Lake Point Tower Condominium Assocation v. Waller
2017 IL App (1st) 162072
| Ill. App. Ct. | 2017Background
- Lake Point Tower Condominium Assn. sued unit owner Diane Waller in forcible entry and detainer to recover possession of Unit 507 and unpaid common expenses.
- Waller moved to dismiss, arguing the Association lacked authority to file because the board had not voted at an open meeting to initiate litigation, relying on section 18(a)(9) of the Condominium Property Act and Palm v. 2800 Lake Shore Drive Condominium Ass’n.
- The Association relied on its declaration authorizing delegation to a managing agent and disputed that the defect was cognizable in a forcible entry and detainer action.
- The trial court first dismissed without prejudice, then sua sponte changed course and dismissed with prejudice under Illinois Supreme Court Rule 273.
- After the initial dismissal but before final judgment, the board held an open meeting and voted to pursue litigation; the Association sought leave to amend to allege that vote.
- The appellate court reversed, holding the dismissal with prejudice and denial of leave to amend was an abuse of discretion and that the board vote cured the asserted defect.
Issues
| Issue | Plaintiff's Argument (Association) | Defendant's Argument (Waller) | Held |
|---|---|---|---|
| Proper procedural vehicle for dismissal | Motion unspecified; Association argued motion failed under either 2-615 or 2-619 | Motion challenged Association's legal capacity to sue (affirmative defense) | Court treated challenge as a 2-619 issue (outside-pleading affirmative matter) |
| Whether board vote at open meeting is an element of forcible entry and detainer | Not required as an element; North Spaulding supports that statutory scheme does not require alleging a prior open-board vote | Palm and §18(a)(9) suggest litigation is association business and votes must occur at open meetings | Court agreed statutes do not make open-board vote an element of forcible entry and detainer; Palm does not impose an automatic bar here |
| Validity of delegation to management company | Declaration authorized delegation of certain powers to managing agent; delegation can be valid | Delegation (or use of subset of board) improperly circumvented open-meeting requirements per Palm | Court noted declaration did not explicitly include initiating litigation but found subsequent open-board vote cured any defect; Palm did not require suppression of all collection suits where ratified |
| Dismissal with prejudice and leave to amend | Association argued dismissal should be without prejudice and that amendment to plead the board vote would cure defect | Waller (and trial court) argued Rule 273 required dismissal with prejudice | Court held trial court misapplied Rule 273 and abused discretion by dismissing with prejudice and denying leave to amend; remanded for further proceedings |
Key Cases Cited
- Spanish Court Two Condominium Ass’n v. Carlson, 2014 IL 115342 (recognizing unit owner may challenge manner assessments were adopted)
- 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372 (discussing creation of condominium association lien)
- Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518 (explaining operation and effect of Illinois Supreme Court Rule 273)
- Illinois Graphics Co. v. Nickum, 159 Ill.2d 469 (requiring clear identification of ground for motion to dismiss unless no prejudice)
- Cwikla v. Sheir, 345 Ill. App.3d 23 (distinguishing 2-615 and 2-619 motions)
- Bruss v. Przybylo, 385 Ill. App.3d 399 (dismissal with prejudice only when plaintiff can prove no set of facts entitling to relief)
- Matejczyk v. City of Chicago, 397 Ill. App.3d 1 (Rule 273 governs interpretation/effect of dismissal orders rather than mandating which dismissal to enter)