Litigation Privilege Defeats Suit Against Law Firm

In Scully v. Novack & Macey, LLP, 2022 IL App (1st) 210319-U, the First District Appellate Court of Illinois affirmed a decision by lower courts to dismiss the allegations of slander of title and abuse of process. The Firm, Novack & Macey, represented Property Dynamics LLC in a complicated family feud about real property passed on to the family. During the 2018 litigation, the firm put a lis pendens on a property, at the instruction of its client. Lis pendens is a public document designed to allow third parties interested in a property to the existence of litigation affecting real property. In 2020, the Plaintiffs perused slander of title and abuse of process under due to the lis pendens filing affecting the price of the real property when it was sold for less than market value, seeking over $1 million in damages. 

The abuse of process clam was waived, as the Plaintiff failed to address it in his brief, thus forfeiting it under “Supreme Court Rule 341(h)(7) (“Points not argued are forfeited”); McCann v. Dart, 2015 IL App (1st) 141291, ¶ 19 (“Plaintiff did not argue the merits of his underlying claim in his opening brief and has, therefore, waived consideration of the merits on appeal”)” ¶ 25 

The slander of title claim was not dismissed under res judicata as in the lower court case, but rather dismissed under the absolute litigation privilege, derived from section 586 of the Restatement (Second) of Torts. As the court explains, “That section provides, “An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Restatement (Second) of Torts § 586 (1977). As this lis pendens was filed during earlier litigation of a Family Settlement Agreement (FSA), the court agreed that the attorneys had legally filed at the request of their clients, whom believed the real property may be set aside while litigating the FSA if a lis pendens were not filed, and this “furthered representation of their clients.” ¶ 45 Ultimately, the Court rejected both of the plaintiffs’ claims, holding the actions of the law firm within the bounds of absolute attorney privilege. 

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