Stein v. Krislov

• Court: Appellate Court of Illinois
• Decided: November 8, 2010
• Docket: 1-09-3478 Rel
• Status: Published

Opinion

FIRST DIVISION November 8, 2010

No. 1-09-3478

ROBERT J. STEIN III, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) CLINTON A. KRISLOV and ) KRISLOV AND ASSOCIATES, LTD., ) The Honorable ) Allen S. Goldberg, Defendants-Appellants. ) Judge Presiding.

JUSTICE LAMPKIN delivered the opinion of the court:

The question before us is whether we have jurisdiction to

review the trial court’s order denying a motion to dismiss based

upon the Citizen Participation Act (735 ILCS 110/1 et seq. (West

Supp. 2007)). Defendants, Clinton Krislov and Krislov &

Associates, Ltd. (K&A), filed the motion to dismiss in response

to a libel action brought by plaintiff, Robert Stein. For the

following reasons, we find that we lack jurisdiction to review

the trial court’s order.

FACTS

Plaintiff is an attorney that was employed by K&A from 1994-

2001. Krislov is the sole shareholder. After leaving K&A,

plaintiff and his firm were named as one of three firms

representing the plaintiff on a motion for class certification in 1-09-3478

an action in a federal district court in Pennsylvania. While

performing unrelated research, Krislov discovered plaintiff’s

motion for class certification in the Pennsylvania case.

Attached to the motion was a description of plaintiff’s and his

firm’s prior experience. On June 13, 2005, Krislov sent an

unsigned letter to the judge presiding over the Pennsylvania

case, advising that the representations made by plaintiff

regarding his experience were “beyond puffing” and were “simply

misstatements, known by the filers to be untrue.” The federal

judge contacted the attorneys for the parties and provided them

with a copy of Krislov’s letter. On June 24, 2005, plaintiff

responded by letter to the federal judge, disputing Krislov’s

claims and providing supporting documentation to verify

plaintiff’s and his firm’s experience. On July 14, 2005, Krislov

sent a reply letter to the federal judge, responding to

plaintiff’s June 24, 2005, letter. Ultimately, class

certification was granted as to count 1 and denied, for reasons

unrelated to Krislov’s letter, as to counts 2 and 3.

On May 10, 2006, plaintiff filed his first amended complaint

against defendants, alleging libel and libel per se as a result

of Krislov’s letter, in addition to claims for vacation and bonus

pay allegedly owed to him from his K&A employment. Defendants

filed a motion under section 2-619 of the Code of Civil Procedure

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(Code)(735 ILCS 5/2-619 (West 2004)) to dismiss the libel claims,

arguing that the June 13, 2005, letter was absolutely privileged.

On September 20, 2006, the trial court granted defendant’s motion

to dismiss the libel claims. In response, plaintiffs filed a

motion to reconsider. On December 6, 2006, the trial court

reversed its September 20, 2006, order, finding instead that the

June 13, 2005, letter was not absolutely privileged. The libel

claims were reinstated.

On January 11, 2007, defendants moved to reconsider the

December 6, 2006, order. On February 1, 2008, the trial court

denied the motion to reconsider, finding that “[a]bsolute

privileges must be narrowly construed, and where an attorney has

injected himself into litigation with which he has absolutely no

connection, we do not find that any kind of absolute privilege

exists” (emphasis in original), and that Krislov had no absolute

duty under the Illinois Rules of Professional Conduct to report

misconduct elsewhere.

On February 29, 2008, plaintiff filed a third amended

complaint,1 realleging the libel claim and claims for

uncompensated vacation and bonus pay. On August 26, 2009,

defendants filed a motion to reconsider the trial court’s

1 Plaintiff’s second amended complaint is not relevant to

this appeal.

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February 1, 2008, order denying defendants’ motion to reconsider

the trial court’s September 20, 2006, finding that the letter was

not absolutely privileged. Defendants additionally filed a

motion to dismiss the libel claim based on the Citizen

Participation Act (Act). Defendants argued, for the first time,

that they were immunized under the Act because the libel suit was

filed in response to Krislov’s exercise of his constitutional

rights to free speech and participation in government.

On November 20, 2009, the trial court denied defendants’

motion to reconsider its finding that the letter was not

absolutely privileged where defendants relied on Ficaro v.

Funkhouser, Vegosen, Liebman & Dunn, Ltd., Nos. 1-07-1469, 1-07-

3433 cons. (July 31, 2009)(unpublished order pursuant to Supreme

Court Rule 23), to support the allegation that there had been a

change in the law. The trial court held that defendants’

reliance on an unpublished, nonprecedential order was improper.

The trial court further held that the Act, which was enacted on

August 28, 2007, could not provide immunity because it was not

created until after plaintiff’s June 13, 2005, letter and the

filing of plaintiff’s lawsuit on May 10, 2006, and the Act did

not have retroactive application.

Defendants filed a notice of interlocutory appeal citing

Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)) and section

20(a) of the Act (735 ILCS 110/20(a) (West Supp. 2007)) on

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December 17, 2009.

DECISION

The threshold question before us is whether we have

jurisdiction to review the trial court’s denial of defendants’

motion to dismiss plaintiff’s libel claim on the basis of the

Act. “When jurisdiction is lacking, the court must dismiss the

appeal on its own motion.” Almgren v. Rush-Presbyterian-St.

Luke’s Medical Center, 162 Ill. 2d 205, 210, 642 N.E.2d 1264

(1994).

The recently created Act protects against lawsuits known as

“Strategic Lawsuits Against Public Participation” (SLAPP) in

government. 735 ILCS 110/5 (West Supp. 2007). The Act provides:

“The threat of SLAPPs significantly chills and

diminishes citizen participation in government,

voluntary public service, and the exercise of these

important constitutional rights [to petition, speak

freely, associate freely, and otherwise participate in

and communicate with government]. This abuse of the

judicial process can and has been used as a means of

intimidating, harassing, or punishing citizens and

organizations for involving themselves in public

affairs.

It is in the public interest and it is the purpose

of this Act to strike a balance between the rights of

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persons to file lawsuits for injury and the

constitutional rights of persons to petition, speak

government; to protect and encourage public

participation in government to the maximum extent

permitted by law; to establish an efficient process for

identification and adjudication of SLAPPs; and to

provide for attorney’s fees and costs to prevailing

movants.” 735 ILCS 110/5 (West Supp. 2007).

Defendants contend this court has jurisdiction to review

this appeal as an interlocutory appeal based on Rule 307(a) and

the language of section 20(a) of the Act. We disagree.

Article VI, section 6, of the Illinois Constitution grants

the right to appeal from final judgments. Ill. Const. 1970, art.

VI, §6. The Illinois Constitution further states that “[t]he

Supreme Court may provide by rule for appeals to the Appellate

Court from other than final judgments of Circuit Courts.” Ill.

Const. 1970, art. VI, §6. “There is no corresponding

constitutional right to appeal from interlocutory orders of the

circuit court. Rather, article VI, section 6, vests this court

with the authority to provide for such appeals, by rule, as it

sees fit. [Citation.] Except as specifically provided by those

rules, the appellate court is without jurisdiction to review

judgments, orders or decrees which are not final. [Citation.]”

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Almgren, 162 Ill. 2d at 210. Rule 307 describes the instances

when an appeal may be taken from an interlocutory order as of

right. 188 Ill. 2d R. 307. In relevant part, Rule 307(a)(1)

provides for interlocutory appeals from a trial court order

“granting, modifying, refusing, dissolving, or refusing to

dissolve or modify an injunction.” (Emphasis added.) 188 Ill. 2d

R. 307(a)(1).

An injunction is “ ‘a judicial process, by which a party is

required to do a particular thing, or to refrain from doing a

particular thing, according to the exigency of the writ, the most

common sort of which operate to restrain upon the party in the

exercise of his real or supposed rights.’ ” In re A Minor, 127

Ill. 2d 247, 261, 537 N.E.2d 292 (1989), quoting Wangelin v. Goe,

50 Ill. 459, 463 (1869). When determining whether a trial

court’s action constitutes an appealable injunctive order, the

substance of the action, not the form, is relevant. In re A

Minor, 127 Ill. 2d at 260. Temporary restraining orders and

orders staying or denying the stay of proceedings are reviewable.

In re A Minor, 127 Ill. 2d at 260-61. In addition, review may be

taken from orders compelling arbitration (Glazer’s Distribution

of Illinois, Inc. v. NWS-Illinois, LLC, 376 Ill. App. 3d 411,

423, 876 N.E.2d 203 (2007)) as well as, in the case of In re A

Minor, where there was an order compelling a newspaper not to

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publish the name of a minor involved in the proceeding (In re A

Minor, 127 Ill. 2d at 261). In contrast, denials of motions to

dismiss are not reviewable. See, e.g., Murges v. Bowman, 254

Ill. App. 3d 1071, 1084, 627 N.E.2d 330 (1993); In re Petition of

Filippelli, 207 Ill. App. 3d 813, 817-18, 566 N.E.2d 412 (1990);

Rotary Club of Chicago v. Harry F. Shea & Co., 120 Ill. App. 3d

988, 994, 458 N.E.2d 1002 (1983); People ex rel. Fahner v.

Community Hospital of Evanston, 108 Ill. App. 3d 1051, 1056-57,

440 N.E.2d 200 (1982); Lester Witte & Co. v. Lundy, 98 Ill. App.

3d 1100, 1103, 425 N.E.2d 1 (1981).

We recognize that the meaning of “injunction” should be

construed broadly (In re A Minor, 127 Ill. 2d at 261); however,

the motion to dismiss in this case does not constitute an

injunction. Defendants were not required to do anything or

forced to refrain from anything as a result of the trial court’s

order denying their motion to dismiss. Defendants were not

restrained in their speech where the trial court issued no

directive regarding defendants’ ability to speak about the case.

In its order, the trial court simply concluded that the Act did

not apply to the case at bar because the newly created immunity

could not be applied retroactively. Defendants retain the

ability to defend Krislov’s actions in the underlying lawsuit

where they can assert the same arguments in defense of Krislov’s

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letter despite the lack of immunity from the Act.

Although we are not required to follow decisions of other

districts (People v. Riley, 209 Ill. App. 3d 212, 568 N.E.2d 74

(1991)), we agree with the Fifth District in Mund v. Brown, 393

Ill. App. 3d 994, 913 N.E.2d 1225 (2009),2 insofar as it disputed

the plaintiff’s argument that the denial of a motion to dismiss

under the Act is essentially an injunction against the pursuit of

a SLAPP (Mund, 393 Ill. App. 3d at 997). The Mund court said

“[u]nder [the plaintiff’s] analysis, every motion to dismiss

would be a request for an injunction to stop a lawsuit and would

be immediately appealable.” Mund, 393 Ill. App. 3d 997. Simply

put, the motion to dismiss here was not injunctive in nature.

We, therefore, conclude that jurisdiction was not provided

through Rule 307(a)(1).

Notwithstanding, defendants contend that subject-matter

jurisdiction is conferred by section 20(a) of the Act. Section

20(a) of the Act provides:

“On the filing of any motion [which includes ‘any

motion to dismiss, for summary judgment, or to strike,

2 There are no decisions contrary to Mund and leave to appeal

was denied by the supreme court (Mund v. Brown, 234 Ill. 2d 525,

920 N.E.2d 1074 (2009)); therefore, the holding remains

undisturbed.

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or any other judicial pleading filed to dispose of a

judicial claim’ (735 ILCS 110/10 (West Supp. 2007))] as

described in Section 15 [‘to dispose of a claim in a

judicial proceeding on the grounds that the claim is

based on, relates to, or is in response to any act or

acts of the moving party in furtherance of the moving

party’s rights of petition, speech, association, or to

otherwise participate in government’ (735 ILCS 110/15

(West Supp. 2007))], a hearing and decision on the

motion must occur within 90 days after notice of the

motion is given to the respondent. An appellate court

shall expedite any appeal or other writ, whether

interlocutory or not, from a trial court order denying

that motion or from a trial court’s failure to rule on

that motion within 90 days after that trial court order

or failure to rule.” 735 ILCS 110/20(a) (West Supp.

2007).

We need not determine whether it was, in fact, the intent of

the legislature to confer appellate jurisdiction following the

denial of a motion to dismiss pursuant to the Act. It is well

established that the supreme court is responsible for the rules

governing appeals, not the legislature. Chapman v. United

Insurance Co. of America, 234 Ill. App. 3d 968, 971 (1992).

“[W]here a rule of the supreme court on a matter within the

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court’s authority and a statute on the same subject conflict, the

rule will prevail.” Chapman, 234 Ill. App. 3d at 972, citing

O’Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281, 492

N.E.2d 1322 (1986). The Committee Comments for Rule 307

expressly state that the supreme court rules provide for “all

interlocutory appeals” in conjunction with article VI, section 6,

of the Illinois Constitution. 188 Ill. 2d R. 307, Committee

Comments. Therefore, appellate jurisdiction for interlocutory

appeals must originate from the supreme court rules.

We previously determined that the denial of the motion to

dismiss in this case was not a final judgment and not injunctive

in nature. Though we recognize that statutes are presumed

constitutional, if the legislature was attempting to provide

appellate jurisdiction from a nonfinal order not falling within

the dictates of Rule 307, a constitutional conflict would exist.

Mund, 393 Ill. App. 3d at 997. “If a supreme court rule does not

grant the right to appeal from a nonfinal judgment, then there is

no right to an interlocutory appeal and the appellate court does

not have jurisdiction to hear the appeal. [Citation.] Thus, a

statute that claims to give a right to an interlocutory appeal

not covered by supreme court rules or to give the appellate court

jurisdiction over that appeal would violate article VI, section

6, of the constitution. Such a statute also would violate the

separation-of-powers clause in article II, section 1, of the

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constitution ***.” Mund, 393 Ill. App. 3d at 997-98; see

Almgren, 162 Ill. 2d at 213. Appellate jurisdiction is,

therefore, not conferred by section 20(a) of the Act.

We note that we granted defendants leave to cite the

additional authority of Shoreline Towers Condominium Assoc. v.

Gassman, Nos. 1-08-2438, 1-09-2180 cons. (September 30, 2010).

After reviewing Gassman, we find the case did not address the

question of jurisdiction under the Act. We, therefore, find that

Gassman is of no assistance to our decision.

Finally, we decline defendants’ request to adopt the federal

“collateral order doctrine.” The collateral order doctrine was

announced by the Supreme Court in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1948),

and is designed to address a limited set of nonfinal orders that

“finally determine claims of right separable from, and collateral

to, rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is

adjudicated.” Cohen, 337 U.S. at 546, 93 L. Ed. at 1536, 69 S.

Ct. at 1225-26. It is beyond our authority to adopt the federal

collateral order doctrine where no such doctrine exists under

Illinois law and no Illinois courts have done so in the 60 years

since the doctrine was pronounced. See People v. Miller, 35 Ill.

2d 62, 67, 219 N.E.2d 475 (1966).

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CONCLUSION

We dismiss this appeal for lack of jurisdiction.

Dismissed.

HALL, P.J., and HOFFMAN, J., concur.

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