source: Caselaw Access Project

author: Donofrio, J.

license: Public Domain

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. Barbara PUSSER, et al., Defendants-Appellant.
    No. 17 MA 0117
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: June 29, 2018
    Atty. Kirk Roman, 50 South Main Street, Suite 502, Akron, Ohio 44308, for Plaintiff-Appellee.
    Atty. Timothy Cunning, Scullin & Cunning, LLC, 940 Windham Court, Suite 4, Boardman, Ohio 44512, for Defendants-Appellants.
    BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
    OPINION AND JUDGMENT ENTRY
   Donofrio, J.

{¶ 1} Defendant-appellant, the Estate of Robert D. Boak (the Estate), appeals from a Mahoning County Common Pleas Court judgment granting summary judgment in favor of plaintiff-appellee, Nationwide Mutual Fire Insurance Company (Nationwide), and determining no coverage existed for a vehicle-pedestrian fatality.

{¶ 2} Defendants Barbara Pusser and Diane Lapaze are sisters. Pusser began living with Lapaze in December 2009.

{¶ 3} On March 17, 2011, Lapaze signed a policy application with appellee for automobile insurance (the Application). Lapaze signed the Application as the named insured or applicant. The Application contains statements that:

I ALSO UNDERSTAND THAT MISREPRESENTATION OF INFORMATION ON THIS APPLICATION, INCLUDING FAILURE TO DISCLOSE A DRIVER OR MEMBER OF THE HOUSEHOLD, COULD VOID SOME OR ALL OF MY COVERAGES.
I hereby declare that the facts stated in the above application are true and request the company to issue the insurance and any renewal thereof in reliance thereon, with the understanding that I personally will provide any information requested on any policy questionnaire sent to me by the company.

(Application, p. 5).

{¶ 4} The Application included a section for the applicant to list "ALL HOUSEHOLD MEMBERS OF DRIVING AGE AND NON-RESIDENT OPERATORS." Lapaze listed only herself. She did not list Pusser as a household member of driving age despite the fact that Pusser met this definition.

{¶ 5} Pusser did not have a valid driver's license. Apparently her license was suspended sometime prior due to a driving under the influence charge and she never obtained a valid license after that.

{¶ 6} Nationwide issued the automobile policy to Lapaze on March 17, 2011 (the Policy). The vehicle insured under the Policy was Lapaze's Dodge Neon.

{¶ 7} In 2012, Lapaze was diagnosed with dementia.

{¶ 8} On August 13, 2012, Pusser was operating Lapaze's Dodge Neon when she struck and killed Robert Boak as he was walking on Midlothian Boulevard. A third party, Dennis Lehman, was also operating a vehicle that was involved in the accident. The Policy was in effect at that time.

{¶ 9} On March 28, 2014, Nationwide filed a declaratory judgment action against Pusser, Lapaze through her legal guardian, Lehman, and the Estate seeking a declaration that it does not owe liability coverage to Pusser or Lapaze and does not owe coverage that would insure to the benefit of Lehman or the Estate.

{¶ 10} Nationwide filed a motion for summary judgment asserting no genuine issues of material fact as to (1) the Policy was void ab initio due to a breach of the warranties contained therein and failure to disclose Pusser as a driver and (2) Pusser could not be a permissive user of Lapaze's vehicle because Lapaze lacked the mental capacity to permit Pusser to use the vehicle.

{¶ 11} The Estate filed a response in opposition and a competing motion for summary judgment asserting (1) Nationwide could not void the Policy ab initio, (2)

even if Nationwide could have voided the Policy, it waived that right by failing to cancel the Policy before it expired and continuing to insure Lapaze after the accident, (3) Nationwide was the party in position to discover any fraud, and (4) a genuine issue of material fact existed as to whether Lapaze had the necessary capacity to giver Pusser permission to operate her vehicle.

{¶ 12} The trial court granted Nationwide's motion for summary judgment and denied the Estate's motion for summary judgment. In so doing, the court found the Policy was void ab initio due to a breach of the warranties in the Application and the Policy concerning the disclosure of all drivers and other operators in Lapaze's household.

{¶ 13} The Estate filed a timely notice of appeal on July 25, 2017. The Estate is the only appellant in this appeal. It now raises two assignments of error.

{¶ 14} In reviewing a trial court's decision on a summary judgment motion, appellate courts apply a de novo standard of review. Cole v. Am. Industries & Resources Corp. , 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998). Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming , 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

{¶ 15} The Estate's two assignments of error share the same basis in law and fact. Therefore, we will address them together.

{¶ 16} The Estate's first and second assignments of error state, respectively:

THE TRIAL COURT ERRED WHEN IT DENIED THE ESTATE OF ROBERT D. BOAK'S MOTION FOR SUMMARY JUDGMENT.
THE TRIAL COURT ERRED WHEN IT GRANTED NATIONWIDE'S MOTION FOR SUMMARY JUDGMENT.

{¶ 17} This case is controlled by Allstate Ins. Co. v. Boggs , 27 Ohio St.2d 216, 271 N.E.2d 855 (1971).

{¶ 18} In Boggs , the Ohio Supreme Court observed that there are two types of statements by an insured in insurance policies: warranties and representations. Id. at 218, 271 N.E.2d 855. The Court stated it is important to differentiate between the two types of statements because

[t]he consequences of a misstatement of fact by an insured are entirely different, depending on whether the statement is a warranty or a representation. If the statement is a warranty, a misstatement of fact voids the policy ab initio. However, if the statement is a representation, a misstatement [sic.] by the insured will render the policy voidable, if it is fraudulently made and the fact is material to the risk, but it does not void the policy ab initio.

Id. at 218-219, 271 N.E.2d 855.

{¶ 19} The Court went on to define the two types of statements. It stated that a representation is "made prior to the issuance of the policy which tends to cause the insurer to assume the risk." Id. at 219, 271 N.E.2d 855. On the other hand, a warranty "is a statement, description or undertaking by the insured of a material fact either appearing on the face of the policy or in another instrument specifically incorporated in the policy." Id. The Court held:

Although an applicant's misstatement in an insurance application, if shown to be material to the risk and fraudulently made, is grounds for cancellation of the policy, such representation, standing alone, does not render the policy void ab initio and may not be used to avoid liability arising under the policy after such liability has been incurred.

Id. at paragraph one of the syllabus.

{¶ 20} Moreover, if the insurer intends that a misstatement by an insured will render a policy void ab initio, that intent "must appear clearly and unambiguously from the terms of the policy." Id. at 219, 271 N.E.2d 855.

{¶ 21} Courts have since followed Boggs' two-prong test in determining if a misstatement voids an insurance policy. Am. Family Ins. Co. v. Johnson , 8th Dist. Cuyahoga No. 93022, 2010-Ohio-1855, 2010 WL 1712240, ¶ 16, citing Horton v. Safe Auto Ins. Co., 10th Dist. No. 00AP-1017, 2001 WL 664421 (June 14, 2001). In order for a misstatement to be a warranty that voids a policy ab initio, first, the representation must plainly appear on the policy or must be plainly incorporated into the policy. Id. Second, there must be a plain warning that a misstatement as to the warranty will render the policy void from its inception. Id.

{¶ 22} The Estate argues that in this case the Policy does not include any language that a misstatement will render the Policy void from its inception. Instead, it states that a misstatement "may" cause the Policy to be held void ab initio and that the Policy "could" be void from the beginning. The Estate asserts that because the Policy does not clearly and unambiguously warn that a misstatement will render it void, it does not satisfy Boggs and summary judgment in favor Nationwide was not warranted.

{¶ 23} Alternatively, the Estate argues Nationwide waived its right to void the policy because it did not return Lapaze's premium. It points out that the Policy provides that it may be held void ab initio "upon return of the policyholder's premium." (Policy, p. G4). Therefore, the Estate contends, Nationwide could not void the Policy.

{¶ 24} Finally, the Estate argues that it is an innocent party to this situation and it should not be forced to pay the price for Nationwide's negligence in failing to discover that it was defrauded.

{¶ 25} We must apply Boggs ' two-part test to the case at hand to determine if Lapaze's misstatement voided the Policy. First, we must look at whether the misstatement plainly appears on the Policy or is plainly incorporated into the Policy.

{¶ 26} The misstatement that Lapaze is the only household member of driving age in her household is contained in the Application. The Application is plainly incorporated into the Policy at page G4 wherein the Policy states, "The application for this policy is incorporated herein and made a part of this policy." Thus, the first part of the Boggs test is satisfied.

{¶ 27} Second, there must be a plain warning that a misstatement as to the warranty will render the policy void from its inception.

{¶ 28} The Application provides:

IF AN INCORRECT ANSWER IS GIVEN TO A QUESTION LISTED AS A WARRANTY, IN EITHER THIS APPLICATION OR THE POLICY
CONTRACT, SUCH A MISSTATEMENT MAY VOID THE POLICY.

(Italics added).

{¶ 29} Additionally, the Policy provides:

13. REPRESENTATIONS AND WARRANTIES IN THE APPLICATION The application for this policy is incorporated herein and made a part of this policy. * * * The policyholder agrees that the statements in the Declarations and the application for this policy are his or her agreements, representations and warranties. * * * If it is determined that any warranty made by the policyholder is incorrect, this policy may be held void ab initio, or void back to the date of inception, upon return of the policyholder's premium.
Warranties which, if incorrect, could void the policy from the beginning are:
* * *
(2) all drivers and other operators in the household;
(3) use of the insured vehicle

(Italics added; Policy, p. G4).

{¶ 30} The language employed by Nationwide in both the Application and the Policy is not a plain warning that a misstatement as to the warranty will render the policy void from its inception. Neither the Application nor the Policy states unconditionally that a misstatement as to a warranty will render the Policy void ab initio. Instead, the insurer chose to use the words "may" and "could" in the phrases "such a misstatement may void the policy", "this policy may be held void ab initio", and "[w]arranties which, if incorrect, could void the policy from the beginning." The use of these words speaks of possibilities, not certainties. Thus, they do not provide a plain warning as required by Boggs .

{¶ 31} Regarding the same type of language, the Eighth District has held:

[T]he policy language "we may void this policy" is not a clear warning to the insured that a misstatement shall render the policy void. Rather, it is a general statement reflecting the long-standing point of law that a "contract induced by fraud is not void, but it is voidable at the election of the one defrauded." Columbus & T.R. Co. v. Steinfeld (1884), 42 Ohio St. 449, 455.

(Emphasis sic.); James v. Safeco Ins. Co. of Illinois , 195 Ohio App.3d 265, 2011-Ohio-4241, 959 N.E.2d 599 (8th Dist.), ¶ 25.

{¶ 32} Moreover, Boggs specifically held that if the insurer intends a misstatement by an insured will render a policy void ab initio, the insurer's intent "must appear clearly and unambiguously from the terms of the policy." (Emphasis added); Boggs, at 219, 271 N.E.2d 855. The words "may" and "could" do not clearly and unambiguously put the insured on notice that a misstatement will render a policy void ab initio. These words speak only of a possibility.

{¶ 33} Additionally, it was undisputed that Nationwide never declared the Policy void nor did it return Lapaze's premium. The Policy specifically states that if it is determined that the policyholder made an incorrect warranty, then the Policy "may be held void ab initio, or void back to the date of inception, upon return of the policyholder's premium." (Policy, p. G4). Because Nationwide did not declare the Policy void and return Lapaze's premium, it failed to even attempt to void the Policy by its terms.

{¶ 34} For these reasons, the trial court erred in granting summary judgment in favor of Nationwide. Instead, the court should have granted summary judgment in favor of the Estate. No genuine issue of material fact exists.

{¶ 35} Accordingly, the Estate's first and second assignments of error have merit and are sustained.

{¶ 36} For the reasons stated above, the trial court's judgment is hereby reversed and summary judgment is entered in favor of the Estate.

Robb, P.J., concurs

Waite, J., concurs


author: TEODOSIO, Presiding Judge.

text:
    IN RE: M.M.
    Nos. 18CA011249 18CA011255
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: July 16, 2018
    LORI K. BROBST, Attorney at Law, for Appellant.
    DENISE E. FERGUSON, Attorney at Law, for Appellant.
    SCOTT PARIS, Attorney at Law, for Appellee.
    DENNIS P. WILL, Prosecuting Attorney, and CARA FINNEGAN, Assistant Prosecuting Attorney, for Appellee.
    MARIE BANKS, Guardian ad Litem.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Presiding Judge.

{¶ 1} Appellants, M.D. ("Mother"), and J.L. ("Father"), appeal from a judgment of the Lorain County Court of Common Pleas, Juvenile Division, that placed their minor child in the legal custody of a third party, Mr. M. Because Father was prejudiced by the magistrate's failure to issue a decision that complied with Juv.R. 40(D)(3)(a)(iii), this Court reverses and remands.

I.

{¶ 2} Mother and Father are the biological parents of M.M., born June 20, 2006. Mr. M. was romantically involved with Mother for many years, including while Mother became pregnant with M.M. For the first eight years of the child's life, Mr. M. believed that he was M.M.'s biological father. After his relationship with Mother ended, Mr. M. learned through genetic testing that he was not M.M.'s father.

{¶ 3} On December 2, 2015, Lorain County Children Services ("LCCS") filed a complaint, alleging that M.M. was a neglected and dependent child because the identity of the child's father was unknown and Mother lacked stable income and housing, struggled with mental health problems, and was not meeting the child's basic needs. Because the identity of M.M.'s father was not known, the complaint was served by publication. Father later contacted LCCS and was confirmed to be the child's father.

{¶ 4} M.M. was later adjudicated neglected and dependent and placed in the temporary custody of Mr. M. The case proceeded to a final hearing on alternative dispositional motions, including a motion to place M.M. in the legal custody of Mr. M. and another to return him to the legal custody of Mother. Following the hearing, the magistrate determined that M.M. should be placed in the legal custody of Mr. M. The trial court adopted the decision the same day, pending the filing of timely objections.

{¶ 5} Mother filed timely objections, but Father filed no objections to the magistrate's decision. The trial court later overruled Mother's objections and placed M.M. in the legal custody of Mr. M. Mother and Father separately appealed and their appeals were later consolidated. Each parent raises three assignments of error.

{¶ 6} Rather than addressing the merits of the parents' assignments of error, this Court raises another issue that renders the parents' assignments of error moot. A review of the record revealed that Father failed to raise timely, written objections to the magistrate's decision. Because he failed to comply with Juv.R. 40(D)(3)(b)(iv), this Court would normally conclude that he had forfeited all but plain error. See In re B.C. , 9th Dist. Summit Nos. 26976 and 26977, 2014-Ohio-2748, 2014 WL 2918457, ¶24.

{¶ 7} Although Father was required to comply with the procedural requirements of Juv.R. 40, so was the trial court. Notably, the magistrate was required to provide the parties with proper written notice about their rights to object to the decision and of the legal consequences of failing to do so. Juv.R 40(D)(3)(a)(iii) provides, in relevant part, that the written magistrate's decision:

shall indicate conspicuously that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Juv.R. 40(D)(3)(b).

{¶ 8} This Court has construed identical language within the context of Civ.R. 53 and held that the appellant will not be deemed to have forfeited appellate review for failing to file objections in the trial court unless the magistrate's decision included a conspicuous and complete advisement in compliance with Civ.R. 53(D)(3)(a)(iii). See, e.g. , M.H. v. J.H. , 9th Dist. Medina No. 16CA0055-M, 2017-Ohio-8679, 2017 WL 5706128, ¶ 12-14 ;

Ball v. Meier , 9th Dist. Summit Nos. 26079 and 26109, 2012-Ohio-5864, 2012 WL 6206659, ¶18-23. Instead, because the aggrieved party suffered prejudice from the magistrate's failure to include the required notice, this Court has reversed and remanded the matter to the trial court for the magistrate to prepare a decision that complies with Civ.R. 53 and provides the parties with an opportunity to file timely objections. See id.

{¶ 9} In M.H. v. J.H. , the magistrate's decision included no notice whatsoever to advise the parties about their rights and responsibilities to file timely written objections. Id. at ¶ 12. Because the magistrate failed to comply with the specific mandate of Civ.R. 53(D)(3)(a)(iii), this Court did not fault the appellant for failing to file objections to the magistrate's decision under Civ.R. 53(D)(3)(b), but instead reversed and remanded the matter to the trial court "for the magistrate to prepare a decision that complies with the rule and provides the parties an opportunity to file objections." Id. at ¶ 14.

{¶ 10} This Court's reasoning under Civ.R. 53 applies with full force to magistrate's decisions filed pursuant to identical language in Juv.R. 40. As in M.H. v. J.H. , the magistrate's decision in this case failed to include any notice about the aggrieved parties' need to file timely objections to avoid forfeiture of issues on appeal. Father suffered prejudice because he did not file objections. Consequently, this Court must reverse and remand the trial court's judgment for the magistrate to prepare and file a magistrate's decision that complies with the specific legal requirements of Juv.R. 40 and provides the parties with an opportunity to file timely written objections. For that reason, the parties' assignments of error have been rendered moot and will not be addressed. See App.R. 12(A)(1)(c).

III.

{¶ 11} The parents' assignments of error have been rendered moot and will not be addressed. The judgment of the Lorain County Court of Common Pleas is reversed and remanded for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

CARR, J.

CALLAHAN, J.

CONCUR


text:
    The STATE of Illinois EX REL. SCHAD, DIAMOND & SHEDDEN, P.C., Appellant, v. MY PILLOW, INC., Appellee.
    Docket No. 122487
    Supreme Court of Illinois.
    Opinion filed September 20, 2018
    Stephen B. Diamond, of Stephen B. Diamond, P.C., Tony Kim and Matthew Burns, of Kim & Burns LLP, David A. Genelly, of Vanasco, Genelly & Miller, and Michael W. Rathsack, all of Chicago, for appellant.
    Catherine A. Battin and Daniel R. Campbell, of McDermott Will & Emery LLP, of Chicago, for appellee.
    David S. Ruskin and David A. Hughes, of Horwood Marcus & Berk Chtrd., of Chicago, for amicus curiae Illinois Chamber of Commerce.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Brett E. Legner, Deputy Solicitor General, of Chicago, of counsel), amicus curiae.
   CHIEF JUSTICE KARMEIER delivered the judgment of the court, with opinion.

¶ 1 This appeal presents a single issue: where the relator in a successful qui tam action brought against a corporation for the benefit of the State of Illinois under the Illinois False Claims Act (Act) ( 740 ILCS 175/1 et seq. (West 2012) ) is a law firm, does section 4(d)(2) of the Act (id. § 4(d)(2) ) entitle the firm to an award of both a reasonable amount "for collecting the civil penalty and damages" from the corporation on behalf of the State and an additional amount in attorney fees for the services performed by the firm's own lawyers for the same work? The circuit court concluded that it does and awarded the law firm not only a share of the proceeds for its efforts in collecting the penalty and damages from the corporation but also a substantial additional sum for attorney fees, expenses, and costs. The appellate court affirmed in part, reversed in part, and remanded. While it agreed that the law firm was entitled to an award of attorney fees for outside counsel it had retained, it held that the statute does not authorize an award of attorney fees for work done by the firm's own attorneys. It therefore sent the case back to the circuit court to recalculate the amount of fees the firm was entitled to recover. 2017 IL App (1st) 152668, ¶ 158, 415 Ill.Dec. 423, 82 N.E.3d 627. We allowed the law firm's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. July 1, 2017) ) and granted leave to the Attorney General of the State of Illinois and the Illinois Chamber of Commerce to file friend of the court briefs in support of the defendant ( Ill. S. Ct. R. 345 (eff. Sept. 20, 2010) ). For the reasons that follow, we affirm the appellate court.

¶ 2 BACKGROUND

¶ 3 In July 2013, the law firm of Schad, Diamond and Shedden, P.C., subsequently known as Stephen B. Diamond, P.C. (Diamond), filed a qui tam action against My Pillow, Inc. (My Pillow), a Minnesota corporation, pursuant to the Act ( 740 ILCS 175/1 et seq. (West 2012) ). Diamond amended its complaint a number of times, but the particulars of the revisions are unimportant. The gist of its claim was that My Pillow had "knowingly conceal[ed] or knowingly and improperly avoid[ed] or decrease[d] an obligation to pay or transmit money or property to the state" in violation of section 3(a)(1)(G) of the Act. Id. § 3(a)(1)(G). More specifically, Diamond charged that My Pillow had failed to collect and remit to the State tax due under the Retailers' Occupation Tax Act ( 35 ILCS 120/1 et seq. (West 2012) ) and the Use Tax Act ( 35 ILCS 105/1 et seq. (West 2012) ) and had knowingly made false statements, kept false records and avoided obligations in violation of both statutes. The law firm's Retailers' Occupation Tax Act allegations arose from the sale of My Pillow products at craft shows. Its Use Tax Act claims pertained to the company's sale of its products online and by phone.

¶ 4 While the Act authorizes the attorney general to bring a civil action against persons the attorney general has found to be in violation of section 3 of the Act (see 740 ILCS 175/4(a) (West 2012) ), it also expressly permits such actions to be commenced by private parties, as this one was (see id. § 4(b)(1) ). Where, as here, a private party initiates the action, the cause must be brought in the name of the State (id. ), and the State must be served with a copy of the complaint and other documents (id. § 4(b)(2) ). The State then has the right to intervene and take over the action. Id. If it elects not to proceed, the party who initiated the action has the right to conduct it, subject to certain ongoing rights of the State. Id. §§ 4(b)(4)(B), 4(c)(3). There is no dispute that the State received the requisite notice in this case and expressly elected not to proceed with the action itself, yielding the right to conduct the litigation to Diamond.

¶ 5 From filing of the complaint to final judgment, Diamond the relator was represented by Diamond the law firm. The complaint, which was amended several times, specifically identified the relator as "Shad, Diamond & Shedden, P.C.," initially and then, after the firm changed its name, as "Stephen B. Diamond, P.C. (f/k/a Schad, Diamond & Shedden, P.C.) * * * a professional corporation located at 332 South Michigan Avenue, Suite 1000, Chicago, Illinois 60604." All subsequent pleadings in the case were filed by the firm itself, under that same name, using the law firm attorney code issued to it by the clerk's office in Cook County.

¶ 6 In its complaint, Diamond alleged that it made the purchases of My Pillow products at craft shows, online, and by telephone. Exhibits attached to the complaint show the billing and shipping address for all but one of the online purchases as being that of Diamond's office. The lone sale not sent to the firm's office was shipped to attorney Stephen Diamond (Stephen), the firm's president. Pleadings and other documents filed in the case on behalf of Diamond bore Diamond's name and address, often without the signature of any individual attorney. Stephen and other attorneys from Diamond conducted depositions for Diamond. During the two-day bench trial, Stephen served not only as lead trial counsel for Diamond but also testified as a witness. Two other Diamond lawyers served similar dual roles, representing Diamond and also appearing as witnesses on its behalf. While an outside law firm also appeared as counsel of record for Diamond, its involvement in the case was extremely small. In every meaningful respect, Diamond represented itself.

¶ 7 At the conclusion of the bench trial, the circuit court issued a written decision, finding in favor of My Pillow and against Diamond on Diamond's Retailers' Occupation Tax Act claims, but in favor of Diamond and against My Pillow on Diamond's Use Tax Act claims. Following additional briefing and a hearing, the circuit court ordered My Pillow to pay $343,227 in damages and $225,500 in statutory penalties, for a total of $568,727. The court subsequently increased this award to $782,667. It also recognized that the litigation had resulted in My Pillow paying the State an additional $106,970 in use taxes it owed, bringing the total proceeds from the action to $889,637.

¶ 8 Pursuant to section 4(d)(2) of the Act (id. § 4(d)(2) ), a private party bringing a successful claim under the Act is entitled to receive not less than 25% nor more than 30% of the proceeds of the action to compensate it for recovering the money on behalf of the State. In this case, the circuit court made an award at the top end of the range, holding that My Pillow should pay 30% of the $889,637 in total proceeds, or $266,891, to Diamond with the balance to be paid directly to the State.

¶ 9 In addition to receiving 30% of the proceeds as compensation for its bringing the action against My Pillow on the State's behalf, Diamond asserted that, under section 4(d)(2) of the Act, My Pillow was also required to pay it "an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs." Id. Diamond submitted a lengthy fee petition in support of its claim. The total amount requested was $748,383. This sum included $29,499 in office, travel, and other expenses incurred by Diamond and $1094 it expended for purchases of My Pillow products; $4824 for what Diamond described as "common fees and expenses"; and $1800 in attorney fees Diamond paid to the law firm of Vanesco Genelly & Miller for 4.5 hours of work performed by that firm in connection with this litigation. By far the largest portion of the fee request, however, was $697,760 in attorney fees for work performed by Diamond itself in investigating and litigating this case and an additional $14,500 Diamond billed to draft the fee petition, an amount Diamond described as "substantially less than Relator's [ (Diamond's) ] actual fees of $22,644."

¶ 10 Diamond's request for $697,760 in attorney fees for its own work was supported by a voluminous and detailed printout showing the date the work was done, who did it, what their billable rate was, how many hours were worked, the total charge for each item, and a description of the service performed. It is clear from those entries that there was no differentiation between Diamond the relator and Diamond the law firm. Along with charges for legal research, drafting of documents, and court appearances were charges for scheduling visits to craft shows, attending the shows, purchasing My Pillow products, and checking credit card statements for My Pillow purchases. In addition, while individual lawyers with Diamond both conducted the trial and appeared as witnesses on Diamond's behalf, the attorney fee request made no distinction between these roles. Time spent making purchases and giving testimony was not separated out from time devoted to making legal arguments and examining witnesses. Every action taken in the case by Diamond, the relator, was also billed by Diamond, the law firm. It all involved the same work by the same people.

¶ 11 My Pillow objected to the fees sought by Diamond for work done by the firm's own attorneys on the grounds that the firm had proceeded pro se and that lawyers representing themselves are not entitled to statutory fee awards. My Pillow further argued that allowing Diamond to recover attorney fees for the work done by the firm's own lawyers in addition to the share of the award Diamond received as compensation for bringing the action against My Pillow would give the firm an impermissible windfall. In effect, Diamond would be paid twice for the same work. In addition, My Pillow contended that Diamond's fee request was excessive and unreasonable and included expense items that are normally included in office overhead, encompassed within the hourly rate the firm billed, and not properly compensable as a separate expense.

¶ 12 The circuit court found that Diamond was entitled to a reasonable award of its attorney fees, costs, and expenses, including attorney fees for work performed for the law firm's own lawyers, but it reduced the total number of hours for which they could be compensated. It denied $17,106.21 in photocopying, binding, and scanning expenses and held that Diamond was not entitled to certain taxicab fees or fees the firm sought to reimburse it for the numerous products it had purchased from My Pillow when investigating the case. With these reductions, the total attorney fees, costs, and expenses awarded to Diamond amounted to $600,960. This sum was in addition to the $266,891 awarded to the law firm to compensate it for its efforts in recovering damages and penalties from My Pillow for the benefit of the State of Illinois.

¶ 13 My Pillow appealed the circuit court's judgment, arguing that the court had erred when it found that the company had violated the Act, that the court had miscalculated the amount of damages My Pillow was required to pay, and that the court should not have awarded Diamond attorney fees because the firm was proceeding pro se and pro se litigants cannot recover attorney fees for their own work. My Pillow further asserted, in the alternative, that the fee award was improper because it included charges for legal work done in connection with Diamond's unsuccessful claim related to the sale of My Pillow products at craft shows. 2017 IL App (1st) 152668, ¶ 33, 415 Ill.Dec. 423, 82 N.E.3d 627.

¶ 14 In a published opinion, the appellate court affirmed in part, reversed in part, and remanded for further proceedings. It upheld the damage award in full and ruled that the circuit court had not erred in awarding attorney fees for work related to the firm's craft fair claims. It held, however, that Diamond could not recover attorney fees for any of the work performed by the firm's own lawyers on any of the claims. The only attorney fees for which it was entitled to an award were those incurred by the outside counsel it had hired to assist it. The appellate court therefore remanded to the circuit court for recalculation of the attorney fee award consistent with that determination. Id. ¶ 158.

¶ 15 Diamond petitioned this court for leave to appeal, which we allowed. Ill. S. Ct. R. 315(a) (eff. July 1, 2017). The sole question presented is whether the appellate court erred when it held, contrary to the circuit court, that Diamond was not entitled to an award of attorney fees for work performed by the firm itself.

¶ 16 ANALYSIS

¶ 17 Illinois has long followed the "American rule" regarding the award of attorney fees. Under that rule, each party to litigation must normally bear its own litigation expenses, regardless of who won. Morris B. Chapman & Associates, Ltd. v. Kitzman , 193 Ill.2d 560, 572, 251 Ill.Dec. 141, 739 N.E.2d 1263 (2000). Prevailing parties are prohibited from recovering their attorney fees from the losing party absent express authorization by statute or by contract between the parties. Sandholm v. Kuecker , 2012 IL 111443, ¶ 64, 356 Ill.Dec. 733, 962 N.E.2d 418 ; Henke v. Guzenhauser , 195 Ill. 130, 135, 62 N.E. 896 (1902).

¶ 18 In this case, Diamond's claim for attorney fees is predicated on a statute, specifically, section 4(d)(2) of the Act ( 740 ILCS 175/4(d)(2) (West 2012) ). Because they are in derogation of the common law, statutes such as section 4(d)(2) that allow for fee awards must be strictly construed. Sandholm , 2012 IL 111443, ¶ 64, 356 Ill.Dec. 733, 962 N.E.2d 418. Nothing is to be read into such statutes by intendment or implication. Even if a statute has remedial features, if it is in derogation of the common law, " 'it will be strictly construed when determining what persons come within its operation.' "

JPMorgan Chase Bank, N.A. v. Earth Foods, Inc. , 238 Ill.2d 455, 463, 345 Ill.Dec. 644, 939 N.E.2d 487 (2010) (quoting In re W.W. , 97 Ill.2d 53, 57, 73 Ill.Dec. 347, 454 N.E.2d 207 (1983) ). The construction of a statute presents a question of law ( McVey v. M.L.K. Enterprises, LLC , 2015 IL 118143, ¶ 11, 392 Ill.Dec. 536, 32 N.E.3d 1112 ), and to the extent an appeal from an award of attorney fees turns on issues of statutory construction, our review is de novo ( In re Marriage of Nash , 2012 IL App (1st) 113724, ¶ 15, 365 Ill.Dec. 802, 979 N.E.2d 406 ; Trutin v. Adam , 2016 IL App (1st) 142853, ¶ 30, 403 Ill.Dec. 617, 54 N.E.3d 277 ).

¶ 19 The fee-shifting provision of the Act provides:

"If the State does not proceed with an action under this Section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than 25% and not more than 30% of the proceeds of the action or settlement and shall be paid out of such proceeds. Such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs. All such expenses, fees, and costs shall be awarded against the defendant. The court may award amounts from the proceeds of an action or settlement that it considers appropriate to any governmental entity or program that has been adversely affected by a defendant. The Attorney General, if necessary, shall direct the State Treasurer to make a disbursement of funds as provided in court orders or settlement agreements." 740 ILCS 175/4(d)(2) (West 2012).

¶ 20 In the case before us, there is no question that the State elected not to bring an action under the Act itself. The action was initiated, instead, by Diamond, a law firm. Although the firm is organized as a professional service corporation, a corporate body is a "person" within the meaning of the Act. Such a construction comports with section 1.05 of the Statute on Statutes ( 5 ILCS 70/1.05 (West 2012) ) and the ordinary and popularly understood meaning of the term ( M.S. Kind Associates, Inc. v. Mark Evan Products, Inc. , 222 Ill.App.3d 448, 450, 165 Ill.Dec. 1, 584 N.E.2d 180 (1991) ), is not inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute ( 5 ILCS 70/1 (West 2012) ), and is not disputed by the parties. Accordingly, under the clear and unambiguous terms of the Act, Diamond was entitled to receive a percentage of the amount My Pillow was found to owe in order to compensate the firm collecting that sum. It was likewise entitled to "receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs." 740 ILCS 175/4(d)(2) (West 2012).

¶ 21 The judgment entered by the circuit court in favor of Diamond and against My Pillow included an award of all of these items, including attorney fees. The problem, as the appellate court recognized, is that the circuit court awarded fees not only for services performed by the outside counsel hired by Diamond to help it bring the case-fees it was unquestionably entitled to receive-but also fees for the work done by the law firm itself in prosecuting its own claim. We agree with the appellate court that this was error.

¶ 22 More than 150 years ago, our court expressly rejected the notion that an attorney who represents himself or herself in a legal proceeding may charge a fee for professional services in prosecuting or defending the case. "To allow him to become his own client and charge for professional services in his own cause, although in a representative or trust capacity, would be holding out inducements for professional men to seek such representative place to increase their professional business, which would lead to most pernicious results. This is forbidden by every sound principle of professional morality as well as by the policy of the law." Willard v. Bassett , 27 Ill. 37, 38 (1861).

¶ 23 While notions of "professional morality" have evolved since the mid-nineteenth century, our court has continued to adhere to the principle that it is contrary to public policy of Illinois to allow an attorney "to become his own client and charge for professional services in his own cause." Cheney v. Ricks , 168 Ill. 533, 549, 48 N.E. 75 (1897). This rule has not been limited to individual lawyers. It has also been extended to their law partners. Stein v. Kaun , 244 Ill. 32, 38, 91 N.E. 77 (1910) (where complainant in a case is a law partner of the attorney by whom the complainant is represented, the complainant may not recover an award of fees for the attorney's services if the fee award would be shared by their law firm).

¶ 24 The most complete modern pronouncement on the subject by our court was made in Hamer v. Lentz , 132 Ill.2d 49, 138 Ill.Dec. 222, 547 N.E.2d 191 (1989). In that case, we expressly held that "[a] lawyer representing himself or herself simply does not incur legal fees." Id. at 62, 138 Ill.Dec. 222, 547 N.E.2d 191. To the extent that a lawyer elects to proceed pro se in a case for which the legislature has provided statutory authorization for an award of attorney fees, he or she therefore has no attorney fees to claim and is not entitled to an award of fees under the statute. Id. at 62-63, 138 Ill.Dec. 222, 547 N.E.2d 191. Although not binding on our construction of the Illinois statute at issue in this case (see People v. Walker , 211 Ill.2d 317, 336, 285 Ill.Dec. 519, 812 N.E.2d 339 (2004) ), the United States Supreme Court reached the same conclusion when applying a federal fee-shifting statute: a lawyer who represents himself or herself should be treated like any other pro se litigant and may not be awarded attorney fees for the work done by that lawyer on his or her own case. Kay v. Ehrler , 499 U.S. 432, 437-38, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991).

¶ 25 In Hamer , our court explained that there are several reasons why self-represented lawyers should be treated the same as any other pro se litigant when it comes to the award of attorney fees. First, where a fee-shifting statute is intended to remove a burden that might otherwise deter litigants from pursuing a legitimate action and was not meant to serve as a reward to successful plaintiffs or a punishment against the government, the rationale for the law is absent when a lawyer is self-represented. Because a pro se lawyer incurs no fees, fees present no barrier to the lawyer's ability to bring his or her cause of action. Hamer , 132 Ill.2d at 62, 138 Ill.Dec. 222, 547 N.E.2d 191.

¶ 26 Fee-shifting statutes may also advance the goal of avoiding unnecessary litigation by encouraging citizens to seek legal advice before filing suit. Again, however, such objectivity is lacking-and this goal is therefore not advanced-when a litigant, lawyer or otherwise, represents himself or herself. Id. In addition, allowing attorneys to collect fees for representing themselves may engender abusive fee generation practices. The most effective way to deter such potential fee generation, we have held, "is to deny fees to lawyers representing themselves." Id. at 62-63, 138 Ill.Dec. 222, 547 N.E.2d 191.

¶ 27 Hamer involved the fee-shifting provisions of Illinois's Freedom of Information Act (FOIA) ( Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq. ).

Hamer , 132 Ill.2d at 51, 138 Ill.Dec. 222, 547 N.E.2d 191. Over the nearly three decades since it was decided, it has been applied not only to FOIA cases but in numerous other contexts as well. See, e.g. , Kehoe v. Saltarelli , 337 Ill.App.3d 669, 678, 272 Ill.Dec. 66, 786 N.E.2d 605 (2003) (attorney who appeared and defended himself in a malpractice action not entitled to an award of attorney fees); In re Marriage of Pitulla , 202 Ill.App.3d 103, 117-18, 147 Ill.Dec. 479, 559 N.E.2d 819 (1990) (rule that attorneys appearing pro se are not entitled to collect attorney fees cited with approval in dissolution action); In re Marriage of Tantiwongse , 371 Ill.App.3d 1161, 1164, 309 Ill.Dec. 291, 863 N.E.2d 1188 (2007) (law firm not entitled to an award of attorney fees for work done by its own lawyers in collecting fees owed to the firm by a client); Uptown People's Law Center v. Department of Corrections , 2014 IL App (1st) 130161, ¶ 25, 379 Ill.Dec. 676, 7 N.E.3d 102 (not-for-profit legal organization that brought successful FOIA action not entitled to an award of attorney fees under FOIA for work performed by its own in-house, salaried lawyers in pursuing the organization's claim); McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust , 2018 IL App (1st) 162478, ¶¶ 28-32, 423 Ill.Dec. 186, 104 N.E.3d 1275 (attorney who appeared and defended himself pro se in civil action not entitled to award of attorney fees as part of sanction imposed on plaintiff under Illinois Supreme Court Rule 137 (eff. July 1, 2013) ).

¶ 28 We agree with the appellate court that the line of precedent running through Hamer and its progeny leads directly to the case before us today and determines its outcome. To the extent that Diamond prosecuted its own claim using its own lawyers, the law firm was proceeding pro se . Under the foregoing authority, the firm was therefore not entitled to an award of attorney fees for the services those lawyers performed in prosecuting the law firm's claim.

¶ 29 In challenging this conclusion, Diamond argues that the same policy considerations underlying Hamer and related precedent are not of concern under the circumstances presented by this case; that a different rule should apply where, as here, the fees are sought by an entity rather that an individual lawyer; and that affirmance of the appellate court's rejection of its fee request will imperil the ability of relators to pursue and obtain significant monetary recoveries for the benefit of the State. Diamond further contends that when the State brings an action itself under the Act, it is entitled to recover, as part of its litigation expenses, attorney fees incurred by the Attorney General in prosecuting the case. See 740 ILCS 175/4(a) (West 2012). If the State can be compensated for the work of the Attorney General, Diamond asserts, Diamond should be compensated for the work done by its lawyers. To hold otherwise, Diamond argues, is contrary to public policy as expressed by the General Assembly and impermissibly substitutes the court's judgment for that of the legislature.

¶ 30 Diamond correctly points out that in Kay , 499 U.S. at 436 n.7, 111 S.Ct. 1435, the United States Supreme Court recognized the possibility that an organizational plaintiff could obtain an award of attorney fees under a federal fee-shifting statute for work done on its behalf by its own in-house counsel because, unlike a self-represented individual litigant, "the organization is always represented by counsel, * * * and thus, there is always an attorney-client relationship." In addition, various lower federal courts have subsequently held that law firms should be treated no differently than other types of organizational plaintiffs under Kay and should therefore likewise be entitled to recover attorney fees under federal fee-shifting statutes for legal work performed by attorneys who belong to or are employed by the firm when it has used those attorneys to prosecute or defend claims by or against the firm itself. 2017 IL App (1st) 152668, ¶, 415 Ill.Dec. 423, 82 N.E.3d 627¶ 114-123. We note, however, that the discussion of organizational plaintiffs in Kay was dicta , and the lower federal courts following that dicta have all involved federal statutes. Applying Illinois law, our appellate court has reached a contrary conclusion, holding that under the reasoning of Hamer , Tantiwongse , and related cases, an organizational plaintiff that sued to obtain access to public records using the services of its in-house counsel was not entitled to recover statutory fees. Uptown People's Law Center , 2014 IL App (1st) 130161, ¶ 25, 379 Ill.Dec. 676, 7 N.E.3d 102.

¶ 31 Without reaching the general question of whether an entity could ever claim statutory attorney fees for work performed by its own in-house attorneys, we agree with the appellate court's conclusion that Diamond was not entitled to such an award here. That is so because in this case, there was nothing that could fairly be characterized as an attorney-client relationship from which an obligation or need to pay an attorney fee might arise. As suggested earlier in this disposition, there was no factual or legal distinction between Diamond the relator and Diamond the law firm. They were one and the same. Their interests in the litigation were identical, and their contributions to the case were indistinguishable. When Diamond the law firm made a legal decision, it was not counseling a client. It was talking to itself.

¶ 32 The nature of the relationship between Diamond the relator and Diamond the law firm was not altered in any way by the fact that it was organized as a professional services corporation. Diamond's corporate form was irrelevant. The salient point is that Diamond the relator and Diamond the law firm were composed of and acted through the very same lawyers. Every action those lawyers took on behalf of Diamond the relator, they took, simultaneously, on behalf of Diamond the law firm and vice versa. The lawyers may have switched hats depending on where they were in the course of these proceedings-traveling to craft shows, placing orders, drafting pleadings, testifying as witnesses, and questioning their colleagues or other witnesses at trial-but when it came time to submit their bills, they were one and the same and considered themselves as such. To the extent that Diamond retained outside counsel to assist it in bringing the case, it had every right to petition for fees to pay those lawyers. To the extent it decided to do the work itself, however, the same considerations were at work here as with any other pro se litigant, and Illinois's long-standing bar against awards of attorney fees to lawyers who represent themselves was fully applicable.

¶ 33 Diamond argues that qui tam actions present a special case because the Attorney General's power to intervene in and retain control of the litigation serves as a check against abusive fee generation by unscrupulous lawyers, one of several concerns we expressed in Hamer . See Scachitti v. UBS Financial Services , 215 Ill.2d 484, 512-13, 294 Ill.Dec. 594, 831 N.E.2d 544 (2005). The Attorney General, in her friend of the court brief, takes strenuous exception to Diamond's characterization of the role played by her office where, as here, it declines to intervene in a case. She asserts that, while her office may retain ultimate control over the litigation, the day-to-day right to conduct the case is ceded to the private litigant, the Attorney General plays no role in determining whether the relator's expenses are justified or reasonable, and the Attorney General therefore provides no guarantee against excessive or frivolous fee generation.

¶ 34 While we are inclined to agree with the Attorney General that her potential participation in a case being conducted by a private litigant is not a reliable check on abusive fee generation practices by that party, the real question before us is not what the law should permit but rather what the law, as written, does permit. As indicated earlier in this opinion, fee-shifting statutes are in derogation of the common law and must therefore be strictly construed when determining what persons come within their operation. Applying such a construction to section 4(d)(2) of the Act, we see nothing therein to suggest that when the General Assembly authorized recovery of "reasonable attorneys' fees and costs" in qui tam actions, it intended to change the established common-law rule in Illinois that litigants who choose to represent themselves rather than retain counsel incur no compensable attorney fees even if they are themselves lawyers and even if they have brought the action on behalf of their own law firm.

¶ 35 It is true, as Diamond points out, that when the State brings an action itself under the Act, it is entitled to recover, as part of its litigation expenses, attorney fees incurred by the Attorney General in prosecuting the case. See 740 ILCS 175/4(a) (West 2012). Contrary to Diamond's belief, however, there is no inconsistency between that provision and the conclusion that Diamond the relator is not likewise entitled to an award of attorney fees for the work done by Diamond the law firm. The situations are fundamentally different. When a private litigant brings a false claims action, the award or settlement it receives if successful is intended to compensate for the costs of "collecting the civil penalty and damages." Id. § 4(d)(2). If the litigant has proceeded pro se , as happened here, awarding that litigant an additional sum in the form of attorney fees results in a double recovery. The litigant is paid twice for the very same thing. Illinois law does not permit such double recoveries, and nothing in the Act suggests that the legislature intended to depart from that rule. See Sommese v. American Bank & Trust Co., N.A. , 2017 IL App (1st) 160530, ¶ 21, 417 Ill.Dec. 1, 87 N.E.3d 285.

¶ 36 When the State itself brings the action, no issue of double recovery arises. In a successful action by the State, all of the damages and penalties it is awarded or receives in settlement constitute a financial remedy for the wrong done by the defendant and suffered by a governmental entity or program. See 740 ILCS 175/3(a)(1), 4(a) (West 2012). No part of it is compensation for the expense of collecting the award. Accordingly, allowing the State to also recover the reasonable expenses incurred by the Attorney General in bringing the action, including reasonable attorney fees and costs, merely helps make the government whole for the harm it sustained. In contrast to a case brought by a self-represented law firm or attorney, a separate award of fees does not result in the State being paid twice for the same costs.

¶ 37 In its arguments before our court, Diamond directs our attention to the significant revenues it has recovered for the State through this and numerous other actions it has brought under the Act. Those successes have doubtlessly benefitted the people of our State. They are not, however, justification for paying Diamond twice for the same work. Having elected to assume the dual role of litigant and lawyer, Diamond must be content with the percentage share of the award it was granted by the circuit court to compensate it for its efforts in collecting that sum. As would be the case with any other pro se litigant, the law does not permit it to claim an additional amount as attorney fees for the work it did itself. The appellate court was therefore correct when it reversed that portion of the circuit court's judgment awarding Diamond attorney fees for work it performed by the firm's own lawyers and remanded the cause for recalculation of the attorney fee award to include only fees for services performed by the firm's outside counsel.

¶ 38 CONCLUSION

¶ 39 For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 40 Affirmed.

¶ 41 JUSTICE NEVILLE took no part in the consideration or decision of this case.

Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

Justice Neville took no part in the decision.

      The professional services corporation form of organization provides law firms with tax and limited liability advantages of incorporation. Ford Motor Credit Co. v. Sperry , 214 Ill.2d 371, 388, 292 Ill.Dec. 893, 827 N.E.2d 422 (2005), overruled in part on other grounds , LVNV Funding, LLC v. Trice , 2015 IL 116129, ¶ 42, 392 Ill.Dec. 245, 32 N.E.3d 553.


text:
    Robert J. PORADA, Plaintiff-Appellant, v. Martha Jane LAVELLE, Scott M. Fleming Sr., Noreen T. Coady, Laurence Bachelard, Teresa Ging, Yvette D. Young, Kate Brindise, 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, Defendants-Appellees.
    1-17-1818
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    NOVEMBER 9, 2018
   JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 The plaintiff-appellant, Robert Porada, appearing pro se , 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 against public participation (SLAPP) 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';
(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] 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, 356 Ill.Dec. 733, 962 N.E.2d 418 (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). 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 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 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.' [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.

¶ 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 [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. See Naperville South Commons, LLC v. Nguyen , 2013 IL App (3d) 120382, ¶ 13, 374 Ill.Dec. 395, 995 N.E.2d 534 (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 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, 407 Ill.Dec. 604, 63 N.E.3d 1036 (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, 331 Ill.Dec. 378, 910 N.E.2d 1134 (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, 313 Ill.Dec. 812, 873 N.E.2d 436 (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, 423 Ill.Dec. 301, 105 N.E.3d 106. "The question for the court is 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, 331 Ill.Dec. 378, 910 N.E.2d 1134.

¶ 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. 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 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. 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 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, 271 Ill.Dec. 411, 785 N.E.2d 62 (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.

Justice Harris concurred in the judgment and opinion.

Presiding Justice Delort specially concurred, with opinion.

¶ 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 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.

      Porada is an attorney.

      This type of lawsuit is also commonly referred to as "anti-SLAPP."

      The underlying lawsuit is currently pending in the circuit court of Cook County.

      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, 362 Ill.Dec. 528, 973 N.E.2d 924.

      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."

      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.

      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.

      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, 156 Ill.Dec. 186, 570 N.E.2d 662 (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.