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, Plaintiff).
Nos. 1-08-2438, 1-09-2180 cons.
First District (5th Division)
September 30, 2010
October 27, 2010
1013
William I. Goldberg, M. Ryan Pinkston, and Aleka L. Jones, all of Seyfarth Shaw, LLP, of Chicago, for appellee.
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
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, 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
“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;
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.
In March 2007, Shoreline filed a complaint against Gassman, titled: “Verified Complaint for Injunctive Relief, Defamation, Civil Conspiracy, Malicious Prosecution, Intentional Infliction 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
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 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 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
Gassman then filed a motion to dismiss (motion) pursuant to
“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]. 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,
Counts VI and VII alleged intentional infliction of emotional distress with regard to Frischholz. Specifically, the court determined that the facts were pled 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 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 “‘affirmative 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.
“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 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 acts of the moving party in furtherance of the moving party‘s rights of petition, speech, association, or to otherwise participate in government.”
There is no distinct formula for determining whether a particular lawsuit is a SLAPP suit. See K. Tate, California‘s Anti-SLAPP Legislation: A Summary of and Commentary on its Operation and Scope,
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 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 regard 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 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 brought “in response to any act or acts” in furtherance of constitutional rights.
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.”
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” (
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, 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 prejudice or without prejudice; an order including Rule 304(a) (
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
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.”
“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 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
“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.”
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 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
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.”
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, and 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 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.”
CONCLUSION
For the foregoing reasons, the decision of the circuit court of Cook County is affirmed.
Affirmed.
TOOMIN and HOWSE, JJ., concur.
Notes
“Hallways
1. Mats, boots, shoes, carts or objects of any sort are prohibited outside Unit doors.”
“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.”