Carey v. The 400 Condo. Ass'n

1

2024 IL App (1st) 230358-U

REVEREND PATRICIA A. CAREY and RICHARD FRY, Plaintiffs-Appellants, v. THE 400 CONDOMINIUM ASSOCIATION, an Illinois Not-For-Profit Corporation, and HELEN DRESS, Defendants-Appellees.

No. 1-23-0358

Court of Appeals of Illinois, First District, Second Division

March 29, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court Cook County. No. 17 CH 12201 Honorable Thaddeus L. Wilson, Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Cobbs concurred in the judgment.

ORDER

McBRIDE, JUSTICE

¶ 1 Held: Summary judgment for defendants was proper in action for breach of fiduciary duty against condominium association, and private nuisance against a neighbor, based on an alleged smoke infiltration emanating from the neighbor's unit. The building's Rules and Regulations specifically permitted smoking in the condo building, and plaintiffs provided no evidence that any smoke that allegedly infiltrated their unit was unreasonable.

¶ 2 Plaintiffs, Reverend Patricia Carey and her husband Richard Fry, own a condominium in a building which explicitly permits smoking within units of the building, so long as the smoking "does not create a nuisance or unreasonable disturbance to others." Plaintiffs brought this action against their condominium association, the 400 Condominium Association ("Association"), and the owner of an adjacent unit, Helen Dress. They allege that the Association breached its fiduciary duties to plaintiffs by mishandling their complaints that secondhand tobacco and marijuana smoke infiltrated plaintiffs' unit from Dress's unit, and that Dress's actions in allowing the smoke to infiltrate plaintiffs' unit constituted a private nuisance. On summary judgment, the trial court found that plaintiffs had presented no evidence that any objectively unreasonable level of smoke had infiltrated their unit, and granted summary judgment for the Association and Dress. In this appeal, plaintiffs challenge the circuit court's rulings granting summary judgment in favor of defendants. They ask this court to instead find that summary judgment should be granted in their favor.

¶ 3 The record shows that plaintiffs own Unit 3701 in a condominium building located at 400 East Randolph Street, Chicago, IL, while Dress owns the adjacent Unit 3703. The Association and its Board of Directors operate and manage the building, and engage a property management company, The Habitat Company, for day-to-day building management.

¶ 4 The Association has established certain Rules and Regulations governing residency in the building. As relevant here, Section 27 of those Rules and Regulations provides:

"No unlawful, noxious or offensive activities shall be carried on in any Unit or elsewhere at the Building, nor shall anything be done therein or thereon which shall constitute a nuisance or which shall, in the judgment of the Board cause unreasonable noise, danger or disturbance to others.

Residents and Unit Owners must not permit or participate in activities in the Units or Common Elements that will unreasonably disturb or interfere with the rights and comfort of other residents or Unit Owners."

¶ 5 Section 42, entitled "Smoking in Common Element Area and in Uinits [sic]" provides that smoking is not permitted in common areas of the building, and is "permitted only in Units, and only if it does not create a nuisance or unreasonable disturbance to others." The rules further provide that if "in-unit smoking result[s] in a nuisance or unreasonable disturbance to others, it will be the responsibility of the smoker to cure the issue within their unit."

¶ 6 Plaintiffs filed their initial complaint in this matter on September 8, 2017, and amended the complaint twice thereafter. Plaintiffs' second amended complaint, which is the subject of this appeal, was filed on December 19, 2019, and alleged two claims-breach of fiduciary duty against the Association, and private nuisance against Dress.

¶ 7 In general, plaintiffs alleged that, "[o]n information and belief, house guests and others visiting Dress's Unit smoke tobacco and/or marijuana inside the Unit, including on the balcony" and that "[s]moking within [Dress's] Unit *** causes the infiltration of secondhand and thirdhand marijuana and tobacco smoke into [p]laintiffs' Unit." Plaintiffs further alleged "[o]n information and belief," that "other owners and occupants" in the building also "smoke[d] marijuana and/or tobacco within their Units" and that smoke had "entered the common areas" of the building. Plaintiffs contended that the "infiltration of secondhand and thirdhand marijuana and/or tobacco smoke from other Units into [p]laintiffs' Unit" and into the "common areas" of the building constituted a nuisance under the Association's Rules and Regulations.

¶ 8 Plaintiffs also asserted that they had "met with and reported to the Association and its Board the infiltration of secondhand and thirdhand marijuana and tobacco smoke entering their Unit and the common areas," but that the Association had "refused to take any action" with regard to plaintiffs' complaints, "including investigating, and requesting the nuisance cease, holding hearings, levying fines or taking other action."

¶ 9 In their claim against the Association, plaintiffs alleged that the Association breached its fiduciary duties to plaintiffs by "permitting the continual infiltration of secondhand and thirdhand marijuana and tobacco smoke to [p]laintiffs' Unit" and to the "common areas" of the building. Additionally, plaintiffs contended that the Association breached its fiduciary duties to plaintiffs by "continually ignoring [p]laintiffs' repeated reports, *** failing to enforce the Rules and Regulations prohibiting nuisances, [and] *** failing to require smokers who create a nuisance or unreasonable disturbance within the building to cure the nuisance by the levying of fines and penalties or taking other action within their authority."

¶ 10 Regarding their "private nuisance" claim against Dress, plaintiffs alleged that Dress intentionally and unlawfully interfered with plaintiffs' "full enjoyment of their Unit and common areas" by "[s]moking and permitting the smoking of marijuana and tobacco in her Unit"; "permitting the continuing infiltration of secondhand and thirdhand marijuana and tobacco smoke from her Unit to [p]laintiffs' Unit" and to "the common areas" of the building; and "continually ignoring [p]laintiffs' repeated requests to cure the nuisance created by the smoking and infiltration of secondhand and thirdhand marijuana and tobacco smoke to [p]laintiffs' Unit and common areas" of the building.

¶ 11 The parties conducted discovery. On March 30, 2022, four-and-a-half years after the case was initiated, the court entered an order providing that fact discovery would close April 28, 2022. Plaintiffs were also ordered to answer "Rule 213(f) Interrogatories and disclose trial and expert witnesses by April 28, 2022."

¶ 12 On April 28, 2022, plaintiffs filed a motion to extend the fact discovery deadline. They alleged that they had "recently found a small number of additional documents responsive to Defendants' request for documents," and that they had supplemented their production that day. Plaintiffs alleged that the documents consisted of email communications between plaintiffs and Jody Sarich, a Board member and chairperson of the Safety and Security Committee at the Association, and requested a two-week extension of the fact discovery deadline to conduct a deposition of Sarich.

¶ 13 On May 12, 2022, after a hearing, the trial court entered a written order granting plaintiffs' motion to extend fact discovery until June 3, 2022. The written order further indicates that "[p]laintiffs' oral motion to extend the date to provide Rule 213(f)(3) [controlled expert witness] disclosures" was denied. No transcript from that hearing is contained in the record on appeal.

¶ 14 On June 17, 2022, the Association, Dress, and plaintiffs each filed a motion for summary judgment.

¶ 15 The Association argued that summary judgment was warranted because plaintiffs' breach of fiduciary duty claim was "premised on the assertion that smoke infiltrated their unit to an extent that would constitute a nuisance to an ordinary, reasonable person." The Association contended that plaintiffs had not disclosed any expert witness who could testify that smoke had infiltrated plaintiffs' unit. The Association further asserted that, to determine whether a particular annoyance constitutes a nuisance, the court must consider the effect of the annoyance on an ordinary, reasonable person, rather than the effect on a person who is abnormally sensitive. The Association argued that plaintiffs "lack[ed] any evidence that smoke is infiltrating their unit to a level that would constitute a nuisance to an ordinary, reasonable person. No witness has been able to verify [p]laintiffs' subjective claims that they can smell smoke in their unit."

¶ 16 In the alternative, the Association argued that the business judgment rule precluded liability, because "the Association made immediate, repeated and diligent efforts to address the alleged smoke smell in [p]laintiffs' unit, despite never being able to verify it," and there was "no evidence that the Association engaged in bad faith, fraud, illegality, or gross overreaching."

¶ 17 Finally, the Association argued that "[t]o constitute a nuisance, the act complained about must cause some injury real and not fanciful," and there was no authority to support a conclusion that the "alleged smell of cigarette or marijuana...