O'Callaghan v. Satherlie
2015 IL App (1st) 142152
Ill. App. Ct.2015Background
- In 2007 the O’Callaghans sued their condominium association and originally named the association’s counsel (Satherlie and Kopka) in a mold-related 14‑count suit; most counts, including claims against counsel, were dismissed with prejudice.
- A later amended complaint omitted counsel and sued contractors and remediation firms for actions that allegedly spread toxic mold; that litigation was dismissed by agreement in 2013.
- In October 2013 the O’Callaghans filed a new suit against Satherlie and Kopka alleging intentional infliction of severe emotional distress, strict liability for ultrahazardous activity (mold remediation), and seeking punitive damages based on conduct during the prior litigation and remediation efforts.
- Defendants moved to dismiss under Ill. Code Civ. Proc. § 2‑615, asserting the absolute attorney litigation privilege, res judicata, claim‑splitting, failure to state emotional‑distress and strict‑liability claims, and that punitive damages were improper; they attached documents from the underlying case and sought judicial notice.
- Plaintiffs declined to engage the merits of the affirmative defenses in their response, reserving the right to respond later; the trial court dismissed the complaint with prejudice, finding the claims barred by public policy and the litigation‑privilege.
- On appeal the First District affirmed, holding the absolute attorney litigation privilege barred the claims, the § 2‑615 procedural vehicle was appropriate (or harmless), and leave to amend was futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion was improperly filed under § 2‑615 instead of § 2‑619 | Motion mislabeled; defendants should have pleaded affirmative defenses in an answer or used § 2‑619 | § 2‑615 may reach affirmative defenses apparent on face of complaint or by judicial notice; § 2‑619 overlap exists and relief would be the same | Motion properly considered under § 2‑615 (or harmless error); plaintiff not prejudiced and forfeited merits by not responding |
| Whether plaintiffs’ claims are barred by the absolute attorney litigation privilege | Claims challenge attorney conduct and communications but are permissible; privilege inapplicable to non‑communicative misconduct | Absolute privilege shields attorneys for acts and communications related to representation and litigation, even if improper or malicious | Privilege applies; plaintiffs’ claims (IIED, strict liability) arising from prior litigation are barred |
| Whether the privilege extends beyond defamation and communications to other torts/acts | Privilege should be limited to communications/defamation; other torts not covered | Privilege extends to acts and conduct in furtherance of representation when pertinent to the litigation; otherwise litigation would never end | Court extends privilege beyond pure communications where acts are pertinent to litigation and serve client’s interest |
| Whether leave to amend should be allowed | Plaintiff sought opportunity to amend and oppose defenses on merits | Dismissal with prejudice appropriate because claims could not be cured; amendment would be futile | Denial of leave to amend upheld as amendment would not save the complaint |
Key Cases Cited
- K. Miller Constr. Co. v. McGinnis, 238 Ill. 2d 284 (Illinois 2010) (defendant may raise affirmative defenses in a § 2‑615 motion when apparent on the complaint or by judicial notice)
- Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (Illinois 1994) (discusses overlap between § 2‑615 and § 2‑619 and judicial notice issues)
- Kurczaba v. Pollock, 318 Ill. App. 3d 686 (Ill. App. 2000) (articulates policy justifications for the absolute attorney litigation privilege)
- Popp v. O’Neil, 313 Ill. App. 3d 638 (Ill. App. 2000) (attorney motive and pre‑action investigation generally irrelevant to the privilege)
- Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156 (Ill. App. 2003) (privilege protects free flow of truthful information to courts and communications during litigation)
- Golden v. Mullen, 295 Ill. App. 3d 865 (Ill. App. 1998) (discusses limitations on privilege and pertinency requirement)
- Harris Trust & Savings Bank v. Phillips, 154 Ill. App. 3d 574 (Ill. App. 1987) (there is no civil cause of action for misconduct that occurred in prior litigation; redress should be sought in the same proceeding)