Same Condition, LLC v. Codal, Inc. , 2024 IL App (1st) 230554-U ( 2024 )

2024 IL App (1st) 230554-UNo. 1-23-0554
Order filed February 21, 2024
Third Division
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
SAME CONDITION, LLC, an Illinois Limited Liability ) Appeal from the
Company, ) Circuit Court of
) Cook County.
Plaintiff and Counterdefendant-Appellant, )
)
v. ) No. 19 L 5407
)
CODAL, INC., an Illinois Corporation, )
)
Defendant and Counterplaintiff-Appellee )
) Honorable
(Munish Kumar, a/k/a Munish Kumar Raizada, ) Diane M. Shelley and
) Thomas More Donnelly,
Counterdefendant-Appellant). ) Judges presiding.
JUSTICE VAN TINE delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: We dismiss Same Condition and Munish Kumar’s appeal of a permanent injunction
that the circuit court entered against them because the law of the case is that we
lack jurisdiction to hear that appeal. We reverse the circuit court’s grant of summary
judgment to Codal on its defamation per quod counterclaim and enter judgment in
Same Condition’s favor on that counterclaim because Codal failed to establish
No. 1-23-0554
special damages. We affirm the circuit court’s award of attorney fees and costs to
Codal for prevailing at summary judgment on its breach of contract counterclaim.
¶2 Same Condition, LLC, and its president, Munish Kumar, appeal from the circuit court’s
grant of summary judgment in favor of Codal, Inc., on Codal’s counterclaim for defamation per
quod, a permanent injunction that the court entered against Same Condition in the summary
judgment ruling, and the court’s award of $309,741.10 in attorney fees and costs to Codal for
prevailing at summary judgment on its breach of contract counterclaim. 1 For the following reasons,
we dismiss Same Condition’s appeal of the injunction due to lack of jurisdiction, we reverse the
grant of summary judgment to Codal and enter judgment in Same Condition’s favor on the
defamation per quod counterclaim, and we affirm the circuit court’s award of attorney fees and
costs.
¶3 I. BACKGROUND
¶4 The procedural history of this case is extensive and has already been discussed at length in
three related appeals. Same Condition v. Codal, 2021 IL App (1st) 201187 (Same Condition I);
Same Condition v. Codal, 2022 IL App (1st) 220687-U (Same Condition II); Same Condition v.
Codal, 2023 IL App (1st) 221441-U (Same Condition III). We set out only the facts that are
relevant to the issues in this appeal.
¶5 This lawsuit arises out of a 2017 contract in which Same Condition hired Codal to develop
a medical software application. Munish Kumar is Same Condition’s president. According to Same
Condition, Codal delivered the application six months late and in a state that was inadequate for
public release. Three months after that, Codal indicated that it needed at least 100 more hours of
1
Generally, we will refer to Same Condition and Kumar collectively as “Same Condition.” Where
necessary, we will differentiate between the company and Kumar, its principal.
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No. 1-23-0554
work to fix the defects and enable public release of the application. Same Condition began posting
disparaging comments online about Codal. In brief, Same Condition repeatedly accused Codal of
“unethical business practices,” being “incompetent,” and having “cheated” Same Condition on
Twitter, LinkedIn, Google, and other social media platforms, as well as a blog that Same Condition
created at the address codalsucks.blogspot.com.
¶6 In 2019, Same Condition sued Codal for breach of contract, fraud, and unjust enrichment.
Codal brought counterclaims for breach of contract, unjust enrichment, quantum meruit,
defamation per se, defamation per quod, commercial disparagement, and violation of the Uniform
Deceptive Trade Practices Act (815 ILCS 510/2(a)(8) (West 2018)). Codal’s breach of contract
counterclaim alleged that Same Condition did not pay an invoice for $30,750. Codal’s non-contract
counterclaims were based on Same Condition’s disparaging online comments.
¶7 As the case progressed, Same Condition continued posting critical comments about Codal
online. Same Condition I, 2021 IL App (1st) 201187, ¶ 1. Codal moved for a preliminary injunction
and a restraining order to stop such conduct. Id. The circuit court denied those motions but, using
its inherent authority to manage the case, prohibited Same Condition from making further posts
about Codal. Id. Same Condition appealed, arguing that the circuit court’s order was an
unconstitutional restriction on its free speech. Id. ¶ 2. We agreed and vacated the circuit court’s
order. Id.¶8 In September 2021, Codal moved for summary judgment on all claims and counterclaims.
Relevant here, Codal sought summary judgment on its counterclaim for defamation per quod,
arguing that “Same Condition posted hundreds of defamatory statements on social media including
allegations that Codal is incompetent, that Codal cheated [Same Condition], that Codal is
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unprofessional, [and] that Codal unethically charged U.S. based rates for development work that
took place in India.” In support of this claim, Codal explained how each of Same Condition’s
online statements was false. Codal did not allege or seek money damages for defamation.
However, Codal requested an injunction requiring Same Condition to “remove all published
statements about Codal” and to “refrain from publishing similar statements about Codal in the
future.” Same Condition did not file a response to Codal’s motion for summary judgment.2
¶9 On December 7, 2021, the circuit court granted summary judgment in Codal’s favor on all
of Same Condition’s claims, as well as Codal’s counterclaims for breach of contract, defamation
per quod, and commercial disparagement. The court denied summary judgment on Codal’s
defamation per se and Deceptive Trade Practices Act counterclaims. The court awarded Codal
“$30,750 in expectation damages plus applicable late fees for Same Condition’s breach of
contract,” but awarded no damages on the defamation and commercial disparagement claims. The
court found that
“[a]lthough *** Dr. Munish Kumar’s statements on social media and various other online
forums are defamatory, Codal is not entitled to receive damages because this court has not
been presented with evidence of lost earnings, future lost earning capacity, and other lost
business or economic opportunities that it suffered or is likely to suffer as a result of the
defamatory statement[s].”
However, the court entered the following injunction:
2
The record contains two ex parte letters from Kumar to the circuit court judge dated August 29
and 31, 2021, which appear to request denial of Codal’s motion for summary judgment. However, the
letters contain no legal argument, citation to authority, or citation to the record, and are largely
incomprehensible.
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“(a) Dr. Kumar and/or Same Condition must remove all published statements
about Codal and/or its clients, customers, employees, agents, principals, representatives,
affiliates, independent contractors, officers, directors, managers, members, shareholders,
attorneys, subsidiaries, insurers, heirs, successors, and assigns within thirty (30) days of
this Order;
(b) Dr. Kumar and/or Same Condition must assign the domain name
Codalsucks.blogspot.com to Codal within thirty (30) days of this Order; and
(c) Dr. Kumar, Same Condition, and any of its employees, agents, principals,
representatives, affiliates, independent contractors, officers, directors, managers,
members, shareholders, attorneys, subsidiaries, insurers, heirs, successors, and assigns
must refrain from publishing similar statements about Codal and/or its clients, customers,
employees, agents, principals, representatives, affiliates, independent contractors,
officers, directors, managers, members, shareholders, attorneys, subsidiaries, insurers,
heirs, successors, and assigns in the future.”
Finally, the court awarded Codal attorney fees and costs pursuant to section 10.2 of the parties’
contract and set a briefing schedule for its fee petition.
¶ 10 Codal filed a petition seeking $311,247.25 in attorney fees and costs. In support of its
petition, Codal submitted evidence of its attorneys’ experience and hourly rates, typical hourly
rates for attorneys in the field, and detailed billing records reflecting the attorneys’ work on this
case. Same Condition did not file a response to the fee petition. However, Kumar sent an ex parte
letter to the circuit court judge requesting that the court “summarily dismiss the [f]ee petition by
Codal as they have already sucked money out of [his] startup and are now flexing muscles for just
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being a rich, resourceful and unethical business or company being aided by equally fat and
resourceful attorneys.”
¶ 11 On January 24, 2022, the court awarded Codal attorney fees and costs totaling $309,741.10.
The court explained that Codal presented detailed billing records and evidence of its attorneys’
hourly rates, whereas Same Condition “provided no evidence in its [o]pposition or during the
hearing as to why the specific fees or costs included in the [f]ee [a]ward are unreasonable” and
“generally argued that no fees should be awarded.” The court awarded Codal all requested fees
and costs, less $900 in time billed by paralegals and $563.13 in firm overhead costs. 3
¶ 12 On February 23, 2022, Same Condition filed a motion to vacate or reconsider the summary
judgment and attorney fees orders pursuant to section 2-1203 of the Code of Civil Procedure (735
ILCS 5/2-1203 (West 2022)). In relevant part, Same Condition argued that the permanent
injunction was an unconstitutional prior restraint on its right to free speech. The motion did not
address the attorney fees and costs award. The court denied the motion to vacate or reconsider.
Same Condition appealed the denial of its motion to vacate or reconsider, which initiated Same
Condition II. We dismissed the appeal for lack of jurisdiction because Same Condition’s motion
to vacate or reconsider was untimely. Same Condition II, 2022 IL App (1st) 220687-U, ¶ 4.
¶ 13 While the Same Condition II appeal was pending, Codal pursued collection of attorney fees
and costs in the circuit court by issuing citations to discover assets against Same Condition and
Kumar. The circuit court quashed the citations issued to Kumar and his bank because only Same
3
The circuit court’s order appears to contain an arithmetic mistake. Codal’s requested fees and
costs of $311,247.25, which the court awarded minus $900 in paralegal time and $563.13 in overhead
costs, which equals $309,784.12, not $309,741.10. However, Same Condition does not challenge the
court’s arithmetic on appeal.
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Condition, not Kumar, was the judgment debtor as to Codal’s attorney fees and costs. Codal
appealed and this court affirmed, but allowed Codal to issue third-party citations to discover
whether Kumar held any of Same Condition’s assets that could be used to pay fees and costs. Same
Condition III, 2023 IL App (1st) 221441-U, ¶ 1.
¶ 14 On November 14, 2022, Same Condition filed a motion in the circuit court seeking a “final
order closing the case” because “all matters between the parties [were] resolved.” Codal
maintained that its counterclaims for defamation per se and violation of the Deceptive Trade
Practices Act may need to be resolved at trial. The court set the case for trial in April 2023.
However, on February 28, 2023, the court dismissed Codal’s remaining counterclaims with
prejudice by the parties’ agreement, struck the trial date, and terminated this case.
¶ 15 Same Condition timely appealed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, Same Condition challenges (1) the permanent injunction, (2) the circuit court’s
grant of summary judgment to Codal on its defamation per quod counterclaim, and (3) the award
of attorney fees and costs to Codal.
¶ 18 A. Permanent Injunction
¶ 19 Same Condition first challenges the permanent injunction that the circuit court entered in
its December 7, 2021, summary judgment ruling, arguing that it is overbroad and violates the
United States and Illinois constitutions. Codal maintains that we lack jurisdiction to hear Same
Condition’s appeal of the permanent injunction for the same reason we lacked jurisdiction in Same
Condition II, which is now the law of the case.
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¶ 20 In Same Condition II, we began by examining our own jurisdiction. Same Condition II,
2022 IL App (1st) 220687-U, ¶ 41. We explained that the injunction at issue was a permanent
injunction, which is a final and appealable order. Id. ¶¶ 44-45. When the circuit court entered the
permanent injunction on December 7, 2021, Same Condition had 30 days to file a postjudgment
motion or an appeal challenging the injunction. Id. ¶ 48. However, Same Condition filed its
postjudgment motion challenging the injunction on February 23, 2022, 78 days after the injunction
was entered. Id. ¶ 50. Accordingly, we held that, under Section 2-1203(a) of the Code of Civil
Procedure (735 ILCS 5/2-1203(a) (West 2022)) and Supreme Court Rule 304(a) (eff. Mar. 8,
2016), “after the circuit court entered the permanent injunction in this case, Same Condition and
Kumar had 30 days to either appeal that order *** or to file a postjudgment motion challenging
the court’s entry of the permanent injunction. They did neither, resulting in our lack of jurisdiction
to entertain the merits of their appeal.” Id. ¶ 52. We dismissed Same Condition’s appeal. Id.¶ 21 Our holding in Same Condition II is the law of the case. The law of the case doctrine
provides that “ ‘questions of law decided on a previous appeal are binding on the trial court on
remand as well as on the appellate court on a subsequent appeal.’ ” Grundhoefer v. Sorin, 2018 IL
App (1st) 171068, ¶ 10 (quoting Norris v. National Union Fire Insurance Co. of Pittsburgh, 368
Ill. App. 3d 576, 580 (2006)). This court has already held that Same Condition did not file a timely
postjudgment motion or appeal challenging the permanent injunction that the circuit court entered
on December 7, 2021, so we lacked jurisdiction to consider an appeal of that injunction. Nothing
about that has changed since we decided Same Condition II, so we still lack jurisdiction now.
¶ 22 Same Condition argues that, even if we did not have jurisdiction over its appeal of the
permanent injunction at the time of Same Condition II, we now have jurisdiction pursuant to
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Supreme Court Rule 301. Rule 301 simply provides that “[e]very final judgment of a circuit court
is appealable as of right.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). That is true, but it does not change
our conclusion. As we explained in Same Condition II, the permanent injunction entered on
December 7, 2021, was a final judgment. It was appealable as of right under Rule 301, so long as
Same Condition appealed within 30 days. Same Condition did not do that, and Rule 301 does not
act retroactively to cure Same Condition’s delay in challenging the permanent injunction.
¶ 23 Nevertheless, Same Condition contends that “Illinois jurisprudence allows for
resubmission of an appeal dismissed for lack of jurisdiction when those jurisdictional defects are
cured,” citing F.H. Prince & Co., Inc. v. Towers Financial Corp., 266 Ill. App. 3d 977, 993 (1994).
That case only states that a circuit court loses jurisdiction over a final judgment 30 days after it is
entered or 30 days after ruling on the last postjudgment motion, whichever is later. Id. at 988. That
is precisely why the circuit court lost jurisdiction over the permanent injunction, and we never had
jurisdiction to consider it on appeal. Accordingly, we dismiss the part of this appeal that challenges
the circuit court’s December 7, 2021, permanent injunction against Same Condition.
¶ 24 B. Summary Judgment on Defamation Per Quod
¶ 25 Same Condition next challenges the grant of summary judgment to Codal on its defamation
per quod counterclaim. Same Condition argues that the circuit court erred in granting summary
judgment because special damages are an element of defamation per quod and the court found that
Codal presented no evidence of special damages. Same Condition also argues that the circuit court
erred in granting summary judgment based on its “non-actionable opinions.”
¶ 26 A circuit court should grant summary judgment if the pleadings, depositions, affidavits,
and admissions on file establish that there is no genuine issue of material fact and that the moving
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party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020); Cohen v.
Chicago Park District, 2017 IL 121800, ¶ 17. The movant has the burdens of initial production
and ultimate proof. Farmers Automobile Insurance Ass’n v. Burton, 2012 IL App (4th) 110289, ¶
15. When the plaintiff is the movant, it must set forth affirmative evidence of each element of the
cause of action that, if uncontradicted, would entitle it to judgment as a matter of law.4 Id. We
review the grant of summary judgment de novo (Cohen, 2017 IL 121800, ¶ 17), meaning that we
perform the same analysis as the trial court (Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
578 (2011)).
¶ 27 The elements of defamation are that (1) the defendant made a false statement about the
plaintiff, (2) the defendant made an unprivileged publication of that statement to a third party, and
(3) the publication caused the plaintiff’s damages. Dobias v. Oak Park and River Forest High
School District 200, 2016 IL App (1st) 152205, ¶ 53. There are two types of defamation:
defamation per se and defamation per quod. Id. Only Codal’s counterclaim for defamation per
quod is at issue in this appeal. In an action for defamation per quod, in addition to the other three
elements of defamation, the plaintiff must prove special damages. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 103 (1996); see also Anderson v. Vanden Dorpel, 172 Ill. 2d 399,
416 (1996) (“A per quod action requires *** allegations of specific facts establishing the plaintiff’s
special damages.”). Special damages are “actual damages of a pecuniary nature.” Hardiman v.
Aslam, 2019 IL App (1st) 173196, ¶ 5. “In sum, to pursue a defamation per quod action, a plaintiff
4
Codal is the counterplaintiff, but it was the movant on its own claim for defamation per quod at
summary judgment.
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must plead and prove extrinsic facts to explain the defamatory meaning of the statement and that
he suffered actual monetary damages as a result of defendants’ defamatory statement.” Id.¶ 28 Codal’s motion for summary judgment did not address damages with respect to its
defamation per quod counterclaim.5 The motion claimed that Same Conditions’s “defamatory
social media posts are eminently harmful, and the harm is apparent on its face,” but did not present
any evidence of actual monetary damages. Codal’s statement of undisputed facts in support of its
motion for summary judgment alleged that
“As a result of the above[-]described campaign of defamation, Codal’s employees
have raised the issue to Codal’s CEO, Keval Baxi, resulting in harm to the relationship
between Codal’s [sic] and its employees. [Exhibit cite]. In addition, [c]ustomers have
raised the defamatory posts to Codal as well. As a result of the tweets and bad reviews,
[c]ustomers have questioned Codal’s integrity and work product, leads from social media
marketing dropped, Codal had to hire PR companies to monitor and rehabilitate its social
media presence, Codal has had to devote employee resources to tracking and combating
the defamation, and an innumerable amount of potential customers likely never reached
out who would have otherwise contacted Codal about potential projects.”
In support of these allegations, Codal cited excerpts of Baxi’s deposition transcript. Baxi did testify
to the facts set out above, but he did not identify any specific monetary amounts that Codal lost or
was forced to spend because of Same Condition’s posts.
5
Codal’s summary judgment motion also did not cite case law stating that special damages are an
element of defamation per quod.
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¶ 29 We find that Codal did not establish special damages on its defamation per quod
counterclaim. Codal did not allege that it sustained actual monetary damages due to Same
Condition’s disparaging online posts. The undisputed material facts established only that Codal
suffered some degree of reputational harm among its employees and customers, and that Codal
expended some unspecified amount of resources to address that issue. However, Codal did not
connect those general damages to identifiable monetary losses. The last line of Codal’s statement
of undisputed facts is telling: “an innumerable amount of potential customers likely never reached
out who would have otherwise contacted Codal about potential projects.” (Emphasis added.). That
language concedes that Codal could not quantify its damages and that some of its alleged losses
were speculative.
¶ 30 In Hardiman, this court affirmed a grant of summary judgment against a political candidate
who claimed that he lost thousands of votes, a $500 speaking engagement fee, and more than
$200,000 in campaign contributions due to the defendant’s false statement that the candidate was
a former gang member. Id. ¶¶ 25-28. We explained that a loss of votes is not pecuniary, and that
the record did not support the candidate’s claimed monetary losses. Id. ¶¶ 27-28. Hardiman shows
that even if a plaintiff claims to have lost specific amounts of money—which Codal did not—it
must prove that claim with record evidence at summary judgment. Hardiman also illustrates that
a loss of reputation, whether among voters, employees, or customers, is not pecuniary and does
not constitute special damages for purposes of defamation per quod.
¶ 31 Whether a plaintiff alleged special damages sufficient to support a defamation per quod
claim is often decided in the context of a motion to dismiss. In that context, Illinois courts have
found that damages like those that Codal alleged are insufficient. See, e.g., Anderson, 172 Ill. 2d
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at 416-17 (allegation that the plaintiff suffered loss of “gainful employment and wages” was
insufficient to support claim for defamation per quod); Rivera v. Allstate Insurance Co., 2021 IL
App (1st) 200735, ¶ 51 (allegations that prospective employers would not hire the plaintiffs were
insufficient); Kurczaba v. Pollock, 318 Ill. App. 3d 686, 695 (2000) (allegations that the plaintiffs
“suffered a loss of business and income” and “great embarrassment” were insufficient); Quinn v.
Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 870 (1995) (the plaintiff was unable to obtain a
franchise); Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388, 395 (1995) (loss of “patients who
would have otherwise presented themselves for treatment”); Taradash v. Adelet/Scott-Fetzer Co.,
260 Ill. App. 3d 313, 318 (1993) (former customers refused to deal with the plaintiff, so he was
unable to sell his product and lost commissions and income). One court has found that a third
party’s decision to stop doing business with the plaintiff supported a claim for defamation per
quod. Becker v. Zellner, 292 Ill. App. 3d 116, 127 (1997). However, Codal did not claim that
customers actually stopped doing business with it due to Same Condition’s posts; Codal merely
claimed that customers expressed concerns about those posts. In addition, this court has held that
a surgeon’s loss of $861,506 in income due to accusations of medical malpractice sufficiently
supported a claim for defamation per quod. Tunca v. Painter, 2012 IL App (1st) 093384, ¶¶ 15,
62. In this case, Codal has not connected Same Conditions’s disparaging posts to specific monetary
losses.
¶ 32 In granting summary judgment, the circuit court concluded that Same Condition’s posts
were “defamatory,” but that Codal presented no evidence of its damages resulting from that
defamation. The circuit court overlooked that special damages are an element of defamation per
quod. See Rivera, 2021 IL App (1st) 200735, ¶ 60. The court expressly found that Codal did not
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prove special damages. Therefore, the only proper conclusion was that Codal did not establish an
element of defamation per quod and Same Condition was not liable on that counterclaim.
Therefore, it was error to grant summary judgment in Codal’s favor on its defamation per quod
counterclaim.
¶ 33 Codal’s brief does not address its failure to prove or even allege special damages in
connection with its defamation per quod counterclaim. Accordingly, Codal has forfeited any
argument on this issue. See Ill. S. Ct. R. 341(h)(7), (i) (eff. Oct. 1, 2020) (“[p]oints not argued are
forfeited”).
¶ 34 Having reversed the grant of summary judgment in favor of Codal on its defamation per
quod counterclaim, we must decide whether to remand that counterclaim for trial. Neither party
has requested remand and Codal has dismissed its other remaining counterclaims by agreement of
the parties. Aside from collections proceedings, this case is over, and the circuit court has stricken
it from the call. As a practical matter, we see no need to remand a defamation per quod
counterclaim on which Codal has never presented evidence of special damages. The most efficient
way to resolve this remaining counterclaim is by entering judgment for Same Condition, which
we may do even though Same Condition did not move for summary judgment. See West Suburban
Bank v. City of West Chicago, 366 Ill. App. 3d 1137, 1146 (2006) (“[W]hen a court denies one
party’s motion for summary judgment, it is authorized to enter judgment in favor of the other party,
even though that party does not have a pending motion for summary judgment.”). Summary
judgment on the defamation per quod counterclaim is a question of law (see id.) because there is
no dispute that Codal presented no evidence of special damages, and the only question is whether
special damages are an element of defamation per quod. As explained above, they are.
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¶ 35 Although we reverse the grant of summary judgment to Codal on its defamation per quod
counterclaim, the permanent injunction that the court entered as a remedy for Same Condition’s
disparaging online posts remains in place. The circuit court granted Codal summary judgment on
its commercial disparagement counterclaim, which Same Condition does not challenge on appeal.
Codal’s commercial disparagement counterclaim was based on Same Condition’s online posts
accusing Codal of being unprofessional and dishonest, so the permanent injunction was a proper
remedy. See Streif v. Bovinette, 88 Ill. App. 3d 1079, 1082 (1980) (commercial disparagement
may justify injunctive relief).
¶ 36 Same Condition’s reply brief argues that “Codal’s commercial disparagement
[counter]claim is faulty for the same reason as its defamation per quod claim;” namely, a lack of
special damages. Same Condition cites federal case law indicating that special damages are an
element of certain claims of commercial disparagement. For example, the Northern District of
Illinois has explained that “[s]tatements that accuse a businessman of outright dishonesty or
reprehensible business methods *** are like defamation per se,” so “the plaintiff *** need not
plead special damages,” but “[l]ess extreme statements *** are actionable only with special
damages.” Unique Concepts, Inc. v. Manuel, 669 F. Supp. 185, 190 (N.D. Ill. 1987). However, the
decisions of federal district courts are not binding upon us (Vulpitta v. Walsh Construction Co.,
2016 IL App (1st) 152203, ¶ 34), and we have found no Illinois authority holding that special
damages are an element of commercial disparagement. In any event, Same Condition only raised
this challenge to Codal’s commercial disparagement counterclaim in its reply brief, and an
argument raised for the first time in a reply brief is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct.
1, 2020) (“[p]oints not argued are forfeited and shall not be raised in the reply brief”). Accordingly,
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we reverse the circuit court’s grant of summary judgment in Codal’s favor on its defamation per
quod counterclaim and enter judgment in Same Condition’s favor on that counterclaim due to
Codal’s failure to prove special damages.
¶ 37 C. Attorney Fees
¶ 38 Finally, Same Condition challenges the circuit court’s award of attorney fees and costs to
Codal for prevailing on its breach of contract counterclaim at summary judgment. Same Condition
argues that “Codal should not be permitted to recover fees for its claims for defamation or its failed
claim alleging violation of Illinois statutes,” presumably referring to Codal’s Deceptive Trade
Practices Act counterclaim. Specifically, Same Condition contends that the parties’ contract limits
Codal’s recovery of attorney fees to “pursuing ‘collections’ or ‘legal action against [Same
Condition] for its non-payment.”
¶ 39 Same Condition did not raise any of these arguments in the circuit court. It did not file
objections or a response to Codal’s fee petition. The motion to vacate or reconsider that Same
Condition filed approximately a month after the attorney fee award did not address that ruling.
While Kumar sent the court an ex parte letter arguing that Codal should not receive any attorney
fees, the letter cited no legal authority and was contrary to the parties’ contract that expressly
authorized attorney fees. Same Condition’s reply brief claims that it “objected to the fee award at
oral argument” but cites nothing in the record to support that. When a party has the opportunity to
object to a fee petition but fails to do so, the party forfeits any challenge to the amount and
reasonableness of the attorney fees sought in the petition. Application of Cook County Collector,
144 Ill. App. 3d 604, 611 (1986). That is the case here.
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¶ 40 As a practical matter, Codal’s attorney fees and costs are already in collections
proceedings, so revisiting Codal’s entitlement to attorney fees and costs now would be
unworkable. Furthermore, Same Condition should have presented its objections to the circuit court
because the circuit court was in a better position than we are to assess the reasonableness of Codal’s
attorney fees. See Stein v. Feldmann, 85 Ill. App. 3d 973, 974 (1980).The circuit court personally
observed Codal’s attorneys in the almost five years that this case has been pending and could judge
their skill and hourly rates accordingly. See Kirkpatrick v. Strosberg, 385 Ill. App. 3d 119, 139
(2008). The circuit court was also better equipped to determine which tasks were necessary to
Codal’s prosecution of this case. Accordingly, we affirm the circuit court’s award of fees and costs.
¶ 41 III. CONCLUSION
¶ 42 For the foregoing reasons, we dismiss Same Condition’s appeal of the permanent
injunction. We reverse the grant of summary judgment in favor of Codal on its defamation per
quod counterclaim and enter judgment in Same Condition’s favor on that counterclaim. We affirm
the award of attorney fees and costs to Codal for prevailing on its breach of contract counterclaim.
¶ 43 Dismissed in part, reversed in part, affirmed in part.
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