                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




        Chicago Regional Council of Carpenters v. Jursich, 2013 IL App (1st) 113279




Appellate Court            CHICAGO REGIONAL COUNCIL OF CARPENTERS, Plaintiff and
Caption                    Counterdefendant-Appellant, v. EARL JURSICH, Defendant and
                           Counterplaintiff-Appellee, and (Daniel McLaughlin and Larry Carroll,
                           Third-Party Defendants-Appellants).



District & No.             First District, Sixth Division
                           Docket No. 1-11-3279


Filed                      February 22, 2013


Held                       In an action to reduce to judgment the fines imposed on defendant for
(Note: This syllabus       violating the constitution and rules of a carpenters’ union by operating a
constitutes no part of     nonunion construction company, the trial court properly denied the
the opinion of the court   motion to dismiss defendant’s counterclaim for defamation filed against
but has been prepared      the union members who brought charges and testified against defendant
by the Reporter of         in the union’s disciplinary proceedings, notwithstanding the union’s
Decisions for the          claim that the defamation action was barred by Illinois’s version of an
convenience of the         anti-SLAPP statute, since counterdefendants failed to establish that the
reader.)
                           defamation action was retaliatory.


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-M1-149659; the
Review                     Hon. Anita Rifkin-Carothers, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Raymond J. Sanguinetti, of Whitfield, McGann & Ketterman, of Chicago,
Appeal                     for appellants.

                           James Maher, of Chicago, for appellee.


Panel                      JUSTICE HALL delivered the judgment of the court, with opinion.
                           Presiding Justice Lampkin and Justice Reyes concurred in the judgment
                           and opinion.



                                             OPINION

¶1          The plaintiff and counterdefendant, the Chicago Regional Council of Carpenters (the
        CRCC), filed a complaint to reduce to judgment fines imposed against defendant and
        counterplaintiff, Earl Jursich. Mr. Jursich filed a counterclaim for defamation against the
        CRCC and the third-party defendants, Daniel McLaughlin and Larry Carroll (collectively the
        defendants). The defendants moved to dismiss the counterclaim pursuant to the Illinois
        Citizen Participation Act (735 ILCS 110/1 et seq. (West 2008)) (the Act). The circuit court
        denied the motion to dismiss. This court granted the defendants’ petition for leave to appeal.
        See Ill. S. Ct. R. 306(a)(9) (eff. Feb. 16, 2011).
¶2          On appeal, the defendants contend that they were entitled to immunity under the Act and,
        therefore, the circuit court erred when it denied their motion to dismiss. We affirm the
        judgment of the circuit court.


¶3                                             FACTS
¶4          Mr. McLaughlin, a member of the CRCC, brought charges against a fellow member, Mr.
        Jursich, accusing him of violating the constitution and rules of the CRCC by operating a
        nonunion construction company and by not paying the area’s wages and benefits amounts
        to his employees. On October 26, 2005, the CRCC held a disciplinary hearing on the charges.
        Mr. Jursich was not present at the hearing.
¶5          At the hearing, Mr. McLaughlin stated that Mr. Jursich was an alderman in the City of
        Genoa and was using his political influence to establish his nonunion company, E. Joseph
        Construction. He also stated that Mr. Jursich “uses his political position as 4th ward
        alderman to strong arm clients ***. [Mr. Jursich] doesn’t have ethics, doesn’t live up to his
        obligation as a union carpenter.” Pointing out that Mr. Jursich’s wife had worked in the
        mayor of Genoa’s office, Mr. McLaughlin stated that Mr. Jursich had done residential and
        commercial work in Genoa, and thus, “he’s just a rotten SOB as far as I’m concerned.”
        Finally, Mr. McLaughlin accused Mr. Jursich of defrauding the CRCC and of using it to

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       advance his political position.
¶6         In support of Mr. McLaughlin’s charges, Larry Carroll, another CRCC member, stated
       that a contractor had his business shut down because he refused to hire Mr. Jursich to do
       subcontracting work for him. Mr. Carroll stated:
              “I don’t like to roll over on my brother carpenters. We’re kind of like cops and in
          essence that it might be wrong, but–you know, but for him to do this to another person,
          tactics that he used to squash a guy, use his power as alderman and as far as I know, the
          union had also put money into this guy’s campaign to become an alderman and then on
          the side he’s building houses, buying lots.
                                                 ***
              That’s–I would love to have–after this go to the city and say this is the type of person
          that you have working for you using their weight.”
       The CRCC imposed fines totaling $45,300 on Mr. Jursich for the violations.
¶7         When Mr. Jursich failed to pay the fines, the CRCC filed suit to reduce the fines to
       judgment. During the discovery process, Mr. Jursich learned of the statements made by
       Messrs. McLaughlin and Carroll during the disciplinary hearing and filed his counterclaim
       against the defendants. Subsequently, the circuit court struck all but three counts of Mr.
       Jursich’s third amended counterclaim.
¶8         The surviving counts alleged that, during the disciplinary hearing, Mr. McLaughlin and
       Mr. Carroll “repeatedly and falsely accused Mr. Jursich of using his political power as an
       alderman in the City of Genoa to unlawfully compete with rival construction companies
       within the City, to coerce other contractors to hire his company E Joseph Construction, and
       to retaliate against those who chose not to do business with E Joseph Construction.” The
       third amended complaint further alleged that at the time the alleged slanderous statements
       were made, Messrs. McLaughlin and Carroll were employee/agents of the CRCC and were
       acting within the scope of their agency. Mr. Jursich sought an unspecified amount of
       compensatory and exemplary damages.
¶9             The circuit court denied the defendants’ motion to dismiss the remaining counts of
       the third amended complaint. This appeal followed.


¶ 10                                         ANALYSIS
¶ 11                                     I. Standard of Review
¶ 12       The defendants sought dismissal of the suit based on section 20 of the Act. See 735 ILCS
       110/20 (West 2008). A motion to dismiss based on immunity under the Act is properly raised
       under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West
       2008)); “[it] admits the legal sufficiency of the plaintiff’s claim but asserts certain defects
       or defenses outside the pleadings which defeat the claim.” Sandholm v. Kuecker, 2012 IL


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       111443, ¶ 55. Our review is de novo. Sandholm, 2012 IL 111443, ¶ 55.
¶ 13       When ruling on a motion to dismiss, we construe the pleadings and supporting
       documents in the light most favorable to the nonmoving party and accept as true all well-
       pleaded facts in the complaint and all inferences that may reasonably be drawn in the
       plaintiff’s favor. Sandholm, 2012 IL 111443, ¶ 55. We review the judgment of the lower
       court, not its reasoning, and we may uphold the court’s judgment on any grounds called for
       by the record. Lane v. Kalcheim, 394 Ill. App. 3d 324, 331 (2009).


¶ 14                                        II. Discussion
¶ 15       The Act is Illinois’s version of an anti-SLAPP statute. See Hammons v. Society of
       Permanent Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 3. A SLAPP or “Strategic
       Lawsuits Against Public Participation” is a meritless lawsuit utilized to retaliate against a
       party for attempting to participate in government by exercising first amendment rights such
       as the right to free speech or the right to petition. Ryan v. Fox Television Stations, Inc., 2012
       IL App (1st) 120005, ¶ 12. As our supreme court explained in Sandholm, “[p]laintiffs in
       SLAPP suits do not intend to win but rather to chill a defendant’s speech or protest activity
       and discourage opposition by others through delay, expense and distraction. [Citation.]”
       Sandholm, 2012 IL 111443, ¶ 34. A SLAPP plaintiff’s goal is achieved not by success on the
       merits but by forcing defendants to expend funds on attorney fees and litigation costs, thus
       discouraging them from pursuing their protests. Sandholm, 2012 IL 111443, ¶¶ 34-35.
¶ 16       The purpose of the Act is to give relief to citizens who have been victimized by meritless,
       retaliatory SLAPP lawsuits. Sandholm, 2012 IL 111443, ¶ 44. Our supreme court construed
       the language of section 15 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 735 ILCS 110/15 (West 2008)). However, the Act was not
       intended to protect individuals who commit tortious acts and then invoke the immunity
       afforded by it. Id. ¶ 45. Where a complaint genuinely seeks damages for defamation or other
       intentional torts, “it is irrelevant whether the defendants’ actions were ‘genuinely aimed at
       procuring favorable government action, result or outcome.’ ” Id. ¶ 53.
¶ 17        A claim is subject to dismissal under the Act where: (1) the movant’s acts were in
       furtherance of his right to petition, speak, associate, or otherwise participate in government
       to obtain favorable government action; (2) the nonmovant’s claims are solely based on,
       related to, or in response to the movant’s acts in furtherance of his constitutional rights; and
       (3) the nonmovant fails to produce clear and convincing evidence that the movant’s acts were
       not genuinely aimed at solely procuring favorable government action. Hammons, 2012 IL
       App (1st) 102644, ¶ 18 (citing Sandholm, 2012 IL 111443, ¶¶ 53-57). See also Ryan, 2012
       IL App (1st) 120005, ¶ 18.
¶ 18       Under the analysis set forth above, we must first determine whether the defendants were
       acting in furtherance of their constitutional right of speech, association or to participate in

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       government to obtain favorable governmental action. By filing a lawsuit to reduce to
       judgment the fines assessed against Mr. Jursich, the CRCC was exercising its constitutional
       right “to participate in government to obtain favorable governmental action.” The
       complained-of statements by Messrs. McLaughlin and Carroll were made in the disciplinary
       proceedings and in connection with the charges against Mr. Jursich. See Hytel Group, Inc.
       v. Butler, 405 Ill. App. 3d 113, 120 (2010) (the right to petition the government for redress
       for grievances includes the right to file a claim before a judicial or administrative body).
¶ 19       The fact that the defendants’ activities are the kind the Act is intended to protect does not
       mean that Mr. Jursich’s lawsuit is subject to dismissal as a SLAPP lawsuit. Ryan, 2012 IL
       App (1st) 120005, ¶ 20. We must determine whether Mr. Jursich’s lawsuit is “solely based”
       on the defendants’ protected acts.
¶ 20       The party moving for dismissal under the Act bears the initial burden of proving that the
       claim was solely based on, related to or in response to acts in furtherance of the movant’s
       rights of petition, speech and association. Sandholm, 2012 IL 111443, ¶ 56. To satisfy their
       burden in this case, the defendants were required to demonstrate affirmatively that Mr.
       Jursich’s suit was retaliatory and meritless. Ryan, 2012 IL App (1st) 120005, ¶ 21. The
       defendants must meet this burden before Mr. Jursich is required to provide clear and
       convincing evidence that the defendants’ activities were not immunized under the Act.
       Sandholm, 2012 IL 111443, ¶ 56.
¶ 21        In Hytel Group, Inc., the plaintiff brought suit alleging breach of fiduciary duties and
       fraudulent misrepresentation against a former employee who had filed a claim with the
       Illinois Department of Labor for $2,300 in final wages. The lawsuit sought $1 million in
       compensatory damages and $3 million in punitive damages, as well as forfeiture and
       repayment of all wages paid to the employee. Pursuant to the Act, the circuit court dismissed
       the lawsuit, and the plaintiff appealed. The appellate court affirmed.
¶ 22       Initially, the appellate court noted that not every later-filed claim is retaliatory. “If it
       states a potentially valid cause of action and seeks damages within the ordinary range
       recoverable under the facts of the case, and there are no other facts suggesting an intent to
       chill the other party’s right to seek redress, then the later claim has not been brought ‘in
       response to’ the other party’s exercise of first amendment rights within the meaning of the
       Act. Thus, it would not be subject to a motion to dismiss under the Act.” Hytel Group, Inc.,
       405 Ill. App. 3d at 126.
¶ 23       The reviewing court examined the factors the circuit court had considered in determining
       whether the claim was filed in retaliation or was a valid claim which happened to be filed
       later. The circuit court considered whether the complaint stated a valid cause of action. Such
       an inquiry was appropriate because retaliatory intent may be inferred where a claim lacking
       in merit is filed shortly after the exercise of the protected rights. Hytel Group, Inc., 405 Ill.
       App. 3d at 126. The court had also considered whether the extraordinarily high damages
       sought in the lawsuit were sufficiently supported by the facts in the record. Extremely high
       damages, unsupported by the facts, are intended to strike fear in the defendant rather than
       being a good-faith estimate of the injury sustained. Hytel Group, Inc., 405 Ill. App. 3d at 126.

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       Finding that the plaintiff’s lawsuit did not state a valid cause of action and that the large
       amount of damages sought by the plaintiff was not sufficiently supported by the facts, the
       circuit court determined that the lawsuit was a retaliatory claim which fell within the Act.
       Finding that the record supported the circuit court’s determination, the reviewing court
       affirmed the dismissal of the lawsuit pursuant to the Act. Hytel Group, Inc., 405 Ill. App. 3d
       at 126.
¶ 24       The reviewing court in Hytel Group, Inc. cautioned that application of the Act to possibly
       retaliatory claims must be done on a case-by-case basis and not applied in a “blanket fashion”
       to claims arising in other cases. Hytel Group, Inc., 405 Ill. App. 3d at 126. This court
       reiterated that caution, noting that there were maybe other factors relevant to future cases.
       Ryan, 2012 IL App (1st) 120005, ¶ 23.
¶ 25       In Ryan, the defendants broadcast a four-part program detailing an investigation into the
       Cook County judiciary. The report resulted in an inquiry from the supreme court, and the
       named judges were subject to discipline. Between the broadcast of the third and fourth
       installments, the plaintiff filed a lawsuit against the defendants alleging defamation, invasion
       of privacy and intentional infliction of emotional distress. The circuit court denied the
       defendants’ motion to dismiss based on the Act, and the defendants appealed.
¶ 26       In determining that the plaintiff’s lawsuit was retaliatory, the factors this court considered
       were the timing of the filing of the lawsuit and the amount of damages requested. It could
       be inferred from the fact that the plaintiff’s defamation suit was filed prior to the airing of
       the final segment of the program that the lawsuit was intended to deter the defendants from
       further publicizing their investigative findings. Ryan, 2012 IL App (1st) 120005, ¶ 23. The
       court found that the request for $28 million in damages was not justified by the nature of the
       plaintiff’s alleged injuries. The court noted that demanding millions in damages for alleged
       defamation is a classic SLAPP scenario. Ryan, 2012 IL App (1st) 120005, ¶ 24; see Hytel
       Group, Inc., 405 Ill. App. 3d at 126.
¶ 27       In the present case, the following factors from Hytel Group, Inc. are relevant to our
       determination as to whether Mr. Jursich’s lawsuit was retaliatory: the potential validity of
       Mr. Jursich’s cause of action; the timing of the filing of the defamation lawsuit; and the
       amount of damages requested.1
¶ 28       The circuit court found that Mr. Jursich’s counterclaim stated a potentially viable cause
       of action. While the circuit court also found that the complained-of statements were not
       protected by absolute privilege, the defendants have not raised the argument that a cause of
       action is not viable because of the existence of an affirmative defense, such as absolute
       privilege. Moreover, in Hammons, this court rejected the argument that, for purposes of the
       Act, “meritless” lawsuits included those subject to dismissal for failure to state a cause of


               1
               In Ryan, this court noted that the standard used in Hytel Group, Inc. in determining whether
       a claim was meritless was rejected in Hammons. This court did find Hytel Group, Inc. useful in
       determining whether a claim was retaliatory. Ryan, 2012 IL App (1st) 120005, ¶¶ 22-23.

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       action or barred by the statute of limitations. See Hammons, 2012 IL App (1st) 102644, ¶ 21;
       see also Ryan, 2012 IL App (1st) 120005, ¶ 28 n.4 (leaving unresolved the question as to
       whether an affirmative defense renders a cause of action “meritless” for purposes of the Act).
¶ 29       As to the timing factor, the statements by Messrs. McLaughlin and Carroll were made
       at the disciplinary hearing in October 2005; Mr. Jursich was not present at the meeting. In
       2007, the CRCC filed suit to reduce to judgment the fines imposed on Mr. Jursich. It is
       undisputed that it was not until November 2008, during the course of that lawsuit, that Mr.
       Jursich became aware of the statements made at the October 2005 disciplinary hearing and
       filed his counterclaim for defamation. While the time between when Mr. Jursich learned of
       the alleged defamatory statements and the filing of the counterclaim appears to have been
       brief, it had been almost three years since the statements were made and over a year since the
       CRCC filed its suit to reduce the fines to judgment. Finally, rather than millions in damages,
       Mr. Jursich’s third amended counterclaim sought an unspecified amount in compensatory
       damages and exemplary damages.
¶ 30       The defendants failed to present any affirmative evidence establishing that Mr. Jursich
       filed his counterclaim solely in response to the defendants’ activities protected under the Act.
       The circuit court’s finding that the counterclaim stated a potentially viable cause of action
       and the time and damages evidence in this case do not support the inference that Mr.
       Jursich’s lawsuit was filed in order to deter the defendants from the exercise of their
       constitutional right to free speech or to proceed with the lawsuit in this case. Rather, the
       evidence strongly supports the inference that Mr. Jursich’s counterclaim was filed as a result
       of his belief that he had been defamed by the statements made by Messrs. McLaughlin and
       Carroll and was intended to seek compensation for the damage to his reputation. Since the
       claim must be both retaliatory and meritless, we need not address whether Mr. Jursich’s
       claim is also meritless. See Ryan, 2012 IL App (1st) 120005, ¶ 26 (although evidence of
       retaliatory intent was shown, the motion to dismiss the complaint under the Act was correctly
       denied because the defendants failed to show that the complaint was meritless).


¶ 31                                      CONCLUSION
¶ 32       The defendants failed to carry their burden to demonstrate affirmatively that Mr. Jursich’s
       counterclaim for defamation was retaliatory and therefore a SLAPP lawsuit. We conclude
       that the circuit court did not err in denying the defendants’ motion to dismiss the remaining
       counts of the third amended counterclaim.
¶ 33      The judgment of the circuit court is affirmed.


¶ 34      Affirmed.




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