FIRST DIVISION
November 8, 2010
No. 1-09-3478
ROBERT J. STEIN III, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
CLINTON A. KRISLOV and )
KRISLOV AND ASSOCIATES, LTD., ) The Honorable
) Allen S. Goldberg,
Defendants-Appellants. ) Judge Presiding.
JUSTICE LAMPKIN delivered the opinion of the court:
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 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
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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
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(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
1
Plaintiff’s second amended complaint is not relevant to
this appeal.
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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.
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., Nos. 1-07-1469, 1-07-
3433 cons. (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
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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, 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
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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.]”
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Almgren, 162 Ill. 2d at 210. 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, 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. Temporary restraining orders and
orders staying or denying the stay of proceedings are reviewable.
In re A Minor, 127 Ill. 2d at 260-61. In addition, review may be
taken from orders compelling arbitration (Glazer’s Distribution
of Illinois, Inc. v. NWS-Illinois, LLC, 376 Ill. App. 3d 411,
423, 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
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publish the name of a minor involved in the proceeding (In re A
Minor, 127 Ill. 2d at 261). In contrast, denials of motions to
dismiss are not reviewable. See, e.g., Murges v. Bowman, 254
Ill. App. 3d 1071, 1084, 627 N.E.2d 330 (1993); In re Petition of
Filippelli, 207 Ill. App. 3d 813, 817-18, 566 N.E.2d 412 (1990);
Rotary Club of Chicago v. Harry F. Shea & Co., 120 Ill. App. 3d
988, 994, 458 N.E.2d 1002 (1983); People ex rel. Fahner v.
Community Hospital of Evanston, 108 Ill. App. 3d 1051, 1056-57,
440 N.E.2d 200 (1982); Lester Witte & Co. v. Lundy, 98 Ill. App.
3d 1100, 1103, 425 N.E.2d 1 (1981).
We recognize that the meaning of “injunction” should be
construed broadly (In re A Minor, 127 Ill. 2d at 261); however,
the motion to dismiss in this case does not constitute an
injunction. Defendants were not required to do anything or
forced to refrain from anything as a result of the trial court’s
order denying their motion to dismiss. Defendants were not
restrained in their speech where the trial court issued no
directive regarding defendants’ ability to speak about the case.
In its order, the trial court simply concluded that the Act did
not apply to the case at bar because the newly created immunity
could not be applied retroactively. Defendants retain the
ability to defend Krislov’s actions in the underlying lawsuit
where they can assert the same arguments in defense of Krislov’s
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letter despite the lack of immunity from the Act.
Although we are not required to follow decisions of other
districts (People v. Riley, 209 Ill. App. 3d 212, 568 N.E.2d 74
(1991)), we agree with the Fifth District in Mund v. Brown, 393
Ill. App. 3d 994, 913 N.E.2d 1225 (2009),2 insofar as it disputed
the plaintiff’s argument that the denial of a motion to dismiss
under the Act is essentially an injunction against the pursuit of
a SLAPP (Mund, 393 Ill. App. 3d at 997). The Mund court said
“[u]nder [the plaintiff’s] analysis, every motion to dismiss
would be a request for an injunction to stop a lawsuit and would
be immediately appealable.” Mund, 393 Ill. App. 3d 997. Simply
put, the motion to dismiss here was not injunctive in nature.
We, therefore, conclude that jurisdiction was not provided
through Rule 307(a)(1).
Notwithstanding, defendants contend that subject-matter
jurisdiction is conferred by section 20(a) of the Act. Section
20(a) of the Act provides:
“On the filing of any motion [which includes ‘any
motion to dismiss, for summary judgment, or to strike,
2
There are no decisions contrary to Mund and leave to appeal
was denied by the supreme court (Mund v. Brown, 234 Ill. 2d 525,
920 N.E.2d 1074 (2009)); therefore, the holding remains
undisturbed.
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or any other judicial pleading filed to dispose of a
judicial claim’ (735 ILCS 110/10 (West Supp. 2007))] as
described in Section 15 [‘to dispose of a claim in a
judicial proceeding on the grounds that the claim is
based on, relates to, or is in response to any act or
acts of the moving party in furtherance of the moving
party’s rights of petition, speech, association, or to
otherwise participate in government’ (735 ILCS 110/15
(West Supp. 2007))], a hearing and decision on the
motion must occur within 90 days after notice of the
motion is given to the respondent. An appellate court
shall expedite any appeal or other writ, whether
interlocutory or not, from a trial court order denying
that motion or from a trial court’s failure to rule on
that motion within 90 days after that trial court order
or failure to rule.” 735 ILCS 110/20(a) (West Supp.
2007).
We need not determine whether it was, in fact, the intent of
the legislature to confer appellate jurisdiction following the
denial of a motion to dismiss pursuant to the Act. It is well
established that the supreme court is responsible for the rules
governing appeals, not the legislature. Chapman v. United
Insurance Co. of America, 234 Ill. App. 3d 968, 971 (1992).
“[W]here a rule of the supreme court on a matter within the
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court’s authority and a statute on the same subject conflict, the
rule will prevail.” Chapman, 234 Ill. App. 3d at 972, citing
O’Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281, 492
N.E.2d 1322 (1986). The Committee Comments for Rule 307
expressly state that the supreme court rules provide for “all
interlocutory appeals” in conjunction with article VI, section 6,
of the Illinois Constitution. 188 Ill. 2d R. 307, Committee
Comments. Therefore, appellate jurisdiction for interlocutory
appeals must originate from the supreme court rules.
We previously determined that the denial of the motion to
dismiss in this case was not a final judgment and not injunctive
in nature. Though we recognize that statutes are presumed
constitutional, if the legislature was attempting to provide
appellate jurisdiction from a nonfinal order not falling within
the dictates of Rule 307, a constitutional conflict would exist.
Mund, 393 Ill. App. 3d at 997. “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. [Citation.] Thus, a
statute that claims to give a right to an interlocutory appeal
not covered by supreme court rules or to give the appellate court
jurisdiction over that appeal would violate article VI, section
6, of the constitution. Such a statute also would violate the
separation-of-powers clause in article II, section 1, of the
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constitution ***.” Mund, 393 Ill. App. 3d at 997-98; see
Almgren, 162 Ill. 2d at 213. Appellate jurisdiction is,
therefore, not conferred by section 20(a) of the Act.
We note that we granted defendants leave to cite the
additional authority of Shoreline Towers Condominium Assoc. v.
Gassman, Nos. 1-08-2438, 1-09-2180 cons. (September 30, 2010).
After reviewing Gassman, we find the case did not address the
question of jurisdiction under the Act. We, therefore, find that
Gassman is of no assistance to our decision.
Finally, we decline defendants’ request to adopt the federal
“collateral order doctrine.” The collateral order doctrine was
announced by the Supreme Court in Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1948),
and is designed to address a limited set of nonfinal orders that
“finally determine claims of right separable from, and collateral
to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is
adjudicated.” Cohen, 337 U.S. at 546, 93 L. Ed. at 1536, 69 S.
Ct. at 1225-26. It is beyond our authority to adopt the federal
collateral order doctrine where no such doctrine exists under
Illinois law and no Illinois courts have done so in the 60 years
since the doctrine was pronounced. See People v. Miller, 35 Ill.
2d 62, 67, 219 N.E.2d 475 (1966).
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CONCLUSION
We dismiss this appeal for lack of jurisdiction.
Dismissed.
HALL, P.J., and HOFFMAN, J., concur.
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