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05/03/96 BOARD DIRECTORS 175 EAST DELAWARE PLACE

May 3, 1996

BOARD OF DIRECTORS OF 175 EAST DELAWARE PLACE HOMEOWNERS ASSOCIATION, PLAINTIFF-APPELLANT,
v.
JORGE HINOJOSA, DONNA HINOJOSA, INDEPENDENCE ONE MORTGAGE CORPORATION, NANCY LEE CARLSON, AND BENJAMIN TESSLER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Michael B. Getty, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court: McNAMARA and Egan, JJ., concur.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

Plaintiff Board of Directors of 175 East Delaware Place Homeowners Association (the Board) filed suit against defendants, Nancy Lee Carlson and Benjamin Tessler, Jorge and Donna Hinojosa, and Independence One Mortgage Corporation, seeking to foreclose on a statutory lien under the Condominium Property Act (the Act) (765 ILCS 605/9(h) (West 1994)). The trial court dismissed plaintiff's complaint. Plaintiff appeals, contending that the trial court erred in sua sponte finding the Board's no-dog rule unreasonable and in rejecting the Board's waiver, equitable estoppel, and judicial estoppel arguments. For the reasons that follow, we affirm.

175 East Delaware Place was organized as a condominium in 1973 by the recording of a declaration and bylaws. In 1976, the Board adopted a rule allowing owners to have pets, including dogs, only with the permission of the Board. On January 21, 1980, during a regular board meeting, the Board adopted a rule barring any further dogs from being brought onto the premises. In October of 1985, defendants Nancy Lee Carlson and Benjamin Tessler purchased a unit in the building. At this time, they signed a pet agreement acknowledging the no-dog rule. In February of 1993, while leasing out another one of their units, they signed the same agreement again. In March of 1993, the no-dog rule was reincluded in the Board's rules and regulations.

In June of 1993, defendants Carlson and Tessler acquired a dog. This same month, a group of owners brought suit against the Board challenging the no-dog rule. Rodgers v. Board of Directors of 175 East Delaware Place Homeowners Ass'n, No. 93 CH 5602. This suit was eventually abandoned and is not part of this appeal. In September of 1993, defendants Carlson and Tessler received notice of a hearing for their violation of the no-dog rule. The hearing was held on November 30, 1993, and the committee ordered Carlson and Tessler to remove the dog within 30 days. If the dog remained on the premises after 30 days, defendants Carlson and Tessler would be assessed a fine of $100 per day for each day the dog remained. The Board adopted the committee's recommendation and on January 23, 1994, began assessing fines on defendants Carlson and Tessler. On April 20, 1994, after Carlson and Tessler failed to pay the fines, the Board recorded a notice and claim of statutory lien.

In August of 1994, defendants Carlson and Tessler sold the unit to defendants Jorge and Donna Hinojosa without clearing the lien. In November of 1994, the Board filed the instant action seeking to foreclose on the lien. Defendants moved to dismiss the suit pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)), claiming the Board had no authority to adopt the no-dog rule because the rule conflicted with the declaration and bylaws. The trial court ruled that the Board had the power to promulgate the rule but held that the rule was unreasonable. It also rejected plaintiff's arguments concerning waiver, equitable estoppel, and judicial estoppel.

Initially, the Board has filed a motion to dismiss those portions of defendants' brief that argue the Board had no authority to promulgate the no-dog rule because they failed to file a cross-appeal.

When appellants fail to raise issues in their briefs, the issues are generally considered waived. On the other hand, appellees may argue any point on appeal that supports the judgment if that argument is supported by the record. Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 37, 196 Ill. Dec. 145, 629 N.E.2d 690 (1994). If the judgment of the trial court was not at least in part against the appellee, he or she need not raise any trial court findings adverse to it by way of cross-appeal. Landmarks Preservation Council v. City of Chicago, 125 Ill. 2d 164, 174, 125 Ill. Dec. 830, 531 N.E.2d 9 (1988); Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 31, 209 Ill. Dec. 870, 652 N.E.2d 410 (1995). Because we are reviewing the judgment of the trial court rather than its reasoning, a cross-appeal need only be filed where the appellee requests the reversal or modification of the judgment below. Guerino, 273 Ill. App. 3d at 31. See also Citizens Utilities v. Pollution Control Board, 265 Ill. App. 3d 773, 777, 203 Ill. Dec. 487, 639 N.E.2d 1306 (1994). "A party who has obtained by judgment all that was sought in the trial court cannot appeal that judgment." Piersall v. SportsVision, 230 Ill. App. 3d 503, 512, 172 Ill. Dec. 40, 595 N.E.2d 103 (1992). The appellate court may affirm on any ground appearing in the record, regardless of the actual findings and rulings of the trial court. Citizens Utilities Co., 265 Ill. App. 3d at 777. Finally, this waiver doctrine is an "admonition to the parties and not a limitation upon the power of a reviewing court to address issues of law as the case may require." Mayfield, 258 Ill. App. 3d at 37.

In this case, while the trial court made a finding adverse to defendants (that the Board had the authority to promulgate the no-dog rule), the judgment of the trial court was in no way against defendants. Defendants received all they were seeking in the trial court--dismissal of the Board's complaint. Therefore, they were not required to file a cross-appeal. Thus, the Board's motion to strike is denied.

Going to the merits, the Board contends that the trial court erred as a matter of law in sua sponte finding the Board's rule unreasonable. First, it argues that the Board's action in adopting the rule was authorized by both the Act and the declaration. It relies on section 18.4 of the Act, alleging that the rule does not conflict with any provisions of the declaration and is not contrary to the Act. Second, the Board asserts that the rule should be accorded a strong presumption of validity because all of the owners, including defendants Carlson and Tessler, had actual knowledge of it. Third, the rule was reasonable as a matter of law. Finally, the trial court erred in granting the defendants' motion on a ground that they had not raised, e.g., reasonableness of the rule.

Despite the issues raised by the Board, there is one central issue before this court: whether the Board had the authority to restrict dog ownership by a Board rule as opposed to restricting dog ownership via the recorded condominium documents. It is only after a rule has been found to be within the Board's powers that reasonableness of the rule is addressed.

In reviewing a section 2-619 dismissal on the ground that the underlying claim is barred by some affirmative matter, we are limited to considering the legal questions presented by the pleadings. Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 343, 199 Ill. Dec. 207, 633 N.E.2d 1003 (1994). However, our review is independent and we need not defer to the trial court's reasoning. Waterford Executive Group, 261 Ill. App. 3d at 344. We may affirm the trial court's decision on any ground supported by the record. Williams v. Board of Education, 222 Ill. App. 3d 559, 562, 165 Ill. Dec. 78, 584 N.E.2d 257 (1991).

Condominiums are creatures of statute and, thus, any action taken on behalf of the condominium must be authorized by statute. "When a controversy regarding the rights of a condominium unit owner in a condominium arises, we must examine any relevant provisions in the Act and the Declaration or bylaws and construe them as a whole." ...


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