Wolinsky v. Kadison ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Wolinsky v. Kadison, 2013 IL App (1st) 111186
Appellate Court DEBRA RAE WOLINSKY, Plaintiff-Appellant and Cross-Appellee, v.
Caption JOSEPH L. KADISON, STANLEY K. FEINBERG and DENNIS A.
BELL, Individually and as the Board of Directors of Ambassador House
Condominium Association, Defendants-Appellees (Ambassador House
Condominium Association, Defendant-Appellee and Cross-Appellant).
District & No. First District, Sixth Division
Docket Nos. 1-11-1186, 1-11-1208 cons.
Filed March 29, 2013
Held In an action against defendants individually and as members of a
(Note: This syllabus condominium association alleging that they violated the association’s
constitutes no part of bylaws and discriminated against plaintiff as an unmarried woman with
the opinion of the court children by refusing to allow her to purchase a condominium unit, the
but has been prepared grant of partial summary judgment for plaintiff on liability and the denial
by the Reporter of of defendants’ motion for summary judgment on plaintiff’s breach of
Decisions for the fiduciary duty claim were affirmed, but the denial of plaintiff’s motion for
convenience of the the appointment of special representatives for deceased members of the
reader.)
board and the grant of summary judgment to defendants on plaintiff’s
request for equitable prejudgment interest on the breach of fiduciary duty
claim were both reversed and the cause was remanded for a determination
of whether such an award was warranted.
Decision Under Appeal from the Circuit Court of Cook County, No. 05-L-7576; the Hon.
Review Marcia Maras and the Hon. Thomas L. Hogan, Judges, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Counsel on Joel Ostrow, of Bannockburn, for appellant.
Appeal
P. Shawn Wood, Jason Stiehl, and Jordan P. Vick, all of Seyfarth Shaw
LLP, of Chicago, for appellee.
Robert Marc Chemers and Scott L. Howie, both of Pretzel & Stouffer,
Chtrd., of Chicago, for other appellees.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Cook County awarded the plaintiff, Debra
Wolinsky, $56,992 in damages on her breach of fiduciary duty claim against the defendant,
Ambassador House Condominium Association. The plaintiff appeals. On appeal, she
contends that the amount of the damages award was against the manifest weight of the
evidence. She further contends the circuit court committed the following errors: (1)
dismissed her discrimination claim for lack of subject matter jurisdiction; (2) granted a
motion to strike her jury demand; (3) granted summary judgment, eliminating her punitive
damages claim; (4) denied her motion to appoint a special administrator to represent the
interests of the deceased individual defendants; and (5) denied her motion to file a second
amended complaint. The defendant filed a cross-appeal, contending that the circuit court
erred when it granted partial summary judgment to the plaintiff on her breach of fiduciary
duty claim and denied the defendant’s motion for summary judgment on that claim.
¶2 This case has been pending for some 34 years and has generated two prior appeals. See
Wolinsky v. Kadison, 114 Ill. App. 3d 527 (1983) (Wolinsky I), and Wolinsky v. Kadison, No.
1-04-0169 (2004) (unpublished order pursuant to Supreme Court Rule 23) (Wolinsky II). We
deem it necessary to set forth certain background facts to place the issues raised in this appeal
in perspective.
¶3 I. BACKGROUND
¶4 The plaintiff, divorced and single, had been a resident of the Ambassador House since
1976. Initially, she rented Unit 4D. In 1977, the Ambassador House was converted to
condominiums. Leonard Chavin purchased Unit 4D for the plaintiff. Mr. Chavin was married
to Marlene Chavin. However, the plaintiff and he had a 19-year sexual relationship, and he
fathered three children with the plaintiff.
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¶5 In August 1978, the plaintiff submitted a document to the Association’s board of
directors (the Board), notifying it of her intent to purchase Unit 21F, a two-bedroom unit, for
$118,000.1 Shortly thereafter, the Board received another offer to purchase Unit 21F from
Dr. Frank Oliver, a widower. Without conducting a vote of the unit owners, required by the
bylaws, the Board exercised the right of first refusal and rejected the plaintiff’s offer to
purchase Unit 21F. The Board purchased Unit 21F for $118,000 and then sold the unit to Dr.
Oliver for $120,000.
¶6 In November 1978, the plaintiff purchased Unit 7B for $143,000. The unit was in a land
trust with the plaintiff as the beneficiary. Both the plaintiff and Mr. Chavin signed the
mortgage.
¶7 A. Circuit Court Proceedings and First Appeal
¶8 In 1979, the plaintiff filed case number 79 L 12302,2 a three-count complaint for damages
against the defendants, Joseph L. Kadison, Stanley K. Feinberg, David Lefkovits, Edward
Targ, Dennis A. Bell, individually and as directors of the Ambassador House Condominium
Association (collectively the directors); Ambassador House Condominium Association (the
Association); Andra Addis; Eugene Matanky and Associates, Inc., an Illinois corporation;
and Eugene Matanky and Associates Management Corporation, an Illinois corporation.3
Subsequently, the plaintiff filed an amended complaint. Relevant to this appeal, count I
alleged that the Association and the directors failed to comply with the bylaws in exercising
the right of first refusal, depriving the plaintiff of her right to own property and preventing
her from remaining a member of the Association. Count II alleged that all of the defendants
violated a City of Chicago ordinance prohibiting discrimination in the purchase or lease of
a condominium based on sex or marital status by exercising the right of first refusal because
the plaintiff was an unmarried female and would reside in the unit with children. Count III
alleged willful and wanton conduct on the part of the directors, Ms. Addis and the two
Matanky corporations, based on their disregard for the bylaws and the laws of the State of
Illinois.
¶9 In 1981, the circuit court dismissed the amended complaint for failure to state a cause of
action, and the plaintiff appealed. This court determined that in count I, the plaintiff’s
allegation that the defendant and the individual defendants failed to secure the vote of two-
thirds of the owners required by the bylaws before exercising its right of first refusal stated
a cause of action for breach of fiduciary duty. This court further determined that her
allegation in count II, that the directors’ refusal to let her purchase Unit 21F because she was
an unmarried female and would occupy the unit with children, stated a cause of action for
1
At that time, the plaintiff was pregnant and subsequently gave birth to twins.
2
The case was later renumbered.
3
Mr. Targ, Mr. Lefkovits, Ms. Addis, Eugene Matanky and Associates, Inc., and Eugene
Matanky and Associates Management Corporation are not parties to this appeal.
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violation of the Chicago condominium ordinance, prohibiting discrimination with regard to
the purchase and lease of condominium units based on sex or marital status. Wolinsky I, 114
Ill. App. 3d at 535. Finally, this court determined that count III had stated a cause of action
for willful and wanton disregard for the bylaws on the part of the individual defendants. We
reversed the dismissal of the amended complaint and remanded for further proceedings, but
affirmed the circuit court’s dismissal of count III of the amended complaint against Ms.
Addis and the two Matanky corporations.
¶ 10 B. Proceedings on Remand and Second Appeal
¶ 11 On August 5, 1988, the plaintiff filed a motion for partial summary judgment on count
I as to liability only. On November 28, 1988, Circuit Court Judge Willard Lassers granted
the motion as to the Association and the individual defendants but excluded the estates of
Messrs. Targ and Lefkovits from the order.
¶ 12 In 2003, the circuit court dismissed the amended complaint based on laches and pursuant
to its authority to control its own docket. The plaintiff appealed. This court reversed the
dismissal and remanded for further proceedings. Wolinsky II, slip order at 15.
¶ 13 C. Circuit Court Proceedings After 2004 Remand
¶ 14 1. Dismissal of Individual Defendants and
Motion to File Amended Complaint
¶ 15 On December 17, 2007, the attorney for the individual board member defendants filed
a motion to spread of record the deaths of Messrs. Kadison, Feinberg, and Bell and to dismiss
them from the plaintiff’s lawsuit. The plaintiff did not object to the dismissal but requested
that a special representative be appointed to protect the proceeds of the liability insurance
policy that covered the individual defendants.
¶ 16 On April 18, 2008, Circuit Court Judge Marcia Maras ruled on the motion. She found
that the plaintiff was aware of the deaths when the motion to dismiss the case was filed in
2003. Judge Maras struck the motion to dismiss for lack of standing but, on her own motion,
she dismissed the individual defendants and denied the plaintiff’s request to appoint a special
representative.
¶ 17 2. The Association’s Motions for Summary Judgment, to Dismiss
and to Strike the Plaintiff’s Jury Demand
¶ 18 On December 3, 2007, the Association filed its motion for summary judgment on both
counts of the amended complaint. The Association also filed a motion pursuant to section
2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2006)) (the Code)
to dismiss count II of the amended complaint for lack of subject matter jurisdiction. On
February 5, 2008, the Association filed a motion to strike the plaintiff’s jury demand.
¶ 19 On October 20, 2009, Judge Maras denied the Association’s motion for summary
judgment as to count I. She refused to reconsider Judge Lassers’ grant of partial summary
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judgment to the plaintiff on liability, noting that in Wolinsky I, “the Court found no question
of fact as to whether there was strict compliance with the declaration and bylaws as did Judge
Lassers’ in his decision of [November 28, 1988]. As a result, Judge Lassers granted partial
summary judgment as to *** liability on the breach of fiduciary duty counts.” Judge Maras
further determined that the Association could not rely on the business judgment rule because
one of the factors to consider was whether the directors complied with the bylaws and
declaration. Judge Maras also found that the breach of fiduciary duty was not a tort and,
therefore, a proximate cause analysis did not apply.
¶ 20 Judge Maras granted summary judgment to the Association on the plaintiff’s
prejudgment interest and punitive damages claims. Judge Maras also dismissed count II for
lack of subject matter jurisdiction, finding that the plaintiff had failed to exhaust her
administrative remedies.
¶ 21 On March 31, 2009, Judge Maras denied both parties’ motions for reconsideration of her
summary judgment rulings. Judge Maras granted the Association’s motion to strike the
plaintiff’s jury demand. She denied the plaintiff’s motion for leave to file an amended
complaint.
¶ 22 3. Bench Trial
¶ 23 The sole issue at trial was the amount of damages the plaintiff was entitled to for the
Association’s breach of fiduciary duty. The parties entered into a stipulation as to the
applicable mortgage rates for the two units. The plaintiff sought $86,000 based on the
difference in the purchase price between Unit 21F, the unit she wished to purchase, and Unit
7B, the unit she ultimately purchased, the difference in mortgage payments, an alleged
difference in the current market value of the two units and the money she had expended for
improvements to Unit 7B. The plaintiff also sought $300,000 to $500,000 in additional
damages for “time value” or “lost net worth.”
¶ 24 At trial, Nicholas Solano, a real estate appraiser, testified as the plaintiff’s expert witness.
Mr. Solano calculated the present value of Unit 21F at $370,000 and Unit 7B at $355,000.
Through his course work in college and his training as an appraiser, he learned to do
discounted cash flow analysis and to compute the time value of money, which he calculated
to be $323,000. The Association’s expert witness, Dale Kleszynski, also a real estate
appraiser, testified that present value of Unit 21F was $350,000 and the present value for
Unit 7B was $370,000.
¶ 25 Circuit Court Judge Thomas Hogan awarded damages to the plaintiff in the amount of
$56,992, based on the difference in the down payment, purchase price and additional
mortgage payments required for the purchase of Unit 7B as opposed to the purchase of Unit
21F. In calculating the amount of damages, Judge Hogan found that the plaintiff had not
sustained her burden of proving the current difference in value between Unit 21F and 7B or
her other claimed damages. Judge Hogan also rejected Mr. Solano’s net worth calculation,
and therefore, he refused to award the plaintiff “her lost net worth.”
¶ 26 This appeal and cross-appeal followed.
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¶ 27 II. ANALYSIS
¶ 28 A. Violation of Discrimination Ordinance
(Count II of the Amended Complaint)
¶ 29 The plaintiff contends that Judge Maras erred when she granted the Association’s section
2-619(a)(1) motion and dismissed count II of her amended complaint for lack of subject
matter jurisdiction because the plaintiff had not exhausted her administrative remedies. The
issue of subject matter jurisdiction was not raised by the parties and was not addressed by
this court in the original appeal in this case. See Wolinsky I, 114 Ill. App. 3d 527. However,
the lack of subject matter jurisdiction cannot be waived and may be raised at anytime, even
on appeal. City of Marseilles v. Radke, 287 Ill. App. 3d 757, 761 (1997).
¶ 30 1. Applicable Standards of Review
¶ 31 Review of a dismissal under section 2-619 of the Code is de novo. Westmeyer v. Flynn,
382 Ill. App. 3d 952, 954-55 (2008). Whether a circuit court has subject matter jurisdiction
presents a question of law and is subject to de novo review. See Crossroads Ford Truck
Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 26. The de novo standard of review
also applies to construction of a statute. R&B Kapital Development, LLC v. North Shore
Community Bank & Trust Co., 358 Ill. App. 3d 912, 916 (2005).
¶ 32 2. Discussion
¶ 33 a. Subject Matter Jurisdiction
¶ 34 The issue of exhaustion of remedies presents a question of subject matter jurisdiction.
NDC LLC v. Topinka, 374 Ill. App. 3d 341, 347 (2007). Where an administrative agency has
exclusive jurisdiction over claims arising under an ordinance, a party must first exhaust his
remedies under the ordinance before seeking relief in the circuit court. See Flynn v. Hillard,
303 Ill. App. 3d 119, 124 (1999). Absent a final agency determination, the circuit court lacks
jurisdiction to consider the matter. NDC LLC, 374 Ill. App. 3d at 347.
¶ 35 In count II of her amended complaint, the plaintiff alleged a violation of the Chicago
condominium ordinance which prohibits discrimination with regard to the purchase or lease
of condominium units. Chicago Municipal Code, ch. 100.2, § 100.2-4 (1978). She alleged
that the Association exercised its right of first refusal based on her sex and her marital status,
i.e., an unmarried female with two children.
¶ 36 The condominium ordinance was enacted in 1978 and provided in pertinent part as
follows:
“100.2-4. No person shall be denied the right to purchase or lease a unit because of
race, religion, sex, sexual preference, marital status or national origin.
***
100.2-9. The Commissioner of Consumer Sales, Weights and Measures shall
administer this chapter and may adopt rules and regulations for the effective
administration of this chapter.
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100.2-10. The rights, obligations and remedies set forth in this chapter shall be
cumulative and in addition to any others available at law or equity. The Department or
any prospective purchaser, purchaser or owner of a unit may seek compliance of any
provision of this chapter, provided, however, that only the Department may enforce the
provisions of Section 100.2-11. In any action brought to enforce any provision of this
chapter except Section 100.2-11 the prevailing party shall be entitled to recover, in
addition to any other remedy available, his reasonable attorney fees.” Chicago Municipal
Code, ch. 100.2, § 100.2-10 (1978).
Section 100.2-11 provided for the imposition of mandatory monetary penalties for violations
of the condominium ordinance and incarceration for repeated offenses. Chicago Municipal
Code, ch. 100.2, § 100.2-11 (1978).
¶ 37 We find Flynn instructive. In that case, a probationary police officer filed a petition for
administrative review of a decision by the superintendent of the Chicago police department
terminating his employment. The circuit court dismissed the petition for lack of jurisdiction.
On appeal, inter alia, the petitioner contended that the circuit court should have heard his
claim that he was terminated because he was a homosexual. The appellate court found that
the officer was alleging a violation of the Chicago human rights ordinance, which prohibited
employment discrimination based upon a person’s sexual orientation. Flynn, 303 Ill. App.
3d at 124 (citing Chicago Municipal Code § 2-160-030 (2002)).
¶ 38 The court determined that the circuit court lacked jurisdiction to hear the ordinance
violation claim, explaining as follows:
“The ordinance provides that the Chicago Commission on Human Relations shall
receive, investigate, and prosecute complaints of discrimination under the ordinance.
[Citation.] Thus, the Commission has exclusive jurisdiction over claims arising under the
ordinance. Therefore, [the petitioner] must first exhaust his remedies under the ordinance
before bringing his discrimination claim to the circuit court.” Flynn, 303 Ill. App. 3d at
124.
¶ 39 The condominium ordinance provides that the commissioner of weights and measures
“shall” administer the provisions of the ordinance. Unlike the human rights ordinance, the
provisions of the condominium ordinance do not vest the commissioner with exclusive
jurisdiction over complaints for violations. While the commissioner “may” adopt rules and
regulations for administering the ordinance, there is no indication that any rules or
regulations had been adopted to govern the filing and hearing of violation complaints at the
time of these proceedings. Only the right to impose fines or imprisonment penalties was
exclusively reserved to the “Department.”
¶ 40 Moreover, section 100.2-10 of the condominium ordinance provided that the “rights,
obligations and remedies” were in addition to ones already available at law or in equity. In
Wolinsky I, this court found that “the broad provision that remedies under the ordinance be
cumulative and in addition to other remedies reflects a legislative intent that actions for
damages be available for violations of any section of the ordinance, including the
antidiscrimination section.” Wolinsky I, 114 Ill. App. 3d at 535.
¶ 41 The plaintiff’s position is further supported by the timing of the enactment of the Illinois
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Human Rights Act (Ill. Rev. 1981, ch. 68, ¶ 1-101 et seq.) (the Act). The Act was enacted
in 1979 and was effective July 1, 1980.
¶ 42 In Williams v. Naylor, 147 Ill. App. 3d 258 (1986), the plaintiff filed a civil complaint
for damages alleging a violation of Chicago’s fair housing ordinance based on the
defendants’ refusal to rent an apartment to her because she was an unmarried woman. This
court upheld the dismissal of the complaint, relying, inter alia, on Dilley v. Americana
Health Care Corp., 129 Ill. App. 3d 537 (1984). The court in Williams noted that, in
reviewing the dismissal of a civil complaint alleging employment discrimination, the court
in Dilley examined the transcripts of the legislative debates prior to the enactment of the
Illinois Human Rights Act (Pub. Act 81-1216 § 1-101 (eff. July 1, 1980)). The court in
Williams relied on the court’s determination in Dilley “that the objective of the legislature
in adopting the [Illinois Human Rights] Act was to create uniformity in the area of civil
rights protection through the implementation of a single, comprehensive scheme of
procedures and remedies and the concomitant elimination of private rights of action.”
Williams, 147 Ill. App. 3d at 264.
¶ 43 Pertinent to the present case, in Williams, this court quoted a portion of the debate in
which the Senator introducing the bill pointed out that, “ ‘ “[c]urrently, our discrimination
laws are enforced in the courts, both by criminal and civil actions and through three
executive agencies.” ’ ” (Emphasis omitted.) Williams, 147 Ill. App. 3d at 264 (quoting
Dilley, 129 Ill. App. 3d at 545, quoting 81st Ill. Gen. Assem., Senate Proceedings, May 25,
1979, at 283). This court found that the ordinance enabling the City of Chicago to enact a fair
housing ordinance was included in the reference to the State’s discrimination laws. Williams,
147 Ill. App. 3d at 264-65.
¶ 44 Both civil and administrative remedies were available to parties alleging discrimination
violations until the enactment of the Illinois Human Rights Act. The plaintiff filed her
original complaint in 1979. The Illinois Human Rights Act did not go into effect until July
1, 1980. Moreover, while providing that the commissioner of consumer sales, weights and
measures was to administer the condominium ordinance, the Association has not identified
any procedure prescribed by the commissioner for filing a violation claim, having a hearing
or an appeal process. We conclude that the plaintiff could pursue her civil remedy, and that
the circuit court had subject matter jurisdiction of alleged condominium ordinance violation.
¶ 45 b. Alternative Ground for Dismissal of Count II
¶ 46 The Association argues that the dismissal of count II should be upheld because the
undisputed evidence defeats the plaintiff’s discrimination claim. The Association sought
summary judgment as to count II of the amended complaint. Judge Maras dismissed count
II for lack of subject matter jurisdiction and did not rule on whether the Association was
entitled to summary judgment on count II.
¶ 47 Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) vests the reviewing court with
the power to enter any order that a trial court can enter. Oak Grove Jubilee Center, Inc. v.
City of Genoa, 347 Ill. App. 3d 973, 986 (2004). It is the judgment of the lower court not its
reasoning that we review, and we may uphold the court’s judgment on any grounds called
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for by the record. Lane v. Kalcheim, 394 Ill. App. 3d 324, 331 (2009). Nonetheless, where
the trial court has not ruled on a motion for summary judgment, reviewing courts have
declined to enter summary judgment where it is unclear from the record that the nonmovant
received an adequate opportunity to respond. See Oak Grove Jubilee Center, Inc., 347 Ill.
App. 3d at 986-87; Swieton v. City of Chicago, 129 Ill. App. 3d 379, 385 (1984). In this case,
the Association’s motion, the plaintiff’s response and the Association’s reply along with all
the exhibits thereto are contained in the record. Therefore, we will address the Association’s
alternative ground for upholding the dismissal of count II.
¶ 48 We apply the de novo standard of review to the disposition of a motion for summary
judgment. Millennium Park Joint Venture, LCC v. Houlihan, 241 Ill. 2d 281, 309 (2010).
“Summary judgment is proper if, and only if, the pleadings, depositions, admissions,
affidavits and other relevant matters on file show that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law.” Illinois Farmers
Insurance Co. v. Hall, 363 Ill. App. 3d 989, 993 (2006). Summary judgment is precluded
where the material facts are disputed or where reasonable people might draw different
conclusions from undisputed facts. Prowell v. Loretto Hospital, 339 Ill. App. 3d 817, 822
(2003). In determining whether a genuine issue of material fact exists, the court must
construe the pleadings, affidavits, depositions and other relevant material submitted in
connection with the motion against the movant and liberally in favor of the nonmovant.
Prowell, 339 Ill. App. 3d at 822.
¶ 49 In support of summary judgment on count II, the Association alleged that it had
independent and valid reasons for exercising its right of first refusal in response to the
plaintiff’s offer to purchase Unit 21F. Those reasons included: the plaintiff’s financial
instability, the plaintiff’s sexual relationship with a married individual, complaints from
other unit owners regarding excess traffic and noise emanating from the plaintiff’s unit, and
the plaintiff’s acknowledgment that she was selling stolen fur coats out of her unit. The
Association supported its allegations with excerpts from the depositions of defendant board
members, Messrs. Kadison and Feinberg, as well as the plaintiff’s deposition.
¶ 50 In response, the plaintiff maintained that the mortgage payments and assessments on her
Unit 4D had always been paid, that while she listed $10,000 a year, as her income when she
submitted her offer to purchase Unit 21F, the Association knew she also received support
from Mr. Chavin, and that the directors and the Association were unaware of her alleged
illegal activities at the time of her offer to purchase Unit 21F.
¶ 51 In Wolinsky I, this court held that the plaintiff had stated a cause of action for
discrimination under the condominium ordinance. The court determined “if a right of first
refusal is exercised so that a prospective purchaser is unable to purchase a unit because of
his or her race, religion, sex, sexual preference, marital status or national origin, the
ordinance has been violated.” Wolinsky I, 114 Ill. App. 3d at 535. In response to the
Association’s summary judgment motion on count II, the plaintiff was required to put forth
facts sufficient to support her claim that the Association’s exercise of its right of first refusal
was based on her sex or her marital status. Smith v. Tri-R Vending, 249 Ill. App. 3d 654, 657
(1993).
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¶ 52 Factual disputes existed regarding the plaintiff’s financial situation, whether her conduct
disturbed the other unit owners and whether the fact she was having a sexual relationship
with a married man made her an undesirable presence in the building. However, factual
disputes do not preclude summary judgment where the disputed facts are not material to the
essential elements of the cause of action or defense. First National Bank of Evergreen Park
v. Lambert, 109 Ill. App. 3d 177, 181 (1982).
¶ 53 The following undisputed facts and the reasonable inferences drawn from them defeat
the plaintiff’s claim of discrimination based on her sex and marital status. The plaintiff
resided in Unit 4D as an unmarried woman with one child. Following the Association’s
exercise of the right of first refusal with respect to Unit 21F, the plaintiff was then permitted
to purchase Unit 7B. At the time she purchased Unit 7B, her status was that of an unmarried
woman, now with three children. It is unreasonable to infer from these facts that the
Association refused to allow her to purchase Unit 21F because she was an unmarried female
with one child, since shortly thereafter, the Association did not exercise the right of first
refusal in connection with her purchase of Unit 7B, despite the fact that she was still an
unmarried female and now with three children living with her. In addition, the Association
allowed her to purchase Unit 7B despite any concern it had as to the plaintiff’s conduct, her
financial situation, her relationship with Mr. Chavin and the criminal conduct the
Association believed she was involved with at the time the plaintiff offered to purchase Unit
21F.
¶ 54 Based on the undisputed facts and reasonable inferences, we find that, as a matter of law,
the Association’s exercise of the right of first refusal in connection with the plaintiff’s offer
to purchase Unit 21F was not based on the plaintiff’s sex or marital status. The Association
was entitled to summary judgment on count II of the amended complaint.
¶ 55 B. Breach of Fiduciary Duty
(Count I of the Amended Complaint)
¶ 56 On cross-appeal, the Association maintains that Circuit Court Judge Willard Lassers’
1988 ruling granting partial summary judgment as to liability on the plaintiff ‘s breach of
fiduciary duty claim, and Judge Maras’ 2008 ruling denying its motion for summary
judgment on that claim were erroneous. While conceding that the required vote was not
taken, the Association maintains that it was entitled to summary judgment on the plaintiff’s
breach of fiduciary duty claim under the business judgment rule and because the plaintiff
could not establish proximate cause between the breach and the damages she alleged.
¶ 57 1. Law of the Case
¶ 58 The Association argues that both Judge Lassers and Judge Maras misinterpreted this
court’s decision in Wolinsky I and believed that under the “law of the case” doctrine, they
could not look beyond the Association’s failure to comply with the bylaws but were required
to find the Association liable on the breach of fiduciary duty claim.
¶ 59 While questions of law actually decided in a previous appeal are binding, the merits of
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the controversy not decided by the reviewing court do not become the law of case. Aguilar
v. Safeway Insurance Co., 221 Ill. App. 3d 1095, 1101 (1991). In Wolinsky I, this court held
that the plaintiff’s allegation that the directors’ failure to comply with the bylaws requirement
to secure a two-thirds vote of the owners before invoking the right of first refusal stated a
cause of action for breach of fiduciary duty. The decision made no factual determination as
to that allegation. See Wolinsky I, 114 Ill. App. 3d at 534 (“Since plaintiff alleged that
defendants exercised a right of first refusal without first obtaining the requisite affirmative
vote of the ownership, we conclude that plaintiff stated a cause of action for breach of a
fiduciary duty ***.”).
¶ 60 For purposes of law of the case, Wolinsky I established only that the plaintiff had stated
a cause of action for breach of fiduciary duty. Therefore, the law of the case did not preclude
the Association from raising the business judgment rule or the lack of proximate cause in its
summary judgment motion. See Aguilar, 221 Ill. App. 3d at 1101 (where the dismissal of the
case for failure to state a cause of action was reversed and remanded for reinstatement of the
complaint and further proceedings, the law of the case did not preclude the defendant from
filing affirmative defenses); but see Martin v. Federal Life Insurance Co., 164 Ill. App. 3d
820 (1987) (where dismissal of a complaint for failure to state a cause of action was reversed
and the cause remanded for further proceedings, under the law of the case, the grant of
summary judgment to the defendant on remand was reversed because the defendant had not
asserted the defense in the original proceedings).
¶ 61 2. Business Judgment Rule
¶ 62 The fiduciary duty owed by the board of directors of a condominium association requires
that the board members act in a manner reasonably related to the exercise of that duty and
the failure to do so results in liability for the board and its individual members. Goldberg v.
Astor Plaza Condominium Ass’n, 2012 IL App (1st) 110620, ¶ 62. The purpose of the
business judgment rule is to protect directors from liability for honest mistakes in judgment.
Goldberg, 2012 IL App (1st) 110620, ¶ 63. When the board properly exercises its business
judgment, the court will not find the board’s interpretation a breach of fiduciary duty.
Goldberg, 2012 IL App (1st) 110620, ¶ 62. Absent evidence of bad faith, fraud, illegality,
or gross overreaching, the courts will not interfere with the exercise of business judgment by
corporate directors. Goldberg, 2012 IL App (1st) 110620, ¶ 63.
¶ 63 It is a prerequisite to the application of the business judgment rule that the directors
exercise due care in carrying out their corporate duties. The business judgment rule will not
protect directors who fail to use due care. Goldberg, 2012 IL App (1st) 110620, ¶ 63. “[T]he
business judgment rule is defeated where directors act without ‘becoming sufficiently
informed to make an independent business decision.’ ” Goldberg, 2012 IL App (1st) 110620,
¶ 64 (quoting Ferris Elevator Co. v. Neffco, Inc., 285 Ill. App. 3d 350, 354 (1996)).
¶ 64 In Davis v. Dyson, 387 Ill. App. 3d 676 (2008), condominium unit owners sued the
association and directors for breach of fiduciary duty over a loss resulting from the
embezzlement of funds from the condominium association. This court held that the business
judgment rule did not apply to protect the board of directors where the board violated the
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Illinois Condominium Act by failing to purchase the proper insurance to protect the
association’s funds, failed to review the association’s monthly bank statements which would
have revealed the embezzlement and failed to obtain the advice of counsel to learn about
their duties as to insurance coverage, association finances or personnel supervision. Davis,
387 Ill. App. 3d at 695.
¶ 65 This court has applied the business judgment rule to defeat breach of fiduciary duty
claims where the board’s actions were not permitted under the condominium declaration. In
Carney v. Donley, 261 Ill. App. 3d 1002 (1994), the plaintiff sued the board of managers and
certain unit owners alleging the board had breached its fiduciary duty to him by approving
extensions to balconies of three of the condominium units, which damaged the common
elements. The plaintiff alleged that the board knowingly acted contrary to the declaration. In
response, the defendants argued that pursuant to the condominium declaration the board had
authority to approve the construction of the balcony extensions.
¶ 66 On review, this court held, inter alia, that, even though the declaration required a
unanimous vote of the unit owners if the common elements were affected, the board’s
interpretation of the declaration did not breach its fiduciary duty to the plaintiff. The board
had sought legal advice before reaching its decision and the board member requesting the
balcony extensions had disclosed his interest in the project and recused himself from the
vote. The court concluded that “[u]nder these circumstances, we cannot say that the Board
acted unreasonably or failed to exercise properly its business judgment.” Carney, 261 Ill.
App. 3d at 1011.
¶ 67 Similarly, in Goldberg, the plaintiff sued the board and the individual directors for breach
of fiduciary duty for refusing to pay for repairs to her unit based on their interpretation of the
condominium declaration. This court upheld the denial of the claim; the board had sought
and relied on legal advice in concluding that the board did not have authority to pay for those
repairs. Goldberg, 2012 IL App (1st) 110620, ¶ 65.
¶ 68 The Association points out that the members of the Board were attorneys. However, there
is no evidence that the Board relied on the legal advice of its members in rejecting the
plaintiff’s offer to purchase Unit 21F. In any event, such advice could not be considered
unbiased. While Mr. Feinberg testified that he consulted with two outside attorneys, neither
attorney was able to provide him with any advice. Therefore, neither Goldberg nor Carney
supports the Association’s argument.
¶ 69 According to the deposition testimony of Mr. Feinberg and Mr. Kadison, the Board’s
reasons for exercising the right of first refusal as to Unit 21F was the plaintiff’s lack of
income, her dependency on Mr. Chavin for support, her 1976 bankruptcy, and the complaints
about her conduct from other unit owners and the building managers. Based on those
considerations, the Association maintains that, in the interest of all the unit owners, it
exercised its business judgment by invoking its right of first refusal in connection with the
plaintiff’s offer to purchase Unit 21F.
¶ 70 The Association’s argument is undermined by its own actions. It is undisputed that in
September 1978, after the plaintiff’s offer to purchase Unit 21F was rejected, Dr. Oliver
purchased Unit 21F for $120,000. In November 1978, the Board did not exercise its right of
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first refusal when the plaintiff purchased Unit 7B for $143,000. The Association suggests
that allowing the plaintiff to purchase Unit 7B was in response to a statement alleged to have
been made by Mr. Chavin that he would continue making offers on two-bedroom units until
the plaintiff was allowed to purchase one. However, to allow the plaintiff to purchase Unit
7B because of Mr. Chavin’s statement does not reflect the Board’s exercise of its “business
judgment.”
¶ 71 We conclude that the business judgment rule does not apply to protect the Association.
¶ 72 3. Proximate Cause
¶ 73 The Association argues that it was entitled to summary judgment because the damages
claimed by the plaintiff were not caused by the Board’s breach of its fiduciary duty to the
plaintiff, i.e., the failure to conduct a vote by the unit owners to authorize the exercise of the
right of first refusal. In denying summary judgment to the Association, Judge Maras found
that the proximate cause analysis was not applicable to a breach of duty claim because it was
not a tort. However, in order to establish a claim for breach of fiduciary duty, the plaintiff
must allege the existence of a fiduciary duty, the breach of that duty, and damages
proximately caused by the breach. Duffy v. Orlan Brook Condominium Owners’ Ass’n, 2012
IL App (1st) 113577, ¶ 17; see Pippen v. Pedersen & Houpt, 2013 IL App (1st) 111371, ¶ 26
(attorneys’ conflicts of interest only satisfied the breach element but not the causation
element of the breach of fiduciary claim).
¶ 74 The Association maintains that none of the damages claimed by the plaintiff were
proximately caused by the failure of the Board to secure the required two-thirds vote of the
unit owners prior to exercising its right of first refusal. The Association argues that the
plaintiff cannot prove any pecuniary loss since Mr. Chavin purchased Unit 7B for the
plaintiff. It further maintains that the plaintiff or Mr. Chavin made the decision to purchase
Unit 7B for $25,000 more than the $118,000 offer the plaintiff made to purchase Unit 21F.
In addition, having made the choice to pay more money for a less desirable unit, the plaintiff
then chose to make extensive repairs to Unit 7B.
¶ 75 The plaintiff submits that, but for the Board’s breach of its fiduciary duty, she would
have been residing in a more desirable unit and had years of smaller mortgage payments. The
plaintiff points out that at the time she purchased Unit 7B, mortgage rates were rising, she
was pregnant with twins and wanted to remain in the building. As a result of the Board’s
breach, she was forced to pay $143,000 for Unit 7B, instead of $118,000 for Unit 21F.
According to the plaintiff, while also a two-bedroom unit, Unit 7B was a less desirable unit,
and its condition was such that the plaintiff had to invest large sums in making the necessary
repairs.
¶ 76 In this case, both parties sought summary judgment on the issue of liability under the
breach of fiduciary duty claim. Where parties have filed cross-motions for summary
judgment, they invite the court to determine the issue as a matter of law and enter judgment
in favor of one of the parties. Wolfram Partnership, Ltd. v. LaSalle National Bank, 328 Ill.
App. 3d 207, 215 (2001).
¶ 77 Proximate cause is a question of fact to be determined by the trier of fact; “however, this
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rule is subject to the limitation that if on all the evidence reasonable men could come to only
one conclusion, the question of proximate cause is to be decided as a matter of law.”
Sokolowski v. All Points Distribution Service, Inc., 243 Ill. App. 3d 539, 542 (1993). In this
case, the undisputed facts establish that the Board failed to conduct the vote required by the
bylaws prior to exercising the right of first refusal to reject the plaintiff’s offer to purchase
Unit 21F, a two-bedroom unit, for $118,000. The plaintiff then purchased Unit 7B, also a
two-bedroom unit for $142,500. It is further undisputed that the Board did not exercise the
right of first refusal with respect to the plaintiff’s purchase of Unit 7B. Finally, it is
undisputed that at the time of the plaintiff’s offer to purchase Unit 21F, she resided in Unit
4D, a one-bedroom with one child, and she was pregnant.
¶ 78 Relying on two federal cases, the Association maintains that the plaintiff was required
to prove that she would have prevailed had the Board conducted the vote required by the
bylaws. See Dannhausen v. Business Publications Audit of Circulation, Inc., 797 F.2d 548
(7th Cir. 1986); Bigbie v. Local 142, International Brotherhood of Teamsters, No. 81-C-
4507 (N.D. Ill. Jan. 20, 1983). However, this court has noted that unreported federal district
court orders are neither binding nor precedential before Illinois courts and that even reported
federal circuit and district decisions are only persuasive authority in Illinois state courts.
Kerbes v. Raceway Associates, LLC, 2011 IL App (1st) 110318, ¶ 34. The Association’s
reliance on Foster v. Chicago Board of Election Commissioners, 176 Ill. App. 3d 776 (1988),
is also misplaced. Foster involved a complaint that election laws were not followed in a local
option election to prohibit the sale of alcoholic beverages. The reviewing court noted that the
complaint was properly dismissed because it did not allege that, in the absence of the alleged
violations, the outcome of the vote would have changed. Foster, 176 Ill. App. 3d at 778. The
present case does not involve an “election,” and we are not persuaded that such case law is
applicable to votes required by the bylaws of private condominium associations.
¶ 79 Based on the undisputed facts and the reasonable inferences therefrom, we conclude that,
as a matter of law, there was proximate cause between the Board’s breach of its fiduciary
duty to the plaintiff and her claim for damages. The grant of partial summary judgment to the
plaintiff as to liability on the breach of fiduciary duty claim and the denial of summary
judgment to the Association on that claim was proper.
¶ 80 C. Appointment of Special Representative
¶ 81 The plaintiff contends that Judge Maras abused her discretion when she denied the
plaintiff’s motion to appoint a special representative for Messrs. Kadison, Feinberg and Bell,
the deceased individual defendants. Attorneys for these deceased defendants argue that the
plaintiff’s motion was untimely and therefore, it was not an abuse of discretion to deny the
motion.
¶ 82 Section 2-1008(b)(2) of the Code provides in pertinent part as follows:
“If a person against whom an action has been brought dies, and the cause of action
survives and is not otherwise barred, his or her personal representative shall be
substituted as a party. *** If a party elects to have a special representative appointed
under this paragraph (2), the recovery shall be limited to the proceeds of any liability
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insurance protecting the estate ***.
If a motion to substitute is not filed within 90 days after the death is suggested of
record, the action may be dismissed as to the deceased party.” 735 ILCS 5/2-1008(b)(2)
(West 2006).
¶ 83 Attorneys for the deceased defendants point out that in 2004, in Wolinsky II, this court
noted that all five of the individual defendants were deceased. They maintain the plaintiff
was aware by the end of 2004 that these defendants were deceased, yet she waited three years
to request that a special representative be appointed.4
¶ 84 It is undisputed that the plaintiff filed a motion to substitute a special representative
within 90 days of the filing of the motion to suggest the deaths of Messrs. Kadison, Feinberg
and Bell of record. In Ferak v. Elgin, Joliet & Eastern Ry. Co., 55 Ill. 2d 596 (1973), three
years had elapsed between the death of the plaintiff and the filing of the motion to suggest
the death of record and to appoint the decedent’s son as special administrator. In determining
whether the survival action was barred by the delay, the supreme court held that the Illinois
procedural rules “contemplate only delay between the suggestion of death to the court and
the substitution of parties; the date of actual death is not a factor.” Ferak, 55 Ill. 2d at 600.
The 90-day period under section 2-1008(b)(2) is not triggered by the plaintiff’s knowledge
of a defendant’s death but by a formal notice to the court of the defendant’s death.
¶ 85 Moreover, “when determining whether there was error in permitting a party substitution
under section 2-1008(b), the overriding consideration is whether substantial justice is being
done between the litigants and whether it was reasonable, under the circumstances, to compel
the other party to proceed on the merits.” Senese v. Climatemp, Inc., 289 Ill. App. 3d 570,
583 (1997) (citing Stickler v. National Dairy Products Corp., 67 Ill. 2d 229, 234 (1977)).
“[T]he ultimate question on review is whether the trial court properly exercised its discretion
in an attempt to serve justice.” Senese, 289 Ill. App. 3d at 583. Even where the motion to
substitute was untimely, in the absence of prejudice to the opposing party, the dismissal of
the case was held to be an abuse of discretion. See Stickler, 67 Ill. 2d at 234.
¶ 86 We conclude that the plaintiff’s motion for the appointment of a special representative
was timely under section 2-1008(b). Even if untimely, the record reveals no prejudice to the
decedent defendants. Therefore, Judge Maras abused her discretion when she denied the
plaintiff’s motion to appoint a special representative for these deceased individual
defendants.
¶ 87 D. Denial of Leave to File Second Amended Complaint
¶ 88 Following the denial of her motion to appoint a special representative for the deceased
defendants, the plaintiff sought leave to file her second amended complaint in order to add
the Association as a defendant to her breach of fiduciary duty claim. On appeal, she concedes
that the Association was already named as a defendant on that claim. She also sought to file
a second amended complaint to include an allegation in the discrimination count that the
4
The report of Mr. Feinberg’s death in Wolinsky II was premature. He died on May 22, 2006.
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Association acted through its agents and servants. However, we have upheld the dismissal
of that count.
¶ 89 In any event, by reversing the order denying her motion to appoint a special
representative, we have granted the relief sought by the plaintiff. The denial of leave to file
a second amended complaint is affirmed.
¶ 90 E. Punitive Damages
¶ 91 The plaintiff contends that Judge Maras erred when she granted summary judgment to
the Association on the plaintiff’s request for punitive damages. We disagree.
¶ 92 In Illinois, punitive damages are viewed as punishment. Ford v. Herman, 316 Ill. App.
3d 726, 733-34 (2000). The imposition of punitive damages serves three distinct purposes:
(1) retribution against the defendant; (2) as a deterrence to the defendant from committing
similar conduct in the future; and (3) as a deterrence to others from engaging in similar
conduct. Ford, 316 Ill. App. 3d at 734. Punitive damages are not favored because of their
punitive effect. Spires v. Mooney Motors, Inc., 229 Ill. App. 3d 917, 923 (1992).
¶ 93 In Loitz v. Remington Arms Co., 138 Ill. 2d 404 (1990), our supreme court set forth the
degree of culpability required for the imposition of punitive damages. The court stated in
pertinent part as follows:
“ ‘Since the purpose of punitive damages is not compensation of the plaintiff but
punishment of the defendant and deterrence, these damages can be awarded only for
conduct for which this remedy is appropriate–which is to say, conduct involving some
element of outrage similar to that usually found in crime. The conduct must be
outrageous, either because the defendant’s acts are done with an evil motive or because
they are done with reckless indifference to the rights of others.’ [Citation.] In this
context, willful and wanton misconduct approaches the degree of moral blame attached
to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk
of harm upon others in conscious disregard of it.” (Internal quotation marks omitted.)
Loitz, 138 Ill. 2d at 415-16 (quoting Restatement (Second) of Torts § 908, cmt. b, at 464-
65 (1979), and Bresland v. Ideal Roller & Graphics Co., 150 Ill. App. 3d 445, 457
(1986)).
In determining whether to impose punitive damages, the trial court must first determine as
a matter of law “whether the cause of action in general and the facts of the particular case
provide sufficient proof of aggravated circumstances to warrant submitting the issue to the
trier of fact. *** If the facts of the case legally justify an award of punitive damages, the issue
is then submitted to the trier of fact.” In re Estate of Wernick, 127 Ill. 2d 61, 84 (1989).
¶ 94 A breach of fiduciary duty may warrant an award of punitive damages, depending on the
specific facts of the case. Wernick, 127 Ill. 2d at 85. The Board’s breach of fiduciary duty
was its failure to comply with the bylaws. While the plaintiff alleged in count I of the
amended complaint that the Board “had full and complete knowledge of the contents” of the
bylaws, the Board argued that the declaration, which did not provide for such a vote,
controlled over the bylaws, which did not specifically refer to the right of first refusal. See
Wolinsky I, 114 Ill. App. 3d at 532.
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¶ 95 Under the allegations of count I, the Board members’ breach of fiduciary duty by failing
to comply with the bylaws was not outrageous conduct akin to a criminal act. While the
Board’s interpretation of the relationship between the declaration and the bylaws was
erroneous, it does not establish that they intentionally and with malice conducted the vote in
violation of the bylaws in order to deprive the plaintiff of the unit she wished to purchase.
¶ 96 The plaintiff’s reliance on Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365 (2004),
is misplaced. In that case, the appellate court upheld an award of punitive damages to a law
firm based on the defendants’ intentional breach of their fiduciary duty. The defendants,
associate attorneys in the law firm, planned to start their own firm. While remaining
members of the firm, they secretly secured a commitment from a large business client of the
law firm for future business and obtained financing based on that commitment. They also
used confidential information belonging to the law firm and voted themselves large bonuses,
knowing that they were leaving the firm. The trial court found the defendants’ actions “were
intentional and in deliberate disregard of the fiduciary relationship” between them and the
firm, and described the conduct as “malicious.” Dowd & Dowd, Ltd., 352 Ill. App. 3d at 388.
¶ 97 The plaintiff merely speculates that certain board members’ dislike for her and her
lifestyle led them to knowingly violate the bylaws to prevent her from purchasing Unit 21F.
However, there is no factual evidence that the Board’s decision not to hold the vote of all the
unit owners as required by the bylaws was intentional or malicious, as was the case in Dowd
& Dowd, Ltd.
¶ 98 As there was insufficient proof of aggravating circumstances in connection with the
failure to conduct the necessary vote, the plaintiff was not entitled to punitive damages on
her breach of fiduciary claim. The grant of summary judgment to the Association on the issue
of punitive damages with regard to that claim was proper.
¶ 99 F. Prejudgment Interest
¶ 100 The plaintiff contends that Judge Maras erred when she granted summary judgment to
the Association on her request for prejudgment interest. A trial court’s determination that
equitable considerations support an award of prejudgment interest is reviewed for an abuse
of discretion. Prignano v. Prignano, 405 Ill. App. 3d 801, 821 (2010). In this case, Judge
Maras granted summary judgment on this issue, ruling that, as a matter of law, the plaintiff
was not entitled to prejudgment interest. The ruling is subject to de novo review by this court.
Millennium Park Joint Venture, LCC, 241 Ill. 2d at 309.
¶ 101 “The goal of proceedings sounding in equity is to make the injured party whole.”
Wernick, 127 Ill. 2d at 86. In Illinois, prejudgment interest may be awarded when warranted
by equitable considerations and denied if the award would not comport with justice or equity.
Wernick, 127 Ill. 2d at 87. In a case involving a breach of fiduciary duty claim, reasoning
underlying an equitable award of prejudgment interest is to make the party whole by forcing
the fiduciary to account for profits and interest he gained by the use of the injured party’s
money. Wernick, 127 Ill. 2d at 87. Such an award provides compensation for any economic
loss occasioned by the injured party’s inability to use his or her money. Wernick, 127 Ill. 2d
at 87.
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¶ 102 In Wernick, the supreme court reversed the denial of prejudgment interest in a breach of
fiduciary duty case. In 1977, the respondent had given the decedent a 90-day non-interest-
bearing note for $90,000, in exchange for his interest in real property. The respondent made
no payments on the note until 1984. In the meantime, the respondent had sold the property
for $375,000, retaining the proceeds for himself. Since the respondent’s actions deprived
them of the use of their money for a substantial period of time, the court held that equity
required an award of prejudgment interest to make the petitioners whole. Wernick, 127 Ill.
2d at 88; see also Prignano, 405 Ill. App. 3d at 822 (the plaintiff was entitled to prejudgment
interest on her breach of fiduciary duty claim to prevent the respondent from profiting from
his wrongful retention of insurance proceeds).
¶ 103 The Association argues that the plaintiff was not entitled to an award of prejudgment
interest because the Board did not withhold any money from the plaintiff and did not profit
from its violation of the bylaws. In Wilson v. Cherry, 244 Ill. App. 3d 632 (1993), the
reviewing court noted that it could not award equitable prejudgment interest in a civil case
for negligence. Nonetheless, the court recognized that, “an injured party who is eventually
compensated for the amount of the loss nevertheless suffers detriment from the lack of use
of the money eventually paid as compensation because of the inability to use the money from
the day of loss until the day compensation is paid.” Wilson, 244 Ill. App. 3d at 640. In this
case, the cause of action sounds in equity, and whether the plaintiff is entitled to prejudgment
interest depends on whether equity requires such an award to make the plaintiff whole.
¶ 104 The plaintiff argues that she was entitled to prejudgment interest on the money she spent
as a result of the Board’s breach of its fiduciary duty to her. If so, the plaintiff was deprived
of the use of this money for a substantial period of time. Since the goal of an award of
equitable prejudgment interest is to make the victim whole, we cannot say, as a matter of
law, that the plaintiff was not entitled to an equitable award of prejudgment interest until all
the evidence is presented. Whether the plaintiff is ultimately entitled to an award of
prejudgment interest is a decision for the trial court, after all the evidence is presented. See
Prignano, 405 Ill. App. 3d at 822 (following trial, the plaintiff could amend her pleadings
to seek equitable prejudgment interest where the evidence at trial supported such an award).
¶ 105 We conclude that the Association was not entitled to summary judgment on the
plaintiff’s request for prejudgment interest.
¶ 106 G. Jury Trial Demand
¶ 107 The plaintiff contends that Judge Maras erred in striking her demand for a jury trial on
her claim for breach of fiduciary duty. The right to a jury trial in a particular action is a legal
question which the court reviews de novo. Prodromos v. Everen Securities, Inc., 389 Ill. App.
3d 157, 174 (2009).
¶ 108 The Illinois Constitution guarantees the right to trial by jury as it existed at common law.
Prodromos, 389 Ill. App. 3d at 173; Ill. Const. 1970, art. I, § 13. The right to a jury trial only
attaches in those actions where such right existed under English common law at the time the
Illinois Constitution was adopted. Prodromos, 389 Ill. App. 3d at 173-74. “It is the nature
of the controversy, not the form of the action or the damages sought, that determines whether
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such right existed under the English common law at the time of the adoption of the
constitution.” Prodromos, 389 Ill. App. 3d at 174. “At common law, equitable claims were
creations of the courts of chancery and were tried without the right to a jury.” Bank One, N.A.
v. Borse, 351 Ill. App. 3d 482, 488 (2004).
¶ 109 Illinois courts have recognized that an action seeking damages for breach of a fiduciary
duty is an equitable action. Borse, 351 Ill. App. 3d at 488. The court in Borse noted that our
supreme court rejected the Restatement’s view that an action for breach of fiduciary duty is
a tort; instead, a claim for breach of fiduciary duty is controlled by the substantive laws of
agency, contract and equity. Borse, 351 Ill. App. 3d at 488 (citing Kinzer v. City of Chicago,
128 Ill. 2d 437, 445 (1989)). In Prodromos, this court held that, “under controlling
precedent,” seeking damages for breach of fiduciary duty was “an equitable claim that is tried
without the right to a jury.” Prodromos, 389 Ill. App. 3d at 174.
¶ 110 The plaintiff’s reliance on People ex rel. O’Malley v. 6323 North LaCrosse Avenue, 158
Ill. 2d 453 (1994), is misplaced. The supreme court held that the defendant was entitled to
a jury trial in in rem proceedings for the enforcement of statutory forfeitures because jury
trials were available in such actions prior to the adoption of the Illinois Constitution. See
6323 North LaCrosse Avenue, 158 Ill. 2d at 459. The plaintiff also relies on Bank of
America, N.A. v. Bird, 392 Ill. App. 3d 621 (2009). Even though the statute did not authorize
a jury trial, the reviewing court concluded that there was a right to a jury trial in civil actions
alleging violations of the statute because, at common law, jury trials were available in civil
actions recognizing such theories of liability. See Bird, 392 Ill. App. 3d at 627-28. The
plaintiff’s reliance is misplaced since a breach of fiduciary duty is an equitable action for
which there was no right to a jury trial at common law. In addition, pursuant to a supervisory
order by the supreme court, the opinion in Bird was vacated. See Bank of America, N.A. v.
Bird, No. 111643 (Ill. Jan. 14, 2011) (table). In its subsequent order, the appellate court did
not reach the jury trial issue. See Bank of America, N.A. v. Bird, 2011 IL App (5th) 080188-U
(unpublished order pursuant to Supreme Court Rule 23).
¶ 111 We conclude that the plaintiff was not entitled to a jury trial on her breach of fiduciary
duty claim.
¶ 112 H. Damages
¶ 113 The plaintiff contends that the award of $56,992 in damages was against the manifest
weight of the evidence. She argues that Judge Hogan erred when he disregarded Mr. Salono’s
testimony as to his analysis of the impact on her net worth and allowed Mr. Kleszynski to
testify to the current value of Unit 7B and Unit 21F.
¶ 114 1. Standard of Review
¶ 115 We will reverse a judgment following a bench trial only if the judgment is against the
manifest weight of the evidence. Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd.
USA, 384 Ill. App. 3d 849, 859 (2008). “ ‘A judgment is against the manifest weight of the
evidence only when the opposite conclusion is apparent or when findings appear to be
unreasonable, arbitrary, or not based on evidence.’ ” Chicago’s Pizza, Inc., 384 Ill. App. 3d
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at 859 (quoting Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001)).
¶ 116 We will reverse the trial court’s decision only where the appealing party presents
evidence that is strong and convincing enough to overcome, completely, the evidence and
presumptions existing in the opposing party’s favor. Wildman, Harrold, Allen & Dixon v.
Gaylord, 317 Ill. App. 3d 590, 599 (2000). As a reviewing court, we may not overturn a
judgment merely because we disagree with it, or as the trier of fact, we might have come to
a different conclusion. People v. A Parcel of Property Commonly Known as 1945 North 31st
Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 510 (2005).
¶ 117 2. Discussion
¶ 118 Judge Hogan found that Mr. Solano’s calculation of the plaintiff’s loss of net worth was
merely a compounded interest calculation, not an analysis of the plaintiff’s investment
history or her net worth. The record supports Judge Hogan’s rejection of Mr. Solano’s
opinion that the plaintiff suffered a loss between $545,000 and $323,000 to her net worth as
a result of the Board’s violation of the bylaws.
¶ 119 According to Mr. Solano’s testimony, using components such as the interest rates,
additional costs to purchase Unit 7B as opposed to Unit 21F, the additional mortgage
payments and repair costs, he applied 30-year treasury bonds and compounded the interest
over 30 years. As of January 2011, the impact on the plaintiff’s net worth was $545,000.
After removing some of the extra purchasing costs and the cost of repairs to Unit 7B, which
might ultimately be disallowed as damages, the impact was $323,000. He acknowledged that
he did know how the plaintiff would be investing the yearly interest she would have been
receiving.
¶ 120 The plaintiff also argues that Judge Hogan erred when he found that the plaintiff did not
carry her burden of proof to establish that the present day value of Unit 21F was higher than
the present day value of Unit 7B. She maintains that Mr. Kleszynski’s opinion testimony on
redirect examination that Unit 7B was worth $20,000 more than Unit 21F should not have
been admitted because his opinion had not been disclosed. Therefore, the only credible
valuation testimony was Mr. Solano’s, who opined that Unit 21F was worth $15,000 more
than Unit 7B.
¶ 121 A trial court’s evidentiary rulings are reviewed for an abuse of discretion. Jones v. DHR
Cambridge Homes, Inc., 381 Ill. App. 3d 18, 34 (2008). An abuse of discretion occurs only
where no reasonable person would agree with the trial court’s conclusion. Jones, 381 Ill.
App. 3d at 32.
¶ 122 There is no dispute that Mr. Kleszynski’s opinion was not previously disclosed.
However, Judge Hogan ruled that the plaintiff had “opened the door” by asking Mr.
Kleszynski on cross-examination whether he had an opinion as to the current value of Unit
21F and the basis for that opinion. “Where a plaintiff opens the door to the elicitation of
certain testimony, the plaintiff cannot complain that he was prejudiced by any cross-
examination defense counsel raised regarding that testimony.” Bryant v. LaGrange Memorial
Hospital, 345 Ill. App. 3d 565, 578 (2003) (testimony barred by discovery rules was
admissible on redirect examination where the cross-examination had opened the door to the
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testimony). We find no abuse of discretion in Judge Hogan’s ruling.
¶ 123 Moreover, while the trial court may not reject the uncontradicted and unimpeached
testimony of an expert arbitrarily, it is still within the province of the trier of fact to weigh
the credibility of the expert evidence and to decide the issue. In re Glenville, 139 Ill. 2d 242,
251 (1990). The fact that Judge Hogan found the plaintiff’s valuation evidence insufficient
to carry her burden of proof does not indicate that he rejected it arbitrarily. See Glenville, 139
Ill. 2d at 251 (“Disbelieving expert testimony does not mean that the testimony was
arbitrarily rejected.”).
¶ 124 We conclude that the award of damages was not against the manifest weight of the
evidence.
¶ 125 III. CONCLUSION
¶ 126 We affirm the grant of partial summary judgment to the plaintiff on liability and the
denial of the Association’s motion for summary judgment on the plaintiff’s breach of
fiduciary duty claim in count I of the amended complaint. We affirm the grant of summary
judgment to the Association on the issue of punitive damages and affirm the striking of the
plaintiff’s jury trial demand. The award of damages to the plaintiff is affirmed. The dismissal
of the plaintiff’s discrimination claim in count II of the amended complaint is affirmed.
¶ 127 We reverse the order denying the plaintiff’s motion to appoint a special representative
for Messrs. Kadison, Feinberg and Bell. The denial of the plaintiff’s motion to file a second
amended complaint is affirmed.
¶ 128 We reverse the grant of summary judgment to the Association on the plaintiff’s request
for an award of equitable prejudgment interest on her breach of fiduciary duty claim and
remand this case for a hearing to determine if the plaintiff is entitled to an award of
prejudgment interest.
¶ 129 Affirmed in part and reversed in part; cause remanded with directions.
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