                               No. 2--06--0630         Filed: 8-7-07
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

RHONDA SCHROEDER,                      ) Appeal from the Circuit Court
                                       ) of Du Page County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 05--L--198
                                       )
MELISSA R. WINYARD,                    ) Honorable
                                       ) Hollis L. Webster,
      Defendant-Appellee.              ) Judge, Presiding.
_____________________________________________________________________________

       JUSTICE BOWMAN delivered the opinion of the court:

       Plaintiff, Rhonda Schroeder, brought suit against defendant, Melissa R. Winyard, alleging that

defendant had alienated the affections of plaintiff's husband, Gennady Shvartsshteyn (Gene), resulting

in their divorce. The trial court granted summary judgment for defendant on the basis that plaintiff's

cause of action was discharged in defendant's bankruptcy. We affirm.

                                        I. BACKGROUND

       The following facts are undisputed. Plaintiff married Gene on May 31, 1997. Defendant

worked with Gene at Royal Courier and Air Domestic Connect (Royal Courier) from June 28, 1999,

through June 19, 2000. On July 5, 2001, defendant filed for chapter 7 bankruptcy protection. The

bankruptcy trustee discovered no assets. On October 23, 2001, defendant was granted a discharge

of her prior debts, and the bankruptcy case was closed on November 5, 2001. Plaintiff filed a petition
No. 2--06--0630


for dissolution of marriage on October 27, 2003, and her marriage to Gene was dissolved on

November 21, 2003.

       Plaintiff filed her action against defendant on February 22, 2005, alleging as follows. There

was mutual love and affection between plaintiff and Gene until the time of defendant's "interference."

At some point during her employment with Royal Courier, defendant engaged in a course of conduct

intended to alienate the affections of Gene from plaintiff. Specifically, defendant encouraged Gene

to travel with her, buy her expensive and lavish gifts, and spend time away from plaintiff. Defendant

pursued and seduced Gene "until she was finally able to alienate his affections from his wife and

eventually caused him to have sexual intercourse with her and to destroy the marital relationship

between Gene" and plaintiff. As a direct result of these actions and the destruction of the marital

relationship, plaintiff divorced Gene, and he no longer provided financial support to her.

       As part of discovery, plaintiff produced a letter written to her by defendant sometime after

her employment with Royal Courier ended. As this letter is relevant to our subsequent analysis of

defendant's intent, we quote from it extensively:

               "So much pain and hurt has happened and to know I have contributed to that, literally

       kills me inside. I know the suffering I go through matters nothing to you, but if nothing else,

       I want you to know I never intentionally wanted any of this to happen. I never wanted to

       disrupt your marriage. If you can take a moment and remember the person you met before

       all of this. ***

               I know this is much too late to admit, but so many times I wanted to leave. I wanted

       things to go back like they were before. I wanted us to tan on our lunch, get our nails

       painted, talk about our significant others, have girls' night out and just be us. I entered a



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No. 2--06--0630


       world that over whelmed [sic] me, and when I realized I couldn't handle the situation any

       longer, I didn't know what to do. Then Steve [defendant's ex-husband] started working with

       us and the situation increasingly became unbearable. I can honestly tell you that I pretended

       to be someone/thing I was truly not to make it through. The people closest to me saw the

       change, but I just didn't know how to get out. I know it's easy to say why didn't I just quit.

       I felt I couldn't because I didn't want to fail or let people down. Ironically in the end, I not

       only failed but I lost things so precious to me. *** I told Gene that maybe you fight so hard

       because you truly love him. He said he knows you love him. I then said for God's sake, try

       to win you back. I am nothing to either of you, and both of you have endured much diversity

       [sic] and still found a way to stay together.

               *** I am telling you this because I do not want you to lose your marriage and past

       years with your husband. I can not change the past but only try to learn from mistakes and

       make it better in the future. If God would grant me one wish, it wouldn't be to have my

       credit, house or any materialistic things back. I would ask that one day, you and Steve will

       find it in your hearts to forgive and be able to let go of the hate and anger this has caused.

       From the bottom of my heart, I am so sorry for all of this. I am sorry if I hurt you."

       Defendant moved for summary judgment on March 17, 2006, on the ground that any liability

she had to plaintiff was discharged in her bankruptcy. The trial court granted the motion on May 24,

2006, and plaintiff timely appealed.

                                          II. ANALYSIS

       Summary judgment is appropriate only where the pleadings, affidavits, depositions,

admissions, and exhibits on file, when viewed in the light most favorable to the nonmoving party,



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No. 2--06--0630


show that there is no genuine issue of material fact and that the moving party is entitled to judgment

as a matter of law. Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374 (1998).

Summary judgment should be denied where material facts are disputed or where reasonable persons

could draw divergent inferences from undisputed facts. Adams v. Northern Illinois Gas Co., 211 Ill.

2d 32, 43 (2004). While the nonmoving party is not required to prove his case at the summary

judgment stage, he must present a factual basis arguably entitling him to a judgment in his favor.

Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 824 (2006). We review de novo a

grant of summary judgment. People ex rel. Department of Public Health v. Wiley, 218 Ill. 2d 207,

220 (2006).

       Whether a debt is dischargeable is a matter of federal law governed by the terms of the

Bankruptcy Code (11 U.S.C. §101 et seq. (2000)). Grogan v. Garner, 498 U.S. 279, 284, 112 L.

Ed. 2d 755, 763, 111 S. Ct. 654, 658 (1991). As we subsequently explain, however, we still have

jurisdiction to determine dischargeability in this case. Under section 727(b) of the Bankruptcy Code

(11 U.S.C. §727(b) (2000)), chapter 7 bankruptcy relief "discharges the debtor from all debts that

arose before the date of the order for relief" (emphasis added), except as provided under section 523

(11 U.S.C. §523 (2000)). "Debt" is defined as "liability on a claim." 11 U.S.C. §101(12) (2000).

The definition of "claim" includes the "right to payment, whether or not such right is reduced to

judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,

legal, equitable, secured, or unsecured." 11 U.S.C. §101(5)(A) (2000). The central purpose of the

Bankruptcy Code is to give a fresh start to the honest but unlucky debtor (Marrama v. Citizens Bank

of Massachusetts, 549 U.S. __, __, 166 L. Ed. 2d 956, 961, 127 S. Ct. 1105, 1107 (2007)), so debts

are presumed dischargeable (In re Morris, 223 F.3d 548, 552 (7th Cir. 2000)). The creditor has the



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No. 2--06--0630


burden of establishing, by a preponderance of the evidence, that the claim is not dischargeable.

Grogan, 498 U.S. at 287, 112 L. Ed. 2d at 765, 111 S. Ct. at 659. A court will construe the

exceptions to discharge strictly against the creditor and liberally in the debtor's favor. Morris, 223

F.3d at 552.

       Section 523(a) lists nondischargeable debts. A subcategory of these debts is debts related to

intentional torts, namely, debts from false pretenses, a false representation, actual fraud, or use of a

false financial statement (11 U.S.C. §523(a)(2) (2000)); debts for fraud or defalcation while acting

as a fiduciary, embezzlement, or larceny (11 U.S.C. §523(a)(4) (2000)); or, relevant to this case,

debts "for willful and malicious injury by the debtor to another entity or to the property of another

entity" (11 U.S.C. §523(a)(6) (2000)). Under section 523(c)(1), a debt allegedly falling under one

of these three subsections that was timely listed by the debtor on his bankruptcy schedule is

nevertheless discharged unless the creditor requests a hearing within 60 days after the first creditor's

meeting and the bankruptcy court determines that the debt does in fact fall within one of the

subsections. 11 U.S.C. §523(c)(1) (2000); Fed. R. Bankr. P. 4007(c). The bankruptcy court has

exclusive jurisdiction to determine whether this type of scheduled debt is discharged. 11 U.S.C.

§523(c)(1) (2000); In re Mendiola, 99 B.R. 864, 866 (Bankr. N.D. Ill. 1989); Kearns v. Industrial

Comm'n, 312 Ill. App. 3d 257, 262 (2000). On the other hand, a debt under one of the

aforementioned three subsections that was not listed or not timely listed on the debtor's bankruptcy

schedule, and for which the creditor did not have notice or actual knowledge of the bankruptcy in

time to request a hearing, falls under section 523(a)(3)(B) (11 U.S.C. §523(a)(3)(B) (2000)). It has

no limitations period, and state and bankruptcy courts have concurrent jurisdiction to determine




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No. 2--06--0630


dischargeability. Mendiola, 99 B.R. at 868 n.6; Kearns, 312 Ill. App. 3d at 262-63; see also Neal v.

Oak Brook Management Corp., No. 2--06--0549, slip op. at 4 (2007).

        The instant case falls under the latter category because defendant did not list her "debt" to

plaintiff on her bankruptcy schedule (which is understandable given that plaintiff did not file suit until

several years after defendant's bankruptcy case was closed), so our state courts have jurisdiction to

determine whether plaintiff's suit was discharged in defendant's bankruptcy. Moreover, in a no-asset

chapter 7 case like defendant's, scheduling the debt would not have affected dischargeability, because

there is never a claim filing period in such cases. Mendiola, 99 B.R. at 867-68; Neal, slip op. at 5.

        Plaintiff argues that defendant's liability for alienating Gene's affections was not discharged,

because it fits within the exception of section 523(a)(6). The parties do not dispute that in the

absence of section 523(a)(6)'s application, defendant's liability was discharged as a prepetition debt

in her bankruptcy. 1 As stated, section 523(a)(6) exempts debts "for willful and malicious injury by

the debtor to another entity or to the property of another entity." 11 U.S.C. §523(a)(6) (2000).

Thus, the creditor must prove that: (1) the debtor owes a debt resulting from an injury that he caused;




        1
            In the absence of such a dispute, we do not analyze various approaches to determining

whether a debt arose "prepetition" or "postpetition." See, e.g., In re Parker, 313 F.3d 1267, 1269-70

(10th Cir. 2002) (comparing "conduct theory," under which the date of the claim is determined by

the date of conduct giving rise to the claim, to "accrual theory," under which the date of the claim is

determined by the state law under which liability for the claim arose); see also In re Piper Aircraft

Corp., 58 F.3d 1573, 1577 (11th Cir. 1995) (discussing "Piper test," which examines the parties'

preconfirmation relationship).

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No. 2--06--0630


(2) the debtor's actions were willful; and (3) the debtor's actions were malicious. 11 U.S.C.

§523(a)(6) (2000); In re Rizzo, 337 B.R. 180, 188 (Bankr. N.D. Ill. 2006).

        "The terms 'willful' and 'malicious' have caused no end of problems." Rizzo, 337 B.R. at 188.

We start with the term "malicious," which the Seventh Circuit has stated " 'means in conscious

disregard of one's duties or without just cause or excuse; it does not require ill-will or specific intent

to do harm.' " In re Thirtyacre, 36 F.3d 697, 700 (7th Cir. 1994), quoting Wheeler v. Laudani, 783

F.2d 610, 615 (6th Cir. 1986). As far as "willful," the United States Supreme Court has said, "The

word 'willful' is defined in Black's Law Dictionary as 'voluntary' or 'intentional.'          [Citation.]

Consistently, legislative reports note that the word 'willful' in §523(a)(6) means 'deliberate or

intentional.' " Kawaauhau v. Geiger, 523 U.S. 57, 61 n.3, 140 L. Ed. 2d 90, 95 n.3, 118 S. Ct. 974,

977 n.3 (1998). Additionally, "[t]he word 'willful' in (a)(6) modifies the word 'injury,' indicating that

nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act

that leads to injury." (Emphasis in original.) Kawaauhau, 523 U.S. at 61, 140 L. Ed. 2d at 95, 118

S. Ct. at 977. Like intentional torts, as opposed to reckless or negligent torts, section 523(a)(6)

requires that the actor intend the consequences of his act, not simply the act itself. Kawaauhau, 523

U.S. at 61-62, 140 L. Ed. 2d at 95-96, 118 S. Ct. at 977. Accordingly, section 523(a)(6) excludes

injuries that were recklessly or negligently inflicted. See Kawaauhau, 523 U.S. at 61-62, 140 L. Ed.

2d at 95-96, 118 S. Ct. at 977.

        The Supreme Court did not elaborate on what type of intent is required for the willful act, but

several courts have found that the requirement is satisfied by showing either that the debtor had the

subjective intent to injure the creditor or that the debtor subjectively believed that injury was

substantially certain to result from his act. See In re Basel-Johnson, No. 05--B--36481, slip op. at



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14 (Bankr. N.D. Ill. April 17, 2007) (cases cited therein). Whether a person acted willfully and

maliciously is typically a question of fact reserved for the trier of fact. See In re Basel-Johnson, slip

op. at 14. We leave these terms aside for the moment and turn our attention to the requirements for

a claim of alienation of affections under Illinois law.

          To prove a claim for alienation of affections, the plaintiff must show: (1) love and affection

of the alienated spouse for the plaintiff; (2) actual damages; and (3) overt acts, conduct, or enticement

by the defendant causing those affections to depart. Orbeta v. Gomez, 315 Ill. App. 3d 687, 690

(2000). In conjunction with the third element, courts have required a showing of "willful intent."

Wheeler v. Fox, 16 Ill. App. 3d 1089, 1093-94 (1974). "It is necessary to prove that defendant is

blamable and had willful and wrongful intent before civil liability may be imposed." Wheeler, 16 Ill.

App. 3d at 1094. Or, as courts have more colorfully stated:

          " '[W]e must determine whether [the spouse's love and affections for the plaintiff] just drifted

          away, whether [the spouse] voluntarily floated them away or whether the defendant pirated

          them away. The liability of the defendant must rest on the last of the three alternatives.' "

          Orbeta, 315 Ill. App. 3d at 691, quoting Farrier v. Farrier, 46 Ill. App. 2d 471, 474 (1964).

Alienation-of-affections actions have been sharply limited by the Alienation of Affections Act (Act)

(740 ILCS 5/0.01 et seq. (West 2004)) and "have been subjected to close and strict judicial scrutiny

within very narrow limits both in pleading and proof." Coulter v. Renshaw, 94 Ill. App. 3d 93, 95

(1981).

          Plaintiff argues that the intent required for a claim of alienation of affections is the same as

the intent required under the willfulness standard of section 523(a)(6). Defendant argues that while

sufficient evidence of subjective intent is required for nondischargeability under the Bankruptcy Code,



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No. 2--06--0630


the Act is satisfied by objective proof of intent. She further argues that even under a standard

requiring subjective intent, plaintiff has not met her burden for nondischargeability, because

defendant's letter to plaintiff indicates a lack of intent. We need not determine whether the Act

requires a showing of subjective or objective intent, because we agree with defendant's latter

argument.

        Defendant stated in her letter:

        "I know the suffering I go through matters nothing to you, but if nothing else, I want you to

        know I never intentionally wanted any of this to happen. I never wanted to disrupt your

        marriage. ***

                *** I told Gene that maybe you fight so hard because you truly love him. He said

        he knows you love him. I then said for God's sake, try to win you back."

We agree with defendant that it cannot be inferred from the letter that defendant subjectively intended

plaintiff to be injured, and that to the contrary, the letter indicates defendant's total lack of the

requisite intent. Cf. Farrier, 46 Ill. App. 2d at 480 (fact that the defendant did not object when the

plaintiff's husband sought a reconciliation with the plaintiff was evidence that the defendant had not

been trying to alienate the affections of the plaintiff's husband).

        Plaintiff argues that we should consider the public policies behind both the Act and section

523(a)(6) of the Bankruptcy Code. She notes that Illinois is one of only a few states to still have a

cause of action based on alienation of affections, and she argues that this confirms Illinois's strong

"pro-marriage" policy. Plaintiff further notes that section 523(a)(6) prohibits a debtor from

discharging a debt for willful and malicious injuries, and she argues that the public policy underlying

this exception is to protect people from improper behavior. Plaintiff maintains that the "purpose



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behind these laws is to protect people from the exact actions that Defendant has performed," and

"[t]o permit Defendant to be discharged from the liability of her actions goes directly against public

policy regarding the nondischargeability of improper behavior and the protection of the institution

of marriage."

        Plaintiff apparently would like us to adopt an expansive interpretation of the Act and

exceptions to discharge in the Bankruptcy Code under the guise of public policy, but such an

interpretation is contrary to settled law. As stated, the main purpose of the Bankruptcy Code is to

give a fresh start to the honest but unlucky debtor (Marrama, 549 U.S. at __, 166 L. Ed. 2d at 961,

127 S. Ct. at 1107), so the creditor has the burden of establishing that a debt is not dischargeable

(Grogan, 498 U.S. at 287, 112 L. Ed. 2d at 765, 111 S. Ct. at 659). And while Illinois may have a

"pro-marriage" policy, alienation-of-affections actions are subject to strict judicial scrutiny. See

Coulter, 94 Ill. App. 3d at 95.

        Plaintiff further argues that although proof of intent is required for an alienation-of-affections

action, she just needs to prove that defendant had the intent to seduce plaintiff's husband and was

successful in doing so. Even if this were true under Illinois law, however, defendant's debt would be

discharged unless she subjectively intended to injure plaintiff, or at least subjectively believed that

injury was substantially certain to result from her acts. See In re Basel-Johnson, slip op. at 14. As

stated,"[t]he word 'willful' in (a)(6) modifies the word 'injury,' indicating that nondischargeability takes

a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury."

(Emphasis in original.) Kawaauhau, 523 U.S. at 61, 140 L. Ed. 2d at 95, 118 S. Ct. at 977. "Injury"

refers to "an invasion of any legally protected interest of another." In re Stage, 321 B.R. 486, 492-93

(8th Cir. Bankr. 2005), citing Restatement (Second) of Torts §7(1), at 12 (1965); see also Black's



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No. 2--06--0630


Law Dictionary 789 (7th ed. 1999) (defining "injury" as, among other things, the "violation of

another's legal right, for which the law provides a remedy; a wrong or injustice"). Accordingly, in

order to avoid discharge, plaintiff has to prove that defendant subjectively intended to alienate Gene's

affections for plaintiff, or subjectively believed that such alienation was substantially certain to result

from her acts.

        In her reply brief, plaintiff argues that defendant's letter is not believable and is based on

"buyer's remorse." She also maintains that it is doubtful that defendant is even apologetic for her

actions. Plaintiff argues that defendant herself presented evidence that the letter did not reflect her

state of mind. She points out that in defendant's answer to plaintiff's complaint, defendant stated:

                 "Plaintiff stated to Defendant on several occasions that she intended to file an

        alienation of affection actions [sic] against her and ruin her financially, and Defendant believed

        that in an effort to contrive 'evidence' against Defendant, did certain acts including, but not

        limited to the following:

                                                  ***

                 *** When [defendant] finally agreed to speak to [Gene] (as he said in a menacing

        manner that it was 'in her best interest to do so[']) he insisted that he and [plaintiff] would

        leave her alone if Defendant would just write a 'letter of apology to [plaintiff].'

                 *** Defendant in a desperate attempt to placate her tormentors and in a desperate

        attempt to save her then marriage agreed to write a letter she hoped would make Plaintiff and

        her spouse go away."

Plaintiff maintains that defendant has contradicted herself as to the letter's intent and that "this

contradiction proves Defendant's mental state of intent."



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        Plaintiff's argument is not persuasive. Although defendant stated that she wrote the letter to

"placate her tormentors" and hoped it would make them go away, defendant did not claim that

anything she said was untrue, nor does her answer, when considered in conjunction with the letter,

lead to the reasonable inference that what she said was false. Indeed, plaintiff herself cites the letter's

contents in her opening brief as evidence of defendant's intent.

        To the extent that plaintiff is challenging our ability to consider the letter, we note that the

letter was produced by plaintiff in discovery, attached as an exhibit to defendant's reply to plaintiff's

response to the motion for summary judgment, and discussed by defense counsel during argument

on the summary judgment motion. Any claim that the letter is legally insufficient has been waived

by plaintiff's failure to raise such an objection in the trial court. See Korogluyan v. Chicago Title &

Trust Co., 213 Ill. App. 3d 622, 628 (1991) (appellate court could consider an unauthenticated copy

of a letter from the Federal Deposit Insurance Corporation that was attached to the defendant's

response to the motion for summary judgment, because the sufficiency of such a document could not

be challenged for the first time on appeal); Miller v. St. Charles Condominium Ass'n, 141 Ill. App.

3d 834, 837-38 (1986) (letter that was obtained during discovery, tendered to the trial court before

the hearing on the defendant's motion for summary judgment, and relied on extensively by the plaintiff

in her argument against the motion, without objection, was properly before the appellate court); see

also Kambylis v. Ford Motor Co., 338 Ill. App. 3d 788, 798-99 (2003) (the plaintiff could rely on his

expert's report, which was unsworn and not made under oath as an affidavit, as a basis to reverse

summary judgment, because the defendant failed to object to its admission in the trial court).

Plaintiff's reliance on the letter in her initial brief also waives any objection to its admissibility. See

Landmark Properties, Inc. v. Architects International-Chicago, 172 Ill. App. 3d 379, 384 (1988) (the



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plaintiffs' argument that exhibits filed in support of motion for summary judgment were not certified

was waived because, among other things, the plaintiffs referred to and incorporated parts of the

documents in their own pleadings).

        Plaintiff further maintains that even if defendant is apologetic, this does not eradicate

defendant's original intent and success in seducing Gene.                Plaintiff argues that defendant

"acknowledges" in the letter that she "can not change the past but only try to learn from mistakes and

make it better in the future." Plaintiff argues that defendant "is not an incompetent person and her

ability to comprehend the seriousness of a situation is reflected in her letter to Plaintiff"; that it "is not

far fetched to assume that Defendant was aware that if Gene was spending time with her, spending

money on her and having sexual relations with her, then during those periods, Gene was not able to

do the same for the Plaintiff"; and that "it is obvious that this year[-]long relationship between

Defendant and Gene caused great harm to Plaintiff and Gene's marital relationship and there is no way

that Defendant was not aware of this harm, particularly since Plaintiff and Defendant were at one

time, friends." (Emphasis added.)

        Regarding plaintiff's alleged original intent to seduce Gene, again the focus of our inquiry is

whether defendant subjectively intended to injure plaintiff or subjectively believed that injury was

substantially certain to result from her acts. The basic problem with plaintiff's argument is that

inferences are to be drawn from the evidence presented, not from the theory of liability presented.

If a trier of fact were to decide in plaintiff's favor, its decision should be based upon evidence, not

argument. While plaintiff is not required to prove her case at the summary judgment stage, she must

provide a factual basis arguably entitling her to judgment in her favor. Brown, Udell & Pomerantz,

Ltd., 369 Ill. App. 3d at 824. The party moving for summary judgment has the initial burden of



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production, and a defendant may meet that burden by (1) presenting evidence that, if not rebutted,

would entitle it to judgment as a matter of law, or (2) showing that the plaintiff would not be able to

prove an element of its cause of action. Bourgonje v. Machev, 362 Ill. App. 3d 984, 994 (2005).

While a plaintiff may initially rely on its pleadings to create questions of material fact, once the

defendant supplies facts demonstrating its entitlement to judgment as a matter of law, the burden

shifts to the plaintiff to present some evidence of the defendant's liability that supports each element

of the cause of action, thereby presenting an issue of material fact to be decided at trial. Bourgonje,

362 Ill. App. 3d at 995. In other words, as our supreme court has stated, "If the party moving for

summary judgment supplies facts that, if not contradicted, would warrant judgment in its favor as a

matter of law, the opposing party cannot rest on its pleadings to create a genuine issue of material

fact." Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004). Here, defendant's letter is evidence

indicating a lack of subjective intent to injure plaintiff, and plaintiff has not provided any evidence,

such as other documents, depositions, or affidavits, to counter this showing of a lack of intent.

        We recognize that in determining intent, a person's declarations of intent are entitled to less

weight than his or her actions demonstrating intent. See Walsh v. County Officers Electoral Board,

267 Ill. App. 3d 972, 976 (1994); Miller v. Police Board, 38 Ill. App. 3d 894, 898 (1976); see also

In re Marriage of Passiales, 144 Ill. App. 3d 629, 635 (1986) ("conduct may negate declarations of

intent"). We also recognize that "matters of intent are generally inappropriate for resolution at the

summary judgment stage." (Emphasis added.) Thomson Learning, Inc. v. Olympia Properties, LLC,

365 Ill. App. 3d 621, 635 (2006); see also Farmers Automobile Insurance Ass'n v. Williams, 321 Ill.

App. 3d 310, 314 (2001), quoting Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 859

(1989) (" 'summary judgment is particularly inappropriate where the inferences which the parties seek



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to have drawn deal with questions of motive, intent and subjective feelings and reactions' ").

However, in this case plaintiff has failed to present any evidence to counter the declarations of intent

contained in defendant's letter, even evidence of particular acts from which a trier of fact arguably

could discredit defendant's declarations. Thus, there is no question of material fact that defendant's

potential liability does not fit within the section 523(a)(6) exception for "willful and malicious injury,"

which means that the debt was, therefore, discharged in defendant's bankruptcy.

                                          III. CONCLUSION

        In sum, we conclude that the trial court properly granted summary judgment for defendant

because the evidence, even when viewed in the light most favorable to plaintiff, does not create a

genuine issue of fact that would preclude defendant's potential liability to plaintiff from being

discharged in defendant's bankruptcy.

        For the foregoing reasons, we affirm the judgment of the Du Page County circuit court.

        Affirmed.

        CALLUM, J., concurs.

        JUSTICE McLAREN, specially concurring:

        I specially concur because I believe that the cause of action of alienation of affections, as pled

in this cause, was dischargeable in bankruptcy as a matter of law. Therefore, I do not believe that it

was necessary to address whether summary judgment was correctly granted on the merits.

        The majority does an admirable job of explaining that debts are not dischargeable if they are

"for willful and malicious injury by the debtor." The majority expounds on the federal statutory and

case law and the definitions of willful and malicious, then compares these definitions to the elements

of the Illinois cause of action of alienation of affections.



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          However, the majority does not address the method of pleading alienation of affections in the

alternative, i.e., with or without the "gist of malice." According to early Illinois cases regarding

alienation of affections, the cause could be pled with or without the "gist of malice." If the trier of

fact found malice, the defendant could be kept in jail until satisfaction of the judgment; if not, the

defendant could not be incarcerated. See generally In re Petition of Monaco, 287 Ill. App. 540

(1936).

          I believe that the majority should have first considered whether the pleading alleged malice.

If the majority had determined that the pleading alleged malice, then the majority was correct in

addressing the grant of the summary judgment. However, a fair reading of the complaint will readily

establish that malice was not alleged. Therefore, regardless of the merits of her claim, plaintiff could

not prevent discharge. By recognizing the existence of the alternative methods of pleading alienation

of affections (with or without malice) and then reviewing the complaint for any allegations of malice

in this case, the majority should have determined that the complaint filed did not plead malice and

that, as a matter of law, the debt was dischargeable. See In re Petition of Blacklidge, 359 Ill. 482

(1935). In Blacklidge, our supreme court defined malice and pointed out:

       "The 'gist of the action' constitutes the essential ground or object of a suit, without which there

       is not a cause of action. [Citations.] Malice may be made the gist of the action if properly

       pleaded. [Citations.] Whether malice is the gist of a particular action is to be determined from

       the charges made in the declaration. [Citations.]" Blacklidge, 359 Ill. at 489.

       Even if there were a judgment entered in favor of plaintiff, it would not contain any indication

that malice was the "gist of the action." Thus, it would have been the type of claim that is discharged

in bankruptcy.     The trial court was correct in determining that "the claim was discharged in



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 No. 2--06--0630


bankruptcy" based upon the pleadings. Furthermore, based upon the pleadings, it was unnecessary

for the trial court or this court to determine if plaintiff failed to present sufficient material facts to

preclude summary judgment on the merits of her underlying claim.




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