Glickman v. Teglia

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Glickman v. Teglia

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0392 Rel

Case Date: 02/19/2009

Preview:FOURTH DIVISION February 19, 2009

No. 1-08-0392

BRIDGETTE GLICKMAN, Plaintiff-Appellant, v. RICHARD C. TEGLIA, JR., Individually and as an agent of 4600 South Indiana Condominium Association, Inc., and as an agent of 4600 South Indiana Development Corporation; 4600 SOUTH INDIANA DEVELOPMENT CORPORATION, an Illinois Corporation; ELIAS PAPPAGEORGE, individually and as agent of Axios Consultants, Ltd., an Illinois Corporation; and SNOBIZ, INC. OF CHICAGO, an Illinois Corporation, Defendants (4600 South Indiana Condominium Association, Inc., an Illinois Corporation, Defendant-Appellee).

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Appeal from the Circuit Court of Cook County No. 07 L 000006 Honorable Kathy M. Flanagan, Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court: Plaintiff-appellant, Bridgette Glickman, filed a negligence action against defendants to recover damages for injuries sustained when she slipped and fell on the ice while walking on the stairways and landing of her condominium unit. Defendant 4600 South Indiana Condominium Association, Inc. (Association), filed a motion to dismiss and a subsequent amended motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2006)). Glickman appeals the trial court's order granting the Association's

1-08-0392 amended motion to dismiss, contending that the trial court erred in finding that the Association did not owe a duty to Glickman. Glickman also appeals the trial court's denial of Glickman's motion for leave to file an amended complaint. For the following reasons, we reverse the trial court's order granting the Association's amended motion to dismiss and affirm the trial court's order denying Glickman's motion for leave to file an amended complaint.

BACKGROUND On January 9, 2005, Glickman sustained multiple fractures to her ankle when she slipped and fell while walking on the stairways and landing that are located outside her condominium unit. The stairways and landing are within the common elements of the condominium property maintained by the Association. Glickman filed a complaint against both the developer and the designer of her condominium building and their respective companies. She also named the company contracted by the Association for snow and ice removal, as well as the Association itself. The complaint alleges negligent design and construction in the building's down spouts, gutters and drainpipes that caused an unnatural buildup of ice on the back porches and stairs of the condominium units. The complaint further alleges that the Association failed to maintain its premises in a reasonably safe condition, failed to warn the unit owners of the danger posed by the ice build-up, and failed to properly secure those areas in which there existed an unnatural accumulation of water and ice that posed a threat to the health and safety of Glickman and others. The Association's declaration and bylaws were recorded on July 18, 2003. After this

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1-08-0392 date, the Association began collecting assessments from unit owners. Glickman made her assessment checks payable to 4600 S. Indiana Condominiums and mailed them to the 4600 S. Indiana Condominium Association. The developer, Richard C. Teglia, Jr., was a signatory on the bank account held in the name of the Association from 2003 until March 2005. The Association was incorporated as an Illinois not-for-profit corporation on February 20, 2004. Teglia was named as a director of the Association in section 5 of the articles of incorporation "until the first annual meeting." From 2003 until March 2005, the Association entered into various service contracts. From July 9, 2004, to July 9, 2005, the Association was the named insured on the condominium property's insurance policy. The Association's initial board of directors was elected on March 6, 2005. The Association filed a motion to dismiss the action as against the Association, contending that it had no duty to Glickman until its initial board was elected on March 6, 2005, almost two months after her fall. The trial court granted the motion on January 14, 2008, and made a finding that the order was appealable under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Other parties remained in the suit. Glickman filed a motion for leave to file an amended complaint on June 5, 2008. The trial court denied the motion because it was not filed within 30 days of the entry of the dismissal order. This appeal follows.

ANALYSIS Our review of an order granting a motion to dismiss pursuant to section 2-619 of the Code is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619

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1-08-0392 N.E.2d 732 (1993). Glickman contends that the Association had a duty to maintain the common elements of the property at the time of her fall despite the fact that the initial board of managers had not yet been elected. The Association responds that it had no duty until the developer turned the Association over to the control of the unit owners via a duly elected board. In order to determine whether the Association owed a duty to Glickman, we must construe sections 18.2(a) and 18.3 of the Condominium Property Act (the Act) (765 ILCS 605/18.2(a), 18.3 (West 2006)). The primary rule of statutory construction is to ascertain and give effect to the legislature's "true intent and meaning." Bowman v. American River Transportation Co., 217 Ill. 2d 75, 80, 838 N.E.2d 949, 952 (2005). The language of the statute itself provides the most reliable indicator of the legislature's intent. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320, 789 N.E.2d 1248, 1252 (2003). "We afford the language of the statute its plain and ordinary meaning [citation] and construe the statute as a whole." Rogers, 204 Ill. 2d at 320, 789 N.E.2d at 1252. "Words and phrases must not be viewed in isolation but must be considered in light of other relevant provisions of the statute." Rogers, 204 Ill. 2d at 320, 789 N.E.2d at 1252. "We [must] also presume that in enacting the statute the legislature did not intend absurdity, inconvenience, or injustice." Rogers, 204 Ill. 2d at 320, 789 N.E.2d at 1252. "Where the language of the statute is clear and unambiguous, the only legitimate function of the courts is to enforce the law as enacted by the legislature." Rogers, 204 Ill. 2d at 320, 789 N.E.2d at 1252. "It is never proper for the courts to depart from the plain meaning of the statute by reading into it exceptions, limitations or conditions which conflict with the intent of the legislature." Rogers,

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1-08-0392 204 Ill. 2d at 320, 789 N.E.2d at 1252. With these principles in mind, we turn to the statutory provisions in question. Section 18.3 provides: "The unit owners' association is responsible for the overall administration of the property through its duly elected board of managers. *** The association shall have and exercise all powers necessary or convenient to effect any or all of the purposes for which the association is organized, and to do every other act not inconsistent with law which may be appropriate to promote and attain the purposes set forth in this Act or in the condominium instruments." 765 ILCS 605/18.3 (West 2006). The trial court ruled that the responsibility for the care and maintenance of the property which is imposed upon the Association by the Act is only done so through its duly elected board of managers. Prior to this election, the Act imposes all of those responsibilities on the developer. Therefore, the trial court reasoned, even though the Association may be in existence, it has no duties prior to the election of the initial board of managers. To determine whether this is an accurate interpretation of the Act, we must consider the statute as a whole. As quoted above, section 18.3 places the responsibility for the overall administration of the property on the Association through its duly elected board of managers. As the trial court noted, the Act also provides for the administration of the property prior to the election of the initial board of managers. Section 18.2(a) states: "Until election of the initial board of managers that is comprised of a majority of unit owners other than the developer ***, the same rights, titles, powers, privileges, trusts,

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1-08-0392 duties and obligations vested in or imposed upon the board of managers by this Act and in the declaration and bylaws shall be held and performed by the developer." 765 ILCS 605/18.2(a) (West 2006). Looking at the plain language of section 18.2(a), this provision operates to impose the responsibilities of the board of managers on the developer, not the responsibilities of the association itself. To determine the responsibilities of the board of managers, we look to section 18.4 of the Act. This section provides: "

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