                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Capeheart v. Terrell, 2013 IL App (1st) 122517




Appellate Court             LORETTA CAPEHEART, Plaintiff-Appellant and Cross-Appellee, v.
Caption                     MELVIN C. TERRELL, Defendant-Appellee and Cross-Appellant
                            (Sharon K. Hahs, Lawrence P. Frank, in Their Official Capacities as
                            Northeastern Illinois University Administrators, Defendants).



District & No.              First District, First Division
                            Docket No. 1-12-2517


Filed                       September 16, 2013


Held                        In a defamation action arising from a university setting in which plaintiff
(Note: This syllabus        alleged that defendant made a defamatory statement before a faculty
constitutes no part of      council meeting that a student told him that a “stalking” complaint was
the opinion of the court    filed against plaintiff in connection with a student protest, the trial court’s
but has been prepared       dismissal of plaintiff’s complaint pursuant to the Illinois Citizen
by the Reporter of          Participation Act was reversed, since defendant failed to establish that the
Decisions for the           suit was a SLAPP suit, especially when the suit was not meritless or
convenience of the          retaliatory, none of the essential elements of the defamation claims were
reader.)
                            refuted, plaintiff alleged that no stalking complaint was filed, and there
                            was nothing showing that the suit was intended to prevent defendant from
                            exercising his constitutional rights.


Decision Under              Appeal from the Circuit Court of Cook County, No. 12-L-4115; the Hon.
Review                      Randye A. Kogan, Judge, presiding.


Judgment                    Reversed and remanded.
Counsel on                   Glickman, Flesch & Rosenwein, of Chicago (Thomas D. Rosenwein, of
Appeal                       counsel), for appellant.

                             Franczek Radelet P.C., of Chicago (Peter G. Land and Ellen F. Wetmore,
                             of counsel), for appellee.


Panel                        PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
                             with opinion.
                             Justices Cunningham and Delort concurred in the judgment and opinion.



                                                OPINION

¶1          The plaintiff, Loretta Capeheart, appeals the circuit court order which granted the motion
        to dismiss her defamation claims against the defendant, Melvin C. Terrell, and awarded him
        attorney fees and costs under the Illinois Citizen Participation Act (Act) (735 ILCS 110/1 et
        seq. (West 2012)). Terrell cross-appeals the circuit court’s judgment as to the amount of the
        fees and costs it awarded. We need not address Terrell’s cross-appeal because, for the
        reasons that follow, we reverse the circuit court’s dismissal of counts I and II of the
        plaintiff’s complaint and remand the cause for further proceedings.
¶2          The complaint, motions, and supporting documents disclose the following facts pertinent
        to the issues in this appeal. The plaintiff is a tenured associate professor in the Department
        of Justice Studies at Northeastern Illinois University (NEIU) and has been employed by the
        university since 2002. Defendant Sharon K. Hahs is the president of NEIU, and defendant
        Lawrence P. Frank is NEIU’s provost.1 Terrell was employed as the vice president of student
        affairs at NEIU until his retirement from that position on December 31, 2008.
¶3          The plaintiff’s claims against Terrell are premised on conduct that allegedly occurred
        during a March 12, 2007, meeting of NEIU’s Faculty Council for Student Affairs (Faculty
        Council), which advises the university’s vice president for student affairs and is comprised
        of several elected faculty members. In March 2007, the plaintiff was a member of the Faculty
        Council, and both parties participated in the meeting as part of their professional
        responsibilities to the university. The meeting agenda included discussing the school’s
        handling of a student protest against the presence of CIA recruitment personnel on campus,
        after two students had been arrested during the protest. The arrests and the protest had been
        controversial topics on campus. The plaintiff alleged that, shortly after the arrests, a student
        employee of the Dean’s office, which Terrell oversees, had circulated a flyer accusing her


                1
                Hahs and Frank are not parties to this appeal, as the plaintiff’s claims against them are still
        pending in the circuit court.

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     of organizing the protest and creating the chaos on campus. In response, the plaintiff alleged
     that Terrell stated that a student posting those flyers had filed a “stalking” complaint against
     her.
¶4        The plaintiff’s defamation claims against Terrell are based on his “stalking” statement
     made during the Faculty Council meeting. She also claimed that Terrell’s defamatory
     statement was made in retaliation for statements she made during the meeting. At that
     meeting, the plaintiff asked several questions of Terrell, who had supervisory responsibility
     over the campus police, and she criticized the use of campus police to arrest two students
     who were members of the NEIU Socialist Club, which she advises. After the meeting, the
     plaintiff alleged that Terrell expressed regret only for assuming that another school
     administrator had informed her of the stalking complaint but not for making the statement
     itself. Later, the plaintiff was informed that the student did not file a complaint; rather, the
     student wrote in a statement to police after the student arrests that the plaintiff attempted to
     “chase [her] down while [she] was handing out information regarding [the plaintiff’s]
     group’s discrepancies between beliefs and actions.”
¶5        In March 2008, the plaintiff brought suit against all three defendants in the United States
     District Court for the Northern District of Illinois. Her complaint, as finally amended,
     consisted of four counts. Count I was directed against Hahs and Frank and asserted a federal
     claim for violation of her constitutional right to free speech pursuant to the first amendment
     to the United States Constitution (U.S. Const., amend. I). Counts II and III were directed
     against Terrell and asserted state claims for defamation per se and defamation per quod,
     respectively. Count IV was directed against all three defendants and asserted a state claim
     for retaliation against the exercise of free speech, as guaranteed under article I, section 4, of
     the Constitution of the State of Illinois (Ill. Const. 1970, art. I, § 4). The plaintiff sought
     injunctive relief against Hahs and Frank, who were sued in their official capacities as
     president and provost of NEIU, respectively. She sought monetary damages from Terrell,
     who was sued in his individual capacity.
¶6        On February 14, 2011, the district court entered summary judgment in favor of Hahs and
     Frank on the plaintiff’s federal claim for infringement of her first amendment right to free
     speech. The court declined to exercise supplemental jurisdiction over the state claims, which
     were dismissed without prejudice due to their being filed in state court. On February 24,
     2011, the plaintiff filed a notice of appeal in the United States Court of Appeals for the
     Seventh Circuit, challenging the district court’s entry of summary judgment against her on
     the federal claim and the decision not to exercise supplemental jurisdiction over the state
     claims.
¶7        On March 4, 2011, the plaintiff filed the instant action in the circuit court of Cook
     County. In her complaint, she reasserted the state claims originally alleged in the federal
     litigation: counts I and II alleged defamation per se and per quod, respectively, against
     Terrell; and count III alleged free speech retaliation against all three defendants. All three
     defendants filed motions to dismiss. Terrell’s motion, filed on April 25, 2011, asserted that
     he was immune from suit under the Act because the defamation and retaliation claims were
     filed in response to his exercise of his constitutional rights to free speech and participation
     in government. The plaintiff then filed an “Emergency Motion to Stay” the circuit court

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       proceedings pending disposition of the federal appeal. The circuit court granted the motion
       to stay on August 18, 2011. In an interlocutory appeal, this court reversed the grant of the
       stay and remanded the case to the circuit court. Capeheart v. Terrell, 2011 IL App (1st)
       112707-U.
¶8          On June 19, 2012, following supplemental briefing and a hearing, the circuit court
       granted Terrell’s motion to dismiss as to counts I (defamation per se) and II (defamation per
       quod). The court stated that Terrell had demonstrated that the plaintiff’s complaint was
       related to and in response to acts that he made in furtherance of his right to participate in
       government, because the statement was made at a meeting of a government entity. The court
       stated that the burden then shifted to the plaintiff to establish, by clear and convincing
       evidence, that Terrell was not immunized from liability under the Act. The court concluded
       that the plaintiff failed to do so, finding that Terrell’s statement was made during the debate
       over the police action on campus and was genuinely aimed at procuring a government action
       to resolve the situation.
¶9          Terrell then moved for $87,125.50 in attorney fees under section 25 of the Act (735 ILCS
       110/25 (West 2012)), and the plaintiff asked the court to add language pursuant to Illinois
       Supreme Court Rule 304(a) (eff. Feb. 26, 2010) to the dismissal order. On August 21, 2012,
       the circuit court awarded Terrell $8,700 for attorney fees and $704.51 for costs. The court
       stated that Terrell’s request for fees was excessive, noting various charges that it deemed
       unreasonable. The court stated that it would allow fees for the 14.5 hours that defense
       counsel spent drafting the original motion to dismiss and 14.5 hours for the renewed motion
       after the stay was reversed, which totaled $8,700 in attorney fees. The court also limited costs
       to only those associated with the filing of the motion and added Rule 304(a) language to its
       order and the June 19 order. Both parties timely appealed.
¶ 10        The plaintiff argues that the circuit court erred in granting Terrell’s motion because he
       failed to meet his initial burden of proving that her defamation lawsuit was solely based on
       acts in furtherance of his rights of petition, speech or association. Rather, she asserts that,
       under Sandholm v. Kuecker, 2012 IL 111443, ¶ 42, regardless of whether Terrell was
       petitioning, engaging in free speech, or otherwise participating in government at the time of
       the defamation, the question under the Act is whether her defamation claim genuinely seeks
       redress for the defamation or whether the suit is retaliatory and meritless. We agree with the
       plaintiff.
¶ 11        A motion to dismiss based on the immunity conferred by the Act is appropriately raised
       in a motion filed under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS
       5/2-619(a)(9) (West 2012)). Sandholm, 2012 IL 111443, ¶ 54. A section 2-619 motion
       admits the legal sufficiency of the plaintiff’s claim but asserts certain defects or defenses
       outside the pleadings which defeat the claim. Id. ¶ 55. When ruling on the motion, the court
       should construe the pleadings and supporting documents in the light most favorable to the
       nonmoving party. Id. The court must accept as true all well-pleaded facts in the plaintiff’s
       complaint and all inferences that may reasonably be drawn in the plaintiff’s favor. Id. The
       question on appeal is whether the existence of a genuine issue of material fact should have
       precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a
       matter of law. Id. We review a circuit court’s dismissal under section 2-619 de novo. Id.

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¶ 12       Under the Act, a defendant of a SLAPP (“Strategic Lawsuit Against Public
       Participation”) lawsuit may file a motion to dismiss the entire claim. Hammons v. Society of
       Permanent Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 15. In deciding whether a
       lawsuit should be dismissed pursuant to the Act, a court must first determine whether the suit
       constitutes a SLAPP suit. Sandholm, 2012 IL 111443, ¶ 43. SLAPP suits: (1) aim at
       preventing citizens from exercising their political rights or punishing those who have done
       so; (2) use the threat of money damages or the prospect of defense costs to silence citizen
       participation; and (3) are based upon nothing more than the defendant’s exercise of his rights
       to petition, free speech, and participate in government. Id. ¶ 33. “SLAPPs are, by definition,
       meritless.” Id. ¶ 34. Plaintiffs in SLAPP suits do not intend to win but rather to chill a
       defendant’s speech or activity and discourage opposition through delay, expense, and
       distraction. Id. However, where a plaintiff files suit genuinely seeking relief for damages for
       alleged defamation or other intentionally tortious act, the lawsuit is not considered a SLAPP,
       because it is not solely based on the defendant exercising his constitutional rights. Id. ¶ 45.
       Further, if a plaintiff’s complaint does not constitute a SLAPP, “it is irrelevant whether the
       defendant[’s] actions were ‘genuinely aimed at procuring favorable government action,
       result, or outcome.’ ” Sandholm, 2012 IL 111443, ¶ 53. Thus, as Sandholm explains, the Act
       only applies to meritless, retaliatory SLAPP lawsuits, as those suits have traditionally been
       defined. Sandholm, 2012 IL 111443, ¶¶ 51-53; see also Hammons, 2012 IL App (1st)
       102644, ¶ 18.
¶ 13       Section 15 of the Act provides the framework to analyze whether dismissal is proper.
       Section 15 requires the defendant to demonstrate that the plaintiff’s complaint is solely
       “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.” 735 ILCS 110/15 (West 2012); Sandholm, 2012 IL 111443, ¶ 56. If the
       defendant has met his burden of proof, the burden then shifts to the plaintiff to produce “clear
       and convincing evidence that the acts of the [defendant] are not immunized from, or are not
       in furtherance of acts immunized from, liability” under the Act. 735 ILCS 110/20(c) (West
       2012); Sandholm, 2012 IL 111443, ¶ 56.
¶ 14       In Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005, ¶¶ 23-24, the court
       held that the timing of the lawsuit in relation to the protected activity and whether the amount
       of damages requested are reasonably related to the facts alleged in the complaint are helpful
       inquiries in determining whether a claim is retaliatory under the Act. The court found that
       the plaintiff’s lawsuit against a news station showed evidence of retaliatory intent where it
       was filed three days after a news segment about unethical judicial practices aired and before
       a subsequent segment aired and sought $28 million in damages. Id.
¶ 15       Nevertheless, the Ryan court found that the defendants failed to establish that the
       plaintiff’s complaint was meritless. Id. ¶¶ 29-30. The court noted that the defendants
       presented no evidence refuting any essential elements of the plaintiff’s claims that he had not
       acted unethically; therefore, the court found that the lawsuit was not a SLAPP and the
       defendants were not protected under the Act. Id.; see Garrido v. Arena, 2013 IL App (1st)
       120466, ¶ 19 (finding a claim is meritless if the moving party disproves some essential
       element of the nonmovant’s claim).

                                                 -5-
¶ 16       In this case, we agree with the plaintiff that Terrell did not meet his burden of proving
       that the plaintiff’s lawsuit was a SLAPP. While Terrell’s statement was made during a
       meeting of a governmental entity, he is not necessarily immunized from liability simply
       because of the governmental setting. See Sandholm, 2012 IL 111443, ¶ 51 (“We simply do
       not believe that, in enacting the anti-SLAPP statute, the legislature intended to abolish an
       individual’s right to seek redress for defamation or other intentional torts, whenever the
       tortious acts are in furtherance of the tortfeasor’s rights of petition, speech, association, or
       participation in government.”). Here, the plaintiff’s suit does not appear to be intended to
       prevent Terrell from participating in government or to interfere with his rights of petition or
       free speech, but rather to seek damages for the personal harm to her reputation from the
       alleged defamatory statement. See id. ¶ 57 (finding the plaintiff’s defamation lawsuit did not
       constitute a SLAPP because the suit did not seek to chill the defendants’ constitutional rights
       but rather sought damages for the personal harm to his reputation caused by the alleged
       defamatory statements regarding his alleged child abuse and poor job performance);
       Hammons, 2012 IL App (1st) 102644, ¶ 16 (finding statements about the plaintiffs’ “lousy”
       permanent makeup practices were not protected by the Act because the statements were not
       made in furtherance of the defendant’s constitutional rights).
¶ 17       Further, Terrell has failed to demonstrate that the plaintiff’s suit is meritless or
       retaliatory. Regarding the merit of the plaintiff’s claim, Terrell does not refute any essential
       element of her defamation claims. The plaintiff alleged that there was no stalking complaint
       lodged against her and that stalking is a crime. In fact, the student’s alleged “stalking”
       complaint was neither a “stalking” allegation nor a complaint, but rather a student’s
       statement to police that the plaintiff had “chased” her down while posting flyers about the
       plaintiff’s student group. See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88,
       (1996) (statements that impute the commission of a crime or the want of integrity in the
       discharge of one’s duties of employment constitute defamation per se). Regarding retaliation,
       the plaintiff filed the federal suit in March 2008, nearly one year after the March 2007
       Faculty Council meeting and long after the student protests had been resolved. She also
       sought $500,000 in compensatory damages, and not millions as in the classic SLAPP
       scenario. Under these facts, we cannot necessarily infer that the plaintiff’s suit was meritless,
       retaliatory, or intended to prevent Terrell from exercising his constitutional rights.
       Accordingly, we find that Terrell did not meet his burden of establishing that the plaintiff’s
       suit constituted a SLAPP suit; and we, therefore, reverse the judgment of the circuit court
       which dismissed counts I and II of the plaintiff’s complaint pursuant to the Act.
¶ 18       Because we reverse the judgment of the circuit court, we do not reach Terrell’s cross-
       appeal regarding the amount of attorney fees and costs that the court awarded him under
       section 25 of the Act.
¶ 19       For the foregoing reasons, we reverse the circuit court order granting Terrell’s motion to
       dismiss counts I and II of the plaintiff’s complaint under the Act and remand the cause for
       further proceedings.

¶ 20       Reversed and remanded.


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