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Taghert v. Wesley

September 30, 2003



The opinion of the court was delivered by: Presiding Justice Campbell


This is a consolidated appeal. Plaintiff, Francis Taghert, filed a complaint under the Illinois Condominium Property Act (765 ILCS 605/19 (West 2000)), against defendants, Walter Wesley and Nat Ozmon, the President and Director of 1440 Lake Shore Condominium Association, respectively, for failure to provide a requested inspection of Condominium Association financial documents. The trial court ordered defendants to produce the documents for inspection, entered sanctions against defendants, and awarded plaintiff attorney fees and costs. Defendants appeal from the various orders of the circuit court of Cook County denying motions to dismiss, motions to enter judgment on the pleadings, and from sanctions and awards entered against them. We affirm.


The record reveals the following relevant facts. Plaintiff, Francis Taghert, is an owner of a condominium unit in 1440 N. Lake Shore Drive, and operated as the 1440 Lake Shore Condominium Association (LSCA). Walter Wesley was president of the board of directors of the LSCA from June 1997, until June 2000. Nat Ozmon has been a board member and vice-president of the board of directors of the LSCA since June 1997.

On August 12, 1999, plaintiff sent a written petition to the LSCA Directors requesting certain condominium records from the Board, to wit, the "budgetary files of the LSCA finance committee." Wesley responded to plaintiff via letter dated August 27, 1999, that plaintiff could obtain the information requested by attending a meeting of the finance committee.

Thereafter, on August 27, 1999, plaintiff filed a complaint, pro se, naming as defendants, Wesley and Ozmon, alleging misfeasance in the process of determining special assessments and requesting punitive damages and fees.

In his initial complaint, plaintiff alleged that defendants failed to adhere to the provisions of the Declaration of Condominium and its bylaws, and to Section 19 of Illinois Condominium Property Act (Condominium Property Act), in making the records of the Association available for examination and review (765 ILCS 605/19 (West 2000). Plaintiff alleged that defendants failed to comply with his requests to review the budgetary files of the LSCA Finance Committee for the 1999/2000 budget. Plaintiff sought compensatory damages in the amount of $1, and punitive damages in the amount of $3,000, to be distributed to a Chicago charity at the court's direction, and associated court fees.

The trial court permitted plaintiff to amend his complaint four times. In his fourth amended complaint, dated March 19, 2001, plaintiff alleged that the insurer of LCSA, St. Paul Fire and Marine Insurance Company (St. Paul), by and through its manager Brad Smith and counsel, Daniel M. Extrom, wrongly failed to pay plaintiff an arbitration award in the amount $400, for attorney fees and $1 for nominal damages, associated with the arbitration of plaintiff's complaint for request for documents. *fn1 Defendants rejected the arbitration award as their statutory right.

The trial court entered an order on June 1, 2001, denying defendants' April 9, 2001, motion for judgment on the pleadings. The trial court granted in part and denied in part defendants' section 2-615 motion to dismiss plaintiff's fourth amended complaint with prejudice for failing to state a cause of action, striking certain paragraphs of plaintiff's fourth amended complaint.

Plaintiff filed a fifth amended complaint on June 13, 2001, adding counts sounding in conspiracy and misappropriation in connection with defendants' budgetary decisions in 1999-2000. A pre-trial settlement conference commenced on July 13, 2001. At the onset of the conference, plaintiff made a settlement demand of $3001. The trial court restated plaintiff's position as plaintiff having asked the Board for information regarding the preparation of the 1999-2000 budget. Defense counsel maintained that plaintiff had never requested this information in his complaint, and failed to request records with specificity. At the end of the hearing, the trial court denied defendants' motion to dismiss plaintiff's complaint or to grant judgment in favor of defendants on the pleadings.

On September 24, 2001, a hearing commenced in open court. The trial court inquired of the parties why they had failed to supply plaintiff with the documents he requested, then, sua sponte, entered an order compelling defendants' production of the "files of the Finance Committee." On October 1, 2001, defendants advised the court that no such files existed, and filed affidavits to that effect. Nevertheless, the trial court entered an order finding defendants in contempt of court and assessed fines in the amount of $500 per day until defendants produced such documents.

On October 9, 2001, plaintiff filed a motion for judgment on the pleadings arguing that by defendants' statements through counsel in open court, defendants admitted that the Board possessed documents relating to the 1999-2000 budget. Plaintiff alleged a contradiction between defendants' affidavits and the admission of defendants and of defense counsel. Plaintiff asserted that he had a witness, Don Rosenbaum, Co-Chairman of the Finance Committee during the formation of the 1999-2000 budget, who would testify that condominium budgets were often assembled without working sheets and were based on prior budgets. Plaintiff asserted that Wesley had tampered with the budget and inserted a special assessment without approval of the Board, and that Ozmon assented. Plaintiff also cited the following exchange:

"THE COURT: Do you have papers or receipts or anything that were used by the Board condo, its managers etc. in ...

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