2022 IL App (5th) 220060-U NOTICE NOTICE Decision filed 10/17/22. The This order was filed under text of this decision may be NO. 5-22-0060 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
ROBERT DORMAN and DOUGLAS HULME, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Madison County. ) v. ) No. 20-L-1319 ) ROBERT DAIBER, ) Honorable ) Sarah D. Smith, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Presiding Justice Boie and Justice Wharton concurred in the judgment.
ORDER
¶1 Held: The circuit court properly dismissed the amended complaint with prejudice where the alleged defamatory statements were protected by privilege.
¶2 The plaintiffs, Robert Dorman and Douglas Hulme, appeal the September 23, 2021, order
of the circuit court of Madison County which dismissed, with prejudice, their complaint against
the defendant, Robert Daiber. For the following reasons, we affirm the circuit court’s dismissal of
the complaint with prejudice based on the immunities afforded to the defendant, rendering it
unnecessary for us to address the circuit court’s alleged error in applying the anti-SLAPP (Strategic
Lawsuits Against Public Participation) provisions of section 15 of the Citizen Participation Act
(735 ILCS 110/15 (West 2020)).
1 ¶3 I. BACKGROUND
¶4 On September 16, 2020, Dorman filed his single count complaint alleging Daiber made
false and defamatory statements about him. On March 11, 2021, Daiber filed a motion to dismiss
the complaint for failure to state a claim under section 2-615 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-615 (West 2020)) and a motion to dismiss the complaint pursuant to section 2-619
of the Code (id. § 2-619). On April 8, 2021, leave of court was sought to add Douglas Hulme as
an additional plaintiff. Dorman filed a motion for leave to file his first amended complaint on May
5, 2021. On May 7, 2021, the circuit court granted Daiber’s motion to dismiss and granted
Dorman’s leave to add Hulme and 30 days to amend the complaint.
¶5 Plaintiffs, Dorman and Hulme, filed the amended complaint on June 7, 2021. On August
11, 2021, Daiber filed a motion to dismiss the plaintiffs’ amended complaint with prejudice
pursuant to section 2-619 of the Code (id. § 2-619). The same day, Daiber also filed a motion for
sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). On September 22, 2021,
plaintiffs filed a single page reply to the defendant’s motion to dismiss and for sanctions. On
September 23, 2021, the circuit court entered an order which stated as follows:
“Court finds that Defendant is protected from suit by the immunities described in
Defendant’s motion to dismiss. Additionally, the court finds that Defendant is also
protected by the Illinois Citizens Participation Act anti-SLAPP provisions.
Plaintiffs’ causes of action are dismissed with prejudice.”
¶6 On October 25, 2021, plaintiffs filed a motion to vacate the circuit court’s order of
September 23, 2021. On February 7, 2022, plaintiffs filed a notice of appeal. As the circuit court
had not yet ruled on the pending motion to vacate, the appeal was held in abeyance until the circuit
2 court entered an order disposing of the pending motion. The circuit court denied the motion to
vacate on May 16, 2022, and now the appeal is properly before us.
¶7 Additional facts will be presented as necessary through the remainder of this order.
¶8 II. ANALYSIS
¶9 Plaintiffs contend that their amended complaint was incorrectly dismissed and seek an
order reversing the decisions of the circuit court. The circuit court’s order dismissing the plaintiffs’
amended complaint with prejudice stated two grounds for the dismissal of the causes of action.
First, the circuit court found that the defendant was protected from suit by the immunities set forth
in the defendant’s motion to dismiss. As an additional ground, the circuit court found that the
defendant was also protected by the Citizen Participation Act anti-SLAPP provisions. If any
ground relied on by the circuit court in granting the motion to dismiss was proper, we must affirm.
Lanno v. Naser, 79 Ill. App. 3d 1, 4 (1979).
¶ 10 The defendant’s motion to dismiss asserted that the alleged defamatory statements
contained in the press release were subject to multiple privileges which afforded the defendant
immunity from suit. “Whether a defamatory statement is protected by an absolute or a qualified,
or conditional, privilege is a question of law for the court.” Layne v. Builders Plumbing Supply
Co., 210 Ill. App. 3d 966, 969 (1991).
¶ 11 First, the defendant claimed his actions were absolutely privileged because his press release
merely served to report on the acts of government. Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d
112, 115-16 (1966). Next, the defendant asserted he was entitled to immunity because he was
reporting what was contained in official records. “The Illinois common law privilege of fair and
accurate report of public records is an exception to the general rule that a person who republishes
a defamatory per se remark about the plaintiff is as liable for the defamation as the individual who
3 initially made the false, defamatory per se statement about the plaintiff.” Berkos v. National
Broadcasting Co., 161 Ill. App. 3d 476, 491 (1987). Finally, the defendant argued that the alleged
defamatory statements were privileged because statements made to a grand jury and to law
enforcement are absolutely privileged, and the press release at issue was an amalgam of quotes
distilled from statements made to law enforcement by other individuals. Layne, 210 Ill. App. 3d at
970-71.
¶ 12 The plaintiffs failed to address the defendant’s privilege and immunity arguments at the
circuit court level and merely asserted their complaint was sufficient. Plaintiffs’ response to the
motion to dismiss contained no citation to legal authorities.
¶ 13 On appeal, the plaintiffs focus their entire argument on the contention that the circuit court
erred in dismissing the amended complaint under the basis of the Citizen Participation Act anti-
SLAPP provisions. As stated above, if any ground relied upon by the circuit court in dismissing
the amended complaint was proper, we are required to affirm. Lanno, 79 Ill. App. 3d at 4.
¶ 14 Further, pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), “[p]oints
not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition
for rehearing.” The plaintiffs’ mere allegation that the circuit court’s decision was error without
any argument or citation to authority falls short of what is required under Rule 341(h)(7), “which
our supreme court has stated is not a mere suggestion, but has the force of law.” In re Marriage of
James, 2018 IL App (2d) 170627, ¶ 37 (citing Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d
342, 353 (2006)).
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2022 IL App (5th) 220060-U NOTICE NOTICE Decision filed 10/17/22. The This order was filed under text of this decision may be NO. 5-22-0060 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
ROBERT DORMAN and DOUGLAS HULME, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Madison County. ) v. ) No. 20-L-1319 ) ROBERT DAIBER, ) Honorable ) Sarah D. Smith, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Presiding Justice Boie and Justice Wharton concurred in the judgment.
ORDER
¶1 Held: The circuit court properly dismissed the amended complaint with prejudice where the alleged defamatory statements were protected by privilege.
¶2 The plaintiffs, Robert Dorman and Douglas Hulme, appeal the September 23, 2021, order
of the circuit court of Madison County which dismissed, with prejudice, their complaint against
the defendant, Robert Daiber. For the following reasons, we affirm the circuit court’s dismissal of
the complaint with prejudice based on the immunities afforded to the defendant, rendering it
unnecessary for us to address the circuit court’s alleged error in applying the anti-SLAPP (Strategic
Lawsuits Against Public Participation) provisions of section 15 of the Citizen Participation Act
(735 ILCS 110/15 (West 2020)).
1 ¶3 I. BACKGROUND
¶4 On September 16, 2020, Dorman filed his single count complaint alleging Daiber made
false and defamatory statements about him. On March 11, 2021, Daiber filed a motion to dismiss
the complaint for failure to state a claim under section 2-615 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-615 (West 2020)) and a motion to dismiss the complaint pursuant to section 2-619
of the Code (id. § 2-619). On April 8, 2021, leave of court was sought to add Douglas Hulme as
an additional plaintiff. Dorman filed a motion for leave to file his first amended complaint on May
5, 2021. On May 7, 2021, the circuit court granted Daiber’s motion to dismiss and granted
Dorman’s leave to add Hulme and 30 days to amend the complaint.
¶5 Plaintiffs, Dorman and Hulme, filed the amended complaint on June 7, 2021. On August
11, 2021, Daiber filed a motion to dismiss the plaintiffs’ amended complaint with prejudice
pursuant to section 2-619 of the Code (id. § 2-619). The same day, Daiber also filed a motion for
sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). On September 22, 2021,
plaintiffs filed a single page reply to the defendant’s motion to dismiss and for sanctions. On
September 23, 2021, the circuit court entered an order which stated as follows:
“Court finds that Defendant is protected from suit by the immunities described in
Defendant’s motion to dismiss. Additionally, the court finds that Defendant is also
protected by the Illinois Citizens Participation Act anti-SLAPP provisions.
Plaintiffs’ causes of action are dismissed with prejudice.”
¶6 On October 25, 2021, plaintiffs filed a motion to vacate the circuit court’s order of
September 23, 2021. On February 7, 2022, plaintiffs filed a notice of appeal. As the circuit court
had not yet ruled on the pending motion to vacate, the appeal was held in abeyance until the circuit
2 court entered an order disposing of the pending motion. The circuit court denied the motion to
vacate on May 16, 2022, and now the appeal is properly before us.
¶7 Additional facts will be presented as necessary through the remainder of this order.
¶8 II. ANALYSIS
¶9 Plaintiffs contend that their amended complaint was incorrectly dismissed and seek an
order reversing the decisions of the circuit court. The circuit court’s order dismissing the plaintiffs’
amended complaint with prejudice stated two grounds for the dismissal of the causes of action.
First, the circuit court found that the defendant was protected from suit by the immunities set forth
in the defendant’s motion to dismiss. As an additional ground, the circuit court found that the
defendant was also protected by the Citizen Participation Act anti-SLAPP provisions. If any
ground relied on by the circuit court in granting the motion to dismiss was proper, we must affirm.
Lanno v. Naser, 79 Ill. App. 3d 1, 4 (1979).
¶ 10 The defendant’s motion to dismiss asserted that the alleged defamatory statements
contained in the press release were subject to multiple privileges which afforded the defendant
immunity from suit. “Whether a defamatory statement is protected by an absolute or a qualified,
or conditional, privilege is a question of law for the court.” Layne v. Builders Plumbing Supply
Co., 210 Ill. App. 3d 966, 969 (1991).
¶ 11 First, the defendant claimed his actions were absolutely privileged because his press release
merely served to report on the acts of government. Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d
112, 115-16 (1966). Next, the defendant asserted he was entitled to immunity because he was
reporting what was contained in official records. “The Illinois common law privilege of fair and
accurate report of public records is an exception to the general rule that a person who republishes
a defamatory per se remark about the plaintiff is as liable for the defamation as the individual who
3 initially made the false, defamatory per se statement about the plaintiff.” Berkos v. National
Broadcasting Co., 161 Ill. App. 3d 476, 491 (1987). Finally, the defendant argued that the alleged
defamatory statements were privileged because statements made to a grand jury and to law
enforcement are absolutely privileged, and the press release at issue was an amalgam of quotes
distilled from statements made to law enforcement by other individuals. Layne, 210 Ill. App. 3d at
970-71.
¶ 12 The plaintiffs failed to address the defendant’s privilege and immunity arguments at the
circuit court level and merely asserted their complaint was sufficient. Plaintiffs’ response to the
motion to dismiss contained no citation to legal authorities.
¶ 13 On appeal, the plaintiffs focus their entire argument on the contention that the circuit court
erred in dismissing the amended complaint under the basis of the Citizen Participation Act anti-
SLAPP provisions. As stated above, if any ground relied upon by the circuit court in dismissing
the amended complaint was proper, we are required to affirm. Lanno, 79 Ill. App. 3d at 4.
¶ 14 Further, pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), “[p]oints
not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition
for rehearing.” The plaintiffs’ mere allegation that the circuit court’s decision was error without
any argument or citation to authority falls short of what is required under Rule 341(h)(7), “which
our supreme court has stated is not a mere suggestion, but has the force of law.” In re Marriage of
James, 2018 IL App (2d) 170627, ¶ 37 (citing Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d
342, 353 (2006)). “A reviewing court is entitled to have the issues on appeal clearly defined with
pertinent authority cited and a cohesive legal argument presented.” Thrall Car Manufacturing Co.
v. Lindquist, 145 Ill. App. 3d 712, 719 (1986). “The appellate court is not a depository in which
4 the appellant may dump the burden of argument and research.” Id. Thus, we find the plaintiffs
forfeited the argument regarding the defendant’s privileges and immunities.
¶ 15 After considering the pleadings contained in the record and the law presented by Daiber,
we find the circuit court correctly found that Daiber’s statements contained in the press release
were protected by privilege and he is entitled to immunity from suit. Accordingly, the motion to
dismiss the amended complaint with prejudice was properly granted by the circuit court.
Furthermore, because the motion to dismiss was properly dismissed on the immunity grounds,
which is not challenged by the plaintiffs, it is not necessary for us to address the plaintiffs’ claims
related to the Citizen Participation Act anti-SLAPP provisions.
¶ 16 III. CONCLUSION
¶ 17 For the foregoing reasons, we affirm the September 23, 2021, order of the circuit court of
Madison County.
¶ 18 Affirmed.