{ "id": 186559, "name": "DIANA THOMPSON, Plaintiff-Appellant, v. BRUCE FRANK et al., Defendants-Appellees", "name_abbreviation": "Thompson v. Frank", "decision_date": "2000-05-25", "docket_number": "No. 3\u201499\u20140623", "first_page": "661", "last_page": "665", "citations": [ { "type": "official", "cite": "313 Ill. App. 3d 661" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "907 S.W.2d 639", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10015896 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/sw2d/907/0639-01" ] }, { "cite": "693 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 865", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45676 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0865-01" ] }, { "cite": "648 N.E.2d 1033", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249364 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0662-01" ] }, { "cite": "639 N.E.2d 1282", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "159 Ill. 2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781334 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/159/0469-01" ] }, { "cite": "700 N.E.2d 1064", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 157", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221479 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0157-01" ] }, { "cite": "683 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456157 ], "weight": 4, "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0123-01" ] } ], "analysis": { "cardinality": 485, "char_count": 9596, "ocr_confidence": 0.762, "pagerank": { "raw": 1.5099204709542341e-07, "percentile": 0.6672076248460818 }, "sha256": "9bfbe1c248e47bf4e0528595300c93d9d14212657cc6fe0d8b8ee8c45cefe048", "simhash": "1:0f5f34bf0bc9bb94", "word_count": 1494 }, "last_updated": "2023-07-14T18:54:53.541010+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DIANA THOMPSON, Plaintiff-Appellant, v. BRUCE FRANK et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE SLATER\ndelivered the opinion of the court:\nPlaintiff, Diana Thompson, filed a complaint against defendants, Bruce Frank and Jerry Serritella, seeking damages for libel and intentional infliction of emotional distress. On defendants\u2019 motion, the trial court dismissed the complaint on the ground that defendants were absolutely privileged to make the defamatory statements alleged by plaintiff because the statements relate to pending litigation between plaintiff and defendant Frank. On appeal, plaintiff contends that absolute privilege does not bar her actions for libel and intentional infliction of emotional distress. For the reasons that follow, we reverse and remand.\nDiana Thompson and Bruce Frank are parties to a child custody dispute. During the course of this dispute, Frank\u2019s attorney, Jerry Serritella, sent Jerry Thompson, Diana\u2019s husband, a letter. In the letter, Serritella related that Diana had engaged in a sexual relationship with Frank in the hope of persuading Frank to compromise his legal position in the custody dispute. Moreover, Serritella described Diana as \u201cdevious\u201d and \u201cdishonest.\u201d Serritella noted that Jerry (Thompson) is \u201cin a unique position to be aware of the numerous things [Diana] has done with the purpose [of depriving] Mr. Frank of access to his son.\u201d Serritella urged Jerry to become a witness on Frank\u2019s behalf.\nSubsequently, Diana filed a four-count complaint against Frank and Serritella. In the complaint, Diana alleges that Serritella\u2019s letter to her husband is defamatory. In counts I and III, Diana alleges that Frank and Serritella libeled her by sending the letter to her husband. In counts II and IV) Diana alleges that Frank and Serritella intentionally caused her to suffer severe emotional distress.\nDefendants filed a motion to dismiss pursuant to subsection 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 1998)). In the motion, defendants contend that they cannot be held liable for making the allegedly defamatory statements because the statements were made in a communication related to an on-going judicial proceeding.\nDefendants also filed the affidavit of Jerry Serritella. In the affidavit, Serritella avers that the honesty, character, and integrity of the parties had become an issue relevant to the custody dispute. Serritella further states that he sent the allegedly defamatory letter to Jerry Thompson in an effort to procure him as a witness against his wife. According to Serritella, procuring Jerry\u2019s testimony would help Frank to show that Diana had \u201ccontinually interfered and attempted to thwart\u201d Frank\u2019s visitation rights. Moreover, Serritella states that he sent the letter in the hope that it would cause Jerry to divorce Diana and thereby diminish Diana\u2019s financial ability to care for her son.\nThe trial court granted defendants\u2019 motion to dismiss with respect to all four counts of plaintiffs complaint. This appeal followed.\nOn appeal, plaintiff contends that the trial court erred by dismissing her complaint. In particular, plaintiff maintains that the allegedly defamatory statements made by defendants are not subject to an absolute privilege.\nSubsection 2 \u2014 619(a)(9) of the Code of Civil Procedure provides for dismissal of a complaint if \u201cthe claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of[,] or defeating!),] the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 1998). Thus, under this subsection, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. Stratman v. Brent, 291 Ill. App. 3d 123, 683 N.E.2d 951 (1997). In a defamation action, the issue of absolute privilege is treated as an affirmative defense that may be raised and determined in a section 2 \u2014 619 motion. Lykowski v. Bergman, 299 Ill. App. 3d 157, 700 N.E.2d 1064 (1998).\nIn ruling on a section 2 \u2014 619 motion, the trial court assumes the veracity of all well-pleaded facts of the complaint. Stratman, 291 Ill. App. 3d 123, 683 N.E.2d 951. Moreover, the trial court may consider all the pleadings, depositions, and affidavits of record. Stratman, 291 Ill. App. 3d 123, 683 N.E.2d 951. An order granting a section 2 \u2014 619 motion is subject to de novo review. Stratman, 291 Ill. App. 3d 123, 683 N.E.2d 951. In particular, the reviewing court determines whether there exists a genuine issue of material fact that should have precluded dismissal and, in the absence of such an issue of fact, whether the moving party is entitled to judgment as a matter of law. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994).\nAn attorney 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 a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. Restatement (Second) of Torts \u00a7 586 (1977). A private litigant enjoys the same privilege concerning a proceeding to which he is a party. Restatement (Second) of Torts \u00a7 587 (1977). An absolute privilege provides a complete bar to a claim for defamation, regardless of the defendant\u2019s motive or the unreasonableness of his conduct. Lykowski, 299 Ill. App. 3d 157, 700 N.E.2d 1064. In light of the complete immunity provided by an absolute privilege, the classification of absolutely privileged communications is necessarily narrow. Barakat v. Matz, 271 Ill. App. 3d 662, 648 N.E.2d 1033 (1995). Whether an allegedly defamatory statement is subject to an absolute privilege is a question of law. Barakat, 271 Ill. App. 3d 662, 648 N.E.2d 1033.\nIn the case at bar, this court must decide whether a defamatory letter sent by one party\u2019s attorney to the spouse of the opposing party to a pending judicial proceeding falls within the class of absolutely privileged communications. We conclude that it does not.\nIn Illinois, the absolute privilege concerning communications related to a judicial proceeding has been extended to out-of-court communications between opposing counsel, between attorney and client related to pending litigation, and between attorneys representing different parties suing the same entities. Golden v. Mullen, 295 Ill. App. 3d 865, 693 N.E.2d 385 (1997). However, Illinois courts have not extended the privilege to cover an attorney\u2019s out-of-court communications to other persons. See, e.g., Golden, 295 Ill. App. 3d 865, 693 N.E.2d 385 (declining to extend privilege to cover out-of-court communications between attorney and former client\u2019s spouse). Defendants cite no authority for extending the privilege to out-of-court communications between an attorney and an opposing party\u2019s spouse. Moreover, in view of the narrow application of the privilege, we find no compelling reason to extend the privilege to the circumstances of the case sub judice. Therefore, we hold that an absolute privilege does not bar a libel action based on an allegedly defamatory communication between one party\u2019s attorney and the spouse of the opposing party to pending litigation.\nPlaintiff also contends that the trial court erred by dismissing her action for intentional infliction of emotional distress based upon defendants\u2019 claim of absolute privilege. No Illinois court has addressed the question of whether the absolute privilege described in sections 586 and 587 of the Restatement (Second) of Torts (Restatement (Second) of Torts \u00a7\u00a7 586, 587 (1977)) will also bar an action for intentional infliction of emotional distress where both actions arise from the same allegedly defamatory communication. Other jurisdictions have extended the absolute privilege to intentional infliction of emotional distress under such circumstances. See, e.g., Rose v. First American Title Co., 907 S.W.2d 639 (Tex. Ct. App. 1995). However, we have already determined that the absolute privilege claimed by defendants does not bar plaintiffs libel action. Accordingly, the privilege cannot extend beyond plaintiffs defamation action to bar other causes of action where the privilege does not even bar the defamation action.\nFinally, we are not persuaded that defendants were absolutely privileged to publish the defamatory letter in the case at bar because, as defendants claim, they were merely insisting upon their legal rights in a permissible way. See Restatement (Second) of Torts \u00a7 46, Explanatory Notes, Comment g, at 76 (1965) (defendant will not be held liable \u201cwhere he has done no more than to insist upon his legal rights in a permissible way\u201d). By sending the allegedly defamatory letter, defendants were not insisting upon any legal right but simply hoping to gain advantage in pending litigation. Therefore, in the absence of any basis for absolute privilege, we must reverse the trial court\u2019s dismissal of plaintiff\u2019s action for intentional infliction of emotional distress.\nFor the foregoing reasons, the judgment of the circuit court of Bureau County is reversed and remanded for proceedings consistent with this opinion.\nReversed and remanded.\nKOEHLER and LYTTON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SLATER" } ], "attorneys": [ "R.J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, and Joel M. Koppenhoefer (argued), of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellant.", "Jerry Serritella (argued), of Peoria, for appellees." ], "corrections": "", "head_matter": "DIANA THOMPSON, Plaintiff-Appellant, v. BRUCE FRANK et al., Defendants-Appellees.\nThird District\nNo. 3\u201499\u20140623\nOpinion filed May 25, 2000.\n\u2014Rehearing denied June 23, 2000.\nR.J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, and Joel M. Koppenhoefer (argued), of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellant.\nJerry Serritella (argued), of Peoria, for appellees." }, "file_name": "0661-01", "first_page_order": 679, "last_page_order": 683 }