1977).
¶ 12 The trial court below dismissed the malicious prosecution count of Grundhoefer's
complaint, but addressed only two of the elements listed above: the absence of probable cause
and special damages. The Sorins did not challenge the sufficiency of the other elements in their
motion to dismiss and the trial court did not issue a finding on those elements in its order. The
trial court's dismissal relative to those elements is therefore forfeited on appeal. Area Erectors,
Inc. v. Travelers Property Casualty Co. of America, 2012 IL App (1st) 111764, ¶ 36 (the trial
court cannot err in determining an issue not presented by the parties). We will, however,
address whether Grundhoefer's complaint sufficiently alleged the absence of probable cause and
special damages.
¶ 13 Probable cause in a malicious prosecution action "is a state of facts that would lead a
person of ordinary care and prudence to believe or to entertain an honest and sound suspicion
that the accused committed the offense charged." Fabiano v. City of Palos Hills, 336 Ill. App.
3d 635, 642 (2002). The complainant must have an honest belief at the time of initiating the
action that another is probably guilty of the offense, and it is immaterial whether the accused is
thereafter found not guilty. Howard v. Firmand, 378 Ill. App. 3d 147, 150 (2007). "It is the
state of mind of the one commencing the prosecution, and not the actual facts of the case or the
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guilt or innocence of the accused, that is at issue." (Internal quotation marks omitted.) Johnson
v. Target Stores, Inc., 341 Ill. App. 3d 56, 72 (2003).
¶ 14 Grundhoefer's second amended complaint alleged that she was married to David Sorin
and he died intestate. David's estate was filed in probate and the Sorins vigorously challenged
the estate regarding a car they had given to Grundhoefer and David when they married. While
this contentious probate proceeding was pending, the Sorins filed a wrongful death suit against
Grundhoefer alleging her negligence in prescribing Ambien to David when Grundhoefer knew of
his propensity for sleepwalking when he took Ambien on prior occasions. The day after the
Sorins filed the wrongful death suit against Grundhoefer, an article appeared in the Chicago
Sun-Times about the case. Grundhoefer was contacted by the Dr. Phil show to appear on a
segment about the dangers of Ambien, and although she was never served with the wrongful
death suit, Grundhoefer felt compelled to report it to her malpractice insurance carrier, her
employer, and the Illinois Department of Financial and Professional Regulation.
Approximately one month later, an order was entered that terminated the probate proceeding in
favor of the Sorins. A little over two months after the termination of the probate proceeding,
the Sorins voluntarily dismissed the wrongful death suit against Grundhoefer and have not
refiled. Grundhoefer alleged that the Sorins "attempted to use the Wrongful Death Suit in an
effort to gain leverage against [her] in regards to the Probate Matter." 1
¶ 15 We find that Grundhoefer's complaint pleads sufficient facts to survive a section 2-615
motion to dismiss on the probable cause issue. Grundhoefer alleged that the Sorins filed their
1
Although Grundhoefer challenges the trial court's ruling on this issue due to lack of standing
and failure to show proximate cause, we may affirm or reverse its ruling on a section 2-615
motion to dismiss on any basis found in the record. Huang v. Brenson, 2014 IL App (1st)
123231, ¶ 16.
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suit in order to gain leverage against her in the contentious probate proceeding. Shortly after
the probate proceeding ended in the Sorins' favor, they voluntarily dismissed the wrongful death
suit against Grundhoefer and never refiled. What matters is the state of mind of the Sorins in
instigating the wrongful death suit, not the actual facts of the case or whether Grundhoefer is
actually guilty of the offenses contained therein. Johnson, 341 Ill. App. 3d at 72. The facts in
Grundhoefer's complaint support a reasonable inference that when the Sorins filed the wrongful
death suit they did not have an honest belief at the time that Grundhoefer was guilty of the
offense, but instead had another motive for filing. Therefore, for purposes of a section 2-615
motion to dismiss, Grundhoefer's pleadings stated facts supporting her allegation that the Sorins
lacked probable cause when they filed the wrongful death suit. The trial court erred in finding
that Grundhoefer did not adequately plead this element of her malicious prosecution claim.
¶ 16 Our dissenting colleague would affirm the trial court's dismissal of the malicious
prosecution count stating, "I find that they [(Sorins)] had an honest and sound suspicion that a
claim against Grundhoefer was meritorious." Infra ¶ 31. Determining that question of fact is
in the future for the trial court judge or jury. When reviewing a trial court's dismissal pursuant
to section 2-615 of the Code, the motion "does not raise affirmative factual defenses but alleges
only defects on the face of the complaint." Bryson v. News America Publications, Inc., 174 Ill.
2d 77, 86 (1996). Further, although the allegations in the Sorins' suit may allege probable
cause, that in itself cannot support a section 2-615 dismissal of Grundhoefer's malicious
prosecution claim where she alleged the Sorins filed the suit for improper reasons. "[W]here
the circumstances giving rise to an alleged malicious prosecution are in dispute, the appropriate
venue to resolve that dispute is before a jury and not by a court as a matter of law" especially if
the dispute involves a question of credibility." Howard, 378 Ill. App. 3d at 151.
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¶ 17 We next review whether Grundhoefer suffered special damages arising from the
proceedings. The trial court below found that Grundhoefer failed to plead sufficient facts
showing she suffered "special injury over and above the ordinary expense and trouble in
defending a lawsuit." It reasoned that Grundhoefer's claimed injuries, such as the damage to
her professional reputation and the necessity of informing her employer, her malpractice
insurance carrier, and the Department of Financial and Professional Regulation, of the wrongful
death suit filed against her, was found "inadequate" to meet the requirements of special injury by
our supreme court in Bank of Lyons v. Schultz, 78 Ill. 2d 235, 239 (1980).
¶ 18 Lyons, however, did not involve an underlying claim alleging medical malpractice as we
have here. Section 2-109 of the Code provides that in "cases alleging malicious prosecution
arising out of proceedings which sought damages for injuries or death by reason of medical,
hospital, or other healing art malpractice, the plaintiff need not plead or prove special injury to
sustain his or her cause of action." 735 ILCS 5/2-109 (West 2012). In Miller v. Rosenberg,
196 Ill. 2d 50, 63 (2001), our supreme court upheld the constitutionality of this statutory
provision, noting that there had been a crisis in the area of medical malpractice and the
legislature passed certain provisions "as a disincentive for filing frivolous suits." (Internal
quotation marks omitted.) The General Assembly intended the provision to increase the
availability of filing a malicious prosecution claim for medical professionals as a means of
punishing and discouraging the filing of unfounded medical malpractice cases. Id. Here, the
Sorins' underlying suit alleged medical malpractice against Grundhoefer in prescribing Ambien
to David. Pursuant to section 2-109, Grundhoefer need not plead special injury as an element
of her malicious prosecution complaint and the trial court erred in finding that she did not
sufficiently plead this element. Since we find that Grundhoefer's second amended complaint
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sufficiently pled the elements of absence of probable cause and special damages, it was error to
grant the Sorins' motion to dismiss the count alleging malicious prosecution.
¶ 19 Grundhoefer also argues on appeal that the trial court erred in dismissing the defamation
per se counts of her complaint. The arguments on this issue in Grundhoefer's brief, however,
contain no citation to supporting authority in violation of Illinois Supreme Court Rule 341(h)(7)
(eff. Feb. 6, 2013) (arguments in briefs "shall contain the contentions of the appellant and the
reasons therefor, with citation of the authorities and the pages of the record relied on").
Therefore, pursuant to Rule 341(h)(7), Grundhoefer has forfeited review of this issue on appeal.
¶ 20 Even on the merits, Grundhoefer does not prevail. In order to state a claim for
defamation, Grundhoefer must plead facts showing that the defendant made a false statement, the
defendant made an unprivileged publication of the false statement to a third party, and the
publication caused her to suffer damages. Solaia Technology, LLC, v. Specialty Publishing Co.,
221 Ill. 2d 558, 579 (2006). However, if a statement questions the professional integrity of the
plaintiff, it qualifies as defamation per se. Zych v. Tucker, 363 Ill. App. 3d 831, 834 (2006).
If the plaintiff pleads defamation per se arising from such a statement, she need not plead or
prove actual damage to her reputation to recover since the law presumes injury in this situation.
Bryson, 174 Ill. 2d at 87.
¶ 21 Grundhoefer acknowledges that the filing of the wrongful death suit is an absolute
privilege not subject to defamation per se claims. See Malevitis v. Friedman, 323 Ill. App. 3d
1129, 1131 (2001). She alleges, however, that the Sorins and/or Roche defendants wrongfully
publicized the contents of the litigation to the Chicago Sun-Times. Grundhoefer alleged that
the Sorins, "upon information and belief," personally or through Roche, "communicated or
otherwise published" the allegations of fact and circumstances contained in the wrongful death
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suit to "a reporter, journalist, writer, employee, representative and/or agent of the Chicago
Sun-Times."
¶ 22 In Green v. Rogers, 234 Ill. 2d 478 (2009), our supreme court addressed the issue of what
constitutes a sufficient pleading in a defamation per se claim. It determined that since a claim
for defamation per se need not allege actual damages, the plaintiff must plead such claims "with
a heightened level of precision and particularity" in order to protect against baseless complaints
and to protect defendants from harm to their reputations based on charges of serious wrongdoing.
Id. at 494-95. The supreme court did not favor the use of "upon information and belief"
(internal quotation marks omitted) language in the pleadings, noting that the pleadings "must
plead the relevant facts on something more than [plaintiff's] mere 'belief.' " Id. at 495.
However, it found that pleadings based "upon information and belief" could survive dismissal if
the plaintiff sufficiently pleads the factual basis informing the plaintiff's belief. Id.
¶ 23 Here, Grundhoefer supported her claim that the Sorins and/or Roche publicized the
wrongful death allegations with the fact that the article referred to Grundhoefer as an
anesthesiologist (which she is), but the wrongful death claim merely referred to her as a licensed
medical professional. The inclusion of this additional fact led Grundhoefer to conclude that "a
party with knowledge (i.e. the Sorins) made the Chicago Sun-Times aware of the complaint."
However, as the trial court below and defendants noted, the wrongful death suit filed in the
circuit court of Cook county was available to the public and a reporter for the Chicago
Sun-Times could have found the case simply by searching court records. Furthermore,
although Grundhoefer argues that the article referred to her as an anesthesiologist where the
wrongful death suit referred to her only as a licensed medical professional, that information was
available simply by conducting a search of Grundhoefer on the Internet. The article itself also
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does not indicate whether the author spoke to someone who provided the information contained
in the article. In fact, the article indicates otherwise, stating on the bottom of the page that
"[n]either the Sorins nor their attorney could be reached." Since Grundhoefer does not plead
what was said to the Chicago Sun-Times, when the statement was made, specifically to whom at
the Chicago Sun-Times the statement was made, or how it was made, we find that her pleadings
do not allege sufficient facts to state a cause of action for defamation per se and the trial court
properly dismissed these counts. See also Moore v. People for the Ethical Treatment of
Animals, Inc., 402 Ill. App. 3d 62, 74 (2010) (where the plaintiff's complaint failed to plead what
was said to defendant, when the statement was made to defendant, to whom the statement was
made, and in what manner the statement was made, the plaintiff did not plead the substance of
the statement "with sufficient precision and particularity" and thus "failed to adequately state a
cause of action for defamation per se").
¶ 24 For the foregoing reasons, we affirm the trial court's dismissal of the defamation per se
counts, but reverse the dismissal of the count pertaining to malicious prosecution and remand for
further proceedings.
¶ 25 Affirmed in part and reversed in part; cause remanded.
¶ 26 JUSTICE CONNORS, dissenting.
¶ 27 I respectfully dissent. I would affirm the trial court's dismissal of all counts, including the
count pertaining to malicious prosecution.
¶ 28 There are five elements for this cause of action as stated by the majority. It is agreed that
the third element of a cause of action for malicious prosecution that must be pled with sufficient
facts to withstand a motion to dismiss is the "absence of probable cause for the proceeding." The
key word here is "absence." The allegation for the probable cause element has been defined as
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facts that would lead a person of ordinary care and prudence to have an honest and sound suspicion
that their claim is meritorious. Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 642 (2002).
Importantly, "[i]t is the state of mind of the one commencing the prosecution, and not the actual
facts of the case or the guilt or innocence of the accused, that is at issue" in deciding the element of
probable cause. (Internal quotation marks omitted.) Johnson v. Target Stores, Inc., 341 Ill. App.
3d 56, 72 (2003). Grundhoefer's amended complaint must allege the absence of probable cause.
Or, in other words, Grundhoefer must allege that a person of ordinary caution and prudence would
not be led to have an honest and sound suspicion that Grundhoefer would be liable in the wrongful
death suit. She fails to so allege.
¶ 29 Grundhoefer's relevant allegations attempting to show that the Sorins lacked probable
cause to initiate the proceeding in the wrongful death action pertain to the question of proximate
cause of David's death. Grundhoefer alleged "proximate cause was not, and could never be,
established." However, the question of probable cause to initiate a proceeding, and proximate
cause of death are two distinct questions. Moreover, it is not Grundhoefer's burden to prove that
she did not proximately cause David's death. In conflating the two concepts, Grundhoefer
convinces the majority that her second amended complaint sufficiently alleges the absence of
probable cause to initiate the wrongful death action. I disagree and instead agree with the trial
court's conclusion that "[e]ven a jury finding that David Sorin proximately caused his own death
would not unequivocally lead this Court to conclude that the Sorins Defendants lacked probable
cause to bring their wrongful death suit." (Emphasis added.)
¶ 30 In order to satisfy an "absence of probable cause" prong, Grundhoefer accuses the Sorins'
suit of concluding—without supporting facts—that David ingested Ambien and that the use of
Ambien caused his death. However, in their complaint, the Sorins alleged that Grundhoefer, as a
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physician, negligently prescribed Ambien to the decedent knowing that he suffered from a serious
life-threatening side effect of sleepwalking when he took the drug. Moreover, the Sorins alleged
that there was a prior incident when the decedent, after ingesting Ambien, engaged in
sleepwalking and other dangerous activity.
¶ 31 These allegations highlight the Sorins' beliefs at the time they initiated their wrongful death
suit. I find that they had an honest and sound suspicion that a claim against Grundhoefer was
meritorious. Grundhoefer's amended complaint cannot ignore this fact by calling that suspicion a
mere "conclusion."
¶ 32 Furthermore, the fact that Grundhoefer's amended complaint contains other, possible
"proximate causes" for David's death is not part of a proper analysis. For example, Grundhoefer's
allegation that the decedent was the cause of his own death does not enter into any analysis
because it does not speak to the Sorins' beliefs upon commencing the prosecution. This version of
events is Grundhoefer's perspective and does not reflect the state of mind of the Sorins. The only
issue is whether the complainants had an honest suspicion that Grundhoefer was liable in a
wrongful death action, not whether there were possible additional proximate causes of the death of
their son.
¶ 33 Likewise, Grundhoefer's allegation that the Sorins filed their wrongful death action to gain
leverage in the probate proceeding does not negate the Sorins' honest suspicion that Grundhoefer
was negligent in dispensing the Ambien to David Sorin. Again, the only consideration for us is
the state of mind of the Sorins at the time of the filing of their action. Johnson v. Target Stores,
Inc., 341 Ill. App. 3d 56, 72 (2003). The fact that Grundhoefer is able to allege and include
other, possible reasons for the filing of the wrongful death suit does not negate the fact that she is
unable to show the "absence" of probable cause at the time the Sorins filed their complaint.
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¶ 34 In its analysis, the majority agrees with and cites Johnson but then, in paragraphs 14
and 15, goes on to consider the allegations in Grundhoefer's amended complaint which, as
discussed herein, is not a proper analysis of this issue. I would affirm the trial court's dismissal of
the malicious prosecution count of Grundhoefer's complaint.
¶ 35 For the above reasons, I would affirm the trial court on all counts.
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