Henby v. White ( 2016 )

NOTICE
2016 IL App (5th) 140407
Decision filed 08/01/16. The
text of this decision may be NO. 5-14-0407
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
KELLY A. HENBY, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Richland County.
)
v. ) No. 13-OP-04
)
RICHARD WHITE, ) Honorable
) Christopher L. Weber,
Respondent-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Goldenhersh and Moore concurred in the judgment and opinion.
OPINION
¶1 The petitioner, Kelly A. Henby, appeals the circuit court's decision to dismiss with
prejudice his third amended verified petition for a stalking no contact order against the
respondent, Richard White. For reasons that follow, we affirm.
¶2 The respondent, Richard White, is an Illinois State Police officer. The petitioner,
Kelly Henby, retired from the Illinois State Police in 2008. At one point in time, Henby
was White's supervisor.
¶3 On January 29, 2013, Henby filed a pro se verified petition for a stalking no
contact order in the circuit court of Richland County against White, under the Stalking
1
No Contact Order Act (Act) (740 ILCS 21/1 et seq. (West 2012)). In support of the
petition, Henby alleged that in the fall of 2011, his father-in-law, Don Riggs, had
encountered White at a nursing home in Fairfield; that the encounter occurred while Don
Riggs was visiting his own mother, Goldie Manlove, who had recently been admitted to
the nursing home due to her infirmities; and that Don Riggs was upset by the encounter
because he was aware that White had caused trouble for Henby. Henby further alleged
that after Goldie Manlove died, White appeared at the Nales Funeral Home for Goldie
Manlove's visitation, when he knew that Henby would be present. Henby claimed that
when White was told he was not welcome, he did not initially respond but then smiled at
Henby and left. Henby sought an order directing White to refrain from contacting Henby
and his family and an order prohibiting White from possessing a Firearm Owner's
Identification Card.
¶4 According to a docket entry dated January 29, 2013, the circuit court heard sworn
testimony from the petitioner that day, without notice to White, and found good cause to
enter an emergency order of protection. The court identified two acts that could
constitute stalking under the Act. The first act occurred when White, while visiting the
nursing home where Goldie Manlove resided, spoke to and upset Don Riggs. The second
occurred on January 28, 2013, when White went to the visitation for Goldie Manlove and
initially refused to leave when told he was not welcome. The court directed that the
emergency order would remain in effect until the plenary hearing on February 13, 2013.
¶5 On January 31, 2013, White filed a petition for rehearing under section 120(c) of
the Act (740 ILCS 21/120(c) (West 2012)). In his petition, White asserted that he did not
2
receive notice of the emergency hearing and that he was thereby prejudiced because he
had meritorious defenses. White alleged that the petition contained false statements and
that it failed to state a claim for relief.
¶6 An evidentiary hearing on White's motion was held on February 5 and 7, 2013.
The court heard testimony from White, Henby, Donna Henby, Don Riggs, Master
Sergeant Jay Hall, and the minister at Goldie Manlove's church. The testimony revealed
that the conflict between White and Henby began in 2010. We present an overview of
the evidence for the purpose of providing a contextual framework for the allegations at
issue, remaining mindful that the case was dismissed for failure to state a cause of action.
¶7 In 2010, White was assigned to investigate a criminal case involving allegations
that a man named Jim Hinkle had improperly touched a minor child, who was related to
Hinkle. Hinkle was a retired Illinois State Police officer and former sheriff of Wayne
County. In light of the serious allegations, Hinkle asked Henby to independently
investigate the allegations on behalf of Hinkle. Henby had been working as an
independent contractor for a private investigative agency since his 2008 retirement from
the Illinois State Police, but he was not a licensed private detective. Henby agreed to
help Hinkle without charge. In September 2010, Henby arranged to interview the minor
at her home in Coles County. Before beginning the interview, Henby represented to the
minor that he was a private detective. During the recorded interview with the minor, she
disavowed the allegations against Hinkle. Apparently, prior to the interview and
unbeknownst to Henby or White, the minor had informed a juvenile officer that she
wanted to withdraw her complaint against Hinkle.
3
¶8 When White learned of Henby's involvement in the investigation, he contacted the
Illinois Department of Financial and Professional Regulation (Department) to determine
whether Henby was licensed as a private detective. Upon learning that Henby did not
have a license, White filed an administrative complaint with the Department, which then
opened an investigation into Henby's conduct. White also contacted the State's Attorney
in Coles County and asked that Henby's conduct be reviewed. Henby was thereafter
charged with a misdemeanor for acting as an unlicensed investigator, and a warrant was
issued for his arrest. On February 15, 2011, Henby turned himself in and posted bond.
The criminal case was delayed pending the outcome of the administrative proceeding.
An administrative hearing before an administrative law judge commenced on December
3, 2012, and ended on December 5, 2012. After considering the evidence, the
administrative law judge found that Henby had acted as a private detective without being
licensed and recommended that Henby be fined $1000 for the violation. The Secretary of
the Department accepted the findings and recommendation of the administrative law
judge. The misdemeanor charge was nol-prossed on December 5, 2012, in light of the
administrative hearing.
¶9 Meanwhile, the criminal investigation against Jim Hinkle was terminated, and no
charges were filed. Thereafter, in early 2012, Hinkle filed a civil action against White
and another law enforcement officer in the federal court for the Southern District of
Illinois. Henby was identified as a witness in that case. The testimony also revealed that
Henby intended to file an action against White in federal court.
4
¶ 10 During the hearing, the court heard testimony about an encounter between Henby's
father-in-law, Don Riggs, and White. In September 2012, Don Riggs crossed paths with
White at a nursing home in Fairfield, Illinois. This encounter occurred while Riggs was
visiting his mother, Goldie Manlove, who had recently been admitted to the nursing
home due to infirmities. Upon learning that White had spoken to Riggs at the nursing
home, Henby became upset and phoned White's supervisor, Master Sergeant Jay Hall.
Henby asked Hall to direct White to have no further contact with Henby or Henby's
family. Hall talked with White but did not direct him to stay away from Henby. At the
time of the hearing, neither White nor Riggs, then 84 years old, could recall the
encounter.
¶ 11 The court also heard testimony about an incident that occurred during the
visitation for Goldie Manlove. Goldie Manlove passed away in January 2013. The
visitation and funeral were held on January 28, 2013. Goldie Manlove had attended the
same church as White and his family, and she had participated in Sunday school classes
taught by White. White wanted to pay his respects but was concerned about
encountering Henby at the funeral home. When White discussed the situation with his
wife, she advised that she had seen Don Riggs at the local McDonald's restaurant and that
she overheard Riggs mention that Henby and his wife would not be attending the
visitation because they would be returning from an important weekend gymnastics
competition. In light of this conversation, White went to the Nales Funeral Home on the
morning of January 28, 2013. As he went up the steps of the funeral home, he was
stopped by Henby's wife, Donna. Donna told White that he was not welcome and asked
5
him to leave. White did not immediately move. Henby then came out and told White to
leave. When White did not turn and leave immediately, Henby yelled at him and used an
expletive. White then turned to leave. He glanced back in Henby's direction before
departing.
¶ 12 After the testimony concluded, White moved for a directed verdict. White argued
that Henby had failed to establish the requisite two acts of stalking to satisfy the course of
conduct element of the Act. After considering the evidence and the arguments of
counsel, the trial court concluded that Henby failed to present a prima facie case that
White had engaged in a course of conduct under the Act. The court found that Henby
had presented a prima facie case of one act, that being the act at the funeral home. The
court further found that Henby had not presented sufficient evidence from which to find a
second act of stalking. The court entered a directed verdict in favor of White and vacated
the emergency stalking no contact order. The court then granted Henby leave to file an
amended petition.
¶ 13 On March 7, 2013, Henby filed an amended verified petition for a stalking no
contact order. The amended petition reasserted the prior allegations regarding White's
appearance at the funeral home and presented new allegations regarding White. These
new allegations claimed that White had either issued, or caused to be issued, press
releases setting forth information about Henby's prior arrest. Ostensibly, these press
releases were provided to news outlets in Henby's home town and around southern
Illinois. Henby alleged that a witness named Roy Finley had been deposed in the federal
case filed by Jim Hinkle; that Finley testified about a conversation he had with White in
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January 2012, which was about a month prior to Henby's arrest; that during this
conversation, White told Finley to be listening to the news for stories regarding an
investigation involving two people that Finley knew; and that Finley later read an
elaborate story about Henby's involvement with Hinkle in the Disclosure newspaper.
Henby further alleged that White issued the press releases in an effort to embarrass and
harass Henby and to cause Henby severe emotional distress.
¶ 14 White filed a motion to dismiss the amended petition on the ground that the
petition failed to state a claim on which relief may be granted. White claimed that many
of the allegations in the amended petition had previously been reviewed and rejected by
the court. White further claimed that the misdemeanor charge against Henby was a
matter of public record and that White's alleged dissemination of information about
Henby's arrest to the media did not constitute stalking under the Act. After considering
the oral and written arguments of counsel, the court dismissed Henby's amended petition
without prejudice. In its order, the court noted that it had previously considered most of
the allegations in the amended petition and that it had previously found that the funeral
home incident was the only act that could constitute stalking. The court recognized that
there were two sets of factual allegations that it had not previously considered. The first
involved allegations that White had issued press releases regarding Henby's arrest. The
second involved the deposition testimony of Finley. The court reviewed the allegations
regarding press releases and determined that the allegations, as pled, did not constitute
stalking and would not cause a reasonable person to fear for his safety. The court
reviewed the allegations regarding Finley's testimony and found that nothing within the
7
alleged conversation between White and Finley would constitute stalking. The court
further found that the amended petition did not allege sufficient facts to show that White
had anything to do with the news story that Finley referenced.
¶ 15 On July 23, 2013, Henby filed a second amended verified petition for a stalking no
contact order. The second amended petition contained the same basic allegations but
included an attached statement that was purportedly authored by Roy Finley. On August
22, 2013, White filed a motion to dismiss and a request for sanctions. Following a
hearing on October 15, 2013, the trial court dismissed the second amended petition with
prejudice. The court found that the allegations regarding the press releases, as pled,
would not constitute stalking as defined in the Act and that the allegations in the second
amended petition failed to allege sufficient facts to show two separate acts to establish a
course of conduct under the Act. The court denied White's motion for sanctions.
¶ 16 Henby filed a motion to reconsider and claimed that new information regarding
the press releases had been obtained as a result of the deposition of Greg Hanisch, taken
during the discovery phase of Hinkle's federal lawsuit. The court granted the motion and
allowed Henby to amend his petition.
¶ 17 On April 22, 2014, Henby filed a third amended verified petition. The petition
included a few new factual allegations regarding White's alleged dissemination of
information to the press about Henby's arrest. The new allegations asserted that White
had contacted Greg Hanisch, a sheriff's deputy who had been working with the Illinois
State Police on a drug task force; that White suggested that Hanisch provide information
about Henby's arrest to the publisher of the Disclosure newspaper; that, upon information
8
and belief, the deputy provided that information to the publisher; and that the information
was printed in the March/April 2011 edition of the Disclosure newspaper. Neither the
news article nor the transcript of Hanisch's deposition was attached to the third amended
petition.
¶ 18 White moved to dismiss the third amended verified petition for failure to state a
cause of action. White argued that the third amended petition alleged, at best, one act
that could constitute stalking and that there were no allegations that he communicated
threats of violence or intimidation. After considering the arguments of counsel, the court
found that White's conduct in providing information to the media about Henby appeared
to be motivated by "personal hostility" but that the conduct, as pled, did not constitute
"threats of violence or intimidation" under the Act. The court also found that the conduct
alleged was protected free speech. The court concluded that the third amended petition
set forth only one act that could constitute stalking and that it failed to state a cause of
action. The court dismissed the third amended petition with prejudice. This appeal
followed.
¶ 19 On appeal, Henby contends that the third amended petition alleges at least two acts
of stalking as required to establish a "course of conduct" as defined in section 10 of the
Act (740 ILCS 21/10 (West 2012)) and that the trial court erred in dismissing the third
amended petition for failure to state a cause of action.
¶ 20 Illinois is a fact-pleading jurisdiction. Therefore, a party must allege sufficient
facts to bring his or her claim within the scope of a legally recognized cause of action.
Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733 (2003).
9
A motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-
615 (West 2012)) attacks the legal sufficiency of the petition. Chandler, 207 Ill. 2d at
348, 798 N.E.2d at 733. The question presented by a section 2-615 motion is whether the
allegations of the complaint, when viewed in a light most favorable to the plaintiff, are
sufficient to establish a cause of action upon which relief may be granted. Chandler, 207
Ill. 2d at 348, 798 N.E.2d at 733. When deciding a motion to dismiss, the trial court is to
consider only the allegations in the pleadings. Chandler, 207 Ill. 2d at 349, 798 N.E.2d at
733. The trial court's decision to grant a motion to dismiss under section 2-615 is
reviewed de novo. Chandler, 207 Ill. 2d at 349, 798 N.E.2d at 733.
¶ 21 The Stalking No Contact Order Act enables victims of stalking to seek a civil
remedy requiring that the offenders stay away from them. 740 ILCS 21/5 (West 2012).
The purpose of the Act is set forth in the opening section. 740 ILCS 21/5 (West 2012).
Therein, it is recognized that stalking is a serious crime and that victims of stalking fear
for their personal safety and suffer emotional distress, leading many to alter their routines
and some to relocate to other places to avoid the person who is stalking them. 740 ILCS
21/5 (West 2012). This section further states that stalking generally refers to a course of
conduct, not a single act, and that stalking behavior includes following a person;
conducting surveillance of the person; appearing at the person's home, work, or school;
engaging in unwanted communications including making phone calls and sending emails
and text messages; leaving objects for the person; vandalizing the person's property; or
injuring a pet. 740 ILCS 21/5 (West 2012).
10
¶ 22 Section 10 of the Act provides definitions for some of the words and phrases used
in the Act. 740 ILCS 21/10 (West 2012). Stalking is defined as "engaging in a course of
conduct directed at a specific person, and he or she knows or should know that this
course of conduct would cause a reasonable person to fear for his or her safety or the
safety of a third person or suffer emotional distress." 740 ILCS 21/10 (West 2012).
Stalking does not include an exercise of the right to free speech or assembly that is
otherwise lawful. 740 ILCS 21/10 (West 2012). A course of conduct is defined as "2 or
more acts, including but not limited to acts in which a respondent directly, indirectly, or
through third parties, by any action, method, device, or means follows, monitors,
observes, surveils, threatens, or communicates to or about, a person, engages in other
contact, or interferes with or damages a person's property or pet." 740 ILCS 21/10 (West
2012). A course of conduct may include contact via electronic communications. 740
ILCS 21/10 (West 2012). Contact means "any contact with the victim, that is initiated or
continued without the victim's consent, or that is in disregard of the victim's expressed
desire that the contact be avoided or discontinued, including but not limited to being in
the physical presence of the victim; appearing within the sight of the victim; approaching
or confronting the victim in a public place or on private property; appearing at the
workplace or residence of the victim; entering onto or remaining on property owned,
leased, or occupied by the victim; or placing an object on, or delivering an object to,
property owned, leased, or occupied by the victim." 740 ILCS 21/10 (West 2012).
Emotional distress is defined as "significant mental suffering, anxiety or alarm." 740
ILCS 21/10 (West 2012).
11
¶ 23 An action for a stalking no contact order is commenced by the filing of a verified
petition alleging that the victim has been the victim of stalking by the respondent. 740
ILCS 21/20, 25 (West 2012). Proceedings under the Act are governed by the Illinois
rules of civil procedure, and the standard of proof is a preponderance of the evidence.
740 ILCS 21/30(a) (West 2012).
¶ 24 Initially, Henby argues that his third amended petition alleges two separate acts in
relation to the incident at Nales Funeral Home. Henby asserts (1) that the allegations
regarding White's appearance at the funeral home for the visitation of Goldie Manlove
was one act of stalking and (2) that the allegations that White's wife passed on
information to her husband about a conversation she overheard at the McDonald's
restaurant between Don Riggs and others regarding whether Henby would attend the
funeral constituted a separate act of monitoring Henby's activities and stalking. After
reviewing the third amended petition, we find that the factual allegations regarding
White's appearance at the funeral home are sufficient to set forth one act of stalking. We
do not find, however, that the allegations regarding White's conversation with his wife
about what she overheard while at the local McDonald's restaurant are sufficient to set
forth a separate act of stalking. There are no factual allegations indicating that White
directed his wife to gather information on Henby or that White's wife intentionally
monitored Don Riggs's conversation at the local McDonald's restaurant in an attempt to
acquire information for her husband about Henby's whereabouts. The allegations
regarding the overheard conversation, when taken in a light most favorable to the
petitioner, are not sufficient to establish a separate act of stalking under the Act.
12
¶ 25 We next consider Henby's contention that a separate act of stalking occurred when
White disseminated, or caused a third party to disseminate, Henby's postarrest photo as
well as the news of Henby's arrest to media outlets throughout southern Illinois. Henby
points to the allegations regarding White's conversation with Roy Finley and White's
subsequent suggestion to a sheriff's deputy that he provide information about Henby's
arrest to the publisher of the Disclosure newspaper. Henby argues that the dissemination
of the news of his arrest and the publication of his postarrest photo were acts that were
intended to intimidate him and cause him emotional distress.
¶ 26 Section 10 of the Act states that stalking does not include an exercise of the right
to free speech that is otherwise lawful. 740 ILCS 21/10 (West 2012). The Act only
prohibits speech that constitutes threats of violence or intimidation. Nicholson v. Wilson,
2013 IL App (3d) 110517, ¶ 20, 993 N.E.2d 594. When words are a component of the
stalking behavior, then the speech does not fall within constitutional protections. See
Piester v. Escobar, 2015 IL App (3d) 140457, ¶ 18, 36 N.E.3d 344; McNally v.
Bredemann, 2015 IL App (1st) 134048, ¶ 17, 30 N.E.3d 557. There are cases in which
the dissemination or posting of defamatory, degrading, threatening, or harassing
comments to the media or on social media sites would cause a reasonable person to fear
for his or her safety and would establish a course of conduct of stalking. See Piester,
2015 IL App (3d) 140457, 36 N.E.3d 344; McNally, 2015 IL App (1st) 134048, 30
N.E.3d 557. That type of conduct is not alleged in the case at bar.
¶ 27 In this case, the third amended petition alleges that White disseminated Henby's
postarrest photo and information regarding Henby's arrest to news organizations and
13
media outlets. According to the allegations in the petition, this information was
disseminated to news outlets only after Henby was actually arrested, and the content of
the information regarding the arrest and the filing of charges was, apparently, accurate.
Information regarding the arrest of or the filing of criminal charges against a local officer
or community leader is considered regionally newsworthy and is regularly published.
Postarrest photos are routinely included with the story. There is no allegation that the
disseminated information included threats of violence, intimidation, or harassment that
might cause a reasonable person to fear for his personal safety or to experience
significant mental suffering, anxiety, or alarm. There is no allegation that Henby altered
his schedule or routine in order to avoid White. After reviewing the third amended
complaint in a light most favorable to the petitioner, we conclude that the factual
allegations regarding the dissemination of information to the press, as pled, are
insufficient to allege stalking behavior within the meaning and the purpose of the Act. In
addition, the trial court gave the petitioner three opportunities to cure the defects in his
original petition, and the petitioner was unable to allege sufficient facts to establish a
course of conduct as required under the Act. Accordingly, we conclude that the third
amended petition was properly dismissed with prejudice for failure to state a cause of
action under the Stalking No Contact Order Act.
¶ 28 Before leaving this point, we note that White has asked this court to impose
sanctions on Henby under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994). The
purpose of Rule 375(b) is to punish abusive conduct by litigants and their attorneys who
appear before us. Fraser v. Jackson, 2014 IL App (2d) 130283, ¶ 51, 12 N.E.3d 62.
14
Sanctions can be imposed if an appeal is deemed frivolous or not filed in good faith.
Fields v. Lake Hillcrest Corp., 335 Ill. App. 3d 457, 466, 780 N.E.2d 357, 364-65 (2002).
Whether to impose sanctions under Rule 375(b) is a matter left strictly to our discretion.
Fields, 335 Ill. App. 3d at 466, 780 N.E.2d at 364-65. After considering Henby's
arguments in light of the record before us, we do not find that the appeal is wholly
frivolous or that Henby filed this appeal as a means to harass White. White's request for
Rule 375(b) sanctions is hereby denied.
¶ 29 Given our disposition of the first issue, affirming the dismissal of the third
amended petition with prejudice, we have no occasion to consider Henby's remaining
contention.
¶ 30 Accordingly, the judgment of the circuit court of Richland County is affirmed.
¶ 31 Affirmed.
15
2016 IL App (5th) 140407
NO. 5-14-0407
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
KELLY A. HENBY, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Richland County.
)
v. ) No. 13-OP-04
)
RICHARD WHITE, ) Honorable
) Christopher L. Weber,
Respondent-Appellee. ) Judge, presiding.
_______________________________________________________________________
Opinion Filed: August 1, 2016
________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable Richard P. Goldenhersh, J., and
Honorable James R. Moore, J.,
Concur
________________________________________________________________________
Attorney Charles C. Roberts, The Law Offices of Charles C. Roberts, Ltd.,
for 504 West Main Street, Olney, IL 62450
Appellant
________________________________________________________________________
Attorney Paige Clark Strawn, Quinn Law & Mediation, LLC, 901 North
for Street, Mt. Vernon, IL 62864
Appellee
________________________________________________________________________