Campasano v. Koster , 2021 IL App (1st) 200126-U ( 2021 )

2021 IL App (1st) 200126-UFIRST DISTRICT,
FIRST DIVISION
December 20, 2021
No. 1-20-0126
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
_____________________________________________________________________________
ALBERT CAMPASANO, )
)
Plaintiff-Appellant, )
v. )
)
THOMAS KOSTER, as Trustee of the Koster Family )
Irrevocable Trust, Dated January 30, 1993, )
)
Appeal from the
Defendant-Appellee. )
Circuit Court of
____________________________________________ )
Cook County, Illinois.
)
THOMAS KOSTER, )
No. 14 CH 13676
)
Counter-Plaintiff, )
Honorable
v. )
Anna H. Demacopoulos,
)
Judge Presiding.
ALBERT CAMPASANO, )
)
Counter-Defendant, )
and )
)
1
SOPHIE PASCO , )
)
Third-Party Defendant. )
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
1
Her name is misspelled in the caption; “Sophia Pasko” is the correct spelling.
No. 1-20-0126
Justices Pucinski and Walker concurred in the judgment.
ORDER
¶1 Held: (1) Plaintiff failed to make a prima facie case for age discrimination in the sale of
housing. (2) Award of fees under the Human Rights Act was not an abuse of
discretion. (3) In counterclaim for slander of title, plaintiff’s filing of a lis pendens
on the subject property was not absolutely privileged where plaintiff’s suit did not
make allegations affecting an ownership interest in the property.
¶2 Plaintiff Albert Campasano, 82 years old, brought suit against defendant Thomas Koster
alleging age discrimination in the sale of real estate in violation of the Human Rights Act (775
ILCS 5/3-102 (West 2012)) (Act). Koster filed a counterclaim for slander of title. Following a
bench trial, the trial court entered a directed finding for Koster on Campasano’s age
discrimination claim and entered judgment in favor of Koster on his counterclaim. The court
awarded Koster $11,509 in damages plus $48,780.87 in attorney fees. Campasano appeals both
judgments and the award of attorney fees. For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 The following evidence was presented at the bench trial. 2 In 2011, Koster inherited his
mother’s residential property at 4657 North Orange Avenue in Norridge, Illinois (the property).
It remained vacant until July 8, 2014, when Koster hired a realtor, Lee Stahnke, to put it on the
market for a listing price of $292,000.
¶5 In addition to price, Koster had three criteria for selling the property. He wanted a closing
date in August and an “as-is” sale so he would not have to perform repairs. He also wanted to
leave behind some personal property in the house to make things easier for himself. He explained
this verbally to Stahnke, though she did not include it in the house’s Multiple Listing Service
2
Although Campasano testified at the bench trial, no court reporter was present during his
testimony in his case-in-chief, nor is there any bystander’s report or agreed statement of facts. The record
does contain Campasano’s testimony during the proceedings on Koster’s counterclaim.
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No. 1-20-0126
(MLS) listing, since buyers might perceive an as-is clause as a “red flag” and the other criteria
would not normally be included in a house listing.
¶6 On July 12, Stahnke received an offer of $315,000 with a closing date of August 28 (the
Ogrodny offer). Although the contract did not contain an as-is clause, Koster accepted the offer
on the same day.
¶7 The next day, July 13, there was an open house at the property. Despite Koster’s
acceptance of the Ogrodny offer, Stahnke and Koster decided to proceed with the open house
because it had already been scheduled and would help to “drum up business” for Stahnke. Koster
did not attend. Midway through the open house, Stahnke received a call that the Ogrodny buyers
were backing out of the deal, and she told the open house visitors—which included
Campasano—that the house was back on the market.
¶8 On July 14, Campasano met with Koster to discuss buying the property. Also present for
their meeting was Campasano’s friend Sophia Pasko. According to Koster, he told Campasano to
go through his real estate agent, and “[t]hat’s basically it.” He denied making any comments
about Campasano’s age or his ability to care for the property. According to Pasko, Koster asked
why Campasano wanted to buy “such a big house,” since its upkeep was expensive and time-
consuming, and he asked Campasano’s age. When Campasano said that he was 83, Koster
replied, “I’m in my 60s, and I already have heart problems, and anything can happen.” Koster
also stated that he wanted to leave possessions in the house—a condition to which Campasano
agreed—and that he intended to sell it for “top dollar,” though he would not give a figure and
instead directed Campasano to speak with Stahnke.
¶9 Later that day, Campasano and Pasko went to meet Stahnke at her office, and Campasano
made an offer of $292,000 in cash. According to Stahnke, Campasano proposed an October 14
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closing date so he would have time to get the funds. Stahnke explained that her client wanted an
August closing and said, “You are not going to get the house if you have an October closing
date.” Stahnke further testified that Campasano was unwilling to take any personal property with
the house. She could not recall if they discussed the house being sold as-is, and she denied
asking about his age or his ability to maintain the property.
¶ 10 According to Pasko, when Campasano proposed a closing date of October 14, Stahnke
did not inform him that Koster wanted an earlier date. Campasano also told Stahnke that it would
be “[n]o problem” to take Koster’s personal property. As to the condition of the house, Stahnke
said that “this is not an as-is house. It’s well maintained. Everything works.”
¶ 11 The next day, Campasano came to Stahnke’s office and raised his offer to $315,000.
When Stahnke told Campasano that he was still not going to get the house with an October 14
closing date, he changed the date to October 14 “or sooner.”
¶ 12 Koster considered Campasano’s offer alongside two others, the Badali offer and the
Pablo offer. Although Campasano’s price was acceptable, his offer did not meet Koster’s other
criteria. On July 15, Koster accepted the Pablo offer, which was for the same price ($315,000)
with an August 29 closing date and buyers who were willing to take the house as-is and keep
“everything” in the house. The record does not state the Pablo buyers’ age or whether they were
a couple, and neither Stahnke nor Koster had met them in person as of July 15.
¶ 13 Later that week 3, Koster met Campasano and Pasko outside the property. According to
Koster, Campasano “browbeat” him about not accepting his offer. Koster denied commenting
that he wanted the home to go to a younger family. According to Pasko, however, Koster told
3
The parties disagree as to whether this meeting occurred on July 15 or 18.
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No. 1-20-0126
Campasano that he did not sell him the house because: “You’re 83. It takes a lot of work and a
lot of money to maintain a house like this. You’re too old. I want to sell it to a young couple.”
¶ 14 Campasano retained counsel for the purpose of “stop[ping] the sale of the home” to the
Pablo buyers. On August 22, 2014, Campasano, through counsel, filed the instant suit against
Koster, alleging age discrimination in the sale of real estate in violation of the Human Rights Act
(775 ILCS 5/3-102 (West 2012)). Campasano also filed a lis pendens against the property on the
same date.
¶ 15 Koster learned about the lis pendens on the day it was filed; it was his understanding that
it precluded him from honoring the Pablo contract. When the Pablo buyers experienced a delay
in getting their mortgage paperwork processed, Koster “took a hard line” and used the delay as a
reason to terminate the contract because “otherwise [he] would have two contracts, so [he] would
be getting sued two different ways.” Koster testified that he later offered to sell Campasano the
property on the same terms as his July 14 offer, but no agreement was reached. Campasano
denied any such discussions.
¶ 16 On December 13, 2014, Koster filed his answer and a counterclaim against Campasano
and Pasko for slander of title.4 Koster alleged that Campasano “placed an unlawful cloud on the
title of the Property” by recording an “unlawful and/or improper” lis pendens on the property. He
alleged damages in that he was unable to sell the property to other interested buyers and he was
incurring costs to maintain the property and remove the cloud on its title.
¶ 17 Eight months later, on August 10, 2015, the trial court ordered that Campasano be given
the opportunity to inspect the property “to determine if he wishes to purchase the property.” On
4
Koster’s counterclaim also contained counts to quiet title and for tortious interference with a
contract, but he voluntarily dismissed the former, and the trial court entered judgment in Campasano’s
favor on the latter. Neither is at issue in this appeal.
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No. 1-20-0126
August 28, in open court, the parties executed a purchase contract for $315,000 requiring
Campasano to deposit $5000 in earnest money that same day. However, Campasano refused to
deposit the earnest money despite multiple inquiries from Stahnke over the next week. Koster
filed an emergency motion to require Campasano to release his lis pendens. On September 14,
the trial court issued an order that if the purchase transaction did not close by October 14,
Campasano would have to release his lis pendens. On October 13, 2015, Campasano purchased
the property.
¶ 18 The case proceeded to a bench trial on May 21 to 24, 2018. (Campasano had not moved
into the property by the time of trial.) The trial court entered a directed finding in favor of Koster
on Campasano’s age discrimination claim, finding “no evidence whatsoever” that Koster refused
to engage in a real estate transaction with Campasano or that Campasano was ready and able to
purchase the property in July 2014. It stated that Campasano’s readiness was refuted by his own
testimony that he needed additional time before closing because “unless he sold his stock *** he
did not have cash ready.”
¶ 19 Regarding Campasano and Pasko’s credibility, the court stated:
“[T]his Court has to consider the demeanor of Mr. Campasano and the demeanor
of Ms. Pasko during their testimony. Both of them had been impeached by prior
inconsistent statements in their depositions. In addition, when confronted on cross-
examination, both of them were hesitant to answer questions, and this Court is greatly
concerned about the fact that both of them as it relates to this particular transaction were
adamant that Mr. Campasano should have gotten this deal because he was the highest
bidder ***. There’s no way they could have known that.
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Mr. Campasano wants this Court to believe that *** Mr. Koster inquired as to his
age, either on the 14th or on the 18th of July. Based on the credibility of Mr. Campasano
and Ms. Pasko and the fact that they have acted in concert throughout this entire
transaction and there has been sufficient evidence that they have acted in concert in the
past, *** this Court is making a credibility finding that those statements were not in fact
made.”
Even if Koster had made such statements, the court found no evidence that they influenced
Koster’s acceptance of the Pablo contract, since the age of the Pablo buyers was not in evidence.
¶ 20 The trial court also found in favor of Koster on his counterclaim for slander of title. It
found “no question” that the lis pendens constituted a disparagement of title. It also made a
credibility decision that Campasano acted with malice in filing the lis pendens, since he had the
opportunity to buy the property and release the lis pendens yet chose not to do so. The court
found that Campasano kept the lis pendens “for one reason and one reason only, to hurt Mr.
Koster.” The court awarded Koster $11,509 in damages and invited him to file petitions for fees
incurred (1) in prosecuting the counterclaim against Campasano and (2) as the prevailing party in
Campasano’s age discrimination action under section 10-102 of the Human Rights Act (775
ILCS 5/10-102 (West 2012)).
¶ 21 Koster filed a petition seeking $67,793.37 in combined fees from the counterclaim and
the age discrimination action, of which Campasano filed a motion challenging $19,120.50.
Following a hearing, the trial court granted Campasano’s challenge in its entirety and awarded
Koster the remaining $48,780.87. At the request of Campasano’s counsel, the trial court
allocated that sum entirely as fees incurred in the age discrimination action rather than the
counterclaim.
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No. 1-20-0126
¶ 22 ANALYSIS
¶ 23 Campasano argues that (1) the trial court’s directed finding in favor of Koster on the age
discrimination claim is against the manifest weight of the evidence; (2) the award of fees in favor
of Koster is unwarranted and excessive; and (3) judgment for Koster on his counterclaim for
slander of title was erroneous as a matter of law. Although Koster did not file an appellate brief,
we will consider the appeal on Campasano’s brief alone. First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 24 Initially, Campasano’s testimony in his case-in-chief is not in the record on appeal, nor is
there any bystander’s report or agreed statement of facts describing his testimony. It is the
appellant’s duty to present a proper record on appeal so we have an adequate basis for our
review. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156 (2005). If the gap in the record
could impact our decision, we will presume the missing evidence supported the trial court’s
judgment. Id. at 157; Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App.
3d 437, 445-46 (2007).
¶ 25 Campasano’s Age Discrimination Claim
¶ 26 Campasano first argues that the trial court’s directed finding for Koster on the age
discrimination claim was against the manifest weight of the evidence. In ruling on a motion for
directed verdict in a bench trial, the trial court does not view the evidence in the light most
favorable to the plaintiff, but weighs all the evidence to determine whether the plaintiff has made
a prima facie case. 735 ILCS 5/2-1110 (West 2018); Orbeta v. Gomez, 315 Ill. App. 3d 687, 690
(2000). Since the trial judge has a superior opportunity to assess witness credibility, we will not
reverse its findings based on conflicting testimony unless a contrary finding is clearly apparent.
Kroot v. Chan, 2017 IL App (1st) 162315, ¶ 19.
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¶ 27 For a prima facie case of housing discrimination on the basis of age, plaintiff must show
that (1) he was over 40, (2) defendant was aware of that fact, (3) plaintiff was “ready and able”
to accept defendant’s offer of housing, and (4) defendant refused to deal with plaintiff. 775 ILCS
5/1-103(A) (West 2012); Hsu v. Human Rights Comm’n, 180 Ill. App. 3d 949, 953 (1989). If
plaintiff establishes these elements, the burden shifts to defendant to show a legitimate reason for
refusing to deal with the plaintiff. Hsu, 180 Ill. App. 3d at 953-54. Plaintiff then bears the burden
of showing defendant’s reason is pretextual. Id. at 954.
¶ 28 The trial court’s determination that Campasano failed to establish a prima facie case of
age discrimination is not against the manifest weight of the evidence. The court found that
Campasano was not ready and able to purchase the property based upon his admission in his
testimony that he did not have cash ready and needed to delay the closing to October to sell stock
and obtain the needed funds. Since Campasano’s testimony is not in the record, we must
presume it supports the trial court’s judgment. Corral, 217 Ill. 2d at 157.
¶ 29 The trial court also found no evidence that Koster refused to deal with Campasano. On
the contrary, when Campasano expressed interest in the property on July 14, 2014, Koster
invited him to speak with Stahnke. Later that day, Campasano visited Stahnke’s office to make a
$292,000 offer, and the next day he visited again to increase his offer to $315,000. Stahnke
testified credibly that she told Campasano that he would not get the property with his proposed
October closing date. As to Koster’s alleged comments regarding Campasano’s age and his
desire to sell the property to a younger couple, the court made a credibility determination that
these comments were “made up” by Campasano and Pasko and “were not in fact made.” In light
of the trial judge’s superior opportunity to observe the witnesses and their demeanor on the
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stand, the court’s conclusions are not against the manifest weight of the evidence. See Kroot,
2017 IL App (1st) 162315, ¶ 19.
¶ 30 Campasano argues that his offer was objectively superior to the Pablo offer because it
was $3000 higher, citing Pasko’s testimony to that effect. But as the trial court astutely observed,
“[t]here’s no way [Pasko] could have known that.” On the contrary, the signed contract admitted
into evidence, as well as Koster and Stahnke’s testimony, establishes that the Pablo offer was for
$315,000—i.e., the same as Campasano’s offer. Campasano’s speculation that the Pablo buyers
would not have been able to obtain financing is without support in the record. Moreover, the
record does not reflect the age of the Pablo buyers, and it is undisputed that neither Koster nor
Stahnke had met them in person prior to Koster’s acceptance of their offer.
¶ 31 Accordingly, we find no error in the trial court’s finding that Campasano failed to make a
prima facie case for age discrimination and its directed verdict for Koster.
¶ 32 Award of Attorney Fees
¶ 33 Campasano next argues that the trial court abused its discretion in awarding Koster
$48,780.87 in attorney fees incurred in defending the age discrimination claim.
¶ 34 Section 10-102 of the Human Rights Act provides that the court, in its discretion, may
award fees and costs to the prevailing party. 775 ILCS 5/10-102(C)(2) (West 2012). This fee-
shifting provision is intended to enforce the public policies behind the Act (Mendez v. Town of
Cicero, 2016 IL App (1st) 150791, ¶ 14) and is analogous to the fee-shifting provision of Title
VII of the Civil Rights Act of 1964, which was enacted to protect defendants from “burdensome
litigation having no legal or factual basis.” (Internal quotation marks omitted.) Habitat Co. v.
McClure, 301 Ill. App. 3d 425, 447 (1998). We review the court’s decision for an abuse of
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discretion, meaning that we affirm unless the decision is arbitrary, fanciful, or unreasonable.
Mendez, 2016 IL App (1st) 150791, ¶ 15.
¶ 35 We find no error in the trial court’s award of fees. The court found that Campasano, the
complainant, acted “in concert” with Pasko to fabricate allegedly discriminatory statements by
Koster that “were not in fact made.” The court also found that Campasano recorded a lis pendens
on the property “with malice” and “for one reason and one reason only, to hurt Mr. Koster.”
Under these facts, the award of fees was not an abuse of discretion.
¶ 36 Habitat, 301 Ill. App. 3d at 447, in which we reversed a trial court’s award of fees under
the Act, is distinguishable. In Habitat, a landlord sued for possession of a tenant’s apartment
following termination of his lease. The tenant countersued under the Act, alleging discrimination
on the basis of mental handicap. Id. at 429. We affirmed judgment for the landlord on the
counterclaim, finding legitimate, nonpretextual reasons not to renew the tenant’s lease, but we
did not find an award of fees appropriate, since “all that can be said of the litigation, in our view,
is that [the tenant] failed to carry his burden of proof at trial.” Id. at 446. Here, by contrast, the
trial court rendered a credibility finding that Campasano and his accomplice “made up”
allegations about their dealings with Koster and Stahnke that formed the backbone of
Campasano’s discrimination claim. An award of fees under these circumstances serves the public
policies behind the Act. Mendez, 2016 IL App (1st) 150791, ¶ 14.
¶ 37 Campasano also argues that the trial court’s award of fees is excessive because the award
of $48,780.87 includes both fees incurred in the age discrimination action and in Koster’s
counterclaim. But it is well established under the invited error doctrine that a party may not
request to proceed in one manner and then contend on appeal that the course of action was in
error. Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 63. Here, Koster’s fee
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petition sought $67,793.37 in combined fees. Campasano filed a motion challenging $19,120.50
of those fees, which the court granted in its entirety. Campasano’s counsel then asked how the
court would allocate the remaining $48,780.87 between the age discrimination action and the
counterclaim, and the following discussion occurred:
“THE COURT: You are asking in paragraph 13 that no fees be awarded for
slander of title?
[CAMPASANO’S COUNSEL]: Correct. If the Court is going to award the 48 for
the human rights, I get that.
THE COURT: That’s what I am going to do.
[CAMPASANO’S COUNSEL]: Perfect.”
Thus, Campasano cannot now complain that the allocation of fees was improper.
¶ 38 Koster’s Claim for Slander of Title
¶ 39 Campasano argues that the trial court erred in entering judgment for Koster on his slander
of title claim because Campasano’s lis pendens was not a “false and malicious” publication and
he had an “absolute privilege” to record a lis pendens against the property in the course of
judicial proceedings.
¶ 40 In a slander of title action, plaintiff must prove that (1) defendant made a false and
malicious publication (2) that disparaged title to the plaintiff’s property and (3) resulted in
damages. Chicago Title & Trust Co. v. Levine, 333 Ill. App. 3d 420, 424 (2002); see American
Nat’l Bank & Trust Co. v. Bentley Builders, Inc., 308 Ill. App. 3d 246, 252 (1999) (maliciously
recording a document that clouds another’s title to real property is actionable as slander of title).
Here, Campasano recorded a lis pendens on the property, which is a notice that the property in
question is involved in litigation. Kurtz v. Hubbard, 2012 IL App (1st) 111360, ¶ 15. Any
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subsequent purchasers of the property are deemed to have constructive notice of the litigation
and will be bound by the proceedings as if they were parties. 735 ILCS 5/2-1901 (West 2010).
¶ 41 Defamatory statements are absolutely privileged in a narrow class of cases “ ‘where the
public service, or due administration of justice, requires that a party speak his mind freely, and
no action can be maintained therefor even though the words be false or maliciously spoken.’ ”
Razavi v. Walkuski, 2016 IL App (1st) 151435, ¶ 13 (quoting Young v. Lindstrom, 115 Ill. App.
239, 245-46 (1904)). Such privilege extends to statements “required or permitted by law in the
course of judicial or quasi-judicial proceedings.” Razavi v. School of the Art Institute of Chicago,
2018 IL App (1st) 171409, ¶ 22. In Ringier America, Inc. v. Enviro-Technics, Ltd., 284 Ill. App.
3d 1102 (1996), we considered whether the filing of a lis pendens in conjunction with a civil
action was privileged. In the underlying suit, plaintiff sued defendants for breaching a contract to
purchase the subject property. Defendants countersued, alleging that plaintiff was the breaching
party, and filed a lis pendens on the property. The suit and countersuit were both dismissed.
Plaintiff then filed suit for slander of title, arguing that the lis pendens was a false and malicious
statement filed “for the sole purpose of clouding title to the property so as to interfere with
plaintiff’s ability to sell it.” Id. at 1104.
¶ 42 Under these facts, we found defendant’s filing of a lis pendens to be absolutely privileged
because “the underlying litigation makes allegations affecting some ownership interest in the
subject property.” Id. at 1106. We additionally found the lis pendens did not constitute a false
and malicious statement, since it “accurately inform[ed] its reader of the existence of the
counterclaim.” Id.¶ 43 Ringier is distinguishable because Campasano’s suit did not “make[] allegations affecting
some ownership interest in the subject property.” Id. at 1106. Unlike the defendant in Ringier,
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Campasano had no contractual claim to the property. Although the Act permits the court to grant
“any permanent or preliminary injunction” as relief (775 ILCS 5/10-102(C)(1) (West 2012)),
which would include a compelled sale, Campasano’s prayer for relief in his complaint does not
ask the court to order Koster to sell him the property. Moreover, as the trial court observed,
Campasano knew that the Pablo contract was terminated in August 2014, but he did not reach
out to Koster to purchase the property, nor did he seek the assistance of the court to enforce his
rights under the statute. He did nothing until August 10, 2015, nearly a year later, when the trial
court ordered he be allowed to inspect the property to determine “if” he wished to purchase it.
Even then, he continued to delay the purchase transaction until the court ordered on September
14, 2015 that if he did not purchase the property, he would have to release his lis pendens. Under
these facts, we do not find Campasano’s filing of a lis pendens to be absolutely privileged.
¶ 44 As to the requirement of a “false and malicious” publication, the critical inquiry is
whether Campasano had reasonable grounds to believe he had a claim to the property. American
Nat’l Bank, 308 Ill. App. 3d at 252. In light of Campasano’s conduct during the course of the
litigation, the trial court made a credibility determination that Campasano had no such grounds,
but acted with malice in filing his lis pendens “for one reason and one reason only, to hurt Mr.
Koster.” We do not find the trial court’s determination to be against the manifest weight of the
evidence. See Kroot, 2017 IL App (1st) 162315, ¶ 19 (trial court’s credibility determination will
not be reversed unless a contrary finding is clearly apparent). Accordingly, we affirm the trial
court’s judgment for Koster on his counterclaim for slander of title.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 47 Affirmed.
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