840 N.E.2d 1275 (Ill.App. 2 Dist. 2005), 2-05-0343, Willmschen v. Trinity Lakes Improvement Ass'n

Docket Nº:2-05-0343.
Citation:840 N.E.2d 1275, 362 Ill.App. 546, 298 Ill.Dec. 840
Party Name:Robert WILLMSCHEN, Ronald Cullum, Peter Hlepas, Mark Kaschube, and James Campise, Plaintiffs-Appellants, v. TRINITY LAKES IMPROVEMENT ASSOCIATION and The Board of Directors of Trinity Lakes Improvement Association, Defendants-Appellees.
Case Date:December 27, 2005
Court:Court of Appeals of Illinois
 
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Page 1275

840 N.E.2d 1275 (Ill.App. 2 Dist. 2005)

362 Ill.App. 546, 298 Ill.Dec. 840

Robert WILLMSCHEN, Ronald Cullum, Peter Hlepas, Mark Kaschube, and James Campise, Plaintiffs-Appellants,

v.

TRINITY LAKES IMPROVEMENT ASSOCIATION and The Board of Directors of Trinity Lakes Improvement Association, Defendants-Appellees.

No. 2-05-0343.

Court of Appeals of Illinois, Second District.

December 27, 2005

Appeal from the Circuit Court of Du Page County. No. 03--CH--1434, Honorable Edward R. Duncan, Jr., Judge, Presiding.

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Thomas R. Mulroy III, John A. Leja, Carlin R. Metzger, Jaime L. Hochhausen, McGuire Woods, LLP, Chicago, James Campise, Ronald Cullum, Peter Hlepas, Mark Kaschube, Robert Willmschen.

Tracy A. Mitchell, Pamela J. Park, Richard W. Hillsberg, Kovitz, Shifrin & Nesbit, Buffalo Grove, for Board of Directors Trinity Lakes Improvement Association, Trinity lakes Improvement Association.

OPINION

O'MALLEY, PRESIDING JUSTICE.

Plaintiffs, Robert Willmschen, Ronald Cullum, Peter Hlepas, Mark Kaschube, and James Campise, are homeowners in the Trinity Lakes Estates subdivision in Oakbrook (Trinity Lakes). They filed a four-count complaint in the circuit court of Du Page County against defendants, the Trinity Lakes Improvement Association (Association) and its Board of Directors (Board), alleging that defendants breached certain covenants by failing to properly maintain two lakes, portions of which were part of Trinity Lakes' common areas. Plaintiffs, whose homes bordered the lakes, further alleged that the lakes were both a private and a public nuisance. Defendants filed a combined motion pursuant to sections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 2004)) to dismiss plaintiffs' second amended complaint. Plaintiffs appeal from the court's order granting the motion and dismissing the complaint with prejudice. We affirm in part, reverse in part, and remand for further proceedings.

According to plaintiffs' second amended complaint, Trinity Lakes was developed in the 1970s and consists of about 200 single family properties. Trinity Lakes is on the shores of two lakes known as Upper and Lower Mayslake. In connection with the development of the subdivision, the lakes were excavated to remove sediment and vegetation, and they serve to prevent

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flooding and soil erosion by acting as water drainage, detention, and retention facilities. Trinity Lakes' Declaration of Covenants, Conditions, and Restrictions (declaration) identifies portions of the lakes as common areas. The declaration further provides that the Association is responsible for maintenance of the common areas. However, according to plaintiffs, the condition of the lakes deteriorated dramatically since the Association was established. The lakes had come to be filled with sediment and noxious vegetation and algae. According to the complaint, the lakes were an eyesore, produced foul odors, and were hazardous to those who might intentionally or accidently enter the water.

A few years before the lawsuit was filed, the Board, as then constituted, formed a committee to investigate the condition of the lakes and retained an environmental firm to study the problem. The firm compiled a written "vegetation management plan" (VMP). The VMP suggested that the introduction of nutrients into the lakes due to runoff from construction sites and fertilized lawns was the major factor contributing to the overgrowth of vegetation in the lakes. The VMP proposed remedial measures including dredging the lakes to increase their depth and to remove nutrient-rich sediments, removing undesirable vegetation and replacing it with more appropriate aquatic plants, reducing nutrient levels in the water, and monitoring compliance with appropriate erosion control measures. However, the Association did not undertake these measures, and plaintiffs initiated this litigation.

Counts I and II alleged that the Association (count I) and the Board (count II) had breached covenants pertaining to maintenance of the lakes. In both counts, plaintiffs sought (1) orders requiring defendants to comply with the maintenance provisions of the declaration and (2) declaratory judgments clarifying defendants' obligations under those provisions. Counts III and IV, both of which were directed against the Association, asserted theories of private and public nuisance respectively. As noted, defendants filed a combined motion to dismiss under sections 2--615 and 2--619 of the Code. Under section 2--619, defendants sought dismissal of counts I, II, and III, on the basis that plaintiffs had suffered no special injury distinct from the injury to other homeowners and therefore lacked standing to sue. Defendants similarly argued that plaintiffs lacked standing as to count IV alleging a public nuisance because they had suffered no special injury different from that suffered by the public. Under section 2--615, defendants moved to dismiss counts I, II, and III, for failure to state a cause of action. Defendants contended that those counts were defeated by the business judgment rule. As to count III--the private nuisance count--defendants additionally contended that the claim was legally insufficient because plaintiffs had failed to allege that defendants were responsible for creating the vegetation problem in the lakes. Defendants also moved to strike the prayers for declaratory relief in counts I and II. After the trial court granted the motion to dismiss, plaintiffs filed a timely notice of appeal.

Initially, we review the principles governing motions to dismiss under sections 2--615 and 2--619 of the Code. A section 2--615 motion attacks the legal sufficiency of the complaint. Suburban 1, Inc. v. GHS Mortgage, LLC, 358 Ill.App.3d 769, 772, 295 Ill.Dec. 536, 833 N.E.2d 18 (2005). In reviewing the sufficiency of the complaint, the court must...

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