Boucher v. 111 E. Chestnut Condo. Ass'n, Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.
• Citation: Boucher v. 111 E. Chestnut Condo. Ass'n, Inc., 2018 IL App (1st) 162233, 117 N.E.3d 1123, 427 Ill.Dec. 186 (Ill. App. 2018)
• Decision Date: 14 June 2018
• Docket Number: No. 1–16–2233,1–16–2233
• Parties: Michael BOUCHER, Plaintiff–Appellant, v. 111 EAST CHESTNUT CONDOMINIUM ASSOCIATION, INC., an Illinois Not–for–Profit Corporation, and Members of Its Board of Directors, Specifically, Anthony Milazzo Ann Marie Del Monico, Cheryl Jansen, Mike Fish, Serap Bush, Asia Gajderowicz, and Glenn Greene, Defendants–Appellees.

2018 IL App (1st) 162233

117 N.E.3d 1123

427 Ill.Dec. 186

Michael BOUCHER, Plaintiff–Appellant,

v.111 EAST CHESTNUT CONDOMINIUM ASSOCIATION, INC., an Illinois Not–for–Profit Corporation, and Members of Its Board of Directors, Specifically, Anthony Milazzo Ann Marie Del Monico, Cheryl Jansen, Mike Fish, Serap Bush, Asia Gajderowicz, and Glenn Greene, Defendants–Appellees.

No. 1–16–2233

Appellate Court of Illinois, First District, SECOND DIVISION.

June 14, 2018

PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 After a condominium association imposed fines on unit owner Michael Boucher, Boucher filed a complaint alleging that (i) board members violated the Condominium Property Act (Act) ( 765 ILCS 605/1 et seq. (West 2012) ) by penalizing him for expressing his opinions about condominium management, (ii) board members violated the Act by refusing Boucher's request for a copy of the recording of the meeting at which the board considered misconduct charges brought against Boucher, and (iii) the condominium association and the board members violated their fiduciary duties by withholding from Boucher evidence brought against him.

¶ 2 We hold that Boucher adequately alleged that the board members violated the Act when they penalized him for expressing his opinion about building management; Boucher presented evidence that could support a finding that the board members violated the Act when they denied his request for the recording of the disciplinary hearing; and Boucher presented evidence that could support a finding that the association and the board members breached their fiduciary duties when they failed to disclose to Boucher the evidence against him. Boucher did not answer three defendants who said they did not take part in the decision to deny his request for the video recording of the disciplinary hearing. Accordingly, we reverse the trial court's judgment and remand for further proceedings, except that we affirm the order granting summary judgment in favor of the three defendants who did not participate in the decision to withhold the recording of the hearing.

¶ 3 BACKGROUND

¶ 4 On August 23, 2013, the attorneys for the 111 East Chestnut Condominium Association (association) sent a letter to Boucher, a resident and owner of a unit in the 111 East Chestnut Condominium building, informing him that an employee of the association said that when she tried to get on an elevator with Boucher, Boucher "yelled profanities at the employee and demanded that she get off the elevator." Five days later, the same attorneys sent Boucher a second letter, informing him that another employee of the association said that when Boucher "requested a replacement [key] card, [he] used profanity and demanded that [he] pay cash for the replacement card, even though it was explained to [him] multiple times that the office does not accept cash payments. [His] behavior was described by witnesses as being rude and disrespectful." In both notices, the attorneys told Boucher his behavior violated the "Association's Declaration which specifically prohibits obnoxious or offensive activity from being carried on in any unit or in the common elements."

¶ 5 Boucher requested a hearing on the accusations. The board held the hearing on October 4, 2013. Boucher attended the hearing with his attorney and gave an account of what happened in the elevator incident and in the key card incident. At the hearing, Boucher's attorney asked to review "all underlying evidence, information, and/or documents relating to the allegations." The board denied the request. Immediately after the meeting, Boucher's attorney sent to the association's attorney a letter, formally requesting "a copy of the video and audio tape which recorded the October 4, 2013 hearing." The association's attorney responded with a letter sent to Boucher and the board denying the request for the recording. Boucher's attorney responded with a second request for the recording and for the evidence against Boucher.

¶ 6 The property manager sent Boucher a letter, informing him that "the Board has determined that a fine penalty in the amount of $250 per complaint, for a total of $500, [would] be applied to [his] account." Boucher paid the fine, but in November 2013, he filed a complaint naming as defendants the association and all seven members of the board. He alleged in count I that he had "expressed criticism of certain management practices and about the performance of certain management employees over issues relating to * * * sanitation of the building swimming pool, security practices * * * [and] the practice of imposing arbitrary fines on unit owners" and that the board "penalized the plaintiff in retaliation for expressing his opinions * * * about management practices" in violation of section 18.4(h) of the Act. 765 ILCS 605/18.4(h) (West 2012). Section 18.4(h) bars condominium boards from adopting rules that "impair any rights guaranteed by the First Amendment to the Constitution of the United States." 765 ILCS 605/18.4(h) (West 2012). In count II, Boucher alleged that the denial of his request for the video and audio recording of the October 4 meeting violated section 19(b) of the Act, which requires boards to make "minutes of all meetings" available to all members of the association. 765 ILCS 605/19(b) (West 2012). Count III rested on a charge that the defendants breached their fiduciary duties when they concealed from Boucher the evidence used against him.

¶ 7 Defendants filed a motion to dismiss the complaint for failure to state a cause of action. 735 ILCS 5/2–615 (West 2012). The circuit court granted the motion in part, dismissing count I "because there's no state action or government acting." The court also dismissed the association from count III because "a corporation * * * cannot be held to have breach[ed] fiduciary duties."

¶ 8 Defendants filed their answer to counts II and III, and the parties engaged in discovery. Boucher and all of the board members but one sat for their depositions. Boucher filed a motion to compel the final board member, Cheryl Jansen, to appear for a deposition. The circuit court denied the motion to compel.

¶ 9 All parties filed motions for summary judgment. Defendants sought judgment on count II on grounds that the video recording of the October 4 meeting did not constitute "minutes," and therefore the decision to deny Boucher's request for the video did not violate section 19 of the Act. For count III, the defendants explained in detail how thoroughly Boucher deserved the fines for obnoxious and offensive activity. Some of the defendants, in their depositions, testified that apart from the elevator incident and the key card incident, Boucher had in the past used sexist, racist, and scatological language; insulted employees; and "exposed his scrotum to people in a Board meeting." One of the board members testified that the board took into account the prior incidents when deciding to fine Boucher. Defendants also argued that the business judgment rule and the condominium declaration protected them from liability.

¶ 10 The circuit court granted defendants summary judgment on counts II and III of the complaint. Boucher now appeals.

¶ 11 ANALYSIS

¶ 12 We review de novo the dismissal of count III against the association and count I for failure to state a claim for relief. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). We also review de novo the order granting defendants' motion for summary judgment on counts II and III. Lake County Grading Co. v. Village of Antioch , 2014 IL 115805, ¶ 18, 385 Ill.Dec. 683, 19 N.E.3d 615.

¶ 13 Section 18.4(h)

¶ 14 The circuit court held that count I, which alleged a violation of section 18.4(h) of the Act, failed to state a claim for relief because only state action can violate the first amendment, and the association did not qualify as a state actor. The circuit court interpreted the statutory phrase, "rights guaranteed by the First Amendment to the Constitution of the United States," to refer not to freedom of religion, freedom of speech, and "the right of the people peaceably to assemble" ( U.S. Const., amend. I ), but rather as a reference to the right to bar Congress from making a law abridging freedom of religion, freedom of speech, and the right to assemble. Thus, on the circuit court's interpretation of section 18.4(h), the section applies only when a government actor, like a municipality, controls the board of directors for a condominium. See City of Chicago v. Groffman , 68 Ill. 2d 112, 120–24, 11 Ill.Dec. 283, 368 N.E.2d 891 (1977). The circuit court's interpretation raises the question: did the legislature adopt section 18.4(h) to stave off the threat of municipalities and other governmental entities buying condominium buildings so that they could install a board that would prevent the residents of those buildings from expressing political opinions?

¶ 15 We look to the legislative history. In support of the provision, Senator Silverstein explained that, under section 18.4(h),

"a board of managers of condo property may not institute any rules or regulations that will prohibit * * * reasonable accommodation for religious practices, including the attachment of religious objects on the * * * door posts of a condominium unit. * * * [T]wo condominium associations * * * prohibited Jewish residents from putting a mezuzah [on their door posts]." 94th Ill. Gen. Assem., Senate Bill 2165, 2006 Sess., Transcript Senate 2/22/2006 at 19.

¶ 16 According to the 2000 version of the Historical and Practice Notes for section 18.4(h):

"[A] board of managers could not prohibit unit owners or their tenants from knocking on neighbors' doors for purposes of political campaigning. * * * [The guarantee of constitutional rights was inserted] in response to boards who were attempting to severely restrict first amendment activity of owners and occupants, especially political activity.

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