Midwest REM Enterprises, Inc v. Noonan

2015 IL App (1st) 132488
No. 1-13-2488
September 30, 2015
SECOND DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MIDWEST REM ENTERPRISES, INC., ) Appeal from the Circuit Court
ALBERTO RAMIREZ and WALTER ) Of Cook County.
MURPHY, )
)
Plaintiffs-Appellants and Cross-Appellees, ) No. 10 L 14563
)
v. ) The Honorable
) Brigid McGrath,
MICHAEL NOONAN and RUTH NOONAN, ) Judge Presiding.
)
Defendants-Appellees and Cross-Appellants.)
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Hyman concurred in the judgment and opinion.
OPINION
¶1 At least four lawsuits arose from a dispute over an agreement between Michael Noonan
(Michael) and Midwest REM Enterprises, Inc. (REM) for REM to dump material on land
Michael owned. In the lawsuit now on appeal, REM and two of its principals sued Michael
and his wife, Ruth Noonan, for malicious prosecution, fraud, tortious interference with
business relationships, and conspiracy. Plaintiffs claim primarily that Michael lied to
No. 1-13-2488
investigators when he said he had not agreed to let REM dump on his property the kind of
materials it dumped there. The Noonans moved to dismiss the lawsuit under the Citizen
Participation Act (Act) (735 ILCS 110/1 et seq. (West 2010)).
¶2 The trial court's hearing on the motion to dismiss amounted to a trial on the merits of the
complaint. When the trial court denied the motion to dismiss, the Noonans asked the court to
give them seven days to file a motion for summary judgment. Plaintiffs filed a motion for
voluntary dismissal before the Noonans filed their motion for summary judgment. The trial
court initially granted the motion for voluntary dismissal, but the court reconsidered its
decision, denied the motion for voluntary dismissal, and awarded Michael summary
judgment on the complaint. The court also reconsidered its decision to deny Ruth's motion
under the Act, and on reconsideration, it granted her motion to dismiss. The court awarded
Ruth some attorney fees.
¶3 Plaintiffs appealed and the Noonans cross-appealed. We hold that the trial court did not
abuse its discretion when it denied the motion for voluntary dismissal. The evidence
supported the decision to deny Michael's motion to dismiss under the Act, but the evidence
also supported the decision to enter summary judgment in Michael's favor. We find that the
trial court applied the wrong standards when awarding Ruth attorney fees. Accordingly, we
reverse the award of fees and remand for redetermination of the fee award. In all other
respects, we affirm the trial court's judgment.
¶4 BACKGROUND
¶5 On December 2, 2002, a fire destroyed a building on Monitor Street in Chicago.
Michael, the building's owner, hired REM to haul debris from the site. On November 10,
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2003, inspectors from the city of Chicago determined that Michael had satisfactorily
removed the debris and leveled the ground at the site. Walter Murphy, general manager of
REM, told Michael that Michael needed to have an environmental expert inspect the
property. Murphy recommended Timothy Lagousakos, who had a standing work
relationship with REM. Michael hired Lagousakos.
¶6 Lagousakos found that petroleum had contaminated some of the soil on Michael's lot.
Lagousakos thought that the contamination, especially with its location near a boiler room,
indicated that a storage tank might lie underground on the property. He recommended
excavating to look for a tank. In early 2004, Michael again hired REM, asking it this time to
remove all the petroleum contaminated soil and to look for a tank. REM dug out more than
100 truckloads of muck, plus a number of truckloads of contaminated soil, but found no tank.
At Lagousakos's suggestion, Michael instructed REM to dump the contaminated soil on
asphalt on Michael's lot.
¶7 In 2004, Michael and Murphy agreed that REM would deliver some truckloads of
appropriate material to Michael's lot. At that time, REM was also working on a project with
Brandenburg Industrial Service Company. Northwestern University had hired Brandenburg
to demolish a building, and Brandenburg had hired REM to haul away the debris along with
many truckloads of sand from under the demolished building. REM asked for permission to
use some of the material as fill for Michael's lot. REM showed Lagousakos a chemical
analysis of some borings taken from Northwestern's land. Lagousakos read the report and,
based solely on the report, gave his approval for using the material as fill on Michael's lot. In
May and June of 2004, while Michael was in Ireland, REM dumped on Michael's lot 330
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truckloads of material taken from Northwestern's site. REM spread the material across the
lot and leveled it.
¶8 Ruth called Michael and told him that REM had dumped construction debris on his lot.
Michael flew back to Chicago and inspected the site. Michael contacted REM and asked it to
remove the debris. REM did not do so
¶9 Noonan v. REM
¶ 10 On July 19, 2004, Michael sued REM and Brandenburg, asking the court to order REM
and Brandenburg to remove the debris from Michael's lot. Michael alleged in his complaint:
"9. In early May of 2004, [REM] requested permission from [Michael] to deliver
approximately thirty truckloads of clean, compactable clay to the Subject
Property. ***
10. [Michael] agreed to accept the approximately thirty truckloads of clean,
compactable clay from the Northwestern project in order to level-off or grade the
rear of the Subject Property.
***
12. During his trip to Ireland, [Michael] and his agents contacted [REM] on
several occasions to confirm that only clean, compactable clay would be delivered
to the Subject Property."
REM, in its answer to the complaint, admitted paragraphs 9 and 10. In response to paragraph
12, REM answered that it "believes that it received several phone calls concerning the clean,
compatible [sic] clay."
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¶ 11 Michael asked Lagousakos to inspect the site again. Lagousakos visually inspected and
photographed the site on July 24, 2004. He tested some samples of the material he found.
He reported that "demolition building debris," "unsuitable as fill material," covered the site
"to a depth of approximately 1-2 feet throughout the subject property." He specifically noted
that he found "bricks, concrete, wood, metal, asphalt, etc." at the site. He also photographed
a "[d]iscarded 55-gallon drum" in a debris pile on Michael's land.
¶ 12 Proceedings on Michael's complaint did not advance much by 2006. The alderman for
the ward contacted the City's Department of the Environment to complain about the lot. The
department's supervisor, Lafayette Robertson, went to the lot on August 30, 2006. He found
waste construction debris covering the lot. The debris looked like the debris pictured in
Lagousakos's report from 2004. Robertson found wood, tile, brick, metal and rebar in the
debris. The material did not form an appropriate base for later construction. On September
12, 2006, the City issued a ticket to Michael, charging that he "caused and allowed the
dumping of waste construction," and holding him "responsible for the removal of dumped
waste."
¶ 13 Chicago v. Brandenburg
¶ 14 The City also issued tickets to Brandenburg and REM for their roles in dumping the
waste on Michael's lot. Michael Lyne, a police officer working for the Department of
Natural Resources, began an investigation concerning Michael's lot in April 2007. He found
concrete with rebar, concrete with metal, brick, and tile spread across the lot.
¶ 15 On June 28, 2007, the City filed a complaint charging Brandenburg with hiring REM to
illegally dump construction debris on Michael's lot. Lagousakos completed his testing of
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samples in July 2007. In his report, Lagousakos reiterated that in 2004 he found "pulverized
building construction/demolition debris" spread across the lot. That material remained on the
lot in 2007.
¶ 16 The City settled its case against Brandenburg in March 2008. Brandenburg agreed to
remove and properly dispose of the construction debris dumped on Michael's lot. The
settlement agreement called for the removal of 350 truckloads of construction and demolition
debris. Brandenburg also agreed to pay a fine of $4,000. The City agreed to dismiss its
complaint against Brandenburg. REM, working at no charge to Brandenburg, removed 350
truckloads of debris, in accord with Brandenburg's settlement with the City. In light of the
settlement, Michael voluntarily dismissed his complaint against both Brandenburg and REM.
¶ 17 People v. REM
¶ 18 The State filed a complaint against REM for illegal dumping, and the case proceeded to
trial. The State chose not to call Michael as a witness. Instead, the State relied on the
testimony of Lagousakos, Lyne, Robertson and Ruth. Murphy and Alberto Ramirez,
president of REM, testified for the defense. In a written order dated April 16, 2010, the court
entered a judgment against the State and in favor of REM. The court said:
"Whether defendants are guilty of 'dumping' or 'abandoning' waste or construction
debris at Monitor depends upon the court's acceptance of [Michael's] in absencia
contention that he asked only for 30 loads of compactable clay and that
defendants instead deposited 300 loads of construction debris on his property
without his consent. ***
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But wholly apart from the lack of testimony from [Michael] at trial, which, in
itself, is a virtually insurmountable hurdle for the State to overcome, the State has
never attempted to articulate any motivation for [REM] to do what it is accused of
doing. ***
*** In short, the record fails to support the State's contention that [REM] had
anything to gain by 'dumping' or 'abandoning' 300 loads of the material at
Monitor.
***
The record reflects that the material delivered by [REM] to Monitor was suitable
for use as pre-construction fill. *** It is also apparent that the material contained
such small amounts of concrete, rebar, wood, and pieces of 50-gallon drums, that
it was unnecessary to strain it prior to shipping to a clean landfill. The court
rejects, as not substantiated by the evidence, the State's contention that the
material delivered to Monitor became 'waste' that was 'dumped' or 'abandoned'
there because [REM] acted without the landowner's permission."
¶ 19 REM v. Noonan
¶ 20 In December 2010, REM, Ramirez and Murphy filed a complaint against the Noonans to
initiate the litigation presently before this court. REM alleged that in its complaint (in
Noonan v. REM), Michael had falsely alleged:
"a. [Michael] had only requested 30 loads of fill to be dumped on his property;
b. That [REM] was to dump clay;
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c. That [REM] had dumped demolition debris that included broken concrete,
mortar, steel rebar, electrical conduit, telephone cables, stone flooring, ceramic
blocks and steel on [Michael's] property;
d. That there was a gate securing the property that had been severely damaged by
[REM]; and
e. That [REM] had dumped a 55-gallon drum on the property."
¶ 21 REM further alleged that Michael made false statements to Lyne, including the
statements listed above, and he added "(a) [REM] was not authorized to dump anything on
[Michael's] property; (b) [REM] had dumped 'waste' on [Michael's] property; and (c) [REM]
had dumped fill that was not clean on [Michael's] property." REM claimed "[t]he material
delivered by [REM] to [Michael's] property was suitable for use as pre-construction fill as
requested by [Michael]." REM charged Michael with fraud and intentional interference with
prospective economic advantage, and it charged Michael and Ruth with malicious
prosecution and conspiring to defraud REM and interfere with REM's business.
¶ 22 In its only allegations involving Ruth, REM said:
"Ruth Noonan acted in furtherance of the conspiracy by testifying at the trial in
[People v. REM] and falsely stating facts during that trial and otherwise acting in
concert with her husband.
***
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*** Ruth Noonan worked in concert with Michael Noonan based upon the fact
she testified in [People v. REM] and stated that she had previously spoken to
investigators."
¶ 23 Motion to Dismiss REM v. Noonan
¶ 24 On April 1, 2011, the Noonans moved to dismiss plaintiffs' complaint based on the Act
(735 ILCS 110/1 et seq. (West 2010)). Michael contended that REM filed the lawsuit to
punish Michael for having won a settlement in accord with which REM cleaned the debris it
dumped off of Michael's lot, and to punish Ruth for testifying for the State in People v. REM.
Proceedings on the motion, including extensive discovery, lasted two and a half years.
¶ 25 The trial court held that, to decide the motion to dismiss, it needed to hear evidence on
the allegations in the complaint. REM argued that the court's findings in People v. REM
collaterally estopped Michael from presenting evidence or arguing that REM dumped on his
property construction waste, not usable as fill for new construction. The trial court held that
res judicata and collateral estoppel did not apply. The court accepted into evidence the
transcript from the trial in People v. REM.
¶ 26 The transcript of that trial shows that Ruth testified that she visited Michael's lot in June
2004, and she saw construction debris, including bricks, wood and other building material.
Lagousakos corroborated Ruth's testimony that, by July 2004, construction debris covered
Michael's lot after REM finished dumping material there. The debris included concrete,
broken bricks, tile and gravel.
¶ 27 Lyne testified that when he inspected the site in 2007, he found metal, tile, wood, brick,
wire, pipes, and rebar. Lyne interviewed Ramirez, who admitted that no one had inspected
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No. 1-13-2488
the material shipped from Northwestern's site. Ramirez thought the fill could include
concrete, tile and wood. Ramirez told Lyne that the fill counted as clean, and met Michael's
request, as long as it included no hazardous waste. Lyne said that the material he found at
the site, material Ramirez admitted that REM dumped, did not meet the State's definition of
acceptable pre-construction fill.
¶ 28 Robertson testified that when he first visited Michael's lot in 2006, he found the lot
unsecured. Neighbors complained about trucks dumping loads of debris on the lot in 2006.
Robertson saw evidence of new dumping outside Michael's fence, but not on the leveled
areas of the lot. Robertson watched when REM cleared the debris off the lot in 2008. REM
screened the material before sending part of it to Earth, Inc.
¶ 29 Ramirez testified that he saw no wood, tile or rebar in the material REM shipped to
Michael's lot. Ramirez said REM used the screener on the material for only one day. Earth,
Inc., told him the material was so clean he did not need to bother screening it.
¶ 30 Although the trial court accepted the transcript from People v. REM into evidence, many
of the same witnesses testified at the evidentiary hearing on the Noonans' motion to dismiss
plaintiffs' complaint. The trial court commenced the hearing on June 1, 2011. The parties
completed presentation of the evidence on August 31, 2011, at the end of the fifth day of
evidentiary hearings. Lagousakos, Lyne, Ruth, Robertson, Ramirez, Murphy, and Anthony
Guarnero, of Brandenburg, all testified again, mostly repeating the testimony they gave in
People v. REM.
¶ 31 In addition to the witnesses who testified in both cases, Michael also testified. Michael
said that fences surrounded his lot, but if Michael's neighbor left the gate in his fence open,
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No. 1-13-2488
dumpers could access Michael's lot. Robertson testified that he never found the gate in the
neighbor's fence locked, so he considered Michael's lot unsecured. Robertson again
emphasized that the fill he found at the site did not form an appropriate base for construction.
In the context of questions about the construction debris Robertson found on Michael's lot,
Michael's attorney asked, "Did [Michael] indicate to you that he had not, in fact, consented to
the dumping of material on his site?" Robertson answered, "Yes."
¶ 32 Lyne testified that he found some separate piles of debris that someone probably dumped
without Michael's permission. However, most of the construction debris appeared uniformly
throughout the leveled areas of the lot, indicating that the construction debris likely came
from a single source. Lyne showed Ramirez and Murphy photographs of the leveled lot,
including construction debris. Ramirez and Murphy both admitted that the photographs
showed the material REM shipped from Northwestern.
¶ 33 Ramirez testified that Michael asked for clean clay, and REM never brought clean clay to
the lot. Ramirez admitted that once Michael saw the lot after the dumping, Michael
immediately complained that he had not agreed to allow the dumping of construction debris
on his lot. Ramirez also admitted that the loads REM dumped could have included bricks,
cement, tile and wood. In accord with the statement he made to Lyne, Ramirez admitted at
trial that photographs of the site, showing tile, wood and pipe, showed materials REM
dumped. Ramirez testified that Brandenburg, once one of REM's most regular customers,
effectively stopped working with REM after Michael and the City sued REM and
Brandenburg.
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¶ 34 Murphy testified that he believed acceptable preconstruction fill for Michael's lot could
include up to 15% garbage, which could consist of concrete, wood, glass, metal, plastic and
tile.
¶ 35 The parties presented to the court numerous exhibits, including dated photographs of
Michael's lot; photographs of Northwestern's site before REM cleared it, showing tile similar
to the tile on Michael's lot; Brandenburg's contract with Northwestern, in which Brandenburg
promised to remove materials used in the foundation of Northwestern's building; REM's
contract with Brandenburg; Lagousakos's reports; the state inspector's report; and
conservation department reports from 2007 concerning the lot. Michael presented an
affidavit from a witness who saw REM trucks dump construction debris on Michael's lot in
2004. The witness specified that the debris included concrete, rebar, wires, tile, steel and
wood. The trial court also accepted into evidence a transcript of Lyne's interview with
Ramirez in 2007, when Ramirez admitted that REM did not inspect the fill before shipping it
from Northwestern to Michael's lot, and that in his opinion, clean fill could include concrete,
tile and wood, as long as it had no hazardous materials.
¶ 36 In December 2011, the parties submitted briefs on the motion to dismiss under the Act.
At a hearing on April 11, 2012, the court said:
"I have the benefit of a full evidentiary hearing. And based on that, I conclude
that plaintiffs' suit genuinely seeks relief for damages for alleged intentional
tortious acts for purposes of the [Act]. *** It is clear from the record before the
Court that plaintiffs' intent in bringing this suit is to recover damages for loss in
business and costs of defense it perceives as being the result of the plaintiffs
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No. 1-13-2488
trespass suit [Noonan v. REM] and the subsequent State and local investigation
and lawsuit, not to silence or chill the defendant's speech or protest activity. In its
complaint against the defendants, the plaintiff alleges that in filing what we have
been referring to as the trespass suit, the defendants made numerous allegations
they knew to be false ***.
*** [I]t became clear that the act didn't apply to the plaintiffs' cause of action
because it was a genuine suit for damages for perceived wrongdoing. As
plaintiffs note, the plaintiffs' suit wasn't filed at any time around the time the
defendants were seeking to assert their rights. *** But furthermore, the evidence
discloses [an] instanc[e] where the defendants allegedly made misstatements to
the investigating authorities; namely, that the plaintiffs had no permission to
dump any material on the property at issue. *** And a lot of the arguments made
by the defendants in favor of dismissing the suit under [the Act] were more akin
to arguments in favor of summary judgment. So I am denying the motion to
dismiss under the [Act], but the arguments regarding summary judgment are well
taken. ***
*** [I]n litigating the motion to dismiss under the [Act], the parties basically tried
the case and presented to the Court live testimony, testimony from the previous
proceedings, along with a wealth of other evidence. ***
***
*** What the disagreement centers on is the content of the materials; i.e., what
clean, compact[a]ble clay was to consist of. I think that the evidence is
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No. 1-13-2488
conclusive that the material dumped at the site contained rebar, concrete and
cables. ***
***
*** [I]t is unsuitable as fill material that could be built on and would have to be
removed prior to any construction activities. *** The evidence reflects that none
of the allegations in this suit [Michael] filed are absolutely false. *** The fact
that Mr. Noonan expected material that didn't contain debris and that plaintiffs
may have assumed clean, compact[a]ble clay could contain a percentage of debris
doesn't amount to a fraudulent intent or wrongdoing in filing the trespass
complaint. *** [E]ven if clean fill could contain a percentage of building debris,
Mr. Noonan's allegations that the fill on his property wasn't the fill he agreed to
can form the basis of a trespass claim. *** The fly dumping was easily
distinguishable ***. *** [T]here was no way *** that the materials that were
spread here and are here could have been brought by anyone but [REM] because
it was only six days between the time the materials were last dumped *** and Mr.
Noonan returned to the property."
¶ 37 The court and the parties then discussed further proceedings:
"[Plaintiffs' attorney]: I am going to file an amended complaint ***.
THE COURT: *** I think the next step, based on all of the evidence we adduced
and all of the time the parties spent, the next step then I would ask the defendants
if they are going to be filing a motion for a summary judgment ***?
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No. 1-13-2488
[The Noonans' primary attorney]: Yes, we will, your Honor. The one thing we
want to think about and talk to our client about is requesting an immediate appeal,
which is not something I think we are ready to do.
[The Noonans' second attorney]: Though, I think that if the Court is going to
entertain a summary judgment motion, we'd file that, brief it, and then depending
on the Court's ruling, you know, maybe take an appeal of the whole thing.
THE COURT: That might be helpful, and it's going to be based upon the
complaint that we have pending at this time.
***
*** This is all the evidence. We've had a trial in this case.
[Plaintiffs' attorney]: I will file a motion for leave to file an amended complaint.
***
[The Noonans' primary attorney]: Why don't we get our motion for summary
judgment on file, seven days? Set a briefing schedule today."
¶ 38 Instead, the court set a status date for April 18, 2012, seven days after the hearing. The
court denied the Noonans' motion to dismiss based on the Act.
¶ 39 The next day, April 12, 2012, the plaintiffs filed a motion for voluntary dismissal of their
complaint. The Noonans filed their motion for summary judgment on April 17, 2012. At the
status hearing on April 18, 2012, the trial court granted the motion for voluntary dismissal
and dismissed the motion for summary judgment as moot.
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No. 1-13-2488
¶ 40 The Noonans moved for reconsideration of the order of April 18, 2012. In an order dated
September 21, 2012, the trial court vacated the April 18 order and permitted the parties to file
further briefs. On November 14, 2012, the trial court granted Ruth's motion to dismiss the
lawsuit under the Act, but denied Michael's motion to dismiss. The court set Michael's
motion for summary judgment for argument. Ruth filed a fee petition supported by her
attorney's affidavit and exhibits showing the hours each attorney spent on Ruth's motion.
Ruth sought more than $100,000 in fees and costs.
¶ 41 Plaintiffs moved for summary judgment against Michael, and for reconsideration of the
order granting a judgment in favor of Ruth. The court heard argument on those motions
along with Michael's motion for summary judgment. The trial court granted Michael's
motion for summary judgment and denied plaintiffs' motions in an order dated July 2, 2013.
Plaintiffs filed a timely notice of appeal.
¶ 42 The trial court considered Ruth's fee petition at a hearing on September 20, 2013. The
court said that if it awarded fees for work done for Michael, "we would run afoul of the rule
that duplicative and excessive times not reasonably billed to one's own client cannot be billed
to an adversary through a fee shifting statute." The court added:
"[T]he main issue that this Court must contend with is that the main defendant,
Mrs. Noonan's husband, did not prevail on his SLAPP motion and is not entitled
to fees. *** I can award only those fees that were attributable to Mrs. Noonan's
defense and that were not also attributed to Mr. Noonan. That is those fees that
she alone had incurred.
***
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For instance, in the general legal research, most of it would have been incurred, in
any event, gathering and assimilating facts. Again, the very reports and
documents *** and transcripts that concern Mrs. Noonan's protected interest also
dealt with her husband's non-protected activities. None of the witnesses dealt
solely with Mrs. Noonan, and she would have had to have testified, in any event,
even had she not been named as a party.
Now, I located only three entries that dealt with only Mrs. Noonan ***. These
related to a post-hearing brief filed on behalf of her. ***
*** [A]fter reviewing the records I'm awarding a total of $8,765 in fees and costs
for time billed to Mrs. Noonan. I've determined that these were the fees incurred
solely with regards to Mrs. Noonan's defense."
¶ 43 The court entered an order dated September 20, 2013, recording the award. Plaintiffs
amended their notice of appeal to add the order of September 20, 2013, as an order
challenged on appeal. On October 21, 2013, the Noonans filed a notice of cross-appeal,
challenging the denial of Michael's motion to dismiss under the Act, and the decision to
award Ruth only $8,765 in fees and costs.
¶ 44 ANALYSIS
¶ 45 Voluntary Dismissal
¶ 46 Plaintiffs argue that the trial court abused its discretion when it denied the motion for
voluntary dismissal of the complaint. See Quigg v. Walgreen Co., 388 Ill. App. 3d 696, 699
(2009). Both parties recognize Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54
(1990), as the controlling authority on the issue.
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¶ 47 In Fumarolo, on May 30, 1989, the trial court entered an order allowing the defendants to
file a motion for summary judgment by June 28, 1989. On June 26, 1989, the plaintiffs filed
a motion for voluntary dismissal of the complaint. The defendants filed their motion for
summary judgment, as scheduled, on June 28, 1989. The trial court denied the motion for
voluntary dismissal and entered a summary judgment in favor of the defendants.
¶ 48 The plaintiffs appealed, claiming that the Code of Civil Procedure (Code) protected their
right to voluntary dismissal. Ill. Rev. Stat. 1987, ch. 110, § 2-1009. The Fumarolo court
noted that the decision in Gibellina v. Handley, 127 Ill. 2d 122 (1989)(1987 per Fumarolo),
had affected the interpretation of section 2-1009. The legislature later amended section 2-
1009 to reflect the Gibellina holding. Section 2-1009 now provides:
"(a) The plaintiff may, at any time before trial or hearing begins, upon notice to
each party who has appeared or each such party's attorney, and upon payment of
costs, dismiss his or her action or any part thereof as to any defendant, without
prejudice, by order filed in the cause.
(b) The court may hear and decide a motion that has been filed prior to a
motion filed under subsection (a) of this Section when that prior filed motion, if
favorably ruled on by the court, could result in a final disposition of the cause.
(c) After trial or hearing begins, the plaintiff may dismiss, only on terms
fixed by the court ***." 735 ILCS 5/2-1009 (West 2012).
¶ 49 The Fumarolo plaintiffs argued that "the actual filing of a potentially dispositive motion
marks the point at which the right to voluntary dismissal is no longer absolute." Fumarolo,
142 Ill. 2d at 67. Because the Fumarolo defendants actually filed their motion for summary
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judgment two days after the plaintiffs filed their motion for voluntary dismissal, the
Fumarolo plaintiffs contended, as the plaintiffs contend here, that the Code protected their
right to voluntary dismissal.
¶ 50 The Fumarolo court said:
"The decisive factor in Gibellina was not that the defendant had actually filed a
potentially dispositive motion, but was instead that the defendant had put a
potentially dispositive motion before the court prior to the filing of the section 2–
1009 motion. As this court said in Gibellina, 'the trial court may hear and decide a
motion which has been filed prior to a section 2–1009 motion when that motion,
if favorably ruled on by the court, could result in a final disposition of the case.'
(Emphasis in original.) [Citation.] In Gibellina, the court's expressed concern was
to prevent the undue delay and abuse of judicial resources that occur when a
plaintiff dismisses a case 'in the face of' a potentially dispositive motion which
would dispose of the action. [Citation.] As this court put it, '[i]t has become clear
that the allowance of an unrestricted right to dismiss and refile an action in the
face of a potentially dispositive motion is not only increasing the burden on the
already crowded dockets of our courts, but is also infringing on the authority of
the judiciary to discharge its duties fairly and expeditiously.' [Citation.] ***
Although the defendants had not yet actually filed their summary judgment
motion, it is clear that a potentially dispositive motion was, as the trial court said,
for all intents and purposes, before the court. The motion to voluntarily dismiss
was plainly made 'in the face of' a potentially dispositive motion and was used to
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No. 1-13-2488
'avoid a potential decision on the merits.' The purpose of the defendants'
appearance on May 30 was to advise the court and the plaintiffs that they were
seeking a prompt resolution of the issue by summary judgment. It is clear from
the record that the judge and the parties understood that there was to be a motion
for summary judgment and that the motion and brief would be filed on June 28. In
various proceedings after May 30, the trial court and the parties made references
to the summary judgment motion. If the trial court had allowed the motion to
dismiss, it certainly would have seriously jeopardized, if not prevented, a prompt
resolution of the case on the merits. There was a prompt resolution of the case by
the trial court on August 29.
The trial court did not err in holding that a potentially dispositive motion
was before the court prior to the filing of the plaintiffs' motion for a voluntary
dismissal and under Gibellina v. Handley the court clearly had discretion to deny
the plaintiffs' motion for a voluntary dismissal." Fumarolo, 142 Ill. 2d at 68-69
(quoting Gibellina, 127 Ill. 2d at 137-38).
¶ 51 We agree with the trial court that at the hearing on April 11, 2012, the Noonans
sufficiently indicated their intention to file a motion for summary judgment, as the Noonans'
attorney said, in court, they would file the motion for summary judgment by April 18, 2012.
Thus, that dispositive motion was already before the court when plaintiffs filed their motion
for voluntary dismissal, and therefore the trial court had discretion to decide the dispositive
motion before considering the motion for voluntary dismissal.
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¶ 52 We note that the Noonans had filed a dispositive motion to dismiss the complaint under
the Act, long before plaintiffs filed their motion for voluntary dismissal. Although the court
denied the motion to dismiss, the time had not elapsed for filing a motion to reconsider the
denial of the motion to dismiss. The Noonans later filed a motion to reconsider the denial of
the motion to dismiss. Thus, the trial court had not completed proceedings on the initial
dispositive motion at the time that plaintiffs filed their motion for voluntary dismissal.
¶ 53 We also note that the evidentiary hearing in the case had commenced long before
plaintiffs brought their motion for voluntary dismissal. The parties do not discuss section 2-
1009(c), but we do not see why that section would not apply. If it does apply, then plaintiffs
had already lost the right to voluntarily dismiss the complaint under section 2-1009(a), and
they could voluntarily dismiss the case only with the court's approval and under terms the
court imposed.
¶ 54 Judicial economy especially warrants denial of the motion for voluntary dismissal here.
As the trial court said, by April 11, 2012, the trial court had already heard a complete trial on
the merits of plaintiffs' complaint. The trial court indicated its inclination to dispose of the
case on the basis of the evidence presented. Here, as in Fumarolo, "[t]he motion to
voluntarily dismiss was plainly made 'in the face of' a potentially dispositive motion and was
used to 'avoid a potential decision on the merits.' " Fumarolo, 142 Ill. 2d at 69 (quoting
Gibellina, 127 Ill. 2d at 137). The trial court correctly exercised its discretion to deny the
motion for voluntary dismissal and to consider the cross-motions for summary judgment.
21
No. 1-13-2488
¶ 55 Michael's Cross-Appeal
¶ 56 Plaintiffs also contend that the trial court should not have granted Michael summary
judgment on the complaint. Michael, in his cross-appeal, argues that the court should have
granted his motion to dismiss the complaint under the Act. Because Michael's cross-appeal,
if successful, would obviate the need to discuss the summary judgment the court entered in
his favor on the merits, we will address the cross-appeal before reaching the issue of whether
the evidence warranted the entry of summary judgment in favor of Michael.
¶ 57 The Act provides:
"Civil actions for money damages have been filed against citizens and
organizations of this State as a result of their valid exercise of their constitutional
rights to petition, speak freely, associate freely, and otherwise participate in and
communicate with government. There has been a disturbing increase in lawsuits
termed 'Strategic Lawsuits Against Public Participation' in government or
'SLAPPs' as they are popularly called.
The threat of SLAPPs significantly chills and diminishes citizen
participation in government, voluntary public service, and the exercise of these
important constitutional rights. 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 persons to file lawsuits for injury and the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise
22
No. 1-13-2488
participate in 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 2010).
"§ 15. Applicability. This Act applies to any motion 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.
Acts in furtherance of the constitutional rights to petition, speech,
association, and participation in government are immune from liability, regardless
of intent or purpose, except when not genuinely aimed at procuring favorable
government action, result, or outcome." 735 ILCS 110/15 (West 2010).
"§ 20. Motion procedure and standards.
***
(c) The court shall grant the motion and dismiss the judicial claim unless the
court finds that the responding party has produced clear and convincing evidence
that the acts of the moving party are not immunized from, or are not in
furtherance of acts immunized from, liability by this Act. 735 ILCS 110/20(c)
(West 2010).
23
No. 1-13-2488
"§ 25. Attorney's fees and costs. The court shall award a moving party who
prevails in a motion under this Act reasonable attorney's fees and costs incurred in
connection with the motion." 735 ILCS 110/25 (West 2010).
¶ 58 Our supreme court interpreted the Act in Sandholm v. Kuecker, 2012 IL 111443. The
Sandholm court said:
" 'SLAPPs, or "Strategic Lawsuits Against Public Participation," are lawsuits
aimed at preventing citizens from exercising their political rights or punishing
those who have done so.' Wright Development Group, LLC v. Walsh, 238 Ill. 2d
620, 630 (2010) (citing generally Penelope Canan & George W. Pring, Strategic
Lawsuits Against Public Participation, 35 Soc. Probs. 506 (1988)). 'SLAPPs use
the threat of money damages or the prospect of the cost of defending against the
suits to silence citizen participation.' Walsh, 238 Ill. 2d at 630 (citing 735 ILCS
110/5 (West 2008)). *** A SLAPP is 'based upon nothing more than defendants'
exercise of their right, under the first amendment, to petition the government for a
redress of grievances.' [Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523, 525
(N.D. Ill. 1990).]
SLAPPs are, by definition, meritless. John C. Barker, Common-Law and
Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L. Rev. 395, 396
(1993). Plaintiffs in SLAPP suits do not intend to win but rather to chill a
defendant's speech or protest activity and discourage opposition by others through
delay, expense, and distraction. *** While the case is being litigated in the courts,
24
No. 1-13-2488
however, defendants are forced to expend funds on litigation costs and attorney
fees and may be discouraged from continuing their protest activities. [Citation.]
*** SLAPPs 'masquerade as ordinary lawsuits' and may include myriad
causes of action, including defamation, interference with contractual rights or
prospective economic advantage, and malicious prosecution. Kathryn W. Tate,
California's Anti-SLAPP Legislation: A Summary of and Commentary on Its
Operation and Scope, 33 Loy. L.A. L. Rev. 801, 804-05 (2000). Because winning
is not a SLAPP plaintiff's primary motivation, the existing safeguards to prevent
meritless claims from prevailing were seen as inadequate, prompting many states
to enact anti-SLAPP legislation. Id. at 805. These statutory schemes commonly
provide for expedited judicial review, summary dismissal, and recovery of
attorney fees for the party who has been 'SLAPPed.' Id.
***
3 In deciding whether a lawsuit should be dismissed pursuant to the Act, a
court must first determine whether the suit is the type of suit the Act was intended
to address. ***
***
In light of the clear legislative intent expressed in the statute to subject only
meritless, retaliatory SLAPP suits to dismissal, we construe the phrase 'based on,
relates to, or is in response to' in section 15 to mean solely based on, relating to, or
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
25
No. 1-13-2488
government.' 735 ILCS 110/15 (West 2008). Stated another way, where a plaintiff
files suit genuinely seeking relief for damages for the alleged defamation or
intentionally tortious acts of defendants, the lawsuit is not solely based on
defendants's rights of petition, speech, association, or participation in government.
In that case, the suit would not be subject to dismissal under the Act. It is clear
from the express language of the Act that it was not intended to protect those who
commit tortious acts and then seek refuge in the immunity conferred by the
statute.
***
The procedure set forth in the Act provides the proper framework for our
analysis. Section 15 requires the moving party to demonstrate that the plaintiff's
complaint 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 2008);
[citation]. If the moving party has met his or her burden of proof, the burden then
shifts to the responding party to produce 'clear and convincing evidence that the
acts of the moving party are not immunized from, or are not in furtherance of acts
immunized from, liability' under the Act. 735 ILCS 110/20(c) (West 2008);
[citation]. Thus, defendants had the initial burden of proving that plaintiff's
lawsuit was solely 'based on, relate[d] to, or in response to' their acts in
furtherance of their rights of petition, speech or association, or to participate in
government. Only if defendants have met their burden does the plaintiff have to
26
No. 1-13-2488
provide clear and convincing evidence that defendants' acts are not immunized
from liability under the Act." (Emphasis in original.) Sandholm, 2012 IL 111443,
¶¶ 33-56.
¶ 59 Thus, the Sandholm court held that when a defendant seeks dismissal of a lawsuit under
the Act, the defendant bears the burden of proving that the plaintiff has filed a meritless suit
solely based on, related to, or in response to the defendant's participation in government.
Sandholm, 2012 IL 111443, ¶¶ 48-56; see Chicago Regional Council of Carpenters v.
Jursich, 2013 IL App (1st) 113279, ¶ 20.
¶ 60 In Garrido v. Arena, 2013 IL App (1st) 120466, the court explained the effect of
Sandholm. When a defendant makes a motion to dismiss a complaint under the Act, the
defendant usually concedes that the complaint adequately states a cause of action. Garrido,
2013 IL App (1st) 120466, ¶ 21; see Sandholm, 2012 IL 111443, ¶ 54. To show the
complaint lacks merit, the defendant must "disprov[e] some essential element of plaintiff's
prima facie case." Garrido, 2013 IL App (1st) 120466, ¶ 28.
¶ 61 Commentators on similar legislation from other states have argued that once a defendant
has shown that a lawsuit attacks his participation in government, the plaintiff should bear the
burden of presenting sufficient evidence to show that the lawsuit has merit. Tate, supra at
838-41; Katelyn E. Saner, Getting SLAPP-ed in Federal Court: Applying State Anti-SLAPP
Special Motions to Dismiss in Federal Court After Shady Grove, 63 Duke L.J. 781, 792
(2013) (if the defendant shows that a lawsuit arises from the defendant's participation in
government, "the burden then shifts to the plaintiff to show that the plaintiff’s claim is legally
sufficient and that each element of the plaintiff’s claim is supported by admissible
27
No. 1-13-2488
evidence"). As Pring and Canan said, legislation to counter SLAPPs "must set out an
effective early review for filed SLAPPs, shifting the burden of proof to the filer and, in so
doing, serving a clear warning against the future filing of such suits." George W. Pring &
Penelope Canan, SLAPPs: Getting Sued for Speaking Out 203 (1996). Barker, in a comment
cited in Sandholm, observed that "[q]uick and early resolution of litigation is the single most
important component of any court or statutory scheme to prevent SLAPPs. Expediting the
SLAPP process will not only alleviate its chilling effect on defendants, but it will also create
disincentives for plaintiffs seeking primarily to delay and distract their opponents. The earlier
that threshold judicial review occurs, the less effective the SLAPP will be." Barker, supra at
408. Tate, another commentator our supreme court cited, echoed the observation: "To be of
benefit to SLAPPees, the procedure for deciding the motion is supposed to be fast and
inexpensive." Tate, supra at 840. One commentator argued that by reading the word
"solely" into the Act and shifting the burden of proof to the defendant to show that the
plaintiff filed a meritless lawsuit, the Sandholm court "effectively nullified the Illinois
Citizen Participation Act." Emily L. Jenkinson, Sandholm v. Kuecker: The Illinois Supreme
Court "SLAPPS" Away a Protection of Illinois Citizens' First Amendment Rights, 63 DePaul
L. Rev. 1093, 1093 (2014).
¶ 62 Under Sandholm, to show that the Act applied, Michael bore the burden of proving that
the plaintiffs' complaint had no merit. The trial court found that it needed to hear the
evidence – to hold a full trial on the merits of the complaint – before it could determine
whether the complaint (which, like most SLAPPs, adequately stated a cause of action) had
any merit. The court also needed to determine whether the complaint served any purpose
28
No. 1-13-2488
other than punishing Michael for suing REM and Ruth for talking to City inspectors about
the materials REM dumped on Michael's lot. Proceedings on the motion to dismiss under the
Act included extensive discovery and years of legal maneuvering.
¶ 63 The trial court found facts and drew conclusions of law in support of its decision not to
grant Michael's motion under the Act for dismissal of the complaint. We review the factual
findings under the manifest weight of the evidence standard. Eychaner v. Gross, 202 Ill. 2d
228, 251 (2002). We review the conclusions of law de novo. Hammons v. Society of
Permanent Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 13.
¶ 64 The trial court found that "plaintiffs' intent in bringing this suit is to recover damages for
loss in business and costs of defense it perceives as being the result of the plaintiffs trespass
suit and the subsequent State and local investigation and lawsuit." The court also found
arguable merit to the plaintiffs' claim, as the court said, "the evidence discloses [an]
instanc[e] where the defendants allegedly made misstatements to the investigating
authorities; namely, that the plaintiffs had no permission to dump any material on the
property at issue." Ramirez testified that REM lost business as a result of the lawsuit
Michael filed. Thus, the trial court's finding, that the desire to recover for lost business
formed at least a part of the motive for suing Michael, is not contrary to the manifest weight
of the evidence. The Sandholm standards required the trial court to deny Michael's motion to
dismiss the plaintiffs' complaint under the Act. On Michael's cross-appeal, we affirm the
trial court's denial of Michael's motion to dismiss the complaint under the Act.
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No. 1-13-2488
¶ 65 Summary Judgment
¶ 66 Next, plaintiffs argue that the trial court erred when it granted summary judgment in
favor of Michael. We review the order granting summary judgment de novo. Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Plaintiffs attempted to state four
causes of action against Michael: (1) fraud; (2) tortious interference with a prospective
business relationship; (3) malicious prosecution; and (4) conspiracy. We note that plaintiffs
do not set forth in their brief the elements of any of the causes of action, and they make no
effort to show that they have presented at trial sufficient evidence to make out a prima facie
case for relief under any of their stated causes of action.
¶ 67 Fraud
¶ 68 To prove fraud, a plaintiff must show "that a false statement of material fact was made,
that the party making the statement knew or believed it to be untrue, that the party to whom
the statement was made had a right to rely on it and did so, that the statement was made for
the purpose of inducing the other party to act, and that reliance by the person to whom the
statement was made led to his injury." Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 185-86
(1982). Plaintiffs allege only that Michael made false statements to Robertson and Lyne, and
again in the complaint. Plaintiffs presented no evidence that they relied on any of Michael's
allegedly false statements, and, therefore, the trial court properly granted a judgment in favor
of Michael on the fraud count. See Soules v. General Motors Corp., 79 Ill. 2d 282, 286
(1980); Small v. Sussman, 306 Ill. App. 3d 639, 646 (1999).
30
No. 1-13-2488
¶ 69 Tortious Interference
¶ 70 "[T]o prevail on a claim for tortious interference with a prospective economic advantage,
a plaintiff must prove: (1) his reasonable expectation of entering into a valid business
relationship; (2) the defendant's knowledge of the plaintiff's expectancy; (3) purposeful
interference by the defendant that prevents the plaintiff's legitimate expectancy from ripening
into a valid business relationship; and (4) damages to the plaintiff resulting from such
interference." Fellhauer v. City of Geneva, 142 Ill. 2d 495, 511 (1991). The "purposeful
interference" element requires the plaintiff to show "that the defendant has committed some
impropriety" that interfered with the expectancy. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d
460, 485 (1998). Plaintiffs here alleged two improprieties: Michael filed a frivolous lawsuit
against REM and Brandenburg, and Michael made false statements to Lyne and Robertson.
¶ 71 REM admitted that Michael asked REM to deliver clean clay as preconstruction fill, and
that it did not deliver clean clay. The admissions show that Michael filed a meritorious suit
against REM. Because REM arguably acted as Brandenburg's agent for disposing of the
construction debris, Michael did not act frivolously when he named Brandenburg as a
defendant. See Dial v. City of O'Fallon, 81 Ill. 2d 548, 556 (1980) (a defendant commits a
trespass by "causing a thing or a third person to enter the land of another"). REM did not
present evidence that could support a finding that Michael acted frivolously or improperly
when he sued REM and Brandenburg for dumping construction debris on his lot without his
permission.
31
No. 1-13-2488
¶ 72 REM claims that Michael lied to Lyne and Robertson. REM relies primarily on the
findings of the criminal court in People v. REM. REM argues that the decision collaterally
estops Michael from presenting evidence that he told the truth to Lyne and Robertson.
¶ 73 Michael did not take part in People v. REM. For collateral estoppel to apply, Michael,
the party against whom plaintiffs assert the estoppel, must be in privity with the State, the
party to the prior adjudication. Nowak v. St. Rita High School, 197 Ill. 2d 381, 390 (2001).
Many courts have relied on the following definition for privity:
" 'Privity is a word which expresses the idea that as to certain matters and in
certain circumstances persons who are not parties to an action but who are
connected with it in their interests are affected by the judgment with reference to
interests involved in the action, as if they were parties.' " People ex rel. Burris v.
Progressive Land Developers, Inc., 151 Ill. 2d 285, 296 (1992) (quoting
Restatement of Judgments § 83, Cmt. a, at 389 (1942)).
¶ 74 The appellate court expanded on the meaning of privity in State Farm Fire & Casualty
Co. v. John J. Rickhoff Sheet Metal Co., 394 Ill. App. 3d 548 (2009):
"The Restatement (Second) of Judgments explains that ' "privity" refers to a
cluster of relationships, [citation], under which the preclusive effects of a
judgment extend beyond a party to the original action and apply to persons having
specified relationships to that party.' Restatement (Second) of Judgments,
Introduction, at 1 (1982). The Restatement (Second) further explains that there are
three general categories of relationships that may establish privity. Restatement
(Second) of Judgments §75, Cmt. a, at 210 (1982); see also Diversified Financial
32
No. 1-13-2488
Systems, Inc. v. Boyd, 286 Ill. App. 3d 911, 916 (1997) (also discussing the
Restatement (Second) of Judgments). The first category includes relationships
that are 'explicitly representative,' which includes: (1) the trustee of an estate or
interest of which the nonparty is a beneficiary; (2) a person invested by the
nonparty with the authority to represent the nonparty in the action; (3) the
executor, administrator, guardian, conservator, or similar fiduciary manager of an
interest in which the nonparty is a beneficiary; (4) an official or agency invested
by law with the authority to represent the nonparty; or (5) the representative of a
class of persons similarly situated, designated as the class representative by the
court, of which the nonparty is a member. Restatement (Second) of Judgments
§§41, 75(1) & Cmt. a (1982). The second category of relationships includes 'an
array of substantive legal relationships,' referred to in sections 45 through 61 of
the Restatement (Second) of Judgments, in which one of the parties to the
relationship is 'treated as having the capacity to bind the other to a judgment in an
action to which the latter is not a party.' Restatement (Second) of Judgments
§75(2), Cmt. a, at 210 (1982). These relationships include, inter alia, co-obligors,
parties who are vicariously liable for one another, bailees and bailors, co-owners
of property, assignees and assignors, the promisee and intended beneficiary of a
contract, corporations and their officers, directors, and shareholders, and members
of partnerships. See Restatement (Second) of Judgments §§45 through 61 (1982).
The third category of relationships includes successors in interest to property.
33
No. 1-13-2488
Restatement (Second) of Judgments §75(3) & Cmt. a (1982)." State Farm, 394
Ill. App. 3d at 559-60.
¶ 75 The State did not explicitly represent Michael's interests. It represented only the State's
interest in maintaining a reasonably clean environment. The State has no vicarious liability
for Michael's acts; Michael did not act as a co-owner with the State; Michael did not create a
bailment; and Michael did not succeed to the State's interest in the property. The ticket the
State issued to Michael, charging him with responsibility for cleaning the debris off his lot
regardless of how the debris came to the lot, establishes that the State had interests adverse to
Michael's interests and that the State did not represent Michael. Because of the lack of
privity between Michael and the State, the trial court properly held that the decision in
People v. REM had no estoppel effect in REM v. Noonan. The trial court correctly
considered the evidence presented in People v. REM as evidence in REM v. Noonan, and the
trial court correctly found that the criminal court's conclusions had no binding effect for the
proceedings on REM's complaint.
¶ 76 The evidence at the trial on the motion to dismiss showed that Michael truthfully told
Lyne and Robertson that REM dumped hundreds of truckloads of material from
Northwestern on his lot. Ramirez told Lyne, as recorded in the transcript of their interview,
that REM dumped on Michael's lot uninspected fill from Northwestern's site, and the fill
could include concrete, tile and wood. Photographs taken in 2004, and a report from
Lagousakos, in 2004, show that the fill dumped on Michael's lot included construction
debris, with rebar, cables, and electric wire. Both Ramirez and Murphy admitted that the
photographs accurately depicted materials REM dumped. The evidence showed that Michael
34
No. 1-13-2488
requested compactable clay from REM and he told investigators and the court that he
requested compactable clay; that REM instead dumped construction debris that included
concrete, rebar, electrical conduit, cables and ceramic tile; and Lagousakos found a 55-gallon
drum on the lot. REM presented no evidence at all to support its allegations that Michael
falsely told investigators the debris included mortar. REM presented no evidence to show
that Michael falsely alleged that REM damaged a gate protecting his property.
¶ 77 In effect, plaintiffs sought to prove two inconsistent accounts of the dumping. On the one
hand, plaintiffs emphasized that fly dumpers had access to the property through a gate that
Robertson always found unlocked when he visited from 2006 to 2008. Plaintiffs claimed that
the fly dumpers could have left the tile (which looked strikingly similar to the tile used in
Northwestern's demolished hospital), cables, rebar, concrete and wood found at the site. The
problem with this account is that Lagousakos, Lyne and Robertson testified, without
contradiction, that the construction debris did not appear only in the separate piles of debris
that apparently resulted from fly dumping. Construction debris covered the leveled portions
of the lot.
¶ 78 On the other hand, plaintiffs argue that the fill they removed from the lot, in accord with
the settlement between Brandenburg and the City, had virtually no construction debris, and
they needed no screening to clean it before shipment to Earth, Inc., which accepted only
clean fill. In light of the photographs, and reports by Lagousakos, Lyne and Robertson,
plaintiffs apparently ask the court to believe that they dumped clean pre-construction fill,
with no significant rebar, cables, wood or tile, and they spread that fill evenly over the lot.
Someone else then entered through the unlocked gate, dumped construction debris, spread
35
No. 1-13-2488
the debris evenly over the lot and leveled the lot for the photo opportunities and City
inspection. Then, after the inspection and photographs, someone cleared the construction
debris off the lot and left behind only clean preconstruction fill, which REM found on the lot
before it started shipping the 350 truckloads off the lot in accord with the settlement in
Chicago v. Brandenburg. The account makes no sense. On the evidence presented at trial,
no reasonable trier of fact could find that Michael lied to investigators or the court about the
dumping of construction debris on his lot, and what he found on the lot after REM finished
their dumping. Accordingly, we hold that the trial court correctly granted Michael's motion
for summary judgment on the tortious interference claim.
¶ 79 Malicious Prosecution
¶ 80 For the malicious prosecution claim, plaintiffs needed to show "(1) the commencement or
continuance of an original criminal or civil judicial proceeding by the defendant; (2) the
termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for
such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff."
Ritchey v. Maksin, 71 Ill. 2d 470, 475 (1978). Michael sued REM for trespass, and the State
prosecuted REM for illegal dumping. The evidence shows ample probable cause for both
lawsuits, and no evidence could support a finding that Michael and the State lacked probable
cause to sue REM for dumping construction debris on Michael's lot. Accordingly, we hold
that the trial court correctly entered summary judgment for Michael on the claim for
malicious prosecution.
36
No. 1-13-2488
¶ 81 Conspiracy
¶ 82 Our supreme court defined "civil conspiracy" as "a combination of two or more persons
for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful
purpose by unlawful means." Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23
(1998). "In order to state a claim for civil conspiracy, a plaintiff must allege an agreement
and a tortious act committed in furtherance of that agreement." McClure v. Owens Corning
Fiberglas Corp., 188 Ill. 2d 102, 133 (1999). Plaintiffs alleged that Michael conspired with
another to commit the torts of fraud, tortious interference with a prospective business
advantage, and malicious prosecution. Because the evidence supported the decision to award
summary judgment in Michael's favor on the three charged torts, the conspiracy claim also
must fail. The trial court correctly granted Michael's motion for summary judgment on the
complaint.
¶ 83 Ruth's Cross-Appeal
¶ 84 Plaintiffs argue that we should not address Ruth's cross-appeal because she did not
include her notice of appeal in her brief, she did not attach a copy of the order appealed, and
she did not identify the standard of review. Plaintiffs cite no authority for this argument.
They apparently rely on Supreme Court Rules 341(h)(4) and (h)(9). Ill. Sup. Ct. R. 341(h)(4),
(h)(9) (eff. Feb. 6, 2013). However, Rule 341(i) expressly provides, "The brief for the
appellee and other parties shall conform to the foregoing requirements [of Rule 341], except
that items (2), (3), (4), (5), (6) and (9) of paragraph (h) of this rule need not be included
except to the extent that the presentation by the appellant is deemed unsatisfactory." Ill. S.
Ct. R. 341(i) (eff. Feb. 6, 2013). Plaintiffs do not explain why this court should deem
37
No. 1-13-2488
unsatisfactory their presentation of the notice of appeal and copy of the order appealed.
Accordingly, we find no basis in the rules for rejecting Ruth's cross-appeal from the award of
fees.
¶ 85 The trial court awarded Ruth $8,765 in costs and fees for her attorneys' work on the
motion to dismiss under the Act. The abuse of discretion standard applies to our review of
the award of statutory attorney fees. Westchester Fire Insurance Co. v. G. Heileman
Brewing Co., 321 Ill. App. 3d 622, 636 (2000). The Act provides that "[t]he court shall
award a moving party who prevails in a motion under this Act reasonable attorney's fees and
costs incurred in connection with the motion." 735 ILCS 110/25 (West 2010). The trial court
expressly decided not to award Ruth all fees incurred in connection with the motion to
dismiss. Instead, the court awarded her only "those fees that were attributable to Mrs.
Noonan's defense and that were not also attributed to Mr. Noonan."
¶ 86 Plaintiffs argue that the trial court erred when it awarded fees and costs to Ruth because
the court should not have dismissed the claims against Ruth. Regarding Ruth, plaintiffs
alleged in their complaint only that she spoke to investigators and testified falsely at the trial
in People v. REM. The complaint against Ruth, like many SLAPPs, attacked her for
"testifying in judicial proceedings" and "reporting violations of law to government
authorities." George W. Pring, SLAPPs: Strategic Lawsuits against Public Participation, 7
Pace Envtl. L. Rev. 3, 13 (1989), available at
http://digitalcommons.pace.edu/pelr/vol7/iss1/2. Plaintiffs explicitly based their claims
against Ruth on her acts in furtherance of her right to participate in government. See 735
ILCS 110/15 (West 2010). The complete absence of evidence that Ruth said anything untrue
38
No. 1-13-2488
to investigators or the court shows both that plaintiffs filed a meritless claim against Ruth and
that they named her as a defendant solely to punish her for her participation in government.
¶ 87 Thus, the Act required the court to award Ruth "reasonable attorney's fees and costs
incurred in connection with the motion." 735 ILCS 110/25 (West 2010). Plaintiffs argue that
Ruth may have incurred no fees because her insurer might have paid her attorneys. Even if
another party paid the fees on Ruth's behalf, Ruth incurred the fees. See In re Marriage of
Brockett, 130 Ill. App. 3d 499, 501 (1984). Plaintiffs cite no authority holding that an
insured does not incur the fees paid by her insurer on her behalf.
¶ 88 For determination of appropriate fees, we look to precedent involving other statutes that
permit the award of fees to a successful party. Under the Civil Rights Act (42 U.S.C. § 1988
2012)), federal courts have held that "legal services fairly devoted to successful claims are
compensable even though those very same legal services also supported the prosecution of
the unsuccessful claims." Hughes v. Repko, 578 F.2d 483, 487 (3d Cir. 1978). In Hughes,
the plaintiffs sued two defendants and won a judgment against only one. The Hughes court
held that compensation for the plaintiffs should include fees for all services needed for
prosecution of the successful claim, even though the same services also supported the
unsuccessful claim. Hughes, 578 F.2d at 487.
¶ 89 Adopting the Hughes standard, we find that the trial court should have awarded Ruth all
fees reasonably necessary for presentation of her motion to dismiss, even though many of the
legal services used in preparing that motion also assisted in the presentation of Michael's
unsuccessful motion to dismiss. The trial court reasoned that it should attribute most fees
solely to Michael, and not to Ruth, even though the services helped Ruth win her motion,
39
No. 1-13-2488
because Michael "was clearly the main defendant." As the court observed, "None of the
witnesses dealt solely with [Ruth]," whose "role in the underlying facts was relatively minor.
She reported to an investigating officer what she witnessed, and she testified at trial pursuant
to a subpoena." But these same observations formed the basis for the ruling in favor of Ruth.
Against Michael, plaintiffs could present at least an arguably meritorious claim, but against
Ruth they presented no evidence to defeat her motion to dismiss. To show that the claims
against her lacked arguable merit, Ruth had to endure a lengthy evidentiary hearing - a
hearing where, as the trial court said, "the parties basically tried the case." At the conclusion
of its ruling on the motion to dismiss under the Act, the trial court repeated the observation:
"We've had a trial in this case."
¶ 90 We reverse the award of fees and order the trial court on remand to reconsider that award
in light of the Hughes standard, which we find applicable to awards under the Act.
¶ 91 CONCLUSION
¶ 92 In light of the trial court's scheduling of a date for filing the Noonans' motion for
summary judgment before plaintiffs filed the motion for voluntary dismissal, we find that the
trial court did not abuse its discretion when it denied plaintiffs' motion for voluntary
dismissal. The evidence sufficiently supports the trial court's finding that plaintiffs did not
sue Michael solely to harass him for suing them, so we affirm the trial court's denial of
Michael's motion to dismiss the complaint under the Act. The evidence also supports the
decision granting Ruth's motion to dismiss under the Act and Michael's motion for summary
judgment on the complaint. We reverse only the award of fees to Ruth, finding that the trial
court applied incorrect standards when it awarded fees to Ruth.
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No. 1-13-2488
¶ 93 Affirmed in part, reversed in part, and remanded.
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