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05/03/96 BOARD DIRECTORS 175 EAST DELAWARE PLACE

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION


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." Carney v. Donley, 261 Ill. App. 3d 1002, 1008, 199 Ill. Dec. 219, 633 N.E.2d 1015 (1994).

A condominium is an interest in real estate created by statute that gives each owner an interest in an individual unit as well as an undivided interest in common elements. Administration and operation of the condominium are vested in the condominium association, which is comprised of all unit owners. The administration is exercised through the board of directors, which is elected by the owners. In addition to the Act, the operation and administration of the condominium are governed by three principal documents. These are the declaration, bylaws, and board rules and regulations. The declaration and bylaws form the basic framework of the administration, and the day-to-day operations are managed by board rules and regulations.

A condominium comes into being by the recording of a declaration. The declaration is prepared and recorded by either the developer or association. The Act defines the declaration as the "instrument by which the property is submitted to the provisions of [the] Act." 765 ILCS 605/2(a) (West 1994). Its primary function is to provide a constitution for the condominium--to guide the condominium development throughout the years. The declaration contains the property's legal description, defines the units and common elements, provides the percentage of ownership interests, establishes the rights and obligations of owners, and contains restrictions on the use of the property. R. Otto, Illinois Act in Condominium Titles, in Illinois Condominium Law § 1.15, at 1-27 (Ill. Inst. for Cont. Legal Educ. 1994). All restrictions contained in the declaration are covenants that run with the land and bind each subsequent owner. They are given a strong presumption of validity. M. Kurtzon, Representing the Condominium Association, in Illinois Condominium Law § 10.19, at 10-17 (Ill. Inst. for Cont. Legal Educ. 1994). Section 4 of the Act details what elements must be contained in the declaration. Paragraph (i) states: "Such other lawful provisions not inconsistent with the provisions of this Act as the owner or owners may deem desirable in order to promote and preserve the cooperative aspect of ownership of the property and to facilitate the proper administration thereof." 765 ILCS 605/4(i) (West 1994).

The second document is the bylaws which deal with administration and procedural matters concerning the property. Bylaws may be embodied in the declaration or be a separate document. In either case, the bylaws must be recorded with the declaration. 765 ILCS 605/17(a) (West 1994). Should the bylaws conflict with the declaration, the declaration prevails. Section 18 of the Act sets forth provisions that must be included in the bylaws. Relevant to the issue before us is paragraph (k), which states: "Restrictions on and requirements respecting the use and maintenance of the units and the use of the common elements, not set forth in the declaration, as are designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners." (Emphasis added.) 765 ILCS 605/18(k) (West 1994).

The third item governing condominium conduct is the board rules and regulations. The board shall exercise for the association all powers, duties, and authority vested in the association by law or the condominium documents. It generally has broad powers and its rules govern the requirements of day-to-day living in the association. Board rules must be objective, evenhanded, nondiscriminatory, and applied uniformly. Section 18.4 of the Act deals with powers and duties of the board.

The issue before us, whether the Board can restrict dog ownership by board rule, has not been addressed in Illinois. The Illinois Institute for Continuing Legal Education discusses the matter and concludes that restrictions concerning pets should be included in either the declaration, bylaws, or other originating documents of the condominium. W. Helms, Representing the Unit Buyer/Seller, in Illinois Condominium Law § 9.2, at 9-6 (Ill. Inst. for Cont. Educ. 1994). In further addressing the issue, the handbook provides that "pets cannot be prohibited without an amendment to the declaration and bylaws. If a declaration permits an owner to have pets, the association can impose sanctions for pet violations through the rules and regulations, but it can prohibit pet ownership only by an amendment to the declaration." M. Perlstein, Condominium Management, in Illinois Condominium Law § 4.19, at 4-14 (Ill. Inst. for Cont. Legal Educ. 1994). Courts have upheld no-pet provisions and other restrictions on pets when they are included in the declaration. M. Kurtzon, Representing the Condominium Association, in Illinois Condominium Law § 10.22, at 10-18 (Ill. Inst. for Cont. Legal Educ. 1994). However, some courts have refused to permit an association to prohibit pets through board-created rules particularly when the declaration and bylaws are silent. M. Kurtzon, Representing the Condominium Association, in Illinois Condominium Law § 10.23, at 10-19 (Ill. Inst. for Cont. Legal Educ. 1994)

To be sure, other jurisdictions have held that pets may be restricted. However, all but one jurisdiction has held that the restrictions must be done by way of declaration, bylaw, or in other recorded documents. In California, in Nahrstedt v. Lakeside Village Condominium Ass'n, 8 Cal. 4th 361, 878 P.2d 1275, 33 Cal. Rptr. 2d 63 (1994), the supreme court held that a pet restriction barring all pets, except birds and fish, contained in the recorded declaration was enforceable, unless unreasonable. The court found that restrictions contained in the declaration are equitable servitudes and, therefore, are given a presumption of reasonableness. To be invalid, the opponent must demonstrate that the restriction is unreasonable, i.e., it violates public policy, imposes burdens on the land that substantially outweigh the restriction's benefits, or is arbitrary. With respect to the no-pet provision, the court held that plaintiff failed to allege allegations sufficient to show the provision was unreasonable.

In Chateau Village North Condominium Ass'n v. Jordan, 643 P.2d 791 (Colo. App. 1982), the Colorado court held that a rule barring pets (no cats, dogs, or other animals) without board permission, which rule was appended to the bylaws and recorded at the time the condominium was created, was enforceable.

In Florida, the law concerning restrictions on pets seems to be that if the rule is included in the condominium documents, it will be enforced. In Parkway Gardens Condominium Ass'n v. Kinser, 536 So. 2d 1076 (Fla. App. 1988), a per curiam opinion, the court held that where the declaration allowed pets and a board rule barred all pets, the declaration would prevail. In Zeskind v. Jockey Club Condominium Apartments, Unit No. II, Inc., 468 So. 2d 1021 (Fla. App. 1985), the court held that a no-pet rule included in the declaration could be enforced. The case did not set forth the specific language of the declaration and did not state what type of pet was involved. Similarly, in Majestic View Condominium Ass'n v. Bolotin, 429 So. 2d 438 (Fla. App. 1983), a rule in the declaration barring pets except one cat or dog under 25 pounds was enforceable. However, this case really involved enforcement of that rule. In Wilshire Condominium Ass'n v. Kohlbrand, 368 So. 2d 629 (Fla. App. 1979), a restriction ordering no replacement of lap dogs which was included in the declaration was enforceable. Finally, in Winston Towers 200 Ass'n v. Saverio, 360 So. 2d 470 (Fla. App. 1978), the court held that an amendment to the bylaws that retroactively barred replacement of all pets and allowed no new pets was not enforceable.

In Maryland and Massachusetts, the courts have analyzed the issue and provided greater rationale for their opposing rules. In Dulaney Towers Maintenance Corp. v. O'Brey, 46 Md. App. 464, 418 A.2d 1233 (1980), the court held that a board rule limiting the number of pets allowed per unit (one cat or one dog) was enforceable. In addressing the question before it, the court stated, "when a controversy arises as to a resident's right as a unit owner in a condominium, the courts must examine the condominium enabling statutes for relevant provisions, consider the master deed or declaration, study the bylaws, and attempt to reconcile the three." Dulaney, 46 Md. App. at 465-66, 418 A.2d at 1235. In addressing house rules, the court stated, "if the house rules are reasonable, consistent with the law, and enacted in accordance with the bylaws, then they will be enforced." Dulaney, 46 Md. App. at 466, 418 A.2d at 1235. The court found no distinction between rules governing common elements and rules governing conduct in individual units. Dulaney, 46 Md. App. at 468, 418 A.2d at 1236. Both are to be accorded the same level of scrutiny. Dulaney, 46 Md. App. at 468, 418 A.2d at 1236.

The Dulaney court found the board rule there was not only authorized but also reasonable. In addressing the board's authority, the court looked to the regulatory statute, which stated "restrictions on use of the units and the common elements are 'permissible' as bylaws" ( Dulaney, 46 Md. App. at 469, 418 A.2d at 1237) but are not required to be set forth in the bylaws. It distinguished the Massachusetts case (discussed below) based on this point. The court also noted that this language was a change from prior statutory language that mandated that such restrictions be included in the bylaws. Dulaney, 46 Md. App. at 470, 418 A.2d at 1237.

In summation, the Dulaney court stated:

"Under the revised act, within the authority contained in sections 11-104 and 11-109, house rules containing restrictions as to use may be enacted through rules and regulations adopted by a board of directors, so long as the enactment is within the scope of the powers delegated to the board, as set forth in the Master Deed and Declaration and the bylaws." Dulaney, 46 Md. App. at 470, 418 A.2d at 1237.

Thus, board rules were sufficient to limit pets. The language in this case also seems to imply that a total ban on pets could be accomplished by board rules only.

Massachusetts came to a contrary result based on the regulatory statute of that state. In Johnson v. Keith, 368 Mass. 316, 331 N.E.2d 879 (1975), the Massachusetts Supreme Court held that a board rule barring all pets (no animals or reptiles) was not enforceable. "Where a person's right to use his or her own property is involved, any ambiguity in an asserted restriction of this type should be construed in favor of the freedom of the property from that restriction." Johnson, 368 Mass. at 320, 331 N.E.2d at 882.

In order to determine the validity of a board rule, the Johnson court found it necessary to analyze certain provisions of the state statute, in particular, language that the bylaws must contain:

"Restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of *** [the owners'] respective units and of the common areas and facilities by the several unit owners." Johnson, 368 Mass. at 318, 331 N.E.2d at 881.

The bylaws contained some restrictions on the use of individual units but made no reference to the keeping of animals or pets. The court held that the statute's language required that any restriction on pets must be included in the bylaws. It rejected the association's argument that the rule was in fact a bylaw finding that the owners' intent demonstrated that the rule was merely incorporated as a rule and was not to be treated as a bylaw. Johnson, 368 Mass. at 320, 331 N.E.2d at 882. See also Granby Heights Ass'n v. Dean, 38 Mass. App. Ct. 266, 647 N.E.2d 75 (1995) (board rule effectively banning all dogs because the rule did not allow any animal outside individual unit unenforceable since under statute such restrictions must appear in bylaws or master deed); Noble v. Murphy, 34 Mass. App. Ct. 452, 612 N.E.2d 266 (1993) (restrictions barring all pets incorporated into original recorded documents and six years later added by way of amendment to bylaws enforceable; court found it significant that restriction was incorporated in and recorded with the bylaws).

It appears that the rule to be gleaned from these cases, except Dulaney, requires pet restrictions to be included in the original or recorded condominium documents. We also note that the Maryland statute the Dulaney court specifically relied on stated that restrictions may be included in bylaws but were not required to be.

The statute in Illinois, however, is virtually identical to the one interpreted in Johnson. Our statutes provides:

"Such restrictions on and requirements respecting the use and maintenance of the units and the use of the common elements, not set forth in the declaration, as are designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners." (Emphasis added). 765 ILCS 605/18(k) (West 1994).

The Massachusetts statute provides:

"Restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of *** [the owners'] respective units and of the common areas and facilities by the several unit owners." Mass. Ann. Laws ch. 183A, § 11(E) (Law. Co-op. 1987).

Based on a majority of the states' requirement that such restrictions be included in the declaration or recorded condominium documents, the similarity between our statute and that of Massachusetts, and the fact the declaration and bylaws in our case are silent on the issue of pets, in particular dogs, but included other restrictions on individual units, we find the rationale in Johnson persuasive and hold that the Board was not authorized by Illinois statute to restrict ownership of dogs by Board rule.

We also find that the trial court did not error in rejecting plaintiff's claims of waiver, equitable estoppel, and judicial estoppel.

"Waiver is the voluntary and intentional relinquishment of a known and existing right and may be either express or implied." Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 462, 211 Ill. Dec. 299, 654 N.E.2d 1109 (1995). The Board contends that defendants have waived their right to challenge the Board's authority because the no-dog rule had been in effect for six years before defendants moved into the building, they signed two pet agreements, they had actual knowledge of the rule, defendant Carlson was a member of the Board that enforced the rule against other owners, and defendants never contended that the rule was not validity adopted. The Board's contention is without merit. First, there is no evidence that the defendants voluntarily relinquished any rights whatsoever. The pet agreement that defendants signed stated they acknowledged the no-dog rule; it did not state that they agreed to abide by it, be bound by it, or give up their right to have dogs simply because they signed it. Moreover, they were compelled to sign the document in order to purchase a unit in the building.

Equitable estoppel prevents a party from taking advantage of his or her own wrongdoing. Goodwine State Bank v. Mullins, 253 Ill. App. 3d 980, 1012, 192 Ill. Dec. 901, 625 N.E.2d 1056 (1993). The doctrine prevents a party from asserting a right he or she would have otherwise been able to assert. Gorgees v. Daley, 256 Ill. App. 3d 143, 146, 195 Ill. Dec. 257, 628 N.E.2d 721 (1993). The purpose of the doctrine is to prevent fraud or injustice. Gorgees, 256 Ill. App. 3d at 146. "In order to establish equitable estoppel, the plaintiff must show that he was led to detrimentally rely upon the conduct or statements of the defendant and that such reliance was in good faith." Pothier v. Chicago Transit Authority, 238 Ill. App. 3d 702, 705, 179 Ill. Dec. 699, 606 N.E.2d 531 (1992). There are six elements to equitable estoppel: "(1) voluntary words or conduct by the estopped party amounting to a misrepresentation [or concealment of material facts]; (2) actual or implied knowledge of the estopped party that the representations were not true; (3) lack of knowledge of the true facts by the innocent party [both at time made or at time acted upon]; (4) intent, or a reasonable expectation, on the part of the estopped party that the innocent party would act on the misrepresentations; (5) a reasonable, good-faith, detrimental change of position by the innocent party based on the misrepresentations; and (6) prejudice to the innocent party." Estes v. Smith, 244 Ill. App. 3d 681, 684-85, 185 Ill. Dec. 335, 614 N.E.2d 469 (1993).

The requirements for equitable estoppel are not present here. First, defendants made no representations to the Board. When they purchased their unit, they simply signed a pet agreement acknowledging the no-dog rule. They did not represent to the Board or anyone else that they would abide by it. Second, the Board did not detrimentally rely on any alleged misrepresentation. If any one relied on the so-called misrepresentation, it would have to have been other unit owners. However, the Board has offered no authority to show that it may assert the rights of other unit owners. Finally, the Board did not change its position in any way nor is there evidence that any of the owners did either. As in Goodwine State Bank, because the Board's "mistake [in believing the no-dog rule was valid] could have been avoided by reference to applicable statutes and case law," the Board did not reasonably rely on defendants' alleged misrepresentation. Goodwine State Bank, 253 Ill. App. 3d at 1013. In addition, any prejudice to the Board was "not due to [alleged] misrepresentations of [defendants], but to its own failure to adequately research pertinent issues of law." Goodwine State Bank, 253 Ill. App. 3d at 1013.

Judicial estoppel "prevents a party from asserting inconsistent positions before courts in separate proceedings in order to receive favorable judgments in each proceeding." Ceres Terminals, Inc. v. Chicago City Bank & Trust Co., 259 Ill. App. 3d 836, 850, 200 Ill. Dec. 146, 635 N.E.2d 485 (1994). If judicial estoppel applies, a party who adopts one position in a legal proceeding is then estopped from asserting a contrary position in a subsequent legal proceeding. In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 259 Ill. App. 3d 231, 238, 197 Ill. Dec. 843, 631 N.E.2d 1302, (1994). "Judicial estoppel is a doctrine intended to prevent the perversion of the judicial process. *** The doctrine of estoppel is intended to protect the courts rather than the litigants, ***" Ceres Terminals, Inc., 259 Ill. App. 3d at 850, quoting In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). The requisite elements are: "(1) two positions have been taken by the same party [the same party must have taken the inconsistent positions]; (2) the positions were taken in separate judicial or quasi-judicial administrative proceedings; (3) the record clearly reflects that the party intended the trier of fact to accept the truth of the party's position; (4) the party was successful in asserting the first position and received some benefit in the first proceeding; and (5) the two positions are totally inconsistent." In re Air Crash Disaster, 259 Ill. App. 3d at 238-39.

The Board contends that judicial estoppel applies because defendant Carlson was on the Board at the time it was sued by the owners and she, as all Board members, took the position that the no-dog rule was valid and enforceable. We disagree. First, defendants were not parties to the first suit ( Rodgers v. Board of Directors of 175 East Delaware Place Homeowners Ass'n, No. 93 CH 5602). The Board was a party. There is no evidence defendants took any position in that case let alone evidence that they stated a position before the court which they intended it to rely on. Moreover, there is no evidence defendants benefitted from the first case. The Board was not successful in the first case because it was not decided on its merits, merely abandoned by the plaintiffs. Based on the failure of the Board to establish all elements of judicial estoppel, its argument is without merit.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

Affirmed.

McNAMARA and EGAN, JJ., concur.

19960503

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