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25 May 2000

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Plaintiff, Diana Thompson, filed a complaint againstdefendants, Bruce Frank and Jerry Serritella, seeking damages forlibel and intentional infliction of emotional distress. Ondefendants' motion, the trial court dismissed the complaint onthe ground that defendants were absolutely privileged to make thedefamatory statements alleged by plaintiff because the statementsrelate to pending litigation between plaintiff and defendantFrank. On appeal, plaintiff contends that absolute privilegedoes not bar her actions for libel and intentional infliction ofemotional distress. For the reasons that follow, we reverse andremand.

Diana Thompson and Bruce Frank are parties to a childcustody dispute. During the course of this dispute, Frank'sattorney, Jerry Serritella, sent Jerry Thompson, Diana's husband,a letter. In the letter, Serritella related that Diana hadengaged in a sexual relationship with Frank in the hope ofpersuading Frank to compromise his legal position in the custodydispute. Moreover, Serritella described Diana as "devious" and"dishonest." Serritella noted that Jerry (Thompson) is "in aunique position to be aware of the numerous things [Diana] hasdone with the purpose [of depriving] Mr. Frank of access to hisson." Serritella urged Jerry to become a witness on Frank'sbehalf.

Subsequently, Diana filed a four-count complaint againstFrank and Serritella. In the complaint, Diana alleges thatSerritella's letter to her husband is defamatory. In counts Iand III, Diana alleges that Frank and Serritella libeled her bysending the letter to her husband. In counts II and IV, Dianaalleges that Frank and Serritella intentionally caused her tosuffer severe emotional distress.

Defendants filed a motion to dismiss pursuant to subsection2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9) (West 1998)). In the motion, defendants contend thatthey cannot be held liable for making the allegedly defamatorystatements because the statements were made in a communicationrelated to an on-going judicial proceeding.

Defendants also filed the affidavit of Jerry Serritella. Inthe affidavit, Serritella avers that the honesty, character, andintegrity of the parties had become an issue relevant to thecustody dispute. Serritella further states that he sent theallegedly defamatory letter to Jerry Thompson in an effort toprocure him as a witness against his wife. According toSerritella, procuring Jerry's testimony would help Frank to showthat Diana had "continually interfered and attempted to thwart"Frank's visitation rights. Moreover, Serritella states that hesent the letter in the hope that it would cause Jerry to divorceDiana and thereby diminish Diana's financial ability to care forher son.

The trial court granted defendants' motion to dismiss withrespect to all four counts of plaintiff's complaint. This appealfollowed.

On appeal, plaintiff contends that the trial court erred bydismissing her complaint. In particular, plaintiff maintainsthat the allegedly defamatory statements made by defendants arenot subject to an absolute privilege.

Subsection 2--619(a)(9) of the Code of Civil Procedureprovides for dismissal of a complaint if "the claim assertedagainst defendant is barred by other affirmative matter avoidingthe legal effect of[,] or defeating[,] the claim." 735 ILCS 5/2--619(a)(9) (West 1998). Thus, under this subsection, the movingparty admits the legal sufficiency of the complaint but assertsan affirmative defense or other matter that avoids or defeats theclaim. Stratman v. Brent, 291 Ill. App. 3d 123, 683 N.E.2d 951(1997). In a defamation action, the issue of absolute privilegeis treated as an affirmative defense that may be raised anddetermined in a section 2--619 motion. Lykowski v. Bergman, 299Ill. App. 3d 157, 700 N.E.2d 1064 (1998).

In ruling on a section 2--619 motion, the trial courtassumes the veracity of all well-pleaded facts of the complaint. Stratman, 291 Ill. App. 3d 123, 683 N.E.2d 951. Moreover, thetrial court may consider all the pleadings, depositions, andaffidavits of record. Stratman, 291 Ill. App. 3d 123, 683 N.E.2d951. An order granting a section 2--619 motion is subject to denovo review. Stratman, 291 Ill. App. 3d 123, 683 N.E.2d 951. Inparticular, the reviewing court determines whether there exists agenuine issue of material fact that should have precludeddismissal and, in the absence of such an issue of fact, whetherthe 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).

An attorney is absolutely privileged to publish defamatorymatter concerning another in communications preliminary to aproposed judicial proceeding, or in the institution of, or duringthe course and as a part of, a judicial proceeding in which heparticipates as counsel, if it has some relation to theproceeding. Restatement (Second) of Torts