Thai v. Triumvera 600 Naples Court Condo. Ass'n

• Court: United States Appellate Court of Illinois
• Citation: 443 Ill.Dec. 428,161 N.E.3d 1080,2020 IL App (1st) 192408
• Docket Number: No. 1-19-2408,1-19-2408
• Parties: Matthew THAI and Tuyetha Dinh, individually and as next friends of J.T., a minor, Plaintiffs-Appellants, v. TRIUMVERA 600 NAPLES COURT CONDOMINIUM ASSOCIATION, an Illinois not-for-profit corporation, Jason Neuberger, Margaret Hock, Thomas Byrne, Michele Rose, Tracy Hoban, and Juele Blankenburg, Defendants-Appellees.
• Decision Date: 25 June 2020

2020 IL App (1st) 192408
161 N.E.3d 1080
443 Ill.Dec. 428

Matthew THAI and Tuyetha Dinh, individually and as next friends of J.T., a minor, Plaintiffs-Appellants,
v.
TRIUMVERA 600 NAPLES COURT CONDOMINIUM ASSOCIATION, an Illinois not-for-profit corporation, Jason Neuberger, Margaret Hock, Thomas Byrne, Michele Rose, Tracy Hoban, and Juele Blankenburg, Defendants-Appellees.

No. 1-19-2408

Appellate Court of Illinois, First District, FOURTH DIVISION.

June 25, 2020

Michael Lee Tinaglia, and Brian J. Olszewski, of Law Offices of Michael Lee Tinaglia Ltd., of Park Ridge, Illinois, for appellants.

Janelle Ann Dixon, of Kovitz Shifrin Nesbit, of Mundelein, Illinois, for appellees.

JUSTICE REYES delivered the judgment of the court, with opinion.

443 Ill.Dec. 430

¶ 1 Plaintiffs Matthew Thai, Tuyetha Dinh, and J.T., one of their four minor

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443 Ill.Dec. 431

children (collectively plaintiffs), filed a six-count amended complaint against the Triumvera 600 Naples Court Condominium Association (association) and its board members Jason Neuberger, Margaret Hock, Thomas Byrne, Michele Rose, Tracy Hoban, and Juele Blankenburg (collectively the board) alleging, inter alia , breach of fiduciary duty, defamation, invasion of privacy, and violations of the Illinois Human Rights Act (Act) ( 775 ILCS 5/1-101 et seq. (West 2016)) for familial status discrimination, national origin discrimination, and retaliation. These counts were based on plaintiffs' allegations that they endured severe emotional distress and harassment from the association and its board members due to their Vietnamese national origin and familial status. The trial court granted summary judgment in favor of defendants on plaintiffs' claims under the Act. The matter then proceeded to trial on the counts for breach of fiduciary duty, defamation, invasion of privacy. The jury returned a verdict in favor of plaintiffs on the defamation and invasion of privacy counts against the association in the amount of $60,000 plus costs.

¶ 2 On appeal, plaintiffs claim that the trial court erred in granting summary judgment in favor of defendants on the retaliation count. According to plaintiffs, the association filed a lawsuit in chancery against them in retaliation after learning that plaintiffs had filed a charge under the Act with the Illinois Department of Human Rights (IDHR). Plaintiffs further assert that while defendants did set forth a legitimate nondiscriminatory reason for filing the chancery action, namely that they did so in order to enforce the terms of the association's governing documents and to ensure that plaintiffs' unit was in good repair and had proper flooring, the evidence demonstrated that a genuine issue of material fact existed as to whether this legitimate nondiscriminatory reason was pretext for a retaliatory motive. Plaintiffs thus conclude that the trial court erred in granting summary judgment in defendants favor on this count. For the reasons that follow, we reverse the decision of the trial court and remand the matter for further proceedings.

¶ 3 BACKGROUND

¶ 4 According to the pleadings, depositions, and affidavits filed in this matter, Matthew Thai was the record owner of 600 Naples Court, unit 308, in Glenview, Illinois. He resided therein with his wife, Dinh, and his four minor children from 2014 until October 2017. In 2015, certain neighbors complained to the board about the children playing and making noise. Plaintiffs attended a subsequent board meeting and, based on that conversation, instituted some measures to reduce the impact of their children living in a condominium setting. Namely, plaintiffs imposed specific disciplinary rules for the children and installed thick foam padding in the area of unit 308 where the children would play and installed carpeting in the bedroom. Subsequently, plaintiffs received no adverse communications or complaints from the association regarding noise violations in 2016.

¶ 5 In January 2017, Neuberger became the board president. Neuberger was the owner of unit 208 which was situated directly below plaintiffs' unit. Beginning from the time Neuberger assumed the presidency, and continuing until plaintiffs moved out, Neuberger engaged in what plaintiffs alleged was a pattern of harassing and disparate treatment against them and their children, which included frequent pounding on their door and their floor.

¶ 6 Then, in January 2017, the association posted minutes of its January 10, 2017, board meeting wherein plaintiffs'

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443 Ill.Dec. 432

children were referred to as "serial noise violators" and stated, "Legal action will need to be taken if this is not remedied in the near future." On January 25, 2017, Neuberger issued a "warning letter from the Board" to unit 308 complaining that "excessive and consistently disturbing noise * * * comes from your unit."

¶ 7 Later that month, the association shut the water off in the building to clean the pipes. As a result of this plumbing work, plaintiffs' unit flooded and their kitchen sink became inoperable. Plaintiffs contacted the association requesting that the issue be corrected. A plumbing contractor hired by the association addressed the issue but, unbeknownst to plaintiffs and without their consent, photographs were taken of their unit which demonstrated it was in disarray with unwashed pots, pans, and dishes on the counter and boxes piled up around the room. Plaintiffs alleged that these photographs were taken at the behest of Neuberger and the association. These photographs resulted in the association having its legal counsel send Thai a letter referencing the photographs and requesting that unit 308 be cleaned and thereafter inspected by the association. Subsequent to its board meeting held on February 14, 2017, the association publicly posted the minutes which specifically referenced unit 308 and stated, "The excessive debris in the unit (documented by the plumber's photos during a repair) is a potential DCFS issue also. Action on this concern is suggested if we do not receive cooperation on the noise and debris." Two days later, plaintiffs received a " ‘notification of a suspected child abuse and/or neglect’ from the Illinois Department of Children and Family Services [ (DCFS) ]." As a result of this report, plaintiffs were investigated by DCFS. Ultimately, DCFS determined the report was unfounded.

¶ 8 On April 11, 2017, a board meeting was held wherein the defendants discussed and approved three $50 fines against unit 308. The fines were for excessive noise, moving out in contravention of the rules and regulations, and failure to allow the association to inspect the condition of the unit. At that time, the rules and regulations provided that, upon being fined, the unit owner shall receive written notice as well as information on a hearing and appeal. The notice was deemed properly served on the unit owner when deposited in the U.S. mail. On April 12, 2017, Neuberger and the board secretary Rose worked together to draft the notice to Thai which provided that the hearing would take place at the next board meeting on April 25, 2017. It is unclear from the record the manner in which Thai was provided service of the notice.

¶ 9 In a text message exchange on April 20, 2017, Rose and Neuberger discussed proper service of the notice and expressed concern over whether unit 308 received proper notice. They determined that if Thai did not attend the hearing they would reissue the notice in accordance with the rules and regulations. Specifically, Neuberger stated, "we rewrite the letter for the next meeting and mail it * * * give him another opportunity and do it by the book." Thai did not receive the notice and therefore did not appear at the board meeting on April 25, 2017.

¶ 10 Meanwhile, prior to the last board meeting, on April 21, 2017, plaintiffs had filed a charge with the IDHR alleging the association and its board members discriminated against them based on their national origin and familial status. The association was notified of the charge through their counsel on April 26, 2017. On May 4, 2017, Neuberger sent an email to the board members in which he stated the following:

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443 Ill.Dec. 433

"They are 100% wrong and have zero evidence of their slanderous false accusations of discrimination. The idea that the part at fault (308) can file a false complaint and place our board on the defensive is laughable. They have zero evidence and I plan on moving forward with our lawyer. I feel time is of the essence. They have not perfected (signed) their complaint yet, and we have a case per our lawyer and overwhelming support of the board to address this legally."

At the May 9, 2017, board meeting, the board voted to initiate the chancery lawsuit against plaintiffs.

¶ 11 Thereafter, on June 7, 2017, the chancery action was filed. In this cause of action, the association sought injunctive relief in the form of cleaning and the installation of adequate soundproofing material beneath the flooring of unit 308. The...