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Lake Point Tower Condominium Association v. Waller

Court of Appeals of Illinois, First District, Third Division

June 28, 2017


         Appeal from the Circuit Court of Cook County. No. 15 M1 718251 The Honorable Orville E. Hambright, Jr. Judge, presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion.


          LAVIN JUSTICE.

         ¶ 1 This appeal arises from a forcible entry and retainer action filed by plaintiff Lake Point Tower Association (the Association) against defendants Diane Waller and all unknown occupants to obtain possession of Waller's condominium located at 505 North Lake Shore Drive, Unit 507, in Chicago (the Unit). The Association also sought $2, 856.89 in unpaid common expenses and related costs. The trial court dismissed the complaint with prejudice, finding that the Association's board (the Board) had failed to vote at an open meeting regarding whether to initiate this action. Instead, the Association's attorney had commenced this action at the direction of the Association's management company. On appeal, the Association maintains that its method of initiating this action was proper and, alternatively, the trial court should have dismissed the complaint without prejudice and allowed the Association to file an amended complaint. Specifically, the Association argues that the Board cured any deficiency by voting at an open meeting to pursue this action, albeit after the action had already been filed. We reverse and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 The Association commenced this action against Waller on September 10, 2015.[1] Seven months later, Waller moved to dismiss the complaint with prejudice but did not specify whether she sought dismissal under section 2-615 (735 ILCS 5/2-615 (West 2014)) or section 2-619 (735 ILCS 5/2-619 (West 2014)) of the Code of Civil Procedure (the Code). Waller, without disputing that assessments were due, asserted that the Association lacked authority to initiate litigation because the Board failed to vote at an open meeting before doing so. In support of her position, Waller relied primarily on section 18(a)(9)(A) of the Condominium Property Act (the Act) (765 ILCS 605/18(a)(9)(A) (West 2014)), and the appellate court's decision in Palm v. 2800 Lake Shore Drive Condominium Ass'n, 2014 IL App (1st) 111290. Waller argued that the minutes of the Board's meeting on November 20, 2014, showed that it improperly delegated its authority to initiate litigation to the Association's managing agent:

"Whereas the [Association] rules state that 'When any portion of the Unit Owner's account becomes forty-five (45) days past due, the Board shall forward that account to an attorney to initiate legal proceedings to collect all sums due and owing to the Association.'
Be it resolved that the Board of Directors of the Lake Point Tower Condominium Association appoint the managing agent (First Service Residential) to initiate unit owner collection proceedings automatically following 45 days of past due assessments."

         According to Waller, Illinois Supreme Court Rule 273 (eff. July 1, 1967) required the court to dismiss the complaint with prejudice in light of this improper delegation.

         ¶ 4 Waller attached to the motion an excerpt from the aforementioned meeting minutes, which showed that the resolution was passed unanimously. She also attached section 5.07(e) of the declaration:

"The Board shall have the power and duty to provide the for the designation, hiring, and removal of employees and other personnel, including lawyers and accountants, to engage or contract for the services of others and to make purchases for the maintenance, repair, replacement, administration, management and operation of the Property, and to delegate any such powers to the manager or managing agent and any such employees or other personnel as may be employees of the managing agent."

         Although only an excerpt of the declaration was attached to the motion, the entire declaration appears elsewhere in the record.

         ¶ 5 In response, the Association challenged Waller's failure to identify either section 2-615 or section 2-619 as the basis for her motion. That being said, the Association argued that she failed to satisfy either statute. The Association also argued that the substance of Waller's contention was not germane to a forcible entry and detainer action and, thus, could not be raised here.

         ¶ 6 Waller replied that the motion clearly argued that the Association failed to demonstrate that it complied with Palm and section 18(a)(9) because the Board failed to vote at an open meeting to commence this litigation. Additionally, she argued that Palm required a plaintiff to prove the requisite vote occurred as an element of its case and the Association's failure to do so rendered the complaint subject to dismissal under section 2-619. Waller also observed that the Association did not dispute the substance of her contention that the Board never voted at an open meeting to commence this action and, consequently, violated section 18(a)(9) and Palm. In its sur-response, the Association added that the declaration authorized the Board to delegate certain responsibilities to a management company and that Waller misread Palm. According to the Association, that decision held that the board there could fully delegate power to a managing agent or could require full board approval for decisions but could not assign decisions to subsets of the board.

         ¶ 7 On June 7, 2016, the trial court dismissed the complaint based on Palm, but denied Waller's request to dismiss the action with prejudice. Waller then sought a finding under Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016) that substantial grounds for a difference of opinion existed as to a legal question and that an immediate appeal may materially advance the litigation. At a hearing on June 23, 2016, however, the trial court reconsidered its prior order sua sponte. The court found that the complaint should have been dismissed with prejudice under Rule 273. The Association objected, arguing that dismissal with prejudice is appropriate only where the Association could not sustain a claim under any facts or circumstances and, "in this instance[, ] the board has now had a vote at an open meeting, voted to ...

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