North Spaulding Condominium Assoc v. Cavanaugh
2017 IL App (1st) 160870
| Ill. App. Ct. | 2017Background
- North Spaulding Condominium Association sued unit owners Michael and Tiffany Cavanaugh in forcible entry and detainer for unpaid assessments; complaint alleged unpaid assessments since Sept. 1, 2012 and a December 5, 2012 notice and demand.
- At bench trial plaintiff presented Westward employee Daniel O’Connor to authenticate a December 5, 2012 notice and an account ledger showing $3,204.26 due; the Cavanaughs objected to foundation and hearsay but the court admitted both exhibits.
- After plaintiff rested, the Cavanaughs moved under 735 ILCS 5/2-1110, arguing for the first time that plaintiff must prove a properly noticed board meeting and a board vote authorizing litigation (relying on section 18(a)(9) of the Condominium Property Act and Palm).
- The court denied the 2-1110 motion; the Cavanaughs waived presenting evidence, rested, and the court entered judgment for possession and $3,204.26 plus costs.
- North Spaulding sought $22,493.10 in attorney fees (supported by invoices); the trial court awarded $23,177.50.
- On appeal the court affirmed denial of the 2-1110 motion and the new-trial request, affirmed the reasonableness of fees attributable to the association, but vacated and remanded to the extent fees/costs included Westward’s third-party defense expenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether association must prove a properly noticed board meeting and vote authorizing litigation as element of a forcible-entry-and-detainer prima facie case | Not required; statute and DET Act set elements (unpaid assessments, proper demand, failure to pay) | Required: under Condo Act §18(a)(9) and Palm, board must meet, give notice, and vote to authorize litigation | Held: Not required. Palm does not impose that element in forcible-entry proceedings; denial of 2-1110 affirmed (de novo review) |
| Whether trial court abused discretion by sustaining plaintiff's objections during cross-exam of O’Connor without stating a basis | Objections were proper because questions about board meetings and votes were not relevant/germane to possession/amount due | Objections lacked stated basis and prevented relevant testimony about association authority | Held: No abuse. Objections were rooted in relevance; court acted within discretion; new-trial claim denied |
| Whether court erred admitting Notice and Demand and ledger when witness (O’Connor) was not employed when records were created | Records admissible under Ill. S. Ct. R. 236(a) and Evid. R. 803(6); lack of maker’s personal knowledge goes to weight, not admissibility | O’Connor could not lay foundation for 2012 records because not employed until 2013 | Held: Admission proper. O’Connor gave adequate foundation under Rule 236(a); no abuse in admitting exhibits |
| Whether attorney fees awarded were excessive or improperly included fees for defending third-party (Westward) | Fees requested were reasonable and recoverable under Condo Act §9.2(b) and FED Act §9-111; association may recover reasonable fees related to collection and defense of counterclaims | Fees excessive; some fees relate to defense of third-party Westward and should not be charged to association | Held: Overall award reasonable as to fees/costs attributable to the association; but vacated and remanded to exclude fees/costs attributable to Westward’s defense of third-party complaint (trial court to re-evaluate/support recovery) |
Key Cases Cited
- Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450 (2002) (statutory amendments permit associations to use forcible-entry process to collect arrearages quickly)
- Barnes v. Michalski, 399 Ill. App. 3d 254 (2010) (two-phase analysis for 2-1110 motions: legal sufficiency then manifest-weight review)
- Sawyier v. Young, 198 Ill. App. 3d 1047 (1990) (Forcible Entry and Detainer Act provides speedy remedy to restore possession)
- Snelson v. Kamm, 204 Ill. 2d 1 (2003) (standard of review for new-trial rulings is abuse of discretion)
- In re Leona W., 228 Ill. 2d 439 (2008) (trial court evidentiary rulings reviewed for abuse of discretion)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (1984) (on review, doubts from incomplete record resolved against appellant)