Markovic v. Marconi

2022 IL App (1st) 220836-U

• Court: Appellate Court of Illinois
• Decided: December 2, 2022
• Docket: 1-22-0836
• Status: Unpublished

Opinion

2022 IL App (1st) 220836-U THIRD DIVISION December 2, 2022 No. 1-22-0836

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

MIROSLAV MARKOVIC, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County v. ) ) JOSEPH R. MARCONI, 4022 NORTH AVERS LLC, ) SAMUEL MARCONI, LISA BANFORD, and BRIAN ) No. 21 L 7951 DOWNING. ) ) Defendants ) ) Honorable (Joseph R. Marconi and 4022 North Avers LLC, ) Daniel J. Kubasiak, ) Judge Presiding. Defendants-Appellees). ) ____________________________________________________________________________

JUSTICE REYES delivered the judgment of the court. Justices Gordon and Burke concurred in the judgment.

ORDER

¶1 Held: Affirming the judgment of the circuit court of Cook County dismissing a complaint with prejudice where the incomplete record on appeal precludes effective appellate review.

¶2 Plaintiff Miroslav Markovic filed a complaint in the circuit court of Cook County against

defendants Joseph R. Marconi, 4022 North Avers LLC (Avers LLC), Samuel Marconi, Lisa

Banford, and Brian Downing. The circuit court dismissed the complaint with prejudice pursuant 1-22-0836

to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West

2020)) and subsequently denied plaintiff’s motion for reconsideration. In this pro se appeal,

plaintiff challenges the dismissal of his complaint. For the reasons discussed herein, we affirm.

¶3 BACKGROUND

¶4 Avers LLC owns a 6-unit apartment building at 4022 North Avers Avenue in Chicago

(the property). The property previously was owned by plaintiff; Avers LLC purchased the

property in a foreclosure sale in late 2019. The circuit court in the foreclosure action issued an

order authorizing plaintiff’s eviction from the property.

¶5 The Underlying Litigation – 20 CH 6764

¶6 In November 2020, Avers LLC filed a complaint in the circuit court of Cook County

against plaintiff and his wife and daughter (the Markovics). The complaint noted that Illinois

Governor J.B. Pritzker issued an executive order during the COVID-19 pandemic which

included a moratorium on the enforcement of residential eviction orders. An exception to the

moratorium applied, however, if a tenant posed a direct threat to the health and safety of other

tenants, an immediate and severe risk to the property, or a violation of any applicable building

code, health ordinance, or similar regulation. Ill. Exec. Order 2020-30 (April 23, 2020).

¶7 In its complaint, Avers LLC sought a declaration that plaintiff had triggered the exception

to the moratorium by, among other things, threatening other tenants, creating fire hazards, and

damaging the property. Avers LLC submitted 3 supporting affidavits – from property tenants

Lisa Banford (Banford) and Brian Downing (Downing) and from Samuel Marconi (Samuel).

Banford averred that plaintiff yelled at her regarding parking and storage matters, attempted to

break into a key box in the property, and tampered with the clothes dryer. Downing averred that

the Markovics had connected their gas line to his gas meter, so he was billed for their gas usage.

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Samuel – the manager of Avers LLC and the property landlord – averred that the Markovics

ignored the 2019 eviction order and resided rent-free at the property while continuing to collect

rent from other tenants for a period of time. Samuel further represented that the Markovics

refused to remove their belongings from unoccupied units; parked in unauthorized spots;

tampered with the electrical system; and denied his requests for access to their unit.

Banford, Downing, and Samuel each averred that they had been threatened by plaintiff.

¶8 Following a bench trial, the circuit court entered an order on June 23, 2021, directing the

immediate eviction of the Markovics and ordering them to pay $23,400 to Avers LLC,

representing the reasonable rental value of their unit ($1300 per month for 18 months). The

record on appeal does not indicate whether the Markovics appealed from this judgment.

¶9 The Instant Litigation – 21 L 7951

¶ 10 In August 2021, plaintiff filed a pro se complaint in the circuit court of Cook County.

The caption of the complaint lists the defendants as Avers LLC, Banford, Downing, Samuel, and

Joseph R. Marconi (Joseph), an attorney for Avers LLC. Among other things, the complaint

appears to assert claims 1 against Joseph for defamation and invasion of privacy based on

statements made during the course of the underlying litigation.

¶ 11 Joseph’s law firm filed an appearance on his behalf and on behalf of Avers LLC. The

other defendants – Banford, Downing, and Samuel – do not appear to have been properly served.

Joseph and Avers LLC filed a motion to dismiss the complaint with prejudice pursuant to section

2-619(a)(9) of the Code, arguing that the absolute litigation privilege protected communications

1 As discussed below, the copy of the complaint included in the record on appeal is missing multiple pages and is otherwise lacking in clarity. 3 1-22-0836

which were made during the court proceedings in the underlying litigation.

¶ 12 Plaintiff filed a “motion to dispute” which appears to have been intended to serve as a

response to the dismissal motion and a motion for summary judgment. Plaintiff argued, in part,

that Banford, Downing, and Samuel had defaulted by failing to answer or otherwise plead.

Plaintiff further suggested that the claims in the underlying litigation were false, as he did not

pose a threat to other tenants or to the property. Plaintiff also filed a motion for entry of default

judgment, wherein he described his efforts to serve the individual defendants.

¶ 13 In their reply, Joseph and Avers LLC stated that Banford, Downing, and Samuel were not

properly served process and thus were not a part of the dismissal motion. Joseph and Avers LLC

requested, however, the dismissal of the entire lawsuit with prejudice, as the circuit court in the

underlying litigation found the allegations against plaintiff to be true, which would serve as a

defense to a defamation claim and a related “false light” invasion of privacy claim.

¶ 14 The circuit court entered a written ruling on February 11, 2022, which apparently

dismissed the complaint with prejudice. 2 Plaintiff filed a one-page motion for reconsideration,

wherein he asserted that: (a) the circuit court order did not acknowledge that Banford, Downing,

and Samuel failed to answer or otherwise plead; (b) the absolute privilege was not “proven”; and

(c) the circuit court failed to consider new evidence which plaintiff had sought to present shortly

before its ruling.

¶ 15 The circuit court entered a written order on March 17, 2022, denying plaintiff’s motion to

reconsider. The circuit court found that the alleged defamatory communications made by Joseph

and Avers LLC during the course of the underlying litigation were absolutely privileged.

2 As discussed below, the record on appeal does not include a copy of this order. 4 1-22-0836

Plaintiff filed the instant appeal.

¶ 16 ANALYSIS

¶ 17 Plaintiff has filed a pro se brief on appeal which includes the following contentions:

Joseph violated the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act,

Pub. L. 116-136) by forcing plaintiff to vacate the property; the circuit court failed to rule on

plaintiff’s motion for a default judgment as to Banford, Downing, and Samuel; plaintiff was

threatened by Downing, as reflected in a January 2022 police report; Banford violated a

municipal nuisance ordinance by repeatedly calling the police; and Joseph allowed witnesses to

perjure themselves by making false statements. Joseph and Avers LLC respond that plaintiff’s

brief should be stricken and the appeal should be dismissed. They further assert that any alleged

error based on a failure to adjudicate plaintiff’s motion for default is baseless as Banford,

Downing, and Samuel were not served and, in any event, the absolute litigation privilege barred

plaintiff’s claims in their entirety.

¶ 18 Violation of Illinois Supreme Court Rules

¶ 19 Joseph and Avers LLC initially maintain that the plaintiff’s appeal should be dismissed as

his opening brief violates the Illinois Supreme Court Rules. We have the discretion to strike a

brief and to dismiss an appeal for failure to comply with the applicable procedural rules,

which are mandatory. Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931,

¶ 11; McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12.

¶ 20 Plaintiff’s opening brief in the instant case violates Illinois Supreme Court Rule 341 (eff.

Oct. 1, 2020), which governs the form and content of appellate briefs. McCann, 2015 IL App

(1st) 141291, ¶ 12. Among other things, the brief is improperly formatted (Ill. S. Ct. R. 341(a));

the trial judge and circuit court case number are omitted from the cover page (Ill. S. Ct. R.

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341(d)); and the brief lacks a table of contents, an introductory paragraph, a concise statement of

the applicable standard(s) of review, or a proper appendix (Ill. S. Ct. R. 341(h)(1), (2), (4), (9)).

¶ 21 Pursuant to Rule 341(h)(6), an appellant is to provide the reviewing court with the facts

necessary to an understanding of the case. Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). The facts

must be stated fairly and accurately without comment or argument. Id.; Ammar, 2017 IL App

(1st) 162931, ¶ 12. Simply put, the statement of facts in plaintiff’s brief is unclear and

argumentative. Plaintiff also failed to provide any citation to the record as is required by Rule

341(h)(6). Id.

¶ 22 Pursuant to Rule 341(h)(7), an appellant’s opening brief must set forth his contentions,

which he is required to support with argument, citations to the appellate record, and citations to

authority. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); Ammar, 2017 IL App (1st) 162931, ¶ 13.

“This rule is especially important because, when reviewing a case, the appellate court starts with

the presumption that the circuit court’s ruling was in conformity with the law and the facts.”

McCann, 2015 IL App (1st) 141291, ¶ 15. In the instant case, plaintiff’s brief lacks any

delineated “argument” section. Even if we were to consider certain paragraphs therein to

constitute his argument, those paragraphs lack clarity or proper citations to the record.

¶ 23 “The purpose of the rules is to require parties before a reviewing court to present clear

and orderly arguments so that the court can properly ascertain and dispose of the issues

involved.” Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7. See McCann,

2015 IL App (1st) 141291, ¶ 15 (observing that appellate courts are entitled to have issues

clearly defined). Plaintiff’s pro se status does not excuse his noncompliance with the rules. If a

party has chosen to represent himself, he is held to the same standard as a licensed attorney.

Ammar, 2017 IL App (1st) 162931, ¶ 16; Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8.

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¶ 24 A brief which lacks substantial conformity to the pertinent supreme court rules may

justifiably be stricken. Hall, 2012 IL App (2d) 111151, ¶ 7. Despite its significant deficiencies,

we decline to strike plaintiff’s brief, as we understand the core contentions presented therein,

particularly in light of the cogent brief presented by the appellees, Joseph and Avers LLC.

See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001).

As discussed below, however, even if we choose to reach the merits of plaintiff’s arguments,

the deficiencies of the record on appeal preclude our effective review.

¶ 25 Plaintiff’s Challenge to Dismissal

¶ 26 Plaintiff’s fundamental contention on appeal is that the circuit court erred in dismissing

his complaint with prejudice pursuant to section 2-619 of the Code. He initially states that the

circuit court failed to rule on his “motion for default and summary judgment” as to Banford,

Downing, and Samuel based on their purported failure to answer or otherwise plead. Plaintiff

then asserts that the defendants falsely characterized his communications or conduct as

threatening or hazardous so as to effectuate his eviction despite an eviction moratorium due to

COVID-19. Among other things, plaintiff maintains that Banford, Downing, and Marconi were

not fearful of him, given that they continued to confront him on multiple occasions. Plaintiff

claims that Downing threatened him with an assault weapon during the pendency of the circuit

court proceedings. Plaintiff also suggests that Banford violated a municipal nuisance ordinance

by repeatedly contacting the police. As to Joseph, plaintiff argues that he “allowed his witnesses

to perjur[e] themselves by making false and untrue statements within a deposition.”3 In support

of these contentions, plaintiff curiously cites the unpublished decision in Brown v. McGarry,

2020 IL App (1st) 190427-U, wherein the appellate court concluded that the trial court correctly

3 Based on our review of the record, no depositions appear to have been taken. 7 1-22-0836

found that challenged communications were protected by the absolute litigation privilege and

thus affirmed the dismissal of a defamation action.

¶ 27 Joseph and Avers LLC filed a motion to dismiss plaintiff’s complaint pursuant to

section 2-619 of the Code. 735 ILCS 5/2-619 (West 2020). A motion to dismiss under

section 2-619(a) admits the legal sufficiency of the complaint but argues that the claim asserted

against the defendant is barred by some affirmative matter which defeats the claim or avoids its

legal effect. In re Estate of Boyar, 2013 IL 113655, ¶ 27. “The motion should be granted only if

the plaintiff can prove no set of facts that would support a cause of action.” Id. As a section 2-

619 motion presents a question of law, our review is de novo, meaning that we perform the same

analysis that a trial judge would perform. National Advantage Mortgage Co. v. Ortiz, 2012 IL

App (1st) 112755, ¶¶ 17-20. We also review de novo a denial of a motion to reconsider based on

the trial court’s misapplication of the law. Harris, N.A. v. Sauk Village Development, LLC, 2012

IL App (1st) 120817, ¶ 14.

¶ 28 Plaintiff, as the appellant, has the duty to provide a sufficient record to review his claims

of error. Cascade Builders Corp. v. Rugar, 2021 IL App (1st) 192410, ¶ 27 (citing Foutch v.

O’Bryant, 99 Ill. 2d 389, 391 (1984)). See also King v. Find-A-Way Shipping, LLC, 2020 IL

App (1st) 191307, ¶ 29 (noting that a pro se appellant is “required to meet a minimum threshold

in providing the court with an adequate record to review the issues raised on appeal”). “In the

absence of a complete record, we must presume that a circuit court’s order conformed with the

law and had a sufficient factual basis.” Cascade Builders Corp., 2021 IL App (1st) 192410,

¶ 27. Any doubts arising from an inadequate record will be resolved against the appellant. Id.

¶ 29 Although plaintiff argues that the trial court erred in dismissing his complaint against

defendants, the dismissal order is not included in the record on appeal. Where, as here, our

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review is de novo – and the dismissal order is referenced in the subsequent order denying

plaintiff’s motion for reconsideration – the absence of such order arguably does not preclude

effective appellate review. E.g., Watkins v. Office of the State Appellate Defender, 2012 IL App

(1st) 111756, ¶ 20 (finding that the transcripts of a circuit court hearing were not needed to

review the propriety of a dismissal pursuant to section 2-619). See also Cambridge Engineering,

Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437, 446 (2007) (noting that an omission

from the record was not “automatically fatal *** where the court has all the evidence it needs to

make a proper decision on the merits under the appropriate standard of review”).

¶ 30 A complete copy of plaintiff’s complaint against defendants is also missing from the

appellate record. As noted above, the complaint references five defendants: Joseph, Avers LLC,

Banford, Downing, and Samuel. The complaint, however, appears to be missing 3 pages, which

include 16 paragraphs.4 The only complete claims asserted in the complaint – as it appears in the

record – are defamation and invasion of privacy counts apparently directed at Joseph. 5 While we

recognize that a section 2-619 motion to dismiss admits the legal sufficiency of the complaint

(Bezanis v. Fox Waterway Agency, 2012 IL App (2d) 100948, ¶ 8), we cannot properly evaluate

whether any affirmative matter avoids the legal effect of or defeats plaintiff’s claims (735 ILCS

5/2-619(a)(9) (West 2020)) where we do not know the scope and nature of those claims.

¶ 31 As discussed above, “it is always the appellant’s burden to provide the court of review

with a sufficient record in order to establish error.” Webster v. Hartman, 195 Ill. 2d 426, 436

(2001). In the instant case, the absence of a complete copy of the complaint precludes our

4 The complaint includes pages 1 through 8 and page 12; pages 9, 10, and 11 are missing. The paragraph numbering of the complaint suggests that missing pages contain paragraphs 45 through 60. 5 The complaint also includes a count which appears to be directed at Samuel, but it is unclear whether additional paragraphs of such count may be included on the missing pages. 9 1-22-0836

effective review of its dismissal.

¶ 32 CONCLUSION

¶ 33 For the reasons set forth herein, the judgment of the circuit court of Cook County is

affirmed in its entirety.

¶ 34 Affirmed.