Illinois Official Reports

Appellate Court

Ciolino v. Simon, 2020 IL App (1st) 190181

Appellate Court 

Caption

PAUL J. CIOLINO, Plaintiff-Appellant, v. ALSTORY SIMON, 

JAMES DeLORTO, TERRY A. EKL, JAMES G. SOTOS, MARTIN 

PREIB, WILLIAM B. CRAWFORD, ANITA ALVAREZ,

ANDREW HALE, and WHOLE TRUTH FILMS, LLC, DefendantsAppellees.

District & No. First District, First Division 

No. 1-19-0181

Filed March 16, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 18-L-0044; the 

Hon. Christopher E. Lawler, Judge, presiding.

Judgment Affirmed in part, reversed in part, and remanded.

Counsel on

Appeal

Jennifer Bonjean, of Bonjean Law Group, PLLC, of Brooklyn, New 

York, for appellant.

Phillip J. Zisook, of Schoenberg, Finkel, Newman & Rosenberg, LLC, 

of Chicago, for appellee Alstory Simon.

Steven B. Borkan, Timothy P. Scahill, Graham P. Miller, and Krista 

E. Stalf, of Borkan & Scahill, Ltd., of Chicago, for appellee James 

DeLorto.
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Jeremy N. Boeder and Harlene Gluck Matyas, of Tribler, Orpett & 

Meyer P.C., of Chicago, for appellee Terry A. Ekl.

Michael L. Resis and Ryan B. Jacobson, of SmithAmundsen, LLC, of 

Chicago, for appellee James G. Sotos.

James E. Thompson, Robert R. Arroyo, and Timothy M. Grace, of 

Gottreich Grace & Thompson, of Chicago, for appellee Martin Preib.

Perry W. Hoag and Mel Zhang, of Cameli & Hoag, P.C., of Chicago, 

for appellee William B. Crawford.

Eileen E. Rosen and Andrew J. Grill, of Rock, Fusco & Connelly, 

LLC, of Chicago, for appellee Anita Alvarez.

Steven P. Mandell, Keith E. Allen, and Brian D. Saucier, of Mandell 

Menkes LLC, of Chicago, for other appellees.

Panel PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, 

with opinion.

Justices Pierce and Walker concurred in the judgment and opinion.

OPINION

¶ 1 This case stems from one of the most famous murder cases in the recent history of our 

state. The background of the case is gripping. It is no real surprise then that the events 

surrounding the case have spurred a movie, a book, and other media attention. But that media 

attention is the reason the parties are before the court today.

¶ 2 Plaintiff Paul Ciolino is suing several defendants for defamation and other causes of action 

for the statements they made about his alleged involvement in framing a supposedly innocent 

man for murder. The allegedly defamatory statements attributed to defendants are found in a 

book and the movie it inspired. Despite that the case reads like a movie script, there has been 

no fairy-tale ending for anyone involved.

¶ 3 The subject of the appeal is a bit less engrossing than the overall subject matter of the case. 

Here we are called to decide whether Ciolino’s claims arising from the publication of the 

allegedly defamatory statements are barred by the statute of limitations. We hold that the 

claims against one defendant are time barred but that the remainder of the claims are not. 

Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
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¶ 4 I. BACKGROUND

¶ 5 In 1982, Jerry Hillard and Marilyn Green were murdered in Washington Park in Chicago. 

Anthony Porter was convicted for the murders and was sentenced to the death penalty. 

Professor David Protess and other members of Northwestern University’s Innocence Project 

took an interest in the case. Members of the Innocence Project reviewed evidence gathered by 

Porter’s defense attorney during the case, and they identified that another man, defendant 

Alstory Simon, was in the area of the murders close to the time that they were committed. The 

Innocence Project began to collect and evaluate evidence and, at some point, came to believe 

that Simon committed the murders, not Porter.

¶ 6 Plaintiff Paul Ciolino was employed as a private investigator and did work for the 

Innocence Project. Ciolino and another Innocence Project investigator traveled to Milwaukee 

to meet with Simon. Simon claims that Ciolino arrived at his home in Milwaukee, claiming to 

be a police officer from Illinois. Ciolino was armed with a handgun. He allegedly informed 

Simon that his team had developed evidence that pointed to Simon as the guilty party in the 

Washington Park murders. Simon was a drug addict, and he maintains that he was intoxicated 

at the time of Ciolino’s visit. 

¶ 7 Ciolino allegedly told Simon that he had secured sworn statements from Simon’s ex-wife 

Inez Jackson and from others in which they averred that Simon committed the murders. Ciolino 

showed Simon the statements. Ciolino also showed Simon a video that the Innocence Project 

had made using a paid actor. The actor in the video stated that he was an eyewitness to the 

murders and that he saw Simon kill Hillard and Green. Simon also viewed video of a news 

report in which his ex-wife, Inez Jackson, claimed that she was with Simon when he committed 

the murders in Washington Park. Simon maintains that Ciolino promised him that he would 

receive only a short prison sentence if he confessed and that he would receive large sums of 

money from book and movie deals because of the intense publicity of the case. 

¶ 8 As the meeting progressed, Ciolino allegedly informed Simon that he and his colleague 

were not actually police officers but that they were members of the Innocence Project. Simon 

claims that Ciolino then told him that Ciolino and Protess would secure a lawyer to represent 

him in the murder case and that they would do whatever else was necessary to ensure that he 

would receive no more than a couple years in jail if he confessed. Ciolino then allegedly 

informed Simon that the police were imminently on their way from Chicago to arrest him and 

that they were trying to help him, but that the only way Simon could avoid the death penalty 

was to provide a videotaped confession before the police arrived. Ciolino allegedly told Simon 

that confessing at that moment was his one and only chance to help himself. Simon provided 

a videotaped confession.

¶ 9 Armed with Simon’s videotaped confession and the statements from Simon’s ex-wife and 

her nephew, Walter Jackson, the Innocence Project undertook to free Porter from prison. After 

a petition was filed and the proceedings progressed, Porter’s conviction was vacated. The Cook 

County State’s Attorney simultaneously empaneled a grand jury that indicted Simon for the 

murders.

¶ 10 Ciolino allegedly followed through on his promise to secure an attorney to represent Simon. 

Simon, in fact, retained attorney Jack Rimland to represent him in the murder case. Jack 

Rimland was an attorney in Chicago that shared office space with Ciolino. Rimland 

purportedly convinced Simon to plead guilty by telling Simon that he needed to make the deal 

in order to avoid the death penalty or life in prison. Rimland, on Simon’s behalf, did not 
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challenge the confession that Simon gave to Ciolino, nor did he present any other evidence to 

the court, including the evidence that implicated Porter in the first place and led to his 

conviction. 

¶ 11 Simon further claims that Rimland told him to apologize to the victims’ families in order 

to make his confession seem legitimate. During the time Rimland was representing Simon, 

Rimland maintained contact with his officemate Ciolino. For example, Rimland presented an 

award to Ciolino and other Innocence Project members for the work they did to overturn 

Porter’s conviction even though he was concurrently representing Simon in a case for the same 

murders.

¶ 12 Simon eventually did plead guilty to the murders. He was sentenced to 37 years in prison. 

At his sentencing hearing, Simon apologized to the victims’ families. Simon continued to claim 

responsibility for the murders in a televised news interview after his guilty plea. Simon also 

wrote letters to several individuals, including to Anthony Porter, apologizing for committing 

the murders. Nonetheless, many people did not believe that Simon was responsible for the 

crimes. Another private investigator, defendant James DeLorto, who did not believe Simon’s 

confession and was skeptical of the Innocence Project’s involvement, independently began to 

investigate Simon’s case for the potential that he was innocent of the crimes.

¶ 13 Not surprisingly, the case generated significant publicity, including publicity generated by 

Ciolino and other members of the Innocence Project giving interviews and making statements 

to the press. Anthony Porter’s exoneration for the Washington Park murders led to Governor 

George Ryan calling for a moratorium on the death penalty in Illinois. 

¶ 14 Ciolino was interviewed on television following Simon’s conviction. Ciolino described the 

tactics he used in securing Simon’s confession. Ciolino acknowledged that he used a paid actor 

to make a video who identified Simon as the shooter. Ciolino stated that, after Simon was 

confronted with the video and other evidence, Simon just “gave up.” Ciolino stated that he and 

his partner “just bull rushed [Simon] and mentally he couldn’t recover.” Ciolino stated that, as 

a private investigator, “I don’t have any rules. The Supreme Court says I can lie, cheat, do 

anything I want, to get him to say what I want him to say.” Also in that vein, Protess published 

a book in which he explained how, on another occasion, Ciolino posed as Hollywood producer 

Jerry Bruckheimer and offered a witness a movie deal in exchange for the witness to change 

testimony he had previously given. 

¶ 15 Simon filed a pro se petition for postconviction relief claiming that his confession to 

Ciolino was involuntary and that he received ineffective assistance of counsel from Rimland. 

The court denied Simon’s pro se petition. 

¶ 16 Subsequently, defendants Terry Ekl and James Sotos undertook to represent Simon, and 

they filed a successive postconviction petition on his behalf. In his successive petition, Simon 

asserted an actual innocence claim and provided new evidence. The new evidence that Simon 

provided in support of his petition was that two of the witnesses that had implicated Simon in 

the murders, his ex-wife Inez Jackson and her nephew Walter Jackson, recanted their 

statements. 

¶ 17 Inez Jackson and Walter Jackson explained that they had implicated Simon based on 

promises from David Protess of the Innocence Project. Inez Jackson reportedly had serious 

drug and alcohol problems and was allegedly given food, cash, alcohol, and other things of 

value by Protess and his team. In an affidavit, Walter Jackson admitted that he provided false 

evidence against Simon for money and for help with his own legal problems and that he 
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encouraged Inez Jackson, his aunt, to also provide false testimony in order to help with his 

legal troubles. It was additionally brought to light for the first time in Simon’s successive 

postconviction proceedings that Inez Jackson had provided a statement to the police when they 

were originally investigating the murders in which she stated that she was with Simon the night 

of the murders and that he did not commit them. 

¶ 18 Some concerns were raised about the Innocence Project’s conduct in this case and in other 

cases. After Northwestern University conducted a court-ordered internal investigation into the 

controversial journalistic and investigative practices of the Innocence Project under Protess, 

he was separated from the university. Once the controversial practices of the Innocence Project 

were revealed, defendant Anita Alvarez, the Cook County State’s Attorney, agreed to revisit 

Simon’s case. After a yearlong investigation in which more than 100 witnesses were 

interviewed, the state’s attorney’s office concluded that, in light of the unlawful investigative 

conduct by Ciolino and Protess and the inadequate representation that Simon received, the case 

was so tainted and the convictions so called into doubt that Simon’s convictions could not 

stand. The state’s attorney’s office moved to formally abandon all charges against Simon, and 

the circuit court granted the motion and vacated Simon’s convictions. Simon was released from 

prison after serving 15 years.

¶ 19 At a news conference announcing the decision to drop the charges against Simon, Alvarez, 

as State’s Attorney, stated that the “investigation by David Protess and his team involved a 

series of alarming tactics that were not only coercive and absolutely unacceptable by law 

enforcement standards, they were potentially in violation of Mr. Simon’s constitutionally 

protected rights.” Alvarez continued, expressing that, in her view, “the original confession, 

made by Alstory Simon and the coercive tactics that were employed by investigator Ciolino 

have tainted this case from the outset and brought into doubt the credibility of many important 

factors.” She concluded that “[t]he bottom line is that the investigation conducted by Protess 

and private investigator Ciolino, as well as the subsequent legal representation of Mr. Simon, 

were so flawed that it is clear that the constitutional rights of Mr. Simon were not scrupulously 

protected as our law requires. This conviction therefore cannot stand.” 

¶ 20 Thereafter, Simon sought a certificate of innocence. The circuit court denied Simon’s 

petition for a certificate of innocence under the statute governing such proceedings because the 

statute requires the petitioner to prove, among other things, that the petitioner did not, by his 

own conduct, voluntarily bring about his conviction. See 735 ILCS 5/2-702(g)(4) (West 2016). 

The circuit court found that Simon had, in fact, brought about his own conviction by confessing 

and by pleading guilty. However, the circuit court went further, finding that Simon “had 

certainly satisfied his burden” of demonstrating his innocence by a preponderance of the 

evidence. 

¶ 21 In explaining its finding that Simon had demonstrated his innocence, the circuit court stated 

that it accepted Simon’s allegation that he had gone along with Protess and Ciolino’s plan to 

free Porter and to frame himself. The circuit court further accepted that Simon had done so 

based upon Ciolino’s promises that he would receive a short prison sentence and would receive 

large sums of money when he was freed from prison with Protess’s assistance. The circuit 

court credited Simon’s allegations that Ciolino had impersonated a police officer, that Simon 

was threatened with the death penalty if he did not confess, and that Ciolino promised Simon 

money from book and movie deals and a short prison sentence if he confessed. In conclusion, 
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the court noted, “it is more likely true than not that [Simon] is actually innocent of the murders 

of Hillard and Green.”

¶ 22 On February 17, 2015, Simon filed a federal civil rights lawsuit for malicious prosecution 

against Ciolino, Northwestern University, David Protess, and Jack Rimland. In his suit, Simon 

sought damages for the parties’ respective roles in his allegedly wrongful conviction. The 

allegations made in Simon’s federal suit are consistent with those set forth above. 

¶ 23 About three years before Simon was released from prison, in the spring of 2011, defendant 

William Crawford wrote a document he titled “Chimera” that set forth his narrative that Simon 

was framed by the Innocence Project. “Chimera” was not officially published, but Crawford 

claims that he uploaded a copy of it to the Internet. Then, while Simon’s federal case against 

the Innocence Project parties was ongoing, on June 9, 2015, Crawford published a book titled 

Justice Perverted: How the Innocence Project of Northwestern University’s Medill School of 

Journalism Sent an Innocent Man to Prison (hereinafter Justice Perverted). Justice Perverted

has the same subject matter and has many verbatim passages from “Chimera.” The book makes 

the case that Ciolino, Protess, and others framed Simon for the Washington Park murders in 

order to secure the release of Porter, who was on death row. The book further makes the case 

that the Innocence Project had a more Machiavellian motive for securing Porter’s release: to 

put an end to the death penalty in Illinois. 

¶ 24 Crawford’s book, Justice Perverted, inspired a documentary film made by defendants 

Andrew Hale and Whole Truth Films titled “A Murder in the Park.” The documentary features 

interviews and commentary from defendants Simon, Hale, Ekl, Sotos, DeLorto, Crawford, and 

Alvarez. The documentary has the same theme as Justice Perverted, and the film’s subjects 

claim that Ciolino engaged in a variety of crimes to secure a false confession from Simon. Both 

the book and the film track closely to the allegations made by Simon in his postconviction 

proceedings, some of which have been found credible in the courts and some of which have

been admitted by Ciolino. The film’s thesis is that Protess and the Innocence Project wanted 

to end the death penalty in Illinois and that they were willing to use any means to accomplish 

that objective—including framing an innocent man for murder. 

¶ 25 Ciolino has his own theory about the motives behind the individuals on the other side of 

the dispute. Ciolino contends that the whole effort to free Simon was an undertaking aimed at 

discrediting the Innocence Project and the wider wrongful conviction movement as a whole. 

The narrative Ciolino advances begins with defendant DeLorto. DeLorto has a law 

enforcement background and has made negative statements about the work of Protess in the 

past. During the course of his work as a private investigator, DeLorto worked with attorneys 

Ekl and Sotos. Ciolino maintains that Ekl and Sotos undertook to represent Simon, with 

DeLorto as their investigator, “with any eye toward using the case to discredit the Porter 

exoneration and smear David Protess and Northwestern University.” 

¶ 26 Ciolino contends that defendant Crawford became involved with DeLorto and with 

Simon’s lawyers, Ekl and Sotos, and wrote Justice Perverted to disseminate their false 

narrative that Simon was framed by the Innocence Project. Ciolino further contends that 

DeLorto and his cohorts enlisted defendant Martin Preib to help them combat the wrongful 

conviction movement. Preib began to author a blog titled “Crooked City: The Blog About the 

Wrongful Conviction Movement.” Ciolino claims that Preib used the blog to circulate false 

and misleading narratives about exonerations, including the Porter exoneration. It is Ciolino’s 
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position that Crawford’s book, Hale’s documentary, and Preib’s blog were all conceived as 

part of a conspiracy to disrupt the “innocence industry.” 

¶ 27 Similarly, Ciolino contends that Anita Alvarez dismissed the charges against Simon 

because she harbored resentment toward Protess and the Innocence Project because of her 

supposed pro-law-enforcement leanings and because Protess had been critical of her in the 

past. Ciolino opines that Alvarez had been nationally embarrassed in another case in which 

Northwestern University was involved and that Alvarez had become dead set on doing 

anything she could to discredit Protess. Ciolino goes as far as to say that Alvarez “release[d] a 

murderer to settle a score.”

¶ 28 Defendants Hale and Whole Truth Film’s documentary “A Murder in the Park” premiered 

on November 17, 2014, at DOC NYC in New York. DOC NYC bills itself as “America’s 

largest documentary film festival.” Several defendants in this case attended the film’s 

premiere, and around this time, several publications of varying renown wrote about the film’s 

premiere or the film’s existence. “A Murder in the Park” was also shown at the Cleveland 

International Film Festival, which took place from March 24 to 26 in 2015. 

¶ 29 On April 27, 2016, Ciolino filed a counterclaim in Simon’s federal case. Ciolino 

countersued Simon, and he interposed claims against Alvarez, Hale, Ekl, Sotos, DeLorto, 

Preib, Crawford, and Whole Truth Films. Ciolino sought damages against the defendants 

therein for defamation, false light, intentional infliction of emotional distress, and conspiracy. 

Ciolino’s claims stemmed from the statements those defendants made in “A Murder in the 

Park” and Justice Perverted. Ciolino contends that those publications advance “an outrageous 

and demonstrably false claim” that Protess and Ciolino framed Simon, an innocent man, “so 

that death row inmate Anthony Porter could become a ‘poster boy’ for the bid to end executions 

in Illinois.” 

¶ 30 The federal district court dismissed Ciolino’s counterclaim on January 3, 2017. The district 

court found that Ciolino’s counterclaim was not a compulsory counterclaim under the Federal 

Rules of Civil Procedure (see Fed. R. Civ. P. 13(a)) and that the court did not have 

supplemental jurisdiction over the counterclaim because the “counterclaim [did] not arise out 

of the same transaction or occurrence as Simon’s malicious prosecution claim.” Simon v. 

Northwestern University, No. 15-CV-1433, 2017 WL 25173, at *5 (N.D. Ill. Jan. 3, 2017). The 

court noted that, even if it could exercise supplemental jurisdiction over the counterclaim, it 

would decline to do so. Id.

¶ 31 Subsequently, Simon reached a settlement for his malicious prosecution claim with 

Northwestern University and Protess. Simon then voluntarily dismissed Ciolino as a defendant. 

¶ 32 A day less than a year after Ciolino’s counterclaim in Simon’s federal case was dismissed, 

on January 2, 2018, Ciolino filed this case. Ciolino raises the same claims against the same 

parties in this case as he did in his counterclaim in federal court. This case is, in substance, a 

refiling of the counterclaim that was dismissed for lack of jurisdiction in federal court. 

¶ 33 In this case, count I of Ciolino’s complaint is for defamation against all defendants except 

for Preib. That count is really based upon all of the content and statements contained in “A 

Murder in the Park.” Count II is for defamation against Crawford only. That count is based 

upon Crawford’s book Justice Perverted and the statements he makes therein. Count III is for 

defamation against Preib only. That count is based upon the statements Preib made on his blog 

“Crooked City.” Count IV is for false light publicity against all defendants. Count V is for 
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intentional infliction of emotional distress against all defendants. And count VI is for civil 

conspiracy and seemingly alleges the involvement of all defendants.

¶ 34 Defendants all moved to dismiss the respective claims against them. The trial court granted 

all the motions to dismiss, finding that the claims asserted by Ciolino are time barred. Ciolino 

filed this appeal.

¶ 35 II. ANALYSIS

¶ 36 The circuit court granted all defendants’ motions to dismiss on the basis that the claims 

Ciolino filed against them are barred by the statute of limitations. Defendants all brought their 

motions to dismiss, at least in part, under section 2-619 of the Code of Civil Procedure, which 

provides for the involuntary dismissal of a claim based upon certain defects or defenses. See 

735 ILCS 5/2-619 (West 2016).

¶ 37 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint. See id.

The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily 

proved issues of fact at the outset of the litigation. Jones v. Brown-Marino, 2017 IL App (1st) 

152852, ¶ 20. Although a section 2-619 motion to dismiss admits the legal sufficiency of a 

complaint, it raises defects, defenses, or some other affirmative matter appearing on the face 

of the complaint or established by external submissions that defeat the plaintiff’s claim. Ball 

v. County of Cook, 385 Ill. App. 3d 103, 107 (2008). The failure to file a claim within an 

applicable statute of limitations is one of the proper bases for dismissal under section 2-619. 

See 735 ILCS 5/2-619(a)(5) (West 2016). We review the trial court’s decision to grant a motion 

to dismiss de novo. In re Marriage of Wojcik, 2018 IL App (1st) 170625, ¶ 17.

¶ 38 To begin, it is helpful to set forth the relevant dates that provide a roadmap for this appeal—

providing the ultimate criteria for determining whether the claims are time barred. The first 

relevant date for purposes of the defamation case is Crawford’s completion of “Chimera.” That 

document was completed in spring 2011. “A Murder in the Park,” the documentary film at 

issue in the case, premiered to an audience for the first time in New York on November 17, 

2014. Justice Perverted was published June 9, 2015. The relevant blog posts allegedly written 

by Preib were posted between June 2015 and April 2016. Ciolino’s federal court counterclaim 

was filed April 27, 2016, and dismissed on January 3, 2017. And Ciolino’s complaint in this 

case was filed January 2, 2018.

¶ 39 We note here that the operative filing date for Ciolino’s claims in this case is April 27, 

2016. The reason that date is the operative date is because the Illinois savings statute is 

applicable. The Illinois savings statute states that, where an action is dismissed by a United 

States District Court for lack of jurisdiction, then, regardless of whether the statute of 

limitations has run during the pendency of the action, the plaintiff may commence a new action 

in state court within one year of the dismissal or within the remaining period of limitation, 

whichever is greater. 735 ILCS 5/13-217 (West 2016); see also Bryson v. News America 

Publications, Inc., 174 Ill. 2d 77, 105-06 (1996). Ciolino timely refiled his claims in state court 

within one year of the claims being dismissed for lack of jurisdiction in federal court. So the 

question before us now is whether the claims were timely filed when Ciolino filed them in 

federal court on April 27, 2016.

¶ 40 The main issue before us is whether defendants are entitled to dismissal on the basis that 

“A Murder in the Park” premiered more than a year before Ciolino filed his claims in federal 

court. For purposes of logical flow, however, we begin with Ciolino’s claims against Crawford 
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for his publication of Justice Perverted. We will then address the primary issue on appeal—

whether the defamation claims accrued when “A Murder in the Park” premiered or at any time 

thereafter but more than a year before Ciolino filed suit. Then, because the claims against 

Alvarez require an analysis separate from that required for the claims against the other 

defendants, we will turn to the claims against her which relate to comments she made in a news 

conference that were re-aired in “A Murder in the Park.” We will then address defendant 

Preib’s arguments and all of the other defendants’ alternative arguments regarding why we 

should affirm. Finally, we will move to the propriety of the trial court’s dismissal of Ciolino’s 

claims for intentional infliction of emotional distress and conspiracy.

¶ 41 A. Defamation and False Light

¶ 42 Ciolino’s principal claims are for defamation and false light publicity. In Illinois, the statute 

of limitations for a claim for defamation is one year from the point that the cause of action 

accrued. 735 ILCS 5/13-201 (West 2016); Moore v. People for the Ethical Treatment of 

Animals, Inc., 402 Ill. App. 3d 62, 73 (2010). Generally, in defamation cases, the cause of 

action accrues, and the statute of limitation begins to run, on the date the allegedly defamatory 

statement is published. Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, 

Inc., 61 Ill. 2d 129, 131-32 (1975). Similarly, an action for false light publicity has a one-year 

statute of limitations. 735 ILCS 5/13-201 (West 2016); Ludlow v. Northwestern University, 79 

F. Supp. 3d 824, 841 (N.D. Ill. 2015). False light publicity claims accrue when the statements 

are made. 735 ILCS 5/13-201 (West 2016).

¶ 43 1. Crawford—Justice Perverted

¶ 44 “Chimera,” its full title apparently being “Chimera—A Story Based on the Public Record,” 

was written and completed by William Crawford in spring 2011. Subsequently, Crawford 

wrote a full-length book on the subject titled Justice Perverted: How the Innocence Project at 

Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison, which 

was published on June 9, 2015. Crawford maintains that most of the statements in Justice 

Perverted that Ciolino alleges to be defamatory are verbatim statements from “Chimera” and 

that only minor alterations have been made to those statements that are not exact reproductions. 

Thus, Crawford argues, spring 2011 should be the point at which Ciolino’s claims accrued for 

defamation based on the allegedly defamatory statements in Justice Perverted because that is 

the point at which the statements were published in “Chimera.” 

¶ 45 For defamation claims, Illinois applies the “single publication rule.” The single publication 

rule is that “[n]o person shall have more than one cause of action for damages for libel or 

slander or invasion of privacy or any other tort founded upon any single publication or 

exhibition or utterance.” 740 ILCS 165/1 (West 2016). Under this rule, defamation and privacy 

actions are complete at the time of the first publication, and any subsequent appearances or 

distributions of copies of the original publication are of no consequence to the creation or 

existence of a cause of action. Blair v. Nevada Landing Partnership RBG, LP, 369 Ill. App. 3d 

318, 324-25 (2006).

¶ 46 Crawford points out that Ciolino’s own allegations in this case reveal that Crawford 

“circulated [‘Chimera’] to virtually every media outlet in the city.” Crawford suggests that the 

statements that Ciolino alleges to be defamatory were, thus, published to those news outlets 

when Crawford was trying to have his story printed. We have held that any act by which a 
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defamatory matter is communicated to someone other than the person defamed is a 

“publication.” Missner v. Clifford, 393 Ill. App. 3d 751, 763 (2009) (citing Restatement 

(Second) of Torts § 577 cmt. a, at 201-02 (1977)). On this basis, Crawford posits that the 

statements were “published” to those to whom he circulated “Chimera” with the purpose of 

trying to obtain a wider circulation. 

¶ 47 We reject Crawford’s assertion that the statements in “Chimera” were, as a matter of law, 

published when he allegedly shopped his story to media outlets in the city. There is no evidence 

that anyone at those news outlets even read “Chimera,” let alone that they read the specific 

statements that Ciolino now claims are defamatory. Whether a publication has occurred at all 

is a question for the jury. Id. (citing Restatement (Second) of Torts § 617 cmt. a, at 315 (1977)). 

The only support for Crawford’s position that “Chimera” was seen by anyone other than him 

is Ciolino’s allegation that Crawford attempted to have the story disseminated by media outlets 

in the city. There is no evidentiary support from Crawford, including even an affidavit from 

him, to support a finding that he published “Chimera” or any individual statement therein to 

anyone. 

¶ 48 The single publication rule simply does not apply here. The supposed republication in this 

case is not really a republication at all; it was the statements’ actual publication. Because there 

is a question regarding whether “Chimera” and the statements therein were ever “published,” 

the allegedly defamatory statements in Justice Perverted cannot be deemed to be re-airings of 

any previously published defamatory statements such that they might benefit from the single 

publication rule. Crawford even acknowledges, as he must, the many differences between 

“Chimera” and Justice Perverted. Justice Perverted is far from a mere republication of 

“Chimera”; it is a new, independent work. As far as the record in this case is currently 

constructed, there has only been one publication of the allegedly defamatory statements in 

Justice Perverted, and that publication occurred when Justice Perverted was published. 

¶ 49 Crawford also states that he “placed [Chimera] on the internet” in 2011 when he completed 

it. He argues that by putting “Chimera” on the Internet in 2011 he published the statements 

therein such that the statute of limitations for any claims related to those statements should 

have begun to run in 2011. However, Crawford presented no evidence in support of his section 

2-619 motion to dismiss that he, in fact, posted “Chimera” to the Internet in 2011. All we have 

is Crawford’s own, unsworn assertion that he put the document on the Internet: he does not 

detail where he posted it, when it was posted, how it could be accessed, or any other details 

about his supposed posting of the document. At this stage, his unsupported assertions are 

insufficient to entitle him to dismissal. Moreover, we do not even know if anyone read it. A 

communication of the allegedly defamatory statement to a third party satisfies the publication 

requirement. Popko v. Continental Casualty Co., 355 Ill. App. 3d 257, 264 (2005). But simply 

making a material available on some corner of the Internet does not mean that the material is 

“published” for purposes of a defamation claim. Crawford’s argument on this point raises more 

questions than it answers—questions not suitably resolved on a motion to dismiss.

¶ 50 2. Movie Premiere as Accrual Date

¶ 51 All defendants other than Preib in some way argue that Ciolino’s claims against them 

accrued when “A Murder in the Park” premiered at a film festival in New York. “A Murder in 

the Park” premiered on November 17, 2014, at DOC NYC in New York. Defendants argue 

that Ciolino was required to file claims arising from statements made in “A Murder in the Park” 
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within one year of that film’s premiere such that his April 27, 2016, filing was untimely. 

Ciolino, meanwhile, argues that he did not know, nor could he reasonably have known, about 

the film’s premiere in New York. He argues that he had one year to file his claims relating to 

“A Murder in the Park” after it premiered in Chicago on July 15, 2015, so his April 27, 2016 

filing was timely.

¶ 52 As stated above, the statute of limitations for defamation and false light claims generally 

accrues at the point that the statements are published. Moore, 402 Ill. App. 3d at 73. While we 

have previously acknowledged that there is some uncertainty about what circumstances should 

cause us to apply the discovery rule in defamation cases, we have explained that we will not 

ordinarily apply the discovery rule in defamation cases unless the publication is hidden, 

inherently undiscoverable, or inherently unknowable. Peal v. Lee, 403 Ill. App. 3d 197, 207 

(2010); see also Tirio v. Dalton, 2019 IL App (2d) 181019, ¶ 69. Defamation via mass-media 

publications, including magazines, books, newspapers, radio, and television programs are not 

subject to the discovery rule because they are readily accessible to the general public. See Tom 

Olesker, 61 Ill. 2d at 137-38.

¶ 53 DOC NYC, where “A Murder in the Park” premiered, bills itself as “America’s largest 

documentary film festival.” Several articles were written in publications about the premiere of 

“A Murder in the Park” near the time that the film premiered. For example, before or at the 

time the film premiered, marketing and promotional materials for “A Murder in the Park” 

appeared on social media and on the websites of the national publications Variety and Fox 

News. Several articles mentioning the film were also posted on the websites of local 

publications. Christopher Rech, the producer of “A Murder in the Park,” submitted a 

declaration in support of the motions to dismiss stating that the film was not concealed from 

the public in any way and, in fact, the film was actively marketed and advertised in order to 

maximize public interest in the film. 

¶ 54 Although Illinois courts have sometimes implied that the discovery rule does not apply to 

defamation claims because the date of publication is the date that matters, it is clear that our 

supreme court has not ascribed to such a bright-line rule. In fact, in the supreme court’s seminal 

case on the issue, Tom Olesker, the court had “no hesitation” in applying the discovery rule to 

hold that the plaintiff’s cause of action accrued when the plaintiff knew or should have known 

about the existence of the allegedly defamatory material. Id. at 136-37. 

¶ 55 The Tom Olesker court distinguished the case before it from those in which the alleged 

defamation was easily discoverable due to its mass media publication. Id. at 137-38. But when 

a plaintiff does not know and cannot reasonably know about the existence of material defaming 

him, the cause of action accrues at the time the plaintiff knows or should know that the 

defamatory material exists. Id. at 136-37. The question before us is not whether the discovery 

rule can be applied to a defamation claim, the question is whether, under the circumstances 

presented, the nature of the publication was such that knowledge sufficient to trigger the statute 

of limitations should be imputed to Ciolino because of the putative availability of the 

information.

¶ 56 The parties’ dispute, thus, turns on whether the premiere of “A Murder in the Park” in New 

York, along with the attendant press coverage, was a sufficiently prominent medium that it 

could be equated to a mass media publication that would proscribe the application of the 

discovery rule. We find that, when construing the record in favor of Ciolino and viewing the 

circumstances in a light most favorable to him, there is at least a question of fact regarding 
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whether the film’s premiere in New York was sufficient to start the limitations clock on his 

claims.

¶ 57 In Tom Olesker, the supreme court’s comment on when the discovery rule would not be 

applicable for a defamation claim was for situations where “the publication has been for public 

attention and knowledge and the person commented on, if only in his role as a member of the 

public, has had access to such published information.” Id. at 138. Apparently neither Ciolino 

nor anyone other than those in the theater on November 17, 2014, had access to the allegedly 

defamatory statements that were published that day, or at least that is an unresolved fact 

question. The film and its specific content were not released to the general public in any way. 

Unlike mass media publications that are available for anyone to obtain at any time, the premiere 

of “A Murder in the Park” was for a relatively small number of people at an event 800 miles 

away from the allegedly defamed subject. The content of the film was undiscoverable to any 

unwitting member of the general public at that time, including Ciolino. He could not have 

known that he was harmed at that time. 

¶ 58 Even in Winrod v. Time, Inc., 334 Ill. App. 59 (1948), on which defendants rely for support, 

the court’s holding that the statute of limitations began running immediately upon publication 

was based upon the fact that that the allegedly defamatory material was circulated to the 

general public and was widely available. The Life magazine at issue in that case “appeared for 

sale on newsstands throughout the country” with “thousands of copies widely distributed,” so 

the court held that the statute of limitations began to run “ ‘upon the first publication, when the 

issue [went] into circulation generally.’ ” Id. at 60-64. But Winrod was still based on the fact 

that there was a “general release of the magazine[,] *** completed throughout the nation.” Id.

at 65; see also 54 C.J.S. Limitations of Actions § 229 (2010) (“Where a cause of action is based 

upon a defamatory matter appearing in a publication, the statute of limitations commences to 

run upon the first general distribution of the publication to the public ***.” (Emphasis 

added.)).

¶ 59 At this stage of the case, where all inferences must be drawn in his favor, Ciolino is situated 

much more like the plaintiff in Tom Olesker than he is the plaintiff in Winrod. When we take 

plaintiff’s allegations as true and view the evidence in a light most favorable to him, Ciolino 

can be more neatly analogized to the allegedly defamed plaintiff in Tom Olesker, who did not 

and could not have known about the publication of the material about him, than to the plaintiff 

in Winrod who was allegedly defamed through the circulation of thousands of articles on a 

national stage. The film in this case was not shown to the “general public” when it premiered 

as some defendants suggest. It was shown to a small audience in one city and was available for 

a couple of hours.

¶ 60 Even the viewers of “A Murder in the Park” at the film festival in New York are more like 

the subscribers at issue in Tom Olesker than they are like the general public in Winrod. Those 

who saw “A Murder in the Park” at the film festival were a small, select group of people. The 

select group of people is from another small subset of the population—attendees of the 2014 

DOC NYC film festival. According to Ciolino, if the film only showed that one time, he very 

likely would have never learned of its existence. 

¶ 61 As far as we can tell from the record, even if Ciolino wanted to see “A Murder in the Park” 

before it premiered in Chicago, he would have had no reasonable way to do so. And that is 

among the litany of factual issues that are currently unresolved. Defendants stressed during the 

oral argument in this case that we should not even look to the discovery rule because the film 
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was not hidden and its existence was not inherently unknowable. Even in that context, 

however, factual considerations may operate to preclude the dismissal of a plaintiff’s claim. 

See Mitsias v. I-Flow Corp., 2011 IL App (1st) 101126, ¶¶ 29, 52 (a limitations period for a 

plaintiff’s cause of action should generally not begin to run and expire at a time when the injury 

is unknowable); United States v. Kubrick, 444 U.S. 111, 116 (1979) (where a plaintiff’s cause 

of action might be undiscoverable through reasonable diligence, the limitations period may be 

tolled). All inferences must be drawn in Ciolino’s favor at this stage of the case, and defendants 

have not presented evidence on all points to counteract the effect of those inferences. 

¶ 62 When we are dealing with the statute of limitations, if only one conclusion can be drawn 

from the undisputed facts, the question of the timeliness of the plaintiff’s complaint is for the 

court to decide; otherwise it is a question of fact. Heredia v. O’Brien, 2015 IL App (1st) 

141952, ¶ 24. We cannot say, as a matter of law, that the allegedly defamatory statements at 

issue here were “easily discovered, and delivered to a mass sector of the public” (Blair, 369 

Ill. App. 3d at 326) nor that the circumstances are otherwise such that any claims arising from 

the allegedly defamatory statements must have accrued immediately when the film was 

screened in New York. See Gadson v. Among Friends Adult Day Care, Inc., 2015 IL App (1st) 

141967, ¶ 14 (a section 2-619 motion to dismiss seeks a summary disposition when a plaintiff’s 

claim is defeated as a matter of law or on the basis of easily proven facts). And even though 

the existence of the film was not necessarily hidden, there are questions about what Ciolino 

could have possibly discovered even if he was completely diligent. The evidence currently in 

the record does not establish what Ciolino could have known about the film and the specific 

statements therein or when he could have learned about those matters or otherwise gained 

sufficient knowledge to take action on the claims asserted here.

¶ 63 We are aware of the fact that, after its premiere, “A Murder in the Park” was sold to 

Showtime and has been broadcast nationally and become available on several nationwide 

streaming services. A nationally available movie or television program is tantamount to the 

nationwide circulation of a magazine like in Winrod and would undoubtedly cause the statute 

of limitations to run. But Ciolino filed his claim within one year of “A Murder in the Park” 

having any national run.

¶ 64 One of the stated reasons the supreme court had “no hesitation” in applying the discovery 

rule in Tom Olesker was to prevent cases where plaintiffs were “silently wronged.” Tom 

Olesker, 61 Ill. 2d at 136-37. A ruling in favor of defendants here would promote silent wrongs 

in the future rather than preventing them. People would have to be timelessly devoted to 

searching out whether anyone was spreading harmful untruths about them anywhere in the 

world. The statute of limitations is supposed to compel plaintiffs to act reasonably to discover 

harms against them. Statute of limitations jurisprudence revolves around the idea that, when a 

person has sufficient information or is deemed as a matter of law to have such information, 

then he must act. If a plaintiff turns a blind eye to harms against him, he can lose his cause of 

action. If a plaintiff should discover some harm against him, but does not, then he can lose his 

cause of action. But the statute of limitations is not intended to serve as a refuge for defendants 

in instances in which a plaintiff does not act solely because he does not and could not 

reasonably discover a harm against him. 

¶ 65 We also must draw a distinction between the publicity defendants generated with an eye 

toward drawing attention to the film itself on the one hand and the ability to know about the 

allegedly defamatory statements therein on the other. In the cases where the mass media 
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exception has been recognized, it is because the allegedly defamatory statements themselves 

were on display for all to view. Here, knowledge of the film’s existence is not the same as 

knowledge of the statements therein. So even if defendants drew attention to the film itself to 

generate publicity and viewership, that does not mean, as a matter of law, that Ciolino must be 

charged with knowledge about the specific statements made about him in the film. 

¶ 66 Courts have applied the discovery rule on a case-by-case basis, weighing the relative 

hardships of applying the rule to both plaintiffs and defendants. Hermitage Corp. v. 

Contractors Adjustment Co., 166 Ill. 2d 72, 78 (1995). As has been recognized repeatedly, the 

purpose of the statute of limitations is to discourage the presentation of stale claims and to 

encourage diligence in the bringing of actions. Sundance Homes, Inc. v. County of Du Page, 

195 Ill. 2d 257, 265-66 (2001). At this point, there is no claim of any want of diligence on the 

part of the plaintiff in this case, nor is there any assertion that there are discernable increases 

in problems of proof so far as defendants are concerned. See Tom Olesker, 61 Ill. 2d at 133. 

We think there would be a significant hardship on plaintiffs if we were to enforce, as a matter 

of law, a duty to discover and sue for any potentially defamatory statements made anywhere 

on earth within a year, regardless of the plaintiff’s ability to learn about the statements. At least 

in this case, we see no similar significant hardship on a defendant that might arise due to the 

passage of time. 

¶ 67 When the record is construed in Ciolino’s favor, diligence was shown here. Ciolino filed 

his claims within 19 months of the New York premiere and within 9 months of the Chicago 

premiere. There is no indication that Ciolino was sitting on his rights. Ciolino filed these claims 

two months after the documentary aired nationally on Showtime. In this case, the interests of 

justice and the interest in preventing stale claims would not be furthered by barring Ciolino’s 

claims on limitations grounds. 

¶ 68 This case is also different than some of the cases discussed by the parties in which a court 

was tasked with determining whether the statute of limitations accrues simply by virtue of the 

allegedly defamatory statement being posted online. Here, only references to the film were 

made online, on social media, and in the news articles that reference the premiere of the film. 

The articles discuss the subject matter of the film to varying degrees, but none of the articles 

carry the specific statements that Ciolino claims to be defamatory. The film itself and the 

allegedly defamatory statements themselves were not available online or to the public 

generally until much later, by which time plaintiff sued within one year. Accordingly, based 

on the record as it is currently developed, we find that Ciolino’s claims for defamation did not, 

as a matter of law, accrue when the film premiered in New York.

¶ 69 3. Alvarez—Press Conference

¶ 70 Defendant Anita Alvarez argues that Ciolino’s claims against her are time barred because 

they are based on comments that she made at a televised news conference on October 30, 2014. 

Ciolino’s claim for defamation against Alvarez is for the inclusion of certain statements she 

made at a press conference where the footage was reproduced in “A Murder in the Park.” 

However, because the allegedly defamatory statements are simply a republication of publicized 

statements that Alvarez made more than a year before Ciolino filed suit, we agree that the 

claims against Alvarez are time barred.

¶ 71 The allegedly defamatory statements that Ciolino claims Alvarez made in “A Murder in 

the Park” were simply clips from a news conference she held on October 30, 2014. The news 
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conference was widely reported upon in Chicago and nationally when it occurred. Alvarez did 

not appear in “A Murder in the Park” to give any new commentary or make any other 

statements about the case or about Ciolino. 

¶ 72 At the news conference announcing the abandonment of charges against Simon, Alvarez 

stated that the “investigation by David Protess and his team involved a series of alarming 

tactics that were not only coercive and absolutely unacceptable by law enforcement standards, 

they were potentially in violation of Mr. Simon’s constitutionally protected rights.” Alvarez 

continued, expressing that, in her view, “the original confession, made by Alstory Simon and 

the coercive tactics that were employed by investigator Ciolino have tainted this case from the 

outset and brought into doubt the credibility of many important factors.” She concluded that 

“[t]he bottom line is that the investigation conducted by Protess and private investigator 

Ciolino, as well as the subsequent legal representation of Mr. Simon, were so flawed that it is 

clear that the constitutional rights of Mr. Simon were not scrupulously protected as our law 

requires. This conviction therefore cannot stand.” The “A Murder in the Park” filmmakers 

included those clips in the film.

¶ 73 The press conference Alvarez held was reported upon by every major Chicago news 

organization the day that it happened. It was also reported upon by national news organizations 

such as the Associated Press, USA Today, and Reuters. Both local and national news articles 

about the press conference quote Alvarez’s allegedly defamatory statements about Ciolino, at 

least in part. The statements were made in Chicago. In fact, on the day of Alvarez’s news 

conference, Ciolino released a statement in response. See, e.g., Sarahtr, In Stunning Reversal, 

Alstory Simon, Convicted in Double Murder, Released From Custody, Chi. Sun-Times (Oct. 

30, 2014), https://chicago.suntimes.com/2014/10/30/18422250/in-stunning-reversal-alstorysimon-convicted-in-double-murder-released-from-custody [https://perma.cc/SRX7-NSNH]. 

In the wake of the backlash of Simon’s release and the criticism of his work, Ciolino replied 

that he still believed Porter was innocent. Ciolino stated that he stood by his work, explaining 

that “Mr. Simon confessed to a Milwaukee TV reporter, his own lawyer and others since he 

confessed to me. You explain that.” Id. Ciolino also reiterated his belief that, “[b]ut for the 

work we did together with Northwestern and the students, Porter’s life would have been taken.” 

¶ 74 Unlike the claims against Crawford for Justice Perverted, the claims based on comments 

Alvarez made at the news conference are subject to the single publication rule. The single

publication rule is that “[n]o person shall have more than one cause of action for damages for 

libel or slander or invasion of privacy or any other tort founded upon any single publication or 

exhibition or utterance.” 740 ILCS 165/1 (West 2016). Under this rule, defamation and privacy 

actions are complete at the time of the first publication, and any subsequent appearances or 

distributions of copies of the original publication are of no consequence to the creation or 

existence of a cause of action. Blair, 369 Ill. App. 3d at 324-25. Ciolino’s claims against 

Alvarez accrued on October 30, 2014, and the rebroadcast of video clips from the news 

conference in “A Murder in the Park” cannot, as a matter of law, create a new cause of action.

¶ 75 It is obvious that Ciolino knew about Alvarez’s press conference and the statements made 

therein. He responded to them directly in a publicly released statement the same day. Both 

local and national news outlets reported on Ciolino’s statement. The fact that Alvarez’s 

statements were later reproduced in “A Murder in the Park” is insufficient to give rise to a new 

cause of action. Alvarez is not even the one who reproduced the statements. Therefore, because 

Alvarez’s allegedly defamatory statements were made on October 30, 2014, and Ciolino knew 
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about them that same day, but did not file his claims against her until April 27, 2016, Ciolino’s 

claims against Alvarez are time barred.

¶ 76 4. Preib’s Arguments and Defendants’ Other Arguments for Dismissal

¶ 77 Defendant Martin Preib does not rely on the statute of limitations to argue that we should 

affirm the dismissal of the claims against him. Ciolino seeks to hold Preib responsible for blog 

posts that he made on the blog “Crooked City: The Blog About the Wrongful Conviction 

Movement.” The statements that Preib allegedly made on the blog for which Ciolino seeks to 

recover were made between June 2015 and April 2016. Because Ciolino filed his claims in 

federal court on April 27, 2016, there is no issue as to timeliness. So Preib raises other 

arguments that he contends entitle him to dismissal. The other defendants raise the same 

arguments as Preib as alternative bases for affirming the dismissal of Ciolino’s claims should 

we reject their position on the statute of limitations.

¶ 78 Defendant Preib and all of the other defendants argue that, even if the claims against them 

are not time barred, the dismissal of the claims should nonetheless be affirmed on other 

grounds. The trial court ruled solely on the statute of limitations arguments the parties raised 

and, in its written order, did not analyze any of the other possible grounds for dismissal that 

the parties raised then and now raise again here. Defendants point out that, even though the 

trial court dismissed the claims for one reason, we can affirm the dismissal of Ciolino’s claims 

for any basis in the record. See Abramson v. Marderosian, 2018 IL App (1st) 180081, ¶ 40. 

¶ 79 Defendants all argue in different ways that we should affirm the dismissal of Ciolino’s 

claims against them because the allegedly defamatory statements constitute inactionable 

opinion. Only statements capable of being proven true or false are actionable for defamation; 

opinions are not. Moriarty v. Greene, 315 Ill. App. 3d 225, 233 (2000). Defendants contend 

that the statements attributed to them that Ciolino alleges are defamatory are open to 

interpretation and merely represent their opinions of Ciolino and his conduct. 

¶ 80 Defendants all also argue that the allegedly defamatory statements are covered by the fair 

reporting privilege. The fair report privilege protects a defendant from a defamation action 

when the defendant reports information obtained from governmental and public proceedings 

on matters of public interest. Harrison v. Chicago Sun-Times, Inc., 341 Ill. App. 3d 555, 572 

(2003); see also 33A Ill. L. and Prac. Slander and Libel § 31 (2012). Defendants contend that 

their works are based on court records and principally on Simon’s postconviction filings, such 

that they cannot be liable for defamation for repeating the statements made therein.

¶ 81 While defendants are correct that we may affirm on any grounds present in the record, we 

similarly may decline to search beyond the trial court’s analysis to find some basis for its 

decision. See Allstate Insurance Co. v. Davenport, 309 Ill. App. 3d 750, 756 (1999); Nolan v. 

Johns-Manville Asbestos & Magnesia Materials Co., 74 Ill. App. 3d 778, 796 (1979). This 

case is an appropriate time for us to exercise such restraint. Defendants acknowledge that the 

trial court made errors in its written order, but they essentially ask that we step in and serve the 

trial court’s function. We decline to do so.

¶ 82 Even though some of the questions presented by defendants are questions of law that we 

would review de novo on appeal, we remain a court of review. Defendants ask us to consider 

a number of matters and pass upon them even though no lower court has considered or analyzed 

the issues. There are a number of thorny issues raised in the parties’ arguments that the trial 

court did not reach but that defendants want us to reach. 
- 17 -

¶ 83 For example, there are questions raised regarding whether defendants abused the fair 

reporting privilege and, therefore, lost the benefit to claim it. For the fair reporting privilege to 

apply, the statements must be a fair and accurate representation of the proceedings reported 

upon. Missner, 393 Ill. App. 3d at 761. If not, the privilege does not apply. Id. Ciolino argues 

that “A Murder in the Park” is not a fair and accurate representation of the proceedings, and 

he points to discrepancies he believes exist. The defendant-filmmakers, on the other hand, 

argue that their film fairly describes the events as reported in police files and court records and, 

thus, their work is protected. To make matters more complicated, the fair reporting privilege 

is a qualified one. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 585 

(2006). It typically does not bar claims; it simply enhances a plaintiff’s burden of proof in 

proving up a defamation action. Lykowski v. Bergman, 299 Ill. App. 3d 157, 166 (1998). 

¶ 84 There are also questions about whether particular statements are properly characterized as 

fact or opinion and whether such statements can be innocently construed. The parties each 

strenuously press their respective cases: Ciolino that he is seeking recovery for expressions of 

false facts and defendants that they were merely expressing their opinions or advocating for 

Simon. There are several considerations courts must take into effect when determining whether 

statements are factual and can therefore be evaluated for defamation or whether the statements 

are nonactionable opinions. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518-21 (1998); Brennan 

v. Kadner, 351 Ill. App. 3d 963, 969-71 (2004). 

¶ 85 The parties also raise questions about whether the statements can be considered “highly 

offensive to a reasonable person” to support a claim for intentional infliction of emotional 

distress. As this issue pertains to Preib, the trial court’s ruling is inconsistent. At one point in 

its order, the trial court finds that Ciolino pled sufficient facts to state a claim for intentional 

infliction of emotional distress against Preib. At another point, the trial court finds that 

Ciolino’s claim is insufficient because his “statements thus do not rise to the required level of 

‘extreme and outrageous conduct.’ ” It is clear from the trial court’s ruling as a whole that it 

found the claims against Preib to be time barred. The trial court stated, in analyzing Preib’s 

motion to dismiss, that “[a]ny claims [against Preib] based on statements published before 

January 2016 are thus time-barred.” That ruling was in error. 

¶ 86 The trial court is the appropriate forum for these issues to be hashed out for the first time. 

Discovery may well shed light on these matters and provide the trial court or this court with a 

better opportunity to adjudicate these issues that are no doubt significantly important to the 

overall resolution of the case. We express no opinion about the quality of defendants’ 

arguments or their likelihood of success. The grounds for a favorable ruling that defendants 

raise including and in addition to the statute of limitations may well entitle them to a judgment 

of no liability, and defendants are entitled to raise these matters at a later stage in the 

proceedings. But this court is a court of review, and we decline to be the first tribunal to 

consider and rule upon these important disputed issues.

¶ 87 B. Intentional Infliction of Emotional Distress

¶ 88 The trial court found that, under section 2-615, Ciolino pled sufficient facts to state a cause 

of action for intentional infliction of emotional distress against all defendants. The court denied 

defendants’ motions to dismiss in that regard. The trial court held that the claims were 

nonetheless barred by the two-year statute of limitations governing personal injury actions in 

Illinois (citing Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278 (2003)).
- 18 -

¶ 89 As stated above (supra ¶¶ 41-68), the claims against defendants are not barred by the oneyear statute of limitations governing defamation actions, so they are similarly not barred by 

the two-year statute of limitations governing actions for intentional infliction of emotional 

distress. Even if, as defendants argue, the statute of limitations for Ciolino’s intentional 

infliction of emotional distress claims is one year as a derivative of his defamation claims 

(citing Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 208-09 (1983)), the claims 

are still timely.

¶ 90 The trial court apparently failed to apply the savings statute to Ciolino’s claims. The trial 

court found that the operative filing date for these claims was in January 2018—when Ciolino 

filed this case. But when Ciolino filed this case he was refiling the claims that were dismissed 

for lack of jurisdiction in federal court. The Illinois savings statute states that, where an action 

is dismissed by a United States District Court for lack of jurisdiction, then, regardless of 

whether the statute of limitations has run during the pendency of the action, the plaintiff may 

commence a new action in state court within one year of the dismissal or within the remaining 

period of limitation, whichever is greater. 735 ILCS 5/13-217 (West 2016); see also Bryson v. 

News America Publications, Inc., 174 Ill. 2d 77, 105-06 (1996). For limitations purposes, the 

operative filing date for Ciolino’s claims in this case is April 27, 2016—when Ciolino filed 

these claims in federal court.

¶ 91 Defendants also argue that Ciolino failed to plead the facts necessary to state a cause of 

action for intentional infliction of emotional distress. But the trial court denied defendants’ 

motions under section 2-615. The trial court found that Ciolino had sufficiently stated facts to 

support his cause of action. None of the defendants appeal that adverse ruling. Defendants 

again want us to go far beyond the trial court’s order and to reach a variety of arguments for 

the first time on appeal. We decline to do so.

¶ 92 As for Preib, and as discussed above (supra ¶ 85), the trial court’s order is inconsistent. 

The order states that Ciolino pled sufficient facts against Preib to state a cause of action for 

intentional infliction of emotional distress. That ruling implies that Ciolino sufficiently pled 

that Preib’s conduct was extreme and outrageous. To prevail on a claim of intentional infliction 

of emotional distress, the plaintiff must prove the following three elements: (1) that the 

defendant’s conduct was truly extreme and outrageous, (2) that the defendant either intended 

that his conduct would cause severe emotional distress or knew that there was a high 

probability that his conduct would do so, and (3) that the defendant’s conduct did in fact cause 

severe emotional distress. Taliani v. Resurreccion, 2018 IL App (3d) 160327, ¶ 26. The trial 

court found, in denying the section 2-615 part of defendants’ motions, that Ciolino had pled 

sufficient facts to support those elements of the cause of action. The trial court then found that 

the alleged conduct did “not rise to the required level of extreme and outrageous conduct.” The 

findings cannot be reconciled. The trial court then went on to ultimately find the claims to be 

time barred. Any finding that the allegations were not sufficient was not a stated basis for the 

trial court’s ruling and cannot serve as a basis to affirm the dismissal of the claims against 

Preib.

¶ 93 As for Alvarez, we conclude that Ciolino’s claims are time barred. The only conduct 

Ciolino alleges that Alvarez engaged in that could subject her to liability is not actionable as 

an independent claim. Ciolino’s other allegations regarding intentional infliction of emotional 

distress refer to Alvarez’s official actions in dealing with Simon’s case. They do not relate to 
- 19 -

any action toward Ciolino. Accordingly, Ciolino has no claim against Alvarez for intentional 

infliction of emotional distress. 

¶ 94 Per the notice of appeal in this case, the only issue currently on appeal is whether the trial 

court properly granted judgment to defendants under section 2-619. Ciolino’s notice of appeal 

states that “Plaintiff respectfully requests that the reviewing court reverse the Court’s order 

dismissing Plaintiff’s complaint pursuant to 2-619.” Thus, we do not revisit the trial court’s 

rulings on the section 2-615 portions of defendants’ motions. The trial court erred when it 

dismissed Ciolino’s claim for intentional infliction of emotional distress as time barred.

¶ 95 C. Conspiracy

¶ 96 Defendants argue that Ciolino abandoned his conspiracy claim by failing to argue about 

the propriety of the dismissal of that claim on appeal. At first impression, defendants’ position 

seems persuasive—that the trial court’s dismissal of plaintiff’s claim for conspiracy should 

stand because Ciolino forfeited that claim by failing to argue on appeal that its dismissal was 

improper. However, Ciolino has persuaded us that he did, in fact, dispute the dismissal of his 

conspiracy claim on appeal. Ciolino has not abandoned his claim sounding in conspiracy, and 

accordingly, we reinstate his conspiracy claim so that he may pursue it on remand. 

¶ 97 The trial court dismissed Ciolino’s claim for conspiracy on the basis that the underlying 

torts supporting the alleged conspiracy were time barred, so the conspiracy claim was time 

barred too (citing Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶¶ 109-11). As we have 

explained above, defendants did not prove that the tort claims underlying the alleged 

conspiracy were time barred, so the trial court’s justification for dismissing the conspiracy 

claim is not valid. 

¶ 98 On appeal, plaintiff argued that all of his claims were dismissed improperly. Plaintiff 

argued in his opening brief, and thoroughly in his reply brief, that his conspiracy claim was 

timely—counter to the trial court finding otherwise. Specifically, plaintiff stated that 

“[b]ecause Plaintiff’s defamation, false light, and IIED claims are timely” (as we have found 

above) “and adequately pled, Plaintiff’s civil conspiracy claim survives summary dismissal.” 

Now finding that plaintiff did not abandon his claim for conspiracy, we reverse the trial court’s 

dismissal of plaintiff’s conspiracy count as well, as it was not time barred. 

¶ 99 III. CONCLUSION

¶ 100 Accordingly, we affirm in part and reverse in part. We affirm the trial court’s dismissal as 

to defendant Anita Alvarez. We reverse all the trial court’s other rulings on the motions to 

dismiss, reinstate all claims against the other defendants, and remand the case for further 

proceedings not inconsistent with this opinion.

¶ 101 Affirmed in part, reversed in part, and remanded.