Village of Wilmette v. 1618 Sheridan Road Condo Ass'n ( 2021 )


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    2021 IL App (1st) 190264-U
    No. 1-19-0264
    Order filed March 31, 2021
    Sixth Division
    NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
    limited circumstances allowed under Rule 23(e)(1).
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST DISTRICT
    ______________________________________________________________________________
    THE VILLAGE OF WILMETTE,                         )              Appeal from the
    )              Circuit Court of
    Plaintiff-Appellee,                       )              Cook County.
    )
    v.                                           )              No. L 1 430 129
    )
    1618 SHERIDAN ROAD CONDO                         )              Honorable
    ASSOCIATION,                                     )              James Allegretti,
    )              Judge, Presiding.
    Defendant-Appellee.                       )
    ________________________________________________ )
    MARSHALL SPIEGEL, MATTHEW SPIEGEL, AND           )
    MARSHALL SPIEGEL AS OWNER OF THE                 )
    BENEFICIAL INTEREST OF CHICAGO TITLE LAND )
    TRUST NO. 8002351713                             )
    )
    Proposed Intervenors-Appellants.           )
    JUSTICE ODEN JOHNSON delivered the judgment of the court.
    Presiding Justice Mary Mikva and Justice Sheldon Harris concurred in the judgment.
    ORDER
    ¶1   Held: The circuit court should have considered the prior filed petition to intervene before
    granting the motion for voluntary dismissal pursuant to section 2-1009 (735 ILCS
    5/2-100 (West 2018)), nevertheless this court finds that even if the court had heard
    No. 1-19-0264
    the petition to intervene first, it would have been denied and the motion for
    voluntary dismissal with prejudice would have been granted. Additionally, the
    circuit court did not err in denying the amended motion to reconsider and vacate
    because it did not misapply the law. We affirm.
    ¶2        Proposed intervenors Marshall Spiegel (Marshall), Matthew Spiegel, and Marshall Spiegel
    as owner of the beneficial interest of Chicago Title Trust No. 8002351713 (Collectively Proposed
    Intervenors) appeal the circuit court’s order that granted plaintiff the Village of Wilmette’s
    (Village) oral motion to voluntarily dismiss with prejudice an ordinance violation against
    defendant 1618 Sheridan Road Condominium Association (Association). Proposed intervenors
    contend that the circuit court erred by: (1) denying the proposed intervenor’s amended petition to
    intervene, (2) granting the Village’s oral motion to voluntarily dismiss with prejudice; and; (3)
    denying the proposed intervenor’s motion to reconsider and vacate. For the following reasons, we
    affirm.
    ¶3                                           BACKGROUND
    ¶4        The following facts were detailed by this court in a prior appeal involving the proposed
    intervenors and the Association. Spiegel v. Hall1, 
    2020 IL App (1st) 190840-U
    . 2 The plaintiffs
    were Marshall and the trustee of Chicago Title Trust No. 8002351713, while the defendant
    consisted of several parties, namely: the 1618 Sheridan Condominium board members,
    condominium owners, and their associates. Defendant, 1618 Sheridan, is a building that consists
    of eight condominium units located in Wilmette, Illinois. 
    Id. at ¶ 7
    . The condominium is managed
    1
    Hall was a Board member of the Association.
    2
    This case is relevant to the instant proceedings because the Village and Association both contend that
    the proposed intervenors were barred from bringing forth the amended petition to intervene based on res
    judicata. In Spiegel, this court held that the circuit court did not err in denying Marshall and the trustee’s
    complaint for failure to state a claim and denying leave to implead because they recycled the same
    allegations without stating a coherent cause of action. One of those allegations was a breach of fiduciary
    duty, which the proposed intervenors also raised in a proposed complaint attached to the amended petition
    to intervene in this case.
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    by the Association. Marshall, who is the owner of Unit 2 in said building, was once the self-
    proclaimed president of the Association and has had a very litigious relationship with the
    Association. 3
    ¶5      The instant litigation resulted from the Association’s failure to correct a water leak that
    lasted for more than a year and damaged Marshall’s unit. Consequently, on November 15, 2017,
    the Village issued a complaint naming the Association, through its attorney Michael Kim, as
    defendants under case number L 1 430 129 4 alleging violation of section 304.2 of the International
    Property Maintenance Code 2006 (the Maintenance Code) (adopted by the Village pursuant to the
    Wilmette Village Code (Ch. 8 art. 1 section 8.3 (eff. Dec. 13, 2016)). The Association was cited
    for allowing an active water intrusion into Marshall’s unit.5 However at some point before the
    case was set for trial, the Village and Association reached an agreement to dismiss the case.
    ¶6      Upon learning that the Village planned to voluntarily dismiss its complaint, Marshall filed
    a petition to intervene on July 30, 2018, and requested permission to file a proposed complaint that
    was attached to his petition. While the Village stated it was dismissing the matter because the
    Association made the necessary repairs, Marshall contended that the repairs were insufficient and
    had not yet been tested by cold weather and heavy rainfall. The petition alleged that Marshall
    should be allowed to intervene as of right because he would be affected by the dismissal; he did
    not believe the repairs had remedied the issue; he sought remedial and money damages; and his
    3
    The prior cases involved are 15 L 10817, 16 L 3564, and 15 CH 1882; they were all consolidated into 15
    L 10817.
    4
    This case arose from a citation issued by the Village against the Association for a violation of a Village
    ordinance code. Village ordinances are heard at the Skokie Courthouse in the 2nd Municipal District
    before a Cook County judge. The circuit court also assigned this matter the docket number of 16 L
    005572.
    5
    The citation specifically stated, “[a]ctive water intrusion into unit #2. Situation has been on-going for
    over a year.”
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    interests differed from those of the Village. Therefore, Marshall prayed for permissive intervention
    alleging that there were questions of fact or law that existed.
    ¶7        Marshall’s proposed complaint alleged a breach of fiduciary duty. Marshall argued that,
    based on The Declaration of Condominium Ownership and the Illinois Condominium Act, the
    Association was responsible for the “operation, care, upkeep, maintenance, replacement, and
    improvement of Common Elements.” The common elements included the outside flashing and
    covering of the structural concrete of the building, which includes the southwest corner of
    Marshall’s unit. Section 304.2 of the Maintenance Code mandates that all joints “between the
    building envelope and the perimeter of windows, doors, and skylights shall be maintained weather
    resistant and watertight.” Marshall contended that, according to “an assessment of experts,” water
    from the common elements was leaking into his unit6 and therefore the Association was
    responsible.
    ¶8        Marshall further alleged the Association’s refusal to make any repairs to stop the leaking
    caused dangerous levels of mold resulting in removal of parts of the floor in his unit. He also had
    mold remediation work done to his unit and was unable to use the room where the water damage
    had occurred. As a result of the Association’s alleged breach of its fiduciary duty to maintain and
    repair the common elements, Marshall sought a court order compelling the Association to do the
    repair work, and awarding compensatory damages exceeding $50,000, attorney fees, costs, and
    punitive damages.
    ¶9        On September 4, 2018, an amended petition to intervene was filed by the proposed
    intervenors instead of Marshall. The petition stated that the proposed intervenors were bringing
    this action because the Village sought to dismiss the case against the Association who took years
    6
    The complaint does not detail who the experts were, or the specific assessments made.
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    to address the water leaking into Marshall’s unit and still had not refunded him for damages. The
    proposed intervenors sought leave to intervene as a matter of right and for permissive intervention
    for the same reasons alleged in the initial petition to intervene.
    ¶ 10      The proposed intervenors attached the affidavit of Matthew Foster, a registered Illinois
    architect, to the amended petition to intervene. On September 1, 2018, Foster inspected Marshall’s
    unit and two front columns at the location, including the one that leaked into Marshall’s unit. Foster
    also observed the repairs that had been made by the Association or their agents and opined that
    they were not in compliance with industry standard. Specifically, the column in question did not
    have a drainage or weep hole and the slope of the columns around the building were not made in
    the correct direction. Foster concluded that, based on his experience and with a reasonable degree
    of certainty, the repairs were inadequate, and water would again commence to seep into Marshall’s
    unit, causing further water damage, mold, rust, and other problems.
    ¶ 11      On September 6, 2018, the Association filed a motion in opposition to the proposed
    intervenor’s amended petition to intervene. The Association argued the request was untimely, the
    claims raised were barred by res judicata, and the proposed intervenors lacked the standing to
    enforce the laws of the Village. The Association asserted that the proposed intervenors were well-
    aware of their potential claims long before, but only sought intervention when they learned that
    the Village planned to dismiss the matter. This is evidenced by Marshall’s filings dating back to
    September 2017 in circuit court of Cook County case number 15 L 10817. The Association alleged
    that the consolidated complaint in case number 15 L 10817 7 contained 10 claims that involved the
    same alleged Maintenance Code violation: failure to maintain or repair the building to prevent a
    leak. According to the Association, these claims were already previously denied by the circuit
    7
    Docket number 15 L 10817 was consolidated with 16 L 3564 and 15 CH 1882.
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    court when it dismissed Marshall and the land trust’s fourth amended complaint and denied leave
    to file a fifth amended complaint: which essentially barred the proposed intervenors from raising
    those claims again. Lastly, the Association alleged that the statutory authority for the Maintenance
    Code enforcement lied solely with the municipality and that the proposed intervenors had not
    provided any authority to support otherwise.
    ¶ 12      On September 7, 2018, the Village made the oral motion to voluntarily dismiss and stated
    that the problem was resolved. 8 On the same day, the proposed intervenors filed an amended
    petition to intervene, alleging that the problem had not in fact been resolved. After argument, the
    circuit court granted the Village’s oral motion to dismiss, while denying the proposed intervenor’s
    petition. The Village drafted the order, which stated that the matter was dismissed with prejudice,
    citing no authority for the basis for the dismissal. The proposed intervenors objected to the order
    stating that pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2018)), a voluntary dismissal
    could not be with prejudice.
    ¶ 13      On the morning of October 9, 2018, the proposed intervenors filed a motion to vacate.
    Later that day, they filed an amended motion to reconsider and vacate the September 7, 2018, order
    granting the motion to dismiss and denying the motion to intervene. The proposed intervenors
    alleged that the Village sought to orally dismiss with prejudice, without notice, and in retaliation
    for the petition to intervene. Specifically, they alleged that the motion to dismiss should not have
    been granted because 1) the Village did not provide advanced notice, in violation of circuit court
    of Cook County Rule 2.1 (Cook Co. Cir. Ct. R. 2.1(a)) (eff. Aug. 21, 2000)); 2) section 2-1009 of
    the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2018)) does not permit dismissals
    with prejudice and only provides for dismissal without prejudice; 3) res judicata did not apply here
    8
    The Village did not orally state any statutory authority for their motion.
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    because at the time of filing the amended petition to intervene, their consolidated appeal of the
    other court’s denial of a motion to file an amended complaint was still pending, and thus, there
    was not a final judgment on the merits of the other case; and, 4) where a tort was continuous, as
    here with the continued leakage into Marshall’s unit, res judicata may not apply, citing Rein v.
    David A. Noyes & Co., 
    172 Ill. 2d 325
    , 334 (1996) as support. The proposed intervenors finally
    alleged that the circuit court erred in denying intervention because they met all of the statutory
    requirements: (1) the petition was filed as soon as the proposed intervenors knew that the Village
    would move to dismiss the matter and was therefore timely; (2) the Village and the Association
    were not adequately representing the proposed intervenor’s interest, and; (3) the proposed
    intervenor’s ownership interest and health were sufficient to establish an interest that would allow
    them to intervene.
    ¶ 14   On November 16, 2018, the Association filed a response seeking a denial of the proposed
    intervenor’s amended motion to reconsider and vacate order. The Association pointed out that the
    proposed intervenors provided no reason for the reconsideration and merely realleged what was in
    the initial petition for intervention. The Association argued that: (1) a right to private action did
    not equate to a right to intervene; (2) the proposed intervenors were not parties to the case and
    therefore were not required to be notified; and (3) the proposed intervenors provided no legal
    authority that prohibited the Village from voluntarily dismissing a matter with prejudice.
    Regarding res judicata, proposed intervenors were barred from raising those claims stemming
    from the water intrusion because they had brought forth those claims in another action. In
    summation, the Association argued that the proposed intervenors failed to provide sufficient
    grounds to vacate the dismissal.
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    ¶ 15   On December 7, 2018, the proposed intervenors filed a reply in support of its amended
    motion to reconsider and vacate the September 7, 2018, order. In addition to restating the
    allegations and arguments contained in the amended petition to intervene, the proposed intervenors
    requested that the trial court also conduct a hearing regarding whether the Association had properly
    remedied the water leak issues and require the Association to undertake a permanent remedy to
    fully comply with the Maintenance Code.
    ¶ 16   At the hearing held on January 11, 2019, the circuit court noted that it had looked at
    everything in the case including the proceedings from the “99-count complaint downtown.” Based
    thereon, the circuit court determined that the Village had an absolute right to dismiss its own case.
    Nothing the circuit court read suggested that the proposed intervenors had a right to “step into the
    prosecutor’s shoes” and prosecute the matter or compel the Village to proceed with the case. If the
    proposed intervenors wanted to continue with a private action, that was their choice. However, the
    proposed intervenors could not come and take over a Maintenance Code violation case and
    transform it into something else. The circuit court found that the proper time to intervene was
    before the Village decided to dismiss the matter: but even then, it had the right to dismiss it.
    ¶ 17    The proposed intervenors questioned the circuit court regarded the dismissal with
    prejudice. The circuit court found that the Village had determined it was done with the case and
    that meant a dismissal with prejudice; it did not preclude them from refiling in the future. The
    proposed intervenors argued that the broader issue would be a matter of res judicata if indeed the
    Village attempted to refile the same action. The proposed intervenors argued that the issue was
    broader than res judicata. In response, the circuit court stated “in that case, all of this” was already
    raised in the prior proceedings by the Chancery Division under the consolidated case number 15
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    No. 1-19-0264
    L 10817. For the aforementioned reasons, the circuit court denied the proposed intervenors’
    motion to reconsider and vacate.
    ¶ 18   The proposed intervenors filed a notice of appeal on February 6, 2019. On November 5,
    2019, the circuit court granted the proposed intervenors’ motion to file a bystander’s report.
    ¶ 19                                        ANALYSIS
    ¶ 20   On appeal, the proposed intervenors contend that the circuit court erred by: (1) denying
    their amended petition to intervene; (2) granting the Village’s oral motion to voluntarily dismiss
    with prejudice; and (3) denying the proposed intervenors’ motion to reconsider and vacate. We
    will first review the proposed intervenors’ claim regarding denial of their amended petition to
    intervene because the issue raised concerns the timing of the circuit court’s decision and the impact
    thereof.
    ¶ 21                           A. Amended Petition to Intervene
    ¶ 22   The proposed intervenors contend that section 5/2-408 of the Code (735 ILCS 5/2–408
    (West 2018)) gives them the right to intervene because 1) the Village did not adequately represent
    their interests by agreeing to voluntarily dismiss the matter even though the repairs were
    insufficient to cure the defect, 2) the amended petition to intervene was timely filed, once they
    learned of the Village’s intent to dismiss the suit against the Association, and 3) their interest in
    enforcing the citation is greater than that of the Village because Marshall’s health and safety are
    at issue due to the mold and wet floors that have resulted from the water leakage. The proposed
    intervenors assert that they have established all the requirements to intervene as a matter of right
    and the circuit court erred when it denied the petition. Conversely, the Village contends that the
    proposed intervenors’ amended petition to intervene was not timely, because the case was open
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    for nearly a year before the filing, and that the proposed intervenors failed to satisfy any of the
    requirements to intervene as of right.
    ¶ 23                                     1. Standard of Review
    ¶ 24   The parties disagree regarding which standard of review this court should apply when
    reviewing a circuit court’s denial of intervention as of right. Relying on Flood v. Richey, 
    2016 IL App (4th) 150594
     ¶ 15, the Village and the Association contend that the standard of review of
    abuse of discretion is proper. See People ex rel. Birkett v. City of Chicago, 
    202 Ill. 2d 36
    , 58
    (2002). They further state that the denial of leave to intervene as of right and permissive
    intervention should not be disturbed absent an abuse of discretion, citing In re Application of the
    County Collector of DuPage County for Judgment for Delinquent Taxes for the Year 1992, 
    181 Ill. 2d 237
     (1998) and Flood, 
    2016 IL App (4th) 150594
     ¶ 15, respectively.
    ¶ 25   To the contrary, the proposed intervenors contend that the standard of review for denying
    leave to intervene as of right is de novo, citing Madison Two Associates v. Pappas, 
    371 Ill. App. 3d 352
    , 354 (2007). In Madison Two Associates, this court reviewed de novo whether the circuit
    court properly interpreted the statute when it denied leave to intervene as of right, without applying
    the relevant factors. We ultimately affirmed the trial court by holding that The Property Tax Code
    (35 ILCS 200/23–30 (West 2002)), was not intended for the proposed intervenors of that case to
    ever be a party. 
    Id.
    ¶ 26   Here, the circuit court denied the proposed intervenor’s petition without addressing the
    requirements for establishing intervention. According to the bystander’s report, the circuit court’s
    decision was based on the Village’s motion to voluntarily dismiss (2-1009) the matter and not
    based on an interpretation of section 2-408. Thus, because the circuit court based its decision on
    interpretation of the statute, section 2-1009, a question of law exists. Hence, we agree with the
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    No. 1-19-0264
    proposed intervenors, albeit for different reasons, that the correct standard of review is de novo.
    Madison Two Associates, 
    371 Ill. App. 3d at 354
    .
    ¶ 27                            2. Timing of the Circuit Court’s Decision
    ¶ 28   The circuit court granted the Village’s voluntary motion to dismiss pursuant to section 2-
    1009, with the agreement of the Association, prior to addressing the proposed intervenor’s
    amended petition to intervene. The proposed intervenors contend that since the amended petition
    to intervene was filed first, the oral motion to voluntarily dismiss was precluded. The proposed
    intervenors cite to In re Marriage of Black, 
    133 Ill. App. 3d 59
    , 65 (1985), which held that an
    intervenor has the right to claim the benefit of the original suit and a motion to dismiss cannot
    defeat such a right after the filing and notice of the intervenor. Similarly, here, the Village made
    its oral motion to voluntarily dismiss after notice and filing of the proposed intervenor’s petition
    to intervene. Thus, we must agree that the circuit court should have decided the motion to
    intervene prior to granting the dismissal.
    ¶ 29   The Village, however, argues that the circuit court was not prohibited from granting the
    motion to dismiss pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2018)) citing Gibellina
    v. Handley, 
    127 Ill. 2d 122
    , 138 (1989). In Gibellina, this court held that a circuit court has the
    discretion to hear a motion pursuant to section 2-1009, even if there are existing motions filed
    before it. 
    Id.
     We have found no case, however, where this court has applied this rule to a motion
    to intervene. Since 1904, our courts have held that “an intervener has the right to claim the benefit
    of the original suit, and to prosecute it to judgment. Such right cannot be defeated by the dismissal
    of the suit by the plaintiffs after the filing of the petition and notice thereof to such plaintiffs.”
    Gage v. Cameron (1904), 
    212 Ill. 146
    , 171–72, 
    72 N.E. 204
    . Accordingly, the proposed
    intervenor’s complaint requires review per section 2-408 prior to granting a subsequently filed
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    motion for voluntary dismissal. Thus, we find that the circuit court erred in granting the motion
    to dismiss pursuant to section 2-1009 prior to deciding the amended petition to intervene, which
    we will decide herein.
    ¶ 30                           3. Standing and Res Judicata
    ¶ 31   The Association and the Village both contend that the proposed intervenors have no
    standing to intervene. The parties point out that there is no authority that would allow for the
    proposed intervenors to step into the shoes of prosecutor and a violation must be brought in the
    name of the corporate municipality. The Village contends that the proposed intervenors fail to cite
    to any authority that allows a proposed intervenor the right to step in as a prosecutor for a
    municipality.
    ¶ 32   Standing is an issue of law that this court reviews de novo. Powell v. Dean Foods Co., 
    2012 IL 111714
    , ¶ 35. “The doctrine of standing ensures that issues are raised only by parties having a
    real interest in the outcome of the controversy.” 
    Id.
     “Standing is shown by demonstrating some
    injury to a legally cognizable interest.” 
    Id.
    ¶ 33   The facts in this case are analogous to the facts in City of Chicago where a proposed
    intervenor, who was a condominium owner, appealed the decision of the circuit court denying
    leave to intervene. City of Chicago v. John Hancock Mut. Life Ins. Co., 
    127 Ill. App. 3d 140
    , 142
    (1984). In that case, the city of Chicago filed a building code violation action against the owner
    and operators of a condominium. 
    Id.
     This court determined that the circuit court erred in denying
    the petition to intervene because the claim of inadequate representation was reasonable, the
    statutory requirements of timeliness and sufficiency of interest were met. 
    Id. at 148
    . This court
    found that the circuit court should have allowed them to intervene because of the interest that the
    proposed intervenors had exceeded that of the city. 
    Id. at 170
    . Similarly, in this case, the proposed
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    intervenor’s have a real interest that has been shown through the damage that has occurred on
    Marshall’s property. Powell, 
    2012 IL 111714
    , ¶ 35. The proposed intervenors have established
    that they have standing in the instant case. 
    Id.
    ¶ 34    Next, the parties contend that proposed intervenors’ amended petition to intervene was
    barred due to res judicata. The Association argues, and the Village has adopted its argument, that
    the circuit court’s involuntarily dismissal, pursuant to 735 ILCS 5/2-615 (West 2016), of the
    proposed intervenor’s complaint in the associated consolidated case (15 L10817), acted as an
    adjudication of the merits. The proposed intervenors’ amended petition to intervene attached a
    complaint which contained a claim of breach of fiduciary duty, which was also previously raised
    in the associated consolidated case (15 L10817).
    ¶ 35    Under the doctrine of res judicata, “a final judgment on the merits rendered by a court of
    competent jurisdiction bars any subsequent actions between the same parties or their privies in the
    same cause of action.” Hudson v. City of Chicago, 
    228 Ill. 2d 462
    , 467 (2008). The doctrine
    provides for “not only what was actually decided in the first action but also whatever could have
    been decided.” 
    Id.
     In order for res judicata to apply, the following must occur: “(1) a final
    judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of cause of
    action exists; and (3) identity of parties or their privies.” 
    Id.
    ¶ 36    The proposed intervenors attached a complaint that raised a claim of breach of fiduciary
    duty that was raised previously amongst the same parties and their privies. Hudson, 
    228 Ill. 2d at 467
    . A final adjudication of the merits occurred in the matter; namely the circuit court’s
    determination, in consolidated case number 15 L 10817, that Marshall and the trustee failed to
    state a cause of action in their fourth amended complaint, which was affirmed on appeal. Seigel,
    
    2020 IL App (1st) 190840-U
    , ¶ 17. The proposed intervenors are therefore barred from raising this
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    claim. Even if the proposed intervenors contend that the complaint makes a claim for breach of
    fiduciary duty that in some way differs from the previously raised claim, they are still barred
    because, as with Hudson, the claim could have been brought and decided in the previous case.
    Lastly, it is worth noting that we have not addressed and make no findings regarding res judicata
    as to the remaining allegations of the proposed complaint as they were not raised here.
    ¶ 37      4. Permissive Intervention- Common Fact
    ¶ 38    The proposed intervenors contend that they should have been allowed to permissively
    intervene based on section 2-408(b) (735 ILCS 5/2-408(b) (West 2018)) because there was a
    common fact as to whether the Association sufficiently complied with the Village Maintenance
    Code to warrant dismissal of the case. Since this issue involves a question of fact and the relevant
    statute grants the court discretion, the standard of review for permissive intervention remains abuse
    of discretion. People ex rel. Birkett, 
    202 Ill. 2d at 58
    .
    ¶ 39    Section 2-408(b) states:
    “(b) Upon timely application anyone may in the discretion of the court be permitted
    to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2)
    when an applicant's claim or defense and the main action have a question of law or fact in
    common.” 735 ILCS 5/2-408(b) (West 2018)
    ¶ 40    The Village contends that there was no common fact that existed based on the allegations
    contained in the proposed complaint that was attached to the amended petition to intervene. The
    proposed intervenors insist that the complaint is not relevant for this action. This court disagrees,
    as we have held that permissive intervention may be denied if issues would be injected that are
    new and complicated. Chicago, Milwaukee, St. Paul & Pac. R. Co. v. Harris Trust and Sav. Bank,
    
    63 Ill. App. 3d 1012
    , 1022 (1978). The circuit court was presiding over a single Maintenance Code
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    violation, however, the proposed intervenors’ proposed complaint, which alleged a breach of a
    fiduciary duty, was beyond the scope of the initial case. Since an entirely different action from the
    Maintenance Code violation was proposed, it cannot be said that a common fact existed. 
    Id.
    Consequently, we find that the circuit court did not abuse its discretion when it denied the proposed
    intervenors request for permissive intervention.
    ¶ 41                                    B. Motion to Dismiss
    ¶ 42   After having determined pursuant to section 2-408 that even if the petition to intervene was
    heard first, it should have been denied, we now address whether the voluntary motion to dismiss
    should have been granted. The proposed intervenors first contend that the circuit court erred in
    granting the voluntary motion to dismiss because the Village did not provide notice to them or the
    Association and no written motion was filed. Secondly, the dismissal was defective because it
    failed to require the Village to pay costs as required by section 2-1009(a) (735 ILCS 5/2-1009
    (West 2018)). Lastly, the proposed intervenors assert that pursuant to section 2-1009(a), a
    voluntary dismissal cannot be made with prejudice.
    ¶ 43   It is worth noting that the Village and Association both insist that the motion to dismiss
    was not brought pursuant to section 2-1009(a). Nevertheless, neither they nor the record state any
    other statutory authority in support of the motion to dismiss. Thus, despite the Village and
    Association’s contention to the contrary, we agree with the proposed intervenors that voluntary
    dismissal by a plaintiff is governed by section 2-1009. Vaughn v. Northwestern Memorial Hosp.,
    
    210 Ill. App. 3d 253
    , 257 (1991). Section 2-1009 provides in pertinent part:
    “Voluntary dismissal.
    (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party
    who has appeared or each such party's attorney, and upon payment of costs, dismiss his or
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    her action or any part thereof as to any defendant, without prejudice, by order filed in the
    cause.
    (b) The court may hear and decide a motion that has been filed prior to a motion filed under
    subsection (a) of this Section when that prior filed motion, if favorably ruled on by the
    court, could result in a final disposition of the cause.
    (c) After trial or hearing begins, the plaintiff may dismiss, only on terms fixed by the court
    (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion
    specifying the ground for dismissal, which shall be supported by affidavit or other proof.
    (d) A dismissal under subsection (a) of this Section does not dismiss a pending
    counterclaim or third party complaint * * * ” 735 ILCS 5/2-1009 (West 2018).
    The three requirements for a section 2-1009(a) motion are: (1) no trial or hearing shall have begun;
    (2) costs must be paid; and (3) notice must be given to each party who has appeared. Vaughn, 
    210 Ill. App. 3d at 257
    .
    ¶ 44   The question here is one of compliance with the relevant statute: hence, a question of law.
    Questions of law are reviewed de novo. Wexler v. Wirtz, 
    211 Ill. 2d 18
    , 23 (2004).
    ¶ 45   Upon review and application to the facts at hand, we find that the circuit court did not err
    in granting the voluntary motion to dismiss pursuant to section 2-1009(a) even though the movant
    did not give notice. A plain reading of the statute dictates that notice shall be given to each party
    that has appeared. Here, the proposed intervenors were not parties to the case when the circuit
    court granted the Village’s motion to dismiss. Therefore, the proposed intervenors were not
    entitled to notice. Vaughn, 
    210 Ill. App. 3d at 257
    . With regard to the Village not providing notice
    to the Association, the proposed intervenors have no standing to make this argument on behalf of
    the Association. Our court have routinely held that objections to notice cannot be made by or on
    -16-
    No. 1-19-0264
    behalf of another party. See JPMorgan Chase Bank, et als. v. Jones and Zataunia 2019 Ill. App.
    (1st) 181909.
    ¶ 46   Lastly, the circuit court’s September 7, 2018, order provided that all parties were to pay
    their own costs; which, the proposed intervenors allege was an error. Consistent with our
    conclusion regarding the notice provision, it is our contention that the costs are also limited to
    those parties that have appeared. Further, our review of the record reveals that there was no
    evidence of costs being due: the proposed intervenors did not even allege a specific amount of
    costs that they believed were due.      As such, we cannot accept as true, mere conclusions
    unsupported by any legal authority. Tyrka v. Glenview Ridge Condominium Ass’n, 
    2014 IL App (1st) 132762
    , ¶ 39.
    ¶ 47   Next, proposed intervenors contend that the motion to dismiss was entered in error because
    it was entered with prejudice. This court has readily held that a voluntary motion to dismiss
    pursuant to section 2-1009 may be with prejudice. See Douglas v. Walter, 
    147 Ill. App. 3d 1010
    ,
    1073 (1986). Therefore, the circuit court did not err in granting the motion to dismiss with
    prejudice.
    ¶ 48                          C. Amended Motion to Reconsider and Vacate
    ¶ 49   The proposed intervenors contend that the circuit court erred in denying their amended
    motion to reconsider and vacate the September 7, 2018, order. The proposed intervenors’ motion
    alleged that the circuit court misstated the law when it stated that the Village had an “absolute
    right” to dismiss this case. The proposed intervenors contend that because they filed a petition to
    intervene, the Village did not have an absolute right to voluntarily dismiss this case. The proposed
    intervenors’ motion further alleged that the trial court further erred and misapplied the law when
    it granted the dismissal because it did not make sure that the Village satisfied all of the notice
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    No. 1-19-0264
    requirements pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2018)). Lastly, the proposed
    intervenors’ motion alleged that the circuit court misapplied the law when it granted the dismissal
    with prejudice.
    ¶ 50    The parties disagree regarding which standard of review this court should apply. The
    Association contends that the proposed intervenor’s have introduced new matters which require
    that the court utilize an abuse of discretion standard of review. Liceaga v. Baez, 
    2019 IL App (1st) 181170
    , ¶ 26. However, here, the proposed intervenors allege that the circuit court
    misstated the law, which requires a de novo standard of review. 
    Id.
     We agree with the proposed
    intervenors that the standard of review is de novo because the basis of their motion was that there
    was a misstatement of existing law. Horlacher v. Cohen, 
    2017 IL App (1st) 162712
    , ¶ 80.
    ¶ 51    “[A] motion to reconsider is to bring to the court's attention newly discovered evidence
    that was not available at the time of the hearing, changes in the law or errors in the court's previous
    application of existing law.” Neighborhood Lending Services, Inc. v. Callahan, 
    2017 IL App (1st) 162585
    , ¶ 26. Absent the contention that proper notice was not given to the Association, we have
    previously discussed the remaining contentions herein. Therefore, we will only discuss the issue
    of whether the circuit court misapplied the law regarding notice to the Association.
    ¶ 52    When a plaintiff seeks to file a motion to dismiss pursuant to section 2-1009, notice is
    required by Cook County Rule 2.1 (Cook Co. Cir. Ct. R. 2.1(a) (eff. Aug. 21, 2000)), which states,
    in pertinent part:
    “(a) Notice required—Except in actions appearing on the daily trial call or during the
    course of trial, written notice of the hearing of all motions shall be given to all parties who
    have appeared * * *” Cook Co. Cir. Ct. R. 2.1(a) (eff. Aug. 21, 2000).
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    No. 1-19-0264
    Although the proposed intervenors contend that proper notice was not served on the Association,
    the bystander report indicates that the Association and the Village agreed that the case should be
    dismissed. This court has held that when the defendant has knowledge of the motion and is not
    prejudiced by a lack of notice, a voluntary motion to dismiss will not be reversed based on the
    plaintiff’s failure to strictly comply with the requirements of section 2-1009. Valdovinos v. Luna-
    Manalac Medical Center, Ltd., 
    328 Ill. App. 3d 255
    , 267-68 (2002). Defendant, the Association,
    has not alleged that it was prejudiced by this dismissal. Accordingly, the circuit court did not err
    when it denied the motion to reconsider.
    ¶ 53   The moving party has the burden of establishing sufficient grounds for vacating the
    judgement. Standard Bank and Trust Co. v. Madonia, 
    2011 IL App (1st) 103516
    , ¶ 8. This court
    must determine whether the circuit court’s ruling denying the motion was a fair and just result,
    which did not deny the moving party of substantial justice. 
    Id.
     The standard of review for this issue
    is abuse of discretion. 
    Id.
     An abuse of discretion occurs when the trial court acts arbitrarily without
    judgement or its decision exceeds the bounds of reason and ignores principles of law. 
    Id.
     Based
    on our review of the record, we find that the circuit court’s decisions were not arbitrary and did
    not ignore principles of law; case law upholds its findings. Thus, an abuse of discretion has not
    occurred, and the proposed intervenors have not shown sufficient grounds for vacating the
    judgment of the circuit court.
    ¶ 54                                       CONCLUSION
    ¶ 55   In summary, we conclude that while the circuit court did not decide the petition to intervene
    prior to granting the Village’s oral motion to voluntarily dismiss, such error was harmless where
    the petition to intervene should have still been denied had it been heard first. Further, the dismissal
    with prejudice was not improper where such motion was made by agreement of the parties.
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    No. 1-19-0264
    ¶ 56   The judgment of the circuit court is affirmed.
    ¶ 57   Affirmed.
    -20-
    

Document Info

Docket Number: 1-19-0264

Filed Date: 3/31/2021

Precedential Status: Non-Precedential

Modified Date: 7/30/2024