2023 IL App (4th) 230143-U

NO. 4-23-0143 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

RMS INSURANCE SERVICES, INC., d/b/a FLANDERS 

INSURANCE AGENCY, and OWEN G. COSTANZA, an 

Individual,

Plaintiffs-Appellants, 

 v. 

DONALD G. SATTLER, an Individual, MARION L. 

THORNBERRY, an Individual, ELISABETH M. 

RODGERS, an Individual,

Defendants-Appellees, 

and

CHERYL RUSSELL-SMITH, an Individual, 

Defendant.

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Appeal from the

Circuit Court of

Boone County 

No. 21L30 

Honorable 

Stephen Balogh, 

Judge Presiding.

 

 JUSTICE CAVANAGH delivered the judgment of the court.

 Justices Harris and Knecht concurred in the judgment.

ORDER

¶ 1 Held: The trial court’s judgment is affirmed because plaintiffs failed to establish the court 

erred in granting defendants’ motion for summary judgment. 

¶ 2 On October 18, 2021, plaintiffs RMS Insurance Services, Inc., d/b/a Flanders 

Insurance Agency (Flanders), and Owen G. Costanza, in his individual capacity, filed a 17-count 

complaint against defendants Donald G. Sattler, Marion L. Thornberry, Elisabeth M. Rodgers, and 

Cheryl Russell-Smith. On July 8, 2022, the trial court allowed plaintiffs leave to file a 13-count 

first amended complaint. The amended complaint no longer included counts directed at Cheryl 

Russell-Smith. Thereafter, on August 22, 2022, defendants Sattler, Thornberry, and Rodgers filed 

a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure 

FILED

October 17, 2023

Carla Bender

4th District Appellate

Court, IL

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 
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(Procedure Code) (735 ILCS 5/2-1005 (West 2022)), asking the court to dismiss plaintiffs’ first

amended complaint with prejudice, along with a separate motion to dismiss counts I, II, and III of 

plaintiffs’ first amended complaint pursuant to section 2-615 of the Procedure Code (id. § 2-615). 

On January 18, 2023, the court granted both of defendants’ motions and dismissed plaintiffs’ entire 

amended complaint with prejudice. Plaintiffs appeal, arguing the court erred in granting 

defendants’ motions. We affirm.

¶ 3 I. BACKGROUND

¶ 4 According to plaintiffs’ complaint, Costanza was the former president of the 

Village of Poplar Grove. During the 2020 election, Sattler ran against Costanza for the office of 

village president. Costanza was the incumbent village president at that time. The complaint 

outlined animosity that existed between Costanza and defendants prior to and after the election. 

¶ 5 Plaintiffs alleged defendants made defamatory statements about Costanza through 

a flyer, verbally, and through other means, including social media. According to plaintiffs’ 

complaint, the alleged defamatory statements included accusations Costanza committed criminal 

acts, including insurance fraud. Plaintiffs attached the flyer to their complaint. Sattler defeated 

Costanza in the election. However, plaintiffs alleged defendants continued to post the allegations 

against Costanza after the election was over. 

¶ 6 Plaintiffs’ complaint made individual claims of tortious interference with 

prospective business advantage, tortious interference with contract, defamation, and common law 

business defamation against Sattler, Thornberry, Rodgers, and Smith, respectively. Plaintiffs also 

alleged a civil conspiracy between Sattler, Thornberry, Rodgers, and Smith to tortiously interfere 

with plaintiffs’ contracts with existing customers and damage plaintiffs’ business and reputation 

in the community. 
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¶ 7 We have attached the flyer at issue to this order. At the top of the flyer, in underlined 

red ink is the headline “My Opponent[’]s Criminal Record Is,” followed by a colon. Then, under 

that headline, the flyer contains the following 13 bullet points: (1) “1995 Pleads Guilty to Filing a 

False Report in Boone County”; (2) “1999 Terminated from Liberty Insurance for Fraud 

Misrepresentation”; (3) “1999 Pleads Guilty Writing Bad Check in Boone County”; (4) “2000 

Home Foreclosure in Boone County”; (5) “2000 Completes Chapter 7 Bankruptcy Filed in 1996 

as Chapter 13”; (6) “2007 Pleads Guilty for Drunk Driving Winnebago County”; (7) “2008 

Wisconsin DOI Denies Insurance License for False Application”; (8) “2010 Indiana DOI Fines 

Him $1500 False Application & Revokes Insurance License”; (9) “2011 Terminated from RMS 

Service Group for Misappropriating Company Funds”; (10) “2012 Answers Fraudulently Again 

on Illinois DOI License Renewal Application”; (11) “2014 Illinois DOI Investigates Numerous 

Complaints by Insurance Customers, Past Terminations, Criminal History, Unlawful Fund 

Withdrawals, and Fines & Discipline from Wisconsin and Indiana (IL-14-HR-0482 & IN-934-

AG10-8031-135)”; (12) “2014 Illinois DOI Revokes Insurance Business License for Major 

Agency Violations”; and (13) “2015 Illinois DOI Disciplines and Fines Him $30,000.00 for 

Multiple Repeat Violations.” Under the bullet points, the flyer states, “We cannot allow a repeat 

criminal like Mr. Costanza to Defraud our village like he has defrauded his creditors, customers, 

past employers[,] and the Wisconsin, Indiana, and Illinois Departments of Insurance. What else 

has he done to us?” Located on the right side of the flyer are two red, solid circles. Over each circle 

is a solid black “X.” Over each black “X” and red circle are the words “INSURANCE FRAUD” 

in a red font. At the bottom of the flyer in a red font is the phrase “Restore Integrity to Poplar 

Grove,” which is followed by “Paid for by friends of Sattler for Village President” in a smaller, 

black, italicized font. 
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¶ 8 On January 12, 2022, defendants Sattler, Thornberry, and Rodgers filed a motion 

to dismiss pursuant to section 2-619(a)(1) of the Procedure Code (id. § 2-619(a)(9)), asking the 

trial court to dismiss plaintiffs’ complaint pursuant to the Citizen Participation Act (Act) (735 

ILCS 110/1 et seq. (West 2022)). Defendants argued plaintiffs’ complaint was a strategic lawsuit 

against public participation (SLAPP) claim and requested the complaint be dismissed with 

prejudice. That same day, defendants Sattler, Thornberry, and Rodgers also filed motions to 

dismiss plaintiffs’ complaint pursuant to section 2-615 of the Procedure Code (735 ILCS 5/2-615 

(West 2022)). 

¶ 9 On March 25, 2022, the trial court granted plaintiffs’ oral motion to voluntarily 

dismiss Smith and the counts directed at her without prejudice. 

¶ 10 On April 14, 2022, the trial court entered an order which took the defendants’ 

motion to dismiss plaintiffs’ complaint pursuant to the Act under advisement. 

¶ 11 On May 11, 2022, the trial court (Judge Ronald A. Barch presiding) issued a written 

order denying defendants’ section 2-619(a)(9) (id. § 2-619(a)(9)) motion to dismiss plaintiffs’ 

complaint as a SLAPP claim under the Act. Defendants’ other motions to dismiss were not 

addressed by the court. 

¶ 12 Judge Barch stated the Act was designed to protect citizens from SLAPP claims. 

Citing Garrido v. Arena, 2013 IL App (1st) 120466, ¶ 15, and Prakash v. Parulekar, 2020 IL App 

(1st) 191819, ¶ 33, Judge Barch indicated SLAPP lawsuits are meritless claims used to retaliate 

against a citizen for attempting to participate in government through the exercise of his 

constitutional rights of freedom of speech and/or the right to petition. According to Judge Barch’s 

order: 

“When determining whether a SLAPP should be dismissed under Section 
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2-619, courts are required to engage in a three-step analysis: (1) whether the 

movant’s acts were in furtherance of his right to petition, speak, associate, or 

otherwise participate in government to obtain favorable government action; 

(2) whether the nonmovant’s claims are solely based on, related to, or in response 

to the movant’s acts in furtherance of his constitutional rights; and (3) whether the 

nonmovant failed to prove that the movant’s acts were not genuinely aimed at solely 

procuring favorable government action. [Citation.] The movant bears the burden of 

proof under the first two prongs of the analysis, after which the burden shifts to the 

nonmovant.” 

Judge Barch found that it was clear Sattler, Thornberry, and Rodgers’s individual actions were in 

furtherance of their respective rights to petition, speak, associate, or otherwise participate in 

government action. 

¶ 13 Turning to the second prong of the analysis and citing Prakash, 2020 IL App (1st) 

191819, ¶ 34, and Sandholm v. Kuecker, 2012 IL 111443, ¶ 45, Judge Barch stated the Act was 

not “intended to protect those who commit tortious acts and then seek refuge in the immunity 

conferred by the Act.” Again, relying on Sandholm, 2012 IL 111443, ¶ 50, Judge Barch indicated 

“[t]he legislative history of the Act supports the conclusion that the legislature intended to target 

only meritless, retaliatory SLAPPs and did not intend to establish a new absolute privilege or 

qualified privilege for defamation and other torts.” (Emphasis in original.) Judge Barch indicated 

that when a plaintiff’s complaint does not constitute a SLAPP because it “genuinely seeks redress 

for damages from defamation or other intentional torts ***, it is irrelevant whether the defendants’ 

actions were genuinely aimed at procuring favorable government action, result, or outcome.” 

Further, the order stated: 
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“How to prove a claim is ‘meritorious’ or ‘retaliatory’ is a central question to the 

second prong of the SLAPP analysis. [Citation.] A claim is ‘meritless’ if the moving 

party disproves some essential element of the nonmovant’s claim. [Citation.] In the 

end, the Act is expressly designed to bar only those lawsuits that try to abuse the 

justice system by bringing unfounded claims in retaliation against defendants who 

legitimately exercise their First Amendment rights, while simultaneously 

preserving the right of individuals to file lawsuits for real injuries. [Citation.]” 

Citing Garrido, 2013 IL App (1st) 120466, ¶ 27, Judge Barch noted the fact a defendant may 

prevail on an affirmative defense in a defamation action does not mean the defamation action is 

meritless. The trial court explained, “Stated differently, in the case of statements that constitute 

defamation, even if defendants can prove the allegedly defamatory statements at issue are 

substantially true or constitutionally privileged, they cannot carry their burden of showing that 

plaintiff’s claim is meritless.” 

¶ 14 The trial court concluded defendants had established some of the statements in the 

flyer were in fact true, which made tort claims based solely on those assertions meritless as a matter 

of law. However, as for the rest of the assertions attributed to defendants, the court determined 

those statements were not clearly truthful. According to Judge Barch’s order: 

 “In summary, the court finds that the Defendants have proven that some of 

the statements attributed to them are truthful, making tort claims based upon those 

statements separately and individually meritless as a matter of law. As to the 

balance of statements attributed to the Defendants, however, whether the statements 

are blatantly false, partially false[,] or substantially true[,] and whether the 

statements were intended and understood to be false, misleading, defamatory, and 
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injurious to Plaintiffs are questions of fact for the jury. It will be up to a jury to 

determine whether Plaintiffs suffered tortious injury from statements and materials 

that comingled arguably true statements with statements that are facially untrue, 

arguably false[,] or substantially true. Whether allegedly defamatory materials are 

substantially true is normally a jury question. [Citation.] Here, the pleadings, 

exhibits[,] and attachments give rise to a genuine question of fact as to whether the 

gist or sting of the allegedly false, misleading *** statements and materials is 

substantially true. Because the Defendants have failed to demonstrate that all of 

Plaintiffs’ claims are meritless, the Defendants have failed to carry their burden of 

proving that Plaintiffs’ lawsuit is a SLAPP. Defendants’ Section 2-619 motion to 

dismiss is therefore denied.” 

¶ 15 On May 27, 2022, the trial court entered a stipulated order continuing defendants’ 

remaining motions to dismiss and indicating plaintiffs could file their motion for leave to file an 

amended complaint within 30 days. 

¶ 16 On June 21, 2022, plaintiffs filed a motion for leave to file their first amended 

complaint. The amended complaint was directed at Sattler, Thornberry, and Rodgers and included 

individual claims against each defendant for tortious interference with prospective business 

advantage, tortious interference with contract, defamation per se, and common law business 

defamation per se. The amended complaint also included a count alleging a civil conspiracy

between Sattler, Thornberry, and Rodgers to tortiously interfere with plaintiffs’ contracts with 

existing customers, tortiously interfere with plaintiffs’ prospective business advantage, and 

damage plaintiffs’ business and reputations in the community. 

¶ 17 On July 8, 2022, the trial court granted plaintiffs’ motion for leave to file their first
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amended complaint. 

¶ 18 On August 22, 2022, defendants Sattler, Thornberry, and Rodgers filed a motion 

for summary judgment pursuant to section 2-1005 of the Procedure Code (735 ILCS 5/2-1005 

(West 2022)). Defendants argued plaintiffs’ amended complaint should be dismissed in its entirety. 

In addition, these same defendants filed a separate motion to dismiss plaintiffs’ tortious 

interference with business counts (count I, II, and III) pursuant to section 2-615 of the Procedure 

Code (id. § 2-615). 

¶ 19 On January 18, 2023, the trial court (Judge Stephen E. Balogh presiding) issued a 

written order granting defendants’ motion for summary judgment, dismissing all of plaintiffs’ first 

amended complaint with prejudice and granting defendants’ motion to dismiss counts I, II, and III 

of plaintiffs’ first amended complaint. Judge Balogh’s order indicated plaintiffs’ amended 

complaint included a few additional allegations regarding damages but was substantially similar 

to plaintiffs’ original complaint. The court also indicated defendants had “provided affidavits, 

documents from the public record, as well as documents obtained from the Departments of 

Insurance for Illinois, Indiana[,] and Wisconsin. In response, Costanza ha[d] supplied his own 

affidavit.” 

¶ 20 According to Judge Balogh’s order, plaintiffs alleged the three defendants wanted 

to ruin Costanza’s career in local politics and collaterally damaged Costanza’s insurance business. 

Judge Balogh noted that defendants conceded they had publicly disseminated the allegations in the 

flyer and continued doing so after the election because Costanza was still active in local politics, 

pursuing positions in local government and the local Republican party. Judge Balogh recognized

Costanza and the three defendants were all Republicans. According to the trial court’s order: 

“In the instant matter, Costanza has pled that none of the defendant’s [sic] behavior 
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was privileged because they knew the allegations of the flyer to be false. The crux 

of the defendants’ motion for summary judgment is that their statements are all 

privileged because those statements are indisputably, materially and substantially 

true.

It is undisputed that at the time *** the flyer was publicly disseminated, 

Costanza was an elected official and running for another public office. The 

gravamen of his amended complaint is that the statements made in the flyer and 

repeated on social media and literally, in the public square, all concerned his fitness 

for public office. Therefore, as the court has previously held, the allegations involve 

a public person and matters of public concern. Thus, in determining whether there 

is a genuine issue of material fact giving rise to a question of whether Costanza or 

his business were defamed, the court must consider not only privilege associated 

with truth, but the heightened protections of privilege arising out of the First 

Amendment to the U.S. Constitution.

Protections afforded to speech (expression) by the First Amendment are 

designed to assure, ‘unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people.’ Miller v. California, 413 U.S. 

15, 24-35 (1973). These protections have been interpreted as limiting the reach of 

state defamation laws. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 

U.S. 749, 755 (1985). To what extent state defamation laws are constrained by the 

Constitution requires consideration of the status of the plaintiff, whether he is a 

public figure and whether the speech at issue is of public concern. Philadelphia 

Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986). Additionally, if speech 
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addresses a matter of public concern, the burden is on the plaintiff to prove that the 

defendant actually knew the statement was false at the time it was published. 

Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 395-96 

(2008). 

Thus, under Illinois law, recovery for a defamatory statement in this case 

will only be allowed if there is a showing of actual malice. This requires proof by 

the plaintiff that has, ‘established both that the utterance was false and that it was 

made with knowledge of its falsity or in reckless disregard of whether it was false 

or true.’ Catalano v. Pechous, 83 Ill. 2d 146, 155 (1980); Jacobson v. CBS 

Broadcasting, Inc., 2014 IL App (1st) 132480, ¶ 36[ ] (citations omitted). Reckless 

disregard means that the defendant had a ‘high degree of awareness’ that the 

statement was probably false or ‘entertain[ed] serious doubts as to its truth.’ 

Jacobson, quoting Kuwik v. Starmark Star Marketing & Administration, Inc., 156 

Ill. 2d 16, 24-25 (1993).” 

Judge Balogh then went through the flyer’s bullet points, stating the truth of the statements was 

either undisputed or objectively verified by administrative records.

¶ 21 Judge Balogh then turned his attention to the following statement at the bottom of 

the flyer, “We cannot allow a repeat criminal like Mr. Costanza to defraud our village like he has 

defrauded his creditors, customers, past employers[,] and the Wisconsin, Indiana, and Illinois 

Departments of Insurance. What else has he done to us?” According to the trial court’s order: 

“It is here that the message intended to be conveyed by the previous 

statements is encapsulated. The defendants wanted the voters of the Village to 

believe that Costanza was not deserving of their trust or their votes. Nothing could 
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be more representative of the, ‘unfettered interchange of ideas for the bringing 

about of political and social changes desired by the people.’ Miller, 413 U.S. at 24-

35. The social context of this message is inarguably to paint Costanza as unworthy 

of holding elected office. 

Nonetheless, Costanza argues that the statements made in the flyer should 

not be protected because the defendants knew that he had never been criminally 

convicted of insurance fraud and that criminality will be inferred from the overall 

context of the flyer. The question of law for the court is whether the statements 

made in the flyer, including both express assertions as well as implications drawn 

from the whole, are factual in nature, and whether they were made with a high 

degree of knowledge of their falsity. Jacobson, 2014 IL App (1st) 132480, ¶ 36.” 

Judge Balogh indicated Costanza argued he had never been convicted of insurance fraud but did 

not dispute he was accused of insurance fraud by a prior employer and was administratively 

disciplined and fined for making misrepresentations to insurance officials in Illinois, Indiana, and 

Wisconsin. In addition, the court stated plaintiffs did not dispute Costanza’s Illinois “producer’s 

license for one of his operating entities has been permanently revoked and that entity was civilly 

fined $30,000.00 for repeated misrepresentations.” Judge Balogh also noted Costanza had two 

criminal convictions for misdemeanor offenses, one involving dishonesty, and had also received 

supervision after pleading guilty to a third misdemeanor offense. 

¶ 22 Continuing the trial court’s analysis, Judge Balogh stated: “Whether the statements 

have precise meaning or are well understood is clouded by the headers regarding Costanza’s 

criminal record and insurance fraud. It must be remembered that there is no direct allegation that 

Costanza has ever been criminally convicted of the crime of insurance fraud.” Further, Judge 
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Balogh noted the term “insurance fraud” can have different meanings.

¶ 23 The trial court indicated it was undisputed that Costanza had been accused of, 

administratively disciplined for, and fired for committing fraud in the general sense of the word

while working in the insurance industry. The court also noted defendants argued the flyer and 

related statements were materially and substantially true or, in other words, that the gist or sting 

of the flyer wastrue. According to Judge Balogh’s analysis, “[t]he sting of the flyer is that Costanza 

has engaged in professional misrepresentation and fraud, within the ordinary meaning of the word, 

in his capacity as an insurance producer.” Further, “[g]iven Costanza’s record of misfeasance, 

malfeasance[,] and nonfeasance in both his professional and personal lives, the court finds that no 

reasonable jury could find that characterizations of that record as criminal or as involving insurance 

fraud exaggerate the substantial truth of defendants’ statements.” In finalizing the court’s analysis, 

Judge Balogh stated:

“As discussed above, the defendants have provided documentation from the 

public record as well as documentation received in response to [Freedom of 

Information Act] requests which objectively verify the substantive truth of each of 

[the] allegations made in the flyer. However, the statements regarding ‘my 

opponent’s criminal record’ and ‘insurance fraud’, which both appear in larger type 

and red ink, are amorphous and not so easily verifiable. 

Both are technically true. Costanza does have a misdemeanor criminal 

record and has engaged in fraud, as that term is generally understood, in his work 

as an insurance professional. To the extent that the meaning of the headings on the 

flyer are open to differing subjective interpretations, they are no more than 

assertions of opinion, not defamatory facts applicable to the plaintiff. See Imperial 
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Apparel, 227 Ill. 2d at 398. 

Finally, the court must examine whether there is anything about the social 

context of the statements that renders them more likely to be construed as factual 

rather than opinion. Id. The social context of those remarks is that they were made 

in the effort to keep Costanza from [being] elected to a position of trust in their 

community, and, on a continuing basis, to keep him from holding any position of 

trust within the Village or the local Republican Party.

Therefore, the court finds that the statements made by the defendants in 

regard to Costanza were and are privileged because they concern a matter of public 

interest and involve a public person. The statements are, as discussed above, 

factual in nature and substantially true.” (Emphasis added.)

¶ 24 This appeal followed. 

¶ 25 II. ANALYSIS

¶ 26 We first note this is a complicated case. Further, plaintiffs’ arguments in their 

appellants’ brief are difficult to comprehend and are incomplete. Illinois Supreme Court Rule 

341(h)(7) (eff. Oct. 1, 2020) requires an appellant’s brief to include “[a]rgument, which shall 

contain the contentions of the appellant and the reasons therefor, with citation of the authorities 

and the pages of the record relied on.” A reviewing court is not a depository into which the 

appellant may dump his burden of argument and research. People v. Macias, 2015 IL App (1st) 

132039, ¶ 88. “Points not argued are forfeited and shall not be raised in the reply brief, in oral 

argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). 

¶ 27 The primary basis for plaintiffs’ appeal is their contention the trial court erred in 

granting defendants’ motion for summary judgment. Summary judgment is proper when “ ‘the 
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pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.’ ” Suburban Real Estate Services, Inc. v. Carlson, 2022 IL 126935, ¶ 15 (quoting 

735 ILCS 5/2-1005(c) (West 2018)). Plaintiffs are correct that summary judgment is a drastic way 

to resolve a case and should only be allowed when the moving party’s right to such a judgment is 

clear and free from doubt. Id. (citing Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)). However, when 

a party moving for summary judgment supplies facts which, if not contradicted, would entitle the 

moving party to a judgment as a matter of law, the nonmoving party may not rely on his pleadings 

alone to raise issues of material fact. Purtill, 111 Ill. 2d at 240. 

¶ 28 “A defendant may, at any time, move with or without supporting affidavits for a 

summary judgment in his or her favor as to all or any part of the relief sought against him or her.” 

735 ILCS 5/2-1005(b) (West 2022). When moving for summary judgment, a defendant may satisfy 

his initial burden of proof “either by affirmatively showing that some element of the case must be 

resolved in its favor or by establishing that there is an absence of evidence to support the plaintiff’s 

case.” Ross Advertising, Inc. v. Heartland Bank & Trust Co., 2012 IL App (3d) 110200, ¶ 28. 

¶ 29 A plaintiff does not have to prove his case to survive a defendant’s motion for 

summary judgment. Id. However, a plaintiff “must present a factual basis that would arguably 

entitle the plaintiff to a judgment.” Id. “If a plaintiff cannot establish an element of her cause of 

action, summary judgment for the defendant is proper.” Id. We apply a de novo standard when 

reviewing an order granting a motion for summary judgment. Id.

¶ 30 A. Judge Barch’s Order

¶ 31 We first address plaintiffs’ argument that Judge Barch’s order denying defendants’ 

motion to dismiss pursuant to section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 
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2022)) precluded Judge Balogh from granting defendants’ motion for summary judgment. As 

previously stated, defendants’ motion to dismiss argued plaintiffs’ complaint was a SLAPP action

under the Act (735 ILCS 110/1 et seq. (West 2022)). 

¶ 32 According to plaintiffs, the fact Judge Barch and Judge Balogh could look at the 

facts in this case and draw different inferences precludes summary judgment. Plaintiffs assert “[a] 

triable issue of fact exists where there is a dispute as to a material fact or where, although the facts 

are not in dispute, reasonable minds might differ in drawing inferences from those facts.” 

Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). 

¶ 33 Plaintiffs contend “[t]here can probably be no better example of a ‘reasonable 

mind’ than that of a Circuit Court Judge.” According to plaintiffs’ brief:

“Here, two very experienced judges came to opposite conclusions based on the 

same facts. Not only were these two judges examining the same facts but they were 

sitting in the same courtroom in the same circuit on the same case. All that is 

required to find a triable issue and preclude summary judgment is the possibility 

that reasonable minds might differ in drawing inferences. The mere possibility is 

enough to preclude summary judgment. Here[,] the two reasonable minds actually 

drew different inferences from the same facts. This alone merits reversal under 

Petrovich.”

On the surface, this argument has some persuasive appeal. 

¶ 34 However, Judge Barch and Judge Balogh were ruling on different matters. Judge 

Barch denied defendants’ motion to dismiss plaintiffs’ complaint as a SLAPP claim, and Judge 

Balogh granted defendants’ motion for summary judgment. As a result, this is not a situation where 

Judge Balogh was simply asked to reconsider an earlier denial of a motion for summary judgment. 
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¶ 35 Regardless, even if we treated Judge Barch’s ruling as the denial of a motion for 

summary judgment, the Second District has stated:

“[A] long line of cases has condoned the authority of a successor judge to change 

the interlocutory rulings of a predecessor judge. [Citations.] A successor court has 

the power to modify or revise an interlocutory order at any time prior to final 

judgment. [Citations.] When the interlocutory order involved the exercise of a prior 

judge’s discretion, the successor judge may overturn the order only where new facts 

or circumstances warrant such action and there is no evidence of judge shopping. 

[Citation.] On the other hand, where the successor judge finds that the previous 

interlocutory order is erroneous as a matter of law, the successor judge, absent 

evidence of judge shopping, may correct the previous order regardless of the 

existence of a new matter.” Brandon v. Bonell, 368 Ill. App. 3d 492, 502 (2006). 

Both the denial of a motion for summary judgment and the denial of a motion to dismiss are 

interlocutory orders that may be revised prior to a final judgment. Id. 

¶ 36 Plaintiffs do not argue Judge Barch made a discretionary decision when denying 

defendants’ SLAPP motion to dismiss or that defendants engaged in judge shopping. As a result, 

plaintiffs have failed to establish Judge Balogh’s summary judgment ruling was precluded by 

Judge Barch’s denial of the motion to dismiss. Therefore, plaintiffs must establish other reasons 

why Judge Balogh erred in granting defendants’ motion for summary judgment.

¶ 37 B. Judge Balogh’s Order 

¶ 38 We first note the foundation for all of plaintiffs’ claims is the defendants’ 

publication of the alleged defamatory statements about Costanza. This requires a brief overview 

of the law regarding defamation claims.
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¶ 39 1. Applicable Law

¶ 40 “To state a defamation claim, a plaintiff must present facts showing that the 

defendant made a false statement about the plaintiff, that the defendant made an unprivileged 

publication of that statement to a third party, and that this publication caused damages.” Green v. 

Rogers, 234 Ill. 2d 478, 491 (2009). A statement is defamatory if it “harms a person’s reputation 

to the extent it lowers the person in the eyes of the community or deters the community from 

associating with her or him.” Id. 

¶ 41 If a statement’s harm is obvious and facially apparent, the statement is defamatory 

per se. Our supreme court has stated:

“In Illinois, there are five categories of statements that are considered defamatory 

per se: (1) words that impute a person has committed a crime; (2) words that impute 

a person is infected with a loathsome communicable disease; (3) words that impute 

a person is unable to perform or lacks integrity in performing her or his employment 

duties; (4) words that impute a person lacks ability or otherwise prejudices that 

person in her or his profession; and (5) words that impute a person has engaged in 

adultery or fornication. 

* * * 

It is well settled that, even if an alleged statement falls into one of the 

categories of words that are defamatory per se, it will not be actionable per se if it 

is reasonably capable of an innocent construction. [Citation.] Under the ‘innocentconstruction rule,’ a court must consider the statement in context and give the words 

of the statement, and any implications arising from them, their natural and obvious 

meaning. [Citation.] Indeed, this court has emphasized that the context of the 
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statement is critical in determining its meaning, as a given statement may convey 

entirely different meanings when presented in different contexts. [Citation.] If the 

statement may reasonably be innocently interpreted, it cannot be actionable per se. 

[Citation.] *** At the same time, when the defendant clearly intended and 

unmistakably conveyed a defamatory meaning, a court should not strain to see an 

inoffensive gloss on the statement.” (Emphasis in original.) Id. at 491-92, 499-500. 

¶ 42 Further, even if a statement is defamatory, the statement cannot support a 

defamation claim if it is true. Harrison v. Addington, 2011 IL App (3d) 100810, ¶ 39. A defendant 

does not have to establish the defamatory statement was “technically accurate in every detail.” 

Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 371 (1996). Instead, the 

defendant only needs to establish the defamatory assertions are substantially true, which the 

defendant “can demonstrate by showing that the ‘gist’ or ‘sting’ of the defamatory material is 

true.” Id. 

¶ 43 According to this court in Gist, “When determining the ‘gist’ or ‘sting’ of allegedly 

defamatory material, a trial court must ‘look at the highlight of the article, the pertinent angle of 

it, and not to items of secondary importance which are inoffensive details, immaterial to the truth 

of the defamatory statement.’ ” Id. (quoting Vachet v. Central Newspapers, Inc., 816 F. 2d 313, 

316 (7th Cir. 1987)). Normally, whether defamatory assertions are substantially true is a question 

for the jury. Id. However, a court can decide this question as a matter of law if no reasonable jury 

could find the defamatory assertions were not substantially true. Id. 

¶ 44 Regardless, even if a defamatory statement is not substantially true, the statement 

is not actionable if protected by a qualified privilege. Turner v. Fletcher, 302 Ill. App. 3d 1051, 

1055 (1999). Whether a qualified privilege exists is a question of law. Id. According to our 
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supreme court:

“Qualified privilege in Illinois defamation law is based on a policy of protecting 

honest communications of misinformation in certain favored circumstances in 

order to facilitate the availability of correct information. [Citation.] A privileged 

communication is one that might be defamatory and actionable except for the 

occasion on which, or the circumstances under which, it is made. [Citation.] 

Qualified privilege enhances a defamation plaintiff’s burden of proof. [Citation.] In 

the absence of qualified privilege, a plaintiff need only show that the defendant 

acted with negligence in making the defamatory statements in order to prevail.” 

Dent v. Constellation NewEnergy, Inc., 2022 IL 126795, ¶ 30. 

Once a defendant demonstrates a qualified privilege exists, the plaintiff bears the burden of 

demonstrating the defendant abused the privilege. Gist, 284 Ill. App. 3d at 374. 

¶ 45 “ ‘[A]n abuse of a qualified privilege may consist of any reckless act which shows 

a disregard for the defamed party’s rights, including the failure to properly investigate the truth of 

the matter, limit the scope of the material, or send the material to only the proper parties.’ ” Dent, 

2022 IL 126795, ¶ 30 (quoting Kuwik v. Star Marketing & Administration, Inc., 156 Ill. 2d 16, 30 

(1993)). Generally, whether a defendant abused the privilege is a question of fact for a jury to 

decide. Turner, 302 Ill. App. 3d at 1057. However, the defendant is entitled to a judgment as a 

matter of law if the pleadings and exhibits present no genuine issue of material fact regarding the 

applicability of the privilege. Id. 

¶ 46 2. Judge Balogh’s Reasoning and Plaintiffs’ Burden

¶ 47 As previously stated, Judge Barch was ruling on a motion to dismiss plaintiffs’ 

claim as a SLAPP action, and Judge Balogh was determining whether defendants were entitled to 
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summary judgment. Judge Barch, citing Garrido, 2013 IL App (1st) 120466, ¶ 27, stated the fact 

defendants hypothetically could prevail on an affirmative defense such as substantial truth or 

constitutional privilege did not establish plaintiffs’ claim was a meritless SLAPP justifying 

dismissal at that time. In granting defendants’ motion for summary judgment, Judge Balogh ruled 

both (1) “the statements made by the defendants in regard to Costanza were and are privileged 

because they concern a matter of public interest and involve a public person” and (2) the statements 

in the flyer were “factual in nature and substantially true.” For this court to reverse the trial court’s 

summary judgment ruling, plaintiffs need to establish the trial court was wrong on both points. 

Even if this court were to agree with plaintiffs that the trial court erred by ruling the statements in 

the flyer were substantially true, this court could affirm the trial court’s ruling if plaintiffs did not 

also establish the trial court erred in determining the statements were not actionable pursuant to a 

qualified privilege.

¶ 48 3. Plaintiffs’ Specific Arguments

¶ 49 Plaintiffs argue Judge Balogh erred in granting defendants’ motion for summary 

judgment because the trial court did not ignore certain allegations in the flyer, including 

defendants’ allegations regarding Costanza’s (1) criminal convictions and guilty pleas, 

(2) administrative and regulatory issues, and (3) personal financial issues. According to plaintiffs, 

Judge Balogh should have only considered the following information from the flyer in deciding 

the motion for summary judgment: (1) “My Opponents [sic] Criminal Record Is:”; 

(2) “INSURANCE FRAUD”; (3) “We cannot allow a repeat criminal like Mr. Costanza to Defraud 

our village like he has defrauded his creditors, customers, past employers[,] and the Wisconsin, 

Indiana, and Illinois Departments of Insurance”; (4) “What else has he done to us?”; 

(5) “INSURANCE FRAUD”; (6) “Restore Integrity to Poplar Grove”; and (7) “Paid for by friends 
- 21 -

of Sattler for Village President.” We find no merit in the points defendant argues.

¶ 50 As for plaintiffs’ argument the statements in the flyer regarding Costanza’s prior 

criminal convictions and guilty pleas should not have been considered by the trial court because 

they were inadmissible pursuant to Illinois Rule of Evidence 609(b) (eff. Jan. 6, 2015) because

more than 10 years had passed since he entered those guilty pleas, we note plaintiffs provided this 

court with no analysis explaining why Rule 609(b) has any relevance here, and we see none. Rule 

609 governs when prior convictions may be used to impeach a witness. In this case, the evidence 

concerning Costanza’s prior convictions and guilty pleas was not being used to impeach him. 

Instead, Judge Balogh was considering the truth of defendants’ statements regarding Costanza’s 

prior guilty pleas. 

¶ 51 Turning to their next argument, plaintiffs argue Judge Balogh erred by considering 

the statements in the flyer regarding Costanza’s administrative issues, regulatory issues, and 

personal financial issues because those statements by defendants “are immaterial to the 

determination of the defamatory nature of the Flyer.” We disagree. As noted earlier, courts must 

look at the alleged defamatory statements in context, giving “the words of the statement, and any 

implications arising from them, their natural and obvious meaning.” Green, 234 Ill. 2d at 499-500. 

According to our supreme court, “the context of the statement is critical in determining its 

meaning, as a given statement may convey entirely different meanings when presented in different 

contexts.” Id. Plaintiffs have failed to establish the trial court erred in examining all of the 

statements made in the flyer. 

¶ 52 4. Qualified Privilege

¶ 53 We note plaintiffs’ arguments on appeal challenging the merits of Judge Balogh’s 

ruling granting defendants’ motion for summary judgment appear to be directed only at the trial 
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court’s ruling the allegations in the flyer were substantially true. Even if a defamatory statement 

is not substantially true, the statement is not actionable if protected by a qualified privilege. Turner, 

302 Ill. App. 3d at 1055. As a result, even if this court agreed with plaintiffs that the trial court 

erred by determining the statements were substantially true, plaintiffs must still establish why the 

trial court erred in determining the statements are not actionable because of a qualified privilege.

¶ 54 Plaintiffs present no arguments on this point. As a result, pursuant to Rule 

341(h)(7), plaintiffs forfeited any argument they may have had that Judge Balogh erred in granting 

defendants’ motion for summary judgment because the statements are not actionable because of a 

qualified privilege. In their reply brief, plaintiffs argued defendants’ actions were not privileged. 

However, plaintiffs’ argument is not timely. Rule 341(h)(7) makes clear “[p]oints not argued are 

forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” 

Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 55 Because plaintiffs’ arguments failed to establish the trial court erred in ruling the 

alleged defamatory statements were substantially true, and because plaintiffs forfeited any 

argument the court erred in finding the statements were not actionable because of a qualified 

privilege, we affirm the court’s summary judgment order.

¶ 56 C. Tortious Interference and Civil Conspiracy Claims

¶ 57 Moving on, plaintiffs stated in their appellants’ brief that defendants conceded 

plaintiffs’ tortious interference and civil conspiracy claims because they were not addressed in 

defendants’ motion for summary judgment. According to plaintiffs’ brief, “Defendants have made 

no arguments regarding either Plaintiffs’ (i) tortious interference with contract counts, (ii) tortious 

interference with prospective business advantage counts, or (iii) the civil conspiracy count.” We 

disagree. The foundation for all of plaintiffs’ claims in their amended complaint was defendants’ 
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alleged defamation. As a result, defendants’ motion for summary judgment challenged all of 

plaintiffs’ claims. 

¶ 58 D. Motion to Dismiss

¶ 59 We need not address plaintiffs’ argument regarding defendants’ motion to dismiss 

the first three counts of plaintiffs’ amended complaint because plaintiffs have failed to establish 

the trial court erred in granting defendants’ motion for summary judgment as to the entire amended 

complaint. 

¶ 60 III. CONCLUSION

¶ 61 For the reasons stated, we affirm the trial court’s judgment.

¶ 62 Affirmed. 
- 24 -

Opponents Criminal Record Is: 

eads Guilty to Fili

ng a False Report In 

Boone County 

rminated from Liberty Ins

urance for Fraud 

Misrepresentation 

eads Guilty Writing Bad Check in Boone County 

ome Foreclosure In Boone County 

ompletes Chapter 7 Bankruptcy Filed In 1996 As Chapter 13 

eads Guilty for Drunk Driving Winnebago County 

isconsin DOI Denies Insurance License for False Ap

plication 

diana DOI Fines Him $1500 False Application & Revo

kes Insurance License 

erminated from RMS Service Group for Misappropriating Compa

ny Funds 

nswers 

Fraudulently Again on llllnois DOI License Renewal Application 

nois DOI Investigates Numerous Complaints by Insurance Customers, Past 

rminations, Criminal 

History, Unlawful 

Fund Withdrawals, a

nd Fines & 

scipline from Wisconsin and Indiana (IL-14-HR•0482 & IN-934-AG10-8031-135) 

nois DOI Revokes Insurance Business 

License for Major Agency Violations 

nois DOI Disciplines 

a

nd Fines Him $30,000.00 for Multiple Repeat Violations 

ot allow a 1•epeat criminal like '.\fr. Costanza 

ud our village li

ke he 

has defrauded bis 

, customers, past em11lo

yers nnd the 

n, Indiana, and Illlnols Dcpartmc

oi-s of 

e. What else has he do

ne 10 

us? 

e Integrity to Poplar Grove. 

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