Kiss v. Old Renwick Trail Homeowners Ass'n, Inc.
2022 IL App (3d) 210115-U
| Ill. App. Ct. | 2022Background
- Philip Kiss served as Old Renwick Trail Homeowners Association’s attorney/manager from 2010 until he was removed in January 2016.
- At a November 30, 2017 board meeting (posted publicly), board member Ellen Sheldon stated Kiss “came drunk in 2015” and described his alleged behavior at the meeting.
- Kiss sued Old Renwick and Sheldon for defamation and false light invasion of privacy and later asserted a breach of contract claim; defendants repeatedly moved to dismiss under section 2-619.1 of the Code, asserting a qualified privilege and other defenses.
- The trial court granted successive motions to dismiss, permitting amendments multiple times; after Kiss filed a third amended complaint he voluntarily dismissed the contract count, and the court dismissed the remaining counts with prejudice.
- Kiss’s motion for reconsideration and request for leave to further amend were denied; he appealed the dismissal and denial of leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants had to support their combined 2-615/2-619.1 motion with an affidavit | Kiss: affidavit required to support 2-619.1 defenses | Defs: no affidavit needed where the factual circumstances (showing the privilege) appear on the face of the complaint | No affidavit required; privilege and facts were apparent on the face of the pleading |
| Whether Sheldon’s statements were actionable or protected by a qualified privilege (defamation and false light) | Kiss: statements were false and made with malice/actual knowledge of falsity | Defs: statements made by a board member in an official meeting are conditionally privileged; Kiss failed to plead facts showing actual malice or reckless disregard | Qualified privilege applied; Kiss failed to plead actual malice/reckless disregard, so claims dismissed |
| Whether the trial court abused its discretion by denying leave to amend after dismissal | Kiss: should be allowed another amendment to cure defects | Defs: dismissal proper; plaintiff gave no explanation how another amendment would cure defects and submitted no proposed amended complaint | No abuse of discretion; denial affirmed because plaintiff did not show how an amendment would cure defects and submitted no proposed pleading |
Key Cases Cited
- Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558 (2006) (distinguishes absolute and qualified privileges in defamation law)
- Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (1993) (qualifies when a communication occasion creates a privilege)
- Mittelman v. Witous, 135 Ill. 2d 220 (1989) (defines reckless disregard/actual malice standard)
- Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998) (explains overlap of defamation and false light and applicable privileges)
- Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263 (1992) (factors for deciding leave to amend)
- Popko v. Continental Casualty Co., 355 Ill. App. 3d 257 (2005) (privileged communications in corporate/employer investigatory contexts)