A state appeals panel reversed a Cook County judge’s dismissal of a lawsuit in which a man claimed his condo board retaliated against him for lodging complaints.
On March 29, a three-justice panel of the Illinois First District Appellate Court ruled on an appeal of Cook County Judge Kathleen Pantle’s decision. Justice Joy Cunningham wrote the ruling; Justices Sheldon Harris and Mathias Delort concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent except under very limited circumstances permitted by the Supreme Court rule.
Brian Connolly owns a condominium unit at 111 E. Chestnut St. Defendants in his lawsuit all have served on the board of directors of the 111 East Chestnut Condominium Association. Connolly said he was removed from the board because he reported to government authorities the board president was noncompliant with building permits for his own unit. He further said that after the removal, the board amended its bylaws to prevent removed members from returning, then sent him violations notices concerning his interactions with other residents, one eventually resulting in a $1,000 fine.
Illinois First District Justice Joy Cunningham | Illinoiscourts.gov
The panel rehashed its 2018 opinion in Boucher v. 111 East Chestnut Condominium Association in which it reversed a Cook County judge’s dismissal. In that instance, the appellate court found the plaintiff had standing to argue the association penalized him for expressing opinions, specifically regarding building management.
In that light, Cunningham wrote, the panel also found Connolly “set forth the gist of a colorable claim that the violations notice and fine were imposed in retaliation for (his) exercise of free speech.”
The panel also disagreed with Pantle’s finding the violations notice couldn’t be used to state a claim because it concerned actions, not protected speech. Cunningham explained three of the four separate incidents of obnoxious or offensive activity “as they are described in the violations notice, undoubtedly involved speech,” such as telling a boy he couldn’t bring a bicycle onto an elevator, asking a resident why she was walking her dog through the front door, or telling someone food wasn’t allowed in the pool area.
Pantle also dismissed Connolly’s claim the association breached fiduciary duty. Cunningham wrote she “did not merely find that the allegations were too vague and conclusory to state a claim.” But Connolly’s reply brief on appeal didn’t dispute things like Pantle’s application of the exculpatory clause or more than a passing reference to her application of the business judgment rule.
As such, the panel determined, Connolly forfeited his challenge to Pantle’s grounds for dismissal of count two. It noted he similarly forfeited a challenge to dismissal of counts three and four by making no argument challenging the opinion.
The panel also considered Pantle’s Jan. 6, 2017, order granting a Rule 137 motion and a July 27, 2017, order awarding $111,941 in legal fees. It determined Pantle erred by imposing those sanctions on Connolly without an evidentiary hearing.
Since Connolly’s first complaint shouldn't have been dismissed, Cunningham wrote, the panel said Pantle wrongly concluded all his pleadings were frivolous. Although the panel acknowledged Pantle granted the motion before the Boucher ruling, it still said she “erred in finding that none of the causes of action were warranted by existing law, or, at least, a plausible argument for extension or modification of the law.”
The panel further pointed to a disconnect between the order granting the motion — which Pantle said was because Connolly’s filings were objectively frivolous — and the order awarding legal fees, which said the filings amounted to harassment, a subjective opinion.
“We recognize (Connolly’s) behavior throughout the litigation may have been irritating to the court and the defendants,” Cunningham wrote. “This in turn could lead the court to the subjective conclusion that sanctions were warranted. However, given the large size of the award, this was all the more reason for the court to hold an evidentiary hearing, and its failure to do (so) was an abuse of discretion.”
As such, the panel reversed both the sanctions and the fee award. Cunningham stressed that decision does not imply Connolly was improperly motivated, only that he deserved a chance to argue his position.
In a special concurrence, Delort wrote to enhance his position that condo boards are prohibited from abridging unit owners’ First Amendment rights.