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 HomeWiseDocs.com, Defendants-Appellees.
April 11, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 8113 -
Robert W. Gettleman, Judge.
Sykes, Scudder, and St. Eve, Circuit Judges.
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).
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.
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.
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
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. § 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).
the property manager for the two condominium associations,
contracted with HomeWiseDocs.com, 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. 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.
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.
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