Portegys v. White

2023 IL App (3d) 220295-U

• Court: Appellate Court of Illinois
• Decided: July 7, 2023
• Docket: 3-22-0295
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 220295-U

Order filed July 7, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THOMAS E. PORTEGYS, ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, Plaintiff-Appellant, ) Du Page County, Illinois, ) v. ) Appeal No. 3-22-0295 ) Circuit No. 22-AR-22 ) FRANCES J. WHITE, ) Honorable ) Robert E. Douglas, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE ALBRECHT delivered the judgment of the court. Presiding Justice Holdridge and Justice McDade concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defamation claim was barred by attorney litigation privilege because the attorney’s statement was in relation to the attorney’s representation in a termination of spousal maintenance action and was pertinent to the underlying litigation.

¶2 The case on appeal is a stand-alone defamation action involving a comment made in open

court during the proceeding in a separate case in which defendant, Frances J. White, represented

plaintiff’s former spouse on post-dissolution issues. Plaintiff, Thomas E. Portegys, appeals the

circuit court’s dismissal of his complaint for defamation and its finding that the attorney litigation privilege applies to defendant’s statement. In doing so, he argues that the court erred in

dismissing his complaint because defendant’s statement bore no relation to the proceeding and

thereby failed to meet the pertinency requirement as described in section 586 of the Restatement

(Second) of Torts. Restatement (Second) of Torts § 586 (1977). We disagree and affirm the

judgment of the circuit court.

¶3 I. BACKGROUND

¶4 In 2001, plaintiff and his former spouse entered into a marital settlement agreement

obligating plaintiff to pay $2100 in monthly maintenance. Following his retirement, plaintiff

petitioned the court to terminate his maintenance obligation in 2018. By agreed order, the circuit

court reduced his maintenance payment to $984 per month.

¶5 On March 21, 2021, plaintiff filed another petition to terminate his maintenance

obligation. Within his petition, plaintiff alleged that his former spouse was living in an assisted

living facility entirely funded through her Medicaid benefits. Therefore, plaintiff argued, his

monthly payments would be of little to no use.

¶6 In June, plaintiff’s former spouse filed a verified petition for temporary restraining order

and preliminary injunction. The petition alleged plaintiff employed a pattern of persistent

attempts to coerce her into waiving her rights to receive maintenance and arrearages. It also

purported that plaintiff pressured her to discharge defendant as her attorney and to withdraw a

pending petition for rule to show cause concerning plaintiff’s delinquent maintenance payments.

Per the petition, plaintiff frequently called and visited his former spouse at her assisted living

facility and threatened to prevent their disabled son from visiting should she fail to capitulate to

his demands.

2 ¶7 The parties appeared before the court on November 15, 2021. The court noted that the

parties were working towards settlement, as evidenced by a recently entered agreed order to

strike their set trial date. It then asked defendant how she intended to proceed with plaintiff’s

petition to terminate maintenance and his former spouse’s pending rule to show cause. Defendant

responded by reminding the court there was also a petition for temporary restraining order and

preliminary injunction to resolve, stating:

“Your Honor, I have also filed a motion for a restraining order because Mr.

Portegys continues to pressure his former wife to release me, fire me. He even

suggested she might want to have me murdered in order to get her to give up her

claim for maintenance.”

¶8 Defendant then informed the court regarding the other petitions’ statuses, explaining

plaintiff’s former spouse was in a financial situation whereby waiving her right to receive

maintenance was inadvisable. Defendant reported that she scheduled plaintiff’s deposition prior

to the trial date, but he failed to appear, and she “need[ed] him to leave [his former spouse]

alone.” Defendant recommended and the court agreed to consolidate the three petitions into a

single hearing date. Nine days later, before the scheduled hearing date on the three petitions, the

parties entered an agreed order in which plaintiff withdrew his motion to terminate maintenance

and his former spouse withdrew her petitions for rule to show cause and temporary restraining

order.

¶9 Plaintiff, as a self-represented litigant, filed a defamation complaint against defendant on

January 7, 2022. He alleged that defendant’s statement to the court indicating plaintiff “might

want to have me murdered” was heinous, false, and satisfied the legal requirements for

defamation. The complaint contended that plaintiff received a voicemail from his former spouse

3 on August 23, 2021, explaining that she had heard through a mutual friend that plaintiff

threatened defendant and that he “wanted to kill her *** [and defendant] now is feeling

threatened ***.” Plaintiff denied any such intimidations occurred. In addition to costs, he sought

$15,000 in compensatory and punitive damages.

¶ 10 On April 1, 2022, defendant filed a combined motion to dismiss plaintiff’s complaint

under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2022)).

Defendant argued that the attorney litigation privilege applied to the statements giving rise to

plaintiff’s defamation suit, and therefore his complaint was subject to dismissal pursuant to

section 2-619(a)(9). 735 ILCS 5/2-619(a)(9) (West 2022). Defendant also challenged the legal

sufficiency of the complaint, contending plaintiff failed to plead sufficient facts giving rise to a

defamation action and did not allege the defamatory statements were false. 735 ILCS 5/2-615

(West 2022). Plaintiff’s written response argued that defendant’s statements were irrelevant and

impertinent.

¶ 11 After hearing arguments, the court granted defendant’s combined motion and dismissed

plaintiff’s complaint with prejudice. In issuing its ruling, the court explained that “the only

directly attributable statement by Ms. White was made in court in front of [the court].” Because

this statement was “part of the overall case and part of the motion for a protective order, the

attorney privilege applies.”

¶ 12 Plaintiff timely appealed from this judgment.

¶ 13 II. ANALYSIS

¶ 14 On appeal, plaintiff argues that defendant’s verbal representation to the judge in open

court indicating plaintiff recommended murdering her fails the pertinency requirement necessary

for the attorney litigation privilege to attach. See Restatement (Second) of Torts § 586 (1977).

4 He requests that this court “strip the defendant of” her immunity so that she may be tried for

defamation.

¶ 15 We begin with defendant’s contention that plaintiff forfeits his claim based on

noncompliance with Illinois Supreme Court Rule 341(h)(7). Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,

2020). Defendant argues that we should affirm the circuit court’s dismissal based on plaintiff’s

deficient brief, which features an argument section that is devoid of both citations to the record

and supportive case law.

¶ 16 We have inherent authority to dismiss an appeal based on an appellant’s brief’s

noncompliance with this court’s rules. See In re Marriage of Gallagher, 256 Ill. App. 3d 439,

442 (1993). A litigant’s self-represented status does not relieve his or her burden to comply with

the court's rules. Oruta v. B.E.W. & Continental, 2016 IL App (1st) 152735, ¶ 30. Yet, it is

within our discretion to reach the merits of an appeal where a brief sufficiently apprises the court

of the issues. Gallagher, 256 Ill. App. 3d at 442. Similar discretionary leniency may be afforded

where the facts presented on appeal are simple and the basis for appeal is fairly clear. See In re

Marriage of Burke, 185 Ill. App. 3d 253, 255 (1989); Boeger v. Boeger, 147 Ill. App. 3d 629,

630 (1986). In fact, imposing the harsh sanction of striking an appellate brief based on a

violation of procedural rules is only appropriate when such violation hinders our review. In re

Detention of Powell, 217 Ill. 2d 123, 132 (2005).

¶ 17 Illinois Supreme Court Rule 341(h) governs the contents of an appellant’s brief,

providing an itemization of the various sections and the corresponding requirements. Within the

argument section, the rule requires the appellant to cite “the authorities and the pages of the

record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). An appellant’s cross-reference of the

underlying facts to his or her argument serves the important function of allowing the reviewing

5 court “to assess whether the facts *** present[ed] are [an] accurate and fair portrayal of the

events in th[e] case.” In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 58. This rule, like

other rules governing the filing and presentation of an appeal, also promotes attaining justice

through the clear and orderly presentation of arguments which allow for the court’s consideration

and disposal of issues. See In re Estate of Kunz, 7 Ill. App. 3d 760, 763 (1972); see also

Zadrozny, v. City Colleges of Chicago, 220 Ill. App. 3d 290, 292 (1991).

¶ 18 Plaintiff’s appellate brief is undeniably muddled. His argument section lists the elements

of a defamation action, and he presents facts to support each element, but he does not provide a

citation to the record. He references his former spouse’s August 23, 2021, voicemail and

defendant’s November 15, 2021, statement, which are found in the preceding statement of facts

section. That section adequately cites to the pages of the record. See Ill. S. Ct. R. 341(h)(6) (eff.

Oct. 1, 2020). This compliance, however, does not excuse plaintiff’s independent obligation to

cite the portion of the record relied upon in his argument section. See Ill. S. Ct. R. 341(h)(7) (eff.

Oct. 1, 2020). The record before us is only 109 pages long. Because plaintiff raises a single issue,

the facts are simple, and the record is short, we find this procedural error insufficient to strike the

brief.

¶ 19 Defendant also contends that plaintiff’s argument section fails to cite any authority, as is

required by the rule, to support his position that her statement falls beyond the ambit of attorney

immunity. See id. We note that at two other points in his brief, plaintiff cites to a string of

authority which, by analogy, he relies on to advocate for a narrower construction of the

pertinency requirement. Although flawed, we find the brief sufficient to apprise this court of the

facts and precedent supporting his appellate argument.

6 ¶ 20 While we do not condone plaintiff’s failure to fully comply with the rule’s requirements,

we find his brief sufficient for us to reach the merits. Brown v. Brown, 62 Ill. App. 3d 328, 332-

33 (1978) (“A court of review may consider improperly raised issues where such consideration is

necessary for a just result.”). In sum, despite the deficiencies in his brief, we find plaintiff

sufficiently notified this court of the straightforward question to be resolved and we exercise our

discretion to address the merits of his claim. See Dillon v. Evanston Hosp., 199 Ill. 2d 483, 493

(2002) (reaching the merits of appellants’ issue despite appellants’ failure to cite any authority

supporting their appellate argument).

¶ 21 A. Application of the Attorney Litigation Privilege

¶ 22 We find plaintiff’s claim that defendant’s comment during the November 15, 2021,

hearing falls beyond the protection of the attorney litigation privilege is without merit.

¶ 23 Defendant brought her motion to dismiss under section 2-619.1 of the Code, which

permits a party to file a combined section 2-615 motion to dismiss and a section 2-619 motion to

dismiss into the same motion. See 735 ILCS 5/2-619.1 (West 2022). In reviewing a motion to

dismiss, “we accept all well-pleaded facts in the complaint as true and draw all reasonable

inferences from those facts in favor of the nonmoving party.” Unterschuetz v. City of Chicago,

346 Ill. App. 3d 65, 68-69 (2004). A circuit court’s dismissal of a complaint under section 2-

619.1 of the Code is subject to de novo review. Morris v. Harvey Cycle & Camper, Inc., 392 Ill.

App. 3d 399, 402 (2009).

¶ 24 Whether an allegedly defamatory statement is subject to an absolute privilege is a

question of law, which we also review de novo. Thompson v. Frank, 313 Ill. App. 3d 661, 664

(2000); Restatement (Second) of Torts § 586, Comment a, at 247 (1977) (The attorney litigation

“privilege is absolute”). Since the circuit court’s stated reason for dismissal is the attorney

7 litigation privilege, for the purposes of our review, our focus is on the applicability of that

privilege as an affirmative matter defeating plaintiff’s claim. Johnson v. Johnson & Bell, Ltd.,

2014 IL App (1st) 122677, ¶ 15; 735 ILCS 5/2-619(a)(9) (West 2022).

¶ 25 In Illinois, the attorney litigation privilege is well-established, affording complete

immunity to an attorney in a defamation action based on his or her statements, irrespective of the

attorney’s knowledge to the statement’s falsity or the attorney’s motives. Golden v. Mullen, 295

Ill. App. 3d 865, 870 (1997), as modified on denial of reh'g (May 1, 1998). The privilege is

rooted in section 586 of the Restatement (Second) of Torts, which provides:

“An attorney at law is absolutely privileged to publish defamatory matter

concerning another in communications preliminary to a proposed judicial

proceeding, or in the institution of, or during the course and as a part of, a judicial

proceeding in which he participates as counsel, if it has some relation to the

proceeding.” Restatement (Second) of Torts § 586 (1977).

¶ 26 A growing body of precedent has extended this privilege beyond the courtroom setting,

immunizing:

“out-of-court communications between opposing counsel [citation], *** out-of-

court communications between attorney and client related to pending litigation

[citation], *** out-of-court communications between attorneys representing

different parties suing the same entities [citation], *** statements made during

quasi-judicial proceedings [citation], *** communications necessarily preliminary

to a quasi-judicial proceeding [citation], and *** out-of-court communications

between an attorney and opposing parties in demand letters prior to litigation

[citation].” Atkinson v. Affronti, 369 Ill. App. 3d 828, 832 (2006); but see

8 Thompson, 313 Ill. App. 3d at 664 (declining to extend the privilege to cover a

communication sent by one party’s attorney to the spouse of the opposing party

while judicial proceeding was pending).

However, the class of communications to which the privilege applies remains narrow. Doe v.

Williams McCarthy, LLP, 2017 IL App (2d) 160860, ¶ 19.

¶ 27 If the defamatory communication was made in the context in which the privilege applies

“[t]he only requirement is that the communication pertain to the proposed or pending litigation”

for immunity to attach. Golden, 295 Ill. App. 3d at 870. The pertinency requirement is not

strictly applied; the privilege will attach even when the communication is not confined to the

specific issues of the litigation and all doubts are resolved in favor of finding the communication

pertains to the proceeding. Id. If the defamatory statement bears no relation to the litigation, then

the privilege will not attach. See id.

¶ 28 Here, we agree with the circuit court that based on the record before us, the only

statement attributable to defendant is the one she made in open court on November 15, 2021.

There can be no dispute that this communication was made during the course of a judicial

proceeding in which she participated as counsel on behalf of plaintiff’s former spouse. What

remains for the privilege to attach is a determination on whether the statement satisfies the

pertinency requirement. We hold that it does.

¶ 29 Defendant’s comment was in response to the court’s inquiry regarding the pending

matters of the lawsuit. Because the court omitted the petition for a temporary restraining order in

its recitation of outstanding matters, defendant informed the court of its existence and argued, in

part, its bases. She followed her statements concerning the temporary restraining order with an

explanation of the status of the other petitions. Implementing the pertinency requirement’s liberal

9 application, we refuse to isolate defendant’s statement that indicated plaintiff may have

instructed his former spouse to murder defendant. Atkinson, 369 Ill. App. 3d at 834. The

statement was related to her client’s petition for a temporary restraining order, as evidenced by

the preceding allegations that plaintiff repeatedly sought to convince his former spouse to

discharge defendant as counsel. At the very least, the statement can be seen as defendant’s

advocacy in the underlying termination of maintenance suit. In so holding, we note that the

motivation for the privilege, which gives attorneys “the utmost freedom in their efforts to secure

justice for their clients” may be most acutely present during an attorney’s opportunity to

advocate before the court. Restatement (Second) of Torts § 586, Comment a, at 247 (1977).

¶ 30 We find that the attorney litigation privilege applies to defendant’s statement, affording

her absolute immunity, and the circuit court properly dismissed plaintiff’s defamation complaint

against defendant pursuant to section 2-619(a)(9) of the Code with prejudice.

¶ 31 III. CONCLUSION

¶ 32 The judgment of the circuit court of Du Page County is affirmed.

¶ 33 Affirmed.