2018 IL App (1st) 171818
SIXTH DIVISION
NOVEMBER 9, 2018
1-17-1818
ROBERT J. PORADA, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
v. )
)
MARTHA JANE LAVELLE, SCOTT M. FLEMING SR., )
NOREEN T. COADY, LAURENCE BACHELARD, )
TERESA GING, YVETTE D. YOUNG, KATE BRINDISE, ) No. 17 M6 211
CITY CENTRE CONDOMINIUM ASSOCIATION, an Illinois )
Not-for-Profit Corporation, SUDLER AND COMPANY, SUDLER)
PROPERTY MANAGEMENT, SUDLER PROPERTY & )
MANAGEMENT, INC., and SUDLER BUILDING )
SERVICES, LLC, ) Honorable
) Laurence J. Dunford,
Defendants-Appellees. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Justice Harris concurred in the judgment and opinion.
Presiding Justice Delort specially concurred, with opinion.
OPINION
¶1 The plaintiff-appellant, Robert Porada, appearing pro se, 1 appeals the circuit court’s
dismissal of his complaint against the defendants-appellees, Martha Jane Lavelle, Scott M.
Fleming Sr., Noreen T. Coady, Laurence Bachelard, Teresa Ging, Yvette D. Young, Kate
Brindise, City Centre Condominium Association, Sudler and Company, Sudler Property
Management, Sudler Property & Management, Inc., and Sudler Building Services, LLC. Porada
argues on appeal that the circuit court erred in finding his complaint to be a strategic lawsuit
1
Porada is an attorney.
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against public participation (SLAPP) 2 and in awarding attorney fees to the defendants. Porada
also argues that the circuit court erred in denying his oral motion for leave to amend his
complaint. For the following reasons, we affirm the judgment of the circuit court of Cook
County in part and vacate the judgment in part.
¶2 BACKGROUND
¶3 Porada owns a condominium unit and garage space at 208 West Washington Street,
Chicago, Illinois, a building which is a part of the City Centre Condominium Association, an
Illinois not-for-profit corporation (Association). The Association is governed by a Board of
Directors (Board), and the Association’s condominiums are operated and maintained by Sudler
and Company, Sudler Property Management, Sudler Property & Management, Inc., and Sudler
Building Services, LLC (collectively, Sudler).
¶4 On January 11, 2017, Porada filed a nine-count complaint against the defendants. Other
than the Association and Sudler, the individual defendants are named in the complaint as
members of the Board or as “agent[s] and/or employee[s] and/or servant[s]” of the Association
and/or Sudler. Each of the nine counts contained identical allegations, that each defendant is
“guilty” of the following:
“(a) Intentionally, maliciously, deliberately, and recklessly
stated, in the presence of others (i.e. ‘publication’), that [Porada’s]
ownership, possession, and use of his condominium unit and
various appurtenant limited common elements at City Centre
Condominium Association was ‘illegal’;
2
This type of lawsuit is also commonly referred to as “anti-SLAPP.”
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(b) Intentionally, maliciously, deliberately, and recklessly
communicated, in the presence of others (i.e. ‘publication’), that
[Porada’s] ownership, possession, and use of his condominium unit
and various appurtenant limited common elements at City Centre
Condominium Association constituted criminal conduct;
(c) Intentionally, maliciously, deliberately, and recklessly
interfered with, obstructed, thwarted, refused and opposed
[Porada’s] ownership, possession, and use of his condominium unit
and various appurtenant limited common elements at City Centre
Condominium Association;
(d) Intentionally, maliciously, deliberately, and recklessly
interfered with, obstructed, thwarted, refused and opposed the
activation of [Porada’s] ‘transponder’;
(e) Intentionally, maliciously, deliberately, and recklessly
devised, formulated, enacted, participated in, and carried out a
premeditated scheme to deprive [Porada] of and wrongfully take
from [Porada] his ownership, possession, and use of his
condominium unit and various appurtenant limited common
elements at City Centre Condominium Association;
(f) Engaged in numerous other instances of intentional,
malicious, deliberate, and reckless conduct.”
The complaint alleged that “[a]s a direct and proximate result of one or more of the foregoing
intentional, malicious, deliberate, and reckless acts” by the defendants, Porada “sustain[ed]
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injury and incur[red] damages.” The complaint sought $15,000 in damages per count, totaling
$135,000.
¶5 The defendants filed a motion to dismiss Porada’s complaint pursuant to section 2
619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)),
asserting that his action was barred by the Illinois Citizen Participation Act (Act) (735 ILCS
110/1 et seq. (West 2016)), which the defendants asserted applies to any action to dispose of a
claim in a judicial proceeding where “the claim is based on, relates to, or is in response to any act
or acts of the moving party in furtherance of the moving party’s rights of petition, speech,
association, or to otherwise participate in government.” Id. § 15. The defendants’ motion
asserted that the Act immunized them from Porada’s complaint because the complaint was a
strategic lawsuit against public participation, also known as a SLAPP lawsuit. See Sandholm v.
Kuecker, 2012 IL 111443, ¶ 33 (a SLAPP lawsuit is an attempt to silence citizens who are
exercising their right to petition the government for a redress of grievances). The defendants’
motion alleged that Porada’s complaint was a SLAPP lawsuit because it was filed in retaliation
for the Association filing a lawsuit against him nine months earlier.
¶6 The defendants’ motion explained that on April 5, 2016, the Association filed a
complaint in the circuit court of Cook County against Porada, seeking a declaratory judgment
that he leased his parking space to a nonresident, in violation of the Association’s rules and
regulations (the underlying lawsuit). 3 The motion attached an affidavit from the president of the
Board, Scott M. Fleming Sr. Fleming’s affidavit stated that the Board demanded proof that
Porada’s parking space arrangement did not violate the Association’s rules and regulations, and
when Porada refused to provide an affidavit as requested, the Board voted to initiate litigation
3
The underlying lawsuit is currently pending in the circuit court of Cook County.
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against him. Fleming’s affidavit further stated that after the underlying lawsuit was filed, Porada
“appeared at the Association’s annual [B]oard meeting with a court reporter and asked to record
the meeting.” According to the affidavit, during the annual Board meeting, Porada alleged that
one of the Board members did not own her unit and therefore could not serve as a Board
member, and then implied that he would file lis pendens 4 actions against all of the units in the
building.
¶7 The defendants’ motion argued that Porada’s complaint was retaliatory and, thus, subject
to dismissal as a SLAPP lawsuit under the Act in light of Porada’s harassing behavior, the
proximity in time regarding Porada’s filing of his lawsuit, the lack of merit of Porada’s
complaint, and the high amount of damages requested without specificity as to how they were
calculated. In further support of their argument that Porada’s complaint was a SLAPP lawsuit,
the defendants’ motion pointed out that on January 11, 2017, Porada was scheduled to take a
deposition of one of the defendants for the underlying lawsuit, but he cancelled it and filed his
complaint in the instant action on that same day. He filed his complaint in the sixth municipal
district, a distant forum from the first municipal district in which the underlying lawsuit had been
filed and was then pending.
¶8 The defendants’ motion further argued that in the alternative, Porada’s complaint should
be dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2016)) for failing
to allege facts supporting any cause of action. The motion stated:
“In his nine-count Complaint, [Porada] contends that all
defendants were ‘intentional, malicious, deliberate, and reckless.’
4
A lis pendens notice is intended to alert the public that the property in question is involved in
litigation. Kurtz v. Hubbard, 2012 IL App (1st) 111360, ¶ 15.
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[Porada] contends that defendants ‘stated’ ‘communicated’ or
‘inferred’ that Plaintiff was engaged in ‘illegal’ behavior. [Porada],
however, fails to allege with any level of specificity how these
actions were taken, what specific statements, inferences, or
communications were made or when. Nor does [Porada] describe
who made certain statements. [Porada] leaves Defendants to guess
what it is they are being required to defend against. As such, the
Complaint should be dismissed against all named Defendants as
[Porada] has not alleged facts which would support a cause of
action upon which relief can be granted.”
¶9 Porada responded to the defendants’ motion, claiming that he adequately pleaded facts to
support his claims, that the underlying lawsuit had nothing to do with him filing his complaint in
the instant case, and that his actions of recording the annual Board meeting and cancelling the
deposition were irrelevant. He also denied threatening to file lis pendens actions against all other
units in the building. 5
¶ 10 On July 18, 2017, the trial court heard oral arguments on the defendants’ motion to
dismiss. The court told Porada: “Your complaint is a little bit conclusory with the issue of
damages and with whether or not it’s a libel or slander case or an intentional infliction of
emotional distress.” After arguments concluded, the court stated:
“There is absolutely no reason why this case shouldn’t or couldn’t have been filed as a
counterclaim or a third-party complaint in the [underlying lawsuit]. *** My ruling is that
5
Porada’s response additionally reduced the amount of damages he was seeking, stating that he
now requested this matter “be referred to Mandatory Arbitration and *** that his damages be ‘capped’ by
the Cook County $30,000.00 Mandatory Arbitration maximum.”
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[the defendants] participated in public policy by filing the lawsuit against you, which is
public right, and therefore, you’re [sic] filing this lawsuit in response to their lawsuit is a
SLAPP case.”
The trial court then entered an order stating that the defendants’ motion to dismiss pursuant to
section 2-619 of the Code, predicated upon the Act, was also granted and that Porada’s
complaint was dismissed with prejudice. The order further stated that, in the alternative, the
defendants’ motion to dismiss pursuant to section 2-615 of the Code was granted and that
Porada’s complaint was dismissed with prejudice on that basis as well.
¶ 11 After the court announced its ruling, Porada made an oral motion for leave to file an
amended complaint, which the court denied:
“MR. PORADA: Okay. On 2-615 motion there is leave to
amend?
THE COURT: I am dismissing the case. There is no leave
to amend.”
Porada then filed a timely notice of appeal, challenging the court’s dismissal of his complaint
and denial of his oral motion for leave to file an amended complaint.
¶ 12 After Porada had filed his notice of appeal, the defendants filed a petition for attorney
fees in the trial court, pursuant to section 25 of the Act (735 ILCS 110/25 (West 2016)), while
the appeal was pending. 6 See Naperville South Commons, LLC v. Nguyen, 2013 IL App (3d)
120382, ¶ 13 (a trial court has jurisdiction to entertain a petition for attorney fees filed within 30
days of entry of a final judgment, even if there was a previously filed notice of appeal). On
6
Section 25 of the Act permits the court to award reasonable attorney fees to a party who prevails
in moving to have a complaint dismissed as a SLAPP lawsuit under the Act.
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October 18, 2017, the trial court entered an award for attorney fees under the Act in favor of the
defendants. Two days later, without seeking leave of this court to do so, Porada filed an amended
notice of appeal, additionally challenging the trial court’s award of attorney fees.
¶ 13 ANALYSIS
¶ 14 Porada asks this court to review three issues that he asserts are grounds for reversal:
(1) whether the circuit court erred in dismissing his complaint as a SLAPP lawsuit pursuant to
section 2-619 of the Code, (2) whether the circuit court erred in denying his oral motion for leave
to amend his complaint, and (3) whether the circuit court erred in awarding attorney fees to the
defendants. Porada does not challenge the trial court’s alternative ground for dismissing his
complaint pursuant to section 2-615 of the Code.
¶ 15 In keeping with our responsibility to view the case and the record in its entirety, we are
not bound to review the issues in the order delineated by the parties in order to resolve the
appeal. Accordingly, we will first consider whether the trial court’s dismissal of Porada’s
complaint pursuant to section 2-615 was appropriate. See Hanna v. Creative Designers, Inc.,
2016 IL App (1st) 143727, ¶ 33 (this court may affirm on any basis in the record on appeal). “A
motion to dismiss brought pursuant to section 2-615 of the Code challenges the legal sufficiency
of a complaint by alleging defects on its face.” Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d
722, 735 (2009). While a plaintiff is not required to prove his case in the pleading stage, he must
allege sufficient facts to state all the elements which are necessary to sustain his cause of action.
Visvardis v. Ferleger, P.C., 375 Ill. App. 3d 719, 724 (2007). A trial court should dismiss a
complaint under section 2-615 only if it is readily apparent from the pleadings that there is no
possible set of facts that would entitle the plaintiff to the requested relief. Quinn v. Board of
Education of the City of Chicago, 2018 IL App (1st) 170834, ¶ 57. “The question for the court is
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whether the allegations of the complaint, when construed in the light most favorable to the
plaintiffs, are sufficient to establish the cause of action.” Id. We review de novo the trial court’s
dismissal of a complaint pursuant to section 2-615. Wagner, 391 Ill. App. 3d at 735.
¶ 16 Reviewing Porada’s complaint on its face, it is clear to this court that it is insufficient to
state a cause of action. In his complaint, Porada alleged that the defendants engaged in numerous
instances of “intentional, malicious, deliberate, and reckless conduct,” but only in broad and
vague terms without any specificity or clarity whatsoever. He alleged that the defendants made
statements that his unit ownership was “illegal” and “constituted criminal conduct,” but he did
not provide any details or context. Most notably, nowhere in his complaint did he allege with any
specificity what was said or by whom. Moreover, Porada failed to clarify the injuries he suffered
or how he calculated his damages.
¶ 17 Porada’s complaint consists of conclusory allegations and lacks any of the requisite
specificity. As the defendants pointed out in their motion to dismiss, it does not even inform
them of the nature of the claims that they are called upon to defend. 7 It is clear by reviewing
Porada’s complaint on its face that it is insufficient to plead a cause of action. Accordingly, we
hold that the trial court properly dismissed Porada’s complaint pursuant to section 2-615 of the
Code.
¶ 18 We note that because we have determined the dismissal of Porada’s complaint to be
proper pursuant to section 2-615, we need not consider the court’s alternative basis for
dismissing the complaint pursuant to section 2-619 as a SLAPP lawsuit. Accordingly, we vacate
7
At oral arguments, the defendants claimed that by their best guess, the nature of the claims
against them was libel and slander. However, Porada responded that he was time-barred from raising
claims of libel or slander. He argued that the nature of his claims was negligence and intentional infliction
of emotional distress. However, it is difficult to discern those claims based on his complaint.
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the dismissal of Porada’s complaint to the extent it was dismissed under section 2-619 as a
SLAPP lawsuit. We also note that the issue of attorney fees is now moot, as the defendants were
awarded attorney fees based on the complaint’s dismissal pursuant to section 2-619, as a SLAPP
lawsuit, predicated upon the Act. However, parties are not entitled to an award of attorney fees
for a dismissal premised upon section 2-615. 8 As explained, the complaint should have been
dismissed clearly and squarely based on section 2-615 of the Code, nothing more. Accordingly,
the trial court’s award of attorney fees based on SLAPP is vacated.
¶ 19 Lastly, we review Porada’s second argument that the court erred in denying his oral
motion for leave to file an amended complaint. Porada argues that the court described the defects
it perceived in his complaint, yet summarily denied his oral motion for leave to file an amended
complaint that could have cured those defects. He argues that the court abused its discretion.
However, Porada did not submit a proposed amended complaint for the trial court to consider.
There is no indication in the record that Porada made a formal motion that included a proposed
amended complaint for the trial court to consider. Rather, he briefly mentioned amending his
complaint at the end of the hearing in the trial court, and it was never raised again. In turn, there
8
We also note that were we to consider the issue of attorney fees, we would not have jurisdiction
to consider the October 18, 2017, judgment awarding attorney fees to the defendants, as Porada did not
properly preserve this issue for appeal. Porada improperly filed an amended notice of appeal, without
leave of this court. Rule 303(b)(5) allows an appellant to file an amended notice of appeal without leave
of court within 30 days of the court’s final order from which they are appealing. Ill. S. Ct. R. 303(b)(5)
(eff. July 1, 2017). “Thereafter it may be amended only on motion, in the reviewing court, pursuant to
paragraph (d) of this rule.” Id. Because the determination of whether a prevailing party is entitled to
attorney fees and, if so, the calculation of those fees are determinations independent of the underlying
judgment (Servio v. Paul Roberts Auto Sales, Inc., 211 Ill. App. 3d 751, 758 (1991)), the October 18,
2017, award of attorney fees was an independent order from the July 18, 2017, dismissal of Porada’s
complaint. Accordingly, the proper avenue for Porada to confer appellate jurisdiction over the October
18, 2017, attorney fees award would have been either to file a new, separate notice of appeal, which this
court could have consolidated with his prior notice of appeal, or to file a motion in this court to amend his
prior notice of appeal to include the award of attorney fees. However, Porada did neither. Instead, he
simply tried to amend his prior of notice of appeal, without leave of this court, more than three months
after the trial court’s final order from which he originally appealed.
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is no proposed amended complaint in the record on appeal. This results in the issue being
forfeited Morris v. Ameritech Illinois, 337 Ill. App. 3d 40, 51 (2003).
¶ 20 CONCLUSION
¶ 21 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County to
the extent that it dismissed Porada’s complaint pursuant to section 2-615 of the Code, but we
vacate the judgment to the extent the dismissal was premised on section 2-619 of the Code as a
SLAPP lawsuit. Accordingly, the award of attorney fees based on the Act is vacated, as the
defendants prevailed based on section 2-615, not the Act.
¶ 22 Affirmed in part and vacated in part.
¶ 23 PRESIDING JUSTICE DELORT, specially concurring:
¶ 24 This case proves the rule that many condominium disagreements are so acrimonious that
they generate financial and emotional costs far disproportionate to the original dispute. While I
join Justice Cunningham’s majority opinion order in full, I write separately to express my
concern about the conduct of the plaintiff in this case.
¶ 25 This case, and the still-pending chancery case, involve who may use a parking space in
downtown Chicago and the aftermath of the condominium association’s decision to enforce its
parking rules against Porada. The parking space is located in a condominium building which
itself is a mere stone’s throw from the Daley Center, where the chancery case was being heard.
Notwithstanding this fact, Porada chose not to simply file a counterclaim in that original lawsuit.
Instead, he filed a new case in the sixth municipal district courthouse in Markham, Illinois, 25
miles from the Daley Center and a good hour’s drive away in normal traffic. He did this,
ostensibly, because one of the 12 defendants whom he sued lived in the sixth municipal district.
The defendants tried to move the case, but the mechanisms they chose—a motion to transfer
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venue and a second motion to transfer under forum non conveniens—were inappropriate
remedies given the facts. They should have simply presented a motion before the assignment
judge of the law division to consolidate or transfer the case as related to the chancery case. See
Cook Co. Cir. Ct. G.O. 12.1(a) (Feb. 1, 1964). Based on the record, the arguments in the brief,
and Porada’s evasive attitude at oral argument, I am left convinced that his decision to file this
case in the sixth municipal district was a tactic intended to needlessly harass the defendants and
increase litigation costs.
¶ 26 The tone of Porada’s written arguments is also worthy of comment. Zealous advocacy
will sometimes require pointed and strong language. But the following passage from Porada’s
reply brief illustrates that he has difficulty exhibiting the level of decorum required of a member
of the Illinois bar:
“Defendants’ convoluted, confusing and complicated hodgepodge
of stream-of-consciousness ramblings, baseless accusations,
ridiculous conspiracy theories, disjointed argument and irrelevant
exhibits, under the guise of ‘retaliatory motives’ ***, are nothing
but a charade masquerading as ‘proof’.” (Emphasis in original.)
¶ 27 At oral argument, Porada conceded the tone of this passage was inappropriate. Since this
single passage was just one among many exhibiting the same highly derisive and sarcastic tone,
he should be admonished to adhere to appropriate standards of advocacy in the future.
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