2025 IL App (4th) 241076

NO. 4-24-1076

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

FILED
March 7, 2025
Carla Bender
4th District Appellate
Court, IL

NICHOLAS T. ANDERSON,

Plaintiff and Counterdefendant-Appellee,
v.

MEAGAN M. SMITH, f/k/a Meagan M. Wohlfeil,

Defendant and Counterplaintiff-Appellant.

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Appeal from the
Circuit Court of
Schuyler County
No. 18L2

Honorable
Roger B. Thomson,
Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Steigmann and Cavanagh concurred in the judgment and opinion.

OPINION

¶ 1

Defendant  Meagan  M.  Smith  appeals  from  the  trial  court’s  order  denying  her

motion  to  dispose  of  plaintiff  Nicholas  T.  Anderson’s  defamation  and  malicious  prosecution

claims against her pursuant to the Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West

2022)). Because the court ruled on the motion without conducting the inquiry required by the Act,

we reverse the court’s order and remand with directions that the court conduct that inquiry.

¶ 2

¶ 3

I. BACKGROUND

The ultimate forum for resolution of civil claims is a trial, whether before a judge

or a jury. The Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq. (West 2022)), however,

provides several ways in which a civil defendant might defeat a claim via motion short of trial. A

claim might be defeated based on the inadequacy shown on the face of the plaintiff’s pleadings.

Id. § 2-615. A defendant might advance a claim that some affirmative matter defeats the plaintiff’s

claim. Id. § 2-619. Finally, a defendant may obtain summary judgment by demonstrating that the

evidence marshalled by both sides is insufficient to present a triable issue. Id. § 2-1005. Success

on any one of these motions would allow the defendant to prevail without having to defend the

subject claim at trial. Moreover, where a plaintiff’s claim is so patently lacking in merit that it is

rightly deemed frivolous, the defendant might seek recovery of attorney fees from the plaintiff. Ill.

S. Ct. R. 137 (eff. Jan. 1, 2018).

¶ 4

It  is  into  this  well-known  environment  that  the  legislature  dropped  the  Act,

presumably intending it to serve as a new and different vehicle for defendants facing a particular

type  of  claim  to  obtain  early  dismissal  and  avoid  trial.  See  735  ILCS  110/30(a)  (West  2022)

(providing  that  the  Act  does  not  preclude  preexisting  remedies  for  defendants).  The  challenge

presented by this case is understanding how the Act’s provisions differ from the preexisting Code

provisions regarding dispositive motions.

¶ 5

¶ 6

A. The Act

In  2007,  the  legislature  passed  the  Act  as  a  response  to  what  it  found  was  “a

disturbing  increase  in  lawsuits  termed  ‘Strategic  Lawsuits  Against  Public  Participation’  in

government or ‘SLAPPs.’ ” Id. § 5. “SLAPPs *** are lawsuits aimed at preventing citizens from

exercising their political rights or punishing those who have done so.  SLAPPs use the

threat of money damages or the prospect of the cost of defending against the suits to silence citizen

participation.” Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 630 (2010). A SLAPP

plaintiff “do not intend to win but rather to chill  defendant’s speech or protest activity

and  discourage  opposition  by  others  through  delay,  expense,  and  distraction.”  Sandholm  v.

Kuecker, 2012 IL 111443, ¶ 34.

¶ 7

Section 15 of the Act provides:

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“This Act applies to any motion to dispose of a claim in a judicial proceeding on

the grounds that the claim is based on, relates to, or is in response to any act or acts

of the moving party in furtherance of the moving party’s rights of petition, speech,

association, or to otherwise participate in government.

Acts  in  furtherance  of  the  constitutional  rights  to  petition,  speech,

association, and participation in government are immune from liability, regardless

of  intent  or  purpose,  except  when  not  genuinely  aimed  at  procuring  favorable

government action, result, or outcome.” 735 ILCS 110/15 (West 2022).

We will use the term “Act motion” to refer to “any motion as described in Section 15.” Id. § 20(a);

see id. § 10 (“ ‘Motion’ includes any motion to dismiss, for summary judgment, or to strike, or

any other judicial pleading filed to dispose of a judicial claim.”).

¶ 8

The Act provides for the following procedure and standards for an Act motion:

“(a) On the filing of any motion as described in Section 15, a hearing and

decision on the motion must occur within 90 days after notice of the motion is given

to  the  respondent.  An  appellate  court  shall  expedite  any  appeal  or  other  writ,

whether interlocutory or not, from a trial court order denying that motion or from a

trial court’s failure to rule on that motion within 90 days after that trial court order

or failure to rule.

(b) Discovery  shall  be  suspended  pending  a  decision  on  the  motion.

However, discovery may be taken, upon leave of court for good cause shown, on

the  issue  of  whether  the  movants  acts  are  not  immunized  from,  or  are  not  in

furtherance of acts immunized from, liability by this Act.

(c) The court shall grant the motion and dismiss the judicial claim unless

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the  court  finds  that  the  responding  party  has  produced  clear  and  convincing

evidence that the acts of the moving party are not immunized from, or are not in

furtherance of acts immunized from, liability by this Act.” Id. § 20.

“The  court  shall  award  a  moving  party  who  prevails  in  a  motion  under  this  Act  reasonable

attorney’s fees and costs incurred in connection with the motion.” Id. § 25.

¶ 9

Because the Act applies not just to SLAPPs but to discrete claims within lawsuits,

we will use the term “SLAPP claim” when referring to an individual claim subject to dismissal

under section 20(c) of the Act. See id. § 10 (“ ‘Judicial claim’ or ‘claim’ include any lawsuit, cause

of action, claim, cross-claim, counterclaim, or other judicial pleading or filing alleging injury.”).

While the Act uses the general terms “ ‘oving party’ ” and “ ‘esponding party’ ” (id.), for

simplicity, we will use the terms specific to this case, where the Act motion has been filed by the

defendant and seeks dismissal of an alleged SLAPP claim in the plaintiff’s complaint. When faced

with an Act motion, the trial court’s task is to determine whether the challenged claim is a SLAPP

claim or an ordinary claim.

¶ 10

¶ 11

¶ 12

B. Factual and Procedural History

1. Undisputed Facts

On June 1, 2017, the Illinois Department of Agriculture and the Schuyler County

Board held a public hearing in Rushville, Illinois, regarding a proposed measure to approve a hog

farming operation. The hearing was preceded by a press conference in a nearby park. Anderson

and  Smith  both  attended  the  press  conference;  Anderson  supported  the  measure,  and  Smith

opposed  it.  At  some  point,  while  another  proponent  of  the  measure  was  giving  a  television

interview, Smith was positioned behind him with a protest sign that expressed opposition to the

measure.

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¶ 13

Anderson subsequently approached Smith; the exact details of their encounter are

disputed. However, it is undisputed that Smith said, “I don’t know you” and “don’t touch me”

during the encounter and in the presence of bystanders. Smith spoke to law enforcement officers

present at the scene and told them that Anderson had shoved and assaulted her. As a result, Officer

Rick Wright of the Rushville Police Department arrested Anderson and issued a citation against

him  for  assault  (720  ILCS  5/12-1  (West  2016))  but  declined  to  issue  a  citation  for  battery.

However, Anderson was later charged with battery (id. § 12-3) and acquitted after a bench trial on

May 31, 2019.

¶ 14

¶ 15

2. The Parties’ Contentions

Smith  has  brought  counterclaims  against  Anderson  for  battery  and  intentional

infliction  of  emotional  distress.  Both  claims  allege,  among  other  things,  that  Anderson

intentionally shoved her in an offensive manner and almost knocked her to the ground during their

encounter. Anderson denies this allegation, asserting that he did no more than hold out his hand to

offer Smith his business card.

¶ 16

Anderson  has  brought  claims  against  Smith  for  defamation  and  malicious

prosecution. Anderson alleges, among other things, that Smith falsely said, “you assaulted me”

during their encounter and that her primary motive for participating in the battery prosecution was

not to bring him to justice for the alleged battery but to retaliate against him for his work “as an

advocate  for  pro-farming  activities,  including  the  siting  of  agricultural  facilities,”  such  as  the

proposed hog farming operation. Smith denies these allegations.

¶ 17

¶ 18

3. Smith’s Motion for Summary Judgment

In January 2024, Smith filed a motion asking the trial court to (1) grant summary

judgment in her favor on her battery counterclaim and on Anderson’s claims pursuant to section

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2-1005  of  the  Code  (735  ILCS  5/2-1005  (West  2022))  or  (2) dispose  of  Anderson’s  claims

pursuant to the Act. The court denied Smith’s motion in its entirety, finding that it presented triable

issues of fact for the jury, although the court failed to explain why it denied Smith’s request for

relief under the Act.

¶ 19

We granted defendant’s petition for leave to appeal pursuant to Illinois Supreme

Court Rule 306(a)(9) (eff. Oct. 1, 2020).

¶ 20

¶ 21

II. ANALYSIS

Although the trial court’s order addressed other issues in this case, Rule 306(a)(9)

limits the scope of our interlocutory review to the narrow question of whether Anderson’s claims

are subject to dismissal under the Act. See Glorioso v. Sun-Times Media Holdings, LLC, 2024 IL

130137, ¶ 1 (Glorioso II). We express no opinion as to the remaining issues, which we discuss

only to the extent necessary to determine whether the trial court erred in denying Smith relief under

the Act. See In re Lawrence M., 172 Ill. 2d 523, 526 (1996); Sandholm, 2012 IL 111443, ¶ 58.

¶ 22

A trial court errs when its denial of relief rests on an incorrect legal standard. “When

determining whether  court applied the incorrect legal standard, we must first ascertain

the correct legal standard, which is a question of law subject to de novo review.” In re Marriage

of Trapkus, 2022 IL App (3d) 190631, ¶ 22. Ascertaining the correct interpretation of the Act is

also  a  question  of  law  that  we  review  de novo.  People  v.  Howard,  2017  IL  120443,  ¶ 19.  In

interpreting the Act, our objective “is to ascertain and give effect to the legislature’s intent.” Id.

¶ 23

However, we are not writing on a blank slate; we are bound by the supreme court’s

explanation of the standard in Walsh, Sandholm, and Glorioso II. See Doyle v. Hood, 2018 IL App

(2d) 171041, ¶ 35 (explaining that the supreme court’s interpretation of a statute binds this court).

Because Glorioso II is the most recent of these decisions—more recent even than the trial court’s

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decision in this case—we start there.

¶ 24

¶ 25

A. The Post-Sandholm Test

In  Glorioso  II,  the  supreme  court  articulated  the  relevant  standard  by  endorsing

what it called the post-Sandholm test:

“The appellate court has consistently employed a three-part, post-Sandholm

test  to  determine  whether  a  lawsuit  is  subject  to  dismissal  pursuant  to  the  Act.

 Pursuant to the post-Sandholm test, the  has the burden to

show that (1) the  acts were in furtherance of  rights to petition,

speak,  associate,  or  otherwise  participate  in  government  to  obtain  favorable

government action and (2)  plaintiff’s claims are solely based on, related to, or

in  response  to  the    exercise  of  these  rights.    If  the

 meets  burden under the first two prongs, in order to defeat the

motion,    plaintiff  must  prove  by  clear  and  convincing  evidence  what  is

considered the third prong of the test: that the  acts were not genuinely

aimed  at  procuring  favorable  government  action.”  (Emphases  in  original.)

Glorioso II, 2024 IL 130137, ¶ 55.

¶ 26

In Glorioso II, the court explained that the first prong “requires a court to consider

whether an objective person would find the  acts were reasonably calculated to elicit

a  favorable  government  action  or  outcome.”  Id.  ¶ 67.  In  contrast,  the  third  prong  is  subjective

rather  than  objective;  in  other  words,  the  court  must  consider  whether  this  person’s  acts  were

actually intended to elicit a favorable government action or outcome. Id. ¶ 67 n.3.

¶ 27

Our focus in the present case is the second prong, which originated in Sandholm

itself (id. ¶ 62) and has presented difficulties for the appellate court. See Glorioso v. Sun-Times

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Media  Holdings,  LLC,  2023  IL  App  (1st)  211526,  ¶ 107  (Glorioso I)  (Hyman,  J.,  dissenting)

(seeking “clarification and correction by our supreme court”). In Glorioso II, the supreme court

pointedly declined to resolve the difficulties articulated by Justice Hyman’s dissenting opinion in

Glorioso I (see Glorioso II, 2024 IL 130137, ¶¶ 56-57), leaving Sandholm as the supreme court’s

last word on the issue.

¶ 28

¶ 29

B. Sandholm

Sandholm addressed section 15 of the Act, which requires the defendant’s motion

to rest “on the grounds that the  claim is based on, relates to, or is in response to

any act or acts of the  in furtherance of the  rights.” 735 ILCS

110/15  (West  2022).  Sandholm  construed  this  requirement  as  meaning  that  the  “lawsuit  was

initiated  solely  to  interfere  with    defendant  protected  rights.”  (Emphasis  added.)

Glorioso II, 2024 IL 130137, ¶ 53. In other words, the defendant must show that it is not “the true

goal of  plaintiff’s claims” to seek relief for damages for the defendant’s allegedly wrongful

act. (Emphasis added.) Sandholm, 2012 IL 111443, ¶ 57; accord Glorioso II, 2024 IL 130137, ¶ 52

(“ defendant’s initial burden as the moving party is to show the true goal of the lawsuit is to

‘chill participation in government or to stifle political expression,’ rather than to seek damages for

personal harm from the defendants’ tortious acts.”). At that point, of course, the trial court moves

from the second prong of the post-Sandholm test to the third prong and considers the genuineness

of the defendant’s acts, as required by sections 15 and 20(c) of the Act. Sandholm, 2012 IL 111443,

¶ 53.

¶ 30

Smith argues that Sandholm did not merely interpret the Act but warped it beyond

recognition  by  imposing  an  extrastatutory  burden  on  defendants.  See  generally  Emily  L.

Jenkinson, Note, Sandholm v. Kuecker: The Illinois Supreme Court “SLAPPS” Away a Protection

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of Illinois Citizens’ First Amendment Rights, 63 DePaul L. Rev. 1093 (2014) (endorsing a similar

view). For our purposes, however, there is no difference between a burden imposed by the Act or

by Sandholm; as an inferior court, we must faithfully apply Sandholm absent a change in the law,

which is something that the judiciary and the legislature have both declined to do since Sandholm

was decided. See Glorioso II, 2024 IL 130137, ¶ 53.

¶ 31

¶ 32

C. The “Meritless and Retaliatory” Standard

Although  Sandholm  established  the  “true  goal”  inquiry,  the  court  spent  just  one

brief paragraph engaging in the inquiry itself:

“We conclude, based on the parties’ pleadings, that plaintiff’s lawsuit was

not solely based on, related to, or in response to the acts of defendants in furtherance

of the rights of petition and speech. Plaintiff’s suit does not resemble in any way a

strategic lawsuit intended to chill participation in government or to stifle political

expression. It is apparent that the true goal of plaintiff’s claims is not to interfere

with and burden defendants’ free speech and petition rights, but to seek damages

for the personal harm to his reputation from defendants’ alleged defamatory and

tortious acts. Defendants have not met their burden of showing that plaintiff’s suit

was based solely on their petitioning activities.” Sandholm, 2012 IL 111443, ¶ 57.

¶ 33

While Sandholm’s conclusion is clear enough, the standard applied to reach that

conclusion has proven somewhat elusive. After Sandholm was decided, the First District adopted

what has been called the “meritless and retaliatory” standard based on Sandholm’s conclusion that

the Act intended “to subject only meritless, retaliatory SLAPP suits to dismissal.” Id. ¶ 45; see

Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005, ¶ 26 (adopting this standard). As

there was no clearly contrary authority, we understand that the trial court was obligated to follow

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Ryan and its progeny. See Schramer v. Tiger Athletic Ass’n of Aurora, 351 Ill. App. 3d 1016, 1020

(2004) (noting that circuit courts are bound by the decisions of the appellate court in other districts

absent a split among districts).

¶ 34

But while Sandholm’s interpretation of the Act binds us, Ryan’s interpretation of

Sandholm does not. See O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421,

440 (2008) (explaining that one district may part company from another). As we will explain, Ryan

and its progeny misconstrued Sandholm, so we decline to adopt the “meritless and retaliatory”

standard. Id.; see Glorioso I, 2023 IL App (1st) 211526, ¶ 73 (Hyman, J., dissenting) (positing that

“a decade of appellate court decisions” since Sandholm “have repeatedly fallen short”).

¶ 35

The primary vice of Ryan’s “meritless and retaliatory” standard is that it attempts

to ascribe legal meaning to two words that Sandholm used in their rhetorical sense. We first address

the flaws with this standard and then articulate what we find to be the appropriate standard for the

second  prong  of  the  post-Sandholm  test,  which  we  believe  comports  with  the  supreme  court’s

admittedly terse application of the standard in Sandholm.

¶ 36

¶ 37

1. Meritless

Although  Sandholm  used  the  word  “meritless”  several  times  when  describing

SLAPP claims, the word “meritless” may mean different things in different contexts. A plaintiff’s

claim can be described as meritless when (1) it has proceeded to trial and failed on the merits,

meaning that the finder of fact has resolved the case against the plaintiff; (2) it can be resolved by

an ordinary dispositive motion under the Code, meaning that the court can dispose of the claim

without a trial on the merits; or (3) it is frivolous, meaning that the claim lacks even arguable merit.

Attempting to incorporate any of these definitions of “merit” in the context of deciding an Act

motion presents significant problems.

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¶ 38

If a trial court were to apply the first definition of merit in deciding an Act motion,

it would be required to preemptively resolve the factual issues of the plaintiff’s claim itself and

conclude  that  the  claim  will  fail  at  trial.  However,  this  approach  would  effectively  deny  the

plaintiff his right to a jury trial on the claim. Put another way, if the Act allows the court to find

that the defendant’s acts are immunized from liability only by first finding that defendant has no

liability for those acts, then the Act does not truly confer immunity; it simply shifts the role of

determining liability from the jury to the court in the first instance. We must interpret the Act to

avoid doubts as to whether it infringes on the plaintiff’s constitutional right to a jury trial. See

Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 564 (2005) (“Courts will avoid *** any construction

which would raise doubts as to  statute’s constitutionality .”); see also Sandholm, 2012

IL  111443,  ¶ 60  (emphasizing  that  its  interpretation  of  the  Act  avoided  constitutional  issues).

Surely the Act does not contemplate the trial court would decide “merit” in this manner.

¶ 39

The problem with the second and third approaches arises from the fact that sections

15 and 20(c) of the Act (i.e., the third prong of the post-Sandholm test) do not require dismissal of

the  plaintiff’s  “meritless”  claim  if  the  defendant’s  conduct  falls  under  the  “sham  exception.”

Sandholm,  2012  IL  111443,  ¶¶ 52-53;  see  Glorioso II,  2024  IL  130137,  ¶ 55  (listing  this  as  a

requirement for dismissal under the Act). This means that to dispose of a claim under the Act, the

defendant would first have to make the same showing required to dispose of the claim via a motion

to dismiss or a motion for summary judgment and then defend against allegations that her conduct

was not genuinely aimed at procuring favorable government action, including the possibility of

discovery on the issue. See 735 ILCS 110/20(b) (West 2022).

¶ 40

Prevailing  on  a  traditional  dispositive  motion  means  that  the  plaintiff’s  claim  is

resolved, which in the pre-Act world could only be viewed as a clear victory for the defendant.

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What else might be achieved by a defendant who seeks to go beyond these traditional “merits”

motions by arguing that the claim is “meritless” under the Act? The additional benefits of an Act

motion would effectively consist only of the 90-day time limit, stay of discovery, and possibly an

award of attorney fees. But how often would these ancillary benefits convince the defendant to

abandon  the  surefire,  half-prong  test  of  an  ordinary  dispositive  motion  and  pursue  dismissal

pursuant to a three-prong test contingent on the genuineness of her conduct? Even here, Smith

sought both forms of relief in the alternative.

¶ 41

Ryan  and  its  progeny  do  not  avoid  this  problem  by  requiring  only  genuinely

undisputed facts that “can disprove some element of the plaintiff’s claim.” Glorioso I, 2023 IL

App (1st) 211526, ¶ 56; see Ryan, 2012 IL App (1st) 120005, ¶ 26. If the defendant could make

this showing, then she could also move for summary judgment on the claim. See 735 ILCS 5/2-

1005 (West 2022) (allowing for the defendant to seek summary judgment “at any time” when she

can  “show  that  there  is  no  genuine  issue  as  to  any  material  fact  and  that    is  entitled  to  a

judgment as a matter of law”).

¶ 42

We will not presume that the legislature intended for the Act to create a variant of

preexisting dispositive motions that requires more litigation with a lower chance of success, nor

does Sandholm stand for such a proposition. See People v. Gutman, 2011 IL 110338, ¶ 12 (“

court  presumes  that  the  legislature  did  not  intend  to  create  absurd,  inconvenient,  or  unjust

results.”). As the supreme court recognized in Sandholm, “SLAPPs are, by definition, meritless.”

Sandholm,  2012  IL  111443,  ¶ 34.  However,  the  supreme  court  went  on  to  explain  that

“ ‘defendants win eighty to ninety percent of all SLAPP suits litigated on the merits.’ ” Id. (quoting

John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L.

Rev. 395, 406 (1993)). If it is true that 80% to 90% of SLAPP claims fail at trial, then 10% to 20%

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of  them  succeed;  in  other  words,  even  some  meritorious  claims  are  SLAPP  claims.  Therefore,

Sandholm  does  not  stand  for  the  principle  that  a  SLAPP  claim  is  meritless  because  it  will

necessarily lose if litigated on the merits; rather, a SLAPP claim is meritless because it does not

deserve to be litigated on the merits.

¶ 43

¶ 44

2. Retaliatory

With  respect  to  the  word  “retaliatory,”  we  agree  that  the  inquiry  prescribed  by

Sandholm requires consideration of the plaintiff’s “true goal” and “genuineness,” but Ryan and its

progeny fail to recognize the inherently factual nature of that inquiry. It is true that the supreme

court’s brief analysis of this issue was “based on the parties’ pleadings,” but the court predicated

its conclusion on the defendants’ failure to supply sufficient evidence supporting its “initial burden

of proving that  plaintiff’s lawsuit was solely ‘based on, relate to, or in response to’ their

acts.” (Emphasis added.) Id. ¶¶ 56-57. Indeed, the supreme court specifically recognized that a

defendant may support an Act motion with materials outside of the pleadings when attempting to

meet its initial burden. Id. ¶ 54 (citing 735 ILCS 5/2-619(a)(9) (West 2008)).

¶ 45

By  taking  a  contrary  approach  to  determining  whether  a  plaintiff’s  claim  is

retaliatory, Ryan and its  progeny fail to acknowledge  that a defendant’s “claim of immunity is

conceptually distinct from the merits of the plaintiff’s claim” and presents a distinct factual inquiry

involving  evidence  that  may  be  unrelated  to  the  merits  of  the  plaintiff’s  claim.  See  Mitchell  v.

Forsyth,  472  U.S.  511,  527-29  (1985)  (addressing  qualified  immunity  for  federal  officials);

Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1073 (1992) (“It is

only in the context of the plaintiff’s claim that it is proper to state that a defendant in a section 2-

619 motion admits all well-pleaded facts. The defendant does not admit the truth of any allegations

in  plaintiff’s  complaint  that  may  touch  on  the  affirmative  matters  raised  in  the  2-619  motion.”

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(Emphasis in original.)). As such, limiting the scope of the trial court’s inquiry to the face of the

plaintiff’s  claim  will  simply  encourage  SLAPP  plaintiffs  to  do  a  better  job  of  making  SLAPP

claims appear to be ordinary claims in order to stave off an Act motion.

¶ 46

As the supreme court recognized in Sandholm, “SLAPPs ‘masquerade as ordinary

lawsuits,’ ”  so  Ryan’s  standard  will  not  deter  the  abuse  of  the  judicial  process  sought  to  be

addressed by the Act. Sandholm, 2012 IL 111443, ¶ 35 (quoting Kathryn W. Tate, California’s

Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope, 33 Loy.

L.A. L. Rev. 801, 804-05 (2000)). Accordingly, we decline to limit the scope of the trial court’s

inquiry in such a way.

¶ 47

¶ 48

D. The “True Goal” Inquiry

We now turn to Sandholm itself to consider how courts should ascertain the true

goal of the plaintiff’s claims. Sandholm explained that the inquiry turns on whether the plaintiff is

“genuinely  seeking  relief.”  Id.  ¶ 45.  Although  “he  word  ‘genuine’  has  both  objective  and

subjective connotations” (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries,

Inc., 508 U.S. 49, 61 (1993)), the parties’ dispute turns on Anderson’s subjective intent in bringing

these claims, not the objective question of whether a reasonable plaintiff might have brought these

claims under the circumstances. We agree that Sandholm calls for subjective inquiry, given that it

directed  courts  to  examine  “the  plaintiff’s  intent  in  bringing    suit”  (Sandholm,  2012  IL

111443, ¶ 42) and compared genuineness under the second prong of the post-Sandholm test with

genuineness under the third prong (id. ¶ 53; see 735 ILCS 110/15 (West 2022)), which the court

has since explained calls for a subjective inquiry (Glorioso II, 2024 IL 130137, ¶ 67 n.3). However,

a person’s subjective intent may be inferred by the finder of fact based on the person’s conduct as

well as the circumstances. People v. Grayer, 2023 IL 128871, ¶ 28.

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¶ 49

We also note that Sandholm and Glorioso II examined entire lawsuits rather than

individual claims, asking why the “lawsuit was initiated.” (Emphasis added.) Glorioso II, 2024 IL

130137, ¶ 53 (citing Sandholm, 2012 IL 111443, ¶ 45). Here, Smith alleges that both of Anderson’s

claims were initiated for the same improper purpose despite being initially filed at different times,

so we decline to reach the question of how a court should address allegations that a plaintiff has

different motives for bringing different claims or that his motives have changed over time.

¶ 50

We first  provide some background on when courts  will inquire into a  plaintiff’s

motive, then explain the factual inquiry required by the Act, and finally address the procedure for

conducting that inquiry.

¶ 51

¶ 52

1. The Plaintiff’s Motive

Ordinarily, “ plaintiff’s right of recovery is in no way barred by the motive which

prompts him to bring the action.” Somers v. AAA Temporary Services, Inc., 5 Ill. App. 3d 931, 935

(1972). As such, courts have consistently held that a defendant’s allegation that the plaintiff has a

bad motive is not a defense to an otherwise valid claim (id.), although it may affect the availability

of equitable remedies under the doctrine of unclean hands (see Zahl v. Krupa, 365 Ill. App. 3d

653, 658 (2006) (“he unclean hands doctrine bars only equitable remedies and does not affect

legal rights.”); Ocwen Loan Servicing, LLC v. DeGomez, 2020 IL App (2d) 190774, ¶ 32 (“To

determine  whether  a  party  acted  with  unclean  hands,  the  court  must  look  to  the  intent  of  that

party.”);  see  also  Merrill  v.  Dibble,  12  Ill.  App.  85,  86-87  (1882)  (suggesting  in  dicta  that  the

plaintiff’s motive for bringing the suit might affect an award of punitive damages)).

¶ 53

Similarly,  the  plaintiff  cannot  salvage  an  invalid  claim  or  bolster  a  valid  claim

because  he  has  a  good  motive  for  seeking  compensatory  damages,  such  as  avoiding  severe

financial  hardship.  See  McHale  v.  Kiswani  Trucking,  Inc.,  2015  IL  App  (1st)  132625,  ¶ 30

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(explaining  that  the  plaintiff’s  poverty  is  immaterial  when  only  compensatory  damages  are

sought);  Hall  v.  Chicago  &  North  Western  Ry.  Co.,  5  Ill.  2d  135,  151-52  (1955)  (“hat  the

plaintiff does with an award *** is of no concern to the court or jury.”). Because the plaintiff’s

motive for bringing a claim for compensatory damages is immaterial to the question of whether

the defendant wrongfully caused those damages, it is unnecessary for the plaintiff to plead and

prove his good motive; indeed, the defendant could presumably move to strike such an immaterial

allegation from the plaintiff’s pleadings (see Doe v. Coe, 2019 IL 123521, ¶ 24).

¶ 54

The immateriality of the plaintiff’s motive is significant here for two reasons: (1) it

renders the plaintiff’s motive conceptually distinct from the merits of his claim for purposes of an

immunity  determination  and  (2) a  genuine  factual  dispute  as  to  the  plaintiff’s  motive  is  not  a

genuine  issue  of  material  fact  to  be  addressed  at  a  trial  on  the  merits  of  a  claim  or  defense.

However,  courts  are  not  completely  unconcerned  with  plaintiffs’  motives;  it  has  long  been

understood that a court has the authority to ascertain whether a plaintiff’s improper motive should

bar  resolution  of  his  claim  on  the  merits.  See  Mederacke  v.  Becker,  129  Ill.  App.  2d  434,  438

(1970)  (explaining  that  a  court  has  the  inherent  power  and  duty  “to  protect  itself  and  litigants

against harassing and vexatious litigation”); see, e.g., Wilson v. OSF Healthcare System, 2023 IL

App (4th) 220475-U, ¶ 25 (affirming the trial court’s dismissal of a facially sufficient claim as a

sanction for fraud on the court). For example, if the plaintiff’s actual motive in bringing a suit is

to lose, then the court might decline to hear the suit as collusive; similarly, if the plaintiff and the

defendant have a shared motive apart from resolving the alleged dispute between themselves, such

as  harming  a  nonparty  to  the  litigation,  the  court  might  decline  to  hear  the  case  as  feigned  or

fictitious. See Kern v. Chicago & Eastern Illinois R.R. Co., 44 Ill. App. 2d 468, 472-73 (1963)

(collecting cases).

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¶ 55

These  long-standing  concerns  about  improperly  motivated  litigation  are  now

reflected in Rule 137, which requires a signature on the plaintiff’s complaint certifying that the

plaintiff’s  claim  “is  not  interposed  for  any  improper  purpose,  such  as  to  harass  or  to  cause

unnecessary delay or needless increase in the cost of litigation.” Ill. S. Ct. R. 137(a) (eff. Jan. 1,

2018);  see  Krautsack  v.  Anderson,  223  Ill.  2d  541,  561-62  (2006)  (explaining  that  Rule  137

encompasses vexatious, harassing, and bad-faith litigation). If the defendant does file a motion for

sanctions, then she has the burden of proving the plaintiff’s improper purpose (see Kotara, LLC v.

Schneider, 2018 IL App (3d) 160525, ¶ 20), employing a subjective standard. See Clark v. Gannett

Co., 2018 IL App (1st) 172041, ¶ 67 (quoting Century Road Builders, Inc. v. City of Palos Heights,

283 Ill. App. 3d 527, 531 (1996)); see also Krautsack, 223 Ill. 2d at 561-62 (explaining that Rule

137  may  be  used  to  penalize  vexatious,  harassing,  and  bad-faith  litigation).  Before  imposing

sanctions on the basis of the plaintiff’s improper purpose, “a hearing must be conducted to afford

the parties an opportunity to present evidence to support or rebut the claim and to allow them to

articulate  their  respective  positions,”  and  the  court’s  ruling  must  be  “based  on  adequate

information.” Clark, 2018 IL App (1st) 172041, ¶ 67; see Walton v. Throgmorton, 273 Ill. App.

3d 353, 357 (1995) (reversing the trial court’s dismissal of a plaintiff’s lawsuit where “there s

no evidence of record and no claim made that  or any of his attorneys signed any

pleading for any improper purpose”).

¶ 56

¶ 57

2. Improper Motive

In essence, the various inquiries described above all require the court to conclude

that a person is doing something that appears proper but with an improper motive. The concept of

improper motive is most frequently examined as an element of the tort of malicious prosecution

known as “malice.” See Beaman v. Freesmeyer, 2021 IL 125617, ¶ 141 (“Malice, as an element

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of  malicious  prosecution,  has  been  defined  as  the  initiation  of  a  prosecution  for  an  improper

motive.”); cf. Reed v. Doctor’s Associates, Inc., 355 Ill. App. 3d 865, 875-76 (2005) (explaining

that the tort of abuse of process requires a showing that the plaintiff had “an ulterior purpose or

motive,” meaning that the plaintiff “intended to use the action to accomplish some result that could

not be accomplished through the suit itself”).

¶ 58

In the context of civil claims, malice means that the “proceedings must have been

initiated or continued primarily for a purpose other than that of securing the proper adjudication

of  the  claim  on  which  they  are  based.”  Restatement  (Second)  of  Torts  § 676  (1977);  see,  e.g.,

Miller v. Rosenberg, 196 Ill. 2d 50, 54 (2001) (referring to a medical malpractice lawsuit filed as

retribution for perceived discourtesies). Put another way, the plaintiff bringing the claim is using

the litigation process, as opposed to the outcome of that process, as a weapon against the defendant.

City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380 (1991).

¶ 59

“t  is  generally  recognized  that,  because  malice  is  incapable  of  positive,  direct

proof, it necessarily rests on inferences and deductions from the facts that are heard by the 

of fact.” Beaman, 2021 IL 125617, ¶ 142. As such, when conflicting inferences may be drawn

from the evidence as to whether the person acted with a proper motive, the finder of fact must

determine which inference to draw. Id. ¶ 141. Here, Smith alleges in her Act motion that the true

goal of Anderson’s claims is to retaliate against her for pursuing a prosecution against him for

battery.

¶ 60

With  respect  to  Anderson’s  defamation  claim,  Anderson  alleges  that  his  goal  is

legitimate: to “retaliate” against Smith for defaming him. Therefore, the narrow factual question

at the second prong of the post-Sandholm test is whether Anderson’s true goal is (1) to obtain an

award of damages as redress for harm to his reputation, with litigation of the defamation claim

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serving as a necessary step toward that goal, or (2) to require Smith to litigate the defamation claim

as  retribution  for  pursing  the  battery  prosecution,  with  an  award  of  damages  serving  only  as  a

threat  and  potential  windfall.  See  Sandholm,  2012  IL  111443,  ¶ 57;  Walsh,  238  Ill.  2d  at  630

(explaining that SLAPPs rely on the threat of money damages, as well as the cost of defending

against the suit).

¶ 61

With  respect  to  Anderson’s  malicious  prosecution  claim,  the  narrow  distinction

between  the  parties’  positions  becomes  a  hairline.  In  a  strict  sense,  every  claim  of  malicious

prosecution is “retaliation” for the defendant’s participation in government because the claim must

allege  “the  commencement  or  continuance  of    original  criminal  or  civil  judicial

proceeding by the defendant.” (Internal quotation marks omitted.) Beaman, 2021 IL 125617, ¶ 74

(identifying  this  as  an  element  of  the  tort  of  malicious  prosecution);  see  Sandholm,  2012  IL

111443, ¶ 35 (noting that SLAPPs may include claims of malicious prosecution). Therefore, the

factual question at the second prong of the post-Sandholm test is whether Anderson’s true goal is

(1) to recover damages from Smith for harm resulting from her commencement of the criminal

prosecution or (2) to require her to litigate the malicious prosecution claim as retribution for that

same conduct.

¶ 62

Interestingly, the factual question at the third prong of the post-Sandholm test will

be the same as another element of Anderson’s malicious prosecution claim, namely, whether Smith

had an improper motive in pursuing the criminal prosecution against Anderson. Compare Beaman,

2021 IL 125617, ¶ 140 (requiring a malicious prosecution plaintiff to prove that the defendants

“were  motivated  by  any  reason  other  than  attempting  to  bring  the    to  justice”),  with

Glorioso II,  2024  IL  130137,  ¶ 55  (requiring  an  alleged  SLAPP  plaintiff  to  prove  “that  the

 acts were not genuinely aimed at procuring favorable government action” (emphasis

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omitted)). As we will explain, however, the two inquiries will be addressed by different finders of

fact.

¶ 63

¶ 64

3. Procedure

Sandholm explained that an Act motion is appropriately brought under section 2-

619 of the Code (735 ILCS 5/2-619 (West 2008)), except with the specific procedure and standard

required by section 20 of the Act, i.e., the post-Sandholm test. See Sandholm, 2012 IL 111443,

¶¶ 54-55; Glorioso II, 2024 IL 130137, ¶ 49; see also People v. Botruff, 212 Ill. 2d 166, 175 (2004)

(“A  fundamental  rule  of  statutory  construction  is  that  where  there  exists  a  general  statutory

provision and a specific statutory provision, either in the same or in another act, both relating to

the same subject, the specific provision controls and should be applied.”).

¶ 65

We first address the general principles for analyzing a section 2-619 motion and

then explain how the Act supplants that analysis in several respects.

¶ 66

¶ 67

a. Section 2-619

Section 2-619 allows for the defendant to move for dismissal of the plaintiff’s claim

on the grounds that it is “barred by  affirmative matter avoiding the legal effect of or defeating

the claim,” supporting the motion with an affidavit if the affirmative matter is not evident from the

face  of  the  pleading.  735  ILCS  5/2-619(a)(9)  (West  2022);  see  Kedzie  &  103rd  Currency

Exchange,  Inc.  v.  Hodge,  156  Ill.  2d  112,  115-16  (1993)  (noting  that  affidavits,  answers  to

interrogatories, and discovery depositions may be used to support a section 2-619 motion). “The

phrase  ‘affirmative  matter’  encompasses  any  defense  other  than  a  negation  of  the  essential

allegations  of  the  plaintiff’s  cause  of  action.    For  that  reason,  it  is  recognized  that  a

section 2-619(a)(9) motion to dismiss admits the legal sufficiency of the plaintiff’s cause of action

***.” Id. at 115.

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¶ 68

If the defendant’s evidence is inadequate to support the asserted defense, then the

motion may be denied; otherwise, the burden shifts to the plaintiff to “establish that the defense is

unfounded or requires the resolution of an essential element of material fact before it is proven.”

Id.  at  116.  Using  affidavits  or  other  proof,  the  plaintiff  must  refute  evidentiary  facts  properly

asserted by the defendant, or else those facts are deemed admitted. Id. Otherwise, “ll pleadings

and  supporting  documents  must  be  interpreted  in  the  light  most  favorable  to  the  .”

Rehfield v. Diocese of Joliet, 2021 IL 125656, ¶ 22.

¶ 69

As trial courts are well aware, it is fundamental that a court hearing a section 2-619

motion should not weigh the evidence or make credibility determinations. Schacht v. Lome, 2016

IL App (1st) 141931, ¶ 33. But this is the trap that is presented when considering an Act motion

embedded within a section 2-619 motion. As discussed below, an Act motion requires the court to

do exactly what experience has taught is normally improper in deciding a section 2-619 motion:

weigh the evidence and make findings of fact on the issues specific to the Act.

¶ 70

¶ 71

b. The Act

Under the Act and Sandholm, the affirmative matter that defeats the claim is the

plaintiff’s  improper  motive  in  bringing  the  claim.  See  Sandholm,  2012  IL  111443,  ¶ 57;

Glorioso II, 2024 IL 130137, ¶ 53. Because the plaintiff’s motive is immaterial to the merits of the

claim, it is conceptually distinct from the legal sufficiency of the claim itself. Put another way, the

question of whether the plaintiff is genuinely seeking relief is separate from whether he is actually

entitled to relief. See Sandholm, 2012 IL 111443, ¶ 45.

¶ 72

As  such,  a  defendant  filing  an  Act  motion  has  the  initial  burden  of  supplying

affidavits or other evidence sufficient to support a conclusion that (1) an objective person would

find that her acts were reasonably calculated to elicit a favorable government action or outcome

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and  (2) the  plaintiff’s  true  goal  is  to  chill  participation  in  government  or  to  stifle  political

expression, rather than to seek damages. If the defendant fails to satisfy her initial burden, the trial

court must deny the motion. See id. ¶ 56.

¶ 73

However, if the defendant does satisfy her initial burden, the plaintiff may respond

either by producing (1) evidence that the defendant’s showing on either of the first two prongs is

unfounded or (2) clear and convincing evidence that defendant’s acts were not genuinely aimed at

procuring favorable  government  action.  If  the  plaintiff  believes  he  will be  unable  to  make  this

showing with the information available to him, he may attempt to establish good cause for the trial

court to allow discovery on the issue of whether the defendant’s acts are protected by the Act. 735

ILCS 110/20(b) (West 2022).

¶ 74

Here, a crucial difference between section 2-619 of the Code and the Act comes

into play. Whereas section 2-619 contains little specification for how the motion is to be heard,

section 20 of the Act provides that “a hearing and decision on the  motion must occur within

90 days after notice of the motion is given to the ” and that “he court shall grant the

motion and dismiss the judicial claim unless the court finds” that the plaintiff has met his shifted

burden  of  proof.  (Emphases  added.)  Id.  § 20(a),  (c);  contra  735  ILCS  5/2-619(c)  (West  2022)

(providing that the court “may decide the motion upon the affidavits and evidence offered by the

parties” or “may deny the motion without prejudice” when the plaintiff’s right to a jury trial is not

implicated (emphases added)).

¶ 75

Accordingly, if the plaintiff manages only to create a genuine factual dispute as to

one  of  the  prongs  of  the  post-Sandholm  test,  then  the  trial  court  must  conduct  an  evidentiary

hearing and decide the disputed factual issues itself using the burden-shifting framework set forth

in Glorioso II. See Donelson v. Hinton, 2018 IL App (3d) 170426, ¶ 10; cf. 735 ILCS 5/8-907

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(West 2022) (allowing the trial court to divest a reporter’s privilege “only if the court, after hearing

the parties, finds” that divestiture is warranted “under the particular facts and circumstances of

 particular case”). This makes sense; to defer a finding that the plaintiff’s claim is a SLAPP

claim until after the claim is litigated on the merits at a jury trial deprives the defendant of the

efficient  resolution  guaranteed  by  the  Act.  See  735  ILCS  110/5,  20(a)  (West  2022);  see  also

Sandholm, 2012 IL 111443, ¶ 34 (“ ‘efendants win eighty to ninety percent of all SLAPP suits

litigated on the merits.’ ” (quoting Barker, supra at 406)).

¶ 76

For trial courts who have rightly obeyed the usual prohibition against making their

own factual determinations in the context of a section 2-619 motion, the process described above

will undoubtedly be a shock to the system. When it comes to the findings required of trial courts

under the Act, however, the trial court must make its own findings rather than defer factual disputes

to the jury. The Act requires “clear and convincing evidence,” inherently an exercise in weighing

the evidence. 735 ILCS 110/20(c) (West 2022). Moreover, Glorioso II makes clear that application

of the standards it prescribes requires trial courts to make factual findings. Glorioso II, 2024 IL

130137, ¶ 67; see Sandholm, 2012 IL 111443, ¶ 56 (referring to the defendant’s burden of proof).

¶ 77

The Act’s requirement of judicial fact-finding raises the question of whether the

Act denies the plaintiff his right to a jury trial on the challenged claim. The answer is no. With

respect to the trial court’s factfinding at the second prong of the post-Sandholm test, the right to a

jury trial does not extend to the immaterial issue of whether the plaintiff has a good motive; as

explained  above,  neither  party  is  allowed  to  address  the  plaintiff’s  motive  at  a  jury  trial.

Furthermore, a plaintiff cannot insist on litigating a claim for the purpose of harassment. See Ill.

S. Ct. R. 137 (eff. Jan. 1, 2018); Guttman v. Guttman, 65 Ill. App. 2d 44, 53 (1965) (“o man

has a constitutional right to maintain vexatious or harassing litigation.”).

- 23 -

¶ 78

With respect to the trial court’s fact-finding at the third prong of the post-Sandholm

test, there may be circumstances, as in this case, where the genuineness of the defendant’s conduct

will also be an element of the plaintiff’s claim on which the plaintiff would be entitled to a jury

trial  if  the  claim  is  not  dismissed  pursuant  to  the  Act.  In  such  circumstances,  however,  the

plaintiff’s  claim  has  already  been  found  vexatious  under  the  second  prong,  and  therefore,  it  is

unsurprising  that  the  Act  would  require  the  plaintiff  to  make  a  sufficient  factual  showing  to

undercut the defendant’s right to invoke the Act’s protections; if successful, the plaintiff would

retain the right to proceed to a trial on the merits.

¶ 79

If the trial court does find that the plaintiff has met his shifted burden of proof, then

the plaintiff’s motive again drops out of the case as usual. However, to the extent that the court’s

finding  on  the  third  prong  overlaps  with  any  of  the  issues  in  the  case,  the  finding  would  not

preclude the jury from reaching its own conclusion on those issues.

¶ 80

¶ 81

¶ 82

E. The Present Case

Finally, we consider the post-Sandholm test as it applies to this case.

On the first prong, Anderson does not dispute that an objective person would find

that  Smith’s  participation  in  the  criminal  prosecution  was  reasonably  calculated  to  elicit  a

favorable government action or outcome. See Glorioso II, 2024 IL 130137, ¶ 67; see, e.g., Meyer

v.  Board  of  County  Commissioners  of  Harper  County,  482  F.3d  1232,  1243  (10th  Cir.  2007)

(concluding that an “attempt to report an alleged criminal offense was conduct protected by the

First Amendment”).

¶ 83

On the second prong, the trial court concluded that Smith’s motion presented triable

issues of fact, albeit under Ryan’s “meritless and retaliatory” standard. See Ryan, 2012 IL App

(1st)  120005,  ¶ 26.  This  was  error  because  the  court  itself  was  obligated  to  resolve  the  factual

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issues, and in any event, we have concluded that Ryan was wrongly decided. As such, we reverse

the trial court’s order and remand with directions for it to ascertain whether Smith has supplied

sufficient  evidence  to  support  a  conclusion  that  the  true  goal  of  Anderson’s  claims  is  to  chill

participation in government or to stifle political expression; if not, the trial court must deny the

motion. Otherwise, the trial court must ascertain whether Anderson has responded with sufficient

evidence  to  show  that  (1) Smith’s  allegation  of  Anderson’s  improper  motive  is  unfounded,  in

which  case  the  court  must  deny  Smith’s  motion,  or  (2) there  is  a  genuine  factual  dispute  as  to

Anderson’s motive, in which case the court must hold an evidentiary hearing and make a factual

finding as to whether Anderson’s motive was retaliatory. If the court concludes that Anderson’s

motive is not retaliatory, it must deny Smith’s motion; otherwise, it must proceed to the third prong

of the post-Sandholm test.

¶ 84

If the trial court reaches the third prong and finds that Anderson has shown by clear

and  convincing  evidence  that  Smith’s  acts  were  not  genuinely  aimed  at  procuring  favorable

government action, the court must deny Smith’s motion; the court’s finding will not preclude the

parties from litigating any issues on the merits of their claims before the jury. Otherwise, the court

must grant Smith’s motion and dismiss Anderson’s claims against her.

¶ 85

¶ 86

III. CONCLUSION

For the reasons stated, we reverse the trial court’s order denying Smith’s motion to

dispose of Anderson’s claims and remand for the court to determine whether Anderson’s claims

are subject to dismissal under the Act. We express no opinion as to Smith’s counterclaims against

Anderson.

¶ 87

Reversed and remanded with directions.

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Anderson v. Smith, 2025 IL App (4th) 241076

Decision Under Review:

Appeal from the Circuit Court of Schuyler County, No. 18-L-2;
the Hon. Roger B. Thomson, Judge, presiding.

Attorneys
for
Appellant:

Attorneys
for
Appellee:

Erin  Wilson  Laegeler,  of  Wilson  Laegeler  Law  LLC,  of
Rushville, for appellant.

Dustin Clark, of Bougher, Krisher, Stuckart & Clark, Attorneys
at Law, P.C., of Macomb, for appellee.

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