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Horist v. Sudler and Company

United States Court of Appeals, Seventh Circuit

October 21, 2019

Keith Horist, Joshua Eyman, and Lori Eyman, Plaintiffs-Appellants,
Sudler and Company d/b/a Sudler Property Management and NextLevel Association Solutions, Inc., d/b/a, Defendants-Appellees.

          Argued April 11, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 8113 - Robert W. Gettleman, Judge.

          Before Sykes, Scudder, and St. Eve, Circuit Judges.


         The Illinois Condominium Property Act requires an elaborate set of disclosures when a condominium unit is resold. The owner must give the prospective buyer a copy of the condominium declaration and bylaws, the condominium association's rules, and an array of other documents bearing on the current financial status of the property. 765 Ill. Comp. Stat. 605/22.1(a). The association's board must furnish the required documents within 30 days of the owner's written request, id. § 605/22.1(b), and it may charge a reasonable fee for doing so, id. § 605/22.1(c). Another provision of the Act allows the association to retain a person or firm to manage the condominium property. Id. § 605/18(a)(5).

         This lawsuit is a proposed class action against a Chicago property-management firm and its third-party vendor, an online service that assembles a downloadable electronic version of the required disclosure documents, giving unit owners quick and easy access to the material needed to complete a resale transaction. The vendor charges a fee for this service. The plaintiffs are condominium owners who purchased their disclosure documents from the online vendor and now complain that the fee is excessive in violation of the Condominium Act. They also bring claims under the Illinois consumer-fraud statute and three common-law theories: breach of fiduciary duty, unjust enrichment, and civil conspiracy. The district court dismissed the suit.

         We affirm. The relevant provision of the Condominium Act does not provide a private right of action, and we see no basis in Illinois law to imply one for condominium owners. The statutory consumer-fraud claim is likewise defective; the Illinois courts have held that charging too much for goods or services is not, standing alone, an unfair practice under the statute. The common-law claims also fail. The complaint does not plead an actionable breach of fiduciary duty, and unjust enrichment and conspiracy are not independent causes of action under Illinois law.

         I. Background

         Keith Horist owned a condominium at 400 East Ohio Street in downtown Chicago and was a member of his building's condominium association. Joshua and Lori Eyman owned a condominium at 1515 South Prairie Avenue, also in downtown Chicago, and they too were members of their condominium association. Both associations retained Sudler and Company, d/b/a Sudler Property Management, to manage their day-to-day operations.

         In 2017 Horist and the Eymans put their units on the market and found willing buyers. The Illinois Condominium Property Act requires that "[i]n the event of any resale of a condominium unit by a unit owner[, ] ... such owner shall obtain from the [association's] Board of Managers and shall make available to the prospective purchaser, upon demand," a copy of the condominium instruments, the association's rules, and a host of other documents reflecting the current financial status of the property.[1] § 605/22.1(a). These are commonly referred to as the "disclosure documents." Subsection (b) of the statute says that the association's "principal officer" or another "specifically designated" officer "shall furnish" the required documents to the owner "when requested to do so in writing and within 30 days of the request." § 605/22.1(b). Subsection (c), in turn, provides that "the association or its Board of Managers" may charge the unit owner a "reasonable fee covering the direct out-of-pocket cost of providing such information and copying." § 605/22.1(c).

         Sudler, the property manager for the two condominium associations, contracted with, an online document service that assembles the required disclosure documents in portable document form ("PDF"), giving condominium owners almost instantaneous electronic access to the material needed to close a resale transaction.[2] Sudler's website provides a link to HomeWise's site so owners can easily click through and order a downloadable PDF of their disclosure documents. But this convenience carries a cost. HomeWise charged Horist $240 for a PDF of his disclosure documents. The Eymans paid $365 for a PDF of theirs.

         Horist and the Eymans sued Sudler and HomeWise in Cook County Circuit Court seeking to represent a proposed class of condominium owners "who were charged by or paid a fee to HomeWise" for disclosure documents in connection with a condominium resale. The complaint raises five claims: (1) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; (2) a violation of the Condominium Act; (3) aiding and abetting a breach of fiduciary duty; (4) civil conspiracy; and (5) unjust enrichment. HomeWise removed the case to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Sudler and HomeWise then filed separate motions to dismiss.

         The judge granted the motions. Turning first to the claim under the Condominium Act, the judge held that section 22.1 provides no private right of action-express or implied-for unit sellers. He also ruled that the complaint did not state a viable claim that the PDF fee amounts to an unfair trade practice in violation of the consumer-fraud statute. The judge construed the three common-law claims as requiring an underlying violation of one of these statutes, so he dismissed them as well and entered final judgment for the defendants.

         II. ...

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