Ciolino v. Simon

2020 IL App (1st) 190181

• Court: Appellate Court of Illinois
• Decided: February 19, 2021
• Docket: 1-19-0181
• Status: Published

Opinion

2020 IL App (1st) 190181 No. 1-19-0181

FIRST DIVISION March 16, 2020

PAUL J. CIOLINO, ) Appeal from the Circuit Court of ) Cook County Plaintiff-Appellant, ) ) v. ) ) ALSTORY SIMON, JAMES DeLORTO, TERRY ) No. 18 L 0044 A. EKL, JAMES G. SOTOS, MARTIN PRIEB ) WILLIAM B. CRAWFORD, ANITA ALVAREZ, ) ANDREW HALE, and WHOLE TRUTH FILMS, ) LLC, ) ) Honorable Christopher E. Lawler Defendants-Appellees, ) Judge Presiding

PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Justices Pierce and Walker concurred in the judgment and opinion.

OPINION

¶1 This case stems from one of the most famous murder cases in the recent history of our

state. The background of the case is gripping. It is no real surprise then that the events surrounding

the case have spurred a movie, a book, and other media attention. But that media attention is the

reason the parties are before the court today.

¶2 Plaintiff Paul Ciolino is suing several defendants for defamation and other causes of action

for the statements they made about his alleged involvement in framing a supposedly innocent man

for murder. The allegedly defamatory statements attributed to defendants are found in a book and

the movie it inspired. Despite that the case reads like a movie script, there has been no fairytale

ending for anyone involved. No. 1-19-0181

¶3 The subject of the appeal is a bit less engrossing than the overall subject matter of the case.

Here we are called to decide whether Ciolino’s claims arising from the publication of the allegedly

defamatory statements are barred by the statute of limitations. We hold that the claims against one

defendant are time barred, but that the remainder of the claims are not. Accordingly, we affirm in

part, reverse in part, and remand for further proceedings.

¶4 I. BACKGROUND

¶5 In 1982, Jerry Hillard and Marilyn Green were murdered in Washington Park in Chicago.

Anthony Porter was convicted for the murders and was sentenced to the death penalty. Professor

David Protess and other members of Northwestern University’s Innocence Project took an interest

in the case. Members of the Innocence Project reviewed evidence gathered by Porter’s defense

attorney during the case and they identified that another man, defendant Alstory Simon, was in the

area of the murders close to the time that they were committed. The Innocence Project began to

collect and evaluate evidence and, at some point, came to believe that Simon committed the

murders, not Porter.

¶6 Plaintiff Paul Ciolino was employed as a private investigator and did work for the

Innocence Project. Ciolino and another Innocence Project investigator traveled to Milwaukee to

meet with Simon. Simon claims that Ciolino arrived at his home in Milwaukee, claiming to be a

police officer from Illinois. Ciolino was armed with a handgun. He allegedly informed Simon that

his team had developed evidence that pointed to Simon as the guilty party in the Washington Park

murders. Simon was a drug addict and he maintains that he was intoxicated at the time of Ciolino’s

visit.

¶7 Ciolino allegedly told Simon that he had secured sworn statements from Simon’s ex-wife

Inez Jackson, and from others in which they averred that Simon committed the murders. Ciolino

2 No. 1-19-0181

showed Simon the statements. Ciolino also showed Simon a video that the Innocence Project had

made using a paid actor. The actor in the video stated that he was an eyewitness to the murders

and that he saw Simon kill Hillard and Green. Simon also viewed video of a news report in which

his ex-wife, Inez Jackson, claimed that she was with Simon when he committed the murders in

Washington Park. Simon maintains that Ciolino promised him that he would receive only a short

prison sentence if he confessed and that he would receive large sums of money from book and

movie deals because of the intense publicity of the case.

¶8 As the meeting progressed, Ciolino allegedly informed Simon that he and his colleague

were not actually police officers, but that they were members of the Innocence Project. Simon

claims that Ciolino then told him that Ciolino and Protess would secure a lawyer to represent him

in the murder case and that they would do whatever else was necessary to ensure that he would

receive no more than a couple years in jail if he confessed. Ciolino then allegedly informed Simon

that the police were imminently on their way from Chicago to arrest him, and that they were trying

to help him, but that the only way Simon could avoid the death penalty was to provide a videotaped

confession before the police arrived. Ciolino allegedly told Simon that confessing at that moment

was his one and only chance to help himself. Simon provided a videotaped confession.

¶9 Armed with Simon’s videotaped confession and the statements from Simon’s ex-wife and

her nephew, Walter Jackson, the Innocence Project undertook to free Porter from prison. After a

petition was filed and the proceedings progressed, Porter’s conviction was vacated. The Cook

County State’s Attorney simultaneously empaneled a grand jury that indicted Simon for the

murders.

¶ 10 Ciolino allegedly followed through on his promise to secure an attorney to represent

Simon. Simon, in fact, retained attorney Jack Rimland to represent him in the murder case. Jack

3 No. 1-19-0181

Rimland was an attorney in Chicago that shared office space with Ciolino. Rimland purportedly

convinced Simon to plead guilty by telling Simon that he needed to make the deal in order to avoid

the death penalty or life in prison. Rimland, on Simon’s behalf, did not challenge the confession

that Simon gave to Ciolino nor did he present any other evidence to the court, including the

evidence that implicated Porter in the first place and led to his conviction.

¶ 11 Simon further claims that Rimland told him to apologize to the victims’ families in order

to make his confession seem legitimate. During the time Rimland was representing Simon,

Rimland maintained contact with his officemate Ciolino. For example, Rimland presented an

award to Ciolino and other Innocence Project members for the work they did to overturn Porter’s

conviction even though he was concurrently representing Simon in a case for the same murders.

¶ 12 Simon eventually did plead guilty to the murders. He was sentenced to 37 years in prison.

At his sentencing hearing, Simon apologized to the victims’ families. Simon continued to claim

responsibility for the murders in a televised news interview after his guilty plea. Simon also wrote

letters to several individuals, including to Anthony Porter, apologizing for committing the murders.

Nonetheless, many people did not believe that Simon was responsible for the crimes. Another

private investigator, defendant James DeLorto, who did not believe Simon’s confession and was

skeptical of the Innocence Project’s involvement, independently began to investigate Simon’s case

for the potential that he was innocent of the crimes.

¶ 13 Not surprisingly, the case generated significant publicity, including publicity generated by

Ciolino and other members of the Innocence Project giving interviews and making statements to

the press. Anthony Porter’s exoneration for the Washington Park murders led to Governor George

Ryan calling for a moratorium on the death penalty in Illinois.

¶ 14 Ciolino was interviewed on television following Simon’s conviction. Ciolino described

4 No. 1-19-0181

the tactics he used in securing Simon’s confession. Ciolino acknowledged that he used a paid actor

to make a video who identified Simon as the shooter. Ciolino stated that, after Simon was

confronted with the video and other evidence, Simon just “gave up.” Ciolino stated that he and his

partner “just bull rushed [Simon] and mentally he couldn’t recover.” Ciolino stated that, as a

private investigator, “I don’t have any rules. The Supreme Court says I can lie, cheat, do anything

I want, to get him to say what I want him to say.” Also in that vein, Protess published a book in

which he explained how, on another occasion, Ciolino posed as Hollywood producer Jerry

Bruckheimer and offered a witness a movie deal in exchange for the witness to change testimony

he had previously given.

¶ 15 Simon filed a pro se petition for postconviction relief claiming that his confession to

Ciolino was involuntary and that he received ineffective assistance of counsel from Rimland. The

court denied Simon’s pro se petition.

¶ 16 Subsequently, defendants Terry Ekl and James Sotos undertook to represent Simon, and

they filed a successive postconviction petition on his behalf. In his successive petition, Simon

asserted an actual innocence claim and provided new evidence. The new evidence that Simon

provided in support of his petition was that two of the witnesses that had implicated Simon in the

murders, his ex-wife Inez Jackson and her nephew Walter Jackson, recanted their statements.

¶ 17 Inez Jackson and Walter Jackson explained that they had implicated Simon based on

promises from David Protess of the Innocence Project. Inez Jackson reportedly had serious drug

and alcohol problems and was allegedly given food, cash, alcohol, and other things of value by

Protess and his team. In an affidavit, Walter Jackson admitted that he provided false evidence

against Simon for money and for help with his own legal problems, and that he encouraged Inez

Jackson, his aunt, to also provide false testimony in order to help with his legal troubles. It was

5 No. 1-19-0181

additionally brought to light for the first time in Simon’s successive postconviction proceedings

that Inez Jackson had provided a statement to the police when they were originally investigating

the murders in which she stated that she was with Simon the night of the murders and that he did

not commit them.

¶ 18 Some concerns were raised about the Innocence Project’s conduct in this case and in other

cases. After Northwestern University conducted a court-ordered internal investigation into the

controversial journalistic and investigative practices of the Innocence Project under Protess, he

was separated from the University. Once the controversial practices of the Innocence Project were

revealed, defendant Anita Alvarez, the Cook County State’s Attorney, agreed to revisit Simon’s

case. After a year-long investigation in which more than 100 witnesses were interviewed, the

State’s Attorney Office concluded that, in light of the unlawful investigative conduct by Ciolino

and Protess and the inadequate representation that Simon received, the case was so tainted and the

convictions so called into doubt, that Simon’s convictions could not stand. The State’s Attorney

Office moved to formally abandon all charges against Simon, and the circuit court granted the

motion and vacated Simon’s convictions. Simon was released from prison after serving 15 years.

¶ 19 At a news conference announcing the decision to drop the charges against Simon, Alvarez,

as State’s Attorney, stated that the “investigation by David Protess and his team involved a series

of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement

standards, they were potentially in violation of Mr. Simon’s constitutionally protected rights.”

Alvarez continued, expressing that, in her view, “the original confession, made by Alstory Simon

and the coercive tactics that were employed by investigator Ciolino have tainted this case from the

outset and brought into doubt the credibility of many important factors.” She concluded that “[t]he

bottom line is that the investigation conducted by Protess and private investigator Ciolino, as well

6 No. 1-19-0181

as the subsequent legal representation of Mr. Simon, were so flawed that it is clear that the

constitutional rights of Mr. Simon were not scrupulously protected as our law requires. This

conviction therefore cannot stand.”

¶ 20 Thereafter, Simon sought a certificate of innocence. The circuit court denied Simon’s

petition for a certificate of innocence under the statute governing such proceedings because the

statute requires the petitioner to prove, among other things, that the petitioner did not, by his own

conduct, voluntarily bring about his conviction. See 735 ILCS 5/2-702(g)(4) (West 2016). The

circuit court found that Simon had, in fact, brought about his own conviction by confessing and

by pleading guilty. However, the circuit court went further, finding that Simon “had certainly

satisfied his burden” of demonstrating his innocence by a preponderance of the evidence.

¶ 21 In explaining its finding that Simon had demonstrated his innocence, the circuit court stated

that it accepted Simon’s allegation that he had gone along with Protess and Ciolino’s plan to free

Porter and to frame himself. The circuit court further accepted that Simon had done so based upon

Ciolino’s promises that he would receive a short prison sentence and would receive large sums of

money when he was freed from prison with Protess’s assistance. The circuit court credited Simon’s

allegations that Ciolino had impersonated a police officer, that Simon was threatened with the

death penalty if he did not confess, and that Ciolino promised Simon money from book and movie

deals and a short prison sentence if he confessed. In conclusion, the court noted, “it is more likely

true than not that [Simon] is actually innocent of the murders of Hillard and Green.”

¶ 22 On February 17, 2015, Simon filed a federal civil rights lawsuit for malicious prosecution

against Ciolino, Northwestern University, David Protess, and Jack Rimland. In his suit, Simon

sought damages for the parties’ respective roles in his allegedly wrongful conviction. The

allegations made in Simon’s federal suit are consistent with those set forth above.

7 No. 1-19-0181

¶ 23 About three years before Simon was released from prison, in the Spring of 2011, defendant

William Crawford wrote a document he titled “Chimera” that set forth his narrative that Simon

was framed by the Innocence Project. “Chimera” was not officially published, but Crawford claims

that he uploaded a copy of it to the internet. Then, while Simon’s federal case against the Innocence

Project parties was ongoing, on June 9, 2015, Crawford published a book entitled Justice

Perverted: How the Innocence Project of Northwestern University’s Medill School of Journalism

Sent an Innocent Man to Prison. Justice Perverted has the same subject matter and has many

verbatim passages from “Chimera.” The book makes the case that Ciolino, Protess, and others

framed Simon for the Washington Park murders in order to secure the release of Porter who was

on death row. The book further makes the case that the Innocence Project had a more

Machiavellian motive for securing Porter’s release: to put an end to the death penalty in Illinois.

¶ 24 Crawford’s book, Justice Perverted, inspired a documentary film made by defendants

Andrew Hale and Whole Truth Films entitled “A Murder in the Park.” The documentary features

interviews and commentary from defendants Simon, Hale, Ekl, Sotos, Delorto, Crawford, and

Alvarez. The documentary has the same theme as Justice Perverted, and the film’s subjects claim

that Ciolino engaged in a variety of crimes to secure a false confession from Simon. Both the book

and the film track closely to the allegations made by Simon in his postconviction proceedings,

some of which have been found credible in the courts and some of which have been admitted by

Ciolino. The film’s thesis is that Protess and the Innocence Project wanted to end the death penalty

in Illinois and that they were willing to use any means to accomplish that objective—including

framing an innocent man for murder.

¶ 25 Ciolino has his own theory about the motives behind the individuals on the other side of

the dispute. Ciolino contends that the whole effort to free Simon was an undertaking aimed at

8 No. 1-19-0181

discrediting the Innocence Project and the wider wrongful conviction movement as a whole. The

narrative Ciolino advances begins with defendant DeLorto. DeLorto has a law enforcement

background and has made negative statements about the work of Protess in the past. During the

course of his work as a private investigator, DeLorto worked with attorneys Ekl and Sotos. Ciolino

maintains that Ekl and Sotos undertook to represent Simon, with DeLorto as their investigator,

“with any eye toward using the case to discredit the Porter exoneration and smear David Protess

and Northwestern University.”

¶ 26 Ciolino contends that defendant Crawford became involved with DeLorto and with

Simon’s lawyers, Ekl and Sotos, and wrote Justice Perverted to disseminate their false narrative

that Simon was framed by the Innocence Project. Ciolino further contends that DeLorto and his

cohorts enlisted defendant Martin Preib to help them combat the wrongful conviction movement.

Preib began to author a blog entitled “Crooked City: The Blog About the Wrongful Conviction

Movement.” Ciolino claims that Prieb used the blog to circulate false and misleading narratives

about exonerations, including the Porter exoneration. It is Ciolino’s position that Crawford’s book,

Hale’s documentary, and Prieb’s blog were all conceived as part of a conspiracy to disrupt the

“innocence industry.”

¶ 27 Similarly, Ciolino contends that Anita Alvarez dismissed the charges against Simon

because she harbored resentment towards Protess and the Innocence Project because of her

supposed pro-law-enforcement leanings and because Protess had been critical of her in the past.

Ciolino opines that Alvarez had been nationally embarrassed in another case in which

Northwestern was involved and that Alvarez had become dead set on doing anything she could to

discredit Protess. Ciolino goes as far as to say that Alvarez “release[d] a murderer to settle a score.”

¶ 28 Defendants Hale and Whole Truth Film’s documentary “A Murder in the Park” premiered

9 No. 1-19-0181

on November 17, 2014 at DOC NYC in New York. DOC NYC bills itself as “America’s largest

documentary film festival.” Several defendants in this case attended the film’s premiere, and,

around this time, several publications of varying renown wrote about the film’s premiere or the

film’s existence. “A Murder in the Park” was also shown at the Cleveland International Film

Festival which took place from March 24 to 26th in 2015.

¶ 29 On April 27, 2016, Ciolino filed a counterclaim in Simon’s federal case. Ciolino

countersued Simon, and he interposed claims against Alvarez, Hale, Ekl, Sotos, DeLorto, Prieb,

Crawford, and Whole Truth Films. Ciolino sought damages against the defendants therein for

defamation, false light, intentional infliction of emotional distress, and conspiracy. Ciolino’s

claims stemmed from the statements those defendants made in “A Murder in the Park” and Justice

Perverted. Ciolino contends that those publications advance “an outrageous and demonstrably

false claim” that Protess and Ciolino framed Simon, an innocent man, “so that death row inmate

Anthony Porter could become a ‘poster boy’ for the bid to end executions in Illinois.”

¶ 30 The federal district court dismissed Ciolino’s counterclaim on January 3, 2017. The district

court found that Ciolino’s counterclaim was not a compulsory counterclaim under the Federal

Rules of Civil Procedure (see Fed. R. Civ. Pro. 13(a) (West 2016)) and that the court did not have

supplemental jurisdiction over the counterclaim because the “counterclaim [did] not arise out of

the same transaction or occurrence as Simon’s malicious prosecution claim.” Simon v.

Northwestern University, No. 15-CV-1433, 2017 WL 25173, at *5 (N.D. Ill. Jan. 3, 2017). The

court noted that, even if it could exercise supplemental jurisdiction over the counterclaim, it would

decline to do so. Id.

¶ 31 Subsequently, Simon reached a settlement for his malicious prosecution claim with

Northwestern University and Protess. Simon then voluntarily dismissed Ciolino as a defendant.

10 No. 1-19-0181

¶ 32 A day less than a year after Ciolino’s counterclaim in Simon’s federal case was dismissed,

on January 2, 2018, Ciolino filed this case. Ciolino raises the same claims against the same parties

in this case as he did in his counterclaim in federal court. This case is, in substance, a refiling of

the counterclaim that was dismissed for lack of jurisdiction in federal court.

¶ 33 In this case, Count I of Ciolino’s complaint is for defamation against all defendants except

for Prieb. That count is really based upon all of the content and statements contained in “A Murder

in the Park.” Count II is for defamation against Crawford only. That count is based upon

Crawford’s book Justice Perverted and the statements he makes therein. Count III is for

defamation against Prieb only. That count is based upon the statements Prieb made on his blog

“Crooked City.” Count IV is for false light publicity against all defendants. Count V is for

intentional infliction of emotional distress against all defendants. And Count VI is for civil

conspiracy and seemingly alleges the involvement of all defendants.

¶ 34 Defendants all moved to dismiss the respective claims against them. The trial court granted

all the motions to dismiss, finding that the claims asserted by Ciolino are time barred. Ciolino filed

this appeal.

¶ 35 II. ANALYSIS

¶ 36 The circuit court granted all defendants’ motions to dismiss on the basis that the claims

Ciolino filed against them are barred by the statute of limitations. Defendants all brought their

motions to dismiss, at least in part, under section 2-619 of the Illinois Code of Civil Procedure

which provides for the involuntary dismissal of a claim based upon certain defects or defenses.

See 735 ILCS 5/2-619 (West 2016).

¶ 37 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint. 735 ILCS

11 No. 1-19-0181

5/2-619 (West 2016). The purpose of a section 2-619 motion to dismiss is to dispose of issues of

law and easily proved issues of fact at the outset of the litigation. Jones v. Brown-Marino, 2017 IL

App (1st) 152852, ¶ 20. Although a section 2-619 motion to dismiss admits the legal sufficiency

of a complaint, it raises defects, defenses, or some other affirmative matter appearing on the face

of the complaint or established by external submissions, that defeat the plaintiff’s claim. Ball v.

County of Cook, 385 Ill. App. 3d 103, 107 (2008). The failure to file a claim within an applicable

statute of limitations is one of the proper bases for dismissal under section 2-619. See 735 ILCS

5/2-619(a)(5) (West 2016). We review the trial court’s decision to grant a motion to dismiss de

novo. In re Marriage of Wojcik, 2018 IL App (1st) 170625, ¶ 17.

¶ 38 To begin, it is helpful to set forth the relevant dates that provide a roadmap for this appeal—

providing the ultimate criteria for determining whether the claims are time barred. The first

relevant date for purposes of the defamation case is Crawford’s completion of “Chimera.” That

document was completed in Spring 2011. “A Murder in the Park,” the documentary film at issue

in the case, premiered to an audience for the first time in New York on November 17, 2014. Justice

Perverted was published June 9, 2015. The relevant blog posts allegedly written by Prieb were

posted between June 2015 and April 2016. Ciolino’s federal court counterclaim was filed April

27, 2016 and dismissed on January 3, 2017. And Ciolino’s complaint in this case was filed January

2, 2018.

¶ 39 We note here that the operative filing date for Ciolino’s claims in this case is April 27,

2016. The reason that date is the operative date is because the Illinois Savings Statute is applicable.

The Illinois Savings Statute states that where an action is dismissed by a United States District

Court for lack of jurisdiction, then, regardless of whether the statute of limitations has run during

the pendency of the action, the plaintiff may commence a new action in state court within one year

12 No. 1-19-0181

of the dismissal or within the remaining period of limitation, whichever is greater. 735 ILCS 5/13-

217 (West 2016); see also Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 105-06

(1996). Ciolino timely refiled his claims in state court within one year of the claims being

dismissed for lack of jurisdiction in federal court. So the question before us now is whether the

claims were timely filed when Ciolino filed them in federal court on April 27, 2016.

¶ 40 The main issue before us is whether defendants are entitled to dismissal on the basis that

“A Murder in the Park” premiered more than a year before Ciolino filed his claims in federal court.

For purposes of logical flow, however, we begin with Ciolino’s claims against Crawford for his

publication of Justice Perverted. We will then address the primary issue on appeal—whether the

defamation claims accrued when “A Murder in the Park” premiered or at any time thereafter but

more than a year before Ciolino filed suit. Then, because the claims against Alvarez require an

analysis separate from that required for the claims against the other defendants, we will turn to the

claims against her which relate to comments she made in a news conference that were re-aired in

“A Murder in the Park.” We will then address defendant Prieb’s arguments and all of the other

defendants’ alternative arguments regarding why we should affirm. Finally, we will move to the

propriety of the trial court’s dismissal of Ciolino’s claims for intentional infliction of emotional

distress and conspiracy.

¶ 41 A. Defamation and False Light

¶ 42 Ciolino’s principal claims are for defamation and false light publicity. In Illinois, the statute

of limitations for a claim for defamation is one year from the point that the cause of action accrued.

735 ILCS 5/13–201 (West 2016); Moore v. People for the Ethical Treatment of Animals, Inc., 402

Ill. App. 3d 62, 73 (2010). Generally, in defamation cases, the cause of action accrues, and the

statute of limitation begins to run, on the date the allegedly defamatory statement is published.

13 No. 1-19-0181

Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 131-32

(1975). Similarly, an action for false light publicity has a one-year statute of limitations. 735 ILCS

5/13–201 (West 2016); Ludlow v. Northwestern University, 79 F. Supp. 3d 824, 841 (N.D. Ill.

2015). False light publicity claims accrue when the statements are made. Id.

¶ 43 1. Crawford–Justice Perverted

¶ 44 “Chimera,” its full title apparently being “Chimera–A Story Based on the Public Record,”

was written and completed by William Crawford in Spring 2011. Subsequently, Crawford wrote a

full-length book on the subject titled Justice Perverted: How the Innocence Project at

Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison. Justice

Perverted that was published on June 9, 2015. Crawford maintains that most of the statements in

Justice Perverted that Ciolino alleges to be defamatory are verbatim statements from “Chimera”

and that only minor alterations have been made to those statements that are not exact reproductions.

Thus, Crawford argues, Spring 2011 should be the point at which Ciolino’s claims accrued for

defamation based on the allegedly defamatory statements in Justice Perverted because that is the

point at which the statements were published in “Chimera.”

¶ 45 For defamation claims, Illinois applies the “single publication rule.” The single publication

rule is that “[n]o person shall have more than one cause of action for damages for libel or slander

or invasion of privacy or any other tort founded upon any single publication or exhibition or

utterance.” 740 ILCS 165/1 (West 2016). Under this rule, defamation and privacy actions are

complete at the time of the first publication, and any subsequent appearances or distributions of

copies of the original publication are of no consequence to the creation or existence of a cause of

action. Blair v. Nevada Landing Partnership, 369 Ill. App. 3d 318, 324-25 (2006).

¶ 46 Crawford points out that Ciolino’s own allegations in this case reveal that Crawford

14 No. 1-19-0181

“circulated [“Chimera”] to virtually every media outlet in the city.” Crawford suggests that the

statements that Ciolino alleges to be defamatory were, thus, published to those news outlets when

Crawford was trying to have his story printed. We have held that any act by which a defamatory

matter is communicated to someone other than the person defamed is a “publication.” Missner v.

Clifford, 393 Ill. App. 3d 751, 763 (2009) (citing Restatement (Second) of Torts § 577, Cmt i, at

201-02 (1977)). On this basis, Crawford posits that the statements were “published” to those to

whom he circulated “Chimera” with the purpose of trying to obtain a wider circulation.

¶ 47 We reject Crawford’s assertion that the statements in “Chimera” were, as a matter of law,

published when he allegedly shopped his story to media outlets in the city. There is no evidence

that anyone at those news outlets even read “Chimera,” let alone that they read the specific

statements that Ciolino now claims are defamatory. Whether a publication has occurred at all is a

question for the jury. Missner, 393 Ill. App. 3d at 763 (citing Restatement (Second) of Torts § 617,

Cmt. a, at 315 (1977)). The only support for Crawford’s position that “Chimera” was seen by

anyone other than him is Ciolino’s allegation that Crawford attempted to have the story

disseminated by media outlets in the city. There is no evidentiary support from Crawford,

including even an affidavit from him, to support a finding that he published “Chimera” or any

individual statement therein to anyone.

¶ 48 The single publication rule simply does not apply here. The supposed republication in this

case is not really a republication at all, it was the statements’ actual publication. Because there is

a question regarding whether “Chimera” and the statements therein were ever “published,” the

allegedly defamatory statements in Justice Perverted cannot be deemed to be re-airings of any

previously published defamatory statements such that they might benefit from the single

publication rule. Crawford even acknowledges, as he must, the many differences between

15 No. 1-19-0181

“Chimera” and Justice Perverted. Justice Perverted is far from a mere republication of “Chimera,”

it is a new, independent work. As far as the record in this case is currently constructed, there has

only been one publication of the allegedly defamatory statements in Justice Perverted, and that

publication occurred when Justice Perverted was published.

¶ 49 Crawford also states that he “placed [Chimera] on the internet” in 2011 when he completed

it. He argues that by putting “Chimera” on the internet in 2011 he published the statements therein

such that the statute of limitations for any claims related to those statements should have begun to

run in 2011. However, Crawford presented no evidence in support of his section 2-619 motion to

dismiss that he, in fact, posted “Chimera” to the internet in 2011. All we have is Crawford’s own,

unsworn assertion that he put the document on the internet: he does not detail where he posted it,

when it was posted, how it could be accessed or any other details about his supposed posting of

the document. At this stage, his unsupported assertions are insufficient to entitle him to dismissal.

Moreover, we do not even know if anyone read it. A communication of the allegedly defamatory

statement to a third party satisfies the publication requirement. Popko v. Continental Casualty Co.,

355 Ill. App. 3d 257, 264 (2005). But simply making a material available on some corner of the

internet does not mean that the material is “published” for purposes of a defamation claim.

Crawford’s argument on this point raises more questions than it answers—questions not suitably

resolved on a motion to dismiss.

¶ 50 2. Movie Premiere as Accrual Date

¶ 51 All defendants other than Prieb in some way argue that Ciolino’s claims against them

accrued when “A Murder in the Park” premiered at a film festival in New York. “A Murder in the

Park” premiered on November 17, 2014 at DOC NYC in New York. Defendants argue that Ciolino

was required to file claims arising from statements made in “A Murder in the Park” within one

16 No. 1-19-0181

year of that film’s premiere such that his April 27, 2016 filing was untimely. Ciolino, meanwhile,

argues that he did not know, nor could he reasonably have known, about the film’s premiere in

New York. He argues that he had one year to file his claims relating to “A Murder in the Park”

after it premiered in Chicago on July 15, 2015, so his April 27, 2016 filing was timely.

¶ 52 As stated above, the statute of limitations for defamation and false light claims generally

accrues at the point that the statements are published. Moore, 402 Ill. App. 3d at 73. While we

have previously acknowledged that there is some uncertainty about what circumstances should

cause us to apply the discovery rule in defamation cases, we have explained that we will not

ordinarily apply the discovery rule in defamation cases unless the publication is hidden, inherently

undiscoverable, or inherently unknowable. Peal v. Lee, 403 Ill. App. 3d 197, 207 (2010); see also

Tirio v. Dalton, 2019 IL App (2d) 181019, ¶ 69. Defamation via mass-media publications,

including magazines, books, newspapers, radio and television programs are not subject to the

discovery rule because they are readily accessible to the general public. Tom Olesker, 61 Ill. 2d at

137.

¶ 53 DOC NYC, where “A Murder in the Park” premiered, bills itself as “America’s largest

documentary film festival.” Several articles were written in publications about the premiere of “A

Murder in the Park” near the time that the film premiered. For example, before or at the time the

film premiered, marketing and promotional materials for “A Murder in the Park” appeared on

social media and on the websites of the national publications Variety and Fox News. Several

articles mentioning the film were also posted on the websites of local publications. Christopher

Rech, the producer of “A Murder in the Park,” submitted a declaration in support of the motions

to dismiss stating that the film was not concealed from the public in any way and, in fact, the film

was actively marketed and advertised in order to maximize public interest in the film.

17 No. 1-19-0181

¶ 54 Although Illinois courts have sometimes implied that the discovery rule does not apply to

defamation claims because the date of publication is the date that matters, it is clear that our

supreme court has not ascribed to such a bright-line rule. In fact, in the supreme court’s seminal

case on the issue, Tom Olesker, the court had “no hesitation” in applying the discovery rule to hold

that the plaintiff’s cause of action accrued when the plaintiff knew or should have known about

the existence of the allegedly defamatory material. Tom Olesker, 61 Ill. 2d at 136-37.

¶ 55 The Tom Olesker court distinguished the case before it from those in which the alleged

defamation was easily discoverable due to its mass media publication. Id. at 137. But when a

plaintiff does not know and cannot reasonably know about the existence of material defaming him,

the cause of action accrues at the time the plaintiff knows or should know that the defamatory

material exists. Id. at 136-37. The question before us is not whether the discovery rule can be

applied to a defamation claim, the question is whether, under the circumstances presented, the

nature of the publication was such that knowledge sufficient to trigger the statute of limitations

should be imputed to Ciolino because of the putative availability of the information.

¶ 56 The parties’ dispute, thus, turns on whether the premiere of “A Murder in the Park” in New

York, along with the attendant press coverage, was a sufficiently prominent medium that it could

be equated to a mass media publication that would proscribe the application of the discovery rule.

We find that, when construing the record in favor of Ciolino and viewing the circumstances in a

light most favorable to him, there is at least a question of fact regarding whether the film’s premiere

in New York was sufficient to start the limitations clock on his claims.

¶ 57 In Tom Olesker, the supreme court’s comment on when the discovery rule would not be

applicable for a defamation claim was for situations where “the publication has been for public

attention and knowledge and the person commented on, if only in his role as a member of the

18 No. 1-19-0181

public, has had access to such published information.” Id. at 138. Apparently neither Ciolino nor

anyone other than those in the theater on November 17, 2014 had access to the allegedly

defamatory statements that were published that day, or at least that is an unresolved fact question.

The film and its specific content were not released to the general public in any way. Unlike mass

media publications, that are available for anyone to obtain at any time, the premiere of “A Murder

in the Park” was for a relatively small number of people at an event 800 miles away from the

allegedly defamed subject. The content of the film was undiscoverable to any unwitting member

of the general public at that time, including Ciolino. He could not have known that he was harmed

at that time.

¶ 58 Even in Winrod v. Time, Inc., 334 Ill. App. 59 (1948), on which defendants rely for support,

the court’s holding that the statute of limitations began running immediately upon publication was

based upon the fact that that the allegedly defamatory material was circulated to the general public

and was widely available. The Life magazine at issue in that case “appeared for sale on newsstands

throughout the country” with “thousands of copies widely distributed,” so the court held that the

statute of limitations began to run “upon the first publication, when the issue [went] into circulation

generally.” Id. at 61-64. But Winrod was still based on the fact that there was a “general release of

the magazine[,] completed throughout the nation.” Id. at 65; see also 54 C.J.S. Limitations of

Actions § 229 (“Where a cause of action is based upon a defamatory matter appearing in a

publication, the statute of limitations commences to run upon the first general distribution of the

publication to the public[.]”) (Emphasis added).

¶ 59 At this stage of the case, where all inferences must be drawn in his favor, Ciolino is situated

much more like the plaintiff in Tom Olesker than he is the plaintiff in Winrod. When we take

plaintiff’s allegations as true and view the evidence in a light most favorable to him, Ciolino can

19 No. 1-19-0181

be more neatly analogized to the allegedly defamed plaintiff in Tom Olesker who did not and could

not have known about the publication of the material about him, than to the plaintiff in Winrod

who was allegedly defamed through the circulation of thousands of articles on a national stage.

The film in this case was not shown to the “general public” when it premiered as some defendants

suggest. It was shown to a small audience in one city and was available for a couple of hours.

¶ 60 Even the viewers of “A Murder in the Park” at the film festival in New York are more like

the subscribers at issue in Tom Olesker than they are like the general public in Winrod. Those who

saw “A Murder in the Park” at the film festival were a small, select group of people. The select

group of people is from another small subset of the population—attendees of the 2014 DOC NYC

film festival. According to Ciolino, if the film only showed that one time, he very likely would

have never learned of its existence.

¶ 61 As far as we can tell from the record, even if Ciolino wanted to see “A Murder in the Park”

before it premiered in Chicago, he would have had no reasonable way to do so. And that is among

the litany of factual issues that are currently unresolved. Defendants stressed during the oral

argument in this case that we should not even look to the discovery rule because the film was not

hidden and its existence was not inherently unknowable. Even in that context, however, factual

considerations may operate to preclude the dismissal of a plaintiff’s claim. See Mitsias v. I-Flow

Corp., 2011 IL App (1st) 101126, ¶¶ 29, 52 (a limitations period for a plaintiff’s cause of action

should generally not begin to run and expire at a time when the injury is unknowable); United

States v. Kubrick, 444 U.S. 111, 116 (1979) (where a plaintiff’s cause of action might be

undiscoverable through reasonable diligence, the limitations period may be tolled). All inferences

must be drawn in Ciolino’s favor at this stage of the case and defendants have not presented

evidence on all points to counteract the effect of those inferences.

20 No. 1-19-0181

¶ 62 When we are dealing with the statute of limitations, if only one conclusion can be drawn

from the undisputed facts, the question of the timeliness of the plaintiff’s complaint is for the court

to decide, otherwise it is a question of fact. Heredia v. O’Brien, 2015 IL App (1st) 141952, ¶ 24.

We cannot say, as a matter of law, that the allegedly defamatory statements at issue here were

“easily discovered, and delivered to a mass sector of the public” (Blair, 369 Ill. App. 3d at 326)

nor that the circumstances are otherwise such that any claims arising from the allegedly defamatory

statements must have accrued immediately when the film was screened in New York. See Gadson

v. Among Friends Adult Day Care, Inc., 2015 IL App (1st) 141967, ¶ 14 (a section 2-619 motion

to dismiss seeks a summary disposition when a plaintiff’s claim is defeated as a matter of law or

on the basis of easily proven facts). And even though the existence of the film was not necessarily

hidden, there are questions about what Ciolino could have possibly discovered even if he was

completely diligent. The evidence currently in the record does not establish what Ciolino could

have known about the film and the specific statements therein or when he could have learned about

those matters or otherwise gained sufficient knowledge to take action on the claims asserted here.

¶ 63 We are aware of the fact that, after its premiere, “A Murder in the Park” was sold to

Showtime and has been broadcast nationally and become available on several nationwide

streaming services. A nationally available movie or television program is tantamount to the

nationwide circulation of a magazine like in Winrod and would undoubtedly cause the statute of

limitations to run. But Ciolino filed his claim within one year of “A Murder in the Park” having

any national run.

¶ 64 One of the stated reasons the supreme court had “no hesitation” in applying the discovery

rule in Tom Olesker was to prevent cases where plaintiffs were “silently wronged.” Tom Olesker,

61 Ill. 2d at 137. A ruling in favor of defendants here would promote silent wrongs in the future

21 No. 1-19-0181

rather than preventing them. People would have to be timelessly devoted to searching out whether

anyone was spreading harmful untruths about them anywhere in the world. The statute of

limitations is supposed to compel plaintiffs to act reasonably to discover harms against them.

Statute of limitations jurisprudence revolves around the idea that when a person has sufficient

information or is deemed as a matter of law to have such information, then he must act. If a plaintiff

turns a blind eye to harms against him, he can lose his cause of action. If a plaintiff should discover

some harm against him, but does not, then he can lose his cause of action. But the statute of

limitations is not intended to serve as a refuge for defendants in instances in which a plaintiff does

not act solely because he does not and could not reasonably discover a harm against him.

¶ 65 We also must draw a distinction between the publicity defendants generated with an eye

towards drawing attention to the film itself on the one hand and the ability to know about the

allegedly defamatory statements therein on the other. In the cases where the mass media exception

has been recognized, it is because the allegedly defamatory statements themselves were on display

for all to view. Here, knowledge of the film’s existence is not the same as knowledge of the

statements therein. So even if defendants drew attention to the film itself to generate publicity and

viewership, that does not mean, as a matter of law, that Ciolino must be charged with knowledge

about the specific statements made about him in the film.

¶ 66 Courts have applied the discovery rule on a case-by-case basis, weighing the relative

hardships of applying the rule to both plaintiffs and defendants. Hermitage Corp. v. Contractors

Adjustment Co., 166 Ill. 2d 72, 78 (1995). As has been recognized repeatedly, the purpose of the

statute of limitations is to discourage the presentation of stale claims and to encourage diligence

in the bringing of actions. Sundance Homes, Inc. v. County of DuPage, 195 Ill. 2d 257, 265-66

(2001). At this point, there is no claim of any want of diligence on the part of the plaintiff in this

22 No. 1-19-0181

case, nor is there any assertion that there are discernable increases in problems of proof so far as

defendants are concerned. See Tom Olesker, 61 Ill. 2d at 133. We think there would be a significant

hardship on plaintiffs if we were to enforce, as a matter of law, a duty to discover and sue for any

potentially defamatory statements made anywhere on earth within a year, regardless of the

plaintiff’s ability to learn about the statements. At least in this case, we see no similar significant

hardship on a defendant that might arise due to the passage of time.

¶ 67 When the record is construed in Ciolino’s favor, diligence was shown here. Ciolino filed

his claims within 19 months of the New York premiere and within 9 months of the Chicago

premiere. There is no indication that Ciolino was sitting on his rights. Ciolino filed these claims

two months after the documentary aired nationally on Showtime. In this case, the interests of

justice and the interest in preventing stale claims would not be furthered by barring Ciolino’s

claims on limitations grounds.

¶ 68 This case is also different than some of the cases discussed by the parties in which a court

was tasked with determining whether the statute of limitations accrues simply by virtue of the

allegedly defamatory statement being posted online. Here, only references to the film were made

online, on social media, and in the news articles that reference the premiere of the film. The articles

discuss the subject matter of the film to varying degrees, but none of the articles carry the specific

statements that Ciolino claims to be defamatory. The film itself and the allegedly defamatory

statements themselves were not available online or to the public generally until much later, by

which time plaintiff sued within one year. Accordingly, based on the record as it is currently

developed, we find that Ciolino’s claims for defamation did not, as a matter of law, accrue when

the film premiered in New York.

23 No. 1-19-0181

¶ 69 3. Alvarez- Press Conference

¶ 70 Defendant Anita Alvarez argues that Ciolino’s claims against her are time barred because

they are based on comments that she made at a televised news conference on October 30, 2014.

Ciolino’s claim for defamation against Alvarez is for the inclusion of certain statements she made

at a press conference where the footage was reproduced in “A Murder in the Park.” However,

because the allegedly defamatory statements are simply a republication of publicized statements

that Alvarez made more than a year before Ciolino filed suit, we agree that the claims against

Alvarez are time barred.

¶ 71 The allegedly defamatory statements that Ciolino claims Alvarez made in “A Murder in

the Park” were simply clips from a news conference she held on October 30, 2014. The news

conference was widely reported upon in Chicago and nationally when it occurred. Alvarez did not

appear in “A Murder in the Park” to give any new commentary or make any other statements about

the case or about Ciolino.

¶ 72 At the news conference announcing the abandonment of charges against Simon, Alvarez

stated that the “investigation by David Protess and his team involved a series of alarming tactics

that were not only coercive and absolutely unacceptable by law enforcement standards, they were

potentially in violation of Mr. Simon’s constitutionally protected rights.” Alvarez continued,

expressing that, in her view, “the original confession, made by Alstory Simon and the coercive

tactics that were employed by investigator Ciolino have tainted this case from the outset and

brought into doubt the credibility of many important factors.” She concluded that “[t]he bottom

line is that the investigation conducted by Protess and private investigator Ciolino, as well as the

subsequent legal representation of Mr. Simon, were so flawed that it is clear that the constitutional

rights of Mr. Simon were not scrupulously protected as our law requires. This conviction therefore

24 No. 1-19-0181

cannot stand.” The “A Murder in the Park” filmmakers included those clips in the film.

¶ 73 The press conference Alvarez held was reported upon by every major Chicago news

organization the day that it happened. It was also reported upon by national news organizations

such as the Associated Press, USA Today, and Reuters. Both local and national news articles about

the press conference quote Alvarez’s allegedly defamatory statements about Ciolino, at least in

part. The statements were made in Chicago. In fact, on the day of Alvarez’s news conference,

Ciolino released a statement in response. See, e.g., Sarahtr, In Stunning Reversal, Alstory Simon,

Convicted in Double Murder, Released from Custody, Chicago Sun-Times, October 30, 2014

(available at https://chicago.suntimes.com/2014/10/30/18422250/in-stunning-reversal-alstory-

simon-convicted-in-double-murder-released-from-custody (last visited Dec. 17, 2019)). In the

wake of the backlash of Simon’s release and the criticism of his work, Ciolino replied that he still

believed Porter was innocent. Ciolino stated that he stood by his work, explaining that “Mr. Simon

confessed to a Milwaukee TV reporter, his own lawyer and others since he confessed to me. You

explain that.” Ciolino also reiterated his belief that “[b]ut for the work we did together with

Northwestern and the students, Porter’s life would have been taken.”

¶ 74 Unlike the claims against Crawford for Justice Perverted, the claims based on comments

Alvarez made at the news conference are subject to the single publication rule. The single

publication rule is that “[n]o person shall have more than one cause of action for damages for libel

or slander or invasion of privacy or any other tort founded upon any single publication or exhibition

or utterance.” 740 ILCS 165/1 (West 2016). Under this rule, defamation and privacy actions are

complete at the time of the first publication, and any subsequent appearances or distributions of

copies of the original publication are of no consequence to the creation or existence of a cause of

action. Blair, 369 Ill. App. 3d at 324-25 (2006). Ciolino’s claims against Alvarez accrued on

25 No. 1-19-0181

October 30, 2014 and the rebroadcast of video clips from the news conference in “A Murder in the

Park” cannot, as a matter of law, create a new cause of action.

¶ 75 It is obvious that Ciolino knew about Alvarez’s press conference and the statements made

therein. He responded to them directly in a publicly released statement the same day. Both local

and national news outlets reported on Ciolino’s statement. The fact that Alvarez’s statements were

later reproduced in “A Murder in the Park” is insufficient to give rise to a new cause of action.

Alvarez is not even the one who reproduced the statements. Therefore, because Alvarez’s allegedly

defamatory statements were made on October 30, 2014 and Ciolino knew about them that same

day, but did not file his claims against her until April 27, 2016, Ciolino’s claims against Alvarez

are time barred.

¶ 76 4. Prieb’s Arguments and Defendants’ Other Arguments for Dismissal

¶ 77 Defendant Martin Prieb does not rely on the statute of limitations to argue that we should

affirm the dismissal of the claims against him. Ciolino seeks to hold Prieb responsible for blog

posts that he made on the blog “Crooked City: The Blog About the Wrongful Conviction

Movement.” The statements that Prieb allegedly made on the blog for which Ciolino seeks to

recover were made between June 2015 and April 2016. Because Ciolino filed his claims in federal

court on April 27, 2016, there is no issue as to timeliness. So Prieb raises other arguments that he

contends entitle him to dismissal. The other defendants raise the same arguments as Prieb as

alternative bases for affirming the dismissal of Ciolino’s claims should we reject their position on

the statute of limitations.

¶ 78 Defendant Prieb and all of the other defendants argue that even if the claims against them

are not time barred, the dismissal of the claims should nonetheless be affirmed on other grounds.

The trial court ruled solely on the statute of limitations arguments the parties raised and, in its

26 No. 1-19-0181

written order, did not analyze any of the other possible grounds for dismissal that the parties raised

then and now raise again here. Defendants point out that even though the trial court dismissed the

claims for one reason, we can affirm the dismissal of Ciolino’s claims for any basis in the record.

See Abramson v. Marderosian, 2018 IL App (1st) 180081, ¶ 40.

¶ 79 Defendants all argue in different ways that we should affirm the dismissal of Ciolino’s

claims against them because the allegedly defamatory statements constitute inactionable opinion.

Only statements capable of being proven true or false are actionable for defamation; opinions are

not. Moriarty v. Greene, 315 Ill. App. 3d 225, 233 (2000). Defendants contend that the statements

attributed to them that Ciolino alleges are defamatory are open to interpretation and merely

represent their opinions of Ciolino and his conduct.

¶ 80 Defendants all also argue that the allegedly defamatory statements are covered by the fair

reporting privilege. The fair report privilege protects a defendant from a defamation action when

the defendant reports information obtained from governmental and public proceedings on matters

of public interest. Harrison v. Chicago Sun-Times, Inc., 341 Ill. App. 3d 555, 572 (2003); see also

33A Ill. Law and Prac. Slander and Libel § 31. Defendants contend that their works are based on

court records and principally on Simon’s postconviction filings, such that they cannot be liable for

defamation for repeating the statements made therein.

¶ 81 While defendants are correct that we may affirm on any grounds present in the record, we

similarly may decline to search beyond the trial court’s analysis to find some basis for its decision.

Allstate Ins. Co. v. Davenport, 309 Ill. App. 3d 750, 756 (1999); Nolan v. Johns-Manville Asbestos

& Magnesia Materials Co., 74 Ill. App. 3d 778, 796 (1979). This case is an appropriate time for

us to exercise such restraint. Defendants acknowledge that the trial court made errors in its written

order, but they essentially ask that we step in and serve the trial court’s function. We decline to do

27 No. 1-19-0181

so.

¶ 82 Even though some of the questions presented by defendants are questions of law that we

would review de novo on appeal, we remain a court of review. Defendants ask us to consider a

number of matters and pass upon them even though no lower court has considered or analyzed the

issues. There are a number of thorny issues raised in the parties’ arguments that the trial court did

not reach, but that defendants want us to reach.

¶ 83 For example, there are questions raised regarding whether defendants abused the fair

reporting privilege and, therefore, lost the benefit to claim it. For the fair reporting privilege to

apply, the statements must be a fair and accurate representation of the proceedings reported upon.

Missner, 393 Ill. App. 3d at 761. If not, the privilege does not apply. Id. Ciolino argues that “A

Murder in the Park” is not a fair and accurate representation of the proceedings and he points to

discrepancies he believes exist. The defendant-filmmakers, on the other hand, argue that their film

fairly describes the events as reported in police files and court records and, thus, their work is

protected. To make matters more complicated, the fair reporting privilege is a qualified one. Solaia

Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 585 (2006). It typically does not bar claims, it

simply enhances a plaintiff’s burden of proof in proving up a defamation action. Lykowski v.

Bergman, 299 Ill. App. 3d 157, 166 (1998).

¶ 84 There are also questions about whether particular statements are properly characterized as

fact or opinion and whether such statements can be innocently construed. The parties each

strenuously press their respective cases: Ciolino that he is seeking recovery for expressions of false

facts; and defendants that they were merely expressing their opinions or advocating for Simon.

There are several considerations courts must take into effect when determining whether statements

are factual and can therefore be evaluated for defamation or whether the statements are

28 No. 1-19-0181

nonactionable opinions. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518-21 (1998); Brennan v.

Kadner, 351 Ill. App. 3d 963, 969-71 (2004).

¶ 85 The parties also raise questions about whether the statements can be considered “highly

offensive to a reasonable person” to support a claim for intentional infliction of emotional distress.

As this issue pertains to Prieb, the trial court’s ruling is inconsistent. At one point in its order, the

trial court finds that Ciolino pled sufficient facts to state a claim for intentional infliction of

emotional distress against Prieb. At another point, the trial court finds that Ciolino’s claim is

insufficient because his “statements thus do not rise to the required level of ‘extreme and

outrageous conduct.’” It is clear from the trial court’s ruling as a whole that it found the claims

against Prieb to be time barred. The trial court stated, in analyzing Prieb’s motion to dismiss, that

“[a]ny claims [against Prieb] based on statements published before January 2016 are thus time-

barred.” That ruling was in error.

¶ 86 The trial court is the appropriate forum for these issues to be hashed out for the first time.

Discovery may well shed light on these matters and provide the trial court or this court with a

better opportunity adjudicate these issues that are no doubt significantly important to the overall

resolution of the case. We express no opinion about the quality of defendants’ arguments or their

likelihood of success. The grounds for a favorable ruling that defendants raise including and in

addition to the statute of limitations may well entitle them to a judgment of no liability, and

defendants are entitled to raise these matters at a later stage in the proceedings. But this court is a

court of review and we decline to be the first tribunal to consider and rule upon these important

disputed issues.

¶ 87 B. Intentional Infliction of Emotional Distress

¶ 88 The trial court found that, under section 2-615, Ciolino pled sufficient facts to state a cause

29 No. 1-19-0181

of action for intentional infliction of emotional distress against all defendants. The court denied

defendants’ motions to dismiss in that regard. The trial court held that the claims were nonetheless

barred by the two-year statute of limitations governing personal injury actions in Illinois (citing

Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278 (2003)).

¶ 89 As stated above (supra part II, section A, subsections 1 and 2), the claims against

defendants are not barred by the one-year statute of limitations governing defamation actions, so

they are similarly not barred by the two-year statute of limitations governing actions for intentional

infliction of emotional distress. Even if, as defendants argue, the statute of limitations for Ciolino’s

intentional infliction of emotional distress claims is one year as a derivative of his defamation

claims (citing Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 208-09 (1983)), the

claims are still timely.

¶ 90 The trial court apparently failed to apply the Savings Statute to Ciolino’s claims. The trial

court found that the operative filing date for these claims was in January 2018—when Ciolino filed

this case. But when Ciolino filed this case he was refiling the claims that were dismissed for lack

of jurisdiction in federal court. The Illinois Savings Statute states that where an action is dismissed

by a United States District Court for lack of jurisdiction, then, regardless of whether the statute of

limitations has run during the pendency of the action, the plaintiff may commence a new action in

state court within one year of the dismissal or within the remaining period of limitation, whichever

is greater. 735 ILCS 5/13-217 (West 2016); see also Bryson v. News America Publications, Inc.,

174 Ill. 2d 77, 105-06 (1996). For limitations purposes, the operative filing date for Ciolino’s

claims in this case is April 27, 2016—when Ciolino filed these claims in federal court.

¶ 91 Defendants also argue that Ciolino failed to plead the facts necessary to state a cause of

action for intentional infliction of emotional distress. But the trial court denied defendants’ motions

30 No. 1-19-0181

under section 2-615. The trial court found that Ciolino had sufficiently stated facts to support his

cause of action. None of the defendants appeal that adverse ruling. Defendants again want us to go

far beyond the trial court’s order and to reach a variety of arguments for the first time on appeal.

We decline to do so.

¶ 92 As for Prieb, and as discussed above (supra ¶ 85), the trial court’s order is inconsistent.

The order states that Ciolino pled sufficient facts against Prieb to state a cause of action for

intentional infliction of emotional distress. That ruling implies that Ciolino sufficiently pled that

Prieb’s conduct was extreme and outrageous. To prevail on a claim of intentional infliction of

emotional distress, the plaintiff must prove the following three elements: (1) that the defendant's

conduct was truly extreme and outrageous, (2) that the defendant either intended that his conduct

would cause severe emotional distress or knew that there was a high probability that his conduct

would do so, and (3) that the defendant's conduct did in fact cause severe emotional distress.

Taliani v. Resurreccion, 2018 IL App (3d) 160327, ¶ 26. The trial court found, in denying the

section 2-615 part of defendants’ motions, that Ciolino had pled sufficient facts to support those

elements of the cause of action. The trial court then found that the alleged conduct did “not rise to

the required level of extreme and outrageous conduct.” The findings cannot be reconciled. The

trial court then went on to ultimately find the claims to be time barred. Any finding that the

allegations were not sufficient was not a stated basis for the trial court’s ruling and cannot serve

as a basis to affirm the dismissal of the claims against Prieb.

¶ 93 As for Alvarez, we conclude that Ciolino’s claims are time barred. The only conduct

Ciolino alleges that Alvarez engaged in that could subject her to liability is not actionable as an

independent claim. Ciolino’s other allegations regarding intentional infliction of emotional distress

refer to Alvarez’s official actions in dealing with Simon’s case. They do not relate to any action

31 No. 1-19-0181

towards Ciolino. Accordingly, Ciolino has no claim against Alvarez for intentional infliction of

emotional distress.

¶ 94 Per the notice of appeal in this case, the only issue currently on appeal is whether the trial

court properly granted judgment to defendants under section 2-619. Ciolino’s notice of appeal

states that “Plaintiff respectfully requests that the reviewing court reverse the Court’s order

dismissing Plaintiff’s complaint pursuant to 2-619.” Thus, we do not revisit the trial court’s rulings

on the section 2-615 portions of defendants’ motions. The trial court erred when it dismissed

Ciolino’s claim for intentional infliction of emotional distress as time barred.

¶ 95 C. Conspiracy

¶ 96 Defendants argue that Ciolino abandoned his conspiracy claim by failing to argue about

the propriety of the dismissal of that claim on appeal. At first impression, defendants’ position

seems persuasive—that the trial court’s dismissal of plaintiff’s claim for conspiracy should stand

because Ciolino forfeited that claim by failing to argue on appeal that its dismissal was improper.

However, Ciolino has persuaded us that he did, in fact, dispute the dismissal of his conspiracy

claim on appeal. Ciolino has not abandoned his claim sounding in conspiracy and, accordingly,

we reinstate his conspiracy claim so that he may pursue it on remand.

¶ 97 The trial court dismissed Ciolino’s claim for conspiracy on the basis that the underlying

torts supporting the alleged conspiracy were time barred, so the conspiracy claim was time barred

too (citing Mauvdis-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶¶ 109-11). As we have explained

above, defendants did not prove that the tort claims underlying the alleged conspiracy were time

barred, so the trial court’s justification for dismissing the conspiracy claim is not valid.

¶ 98 On appeal, plaintiff argued that all of his claims were dismissed improperly. Plaintiff

argued in his opening brief, and thoroughly in his reply brief, that his conspiracy claim was

32 No. 1-19-0181

timely—counter to the trial court finding otherwise. Specifically, plaintiff stated that “Because

Plaintiff’s defamation, false light, and IIED claims are timely (as we have found above) and

adequately pled, Plaintiff’s civil conspiracy claim survives summary dismissal.” Now finding that

plaintiff did not abandon his claim for conspiracy, we reverse the trial court’s dismissal of

plaintiff’s conspiracy count as well as it was not time barred.

¶ 99 CONCLUSION

¶ 100 Accordingly, we affirm in part and reverse in part. We affirm the trial court’s dismissal as

to defendant Anita Alvarez. We reverse all the trial court’s other rulings on the motions to dismiss,

reinstate all claims against the other defendants, and remand the case for further proceedings not

inconsistent with this opinion.

¶ 101 Affirmed in part, reversed in part, remanded.