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Samoylovich v. Montesdeoca

Court of Appeals of Illinois, First District, Fifth Division

June 13, 2014

BORIS SAMOYLOVICH, Plaintiff-Appellee,
HENRY MONTESDEOCA, Defendant-Appellant (City of Chicago, a Municipal Corporation, Gilbert Ortiz, John Sebeck, and Edward Wodnicki, Defendants)

Appeal from the Circuit Court of Cook County, Illinois. No. 10 L 5328. Honorable Eileen M. Brewer, Judge Presiding.



The trial court properly denied defendant's motion to dismiss plaintiff's action seeking damages for malicious prosecution and civil conspiracy on the ground that the action was barred by the Citizen Participation Act, commonly referred to as the SLAPP Act, since the action was filed after plaintiff was acquitted of a criminal charge of felony criminal damage to property in connection with an attempted burglary that defendant allegedly witnessed and testified about at plaintiff's criminal proceedings, and defendant failed to show that the action was a meritless action filed in retaliation for defendant's protected activities.

For APPELLANT: Douglas F. McMeyer, Hartwell P. Morse III, Rachel C. Casey, Fredric E. Roth V, Husch Blackwell, LLP, Chicago, IL.

For APPELLEE: Jeffrey A. Garbutt, Chepov & Scott, LLC, Chicago, IL.

JUSTICE TAYLOR delivered the judgment of the court, with opinion. Justices McBride and Palmer concurred in the judgment and opinion.



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[¶2] Appellant Henry Montesdeoca appeals from the circuit court's order denying his motion to dismiss brought under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2012)) in which he claimed immunity pursuant to the Citizen Participation Act (735 ILCS 110/1 et seq . (West 2012)) (the Act).

[¶3] The appeal arises out of a civil lawsuit filed by appellee Boris Samoylovich against the City of Chicago, individual police officers, and Montesdeoca. Samoylovich filed the lawsuit to seek damages for malicious prosecution and civil conspiracy following his acquittal on the criminal charge of felony criminal damage to property in connection with an attempted burglary that Montesdeoca allegedly witnessed and to which Montesdeoca testified during the related criminal proceedings.

[¶4] In response to Samoylovich's claims, Montesdeoca filed a section 2-619(a)(9) motion asserting immunity from liability under the Act. The circuit court denied the motion and Montesdeoca appealed to this court. Upon this court's initial denial of the appeal, Montesdeoca filed a petition for leave to appeal to the Illinois Supreme Court, which denied the petition but entered a supervisory order remanding the appeal to this court for resolution. Samoylovich v. City of Chicago, No. 114802, 980 N.E.2d 1100, 366 Ill.Dec. 741 (Ill. Nov. 28, 2012). For the reasons that follow, we find that the circuit court properly denied Montesdeoca's motion.


[¶6] On the evening of January 6, 2008, Montesdeoca allegedly witnessed an attempted break-in of two of his neighbors' garages. Montesdeoca had been friends with one of these neighbors, Detective Gilbert Ortiz of the Chicago police department, and other members of his family for several years. During the commotion in connection with discovering the attempted break-in, Montesdeoca and Detective Ortiz allegedly witnessed Samoylovich enter a get-away vehicle and escape the scene. Montesdeoca obtained half of the license plate number of the fleeing vehicle, while Detective Ortiz obtained the entire number.

[¶7] After running the license plate number in the Law Enforcement Agencies Data System (LEADS), the Chicago police obtained the name " Boris Samoylovich" and an address for the vehicle's owner. The Chicago police then ran the name in the Illinois Citizen and Law Enforcement Analysis and Reporting database (ICLEAR), a system that stores data relating to criminal offenders in Illinois, and obtained Samoylovich's name, photograph, and address. However, the addresses produced by LEADS and ICLEAR were different, a fact raising the possibility that the two Boris Samoyloviches identified were not the same person, which in fact they were not. The registered owner of the vehicle, who was identified in LEADS but not in ICLEAR, turned out to be an unrelated, older, deceased man whose widow had sold the car to a neighbor on January 4, 2008. This neighbor had never seen nor did she know the Samoylovich who is the plaintiff in the instant case.

[¶8] Nevertheless, without looking into the ambiguity created by the different address

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listings, the Chicago police arrested Samoylovich at the home address listed in ICLEAR. However, the Chicago police were unable to locate the get-away vehicle. Montesdeoca and Detective Ortiz then separately identified Samoylovich in a photo array and a lineup. No other evidence has been offered that connects Samoylovich to the incident other than Montesdeoca's and Detective Ortiz's eyewitness statements and identifications, and there is no evidence that the Chicago police knew of the existence of the two Boris Samoyloviches when they arrested him.

[¶9] By the time of the grand jury proceedings, which occurred on January 22, 2008, the Chicago police had become aware of the existence of the two Boris Samoyloviches through Valere Samoylovich, the deceased man's son. At the grand jury, Detective John Sebeck, a detective who worked on the case and who is also a named defendant, testified that the Chicago police had believed that the older, deceased Boris Samoylovich was Samoylovich's father. This belief is not documented in any record produced by the Chicago police during the investigation nor was it confirmed by Valere Samoylovich. Later, at the criminal trial, Detective Sebeck claimed Samoylovich was the source of this information, though Samoylovich never confirmed making such an admission. The State's Attorney subpoenaed Montesdeoca, who testified against Samoylovich at his criminal trial, the result of which was an acquittal.

[¶10] Following his acquittal, Samoylovich filed a second amended complaint on September 28, 2011 against the city of Chicago, the officers involved, and Montesdeoca alleging malicious prosecution and civil conspiracy. For both counts, Samoylovich sought compensatory damages in excess of $50,000 to compensate him for being " publicly disgraced," suffering " great anxiety and pain of body and mind," and incurring defense costs and losses associated with being " hindered and prevented from attending to affairs, employment and business."

[¶11] On October 19, 2011, Montesdeoca filed a section 2-619(a)(9) motion to dismiss invoking the protections of the Act, which provides immunity for a defendant who has been victimized by a strategic lawsuit against public participation in government or the proper exercising of the defendant's first amendment rights (a SLAPP). On December 14, 2011, the circuit court entered an order ruling that the Act was applicable to the case and permitting limited discovery to commence pursuant to the Act. However, on January 20, 2012, the Illinois Supreme Court issued its opinion in Sandholm v. Kuecker, 2012 IL 111443, 962 N.E.2d 418, 356 Ill.Dec. 733, a landmark case refining the proper analytical framework under the Act, and the circuit court immediately directed the parties to submit additional briefs to assess the impact of the decision on the facts of the present case.

[¶12] On May 2, 2012, after considering the briefing and evidentiary submissions, the circuit court reversed its initial decision and held that the Act did not apply to the present case. To support its ruling, the circuit court provided the following reasoning:

" [T]his is clearly not a SLAPP suit, and I am denying Defendant's motion to dismiss. Illinois law requires that the case be meritless and be brought solely for the purpose of retaliating against the Defendant for his activities in participating in government. This clearly isn't the case in this case. *** I would be doing a great disservice to the ...

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