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12/23/94 GABRIEL BUILDERS v. WESTCHESTER

December 23, 1994

GABRIEL BUILDERS, INC., AND SUBURBAN REMODELING, INC., PLAINTIFFS-APPELLANTS,
v.
WESTCHESTER CONDOMINIUM ASSOCIATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Richard L. Curry, Judge Presiding.

Presiding Justice Egan delivered the opinion of the court: Mcnamara, J., and Zwick, J., concur.

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

On July 2, 1992, the plaintiffs, real estate developers Gabriel Builders, Inc., and Suburban Remodeling, Inc., filed a complaint against the defendant, Westchester Condominium Association, for an accounting, unjust enrichment and other relief. On August 12, 1992, the defendant filed a motion to dismiss the complaint under section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992))). The judge granted this motion. The plaintiff maintains that the judge misinterpreted the Condominium Property Act (Ill. Rev. Stat. 1989, ch. 30, par. 318.2 (now 765 ILCS 605/18.2 (West 1992))) ("the Act"). According to the plaintiffs' complaint, the plaintiffs weredevelopers for the defendant from September 1988 until December 1990. During this period, the plaintiffs expended $87,857.76 on behalf of the condominiums for "common area expenses." After subtracting $35,030.56 for condominium association fees the plaintiffs had collected and $25,551.62 for assessments the plaintiffs owed, the plaintiffs claim that the defendant owes them $27,275.58. In Count I of their complaint, the plaintiffs assert that they are entitled to an accounting of the funds the defendant owes them. In Count II, the plaintiffs assert that the defendant has been unjustly enriched by these funds.

In its motion to dismiss, the defendant alleges that on February 28, 1991, the developers turned over the Westchester Condominium Association to the unit owners pursuant to section 18.2 of the Act. The defendant alleges that the plaintiffs, however, failed to timely provide it with an accounting and a list of loans and advances to the Association as section 18.2(d) requires:

"(d) Within 60 days following the election of a majority of the board of managers other than the developer, the developer shall deliver to the board of managers:

***

(2) A detailed accounting by the developer, setting forth the source and nature of receipts and expenditures in connection with the management, maintenance and operation of the property and copies of all insurance policies and a list of any loans or advances to the association which are outstanding." Ill. Rev. Stat. 1989, ch. 30, par. 318.2(d) (now 765 ILCS 605/18.2(d) (West 1992)).

The defendant asserts that, because the plaintiffs did not comply with section 18.2(d), they are barred from recovering the funds they allege the defendant owes them.

The record discloses that there was an earlier lawsuit concerning the developers' failure to give the Association the accounting and list of loans and advances. Before the plaintiffs filed their complaint in the case before us, the unit owners of the defendant condominium association sued Ronald Kafka to compel him to turn over these documents. (The defendant explains that the plaintiffs are "related entities with Ronald Kafka ***, the named developer of [the] Association.") On July 26, 1991, the trial judge entered summary judgment in favor of the unit owners and against Ronald Kafka. The trial judge ordered Kafka to comply with "all turnover provisions" of section 18.2. According to the Association's attorney at oral argument, the plaintiffs have continued to refuse to comply with section 18.2(d).

In granting the defendant's motion to dismiss the complaint, the judge concluded:

"The purpose of the act is to require the developer, who clearly has the upper hand in all of these transactions prior to the impanelment of the condominium board and immediately after the board is in office, to make known in an accounting all claims or any claims that the developer may have and to do so within a set amount of time.

The implicit self-placing, the thrust of that is, if you don't do it in compliance with the statute, you can't do it in the courts of Illinois. And that is what the appropriate result of this matter should be."

The sole issue on appeal is whether a developer's failure to comply with section 18.2(d) acts as a bar to the developer's suit against a condominium association for funds the association ...


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