                                                                            FIFTH DIVISION
                                                                            September 30, 2010




Nos. 1-08-2438 and 1-09-2180, cons.


SHORELINE TOWERS CONDOMINIUM                         )
ASSOCIATION, an Illinois                             )
Not-For-Profit Corporation,                          )
                                                     )       Appeal from the
       Plaintiff-Appellant,                          )       Circuit Court of
                                                     )       Cook County.
v.                                                   )
                                                     )
DEBRA GASSMAN, an Individual,                        )       07CH06273
                                                     )
       Defendant-Appellee,                           )
                                                     )       The Honorable
(Edward Frischholz, as President of                  )       Kathleen M. Pantle,
the Board of Directors of the                        )       Judge Presiding.
Shoreline Towers Condominium Association,            )
                                                     )
       Plaintiff).                                   )




       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 section 2-619 of the Code of Civil Procedure (Code) (735

ILCS 5/2-619 (West 2008)), and assessing attorney fees against it. We affirm.

                                        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,
Nos. 1-08-2438 & 1-09-2180 (cons.)

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

religious discrimination. She filed a religious discrimination claim with the Illinois Department

of Human Rights, which was dismissed for lack of substantial evidence. She also filed a

religious discrimination complaint with the Office of the Attorney General of the State of Illinois,

which was subsequently closed pursuant to Shoreline’s voluntary revision of its rules in

September 2005.3 The revised rule states:


       1
           See Bloch v. Frischholz, 587 F.3d 771, 772 (7th Cir. 2009), for a detailed description of

the mezuzah tradition.
       2
           The rule at issue read, in pertinent part:

                  “Hallways

                          1. Mats, boots, shoes, carts or objects of any sort are

                  prohibited outside Unit doors.”
       3
           The record includes a November 2005 letter from the Civil Rights Bureau of the Office

of the Attorney General stating:

                                                        2
Nos. 1-08-2438 & 1-09-2180 (cons.)

                        “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;


             “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.”

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Nos. 1-08-2438 & 1-09-2180 (cons.)

                       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. Chicago Municipal Code §§ 5-8-020, 5-8-030 (2008). In April 2006, the

State of Illinois enacted a law preventing condominium boards from interfering with the religious

practices of building tenants, including interfering with “the attachment of religiously mandated

objects to the front-door area of a condominium unit.” 765 ILCS 605/18.4(h) (West 2008).

       In March 2007, Shoreline filed a complaint against Gassman, titled: “Verified Complaint

for Injunctive Relief, Defamation, Civil Conspiracy, Malicious Prosecution, Intentional Infliction


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Nos. 1-08-2438 & 1-09-2180 (cons.)

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 to conspire with members of the Cook County sheriff’s department

and the Chicago police department (CPD) to further her purpose. Shoreline alleged that

Gassman’s behavior interfered with its day-to-day operations to such an extent that it was unable

to allocate sufficient resources for the proper administration of the property.

       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


       4
           Frischholz was a plaintiff in the case below, but is not a party to this appeal.

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Nos. 1-08-2438 & 1-09-2180 (cons.)

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


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Nos. 1-08-2438 & 1-09-2180 (cons.)

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 of emotional

distress on the part of Frischholz (count VI); requested an injunction against Gassman from

inflicting emotional distress upon Frischholz (count VII); alleged civil conspiracy where

Gassman used her position as a public defender to conspire with members of the sheriff’s

department and the CPD (count VIII); alleged malicious prosecution for filing lawsuits after the

Illinois Department of Human rights litigation was dismissed and where Shoreline prevailed on

summary judgment in federal court regarding Gassman’s religious discrimination claim and at

trial regarding Gassman’s retaliation claim (count IX); and alleged that Gassman used her

position as a public defender in violation of section 1983 of the Civil Rights Act of 1964 (42

U.S.C. §1983 (2006)) (count X).

       Gassman then filed a motion to dismiss (motion) pursuant to section 2-619, which is the

subject of this appeal. In it, Gassman argued that the entire complaint should be dismissed

pursuant to the Citizen Participation Act (the Act), also known as the Illinois Anti-Strategic

Lawsuits Against Public Participation Act (Anti-SLAPP), the public policy of which states 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” and “[i]t 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,

and otherwise participate in government.” 735 ILCS 110/5 (West 2008). Gassman contended

that she brought her original claims against Shoreline because she believed she was the victim of


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Nos. 1-08-2438 & 1-09-2180 (cons.)

religious discrimination by Shoreline when it repeatedly removed her mezuzah from the doorpost

of her condominium. Gassman argued that the amendment to the City of Chicago Fair Housing

Ordinance as well as the enactment of the aforementioned Illinois law (765 ILCS 605/18.4(h)

(West 2008)) that prevents condominium boards from interfering with the religious practices of

building tenants was “a result, in part,” of her actions in challenging Shoreline’s conduct.

According to Gassman, then:

                       “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].


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Nos. 1-08-2438 & 1-09-2180 (cons.)

                  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, the counts

pertaining to Frischholz. Counts IV and V alleged defamation with regards to Frischholz. The

court determined that, considering the allegations in the complaint in the light most favorable to

the nonmovant, Shoreline had sufficiently stated a claim for defamation to withstand a motion to

dismiss. It noted that “Anti-SLAPP legislation is not intended to protect those who actually

commit torts” but to “protect those who are in danger of being sued solely because of their valid

attempts to petition the government.”

        Counts VI and VII alleged intentional infliction of emotional distress with regard to

Frischholz. Specifically, the court determined that the facts were plead 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


        5
            The Anti-Defamation League has filed an amicus brief in support of Gassman.

                                                   9
Nos. 1-08-2438 & 1-09-2180 (cons.)

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 “ ‘[a]ffirmative 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. 735

ILCS 110/1 (West 2008) (hereinafter the Act). “The Act aims to protect defendants from

‘Strategic Lawsuits Against Public Participation’ (SLAPPs), which harass citizens for exercising


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Nos. 1-08-2438 & 1-09-2180 (cons.)

constitutional rights, such as the right to petition the government.” Mund v. Brown, 393 Ill. App.

3d 994, 995 (2009). The public policy behind the Act, as noted above, states 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.” 735 ILCS

110/1 (West 2008). The General Assembly was expansive when describing the goals and scope

of the Act:

                       “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


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Nos. 1-08-2438 & 1-09-2180 (cons.)

             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


                                                12
Nos. 1-08-2438 & 1-09-2180 (cons.)

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 2008). It

protects citizens in the exercise of their constitutional rights of participation, directing that:

“[a]cts in furtherance of the constitutional rights to petition, speech, association, and participation

in government are immune from liability, regardless of intent or purpose, except when not

genuinely aimed at procuring favorable government action, result, or outcome.” 735 ILCS

110/15 (West 2008). The Act provides that the court shall grant a motion to dismiss “unless the

court finds that the responding party has produced clear and convincing evidence that the acts of

the moving party are not immunized from, or are not in furtherance of acts immunized from,

liability by this Act.” 735 ILCS 110/20(c) (West 2008). The Act “shall be construed liberally to

effectuate its purposes and intent fully.” 735 ILCS 110/30 (West 2008).

        There is no distinct formula for determining whether a particular lawsuit is a SLAPP suit.

See Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on its Operation

and Scope, 33 Loy. L.A. L. Rev. 801, 804-05 (April 2000) (“The most frequent type of SLAPP

suit is for defamation, but the causes of action are myriad. They include business torts (such as

interference with contractual rights or with prospective economic advantage), anti-trust,

intentional infliction of emotional distress, invasion of privacy, civil rights violations,

constitutional rights violations, conspiracy, nuisance, judicial process abuse, and malicious

prosecution”).

        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


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Nos. 1-08-2438 & 1-09-2180 (cons.)

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 regards 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 the 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


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Nos. 1-08-2438 & 1-09-2180 (cons.)

brought “in response to any act or acts” in furtherance of constitutional rights. 735 ILCS 110/15

(West 2008) (“[the] Act applies to any motion to dispose of a claim in a judicial proceeding on

the grounds that the claim is based on, relates to, or is in response to any act or acts of the

moving party in furtherance of the moving party’s rights of petition, speech, association, or to

otherwise participate in government”).



                                            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.” 735

ILCS 110/30(b) (West 2008). Although Illinois courts have not discussed retroactivity regarding

the Act, we have held that “statutes and amendatory acts are presumed to operate prospectively

unless the statutory language is so clear as to admit of no other construction. An exception to

this general rule is that statutes or amendments which relate only to remedies or forms of

procedure are given retrospective application.” People v. Theo, 133 Ill. App. 2d 684, 687 (1971).

Because there is no Illinois case law regarding the retroactive application of the Act, we draw

guidance from cases decided by the courts of sister states. California courts addressing this issue

have found that the California anti-SLAPP statute is procedural and, as such, may be applied

retroactively. See Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 280, 139 P. 3d 30,


                                                  15
Nos. 1-08-2438 & 1-09-2180 (cons.)

43, 46 Cal. Rptr. 3d 638, 653 (2006), quoting Brenton v. Metabolife International, Inc., 116 Cal.

App. 4th 679, 689, 10 Cal. Rptr. 3d 702, 709 (2004) (“The anti-SLAPP statute is a procedural

statute, the purpose of which is to screen out meritless claims. [Citation.] It is well settled that

‘applying changed procedural statutes to the conduct of existing litigation, even though the

litigation involves an underlying dispute that arose from conduct occurring before the effective

date of the new statute, involves no improper retrospective application because the statute

address conduct in the future’ ”); Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal.

App. 4th 1050, 1065, 28 Cal. Rptr. 3d 933, 942 (2005) (“ ‘The new [anti-SLAPP] statute applies

to lawsuits brought before its effective date because it constituted a procedural change regulating

the conduct of ongoing litigation and thus triggered no retroactivity concerns’ ”), quoting Mann

v. Quality Old Time Service, Inc., 120 Cal. App. 4th 90, 112, 15 Cal. Rptr. 3d 215, 228 (2004).

        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” (735 ILCS 110/30(b)

(West 2008))), we find that the Act is procedural in nature and applies to the instant SLAPP

lawsuit. The trial court did not err in its dismissal of counts I, II, III, VIII, IX, and X.

        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,


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Nos. 1-08-2438 & 1-09-2180 (cons.)

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 or without prejudice;

an order including Rule 304(a) language; or an order “identifying the question of law” as to those

counts; and “such other and further relief as this Honorable Court deems just and proper.”

The motion for clarification did not request leave to amend the complaint, nor was it

accompanied by an amended complaint.



                                           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 first, entered December 19, 2008, determined that an award of

attorney fees was proper and set a date for further proceedings to determine the amounts to be

awarded. Our review of this order is de novo. People v. Blanks, 361 Ill. App. 3d 400, 407

(2005) (matters of statutory interpretation are reviewed de novo). Our review of the second order

at issue, the final fee order which determined the dollar amount of the award, is abuse of


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discretion. See Harris Trust & Savings Bank v. American National Bank &Trust Co. of Chicago,

230 Ill. App. 3d 591, 595-96 (1992) (“Once the trial court makes a determination as to the

reasonableness of attorney fees and related costs, that determination will not be disturbed absent

an abuse of discretion”). Accordingly, we will reverse the amount of attorney fees only if no

reasonable person would make the same decision as the trial court. DeLapaz v. Selectbuild

Construction, Inc., 394 Ill. App. 3d 969, 972 (2009).

       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.” 735 ILCS 110/25 (West 2008). The

court issued three opinions with respect to fees and, ultimately, a final order awarding fees. In

December 2008, the court concluded that Gassman’s attorneys, Seyfarth Shaw, were entitled to

fees. In March 2009, the court entered an order approving Seyfarth Shaw’s billing time entries as

stated in its fee petitions with several exceptions. In June 2009, the court entered its order fixing

the rates of plaintiffs’ attorneys as the reasonable rates to be used in calculating Seyfarth Shaw’s

fees. Thereafter, the parties applied the rates approved by the court to the time approved by the

court, and the court awarded Gassman fees of $36,840.

       “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


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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 its liability, chose to

respond by letter on October 23, 2007, that the Act did not apply, and it threatened sanctions:

              “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.”


                                                 19
Nos. 1-08-2438 & 1-09-2180 (cons.)

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


                                                  20
Nos. 1-08-2438 & 1-09-2180 (cons.)

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 Fees and Costs. Seyfarth Shaw has also provided a sufficient

explanation for the involvement of multiple attorneys on this case. The law firm has also

provided for the Court’s review a copy of the detailed time sheets with highlighted entries.”

       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.”


                                                  21
Nos. 1-08-2438 & 1-09-2180 (cons.)

       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, 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


                                                 22
Nos. 1-08-2438 & 1-09-2180 (cons.)

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.” 735 ILCS 110/25 (West 2008). The Act’s stated

purpose is to deter SLAPP suits, and it should be construed liberally in this pursuit. See 735

ILCS 110/30 (West 2008). Allowing litigants to undercut the deterrent purpose following the

grant of a motion to dismiss by filing motions for which they would have no risk of being

assessed fees would frustrate this purpose. See McNiff v. Mazda Motor of America, Inc., 384 Ill.

App. 3d 401, 406-08 (2008) (awarding legal fees incurred in connection with motion for

reconsideration, although statute only provided for costs “incurred in the prosecution of the

action”). We find no error here, where we believe the legislature intended the words “in

connection with the motion” to include proceedings which relate to, and are a consequence of,

the grant of the motion.



                                         CONCLUSION

       For the foregoing reasons, the decision of the circuit court of Cook County is affirmed.

       Affirmed.



       TOOMIN and HOWSE, JJ., concur.




                                                23
             Nos. 1-08-2438 & 1-09-2180 (cons.)

__________________________________________________________________________________________________________________________
                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form                     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, an Illinois Not-For-Profit Corporation,

                                                    Plaintiff).
_____________________________________________________________________________________________
                                            No. 1-08-2438 & 1-09-2180
 Docket No.
                                          Appellate Court of Illinois
COURT                                     First District, FIFTH Division
 Opinion
  Filed                                      September 30, 2010
                                         (Give month, day and year)
 __________________________________________________________________________________________
                 PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT:
 JUSTICES                                TOOMIN and HOWSE, JJ.,   concur.

                                     Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                               Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding.                                      The Hon. Kathleen M. Pantle , Judge presiding.
__________________________________________________________________________________________________________________________
                         Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word or
FOR APPELLANTS                                                       NONE if not represented.
John Doe, of Chicago

For APPELLEES, :              APPELLANT: DAVID C. HARTWELL, JOONHO YU, PENLAND & HARTWELL, LLC, Chicago, IL
 _________________________________                            __
Smith and Smith of
Chicago,                      APPELLEE: WILLIAM I. GOLDBERG, M. RYAN PINKSTON, ALEKA L. JONES, SEYFARTH SHAW, LLP,
                   Chicago, IL

               __________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.




                                                                  24
