Quirke v. Private Residences At Ontario Place Condo. Assocation

Decision Date17 December 2015
Docket NumberNo. 1-14-2385,1-14-2385
Citation2015 IL App (1st) 142385 -U
PartiesJOHN H. QUIRKE, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. THE PRIVATE RESIDENCES AT ONTARIO PLACE CONDOMINIUM ASSOCATION, and SUDLER AND COMPANY d/b/a SUDLER PROPERTY MANAGEMENT, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County

13-CH-25011

Honorable Neil H. Cohen, Judge Presiding

PRESIDING JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Reyes and Justice Gordon concurred in the judgment.

ORDER

¶ 1 Held: Where condo owner was evicted by court order for failure to pay monthly assessments and late fees, res judicata barred subsequent action disputing reasonableness of those fees.

¶ 2 John J. Quirke was sued and evicted by court order in 2011 from a Chicago residential condominium unit and deeded private parking space for not paying monthly assessments and late fees on the property. He filed the current class action in 2013 challenging the reasonableness ofthe late fees. The trial court, however, granted the defendants' motion to dismiss the suit on grounds that Quirke's complaint was factually deficient and, that, in any event, the 2011 eviction suit was res judicata as to the validity of the fees. 735 ILCS 5/2-619.1 (West 2012) (providing for a motion to dismiss to include procedural and substantive arguments provided arguments are clearly separated). The trial court considered Quirke's proposed amended complaint, but denied leave to amend. Quirke took this appeal.

¶ 3 The defendants, which are the condominium association, The Private Residences At Ontario Place Condominium Association, and the property management company, Sudler and Company d/b/a Sudler Property Management, argue that the appeal was initiated more than 30 days after the class action was dismissed and was thus untimely. Pursuant to Supreme Court Rule 303(a)(1), if a party wishes to appeal, generally he or she must file a notice of appeal within 30 days after entry of the final judgment from which he or she is challenging. Ill. S. Ct. R. 303(a)(1) (eff. June 1, 2008). An order of the trial court dismissing a suit is a final and appealable order. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502, 687 N.E.2d 871, 874 (1997) (a judgment or order is "final" if it disposes of the rights of the parties, either as to the entire case or some definite and separate part of the controversy); Pick v. Pick, 58 Ill. App. 3d 357, 359, 374 N.E.2d 689, 691 (1978) ("In our opinion, the law is clear and definite that an order dismissing a suit or proceeding with prejudice is a final, appealable order."). A timely notice of appeal is necessary for this court to have jurisdiction. Heiden v. DNA Diagnostics Center, Inc., 396 Ill. App. 3d 135, 138, 918 N.E.2d 1083, 1086 (2009).

¶ 4 In his reply brief, Quirke points out that earlier in these proceedings, we considered and rejected a motion from the defendants to dismiss for lack of jurisdiction. That ruling, however, is not conclusive of the issue, as a question of whether we have jurisdiction to hear a case may berevisited at any time before the final disposition of an appeal. In re Marriage of Breslow, 306 Ill. App. 3d 41, 57, 713 N.E.2d 642, 654 (1999); Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill App. 3d 790, 798, 629 N.E.2d 520, 525 (1993) ("[t]he denial of a motion to dismiss made in the reviewing court does not bind the court. Such rulings are not unassailable, but rather open to reconsideration"). We have a firmly established duty to consider our jurisdiction and dismiss an appeal if jurisdiction is found wanting. Breslow, 306 Ill. App. 3d at 57, 713 N.E.2d at 654.

¶ 5 Despite the 30 day limitation associated with Rule 303(a)(1), Rule 303(a)(2) provides that a timely motion directed at a (final and appealable) judgment order will toll the running of the 30 days and that the deadline for filing a notice of appeal then becomes 30 days after the resolution of that postjudgment motion. Ill. S. Ct. R. 303(a)(1) (eff. June 1, 2008); Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008); Vanderplow v. Krych, 332 Ill. App. 3d 51, 773 N.E.2d 40 (2002) (determining whether motion to amend the pleadings to conform with the proof at trial qualified as a motion that tolled the 30-day period in which to file a notice of appeal).

¶ 6 The record indicates that Quirke filed his notice of appeal more than 30 days after the dismissal of the complaint, so his appeal was timely only if there was a postjudgment motion directed at the dismissal order. Accordingly, we first review the proceedings in the trial court.

¶ 7 Both the 2011 eviction suit and the current suit filed in 2013 stem from Quirke's late payment of monthly assessments in 2010 for his condo unit and parking space. He owned residential unit #1010 and parking space P-S905 at 10 East Ontario Street, Chicago, which is a 467-unit building. He received monthly invoices which itemized the assessment for his residential unit, which was approximately $335, and the assessment for his deeded parking spot, which was approximately $55. The two items were presented in a single invoice each month, but a late fee would be assessed for each item that was paid untimely; thus, when Quirke was late topay his monthly assessments for September 2010, he was charged a late fee of $75 for his residential unit and a late fee of $75 for his parking spot. The payment he tendered in October 2010 was first applied to the September late fees and was insufficient to also cover his October assessment, so he was charged an additional $150 in late fees. This pattern of payments that were insufficient to cover both Quirke's past due balance and new assessments continued for the next three months. When he complained that the condominium bylaws did not specify this accounting method, the bylaws were updated in May 2011 to reflect this practice. Quirke did not make a payment in February 2011 or any month after that, and now states that he deliberately stopped paying assessments because he was "[d]ispleased by the compounding late fees." The condominium association filed suit seeking $2,659.50 in past-due charges, attorney fees, court costs, any subsequently accruing unpaid charges, and possession of Quirke's condo. Judgment was granted for the requested amounts and possession. The condominium association then rented Quirke's unit to tenants for $1400 or more per month beginning in January 2012. Although Quirke was still the owner and liable for monthly assessments accruing after his eviction, he did not pay the new assessments and he continued to incur late fees. In November 2012, the condominium association returned to court with a motion for leave to extend the tenancy for an additional 12 months. See 735 ILCS 5/9-111.1 (West 2010) (indicating a condominium board may lease a unit, and, with leave of court, may extend an initial 12 months tenancy by 12 months). The motion for leave to extend the tenancy included an accounting which showed Quirke was continuing to incur late fees and that the tenant's payments were being applied to these fees. See 735 ILCS 5/9-111.1 (West 2010) (indicating rental income shall first apply to assessments and other charges that were sued upon, then to statutory interest, attorney fees, court costs, "other expenses lawfully agreed upon (including late charges)", and "lastly to assessmentsaccrued thereafter until assessments are current"). The court approved the additional lease. Quirke's debt was finally satisfied in June 2013. He sold the property in August 2013. During the 52 months that he owned the unit and parking spot, he incurred late fees 34 times, and ultimately paid a total of $20,239.44.

¶ 8 Five months later, in November 2013, he filed this suit. The defendants argued for dismissal on two grounds, the first ground being that Quirke did not allege sufficient facts which, if proved, would entitle him to relief, and that this warranted dismissal of his complaint pursuant to § 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2012) (Code). Because Illinois is a fact-pleading jurisdiction, rather than a notice-pleading jurisdiction, conclusory allegations will not suffice. Knox College v. Celotex Corp., 88 Ill. 2d 407, 426-27, 430 N.E.2d 976, 985 (1981). In order to survive a motion to dismiss pursuant to § 2-615, a complaint must be both legally and factually sufficient. Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 167, 788 N.E.2d 740, 750 (2003). The complaint must set out all ultimate facts that support the plaintiff's cause of action. Edelman, Combs, 338 Ill. App. 3d at 168, 788 N.E.2d at 750. After written briefs and oral arguments, the trial court found that Count I of Quirke's complaint, which purported to be a claim for breach of contract, did not identify and include a copy of any particular contact Quirke had with the condominium association and instead stated in a non-factual, conclusory manner that a breach of "association bylaws and rules, and Illinois law" had occurred. Furthermore, there was no allegation that Quirke had any contract with the management company. The court next found that Count II, which was identified as a claim for breach of fiduciary duty, simply characterized the late fees as being "excessive" and "unreasonable" but did not indicate how this was a breach of the condominium association's fiduciary relationship with Quirke. Also, there were no facts suggesting a fiduciary relationshipbetween the management company and Quirke. Count III purported to be a claim under the Illinois Consumer Fraud and Deceptive Practices Act, but the court found that Quirke was not a "consumer" as defined by the statute. 815 ILCS 505/1(e) (West 2012)....

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