                          Illinois Official Reports

                                    Appellate Court



                  O’Callaghan v. Satherlie, 2015 IL App (1st) 142152



Appellate Court      JOSEPH MICHAEL O’CALLAGHAN and SUZANNE T.
Caption              O’CALLAGHAN, Plaintiffs-Appellants, v. JACQUELINE M.
                     SATHERLIE and KOPKA, PINKUS, AND DOLIN, P.C., Formerly
                     d/b/a Kopka, Pinkus, Dolin and Eads, P.C., Kopka, Pinkus, Dolin and
                     Eads, LLC, and Kopka, Pinkus, Dolin and Eads, Defendants-
                     Appellees.


District & No.       First District, Third Division
                     Docket No. 1-14-2152


Filed                July 8, 2015


Decision Under       Appeal from the Circuit Court of Cook County, No. 13-L-011014; the
Review               Hon. Sheryl A. Pethers, Judge, presiding.



Judgment             Affirmed.



Counsel on           John Pastos, of Chicago, for appellants.
Appeal
                     Joshua G. Vincent and Adam R. Vaught, both of Hinshaw &
                     Culbertson LLP, of Chicago, for appellees.



Panel                JUSTICE LAVIN delivered the judgment of the court, with opinion.
                     Justices Mason and Cobbs concurred in the judgment and opinion.
                                                OPINION

¶1        This appeal arises from the trial court’s judgment dismissing a complaint filed by plaintiffs
     Joseph Michael O’Callaghan and Suzanne T. O’Callaghan (the O’Callaghans) against
     defendants Jacqueline M. Satherlie and her law firm, Kopka, Pinkus & Dolin, P.C. (Kopka).
     The O’Callaghans essentially alleged that Satherlie and Kopka, who had represented the
     O’Callaghans’ adversaries in underlying litigation regarding toxic black mold that had
     infiltrated the O’Callaghans’ property, had committed intentional infliction of severe
     emotional distress and were otherwise strictly liable for ultrahazardous activity, specifically,
     the remediation of toxic black mold. On appeal, the O’Callaghans assert the trial court
     improperly dismissed their complaint because (1) Satherlie and Kopka moved to dismiss
     pursuant to the wrong statute; (2) they did not file an answer pleading any affirmative defenses;
     (3) they lacked valid affirmative defenses; (4) the complaint sufficiently alleged causes of
     action; and (5) the trial court denied the O’Callaghans the opportunity to respond to the
     substance of the affirmative defenses raised in the motion to dismiss. We affirm the trial
     court’s dismissal of the complaint, as the O’Callaghans’ claims are barred by the absolute
     litigation privilege, which belongs to attorneys.

¶2                                        I. BACKGROUND
¶3                                    A. The Underlying Action
¶4       In 2007, the O’Callaghans filed a 14-count amended complaint against City Centre
     Condominium Association as well as various members of the association’s board of directors
     (collectively the Association) (No. 07 L 000795). The O’Callaghans alleged, in pertinent part,
     that the Association had failed to properly remedy a ceiling leak, causing toxic black mold to
     infiltrate their condominium. The complaint’s caption named the Association’s counsel,
     Satherlie and Kopka, as defendants and asked the court to enter damages against them. In
     2008, the trial court dismissed the majority of the counts with prejudice, including the
     O’Callaghans’ requests for relief against Satherlie and Kopka.
¶5       Years later, in 2011, the O’Callaghans filed a second-amended complaint, omitting
     Satherlie and Kopka as defendants but adding several parties involved with the installation of
     heating, ventilating and air conditioning equipment in the condominium building. That
     complaint essentially alleged that improper installation led to the precipitation of moisture
     onto the O’Callaghans’ drywall drop ceiling. In addition, the O’Callaghans alleged that while
     attempting remedial measures, defendant Steamatic Chicago South West, Inc., doing business
     as Brouwer Brothers Steamatic (Steamatic), removed a containment barrier and, under the
     direction of defendant Environ International Corporation (Environ), which was in turn acting
     under the direction of Satherlie, allowed a large opening to remain unsealed for an hour and a
     half. The O’Callaghans similarly alleged that Steamatic was operating at the direction of
     Environ and Environ was operating at the direction of Satherlie when Steamatic sealed a cavity
     in the wall and ceiling while still wet and subsequently cut slits in the plastic seal, destroying
     the seal’s effectiveness. According to the O’Callaghans, these actions permitted the toxic mold
     to spread.



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¶6         On May 14, 2013, the trial court entered an agreed order dismissing the case with prejudice
       as to the Association defendants. The case against Steamatic and Environ, however, remained
       pending. It appears from the circuit court website that the rest of the case was voluntarily
       dismissed by agreement on October 22, 2013, but neither the record nor the parties’ briefs
       reveal the fate of the remaining claims.

¶7                                        B. The Present Action
¶8         Meanwhile, on October 3, 2013, the O’Callaghans filed the instant action against Satherlie
       and Kopka, alleging intentional infliction of severe emotional distress and strict liability for
       ultrahazardous activity and seeking punitive damages (No. 13 L 011014). The complaint
       alleged that in the underlying action, Satherlie failed to disclose an expert’s recommendations
       for remediating the mold in 2007, a report not discovered by the O’Callaghans until some
       unspecified time later. The complaint also alleged that in light of the report, Satherlie and
       Kopka knew that the defendants in the underlying action had no meritorious defense but
       nonetheless contrived a defense that the O’Callaghans had caused the toxic mold to form due
       to the unapproved modification of their condominium. In addition, rather than producing in
       discovery the Association’s approval of the prior condominium owners’ application to so
       modify the condominium, Satherlie concealed such information. Satherlie and Kopka, in bad
       faith, unnecessarily prolonged the underlying action based on a nonmeritorious defense, filed
       baseless motions and discovery, refused to produce discovery until ordered to do so, contested
       the O’Callaghans’ meritorious motions and concealed documents. The O’Callaghans also
       alleged that Satherlie and Kopka refused to negotiate terms for inspecting the O’Callaghans’
       condominium, did not participate in settlement conferences or mediation in good faith, and
       obtained an improper court order prohibiting the O’Callaghans from meeting with Association
       members to resolve the issues themselves. When experts hired by Satherlie and Kopka did not
       find the O’Callaghans’ actions were the source of the water leaks, Satherlie and Kopka
       attempted to have the experts amend their reports and fired them when they would not do so.
¶9         As in the underlying action, the O’Callaghans alleged that Satherlie directed the inspectors
       to open or remove containment barriers that had been erected to prevent the spread of mold,
       thereby allowing the toxic black mold to spread. The O’Callaghans were required to obtain
       court orders to have containment barriers re-erected. There was also ill will between the
       O’Callaghans and other condominium owners in the building because the underlying action
       prevented other unit owners from selling or refinancing their properties and Satherlie had told
       various owners that the O’Callaghans were prolonging litigation by failing to cooperate.
       Additionally, the unlicensed roofing consultants hired by Satherlie and Kopka made
       inadequate repairs. The O’Callaghans further alleged that Satherlie was motivated by
       economic benefit to her in the form of attorney fees and engaged in the aforementioned
       conduct without her clients’ knowledge.
¶ 10       Satherlie and Kopka then moved to dismiss the complaint, citing section 2-615 of the Code
       of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2012)). The motion argued that the
       O’Callaghans’ claims were barred by an attorney’s absolute litigation privilege, res judicata,
       and a policy against claim-splitting. In addition, the motion argued that the O’Callaghans had
       not stated a claim for intentional infliction of emotional distress or strict liability and that
       punitive damages were not available for the former cause of action. Furthermore, Satherlie and


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       Kopka noted that the trial court could take judicial notice of the underlying proceeding, but
       attached certain documents from that proceeding for the court’s convenience.
¶ 11       In response, the O’Callaghans argued that Satherlie and Kopka had not filed an answer
       containing affirmative defenses, and that the affirmative defenses were otherwise outside the
       scope of section 2-615. The O’Callaghans declined, however, to respond to the merits of the
       defenses raised. As to the absolute attorney litigation privilege, they stated:
                    “For the record, Plaintiffs will not respond to the specious nature of this argument
               since it is not properly before this court. Plaintiffs reserve the right to respond in detail
               if Defendants raise this argument in a proper motion.”
       The O’Callaghans made similar statements with respect to the other affirmative defenses. They
       also argued that their complaint properly stated causes of action but sought leave to withdraw
       their request for punitive damages for intentional infliction of emotional distress. In reply,
       Satherlie and Kopka added that the affirmative defenses were appropriately raised under
       section 2-615 because they were based on either allegations that were in the complaint or
       matters of which the court could take judicial notice. In the alternative, the court was entitled to
       reconstrue the motion under the appropriate section of the Code.
¶ 12       At a hearing on June 25, 2014, the trial court found that although there was some dispute
       regarding whether the motion was more appropriate under section 2-615 or section 2-619 of
       the Code, it did not make a difference in this instance. The court then granted the motion,
       stating as follows:
                    “I do think that it could also be considered a 2-619, but it’s the kind of 2-619 that
               wouldn’t require an affidavit. They’re still looking at the face of the complaint and it’s
               just defective. It’s so defective that I tend to think it’s close to being sanctionable.
                    The reason I’m granting the 2-615 and dismissing it with prejudice and not giving
               you a chance to amend it or replead it is I don’t see any way in this world that you can
               plead valid causes of action against your opponents in an underlying suit for things like
               intentional infliction of emotional distress. There’s no duty here. There is also a public
               policy against this kind of suit. Litigation about litigation, you know? You had your
               litigation. You either won or lost, and I’m assuming you lost, because this is [sic] your
               response to losing is bring this. So I could be wrong, that’s what the appellate court is
               for.
                    But this is one of the strangest–and I think that’s kind to put it that way, strangest
               lawsuits I’ve ever seen, okay?”
       The O’Callaghans now appeal.

¶ 13                                             II. ANALYSIS
¶ 14                                A. Illinois Supreme Court Rule 341(h)
¶ 15       As a threshold matter, we note that the O’Callaghans’ briefs suffer from several
       deficiencies. Their statement of facts omits citations to the record. See Ill. S. Ct. R. 341(h)(6)
       (eff. Feb. 6, 2013). Their arguments contain citations to case law which lack pinpoints or are
       inaccurate. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). In addition, one quotation is followed
       by a citation to a case that does not contain the quoted material whatsoever. In other instances,
       the O’Callaghans have failed to cite law supporting their legal premises. Id. Moreover, their
       arguments omit necessary citations to the record. Id. This court is not a depository into which

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       litigants may dump the burden of research (Hall v. Naper Gold Hospitality LLC, 2012 IL App
       (2d) 111151, ¶¶ 7, 13), and the failure to comply with court rules warrants disregarding an
       appellant’s contentions (Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 40 (2009)).
       Because we understand the O’Callaghans’ contentions, we will resolve the merits of this
       appeal, but the aforementioned deficiencies must not be repeated.

¶ 16                                 B. Section 2-615 v. Section 2-619
¶ 17       On appeal, the O’Callaghans assert that the trial court improperly dismissed their
       complaint, an issue that we review de novo. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47.
       Accordingly, we may affirm the judgment on any basis in the record, regardless of the trial
       court’s reasoning. Garrick v. Mesirow Financial Holdings, Inc., 2013 IL App (1st) 122228,
       ¶ 28. For that reason, we need not concern ourselves with the O’Callaghans’ numerous
       challenges to the trial court’s particular rationale.
¶ 18       We first address their contention that we must reverse the dismissal of this action because
       the motion to dismiss was improperly filed under section 2-615, rather than section 2-619. A
       motion to dismiss under section 2-615 challenges a complaint’s legal sufficiency based on
       defects apparent on the face of the complaint. Khan, 2012 IL 112219, ¶ 47. In ruling on a
       section 2-615 motion to dismiss, the court must accept all well-pleaded facts, as well as any
       reasonable inferences to be drawn therefrom, as true. Id. The court can also consider judicial
       admissions in the record and matters of which the court is entitled to take judicial notice. K.
       Miller Construction Co. v. McGinnis, 238 Ill. 2d 284, 291 (2010). As a result, a defendant may
       properly raise an affirmative defense in a section 2-615 motion if the defense is apparent from
       the face of the complaint. Id. at 292; R&B Kapital Development, LLC v. North Shore
       Community Bank & Trust Co., 358 Ill. App. 3d 912, 921 (2005). Similarly, although a
       defendant generally must plead an affirmative defense or face forfeiture, a defendant need not
       do so and instead may raise the affirmative defense in a section 2-615 motion if the affirmative
       defense is apparent from the face of the complaint. Fillmore v. Walker, 2013 IL App (4th)
       120533, ¶ 28.
¶ 19       In comparison, section 2-619 permits dismissal based on certain defects or defenses, and
       provides that the motion must be supported by affidavit where the grounds for the motion do
       not appear on the face of the complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485
       (1994). Because section 2-619(a)(9) permits dismissal where a plaintiff’s claims are “barred by
       other affirmative matter avoiding the legal effect of or defeating the claim” (emphasis added)
       (735 ILCS 5/2-619(a)(9) (West 2006)), rather than affirmative defenses, section 2-619 is not
       the exclusive means for obtaining dismissal based on an affirmative defense. See K. Miller
       Construction Co., 238 Ill. 2d at 291-92. In addition, although section 2-619, like section 2-615,
       permits attacks based on defects on the complaint’s face, those defects should be coupled with
       grounds not appearing of record. Illinois Graphics Co., 159 Ill. 2d at 485. With that said, courts
       have allowed section 2-619 motions even though the only grounds for dismissal may be a
       defect on the face of the pleadings. Id. Accordingly, courts allow some overlap between
       motions filed under section 2-615 and section 2-619. Id.; Murcia v. Textron, Inc., 342 Ill. App.
       3d 433, 437 (2003). A confluence between the two sections exists where an affirmative matter
       is apparent on the face of the complaint. Illinois Graphics Co., 159 Ill. 2d at 486; Storm &
       Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1047 (1998).


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¶ 20       We find that the case before us falls within this confluence and, thus, the motion to dismiss
       was appropriately filed under section 2-615. See also Illinois Graphics Co., 159 Ill. 2d at 487
       (finding the grounds of the motion to dismiss could properly be considered under section 2-615
       or section 2-619(a)(9)); Jordan v. Knafel, 355 Ill. App. 3d 534, 539 (2005) (where the
       defendant did not challenge the complaint’s failure to plead an element of the claims but raised
       a public policy argument based on the face of the pleadings, the motion fell within the
       confluence of section 2-615 and section 2-619 and the court reviewed the motion under the
       former statute). As stated, a complaint’s allegations as well as facts of which we may take
       judicial notice are appropriate for consideration under section 2-615. In addition, this court can
       take judicial notice of the underlying action filed by the O’Callaghans. See Cushing v.
       Greyhound Lines, Inc., 2012 IL App (1st) 100768, ¶ 5; Curtis v. Lofy, 394 Ill. App. 3d 170, 172
       (2009); Goran v. Glieberman, 276 Ill. App. 3d 590, 596 (1995). This is particularly appropriate
       given that the complaint relies on that proceeding. As a result, Satherlie’s and Kopka’s
       contention that the complaint’s allegations are improperly based on those attorneys’ roles in
       the prior proceeding do not require consideration of any matter outside the scope of section
       2-615. Cf. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 91-92 (1996) (where the
       section 2-615 motion relied on portions of an article not appearing in the complaint, and
       judicial notice was not at issue, the motion should have been filed and considered under section
       2-619). Because the absolute attorney litigation privilege appears on the face of the complaint,
       the motion was appropriately filed under section 2-615.
¶ 21       Were we to assume the motion to dismiss should have been filed under section 2-619, we
       would still find no reversible error. See Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st)
       122677, ¶ 15 (considering absolute privilege under section 2-619). A defendant’s motion to
       dismiss is not defeated merely by choosing the wrong statutory mechanism where the plaintiff
       suffered no prejudice from the improper label. Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002);
       Universal Underwriters Group v. Pierson, 337 Ill. App. 3d 893, 897-98 (2003). In this
       instance, any potential prejudice to the O’Callaghans resulted from their own heedlessness, not
       the statutory mechanism identified in the motion to dismiss.
¶ 22       Contrary to the O’Callaghans’ contention, they were given adequate notice and an
       opportunity to respond to the merits of the motion, including the defenses raised therein.
       Hastings v. State, 2015 IL App (5th) 130527, ¶ 17 (stating that due process requires adequate
       notice and an opportunity to be heard). Specifically, the bases for the motion to dismiss,
       including the absolute litigation privilege, were perfectly clear. Instead of responding to the
       merits, however, the O’Callaghans purported to “reserve the right to respond in detail if
       Defendants raise this argument in a proper motion.” The O’Callaghans never possessed such a
       right, as the fantasy practice they proposed would unnecessarily prolong litigation. Indeed,
       they have cited no legal authority indicating otherwise. They had only the right to file one
       response containing any arguments they possessed against dismissal. Furthermore, an
       argument not raised in a plaintiff’s response to a motion to dismiss is forfeited. Jespersen v.
       Minnesota Mining & Manufacturing Co., 288 Ill. App. 3d 889, 894-95 (1997). Bluntly put,
       their procedural hubris operated to their decided detriment. That said, their briefs filed on
       appeal have adequately informed this court of their arguments regarding the merits of the
       defenses raised, and these arguments fail to persuade. Accordingly, the O’Callaghans were not
       prejudiced by any error in labeling the motion to dismiss.



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¶ 23                               C. Absolute Attorney Litigation Privilege
¶ 24        Illinois’s absolute attorney litigation privilege is generally based on section 586 of the
       Restatement (Second) of Torts, which provides:
                     “An attorney at law is absolutely privileged to publish defamatory matter
                 concerning another in communications preliminary to a proposed judicial proceeding,
                 or in the institution of, or during the course and as part of, a judicial proceeding in
                 which he participates as counsel, if it has some relation to the proceeding.” Restatement
                 (Second) of Torts § 586 (1977).
       This privilege is intended to provide attorneys with “the utmost freedom in their efforts to
       secure justice for their clients.” (Internal quotation marks omitted.) Kurczaba v. Pollock, 318
       Ill. App. 3d 686, 701-02 (2000). This privilege also furthers an attorney’s need to fully and
       fearlessly communicate with his client (Popp v. O’Neil, 313 Ill. App. 3d 638, 642-34 (2000))
       and the free flow of truthful information to the courts (Edelman, Combs & Latturner v.
       Hinshaw & Culbertson, 338 Ill. App. 3d 156, 165-66 (2003)). In determining whether the
       privilege should apply, we have also considered whether a limitation on the privilege’s
       application would frustrate an attorney’s ability to settle or resolve cases without resorting to
       expensive litigation, as many disputes are best resolved out of court. Atkinson v. Affronti, 369
       Ill. App. 3d 828, 833 (2006). The privilege is limited, however, to instances where the
       administration of justice and public service require immunity. Kurczaba, 318 Ill. App. 3d at
       706.
¶ 25        In light of these policies, an attorney’s motives are irrelevant (Popp, 313 Ill. App. 3d at
       642), and she is not required to investigate her client’s claim for legal sufficiency before taking
       action (Atkinson, 369 Ill. App. 3d at 834). Furthermore, no liability will attach even at the
       expense of uncompensated harm to the plaintiff. Compare Golden v. Mullen, 295 Ill. App. 3d
       865, 870 (1997), with Stein v. Krislov, 2013 IL App (1st) 113806, ¶ 35 (the privilege is
       intended to promote zealous advocacy and does not apply where there are no safeguards
       against abuse of the privilege). With that said, communications must relate to proposed or
       pending litigation (Golden, 295 Ill. App. 3d at 870), and must be in furtherance of
       representation (Kurczaba, 318 Ill. App. 3d at 706). This pertinency requirement is not strictly
       applied (Popp, 313 Ill. App. 3d at 642) and we resolve all doubts in favor of pertinency
       (Atkinson, 369 Ill. App. 3d at 832).
¶ 26        Based on the restatement’s specific reference to defamation and communications, the
       absolute attorney privilege has historically been applied to attorneys’ communications. The
       privilege applies to communications made before, during (Edelman, Combs & Latturner, 338
       Ill. App. 3d at 165), and after litigation (Stein, 2013 IL App (1st) 113806, ¶ 33). In addition, the
       privilege applies to out-of-court communications between an attorney and his client regarding
       pending litigation as well as out-of-court communications between the litigants’ attorneys.
       Golden, 295 Ill. App. 3d at 870. Although the restatement expressly refers to defamation, other
       jurisdictions have extended the absolute attorney privilege to intentional infliction of
       emotional distress claims under certain circumstances. Thompson v. Frank, 313 Ill. App. 3d
       661, 662, 665 (2000). Recently, this court applied the absolute litigation privilege to causes of
       action other than defamation, specifically, negligent infliction of emotional distress and breach
       of contract. Johnson, 2014 IL App (1st) 122677, ¶ 17. The court agreed with case law from
       other jurisdictions finding that the privilege would be meaningless if a party could merely
       recast its cause of action to avoid the privilege’s effect. Id.

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¶ 27       Contrary to the O’Callaghans’ suggestion, we find that the absolute attorney litigation
       privilege may extend beyond communications by attorneys and defamation claims. Cf. Zdeb v.
       Baxter International, Inc., 297 Ill. App. 3d 622, 629 (1998) (after determining that the absolute
       privilege did not apply to counsel’s client, the court found, in dicta, that the privilege did not
       apply beyond causes of action expressly referred to in the restatement). Although Illinois
       generally follows the restatement, it appears that our supreme court has never expressly
       adopted this particular provision and all of its language. Thus, while section 586 speaks in
       terms of defamation, that does not prevent the appellate court from applying the privilege
       outside of that context if Illinois policy would be furthered by doing so. See Ripsch v. Goose
       Lake Ass’n, 2013 IL App (3d) 120319, ¶ 17 (observing that restatements are not binding unless
       specifically adopted by our supreme court). We agree with Johnson’s indication that policy
       would be furthered by disregarding arbitrary distinctions. In addition, it is well settled that
       “[t]here is no mechanistic formula to define what is and what is not the practice of law.”
       Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL 112040, ¶ 15. Because conduct
       may be performed in the practice of law, counsel may engage in conduct to secure justice for
       their clients. Limiting the privilege to communications, as opposed to conduct, would
       undermine the policies behind the privilege. Conversely, the pertinency requirement prevents
       an attorney from shielding unrelated misconduct from liability.
¶ 28       This determination also comports with this court’s holding that “There is no civil cause of
       action for misconduct which occurred in prior litigation.” Harris Trust & Savings Bank v.
       Phillips, 154 Ill. App. 3d 574, 585 (1987). Instead, parties should attempt to redress injuries
       from misconduct in judicial proceedings in the same litigation. Id. Were it otherwise, litigation
       would never end. Id. Moreover, it is improper for a trial court to review prior litigation that
       occurred before a different judge. Id.
¶ 29       In the underlying proceeding, Satherlie and Kopka defended their clients against the
       O’Callaghans. The O’Callaghans now contend that those attorneys made the following
       improper communications and engaged in the following improper conduct: they engaged in
       discovery violations, failed to disclose evidence, concealed evidence, contrived a bad-faith
       defense, failed to properly participate in settlement and mediation, obtained a court order
       against the O’Callaghans, attempted to alter expert opinions, ordered workers to remove
       barriers intended to contain mold, lied to the Association regarding the underlying litigation,
       and undertook insufficient means to remedy the mold. These alleged improprieties clearly
       pertained to the role of Satherlie and Kopka as attorneys in the underlying action and were
       done in furtherance of representing their clients. In addition, Satherlie’s alleged directions to
       the individuals remedying the condominium were not made to an outsider within the meaning
       of the privilege; rather, neither Satherlie nor the workers would have had reason to be in the
       O’Callaghans’ condominium but for the mold, the subject of this litigation. Cf. August v.
       Hanlon, 2012 IL App (2d) 111252, ¶¶ 36-37 (privilege did not apply where allegedly
       defamatory statements were made to a newspaper report not connected to the litigation and the
       defendant did not explain how applying the privilege would further public policy).
       Furthermore, directly observing the subject of the dispute clearly furthered the Association’s
       interest in limiting liability.
¶ 30       As stated, motives and diligence before taking the challenged actions are irrelevant for
       purposes of the litigation privilege. See Popp, 313 Ill. App. 3d at 642. In addition, even
       assuming that Satherlie and Kopka were motivated by economic benefit, that motivation is not


                                                   -8-
       mutually exclusive with serving their clients. To the extent the O’Callaghans have alleged in
       the present complaint that Satherlie and Kopka undertook the aforementioned actions without
       their clients’ knowledge, attorneys are generally deemed to be agents of their clients. See Kay
       v. Prolix Packaging, Inc., 2013 IL App (1st) 112455, ¶ 67 (observing that attorneys are agents
       of their clients for the purpose of making admissions in all matters relating to an action). In
       addition, the O’Callaghans have failed to cite any law in support of their conclusion that they
       can overcome that relationship here. See Hall, 2012 IL App (2d) 111151, ¶ 12 (“Mere
       contentions, without argument or citation to authority, do not merit consideration on appeal.”).
       Furthermore, there is no suggestion that the Association was dissatisfied with the
       representation it received. Cf. Edelman, Combs & Latturner, 338 Ill. App. 3d at 166 (where
       communications were made to individuals to the litigation and the communications did not
       serve the interest of the defense’s client, the attorney litigation privilege did not apply).
¶ 31       The underlying proceeding rebuts any suggestion that Satherlie and Kopka were not acting
       in furtherance of representing their clients. Each of the alleged acts challenged can fairly be
       said to be in furtherance of the Association’s interest, i.e., limiting damages, regardless of
       whether those acts were entirely proper. We further reject the O’Callaghans’ assertion that
       finding the privilege applies in circumstances such as this leaves litigants without recourse and
       permits attorney misconduct to go unchecked. The conduct of attorneys will be limited by the
       pertinency requirement. Moreover, where misconduct has occurred in a given proceeding, an
       injured party may generally seek recourse in that particular proceeding, unlike the method the
       O’Callaghans have pursued here. See, e.g., Ill. S. Ct. R. 219(c) (eff. July 1, 2002) (sanctions
       may be imposed against a party’s attorney, including reasonable expenses incurred due to
       misconduct).

¶ 32                                       III. CONCLUSION
¶ 33       Here, the trial court properly dismissed the O’Callaghans’ complaint as the absolute
       attorney litigation privilege barred their claims. In addition, because it appears there was no
       manner in which the O’Callaghans could have amended their complaint to survive dismissal,
       we cannot say the trial court abused its discretion by denying them leave to amend their
       complaint. See In re Marriage of Lyman, 2015 IL App (1st) 132832, ¶ 51 (we review the trial
       court’s denial of leave to amend for an abuse of discretion). We affirm the trial court’s
       judgment.

¶ 34      Affirmed.




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