Majerle v. Winona 1302 LLC

2024 IL App (1st) 231339-U

• Court: Appellate Court of Illinois
• Decided: June 24, 2024
• Docket: 1-23-1339
• Status: Unpublished

Opinion

2024 IL App (1st) 231339-U FIRST DISTRICT, FIRST DIVISION June 24, 2024

No. 1-23-1339

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 JUDICIAL DISTRICT _____________________________________________________________________________

) ) JARED MAJERLE, Appeal from the ) Circuit Court of ) Plaintiff-Appellant, Cook County, Illinois. ) v. ) No. 22 L 1563 ) WINONA 1302 LLC; and BAK HOME ) DEVELOPMENT PARTNERS, LLC, Honorable ) Michael F. Otto, ) Defendants-Appellees. Judge Presiding. ) ) _____________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: The circuit court did not abuse its discretion in dismissing the complaint of a condominium owner due to the pending action of the building’s board of managers.

¶2 Plaintiff Jared Majerle owns one of six condominiums in a building located at 1302 Winona

Street in Chicago. The condominiums were developed and originally owned by defendant Winona No. 1-23-1339

1302 LLC 1 until they were sold to individual owners and the board of managers of the 1302

Winona Condominium Association (“Board”) was turned over to the new owners. On May 9,

2020, the Board brought an action against defendants alleging various construction defects in the

building. The trial court denied plaintiff’s petition to intervene in the Board’s action. On June 24,

2022, plaintiff filed a separate complaint against defendants, alleging nearly the same claims as

the claims alleged in the Board’s complaint. Defendants moved to dismiss plaintiff’s complaint

under Sections 2-619(a)(3) and 2-619 (a)(9) of the Code of Civil Procedure, arguing that “another

action is pending between the same parties for the same cause” and that plaintiff lacked standing.

The trial court found that the Board’s lawsuit “is a prior pending action” and dismissed plaintiff’s

complaint pursuant to Section 2-619(a)(3). For the reasons that follow, we affirm.

¶3 BACKGROUND

¶4 The residential building at 1302 West Winona Street consists of six condominium units

across three stories. Defendants originally developed and owned the units and incorporated the

1302 Winona Condominium Association (“Association”) on June 7, 2019. The Association’s

board of directors was initially made up of principals from defendant Winona 1302 LLC. The six

condominiums were sold throughout 2019 to individual owners, including plaintiff. Defendants’

interest in the Board of the 1302 Winona Condominium Association was turned over to the new

owners on December 7, 2019.

¶5 On May 9, 2020, the Board filed a complaint against defendants, alleging numerous defects

in the construction of the building and units. The Board asserted, “Pursuant to Section 9.1(b) of

the [Illinois Condominium Property] Act, the Board of Managers for the Association has standing

and capacity to act in a representative capacity on behalf of its unit owner members in relation to

1 Codefendant Bak Home Development Partners, LLC is the sole managing member of defendant Winona 1302, LLC. -2- No. 1-23-1339

matters involving the common elements or more than one condominium unit.” The Board’s

complaint alleged: (1) breach of contract/warranty, (2) breach of contract, (3) violation of the

Consumer Fraud Act, (4) fraudulent concealment, and (5) piercing the corporate veil.

¶6 On April 19, 2022, plaintiff petitioned to intervene in the Board’s action, alleging that his

claims “and those of [the Board] share all questions of law and fact” and seeking to “carve out his

individual claims from those asserted” by the Board. The circuit court denied plaintiff’s petition

on May 19, 2022.

¶7 On June 24, 2022, plaintiff filed a separate complaint against defendants, alleging breach

of contract, violation of the Consumer Fraud Act, and common law fraudulent concealment. On

July 25, 2022, defendants filed an “unopposed” motion to consolidate plaintiff’s suit with the

Board’s lawsuit.

¶8 Before the court ruled on defendants’ July 25th motion to consolidate, defendants filed a

motion to dismiss plaintiff’s lawsuit pursuant to section 5/2-619.1 of the Code of Civil Procedure

on August 5, 2022. 735 ILCS 5-2-619.1. Defendants argued that plaintiff lacked standing under

section 5/2-619(a)(9), that plaintiff’s lawsuit was duplicative of the Board’s lawsuit under section

5/2-619(a)(3), and that plaintiff had failed to specifically plead the fraud claims as required under

section 5/2-615.

¶9 On August 19, 2022, the trial court granted defendants’ motion to consolidate plaintiff’s

case with the Board’s previously filed suit. On August 24, 2022, plaintiff filed a motion for

substitution of judge as a matter of right, which the trial court granted on October 3, 2022.

¶ 10 On March 1, 2023, the trial court granted defendants’ motion to dismiss plaintiff’s

complaint under section 2-619(a)(3) of the Code because “the two actions involve both the same

parties and the same cause.” After considering the four factors laid out by the Illinois Supreme

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Court in Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 427, 447 (1986), the court found

that plaintiff’s “interest[s] are represented by the Board’s lawsuit and defending against the

[plaintiff]’s action would cause multiplicity and vexation.” Because the court found this factor

dispositive, defendants’ other arguments were not addressed.

¶ 11 Plaintiff moved for reconsideration of the court’s dismissal, arguing that “[t]he effect of

the [court’s] Order creates a situation in which an individual condominium unit owner who has

standing can never bring his or her own action if the condominium association happens to file an

action first.” In denying plaintiff’s motion to reconsider, the court noted that “[Section] 2-619(a)(3)

says nothing about who files first” and that it did not believe that its order created “a race to the

courthouse.”

¶ 12 ANALYSIS

¶ 13 On appeal, plaintiff argues that the trial court abused its discretion in dismissing his action

pursuant to section 2-619(a)(3) because plaintiff’s case “is not the ‘same cause’ as the [Board]’s

Case.” Defendants respond that the court properly dismissed plaintiff’s complaint pursuant to

section 2-619(a)(3) or, alternatively, that plaintiff lacked standing to bring the lawsuit under

section 2-619(a)(9).

¶ 14 Generally, reviewing courts apply a de novo standard of review to a motion to dismiss

because “the motion does not require the trial court to weigh facts or determine credibility.”

Hapag-Lloyd (America), Inc. v. Home Ins. Co., 312 Ill. App. 3d 1087, 1090 (2000). However,

“when such a motion to dismiss is inherently procedural, such as a section 2-619(a)(3) motion

seeking dismissal because another action is pending between the parties for the same cause, the

motion urges the trial court to weigh several factors to determine if it is appropriate for the action

to proceed.” Overnite Transportation Co. v. International Brotherhood of Teamsters, 332 Ill. App.

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3d 69, 73 (2002). Where, as here, the trial court has weighed the factors in determining whether to

grant a dismissal, the trial court’s decision is reviewed for an abuse of discretion. Id. An abuse of

discretion occurs where the trial court’s ruling is “arbitrary, fanciful, or unreasonable, or where no

reasonable person would take the same view.” People v. Illgen, 145 Ill. 2d 353, 364 (1991).

¶ 15 Section 2-619(a)(3) provides for dismissal where “there is another action pending between

the same parties for the same cause.” 735 ILCS 2-619(a)(3) (West 2022). This section is “designed

to avoid duplicative litigation and is to be applied to carry out that purpose.” Kellerman, 112 Ill.

2d at 447.

¶ 16 The “same parties” requirement is satisfied “where the litigants’ interests are sufficiently

similar, even though the litigants differ in name or number.” Combined Insurance Co. of America

v. Certain Underwriters at Lloyd’s London, 356 Ill. App. 3d 749, 754 (2005). Lawsuits present the

“same cause” when “the relief requested is based on substantially the same set of facts.”

Whittmanhart, Inc. v CA, Inc., 402 Ill. App. 3d 848, 853 (2010). “While different issues may have

been raised in the two lawsuits or different relief may have been sought, ‘the crucial inquiry is

whether both arise out of the same transaction or occurrence, not whether the legal theory, issues,

burden of proof, or relief sought materially differs between the two actions.’ ” Performance

Network Solutions, Inc. v. Cyberix US, Inc., 2012 IL App (1st) 110137, ¶ 31 (quoting Jackson v.

Callan Publishing, Inc., 356 Ill. App. 3d 326, 337 (2005)).

¶ 17 While there is no dispute that the Board’s lawsuit and plaintiff’s lawsuit involve the “same

parties,” the lawsuits also involve the “same cause” because they arise from “substantially the

same set of facts.” Whittmanhart, Inc., 402 Ill. App. 3d at 853. The trial court recognized that both

complaints raise the same issues at the condo building, including “the moisture, plumbing, and

garage” and plaintiff fails to allege “how his unit was uniquely affected by these issues compared

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to the rest of the units.” Even plaintiff acknowledged that “of course there is a large Venn diagram

concerning the nucleus of operative facts out of which the [Board]’s and [plaintiff]’s actions arise.”

(Emphasis in original).

¶ 18 Plaintiff argues that his “personal interests *** could vary greatly from those of the Board

in terms of remedies sought and the vision of success with respect to case handling and acceptable

outcomes” (emphasis in original) but fails to identify these “interests” or otherwise develop this

argument. Plaintiff’s reliance on Cushing v. Greyhound Lines, Inc., 2013 IL App (1st) 103197, ¶

46, is similarly unavailing where the reviewing court’s “analogous conclusion” was reached in an

unpublished summary order.2 Furthermore, Cushing involved a husband’s “continuing attempt to

intervene” in at least 13 lawsuits related to his wife’s death after being struck by a bus and bears

little factual resemblance to the instant case. Id. ¶ 6. Plaintiff is unable to establish that the “cause”

alleged in his complaint was in any way different from the “cause” alleged in the Board’s

complaint.

¶ 19 We recognize that meeting the “same cause” and “same parties” requirements of section

2-619(a)(3) does not require automatic dismissal. Performance Network Solutions, 2012 IL App

(1st) 110137, ¶ 33. Instead, the decision to dismiss is left to the discretion of the trial court. Id.

Factors the court should consider in deciding whether to dismiss under section 2-619(a)(3) include:

“comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining

complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the

local forum.” Kellerman, 112 Ill. 2d at 447-48. Because not all four Kellerman factors “necessarily

apply to each section 2-619(a)(3) dismissal,” courts are not required to consider all four factors in

every case. Performance Network Solutions, 2012 IL App (1st) 110137, ¶ 33.

2 See Enadeghe v. Dahms, 2017 IL App (1st) 162170, ¶ 23 (We may decline to address any arguments that plaintiff makes that do not contain appropriate citation) (citing Ill. S. Ct. R. 341(h)(7)). -6- No. 1-23-1339

¶ 20 The only Kellerman factor applicable in this case, the prevention of “multiplicity, vexation,

and harassment,” weighs in favor of dismissal. Kellerman, 112 Ill. 2d at 447-48. Given the

similarity of the parties and claims, dismissing plaintiff’s complaint undeniably prevented

“multiplicity, vexation, and harassment.” Plaintiff’s complaint contained nearly identical

allegations as the Board’s complaint. (i.e., alleging the same building and design defects, including

“exterior wall insulation, wall penetrations, windows, plumbing, garage, and related

components.”). Notably, plaintiff’s complaint raised no new claims. The trial court did not abuse

its discretion in determining that dismissing plaintiff’s lawsuit was necessary to avoid duplicative

litigation.

¶ 21 Plaintiff argues that the trial court’s ruling “creates a situation in which an individual

condominium owner who has standing can never bring his or her own action if the condominium

association also happens to file.” We disagree. As a unit owner at 1302 West Winona Street,

plaintiff is subject to Section 9.1(b) of the Illinois Condominium Property Act, which states, in

relevant part: “[t]he board of managers shall have standing and capacity to act in a representative

capacity in relation to matters involving the common elements or more than one unit, on behalf of

the unit owners, as their interests may appear.” (Emphasis added) 765 ILCS 605/9.1(b). As

discussed above, plaintiff’s complaint is nearly identical to the complaint already pending on

behalf of the unit owners.

¶ 22 Plaintiff also argues that the trial court “arbitrarily failed to consider prejudice” to him and

contends that, “from a public[]policy perspective, it would be inequitable for the Court to deny

[him] the opportunity” to bring his own claim against the defendants. The dismissal of plaintiff’s

complaint does not entirely prevent him from obtaining future individual relief. As this court noted

in Kennelly Square Condominium Ass’n v. MOB Ventures, LLC, 359 Ill. App. 3d 991, 995-96

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(2005), individual condominium owners “have the remedy of filing a derivative action against the

Board if the Board fails to assert their claim against [third-party] defendants.” Id. at 995. See also

Poulet v. H.F.O., L.L.C., 353 Ill. App. 3d 82, 100 (2004) (“[O]ur finding in this case does not bar

individual unit owners from obtaining relief in the event that the [Board] fails to take action against

the third parties.”).

¶ 23 Considering the requirements for dismissal under section 2-619(a)(3), the Kellerman

factors, and the trial court’s apt analysis, the court’s decision to dismiss plaintiff’s complaint

pursuant to section 2-619(a)(3) was not “arbitrary, fanciful, or unreasonable.” Illgen, 145 Ill. 2d at

364.

¶ 24 Because we find no abuse of discretion in the dismissal of plaintiff’s complaint under

section 2-619(a)(3), we need not consider plaintiff’s other arguments.

¶ 25 CONCLUSION

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 27 Affirmed.

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