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Maryann Mijajlovic Kurtz v. Darrell Hubbard

May 17, 2012

MARYANN MIJAJLOVIC KURTZ,
PLAINTIFF-APPELLANT,
v.
DARRELL HUBBARD, ANDREA
RIEGSECKER, AND SUDLER & COMPANY, AN ILLINOIS CORPORATION,
DEFENDANTS-APPELLEES (630 NORTH STATE PARKWAY CONDOMINIUM ) ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT ) CORPORATION, MICHAEL SCHWARTZ, JAMES FIELDS, ) STEVEN P. LEVY, AND REGINA GUBIC, DEFENDANTS).



Appeal from the Circuit Court of Cook County No. 09 L 015823 Honorable Drella Savage, Judge Presiding.

The opinion of the court was delivered by: Justice Sterba

JUSTICE STERBA delivered the judgment of the court, with opinion.

Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff-appellant Maryann Mijajlovic Kurtz filed a complaint against 630 North State Parkway Condominium Association, Michael Schwartz, Darrell Hubbard, Andrea Riegsecker, James Fields, Sudler & Company, Steven P. Levy, and Regina Gubic, alleging false light in filing a suit for possession of her condominium unit, malicious prosecution, false light relating to wrongfully recording a lien against title to her home, slander of title, breach of fiduciary duty (against the individual defendants only), and conspiracy to damage and defame. Defendants-appellees Hubbard, Riegsecker, and Sudler & Company (defendants)*fn1 filed a motion to dismiss in the circuit court, which was granted on the basis that defendants' statements in the lawsuit and the lien were absolutely privileged. On appeal, plaintiff contests only the dismissal of counts III and IV, arguing that the content of the lien was not absolutely privileged. For the following reasons, we reverse the order of the circuit court dismissing counts III and IV and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 On December 29, 2008, the 630 North State Parkway Condominium Association (the Association) brought an action against plaintiff for possession of her condominium unit and judgment for assessments. The lawsuit specifically alleged plaintiff owed the Association $15,593.49, an amount that included unpaid assessments, late charges, and attorneys fees. Two weeks later, on January 15, 2009, the Association recorded a lien against plaintiff on her property located at 630 North State Parkway No. 2701, Chicago, Illinois, as well as "Parking P-108 & P-109." The lien stated, in relevant part:

"[S]aid property is subject to a Declaration of Condominium recorded in the office of the Recorder of Deeds of Cook County, Illinois. Said Declaration provides for the creation of a lien for the annual assessment or charges of the 630 N. State Parkway Condominium Association and the special assessment for capital improvements, together with interest, costs and reasonable attorney's fees necessary for said collection. That as of the date hereof, the assessment due, unpaid and owing to the claimant on account, after allowing all credits with interest, costs and attorneys fees, the claimant claims a lien on said land in the sum of $15,593.49, which sum will increase with the levy of future assessments, costs and fees of collection, all of which must be satisfied prior to any release of this lien."

In March 2009, the Association modified its payment request and sought only $4,365.52 from plaintiff, which she paid in full. Upon receiving this payment, the Association voluntarily dismissed its suit. The Association also provided plaintiff with a release of the lien, which stated that the lien in the amount of $15,593 "has been fully and completely satisfied." Plaintiff declined to sign the release on the grounds that it implied she did in fact owe the Association the amount stated, which she denies. To the best of her knowledge, the lien remains pending.

¶ 4 On December 28, 2009, plaintiff filed a six count complaint against defendants, among others. The only counts at issue in this appeal are counts III and IV, alleging false light and slander of title in connection with the recording of the lien. Specifically, count III alleged defendants willfully or with gross negligence placed plaintiff in a false light before the community by recording a lien the contents of which they knew to be false. Similarly, count IV alleged defendants knowingly retained a law firm to prepare and record a false lien that they knew would become public and impair the marketability and value of plaintiff's unit.

¶ 5 Defendants filed a motion to dismiss plaintiffs' complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619.1 (West 2010). At oral argument on defendants' motion, plaintiff agreed to dismiss count I, which alleged false light in connection with the filing of the lawsuit. The circuit court granted defendants' motion to dismiss the remaining counts in a written order dated January 24, 2011. Specifically, the court explained that in order to file suit for possession, defendants "were required to file and record the lien." As such, the court concluded that because the allegations in the suit were absolutely privileged as statements made in the course of judicial proceedings, so too were the nearly identical statements made in the lien.

¶ 6 Plaintiff timely appeals the circuit court's dismissal of counts III and IV.

¶ 7 ANALYSIS

ΒΆ 8 A motion to dismiss under section 2-619 of the Illinois Code of Civil Procedure admits the legal sufficiency of the complaint but asserts an affirmative matter outside the pleading that defeats the claim. Goldberg v. Brooks, 409 Ill. App. 3d 106, 110 (2011); see also 735 ILCS 5/2-619.1 (West 2010). An affirmative defense based on a privilege may be raised in the context of a section 2-619 motion. Hartlep v. ...


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