Shoreline Towers Condominium Association v. Gassman

FIFTH DIVISION
September 30, 2010
Nos. 1-08-2438 and 1-09-2180, cons.
SHORELINE TOWERS CONDOMINIUM )
ASSOCIATION, an Illinois )
Not-For-Profit Corporation, )
) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County.
v. )
)
DEBRA GASSMAN, an Individual, ) 07CH06273
)
Defendant-Appellee, )
) The Honorable
(Edward Frischholz, as President of ) Kathleen M. Pantle,
the Board of Directors of the ) Judge Presiding.
Shoreline Towers Condominium Association, )
)
Plaintiff). )
PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:
Appellant Shoreline Towers Condominium Association (Shoreline) appeals from orders
of the circuit court dismissing with prejudice various counts of its complaint against appellee
Debra Gassman (Gassman) pursuant to section 2-619 of the Code of Civil Procedure (Code) (735
ILCS 5/2-619 (West 2008)), and assessing attorney fees against it. We affirm.
BACKGROUND
Gassman is a former resident of Shoreline, a condominium building located at 6301
North Sheridan Road in Chicago. While still a resident, Gassman, who is of the Jewish faith,
Nos. 1-08-2438 & 1-09-2180 (cons.)
affixed a mezuzah to her doorpost. A mezuzah is a small box about six inches tall, one inch
wide, and one inch deep, housing a small scroll of parchment inscribed with passages from the
Torah.1 In 2004, while Gassman was still a resident, a dispute arose between Gassman and
Shoreline when Shoreline interpreted a preexisting condominium association rule that prohibited
residents from placing personal objects of any sort in the common areas, including common
hallways and doorways, to preclude the display of a mezuzah.2 Beginning in April 2004,
Shoreline “repeatedly removed” the mezuzah from the doorpost of Gassman’s condominium.
Attempting to remedy the effects of this rule, Gassman filed several lawsuits alleging
religious discrimination. She filed a religious discrimination claim with the Illinois Department
of Human Rights, which was dismissed for lack of substantial evidence. She also filed a
religious discrimination complaint with the Office of the Attorney General of the State of Illinois,
which was subsequently closed pursuant to Shoreline’s voluntary revision of its rules in
September 2005.3 The revised rule states:
1
See Bloch v. Frischholz, 587 F.3d 771, 772 (7th Cir. 2009), for a detailed description of
the mezuzah tradition.
2
The rule at issue read, in pertinent part:
“Hallways
1. Mats, boots, shoes, carts or objects of any sort are
prohibited outside Unit doors.”
3
The record includes a November 2005 letter from the Civil Rights Bureau of the Office
of the Attorney General stating:
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“Shoreline Towers Condominium Association
Revised Rule–9/22/05
Mat’s [sic] boots, shoes, carts or objects of any sort are
prohibited outside unit entrance doors, except that a resident
may display a religious symbol, provided that:
1. The display of any religious symbol is limited to one per
unit; is limited to display on the door or doorframe of the resident’s
unit; and shall not exceed 16 inches (length) by 16 inches (width)
and a depth of 4 inches, contain lights, sounds or project any odors,
be potentially dangerous, be a historical relic, present political or
religious proselytizing, be pornographic, or provoke, incite or have
the effect of provoking, inciting or promoting hate;
2. The resident will be and is responsible for any physical
damage of any kind caused by the resident’s display of a religious
symbol under the rule;
“It has come to our attention that Shoreline Towers Condominium
Association has amended its rules and bylaws to permit residents to
hang mezuzahs on their doorposts if they so desire. We are
pleased that the condominium association has ceased
discriminating against its residents on the basis of religion.
Accordingly, we will now close our investigation of this matter.”
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3. The resident is liable for all costs for putting up and
taking down the religious symbol and shall be responsible for
damages of any kind if the Association is required to remove for
common element or limited common element repairs, maintenance,
restoration, etc;
4. The resident will restore the common element/limited
common element to its original condition upon vacating the unit or
non-continuous use of the religious symbol; and
5. The religious symbol reflects the resident’s sincerely
held belief.”
Gassman also filed a religious discrimination complaint with the City of Chicago
Commission on Human Relations as well as a religious discrimination claim against Shoreline in
the United States District Court for the Northern District of Illinois.
In December 2005, the City of Chicago passed an amendment to its Fair Housing
Ordinance, prohibiting condominium associations from interfering with the religious observances
of building tenants. Chicago Municipal Code §§ 5-8-020, 5-8-030 (2008). In April 2006, the
State of Illinois enacted a law preventing condominium boards from interfering with the religious
practices of building tenants, including interfering with “the attachment of religiously mandated
objects to the front-door area of a condominium unit.” 765 ILCS 605/18.4(h) (West 2008).
In March 2007, Shoreline filed a complaint against Gassman, titled: “Verified Complaint
for Injunctive Relief, Defamation, Civil Conspiracy, Malicious Prosecution, Intentional Infliction
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of Emotional Distress, and Civil Rights.” According to Shoreline, Gassman waged a campaign
of harassment and intimidation against Shoreline and used her position as an attorney in the
office of the public defender to conspire with members of the Cook County sheriff’s department
and the Chicago police department (CPD) to further her purpose. Shoreline alleged that
Gassman’s behavior interfered with its day-to-day operations to such an extent that it was unable
to allocate sufficient resources for the proper administration of the property.
Shoreline’s allegations included, in pertinent part, that beginning in July 2005, Gassman
supplied inaccurate and damaging information to the Jewish Star, a publication geared primarily
to the Jewish community. Based on that information, the Jewish Star referred to Shoreline’s rule
as a “Mezuzah Ban” and Shoreline contended this characterization essentially labeled it anti-
Semitic.
Shoreline further alleged that, in October 2005, Shoreline arranged for a charter bus to
transport residents to a meeting regarding the development of a nearby marina. Residents were
notified of this meeting via flyers that were handed out and posted in the common areas of the
building. Shoreline alleged that Gassman tore down the signs posted in the lobby and shouted
that Shoreline should not be having the meeting. She then argued with Edward Frischholz, the
president of Shoreline’s board of directors, in front of five witnesses.4 The argument culminated
in Gassman accusing Frischholz of threatening her with bodily harm. Gassman called the police
after the argument. Responding CPD officers went into Gassman’s condominium to speak with
her. When Shoreline’s property manager went to Gassman’s condominium to check on the status
4
Frischholz was a plaintiff in the case below, but is not a party to this appeal.
5
Nos. 1-08-2438 & 1-09-2180 (cons.)
of the investigation, she saw multiple wine glasses on the coffee table where the police had been
sitting with Gassman. No charges were filed.
Shoreline claims that, in December 2005, Gassman used her influence with the
Congregation of Beth Shalom of East Rogers Park (congregation) to provoke an altercation
between the congregation and Frischholz during a meeting in Shoreline’s hospitality room.
Frischholz displayed a crucifix on the door outside his unit and, allegedly, the congregation
covered it with a garbage bag.
Shoreline claims that Gassman told the front desk clerk that Frischholz was receiving
drug deliveries. She also told him she had friends on the police force who would be monitoring
Frischholz and his guests for suspicious behavior. Soon after, the front desk clerk saw an
unmarked police car in front of the property. Later, Gassman told the desk clerk that Frischholz
had a homosexual lover. She also told the desk clerk that Frischholz was involved in litigation
regarding alleged misconduct with one of his patients.
In April 2006, Gassman told a Shoreline employee she was being harassed. She told him
about the pending litigation and warned him to stay away from Frischholz because he was a “bad
person.”
Based on the above facts, Shoreline filed its 10-count complaint in which it: requested an
injunction against Gassman from interfering with its day-to-day operations (count I); alleged
defamation against Shoreline (count II); requested an injunction against Gassman from defaming
Shoreline’s character and reputation (count III); alleged defamation of Frischholz regarding the
alleged misconduct with his patient, being involved in drug trafficking, and telling the Jewish
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Star that he was anti-Semitic (count IV); requested an injunction against Gassman from defaming
Frischholz’s character and reputation (count V); alleged the intentional infliction of emotional
distress on the part of Frischholz (count VI); requested an injunction against Gassman from
inflicting emotional distress upon Frischholz (count VII); alleged civil conspiracy where
Gassman used her position as a public defender to conspire with members of the sheriff’s
department and the CPD (count VIII); alleged malicious prosecution for filing lawsuits after the
Illinois Department of Human rights litigation was dismissed and where Shoreline prevailed on
summary judgment in federal court regarding Gassman’s religious discrimination claim and at
trial regarding Gassman’s retaliation claim (count IX); and alleged that Gassman used her
position as a public defender in violation of section 1983 of the Civil Rights Act of 1964 (42
U.S.C. §1983 (2006)) (count X).
Gassman then filed a motion to dismiss (motion) pursuant to section 2-619, which is the
subject of this appeal. In it, Gassman argued that the entire complaint should be dismissed
pursuant to the Citizen Participation Act (the Act), also known as the Illinois Anti-Strategic
Lawsuits Against Public Participation Act (Anti-SLAPP), the public policy of which states that
“the constitutional rights of citizens and organizations to be involved and participate freely in the
process of government must be encouraged and safeguarded with great diligence” and “[i]t 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,
and otherwise participate in government.” 735 ILCS 110/5 (West 2008). Gassman contended
that she brought her original claims against Shoreline because she believed she was the victim of
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religious discrimination by Shoreline when it repeatedly removed her mezuzah from the doorpost
of her condominium. Gassman argued that the amendment to the City of Chicago Fair Housing
Ordinance as well as the enactment of the aforementioned Illinois law (765 ILCS 605/18.4(h)
(West 2008)) that prevents condominium boards from interfering with the religious practices of
building tenants was “a result, in part,” of her actions in challenging Shoreline’s conduct.
According to Gassman, then:
“9. In the wake of, and in apparent retaliation for
Gassman’s successful effort to effect changes in [Shoreline’s]
discriminatory behavior, [Shoreline] filed their ten-Count
Complaint against [Gassman]. Four Counts seek an injunction
against Gassman’s right of association and speech (Counts I, III, V,
VII) and the remaining counts seek damages arising from activities
protected by the statute: speech, association, exercise of religious
freedom, and petitioning the government.
10. Therefore, the entire lawsuit is clearly in response to
the acts of Gassman ‘in furtherance of [her] rights of petition,
speech, association, or to otherwise participate in government’ in
clear violation of the Act. Gassman stood up in support of her
Constitutional Rights as a U.S. citizen to practice her religion and
successfully challenged what she believed to be improper and
unlawful acts of Shoreline as directed by Frischholtz [sic].
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Plaintiffs’ Complaint should, therefore, be dismissed.”
The trial court agreed, in part, and found that Shoreline’s lawsuit as to the association
counts (counts I, II, III, VIII, IX, and X) was, in fact, a strategic lawsuit against public
participation (a SLAPP suit). In doing so, it noted that there is scarce Illinois case law on the
subject, and it drew guidance from cases decided by the courts of sister states.
The trial court denied the motion to dismiss as to counts IV, V, VI, and VII, the counts
pertaining to Frischholz. Counts IV and V alleged defamation with regards to Frischholz. The
court determined that, considering the allegations in the complaint in the light most favorable to
the nonmovant, Shoreline had sufficiently stated a claim for defamation to withstand a motion to
dismiss. It noted that “Anti-SLAPP legislation is not intended to protect those who actually
commit torts” but to “protect those who are in danger of being sued solely because of their valid
attempts to petition the government.”
Counts VI and VII alleged intentional infliction of emotional distress with regard to
Frischholz. Specifically, the court determined that the facts were plead sufficiently for those
counts to survive a motion to dismiss, and Gassman’s alleged behavior was “not of the type
contemplated to be protected by the Act.”
Shoreline appeals the dismissal of counts I, II, III, VIII, IX, and X.5
ANALYSIS
Strategic Lawsuit Against Public Participation (SLAPP)
A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff's
5
The Anti-Defamation League has filed an amicus brief in support of Gassman.
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Nos. 1-08-2438 & 1-09-2180 (cons.)
complaint but asserts affirmative defenses or other matter that avoids or defeats the plaintiff's
claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). An “ ‘[a]ffirmative matter’ is something
in the nature of a defense that completely negates the cause of action or refutes crucial
conclusions of law or conclusions of material fact contained in or inferred from the complaint.”
Golden v. Mullen, 295 Ill. App. 3d 865, 869 (1997). All properly pleaded facts are accepted as
true and a reviewing court is concerned only with the question of law presented by the pleadings.
Thornton v. Shah, 333 Ill. App. 3d 1011, 1019 (2002). Rulings on section 2-619 motions are
reviewed de novo. DeLuna, 223 Ill. 2d at 59.
Initially, Shoreline contends the trial court erred where it determined that Shoreline’s
lawsuit was a SLAPP suit. Specifically, Shoreline argues that SLAPP suits are “lawsuits brought
to silence public outcry regarding issues of significant public concern,” and it characterizes
SLAPP suits as actions brought against “a person or group [who] was using a public forum to
voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that
[Gassman’s] campaign of defamation, tortious interference, harassment, intimidation, and
personal attacks, as to the affairs of a private condominium association, and against the members
of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity
for public redress.” We disagree.
The Citizen Participation Act, commonly known as the Illinois Anti-Strategic Lawsuits
Against Public Participation Act or Anti-SLAPP law, was enacted on August 28, 2007. 735
ILCS 110/1 (West 2008) (hereinafter the Act). “The Act aims to protect defendants from
‘Strategic Lawsuits Against Public Participation’ (SLAPPs), which harass citizens for exercising
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constitutional rights, such as the right to petition the government.” Mund v. Brown, 393 Ill. App.
3d 994, 995 (2009). The public policy behind the Act, as noted above, states that “the
constitutional rights of citizens and organizations to be involved and participate freely in the
process of government must be encouraged and safeguarded with great diligence.” 735 ILCS
110/1 (West 2008). The General Assembly was expansive when describing the goals and scope
of the Act:
“Pursuant to the fundamental philosophy of the American
constitutional form of government, it is declared to be the public
policy of the State of Illinois that the constitutional rights of
citizens and organizations to be involved and participate freely in
the process of government must be encouraged and safeguarded
with great diligence. The information, reports, opinions, claims,
arguments, and other expressions provided by citizens are vital to
effective law enforcement, the operation of government, the
making of public policy and decisions, and the continuation of
representative democracy. The laws, courts, and other agencies of
this State must provide the utmost protection for the free exercise
of these rights of petition, speech, association, and government
participation.
Civil actions for money damages have been filed against
citizens and organizations of this State as a result of their valid
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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 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 2008).
The Act applies to any claim that “is based on, relates to, or is in response to any act or
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Nos. 1-08-2438 & 1-09-2180 (cons.)
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). It
protects citizens in the exercise of their constitutional rights of participation, directing that:
“[a]cts 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 2008). The Act provides that the court shall grant a motion to dismiss “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 2008). The Act “shall be construed liberally to
effectuate its purposes and intent fully.” 735 ILCS 110/30 (West 2008).
There is no distinct formula for determining whether a particular lawsuit is a SLAPP suit.
See 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 (April 2000) (“The most frequent type of SLAPP
suit is for defamation, but the causes of action are myriad. They include business torts (such as
interference with contractual rights or with prospective economic advantage), anti-trust,
intentional infliction of emotional distress, invasion of privacy, civil rights violations,
constitutional rights violations, conspiracy, nuisance, judicial process abuse, and malicious
prosecution”).
Contrary to Shoreline’s argument, the Act does not protect only public outcry regarding
matters of significant public concern, nor does it require the use of a public forum in order for a
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citizen to be protected. Rather, it protects from liability all constitutional forms of expression
and participation in pursuit of favorable government action.
Shoreline alleges as grounds for liability, in pertinent part, that Gassman filed religious
discrimination complaints against Shoreline for barring her display of a mezuzah on her
doorpost; that Gassman supplied information to the Jewish Star which Shoreline alleges
contained false characterizations of its policies; and that Gassman discussed her claims with
Shoreline’s employees. Shoreline’s complaint, at least in regards to the counts involving the
Association, was a SLAPP suit, as it was clearly predicated upon acts of petition, speech,
association, and participation by Gassman in pursuit of a favorable government action, which is
protected by the Act.
Moreover, Shoreline’s argument lacks merit when viewed in conjunction with the many
changes made, in part, in response to defendant’s claims: Shoreline modified its rules to allow
the display of religious objects on the doorposts of residents’ condominiums, the City of Chicago
amended its Fair Housing Ordinance to prevent condominium boards from interfering the with
the religious practices of building tenants, and the State of Illinois enacted a law also preventing
condominium boards from interfering with tenants’ religious practices, including interference
with religious objects placed on the doorposts of a condominium.
Shoreline also argues that its lawsuit should not be construed as a SLAPP suit because it
“is not meant or calculated to quell or stop [Gassman] from further demonstration or outcry.”
We disagree, as the Act does not require a lawsuit be filed while protected conduct is ongoing in
order to qualify as a SLAPP suit. Rather, the Act expressly provides that it applies to a claim
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brought “in response to any act or acts” in furtherance of constitutional rights. 735 ILCS 110/15
(West 2008) (“[the] 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”).
Retroactivity
Next, Shoreline contends that the trial court erred by applying the Act retroactively.
Specifically, Shoreline argues that the Act should not have applied to its complaint, where the
complaint was filed in March 2007 and the Act did not become effective until August 2007. We
disagree.
The Act “shall be construed liberally to effectuate its purposes and intent fully.” 735
ILCS 110/30(b) (West 2008). Although Illinois courts have not discussed retroactivity regarding
the Act, we have held that “statutes and amendatory acts are presumed to operate prospectively
unless the statutory language is so clear as to admit of no other construction. An exception to
this general rule is that statutes or amendments which relate only to remedies or forms of
procedure are given retrospective application.” People v. Theo, 133 Ill. App. 2d 684, 687 (1971).
Because there is no Illinois case law regarding the retroactive application of the Act, we draw
guidance from cases decided by the courts of sister states. California courts addressing this issue
have found that the California anti-SLAPP statute is procedural and, as such, may be applied
retroactively. See Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 280, 139 P. 3d 30,
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43, 46 Cal. Rptr. 3d 638, 653 (2006), quoting Brenton v. Metabolife International, Inc., 116 Cal.
App. 4th 679, 689, 10 Cal. Rptr. 3d 702, 709 (2004) (“The anti-SLAPP statute is a procedural
statute, the purpose of which is to screen out meritless claims. [Citation.] It is well settled that
‘applying changed procedural statutes to the conduct of existing litigation, even though the
litigation involves an underlying dispute that arose from conduct occurring before the effective
date of the new statute, involves no improper retrospective application because the statute
address conduct in the future’ ”); Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal.
App. 4th 1050, 1065, 28 Cal. Rptr. 3d 933, 942 (2005) (“ ‘The new [anti-SLAPP] statute applies
to lawsuits brought before its effective date because it constituted a procedural change regulating
the conduct of ongoing litigation and thus triggered no retroactivity concerns’ ”), quoting Mann
v. Quality Old Time Service, Inc., 120 Cal. App. 4th 90, 112, 15 Cal. Rptr. 3d 215, 228 (2004).
Applying the Illinois retroactivity standards, examining the reasoning used by the
California courts, and being cognizant of the legislature’s mandate to apply the Act liberally (the
Act “shall be construed liberally to effectuate its purposes and intent fully” (735 ILCS 110/30(b)
(West 2008))), we find that the Act is procedural in nature and applies to the instant SLAPP
lawsuit. The trial court did not err in its dismissal of counts I, II, III, VIII, IX, and X.
Shoreline also contends that the trial court abused its discretion in denying it leave to
amend the complaint after the complaint was dismissed. Specifically, Shoreline argues that its
motion for clarification of dismissal order was actually a request to amend the complaint so that
the association counts would fall outside of the Act. A review of the record on appeal, however,
shows this was not the case. Rather, following the dismissal of counts I, II, III, VIII, IX, and X,
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Shoreline filed a motion for clarification, seeking clarification as to whether the dismissal was
with prejudice or without prejudice, stating:
“5. The Order failed to include 304(a) language, expressly
stating that there is no just reason for delay of appeal by either
party as to the dismissal of [Shoreline’s] claims.”
It specifically requested an order clarifying whether the dismissal was with or without prejudice;
an order including Rule 304(a) language; or an order “identifying the question of law” as to those
counts; and “such other and further relief as this Honorable Court deems just and proper.”
The motion for clarification did not request leave to amend the complaint, nor was it
accompanied by an amended complaint.
Attorney Fees
Next, Shoreline contends that the trial court erred by: (1) awarding attorney fees where
the Act was not effective at the time the complaint was filed; and (2) awarding attorney fees for
case matters unrelated to the Act. We disagree.
As a threshold matter, we wish to clarify our standard of review in this case. There are
two orders at issue here. The first, entered December 19, 2008, determined that an award of
attorney fees was proper and set a date for further proceedings to determine the amounts to be
awarded. Our review of this order is de novo. People v. Blanks, 361 Ill. App. 3d 400, 407
(2005) (matters of statutory interpretation are reviewed de novo). Our review of the second order
at issue, the final fee order which determined the dollar amount of the award, is abuse of
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discretion. See Harris Trust & Savings Bank v. American National Bank &Trust Co. of Chicago,
230 Ill. App. 3d 591, 595-96 (1992) (“Once the trial court makes a determination as to the
reasonableness of attorney fees and related costs, that determination will not be disturbed absent
an abuse of discretion”). Accordingly, we will reverse the amount of attorney fees only if no
reasonable person would make the same decision as the trial court. DeLapaz v. Selectbuild
Construction, Inc., 394 Ill. App. 3d 969, 972 (2009).
We first address whether the award of attorney fees is appropriate under the Act. Section
25 of the Act provides that the court shall award the prevailing moving party reasonable attorney
fees and costs incurred “in connection with the motion.” 735 ILCS 110/25 (West 2008). The
court issued three opinions with respect to fees and, ultimately, a final order awarding fees. In
December 2008, the court concluded that Gassman’s attorneys, Seyfarth Shaw, were entitled to
fees. In March 2009, the court entered an order approving Seyfarth Shaw’s billing time entries as
stated in its fee petitions with several exceptions. In June 2009, the court entered its order fixing
the rates of plaintiffs’ attorneys as the reasonable rates to be used in calculating Seyfarth Shaw’s
fees. Thereafter, the parties applied the rates approved by the court to the time approved by the
court, and the court awarded Gassman fees of $36,840.
“Illinois generally characterizes attorney fees as procedural for retroactivity purposes and
applies new attorney fees statutes to pending cases.” Callinan v. Prisoner Review Board, 371 Ill.
App. 3d 272, 275 (2007). However, the court will not apply an attorney fee statute retroactively
where: “(1) liability did not exist prior to enactment of the legislation; (2) the conduct giving rise
to possible liability occurred prior to the statute’s effective date; and (3) the party against whom
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expenses were sought could not avoid or limit its liability by any action taken after the statute’s
effective date.” Board of Education of School District No. 170 v. Illinois State Board of
Education, 122 Ill. App. 3d 471, 477 (1984).
Here, Shoreline fails the third factor, as it had sufficient notice of the attorney fee statute
and could have avoided or limited its liability after such notice. On October 19, 2007, prior to
filing the motion to dismiss, Gassman’s attorneys sent Shoreline a letter informing it of the Act,
giving them notice that their complaint violated the Act, and advising them of her intention to
seek relief under the Act. That letter stated, in relevant part, that if the complaint was not
voluntarily dismissed, Gassman would seek to dismiss the complaint:
“pursuant to the Citizen Participation Act * * *. Concomitantly,
and pursuant to the Act, we will seek, among other things, the
imposition of all of the attorneys’ fees and costs incurred in
connection with any such motion.”
At that point, Shoreline was put on notice that Gassman would pursue her rights under the Act,
which included seeking attorney fees. Shoreline, rather than limiting its liability, chose to
respond by letter on October 23, 2007, that the Act did not apply, and it threatened sanctions:
“While I appreciate your advocacy, I disagree that the Act applies to
this matter for reasons which will be raised in our response should
you wish to argue this position. Further, in order to avoid potential
sanctions, I strongly suggest you review the applicably [sic] of the
Act before attempting to apply it to this matter.”
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On November 14, 2007, Gassman moved to dismiss Shoreline’s complaint because it violated
the Act.
Shoreline cannot satisfy the third factor announced in Board of Education,122 Ill. App. 3d
at 477, because, although it was not put on notice of its potential liability for attorney fees at the
time its complaint was filed, it was put on notice prior to Gassman filing the motion to dismiss.
We note that Seyfarth Shaw appropriately sought only fees associated with the motion to dismiss
which were incurred after Shoreline was put on notice and after the enactment of the Act.
Shoreline’s conduct giving rise to the fee award was not its initial filing of the complaint, but its
continued pursuit of the case after the statute became effective and after it was put on notice of
the Act. Shoreline knew of the potential liability for fees prior to the motion to dismiss being
filed and had the opportunity to avoid liability. Accordingly, the trial court properly determined
that attorney fees should be awarded.
We now consider whether the amount of attorney fees awarded by the trial court was
appropriate. Shoreline argues on appeal that the trial court improperly awarded fees incurred for
services unrelated to the motion to dismiss, that the trial court’s award was excessive, and that
the billing records before the trial court were not detailed enough to support a fee petition. We
disagree and find no abuse of discretion in the trial court’s award of attorney fees. “A petition
for fees must present the court with detailed records containing facts and computations upon
which the charges are predicated specifying the services performed, * * * the time expended and
the hourly rate charged.” Harris Trust & Savings Bank, 230 Ill. App. 3d at 595. To determine
whether an award of attorney fees is reasonable, we consider the “skill and standing of the
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Nos. 1-08-2438 & 1-09-2180 (cons.)
attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the
degree of responsibility required, the usual and customary charge of the same or similar services
in the community, and whether there is a reasonable connection between the fees charged and the
litigation.” Harris Trust & Savings Bank, 230 Ill. App. 3d at 595.
Our review of the record convinces us that the fee petitions are adequately specific to
support the trial court’s award of attorney fees such that the trial court’s award of fees was not an
abuse of discretion. Specifically, the trial court reviewed the “skill and standing of the attorneys
employed,” noting that William Goldberg of Seyfarth Shaw was the lead counsel for Gassman.
The court noted that he is a graduate of Harvard Law School and a senior partner at the law firm.
He concentrates his practice in complex commercial litigation matters and demonstrated
considerable skill in front of the court. It noted that Goldberg was assisted by two other attorneys
who “participated to some extent and billed for a modest amount of hours.”
The court also stated that Seyfarth Shaw “has tendered a detailed Petition and
Supplemental Petition for Attorney Fees and Costs. Seyfarth Shaw has also provided a sufficient
explanation for the involvement of multiple attorneys on this case. The law firm has also
provided for the Court’s review a copy of the detailed time sheets with highlighted entries.”
The court also evaluated the nature of the case, the novelty and difficulty of the issues
involved, and the degree of responsibility required. In so doing, it noted that this was a “case of
first impression and the application of a recently-enacted statute. The issues presented were new
to Illinois courts though courts in sister jurisdictions have ruled on similar issues. The matter is
important as it involves a citizen’s exercise of her rights in federal court.”
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Nos. 1-08-2438 & 1-09-2180 (cons.)
With respect to rates, the trial court determined that the initial rates submitted by Seyfarth
Shaw were not appropriate, as some of the attorneys involved concentrated their practice in
complex commercial litigation, and “this case is not a commercial litigation case; it is essentially
a tort case with complicated motion practice.” The trial court ordered Seyfarth Shaw to submit a
declaration from an attorney with a practice concentrated in that area. Eventually, the trial court
ruled that the usual and customary charges billed by Shoreline’s counsel were the rates to be used
in calculating Seyfarth Shaw’s fees. The trial court concluded: “As the court is to determine the
usual and customary charges for the same or similar services in the community, the court will use
the usual and customary charge billed by [Shoreline’s] counsel, i.e. the partnership rate is
$350.00; the senior associate rate is $270.00 and the associate rate is $235.00 The court has
reviewed the submissions by [Shoreline’s] counsel and finds that fees charged by [Shoreline’s]
counsel are the usual and customary charges charged by lawyers in Cook County for the same or
similar services.”
Seyfarth Shaw had requested approximately $52,000 in fees. The trial court, using the
usual and customary charges submitted by Shoreline’s counsel, awarded $36,840.
Our review of the record shows that the trial court carefully reviewed the detailed fee
petitions submitted by Seyfarth Shaw, scrutinized the skill and standing of the attorneys
involved, was cognizant of the nature of the case, the novelty and difficulty of the issues involved
and the degree of responsibility required. The court questioned the hourly rate submitted and
reduced the hourly rate to one that was consistent with the usual and customary charge of same or
similar services provided in Cook County. The court awarded fees only for services rendered
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Nos. 1-08-2438 & 1-09-2180 (cons.)
after the enactment of the Act.
We are equally unpersuaded by Shoreline’s argument that the trial court erred by
awarding fees for work that was merely related to the motion to dismiss. Section 25 of the Act
provides that the court shall award the prevailing moving party reasonable attorney fees and costs
incurred “in connection with the motion.” 735 ILCS 110/25 (West 2008). The Act’s stated
purpose is to deter SLAPP suits, and it should be construed liberally in this pursuit. See 735
ILCS 110/30 (West 2008). Allowing litigants to undercut the deterrent purpose following the
grant of a motion to dismiss by filing motions for which they would have no risk of being
assessed fees would frustrate this purpose. See McNiff v. Mazda Motor of America, Inc., 384 Ill.
App. 3d 401, 406-08 (2008) (awarding legal fees incurred in connection with motion for
reconsideration, although statute only provided for costs “incurred in the prosecution of the
action”). We find no error here, where we believe the legislature intended the words “in
connection with the motion” to include proceedings which relate to, and are a consequence of,
the grant of the motion.
CONCLUSION
For the foregoing reasons, the decision of the circuit court of Cook County is affirmed.
Affirmed.
TOOMIN and HOWSE, JJ., concur.
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Nos. 1-08-2438 & 1-09-2180 (cons.)
__________________________________________________________________________________________________________________________
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form SHORELINE TOWERS CONDOMINIUM ASSOCIATION, an Illinois Not-For-Profit
Corporation,
Plaintiff-Appellant,
v.
DEBRA GASSMAN, an Individual,
Defendant-Appellee,
(Edward Frischholz, as President of the Board of Directors of the Shoreline Towers
Condominium Association, an Illinois Not-For-Profit Corporation,
Plaintiff).
_____________________________________________________________________________________________
No. 1-08-2438 & 1-09-2180
Docket No.
Appellate Court of Illinois
COURT First District, FIFTH Division
Opinion
Filed September 30, 2010
(Give month, day and year)
__________________________________________________________________________________________
PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT:
JUSTICES TOOMIN and HOWSE, JJ., concur.
Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding. The Hon. Kathleen M. Pantle , Judge presiding.
__________________________________________________________________________________________________________________________
Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word or
FOR APPELLANTS NONE if not represented.
John Doe, of Chicago
For APPELLEES, : APPELLANT: DAVID C. HARTWELL, JOONHO YU, PENLAND & HARTWELL, LLC, Chicago, IL
_________________________________ __
Smith and Smith of
Chicago, APPELLEE: WILLIAM I. GOLDBERG, M. RYAN PINKSTON, ALEKA L. JONES, SEYFARTH SHAW, LLP,
Chicago, IL
__________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.
24