O'Callaghan v. Satherlie

36 N.E.3d 999

Joseph Michael O'CALLAGHAN and Suzanne T. O'Callaghan, Plaintiffs–Appellants

v.Jacqueline M. SATHERLIE and Kopka, Pinkus, and Dolin, P.C., formerly d/b/a Kopka, Pinkus, Dolin & Eads, P.C., Kopka, Pinkus, Dolin & Eads, LLC, and Kopka, Pinkus, Dolin & Eads, Defendants–Appellees.

No. 1–14–2152.

Appellate Court of Illinois, First District, Third Division.

July 8, 2015.

John Pastos, Chicago, for appellants.

Joshua G. Vincent and Adam R. Vaught, both of Hinshaw & Culbertson LLP, Chicago, for appellees.

OPINION

Justice LAVIN delivered the judgment of the court, with 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.

¶ 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 resolves 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 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

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