{ "id": 2499332, "name": "BOARD OF MANAGERS OF OLD WILLOW FALLS CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. GLENVIEW STATE BANK, Defendant-Appellee (New Prospect Development Corporation et al., Defendants); GLENVIEW STATE BANK, Plaintiff-Appellee, v. BOARD OF MANAGERS OF OLD WILLOW FALLS CONDOMINIUM ASSOCIATION, Defendant-Appellant (First National Bank and Trust Company of Evanston et al., Defendants)", "name_abbreviation": "Board of Managers of Old Willow Falls Condominium Ass'n v. Glenview State Bank", "decision_date": "1989-12-18", "docket_number": "No. 1\u201488\u20142307", "first_page": "1057", "last_page": "1062", "citations": [ { "type": "official", "cite": "193 Ill. App. 3d 1057" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 N.E.2d 43", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "45" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3292503 ], "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0383-01" ] }, { "cite": "433 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "1355" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5471797 ], "year": 1979, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0247-01" ] } ], "analysis": { "cardinality": 518, "char_count": 10567, "ocr_confidence": 0.761, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33293852267062674 }, "sha256": "adde5432b5eb2997a793189ea05711a39f538b67771ee7cf98e0ef0804fec3dc", "simhash": "1:26f7799f2d6f5c9d", "word_count": 1683 }, "last_updated": "2023-07-14T21:36:46.192510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BOARD OF MANAGERS OF OLD WILLOW FALLS CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. GLENVIEW STATE BANK, Defendant-Appellee (New Prospect Development Corporation et al., Defendants).\u2014GLENVIEW STATE BANK, Plaintiff-Appellee, v. BOARD OF MANAGERS OF OLD WILLOW FALLS CONDOMINIUM ASSOCIATION, Defendant-Appellant (First National Bank and Trust Company of Evanston et al., Defendants)." ], "opinions": [ { "text": "PRESIDING JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThe Board of Managers of Old Willow Falls Condominium Association (the association) filed an eight-count complaint against several defendants to recover unpaid condominium assessments, damages for breach of fiduciary duty to the association during its condominium conversion, and other related causes of action. The instant appeal involves only defendant Glenview State Bank (GSB) and its dismissal from the association\u2019s complaint, alleging a breach of duty under the Condominium Property Act (the Act) (Ill. Rev. Stat. 1987, ch. 30, par. 301 et seq.) to pay unpaid assessments on certain condominium units as a \u201cco-developer.\u201d\nThe circuit court granted GSB\u2019s motion to dismiss the association\u2019s original count I of its complaint pursuant to the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 619), but granted the association leave to amend count I as to GSB. The \u201cFirst-Amended Count I\u201d was filed, and, in response, GSB filed a motion to dismiss pursuant to section 2 \u2014 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 615). The circuit court subsequently dismissed GSB from count I of the association\u2019s complaint under section 2 \u2014 619 of the Code.\nPursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), the circuit court found no just reason for delaying enforcement or appeal of the order as to GSB\u2019s dismissal from count I, and the association filed a timely appeal.\nThe issue presented for our review is whether the circuit court erred in dismissing GSB, a secured lender, from count I of the association\u2019s complaint. For the reasons set forth below, we reverse GSB\u2019s dismissal.\nDefendants Alex Pinsky, Zal Horn and Saul Azar are shareholders of New Prospect Development Corporation (NPDC) and doing business as Old Willow Falls Partnership. NPDC is identified as the developer of the conversion project of rental apartments into condominium units, which is at issue in this appeal. The condominium units were created on August 18, 1979, pursuant to a condominium declaration (the Declaration). To finance the project, GSB made a certain loan to NPDC for the purpose of paying an existing first mortgage and for construction and rehabilitation of the units. The loan is secured by the assignment of the beneficial interest of First National Bank and Trust of Evanston, as trustee under trust No. R \u2014 1540, dated July 30, 1979, and of various trust deeds in which Azar, Horn and Pinsky are the named beneficiaries.\nFrom the time the Declaration was recorded on August 18, 1979, until the independent condominium unit owners began to manage the association\u2019s affairs on November 9, 1982, Azar, Horn and Pinsky served as officers and directors of the association. On March 4, 1982, Azar filed for bankruptcy. Subsequently, Azar, Horn and Pinsky entered into an agreement dated March 25, 1982, to resolve various financial disputes while the condominium project continued in operation.\nAs to GSB, the parties to the agreement agreed to execute Certain documents so that GSB could disburse funds for payment of a first mortgage and for construction and rehabilitation of the condominium project, without Azar\u2019s, Horn\u2019s or Pinsky\u2019s countersignatures. Regarding the project\u2019s management during its conversion stage, the agreement set forth that funds collected from rental or contract sales of condominium units or from other sources shall be deposited in an account held at GSB and disbursed upon the signature of any two of the following: Pinsky or Horn, Azar or the condominium association manager, Camille Imbrie. In the event that the parties disagreed as to the disbursement of funds or as to any issue involving the project\u2019s management, the agreement gave GSB the discretion to make disbursements or management decisions without approval or consent of Pinsky, Horn, Azar or Imbrie. Additionally, the agreement provided that GSB was exculpated from any liability with respect to its actions in relation to the agreement.\nAttached to the association\u2019s complaint in the circuit court was an affidavit submitted by Imbrie which disclosed the following: She was employed on the recommendation of personnel at GSB. Two accounts existed at GSB for the project: one account in the association\u2019s name and the other account, which was considered the \u201cconverter\u201d account, in the name of NPDC. Imbrie also stated that GSB refused to disburse funds from either of the accounts without the signature of one of its officers.\nIn November 1982, the independent condominium unit owners began managing the affairs of the association. Upon learning that the developer had failed to pay assessments to the association for the period prior to the sale of each condominium unit, the association demanded payment of such sums. Both GSB and the developer refused to pay the unpaid assessments for units remaining unsold, as well as assessments due for sold units prior to their sale.\nAt a hearing on GSB\u2019s section 2 \u2014 615 motion to dismiss, the circuit court noted that the motion should have been brought under section 2 \u2014 619 of the Code because of GSB\u2019s reliance on \u201caffirmative matter,\u201d the Condominium Property Act\u2019s (the Act\u2019s) (Ill. Rev. Stat. 1987, ch. 30, par. 309(a)) provisions that the \u201cdeveloper\u201d is liable for these assessments. In support of its motion, GSB submitted the affidavit of Samuel Pincich, a GSB bank officer, stating that: (1) Imbrie was not an employee of GSB; (2) no officer of GSB acted as an officer or director of the association; and (3) neither GSB nor any of its agents acted as a developer of Old Willow Falls Condominium Association. Despite GSB\u2019s failure to bring the motion under section 2 \u2014 619, which expressly permits \u201caffirmative matter\u201d to be offered as evidence (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 619(a)(9)), the court found the failure not to be \u201cfatal.\u201d It then dismissed GSB from count I of the association\u2019s complaint, finding that GSB was not obligated for the unpaid assessments because it was not a \u201cdeveloper\u201d under the provisions of the Act.\nOn appeal, we initially address the association\u2019s argument that the circuit court committed reversible procedural error in deciding GSB\u2019s section 2 \u2014 615 motion to dismiss under section 2 \u2014 619. Even though GSB\u2019s motion would have been more properly brought pursuant to section 2 \u2014 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 619), designating a motion under a different paragraph of the Code is not fatal. (See Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253, 433 N.E.2d 1350, 1355; Weber v. Weber (1979), 77 Ill. App. 3d 383, 385, 396 N.E.2d 43, 45.)\nThe association next argues that even if the circuit court properly considered GSB\u2019s section 2 \u2014 615 motion \u201cas if it had been raised under section 2 \u2014 619,\u201d error resulted because the circuit court precluded it from submitting counteraffidavits to the motion. We agree with the association and believe that justice demands that this cause be remanded to the circuit court so that the association is provided an opportunity to submit counteraffidavits to GSB\u2019s motion to dismiss.\nGSB filed its motion to dismiss pursuant to section 2 \u2014 615 of the code, yet argued affirmative matter in an attempt to defeat the allegations contained n the association\u2019s complaint. To support its motion, GSB submitted the Pincich affidavit. In response to GSB\u2019s section 2\u2014 615 motion to dismiss, the association argued that GSB had improperly asserted affirmative matter and an affidavit to defeat the allegations contained in the association\u2019s complaint. The association\u2019s motion further provided:\n\u201cThe Association does not waive, but expressly reserves its objections to the substantive and procedural defects of GSB\u2019s motion. In particular, the Association reserves the right to pose counteraffidavits, if and when GSB presents a motion attacking the Association\u2019s claims against GSB under a procedure where affidavits other than those appended to the complaint as exhibits may be considered.\u201d\nAfter considering all pertinent pleadings to GSB\u2019s motion to dismiss, the circuit court determined that the motion to dismiss would be more properly addressed \u201cas if had been raised under section 2\u2014 619.\u201d Thereafter, the circuit court dismissed GSB from count I of the association\u2019s complaint and found no just reason for delaying enforcement or appeal of the order.\nAlthough we hold that it was proper for the circuit court to consider GSB\u2019s section 2 \u2014 615 motion to dismiss under section 2 \u2014 619, we believe that the circuit court erred in not affording the association an opportunity to submit counteraffidavits to controvert the affirmative matter and the Pincich affidavit which had been previously included in GSB\u2019s section 2 \u2014 615 motion to dismiss and presumably considered by the circuit court in reaching its decision. As set forth above, the association expressly reserved the right to submit counter-affidavits to GSB\u2019s motion to dismiss. We therefore remand this case to the circuit court to provide the association the opportunity to submit counteraffidavits to GSB\u2019s motion to dismiss.\nIn light of the above, we need not address the remaining issues presented on appeal.\nReversed and remanded.\nCAMPBELL and O\u2019CONNOR, JJ., concur.\nAll references to the \u201cFirst-Amended Count I\u201d of the association\u2019s complaint will be referred to as \u201ccount I.\u201d\n\u201cDeclaration\u201d is defined by the Condominium Property Act as follows:\n\u201c(a) \u2018Declaration\u2019 means the instrument by which the property is submitted to the provisions of this Act, ***.\u201d 111. Rev. Stat. 1987, ch. 30, par. 302(a).\nThe agreement between these parties was approved by the United States District Bankruptcy Court for the Northern District of Illinois.", "type": "majority", "author": "PRESIDING JUSTICE BUCKLEY" } ], "attorneys": [ "Marshall N. Dickler, Ltd., of Arlington Heights (Marshall N. Dickler and S. Keith Collins, of counsel), for appellant.", "Boorstein & Cohn, of Chicago (Elenie K. Huszagh and Lauren Newman, of counsel), for appellee." ], "corrections": "", "head_matter": "BOARD OF MANAGERS OF OLD WILLOW FALLS CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. GLENVIEW STATE BANK, Defendant-Appellee (New Prospect Development Corporation et al., Defendants).\u2014GLENVIEW STATE BANK, Plaintiff-Appellee, v. BOARD OF MANAGERS OF OLD WILLOW FALLS CONDOMINIUM ASSOCIATION, Defendant-Appellant (First National Bank and Trust Company of Evanston et al., Defendants).\nFirst District (1st Division)\nNo. 1\u201488\u20142307\nOpinion filed December 18,1989.\nRehearing denied March 12,1990.\u2014 Modified on denial of rehearing March 19,1990.\nMarshall N. Dickler, Ltd., of Arlington Heights (Marshall N. Dickler and S. Keith Collins, of counsel), for appellant.\nBoorstein & Cohn, of Chicago (Elenie K. Huszagh and Lauren Newman, of counsel), for appellee." }, "file_name": "1057-01", "first_page_order": 1079, "last_page_order": 1084 }