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05/10/94 TIMOTHY CARNEY v. MIKE DONLEY ET AL.

May 10, 1994

TIMOTHY CARNEY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
MIKE DONLEY ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Lake County. No. 91-CH-676. Honorable John G. Radosevich, Judge, Presiding.

Rehearing Denied June 9, 1994.

PECCARELLI, Doyle, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

This lawsuit arose from a dispute between condominium unit owners. Plaintiff, Timothy Carney, a unit owner in the Harbour Club Condominium Association (Association), appeals from a summary judgment entered by the circuit court of Lake County in favor of defendants, Mike Donley, Greg Loomer, Mike Sullivan, and Jane Sullivan, also unit owners in the Association (collectively the individual defendants), and the Board of Managers (Board) of the Association. During the time period in question Donley was president of the Board.

Plaintiff contends that: (1) the circuit court erred in entering summary judgment in defendants' favor because certain balcony extensions erected by the individual defendants were not approved by a unanimous vote of all the condominium owners; and (2) the Board and its individual members breached fiduciary duties to plaintiff and the other unit owners of the Association by allowing the erection of the balcony extensions and plaintiff is therefore entitled to recover attorney fees. Both the Board and the individual defendants filed cross-appeals which contend that the circuit court erred when it did not impose sanctions on plaintiff. We reverse and remand with directions.

The Association is comprised of the owners of the 91 condominium units within the Association's property on Bangs Lake in Wauconda, Illinois. The property includes three four-story buildings. Under the Association's declaration and bylaws (Declaration), the Association is responsible for the overall administration of the property through the Board. The Board and its officers administer the property on a day to day basis.

The property consists of the units and the common elements. The Declaration defines the common elements as "all portions of the property except the units, including limited common elements unless otherwise specified." The Declaration defines limited common elements as "a portion of the common elements * * * for the use of a certain unit or units to the exclusion of other units, including, but not limited to balconies and patios."

The individual defendants own three condominium units in the Association. The three units are on the lake side of one of the Association's buildings on the second, third, and fourth floors directly above or below each other. The units originally each had a five-foot-wide balcony which extended from the outside wall of the building. The balconies overlooked the lake and a concrete patio which was connected to a common room directly beneath the individual defendants' units. Both the patio and the common room were part of the common elements.

In the fall of 1990, the individual defendants decided that they wanted to widen the balconies appurtenant to their units by adding an additional 10 feet to each balcony, effectively creating sun decks. According to affidavits signed by Donley and the Board's secretary, Martin VanDerharst, at an open Board meeting on February 19, 1991, Donley presented a proposal to the Board to extend the balconies appurtenant to the units of the individual defendants by 10 feet. Donley's affidavit states that he fully disclosed all the relevant facts, including his interest in the proposal. The affidavits state that the Board scheduled the matter for a vote at the May 1991, open meeting and placed the proposal on the agenda for the May meeting. VanDerharst's affidavit states that "the time, place and agenda of all open meetings, including the meeting of May 14, 1991, is posted and sent to all unit owners of Harbour Club Condominium."

The minutes of the May 14, 1991, Board meeting indicate that during the meeting Donley presented a proposal to extend the three balconies appurtenant to the individual defendants' units by adding 10 feet to each. The Board voted unanimously to accept Donley's proposal if certain conditions regarding funding, permits, and insurance were met.

In order to extend the balconies as proposed, it would be necessary to break out some of the concrete in the common area patio in order to drive poles to support the balcony extensions into the ground through the patio. The balcony extensions would also occupy some of the air space above the common area patio.

After construction of the balcony extensions began in the fall of 1991, plaintiff sought injunctive relief. Plaintiff first obtained a temporary restraining order which briefly halted the construction of the balcony extensions. However, plaintiff was unsuccessful in two attempts to obtain preliminary injunctions designed to continue the halt of the construction of the balcony extensions.

Construction resumed and the balcony extensions were completed as planned in November 1991. The parties dispute whether plaintiff acquiesced in the construction of the balcony extensions in November 1991. Defendants maintain that plaintiff attended a special Board meeting on November 2, 1991, and after a Discussion of the matter stated that he would withdraw his suit. Plaintiff denies this.

After the balcony extensions were completed, plaintiff sought a mandatory injunction which would require the removal of the balcony extensions and the restoration of the common elements to their original condition. Plaintiff's amended complaint claims that the construction of the balcony extensions improperly diminished the quantity and quality of plaintiff's and the other unit owners' property rights in the common elements. The complaint also sought a determination that the ...


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