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08/22/97 BRUCE P. GOLDEN v. TERENCE C. MULLEN AND

August 22, 1997

BRUCE P. GOLDEN, PLAINTIFF-APPELLANT,
v.
TERENCE C. MULLEN AND MULLEN & WINTHERS, P.C., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 96 L 01635. The Honorable Joseph Casciato, Judge, Presiding.

As Corrected September 10, 1997.

The Honorable Justice Hourihane delivered the opinion of the court. Hoffman and South, J.j., concur.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

Plaintiff, Bruce P. Golden (Golden), appeals the dismissal of his defamation action against Terence C. Mullen (Mullen) and the law firm of Mullen & Winthers, P.C. (firm). The principle issue on appeal is whether the trial court erred by extending the absolute privilege that attaches to defamatory statements of attorneys made in the course of judicial proceedings to post-litigation statements made to the client. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Golden and Mullen are Illinois attorneys. The amended complaint alleges that in 1994 and 1995 Mullen and his firm represented Charles W. Sullivan (Sullivan) in litigation against William E. Switzer (Switzer) in Cook and DuPage counties, such representation allegedly "ending" on June 23, 1995, and October 13, 1995, respectively. Switzer was represented by Golden.

On November 14, 1995, Mullen Wrote a letter to Sullivan and his wife on firm stationery which states in relevant part:

"Thank you for your letter of October 20, 1995. Although I am in agreement with your suggestion to just walk away from a bad situation there are three things I want you to know:

1) The attorney representing Mr. Switzer is a raving lunatic. I have been told by every attorney who has worked on this file that they have never met such a deranged lawyer. One even suggested that this lawyer was legally incompetent. When I said I was in over my head on this case, that's what I was referring to. A law firm our size is just not equipped to deal with constant legal abuse inflicted by a rougue [sic] attorney." (Emphasis added.)

On January 17, 1996, Mullen wrote another letter, addressed only to Sullivan, which states:

"The last time you wrote to me, you expressed your frustrations over this case. You asked me to reduce your bill of around $1,900.00 to zero balance. I sympathised [sic] with your frustrations, and I still do. However, it is wrong to now threaten me with a malpractice lawsuit unless I pay to you the $5,900.00 you paid to our law firm during this case as a refund. Not only did we not commit any malpractice, we paid $5,000.00 out of our own pockets to defend us in the Federal lawsuit that Switzer's crazy lawyer filed. I'm sorry Chuck, I really am, but I'm not responsible for the destruction of your business or the other things stated in your letter." (Emphasis added.)

Plaintiff alleges that the statements were false and that Mullen knew they were false or had no reasonable basis for believing the statements to be true or that the statements were made in reckless disregard of whether they were true or false. Golden sought special and/or presumed damages under theories of defamation per se (count I) and defamation per quod (count II), and punitive damages for willful, wanton and reckless conduct (count III).

Mullen filed a combined motion to dismiss under sections 2-615 (a) and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(a), 2-619(a)(9) (West 1996). In his 2-615 motion, Mullen asserted that while the statements in his letters may have been disparaging, they do not constitute actionable libel; that the statements are non-actionable expressions of opinion; and that even if defamatory, the statements do not fall within any of the recognized categories of defamation per se.

In his 2-619 motion, Mullen contended that the letters were written in connection with recently concluded, pending or contemplated judicial proceedings and thus were absolutely privileged; that, alternatively, the letters were conditionally privileged; and that Golden had not pleaded and could not prove special damages. Mullen's 2-619 motion was supported by his own affidavit detailing the history of his representation of Sullivan in the DuPage County litigation, Golden's extensive motion practice in the course of the litigation, Mullen's knowledge ...


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