THIRD DIVISION July 8, 2015

JOSEPH MICHAEL O'CALLAGHAN and ) Appeal from the SUZANNE T. O'CALLAGHAN, ) Circuit Court of ) Cook County. Plaintiffs-Appellants, ) ) v. ) No. 13 L 011014 ) 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, ) The Honorable ) Sheryl A. Pethers, Defendants-Appellees. ) Judge Presiding.

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) No. 1-14-2152

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

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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

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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

4 No. 1-14-2152

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:

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"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.

Moreover, their

arguments omit necessary citations to the record.

This court is not a depository into which

litigants may dump the burden of research (Hall v. Naper Gold Hospitality LLC, 2012 IL App

6 No. 1-14-2152

(2d) 111151, ¶¶ 7, 13), and the failure to comply with court rules warrants disregarding an

appellant's contentions (Diaz v. Legat Architects, Inc.,

(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,

. 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.,

.

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,

. 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.

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,

(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.

; R&B Kapital Development, LLC, v. North Shore Community Bank &

Trust Co.,

(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

7 No. 1-14-2152

affirmative defense in a section 2-615 motion if the affirmative defense is apparent from the face

of the complaint. Fillmore v. Walker,

.

¶ 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,

(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.,

. In addition, although section 2-619, like section 2-615,

permits attack based on defects on the complaint's face, those defects should be coupled with

grounds not appearing of record. Illinois Graphics Co.,

. 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.

Accordingly, courts allow some overlap between motions filed

under section 2-615 and section 2-619. Id.; Murcia v. Textron, Inc.,

(2003). A confluence between the two sections exists where an affirmative matter is apparent on

the face of the complaint. Illinois Graphics Co.,

; Storm & Associates, Ltd. v.

Cuculich,

(1998).

¶ 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.,

(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,

(2005) (where the

defendant did not challenge the complaint's failure to plead an element of the claims but raised a

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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.,

; Curtis v. Lofy,

(2009); Goran v. Glieberman,

(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.,

(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.,

(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,

(2002);

Universal Underwriters Group v. Pierson,

(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.

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¶ 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,

(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.,

(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.

¶ 23 C. Absolute Attorney Litigation Privilege

¶ 24 Illinois' 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

10 No. 1-14-2152

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,

(2000). This privilege also furthers an attorney's need to fully and fearlessly

communicate with his client (Popp v. O'Neil,

(2000)) and the free

flow of truthful information to the courts (Edelman, Combs & Latturner v. Hinshaw &

Culbertson,

(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,

(2006).

The privilege is limited, however, to instances where the administration of justice and public

service require immunity. Kurczaba,

.

¶ 25 In light of these policies, an attorney's motives are irrelevant (Popp,

), and she is not required to investigate her client's claim for legal sufficiency before taking

action (Atkinson,

). Furthermore, no liability will attach even at the

expense of uncompensated harm to the plaintiff. Compare Golden v. Mullen,

(1997), with Stein v. Krislov,

(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,

), and must be in furtherance of representation (Kurczaba,

). This pertinency requirement is not strictly applied (Popp,

) and we resolve all doubts in favor of pertinency (Atkinson,

).

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¶ 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,

), and after litigation (Stein,

). 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,

. 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,

(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,

. 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.

¶ 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.,

(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

12 No. 1-14-2152

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,

. 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,

(1987). Instead, parties should attempt to redress injuries

from misconduct in judicial proceedings in the same litigation.

Were it otherwise, litigation

would never end.

Moreover, it is improper for a trial court to review prior litigation that

occurred before a different judge.

¶ 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

13 No. 1-14-2152

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,

(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,

. In addition, even assuming

that Satherlie and Kopka were motivated by economic benefit, that motivation is not 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.,

(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,

("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,

(where communications were made to

14 No. 1-14-2152

individuals to the litigation and the communications did not serve the interest of the defendant'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,

(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.

15