CHARLES AUGUST, Plaintiff-Appellant, v. ROBERT T. HANLON, Defendant-Appellee.–CHARLES AUGUST, Plaintiff-Appellee, v. ROBERT T. HANLON, Defendant-Appellant.
Docket Nos. 2-11-1252, 2-11-1280 cons.
Appellate Court of Illinois, Second District
September 6, 2012
October 17, 2012
2012 IL App (2d) 111252
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The Citizen Participation Act, Illinois‘s version of an anti-SLAPP statute, did not immunize defendant from liability in plaintiffs action for slander and false light invasion of privacy, since plaintiffs complaint was not based solely on defendant‘s constitutional rights and participation in government and the burden never shifted to plaintiff to show defendant was immune under the Act.
Decision Under Review
Appeal from the Circuit Court of McHenry County, No. 06-LA-371; the Hon. Michael W. Feetterer, Judge, presiding.
Judgment
No. 2-11-1252, Reversed and remanded.
No. 2-11-1280, Affirmed.
Counsel on Appeal
Gerald P. Baggott III, of Law Offices of Robert T. Hanlon & Associates, P.C., of Woodstock, for Robert T. Hanlon.
Panel
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff, Charles August, filed in the circuit court of McHenry County a complaint against defendant, Robert Hanlon. As amended, the complaint contained one count of slander per quod and one count of false light invasion of privacy. The trial court granted defendant‘s motion for summary judgment on the basis that the Citizen Participation Act (Act) (
¶ 2 I. BACKGROUND
¶ 3 This case involves the application of the Act, Illinois‘s version of an anti-SLAPP statute.
¶ 4 The Act, which became effective in August 2007 (Pub. Act 95-506 (eff. Aug. 28, 2007); see
¶ 5 The initial complaint in this case was filed on November 22, 2006. The complaint was amended on November 14, 2007, and September 9, 2008. The second amended complaint alleged as follows. Plaintiff was a business agent and union organizer for Local 150 of the International Union of Operating Engineers. On June 5, 2006, defendant, an attorney licensed to practice law in Illinois, filed in the circuit court of McHenry County a complaint on behalf of Merryman Excavation, Inc. (Merryman), and against multiple parties, including plaintiff. The Merryman lawsuit alleged that plaintiff and another individual (R.W. Smith, Jr.) stole money from Merryman by soliciting a donation for a charitable endeavor through Smith‘s business, a food and drink establishment named “Jesse Oaks,” but keeping the money rather than forwarding it to a charity.
¶ 6 On June 7, 2006, defendant had a telephone conversation with Charles Keeshan, a newspaper reporter. Keeshan informed defendant that he was gathering information for an article to be published in the Daily Herald concerning the Merryman lawsuit and that he was seeking defendant‘s comments about the allegations therein. On June 8, 2006, Keeshan‘s article was published in the Daily Herald.
¶ 7 According to plaintiff, defendant‘s statements to Keeshan “were factual comments on a pending lawsuit which was designed to falsely accuse [plaintiff] of defrauding and stealing from defendant‘s client.” Plaintiff alleged that defendant, in the presence of Keeshan, “uttered and published false and defamatory statements about, of and concerning [him].” Plaintiff asserted that a third party reading the Daily Herald article in which the statements were published “would reasonably understand the defamatory statements complained of were of and concerning [plaintiff] at the time said statements were made.” Plaintiff complained that defendant‘s statements to Keeshan contained “false allegations” that plaintiff had stolen money from Merryman when plaintiff solicited the charitable donation. According to plaintiff, defendant had received documentation and a letter from Smith‘s attorney identifying the charities that received Merryman‘s donation. Plaintiff alleged that defendant “knew or should have known his comments would be further published in the Daily Herald, thus extending his utterance and publication beyond the newspaper reporter and to the general public.”
¶ 8 Count I of the complaint alleged slander per quod. Plaintiff alleged that defendant‘s false and defamatory statements “maliciously slandered Plaintiff, wrongfully intending to bring Plaintiff into public disgrace and scandal and further wrongfully intending to injure and to destroy the Plaintiff‘s good name, credit and reputation throughout McHenry County and adjoining counties and to bring him into disrepute among his colleagues and co-workers, and otherwise; and to generally discredit him by falsely and maliciously speaking, uttering and publishing, concerning Plaintiff, said defamatory false and scandalous words.” Plaintiff claimed that, as a direct and proximate result of defendant‘s false and defamatory comments, he was not selected to run for the position of treasurer of Local 150, a position that would have benefitted him with an annual salary increase of between $40,000 and $45,000. Plaintiff also claimed that, as a direct and proximate result of defendant‘s false and defamatory comments, he was unable to act in his role as a principal fundraiser for a local charity.
¶ 9 Count II of the complaint alleged false light invasion of privacy. Plaintiff alleged that defendant‘s false and defamatory statements “maliciously slandered [him], wrongfully intending to bring [plaintiff] into public disgrace and scandal and further wrongfully intending to injure and to destroy [plaintiff‘s] good name, credit and reputation throughout McHenry County and adjoining counties and to bring him into disrepute among his colleagues and co-workers, cause him to be regarded as a person unfit and untrustworthy to discharge the duties of his employment
¶ 10 On December 2, 2008, defendant filed a motion to strike “designated immaterial matter” and multiple motions for judgment on the pleadings. See
¶ 11 On March 29, 2011, defendant filed a pro se motion for summary judgment based upon immunity under the Act (
¶ 12 On May 16, 2011, plaintiff filed a response to defendant‘s motion for summary judgment and a memorandum of law in support thereof. Among other things, plaintiff argued in his memorandum that defendant is not entitled to immunity under the Act, because the acts complained of in plaintiff‘s complaint were not “based upon, relate[d] to, or in response to” any act of defendant in furthering his own constitutional rights. See
¶ 13 On July 28, 2011, the court held a hearing on defendant‘s motion for summary judgment. After the parties argued their respective positions, the court granted defendant‘s motion. Initially, the court, relying on Shoreline Towers Condominium Ass‘n v. Gassman, 404 Ill. App. 3d 1013 (2010), held that the Act is procedural and therefore applies retroactively. Next, the court rejected plaintiff‘s argument that the Act does not apply to defendant because he was not exercising his own constitutional right to petition but was merely representing
¶ 14 The court then reviewed plaintiff‘s second amended complaint and determined that it is “based upon the actions of Defendant.” The court determined that defendant‘s act of filing a lawsuit against plaintiff on Merryman‘s behalf constituted “conduct genuinely aimed at procuring favorable government action, result or outcome.” The court also determined that defendant‘s comments to Keeshan, which referenced the Merryman lawsuit, are covered under the Act. The court further found that “there was nothing else to really look at or present to me on behalf of the Plaintiff that clearly establishes that the Defendant‘s comments were not covered by the [Act].” The court denied defendant‘s request for attorney fees given that defendant represented himself in the case.
¶ 15 On August 26, 2011, plaintiff filed a motion to reconsider the trial court‘s grant of summary judgment in defendant‘s favor. On August 29, 2011, defendant filed a motion to reconsider the trial court‘s denial of his request for attorney fees. That same day, defendant also filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). In the latter motion, defendant urged the trial court to sanction plaintiff and his attorney “for advancing this case without any factual basis for its claims in support of the allegations contained in [plaintiff‘s] complaint.” Defendant requested sanctions “in an amount equal to the total amount of attorneys fees and costs incurred by [defendant] in defense of this action.” On November 1, 2011, the trial court denied defendant‘s motion to reconsider, but continued the matter until November 8, 2011, for ruling on plaintiff‘s motion to reconsider and defendant‘s motion for sanctions. On November 8, 2011, the trial court denied both plaintiff‘s motion to reconsider and defendant‘s motion for sanctions. Plaintiff filed a notice of appeal on December 7, 2011, and defendant filed a notice of appeal on December 8, 2011.
¶ 16 II. ANALYSIS
¶ 17 In appeal No. 2-11-1252, plaintiff argues that the trial court erred in granting defendant‘s motion for summary judgment. Plaintiff raises three contentions in support of his argument. Relying on the supreme court‘s recent decision in Sandholm, 2012 IL 111443, plaintiff first contends that the Act does not apply to the facts of this case. Second, plaintiff contends that defendant does not fall within the Act‘s definition of “person,” because he was not exercising his own constitutional right to petition but was merely representing a client in the exercise of its constitutional rights. Finally, plaintiff asserts that the
¶ 18 Prior to addressing the merits of the issues raised on appeal, we review the pertinent portions of the Act to place the parties’ arguments in context. As noted above, the Act became effective in August 2007.1
“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 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 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.”
¶ 19 Section 15 of the Act provides:
“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 Section 10 of the Act defines certain terms used in the Act. For instance, a “claim” is defined to include “any lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing alleging injury.”
¶ 21 Section 20 of the Act sets forth the expedited legal process applicable to alleged SLAPPs. Under that provision, when a motion is filed pursuant to the Act, “a hearing and decision on the motion must occur within 90 days after notice of the motion is given to respondent.”2
¶ 22 A. Appeal No. 2-11-1252
¶ 23 Plaintiff contends that the trial court erred in granting defendant‘s motion for summary judgment based on the immunity provided by the Act. Initially, plaintiff suggests that we should review the trial court‘s ruling on defendant‘s motion for summary judgment as a dismissal pursuant to
J., specially concurring, joined by Thomas and Burke, JJ.) (suggesting that movants asserting immunity under the Act must do so pursuant to the normal means provided under the Code as section 10 expressly directs).3
¶ 24 In any event, for purposes of our analysis, any distinction between a motion for summary judgment and a motion to dismiss under
¶ 25 Turning to the merits, plaintiff first argues that the supreme court‘s recent decision in Sandholm, 2012 IL 111443, which interpreted section 15 of the Act, precludes defendant from obtaining relief under the Act. In Sandholm, the plaintiff was employed as a basketball coach and athletic
remove him. The plaintiff‘s complaint consisted of multiple counts of defamation per se, false light invasion of privacy, civil conspiracy to interfere with prospective business advantage, and slander per se. The defendants moved to dismiss the plaintiff‘s complaint on the basis that the Act provided them with immunity. The trial court granted the defendants’ motion, and this court affirmed. See Sandholm v. Kuecker, 405 Ill. App. 3d 835 (2010). The supreme court allowed the plaintiff‘s petition for leave to appeal.
¶ 26 The supreme court determined that the legislature intended the Act “to target only meritless, retaliatory SLAPPs and did not intend to establish a new absolute or qualified privilege for defamation.” Sandholm, 2012 IL 111443, ¶ 50. The court stated that, if it was the intent of the legislature to create such a privilege, it would have explicitly stated so. Sandholm, 2012 IL 111443, ¶ 50. In accordance with this determination, and invoking the rules of statutory construction, the supreme court interpreted the phrase ” ‘based on, relates to, or is in response to’ ” in section 15 of the Act 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 government.’ ” (Emphasis in original.) Sandholm, 2012 IL 111443, ¶ 45 (quoting
¶ 27 The court explained that its interpretation of the Act “allows a court to identify meritless SLAPP suits subject to the Act” and serves “to ameliorate the ‘particular danger inherent in anti-SLAPP statutes *** that when constructed or construed too broadly in protecting the rights of defendants, they may impose a counteractive chilling effect on prospective plaintiffs’ own rights to seek redress from the courts for injuries suffered.’ ” Sandholm, 2012 IL 111443, ¶ 48 (quoting Mark J. Sobczak, Comment, SLAPPed in Illinois: The Scope and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 575 (2008)). The court further explained that “construing the Act to apply only to meritless SLAPPs accords with another express goal in section 5 [of the 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.’ [Citation.]” Sandholm, 2012 IL 111443, ¶ 49.
¶ 28 Applying the foregoing, the supreme court noted that under the Act the defendants had the initial burden of proving that the plaintiff‘s lawsuit was solely based on, related to, or in response to the defendants’ acts in furtherance of their
the plaintiff‘s lawsuit was not to chill participation in government or stifle political expression, but to seek damages for the personal harm to his reputation from the defendants’ alleged defamatory and tortious acts. Sandholm, 2012 IL 111443, ¶ 57.
¶ 29 Sandholm was decided on January 20, 2012, while this case was pending appeal. We note that, as a general rule, a decision of our supreme court applies retroactively to causes pending at the time it is announced, including cases on direct review in the appellate court. Miller v. Gupta, 174 Ill. 2d 120, 128 (1996). According to plaintiff, application of Sandholm to this case demonstrates that the trial court erred in granting summary judgment to defendant under the Act. We agree.
¶ 30 Pursuant to the procedure set forth in Sandholm, defendant had the initial burden of proving that plaintiff‘s lawsuit was solely based on, related to, or in response to defendant‘s acts in furtherance of his rights of petition, speech, or association, or to participate in government. Viewing the pleadings, affidavits, depositions, and admissions on file in the light most favorable to plaintiff, we find that defendant has failed to meet this burden. Instead, we find that plaintiff‘s objective in filing suit was not solely to interfere with and burden defendant‘s right to petition, but to seek damages for the personal harm to his reputation resulting from defendant‘s allegedly false and defamatory statements. We note for instance that, in count I of plaintiff‘s complaint, which alleged slander per quod, plaintiff alleged that the comments defendant made to Keeshan “maliciously slandered Plaintiff, wrongfully intending to bring Plaintiff into public disgrace and scandal and further wrongfully intending to injure and to destroy the Plaintiff‘s good name, credit and reputation throughout McHenry County and adjoining counties and to bring him into disrepute among his colleagues and co-workers, and otherwise.” Moreover, plaintiff alleged that, as a direct and proximate result of defendant‘s false and defamatory statements, he was not selected to run for treasurer of Local 150. Plaintiff claimed that holding the position of treasurer would have benefitted plaintiff with $40,000 to $45,000 per year in additional income. Plaintiff further alleged that, as a direct and proximate result of defendant‘s false and defamatory statements, he was unable to act in his role as a principal fundraiser for a local charity.
¶ 31 Similarly, in count II of the complaint, which alleged false light invasion of privacy, plaintiff alleged that defendant “maliciously slandered [him], wrongfully intending to bring [plaintiff] into public disgrace and scandal and further wrongfully intending to injure and to destroy [plaintiff‘s] good name, credit and reputation throughout McHenry County and adjoining counties and to bring him into disrepute among his colleagues and
plaintiff‘s complaint were sufficient to survive all of those motions and the court ordered defendant to answer the complaint. Thus, the trial court believed that defendant had pleaded sufficient facts for his complaint to go forward. We therefore conclude that defendant has failed to prove that plaintiff‘s complaint was solely based on defendant‘s exercise of his constitutional rights of petition, speech, association, or to participate in government. Thus, the burden never shifted to plaintiff to provide clear and convincing evidence that defendant‘s acts are not immune from liability under the Act. Accordingly, we find that the trial court erred in granting defendant summary judgment.
¶ 32 Defendant nevertheless insists that he made the threshold showing that plaintiff‘s lawsuit was based on, related to, or in response to his petitioning activities alone. In his appellee‘s brief, this argument is not clearly articulated and is largely undeveloped. As a result, we would be warranted in finding this argument forfeited. See Ill. S. Ct. R. 341(h)(7), (i) (eff. July 1, 2008); Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 924 (2007). Defendant attempted to clarify this position during oral argument. In particular, defendant claimed that allegations in plaintiff‘s complaint regarding his failure to be selected to run for treasurer of Local 150 were not true. In support of this claim, defendant relied principally on two documents: the affidavit attached to the memorandum in support of his motion for summary judgment and a document from the general counsel for Local 150. We find defendant‘s position unpersuasive.
¶ 33 In his complaint, plaintiff alleged that, “[a]s was customary, every candidate selected to run on the slate of President Bill Dugan was elected to their respective positions in the 2007 Local 150 elections.” Plaintiff further alleged that the individual who was ultimately selected to replace plaintiff and run on Dugan‘s slate of candidates for the treasurer position was, in fact, elected as treasurer. Initially, we note that the significance of the document from the general counsel is not apparent to us. Although it references another individual serving as the treasurer of Local 150, we do not read it as establishing, as defendant claims, that plaintiff was never slated to run for treasurer, and defendant does not explain how this document supports his claim. As far as the affidavit is concerned, defendant merely asserted that two of the candidates running on the slate of the candidate challenging Dugan for president of Local 150 were actually elected. However, there was no assertion that either of these candidates won the race for treasurer or that the individual who allegedly replaced plaintiff as the candidate for
¶ 34 Alternatively, defendant urges us to uphold summary judgment on the basis of either the attorney-litigation privilege or the fair-reporting privilege. Initially, we find that these arguments have been forfeited because defendant did not raise them in the trial court. Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 127 (2010). Defendant insists that he raised the attorney-litigation privilege “within the motion to dismiss before the court below.” However, defendant filed multiple motions to dismiss and, in contravention of the rules of our supreme court, defendant does not reference the page of the record where he raised the attorney-litigation privilege in the trial court. See Ill. S. Ct. R. 341(h)(7), (i) (eff. July 1, 2008) (providing that the appellee‘s argument shall contain his or her contentions and the reasons therefor, “with citation of the authorities and the pages of the record relied on” (emphasis
added)). Defendant‘s failure to comply with Rule 341 provides a separate basis for finding forfeiture. See People v. Johnson, 192 Ill. 2d 202, 206 (2000). In any event, our independent review of the record indicates that defendant raised the attorney-litigation privilege only in response to plaintiff‘s first amended complaint. He did not raise it with respect to the second amended complaint, which is presently before us.
¶ 35 Forfeiture notwithstanding, we briefly address why neither privilege is applicable here. Illinois courts have invoked the attorney-litigation privilege as set forth in section 586 of the Restatement (Second) of Torts. See, e.g., Atkinson v. Affronti, 369 Ill. App. 3d 828, 831-36 (2006); Thompson v. Frank, 313 Ill. App. 3d 661, 664-65 (2000). That provision states as follows:
“An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Restatement (Second) of Torts § 586 (1977).
The privilege, which is absolute, is based upon “a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” Restatement (Second) of Torts § 586 cmt. a (1977). Because the privilege provides complete immunity, its scope is necessarily narrow. Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 165 (2003). Thus, the privilege is available only when the publication: (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved litigants or other participants authorized by law. Kurczaba v. Pollock, 318 Ill. App. 3d 686, 702 (2000).
¶ 36 In this case, the allegedly defamatory statements were made outside of the judicial proceeding to a newspaper reporter who was not connected to the lawsuit. While the attorney-litigation privilege has been extended to out-of-court communications between opposing counsel, to out-of-court communications between attorney and client related to pending litigation, to out-of-court communications between attorneys representing different parties suing the same entities, to statements made
¶ 37 More important, our research reveals that Illinois courts have expressly declined to extend the attorney-litigation privilege to third parties not connected with the litigation (see
Kurczaba, 318 Ill. App. 3d at 705 (“Illinois clearly limits the attorney litigation privilege and has refused to extend it to third-party communications unrelated to a lawsuit.“); Thompson, 313 Ill. App. 3d at 664 (holding that attorney-litigation privilege does not apply to out-of-court communication between an attorney and an opposing party‘s spouse); Lykowski v. Bergman, 299 Ill. App. 3d 157, 166 (1998) (noting that statements made to the media concerning a case are not part of the judicial proceeding and therefore are not privileged (citing Prosser and Keeton on Torts § 114, at 819-20 (W. Page Keeton et al. eds. 5th ed. 1984))); Golden, 295 Ill. App. 3d at 872 (declining to extend attorney-litigation privilege to out-of-court communication between attorney and former client‘s spouse)). Defendant does not provide a cogent reason for departing from this authority, and he does not explain how doing so would further the privilege‘s public policy goal. For these reasons, we conclude that the attorney-litigation privilege is not applicable to the allegedly defamatory statements made by defendant in this case.
¶ 38 Likewise, we conclude that the fair-reporting privilege has no application to this case. The fair-reporting privilege is set forth in section 611 of the Restatement (Second) of Torts as follows:
“The publication of defamatory matter concerning another in a report of an official action or official proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.” Restatement (Second) of Torts § 611 (1977).
This section was adopted by the Illinois Supreme Court in Catalano v. Pechous, 83 Ill. 2d 146, 167-68 (1980). “The basis of this privilege is the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings.” Restatement (Second) of Torts § 611 cmt. a (1977). Although the privilege is commonly exercised by newspapers, broadcasting outlets, and others in the business of reporting news to the public, it is not limited to the media. Kurczaba, 318 Ill. App. 3d at 707; Restatement (Second) of Torts § 611 cmt. c (1977). In this case, defendant merely asserts that “the Daily Herald‘s accurate reporting of the claims made in the judicial record are [sic] privileged because of the public‘s interest in
¶ 39 As a result of our findings, we do not address the other arguments for reversal raised by plaintiff. In addition, we express no opinion on the actual merits of plaintiff‘s causes of action. We simply hold that plaintiff‘s lawsuit is not a SLAPP within the meaning of the Act and, thus, is not subject to summary judgment.
¶ 40 B. Appeal No. 2-11-1280
¶ 41 In appeal No. 2-11-1280, defendant insists that the trial court erred in denying reasonable attorney fees under the Act in connection with its grant of summary judgment in his favor. Defendant also challenges the trial court‘s decision to deny sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). Plaintiff responds that we lack jurisdiction “to hear the appeal in regard to [defendant‘s] request for awarding attorney‘s fees,” because defendant failed to file his notice of appeal within the appropriate time frame. Plaintiff further argues that, in any event, defendant is prohibited from recovering attorney fees under Illinois law and that the trial court properly denied defendant‘s request for sanctions pursuant to Rule 137. We find that we have jurisdiction over defendant‘s appeal. However, given our decision to reverse the trial court‘s grant of summary judgment pursuant to the Act, we find that the issue of the propriety of an award of attorney fees and sanctions is moot.
¶ 42 Plaintiff insists that defendant‘s appeal is untimely because the trial court denied his motion to reconsider the ruling on the attorney fee issue on November 1, 2011, but defendant did not file his notice of appeal until December 8, 2011, more than 30 days later. We disagree. Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008) provides in relevant part that a notice of appeal “must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed *** within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment or order, irrespective of whether the circuit court had entered a series of final orders that were modified pursuant to postjudgment motions.” (Emphasis added.) In this case, we note the following sequence of events. On July 28, 2011, the trial court granted defendant‘s motion for summary judgment and denied defendant‘s request for attorney fees under the Act. On August 26, 2011, plaintiff filed a timely motion to reconsider the trial court‘s grant of summary judgment in defendant‘s favor. On August 29, 2011, defendant filed a timely motion to reconsider the trial court‘s denial of attorney fees under the Act.4 That
¶ 43 Defendant further claims that the trial court abused its discretion in denying his request for sanctions pursuant to Rule 137. Defendant reasons that “[s]ince the Legislature defined
a SLAPP as an abuse of the judicial process, and the court [found] the subject action was in fact a SLAPP, the decision not to sanction [plaintiff‘s attorney] and the Plaintiff/Appellee demonstrates the denial was an abuse of discretion and sanctions are warranted.” However, we have reversed the trial court‘s grant of summary judgment under the Act. Thus, we find defendant‘s argument for sanctions moot as well.
¶ 44 III. CONCLUSION
¶ 45 Accordingly, for the reasons set forth above, we reverse the circuit court of McHenry County‘s grant of defendant‘s motion for summary judgment pursuant to the Act. We affirm the denials of defendant‘s request for attorney fees and Rule 137 sanctions. This cause is remanded for further proceedings.
¶ 46 No. 2-11-1252, Reversed and remanded.
¶ 47 No. 2-11-1280, Affirmed.