Carey v. The 400 Condominium Assoc.

2024 IL App (1st) 230358-U

SECOND DIVISION
March 29, 2024

No. 1-23-0358

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
______________________________________________________________________________

REVEREND PATRICIA A. CAREY and ) Appeal from the
RICHARD FRY, ) Circuit Court
) Cook County.
Plaintiffs-Appellants, )
)
v. ) No. 17 CH 12201
)
THE 400 CONDOMINIUM ASSOCIATION, an )
Illinois Not-For-Profit Corporation, and HELEN )
DRESS, ) Honorable
) Thaddeus L. Wilson,
Defendants-Appellees. ) Judge Presiding.
__________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Howse and Justice Cobbs concurred in the judgment.

ORDER

¶1 Held: Summary judgment for defendants was proper in action for breach of fiduciary duty
against condominium association, and private nuisance against a neighbor, based
on an alleged smoke infiltration emanating from the neighbor’s unit. The building’s
Rules and Regulations specifically permitted smoking in the condo building, and
plaintiffs provided no evidence that any smoke that allegedly infiltrated their unit
was unreasonable.

¶2 Plaintiffs, Reverend Patricia Carey and her husband, Richard Fry, own a condominium in

a building which explicitly permits smoking within units of the building, so long as the smoking
No. 1-23-0358

“does not create a nuisance or unreasonable disturbance to others.” Plaintiffs brought this action

against their condominium association, the 400 Condominium Association (“Association”), and

the owner of an adjacent unit, Helen Dress. They allege that the Association breached its fiduciary

duties to plaintiffs by mishandling their complaints that secondhand tobacco and marijuana smoke

infiltrated plaintiffs’ unit from Dress’s unit, and that Dress’s actions in allowing the smoke to

infiltrate plaintiffs’ unit constituted a private nuisance. On summary judgment, the trial court found

that plaintiffs had presented no evidence that any objectively unreasonable level of smoke had

infiltrated their unit, and granted summary judgment for the Association and Dress. In this appeal,

plaintiffs challenge the circuit court’s rulings granting summary judgment in favor of defendants.

They ask this court to instead find that summary judgment should be granted in their favor.

¶3 The record shows that plaintiffs own Unit 3701 in a condominium building located at 400

East Randolph Street, Chicago, IL, while Dress owns the adjacent Unit 3703. The Association and

its Board of Directors operate and manage the building, and engage a property management

company, The Habitat Company, for day-to-day building management.

¶4 The Association has established certain Rules and Regulations governing residency in the

building. As relevant here, Section 27 of those Rules and Regulations provides:

“No unlawful, noxious or offensive activities shall be carried on in any Unit or

elsewhere at the Building, nor shall anything be done therein or thereon which shall

constitute a nuisance or which shall, in the judgment of the Board cause

unreasonable noise, danger or disturbance to others.

Residents and Unit Owners must not permit or participate in activities in the

Units or Common Elements that will unreasonably disturb or interfere with the

rights and comfort of other residents or Unit Owners.”

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¶5 Section 42, entitled “Smoking in Common Element Area and in Uinits [sic]” provides that

smoking is not permitted in common areas of the building, and is “permitted only in Units, and

only if it does not create a nuisance or unreasonable disturbance to others.” The rules further

provide that if “in-unit smoking result[s] in a nuisance or unreasonable disturbance to others, it

will be the responsibility of the smoker to cure the issue within their unit.”

¶6 Plaintiffs filed their initial complaint in this matter on September 8, 2017, and amended the

complaint twice thereafter. Plaintiffs’ second amended complaint, which is the subject of this

appeal, was filed on December 19, 2019, and alleged two claims—breach of fiduciary duty against

the Association, and private nuisance against Dress.

¶7 In general, plaintiffs alleged that, “[o]n information and belief, house guests and others

visiting Dress’s Unit smoke tobacco and/or marijuana inside the Unit, including on the balcony”

and that “[s]moking within [Dress’s] Unit *** causes the infiltration of secondhand and thirdhand

marijuana and tobacco smoke into [p]laintiffs’ Unit.” Plaintiffs further alleged “[o]n information

and belief,” that “other owners and occupants” in the building also “smoke[d] marijuana and/or

tobacco within their Units” and that smoke had “entered the common areas” of the building.

Plaintiffs contended that the “infiltration of secondhand and thirdhand marijuana and/or tobacco

smoke from other Units into [p]laintiffs’ Unit” and into the “common areas” of the building

constituted a nuisance under the Association’s Rules and Regulations.

¶8 Plaintiffs also asserted that they had “met with and reported to the Association and its

Board the infiltration of secondhand and thirdhand marijuana and tobacco smoke entering their

Unit and the common areas,” but that the Association had “refused to take any action” with regard

to plaintiffs’ complaints, “including investigating, and requesting the nuisance cease, holding

hearings, levying fines or taking other action.”

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¶9 In their claim against the Association, plaintiffs alleged that the Association breached its

fiduciary duties to plaintiffs by “permitting the continual infiltration of secondhand and thirdhand

marijuana and tobacco smoke to [p]laintiffs’ Unit” and to the “common areas” of the building.

Additionally, plaintiffs contended that the Association breached its fiduciary duties to plaintiffs by

“continually ignoring [p]laintiffs’ repeated reports, *** failing to enforce the Rules and

Regulations prohibiting nuisances, [and] *** failing to require smokers who create a nuisance or

unreasonable disturbance within the building to cure the nuisance by the levying of fines and

penalties or taking other action within their authority.”

¶ 10 Regarding their “private nuisance” claim against Dress, plaintiffs alleged that Dress

intentionally and unlawfully interfered with plaintiffs’ “full enjoyment of their Unit and common

areas” by “[s]moking and permitting the smoking of marijuana and tobacco in her Unit”;

“permitting the continuing infiltration of secondhand and thirdhand marijuana and tobacco smoke

from her Unit to [p]laintiffs’ Unit” and to “the common areas” of the building; and “continually

ignoring [p]laintiffs’ repeated requests to cure the nuisance created by the smoking and infiltration

of secondhand and thirdhand marijuana and tobacco smoke to [p]laintiffs’ Unit and common

areas” of the building.

¶ 11 The parties conducted discovery. On March 30, 2022, four-and-a-half years after the case

was initiated, the court entered an order providing that fact discovery would close April 28, 2022.

Plaintiffs were also ordered to answer “Rule 213(f) Interrogatories and disclose trial and expert

witnesses by April 28, 2022.”

¶ 12 On April 28, 2022, plaintiffs filed a motion to extend the fact discovery deadline. They

alleged that they had “recently found a small number of additional documents responsive to

Defendants’ request for documents,” and that they had supplemented their production that day.

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Plaintiffs alleged that the documents consisted of email communications between plaintiffs and

Jody Sarich, a Board member and chairperson of the Safety and Security Committee at the

Association, and requested a two-week extension of the fact discovery deadline to conduct a

deposition of Sarich.

¶ 13 On May 12, 2022, after a hearing, the trial court entered a written order granting plaintiffs’

motion to extend fact discovery until June 3, 2022. The written order further indicates that

“[p]laintiffs’ oral motion to extend the date to provide Rule 213(f)(3) [controlled expert witness]

disclosures ” was denied. No transcript from that hearing is contained in the record on appeal.

¶ 14 On June 17, 2022, the Association, Dress, and plaintiffs each filed a motion for summary

judgment.

¶ 15 The Association argued that summary judgment was warranted because plaintiffs’ breach

of fiduciary duty claim was “premised on the assertion that smoke infiltrated their unit to an extent

that would constitute a nuisance to an ordinary, reasonable person.” The Association contended

that plaintiffs had not disclosed any expert witness who could testify that smoke had infiltrated

plaintiffs’ unit. The Association further asserted that, to determine whether a particular annoyance

constitutes a nuisance, the court must consider the effect of the annoyance on an ordinary,

reasonable person, rather than the effect on a person who is abnormally sensitive. The Association

argued that plaintiffs “lack[ed] any evidence that smoke is infiltrating their unit to a level that

would constitute a nuisance to an ordinary, reasonable person. No witness has been able to verify

[p]laintiffs’ subjective claims that they can smell smoke in their unit.”

¶ 16 In the alternative, the Association argued that the business judgment rule precluded

liability, because “the Association made immediate, repeated and diligent efforts to address the

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alleged smoke smell in [p]laintiffs’ unit, despite never being able to verify it,” and there was “no

evidence that the Association engaged in bad faith, fraud, illegality, or gross overreaching.”

¶ 17 Finally, the Association argued that “[t]o constitute a nuisance, the act complained about

must cause some injury, real and not fanciful,” and there was no authority to support a conclusion

that the “alleged smell of cigarette or marijuana smoke constitutes a nuisance to a reasonable

person of ordinary sensibilities.” As a result, the Association argued that plaintiffs could not

“demonstrate that any nuisance exists, and they cannot establish that the Association breached any

fiduciary duty to address a nuisance.”

¶ 18 In Dress’s motion for summary judgment, she asserted that summary judgment was proper

because there was no evidence that Dress’s unit was the source of any smoke that allegedly

infiltrated plaintiffs’ unit; there was no evidence of intentional, negligent, wrongful or unlawful

conduct by Dress; and nuisance claims based on secondhand smoke exposure were not cognizable,

and had been rejected by “courts across the country.” Dress also contended that there was no

evidence of “physical invasion” of plaintiffs’ unit, and that plaintiffs could not recover the

diminution in value of their unit and their interest in the common areas as damages where there

was no evidence that the unit suffered any physical damage.

¶ 19 In plaintiffs’ motion for summary judgment, they argued that the “documents, depositions,

admissions and affidavits” established that the Association breached its fiduciary duties to

plaintiffs by failing to thoroughly investigate their complaints, and “uniformly enforce the Rules

and Regulations to ensure the smoker cured the nuisance.” Plaintiffs also contended that the

“documents, depositions, admissions and affidavits” established that Dress’ actions constituted a

private nuisance, in that they “invaded [plaintiffs’] interest in the use and enjoyment of [their unit],

and were “substantial, either intentional or negligent, and unreasonable.”

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¶ 20 In support of their respective motions for summary judgment, the parties submitted various

documents, including discovery answers and transcripts of various depositions, including those of

Carey, Fry, Dress, and Phil Pritzker, General Manager at The Habitat Company.

¶ 21 Pritzker testified as to the general process by which the Association investigates and

enforces rule violations, and the alleged violations at issue. He testified that when a resident

complains of a violation of the Rules and Regulations, management will visit the unit implicated

and attempt to independently verify that a violation has occurred. If the violation is verified,

security staff will then prepare an incident report, and any such reports are forwarded to Pritzker

weekly. Pritzker further stated that, in the event of a repeat violation by a resident, he will share

the incident report with the Board, which has a hearing committee that will then decide whether to

conduct a hearing involving the alleged violator.

¶ 22 As to the specific alleged rule violations in this case, the documents submitted in support

of the summary judgment motions establish that plaintiffs’ complaints of smoke in their unit began

sometime in 2015. Pritzker testified that plaintiffs first directed their complaints at a different

neighboring unit, Unit 3711. Both maintenance staff, and Pritzker himself, spoke to the residents

of that unit, but the Association was unable to verify that any smoke was infiltrating plaintiffs’

unit.

¶ 23 On February 13, 2015, Carey sent an email to Pritzker and others at the Habitat Company,

thanking them for their “effort and time regarding the smoke issues,” and expressing that she was

“not surprised” that they had been “unable to detect lingering smoke or aromas.”

¶ 24 Following Carey’s February 13, 2015, email, plaintiffs continued to complain of smoke

infiltration into their unit. Due to the “continuing concern expressed by” plaintiffs, representatives

of the management company then went into Unit 3711, and “investigate[d] the hole, the outlets

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and the pipes that connected the two unit[s],” and Pritzker “authorized the sealing of those two

areas, the pipes going in through the walls and the outlets, just as a precaution.”

¶ 25 Pritzker then stated that, “sometime after that,” plaintiffs began complaining that the smoke

may have been coming from Unit 3703, on the other side of plaintiffs’ unit. Pritzker testified that

the Association then

“did the same thing. We had spoken with that owner [Dress], and even though there

was an expression shared that there was—she was not continually smoking at that

time, or not smoking at all anymore, she did allow us into her unit to also examine

the pipes that connect the two units as well as outlets on the demising wall.”

¶ 26 The record contains conflicting information as to whether the maintenance workers then

performed work on Dress’s unit. Pritzker testified that the same remediation work that was

completed in Unit 3711 was completed in Dress’s unit, however Dress stated that an engineer

visited her unit to inspect it, concluded that there was no problem, and did not seal any openings.

¶ 27 Pritzker could not remember if the same remediation work was done in plaintiffs’ unit,

although he was confident that it was offered to them. In Fry’s deposition, he confirmed that

maintenance workers “did some patching work” using an expandable aerosol foam to fill open

areas around the pipes inside plaintiffs’ unit.

¶ 28 At some point in 2015, the residents of Unit 3711 moved out, leaving Unit 3703 as the only

occupied unit adjoining plaintiffs’ unit. Pritzker confirmed, however, that The Habitat Company

was never able to verify that any smoke was emitting from Dress’s Unit 3703, and accordingly,

Dress was never notified that she had violated the Association’s Rules and Regulations.

¶ 29 On December 11, 2015, after plaintiffs continued to complain of smoke, The Habitat

Company sent a letter to building residents, on behalf of the Board, explaining that there had been

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continuing complaints of the smell of smoke, and requesting that smokers purchase and use a

charcoal filtered air purifying system to mitigate the smell.

¶ 30 Thereafter, in January 2016, Pritzker and Diane White, The Habitat Company’s Vice

President and Pritzker’s supervisor, met with Carey regarding her concerns about smoking in the

building. In her deposition, Carey acknowledged that she sent a follow up email on January 11,

2016, in which she thanked Pritzker and White for their “consistent attention, ongoing dialogue,

and relational effort.”

¶ 31 The next day, White responded to Carey’s email. In her email, White remarked that Carey

had expressed concern that The Habitat Company had not strongly recommended to the Board that

the building convert to a smoke-free building. White explained that The Habitat Company could

not unilaterally make decisions without the Board’s consent. White informed Carey that The

Habitat Company had contacted another association to acquire information on the process of

converting to a smoke-free building, and that the company was planning to survey the building’s

residents to obtain their opinions on smoking in the units of the building. White advised Carey that

both the results of the survey and the information obtained from the other association would be

shared with the Board.

¶ 32 Sometime thereafter, The Habitat Company distributed a survey to all building residents.

The survey, in part, solicited feedback concerning the residents’ interest in converting into a

smoke-free building. The survey results show that 36 percent of the residents responded to the

survey, and 55 percent of those respondents were in favor of a ban on smoking in the units. After

receiving the survey results, Pritzker prepared a document entitled “Survey Commentary,” in

which he stated that “management [wa]s not currently planning to recommend to the board any

major changes” based on the survey results. In his testimony, Pritzker explained that because only

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36 percent of the residents responded to the survey, it was “less than *** 21 or 22 percent” of the

total residents who expressed an interest in banning smoking in the units when the survey results

were extrapolated to the building as a whole. Pritzker stated his belief “that a 36 percent response

rate is not an overwhelming response rate in which to make *** significant, very significant

recommendations as far as board management,” and while there were some “strident views”

expressed on smoking in the building, Pritzker believed that “if there was such an overwhelming

concern for this change to be made, then there should have been much heavier turnout on the

survey.”

¶ 33 In Jody Sarich’s deposition, she testified that she is an owner and resident in the building.

She is also a member of the Board and chaired the Safety & Security Committee. Sarich testified

that the Committee would hold “Safety & Security Forums,” where she and other Board members,

along with a representative from the building security company, would hold meetings “for people

to come and be able to speak to any of us directly.” Sarich testified that the forums would address

various issues, including fire safety, building evacuations, garage safety, and crime. “[A]s a single

[B]oard member,” her role was not to “instantly solve [any issues] on the spot,” but she would

“directly relay them to the *** leadership,” including, particularly Pritzker from the building’s

management company, who could “investigat[e] if there is something they can do to relieve [the

residents’] concerns.”

¶ 34 Sarich remembered that “[i]ssues of smoking certainly have come up,” in particular,

“asking for smoking to be banned in the whole building.” Those conversations would “typically

revolve around explaining the process that needs to happen in order for that to happen in [the]

building, because it [was] not something that [Sarich] or the Board alone can effectuate just on

[their] own.”

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¶ 35 Although Sarich’s committee was not “formally involved in grievance complaints,” Sarich

testified that she was familiar with the grievance and hearing procedure. Sarich confirmed that

when residents lodged a complaint, it would be “directed to the management company to begin a

process of evaluating and investigating that complaint.” The management company would

“independently investigate what’s happened,” because the Association should not be “accus[ing]

people based on an accusation.” If the management company came to the conclusion that there

had been a rule violation, the evidence to support the violation “would be referred to the Hearing

Committee,” which would then hold a hearing to “allow[ ] the accused person to come and meet

with” the Committee and explain or defend themselves. The Hearing Committee would collect

information and make a recommendation to the Board, which decided as a whole whether there

was a violation and what the consequences should be.

¶ 36 During her deposition, Carey testified that she had lived in Unit 3701 “off and on” since

2006, and that she owns another residence in New York. Carey stated that she had never seen

smoke in her unit, but had smelled it in her kitchen, in the hallway, and on the balcony. Carey

stated that in 2019, her neighbor, Dress, had a young man living with her for a year, and during

that time she smelled smoke “everyday.” At that time, Carey also saw a group of young people

smoking marijuana and cigarettes on Dress’s balcony more than 25 times.

¶ 37 Carey believed that Dress’s unit was the source of smoke in her unit, because the residents

of Unit 3711 had moved out in 2015, and no one lived in the floor above and below plaintiffs’

Unit. Carey did not know if anyone occupied the Unit above or below Unit 3711. Carey stated

that, after the residents in Unit 3711 moved out, smoke would enter the cabinets of her kitchen,

and that she could smell smoke in the area above her stove and in her living room, which shares a

wall with Dress’s unit.

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¶ 38 Carey stated that she also smelled smoke when Dress was alone in the unit. Carey stated

that Dress told her directly that she smokes several cigarettes per day. However, she could not

remember when the conversation occurred, whether it was “a year ago, three years ago, or five

years ago.” Carey testified that she saw Dress smoking on one occasion, when Dress was on her

balcony with her sister. Carey believed they were “sharing a cigarette” because Carey could “see

some hand gesture[s] back and forth” and “some smoke.” Carey acknowledged that Dress’s back

was facing Carey, and she did not see a cigarette in Dress’s hand. Carey also agreed that this

incident was the only time she had ever seen Dress smoking.

¶ 39 Carey further stated that she believes that The Habitat Company and the Association

protect Dress, who works as a realtor and has an office in the building. Carey testified that

communication between the parties ceased after the email in which White informed her that The

Habitat Company could only act as permitted by the Board.

¶ 40 Carey further testified that many years prior, she had undergone a thoracotomy, which she

described as a medical procedure in which part of her lung was removed, because she had a “nodule

that was active going towards being cancer.” Carey stated that she consulted Dr. James Walter,

once, in March 2015 because she was concerned about her coughing and feared that her symptoms

might be “a precursor to a pulmonary nodule.” She requested that Dr. Walter write a letter. That

letter indicated that at the visit, Carey

“described symptoms of chest congestion, a dry cough, and watery eyes that have

been present since heavy smokers moved into apartments on either side of her

current residence.

Given the known deleterious effects of second hand smoke exposure and

the temporal association between the onset of her symptoms and the new exposure

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to cig[a]rette smoke, her pulmonary symptoms are likely related to her proximity

to heavy smokers.

If possible, she would benefit from any efforts that reduce the amount of

smoking done in the area around her apartment.”

¶ 41 Carey testified that Dr. Walter did not diagnose her with any condition as a result of the

smoke infiltration. Other than Dr. Walter, Carey had not seen any other doctor or medical provider

for complaints of injuries arising out of smoke infiltration.

¶ 42 During his deposition, Fry confirmed that he and Carey currently live in New York in a

single family detached house, and that they would not move to Chicago, because Unit 3701 “would

be a considerable downsizing.” Fry explained that Unit 3701 is about “700-or-so square feet,” and

plaintiffs own “too many square feet of possessions and equipment.” It “would be impractical” for

them to live in the Chicago unit as a single residence.

¶ 43 Fry testified to his understanding that the building rules provided that “smoking is

permitted both within the walls of the condo and within the perimeter of the balcony” so long as it

did not cause a nuisance or unreasonable disturbance. Fry testified that he never saw Dress

smoking. He had a “faint” recollection of Carey “describ[ing] [Dress] and her sister on the

balcony,” but he testified that “the smoking was not a concern then.” Fry testified that he could

not “explain why” smoking was not a concern previously. He believed, however, that the building

underwent heating and ventilation work in 2015, which “exacerbated problems” of smoke

infiltration into their unit.

¶ 44 Fry stated that when they were visiting the Chicago unit, he would smell smoke in the unit

every few days, and would smell tobacco and marijuana in the hallway. When asked whether there

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were any particular occasions that were “usual or unacceptable,” Fry responded “[i]t doesn’t take

much to make [smoking] unacceptable as far as I’m concerned.”

¶ 45 Fry testified that he would smell smoke mostly in the kitchen and cabinets of his unit. From

2019 to 2020, Fry saw people throwing “roaches” off of Dress’s balcony, as well as smoking

marijuana and cigarettes on the balcony. Fry described two specific times when he saw people

smoking marijuana on the balcony, and asserted that he saw this activity on Dress’s balcony five

to seven other times, at “all sorts of times.”

¶ 46 Fry acknowledged that they had previously had three security cameras on their balcony.

Two of the cameras had stopped working, and Fry “moved the last of the functioning equipment

so that it’s primarily over in the direction of Helen Dress’s unit” because the “apparent [smoking]

problem from Dress’s unit was not a problem from the balcony on the right.”

¶ 47 Fry believed that there may have been an email in which The Habitat Company proposed

purchasing a charcoal filter for plaintiffs to use in their Unit. Fry asserted, however, his belief that

a filter should “be applied at the source of the pollution, not in our unit, for example.”

¶ 48 Fry further testified that plaintiffs had engaged James Repace to investigate and test their

unit, and that Fry purchased and placed air monitors in the unit for Mr. Repace’s analysis. Fry also

testified that he asked personnel from Titan Security, the company who provides security services

for the building, to visit the unit between six to eight times. When asked about the details of those

events, and whether those personnel had smelled smoke, Fry deferred to his wife, saying she

“would be better at answering” the questions. Fry explained that he never personally heard any

personnel from Titan Security say that they smelled smoke, because they often visited “in the

middle of the night and [Fry] just sort of hid under the covers.” Fry never received a report from

Titan Security. Additionally, Fry stated that “Public Health and Safety” had suggested an

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“advanced indoor air quality evaluation,” but that plaintiffs did not have that evaluation performed

because it was estimated to cost between $1,000 and $5,000.

¶ 49 In Dress’s responses to plaintiffs’ discovery requests, she stated that, prior to quitting in

2013, she occasionally smoked tobacco in her unit or on her balcony. Dress stated that she has

never smoked marijuana in her unit. She also stated that the only person who has stayed with her

who smoked tobacco is her sister, who visits Dress around once per year, living in Dress’s unit for

“a little over a month.” During these visits, her sister “periodically” smokes tobacco on her

balcony, but no one had ever smoked marijuana in her unit.

¶ 50 During her deposition, Dress stated that, whenever there was an overnight guest in her unit,

she was also present in the unit. Dress stated that, in 2018, she was ill and her friend’s son, William,

stayed with her for almost an entire school year. Dress confirmed that two photographs shown to

her depicted William on her balcony. She agreed that it looked like he was smoking a cigarette,

and that he had a key to her unit and permission to come to her unit at any time. In one other

photograph, Dress identified William’s brother, James, on the balcony. Dress believed that it

looked like he was vaping. Five photographs, most or all of which are timestamped “snapshots”

from plaintiffs’ security camera, and which appear to depict individuals smoking on a balcony, are

included in the record on appeal.

¶ 51 Along with the summary judgment motions, both the Association and Dress filed separate

motions to strike certain evidence. Specifically, in plaintiffs’ motion for summary judgment, they

referenced and attached a report by James Repace of Repace Associates, dated February 1, 2017.

Carey stated in an affidavit that she had retained Repace Associates “to provide passive nicotine

monitors to assess the secondhand smoke concentration in the Unit.” Plaintiffs also attached an

August 10, 2018, email from James Repace, stating “your results are still positive for nicotine,”

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showing a purported nicotine level of 0.0001 “ug.” The Association and Dress also sought to strike

certain photographs, plaintiffs’ lay opinion testimony, consultants’ invoices, evidence relative to

Titan Security, and a letter drafted by plaintiffs’ former attorney.

¶ 52 In the Association’s and Dress’s motions to strike, they explained that plaintiffs had made

an oral motion to extend the discovery deadline to disclose expert witnesses, which had been

denied. Despite the court’s denial, plaintiffs purported to rely on the attached expert reports and

opinions in support of their summary judgment motion. The Association and Dress asserted that

they had not had the opportunity to depose plaintiffs’ purported experts, because plaintiffs failed

to comply with this Court’s order and with Rule 213(f), and plaintiffs had not indicated that they

would be relying on these purported experts’ opinions or testimony at trial. The Association and

Dress argued that they would be severely prejudiced if plaintiffs were allowed to rely on the

purported experts’ opinions, since the deadline for deposing them has passed. Alternatively, the

Association and Dress asserted that the reports were otherwise inadmissible.

¶ 53 In its response to the motions to strike, plaintiffs asserted that they were not required to

disclose the authors of the reports as expert witnesses under Rule 213(f), because they were “not

offering the reports for the truth of the matters asserted,” meaning that they were “not seeking to

prove the secondhand smoke infiltration or concentration in [p]laintiffs’ unit.” Instead, plaintiffs

contended that they “attach[ed] the reports as exhibits to their affidavits to demonstrate the

extraordinary effort and expense [p]laintiffs had to endure to get the Association to take

[p]laintiffs’ complaints seriously, and to support the assertion that the Association breached its

fiduciary duty warranting summary judgment in [p]laintiffs’ favor.”

¶ 54 On September 21, 2022, the trial court held a hearing on the motions for summary

judgment, and motions to strike. The parties initially discussed the motion to strike, with plaintiffs

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again maintaining that they “should be allowed to bring that evidence, *** not for the truth of the

matter asserted in [the reports] *** [but as] circumstantial evidence *** [t]o prove breach” of the

Association’s fiduciary duty. After hearing arguments from the parties, the trial court ordered that

the “expert reports are barred as a sanction for violation of the Court’s order with respect to

discovery; and therefore, the plaintiff is barred from presenting those reports as expert opinion

testimony. To the extent that the reports can be used for some other purpose, ruling is reserved.”

¶ 55 The court then turned to the motions for summary judgment.

¶ 56 Counsel for plaintiffs argued that the “history of the communications between Phil

Pritzker” and plaintiffs made clear that the building “policies *** were not uniformly applied.”

Counsel further asserted that Pritzker gave “deference” to Dress’s claim that she did not smoke

“because he kn[ew] her” as a realtor in the building. Counsel also asserted that they had “several

examples of how the board addressed other smoking complaints,” which showed that the Board

handled their complaints differently. Counsel stated that those notices of violation indicated that

the matter was proceeding to a hearing, however, regarding plaintiffs’ complaints, the Association

“[n]ever had a hearing to address those concerns.” Counsel further argued that “Dress admitted

she smoked. She’s pointed out other people smoking on the balcony. She’s admitted that her sister

smokes when she comes over. There are ashtrays on the balcony.”

¶ 57 As to plaintiffs’ claims against Dress, the court asked counsel how it could rule in favor of

plaintiffs without a trial. Counsel for plaintiffs responded,

“Because there’s no genuine issue of material fact that *** Dress was the source of

the smoke. I mean, she can say what she wants, but she also committed perjury and

said she didn’t smoke. *** I know you can’t weigh credibility, Judge, but you can

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take the papers and you can look at the papers and see what the *** mountain of

the evidence is. It clearly establishes that she’s the source of the smoke.”

¶ 58 Counsel for the Association argued that

“by not issuing a notice of violation against Helen Dress, [the Association] was

enforcing its policies correctly and even-handedly. And in spite of the fact that it

wasn’t able to independently verify the plaintiffs’ complaints, the [A]ssociation did

take a long list of actions to try to address those complaints.

***

As far as the plaintiffs’ complaints, they were thoroughly investigated. The property

management company sent the general manager himself. They met with plaintiffs

numerous times. They sent maintenance. They sealed openings in the plaintiffs’

unit. In spite of the lack of independent verification, they took many, many steps to

address plaintiffs’ complaint[s].”

¶ 59 As to plaintiffs arguments that other complaints of smoking were handled differently,

counsel for the Association stated that there was “no evidence that these people were issued notices

of violation in the absence of any independent verification.”

¶ 60 The court then posited:

“I don’t think any jury’s going to believe Ms. Dress wasn’t smoking and smoke

was coming through the units. Now, [t]hat’s not the question really before me. The

question before me is to address whether or not the board breached the rules and

regulations of their fiduciary duty to the plaintiffs.”

¶ 61 The court then turned to counsel for Dress. Counsel first addressed the court’s observation

that the evidence showed that Dress smoked. Counsel explained that Dress “hasn’t smoked tobacco

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No. 1-23-0358

since 2013. *** She hasn't smoked since 2013 [to] the present day let alone in her unit.” Counsel

stated that she “t[ook] great umbrage with plaintiffs' counsel's characterization that his clients have

seen my client smoking.” Counsel explained that the only evidence that plaintiffs “observed” Dress

smoking involved an incident when Dress was on the balcony with her sister, who Dress

acknowledged would occasionally smoke on the balcony when she visits. Regarding plaintiffs’

testimony that Dress “has told [plaintiffs] directly that she's a smoker,” counsel noted that Carey

did not have any “recollect[ion] when [Dress] told her this.” Counsel stated that Dress “d[id] not

dispute that [she] used to be a smoker and then if plaintiff happened to ask Defendant Dress prior

in 2013 if she smoked, obviously the answer would have been yes.”

¶ 62 Counsel further argued that plaintiffs’ claims that Dress’s unit was the source of any

alleged smoke was purely speculative.

“[P]laintiffs have just sort of come to the conclusion that Defendant Dress’s unit is

the unit that this smoke is emanating from. Plaintiffs spend 80 percent of their year

in New York. They’re relying on seven still photographs they’ve taken from

security camera on their balcony of people at seven different times smoking on our

client’s balcony. They don’t have any evidence that her unit is the cause of any

smoke infiltration into their unit. *** [T]here’s nowhere in evidence or attached to

any of these motions or in any testimony tending to show which units on that floor

are smoking units and who on that floor is smoking.”

¶ 63 That same day, the court entered a written order. The court “granted in part and denied in

part” the Association’s and Dress’s motions to strike. It explained that the motions were “granted

in that Plaintiffs’ expert reports are barred from being offered for the truth of the matters asserted

as a discovery sanction. The Court reserves ruling with regard to the use of the reports for other

19
No. 1-23-0358

purposes.” The trial court then took the motions for summary judgment under advisement, for

ruling at a later date.

¶ 64 On January 25, 2023, the trial court entered an 18-page order on the parties’ respective

motions for summary judgment and motions to strike.

¶ 65 Regarding the motions to strike, the court reiterated that there was “no evidence that,

following this lawsuit being instituted, Plaintiffs ever disclosed their purported expert evidence by

the deadline originally imposed by this Court, in compliance with Rule 213(f),” and that

“Plaintiffs’ purported expert evidence is stricken.”

¶ 66 Turning to the summary judgment motions, the court initially found that the Association

owed plaintiffs a fiduciary duty to address complaints of smoke infiltration, and enforce rules

related to smoking. Plaintiffs, however, could not show that the Association breached those duties

where they failed to show that smoke was infiltrating their unit to a level that would constitute a

nuisance to an ordinary, reasonable person. The court noted that “The Rules and Regulations do

not define the term ‘unreasonable,’ ” and found that the plain meaning “suggests that the measure

of whether a smoking-related disturbance is ‘unreasonable’ is objective, rather than subjective, in

nature.”

¶ 67 The court explained that the only evidence plaintiffs offered to support their claim that

smoke was infiltrating their unit was their respective deposition testimony, in which they testified

that they smelled smoke within areas of their unit and in common areas, and that they observed

Dress and guests smoking on the balcony of Dress’s unit.

¶ 68 The court explained, however, that plaintiffs’ deposition testimony

“only shows their subjective belief that smoke is infiltrating their unit, that the

smoke is originating from Ms. Dress’s unit, and that the infiltration is of such a

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No. 1-23-0358

level so as to constitute a disturbance that is unacceptable or clearly inappropriate,

excessive, or harmful. However, Plaintiffs do not offer evidence beyond these

subjective beliefs, to support their assertions.”

¶ 69 The court noted that there was a suggestion that representatives from “Titan Security”

visited plaintiffs’ unit and smelled smoke, but plaintiffs did not have a report from the company,

identify the names of the Titan Security agents who purportedly smelled the smoke, and did not

depose said agents during discovery. The court also noted that plaintiffs had not provided “a

diagnosis from a licensed medical physician concluding that Plaintiffs experienced physical

ailments from smoke exposure.” Without anything other than plaintiffs’ subjective observations,

the court “[wa]s unable to find, as a matter of law, that smoke infiltrated their unit in violation of

Rule 42 of the Rules and Regulations,” and accordingly, the Association did not “breach their

fiduciary duties by failing to remedy the smoke infiltration ***, or to require Ms. Dress to remedy

her alleged nuisance.”

¶ 70 The court also pointed out that in their depositions, Pritzker and Dress testified about the

efforts taken by the Association to address plaintiffs’ complaints, but that the complaints were

never able to be verified. The court noted that plaintiffs did not dispute “that the Association

expressed that it was unable to verify smoke infiltration into their unit, or that an engineer

examined Ms. Dress’s unit and concluded that there was no perceived problem relating to the

alleged infiltration.” Instead, “[p]laintiffs seem to assert that the Association was unable to verify

the alleged smoke infiltration only because its efforts in investigating the infiltration were subpar.”

The court concluded, however, that plaintiffs did not present any evidence showing that the

Association “was required to investigate at a higher level than it did.”

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No. 1-23-0358

¶ 71 Finally, the court explained that plaintiffs did not provide any evidence that other

complaints were handled differently than their own. Accordingly, the court found that plaintiffs’

breach of fiduciary duties claim against the Association “fail[ed] as a matter of law” because

plaintiffs could not “show that the alleged smoke infiltration would constitute a material annoyance

to a reasonable person.”

¶ 72 Finally, the court explained that the Association had presented alternative arguments to

support summary judgment, in particular that the business judgment rule precluded liability for the

Association’s alleged conduct. However, in light of the court’s conclusions summarized above,

the court chose not to address those alternative arguments.

¶ 73 The court next addressed plaintiffs’ claim of private nuisance against Dress. The court

explained that it had “already found in relation to Count I *** [that] Plaintiffs are unable to

successfully show that smoke infiltrated their unit,” and, without additional evidence, “it remains

merely speculative whether the smoke generated by the alleged conduct” of Dress or her visitors

“was indeed the same smoke that [p]laintiffs believe infiltrated their unit.” Accordingly, the court

found “that [p]laintiffs fail, as a matter of law, to prove an invasion into their unit caused by Ms.

Dress, and their claim against her for private nuisance fails.”

¶ 74 The court similarly declined to address Dress’s alternative arguments for summary

judgment, based on her contentions that

“nuisance claims have been unsuccessful within other jurisdictions across the

country; there is no evidence that she acted intentionally, negligently, or wrongfully

to cause an invasion into [p]laintiffs’ unit; and [p]laintiffs do not show that they

have suffered a diminution in the value of their unit or of their interest in the

common areas.”

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No. 1-23-0358

¶ 75 Based on the above, the court denied plaintiffs’ motion for summary judgment, granted the

Association’s and Dress’s motions for summary judgment.

¶ 76 Plaintiffs filed a timely notice of appeal from that order.

¶ 77 In this court, plaintiffs assert that the trial court incorrectly granted summary judgment for

the Association and Dress, and that summary judgment should have been granted in their favor.

As to their breach of fiduciary duty claim, they contend that the evidence before the trial court

“firmly establishes the Association breached its fiduciary duty to [p]laintiffs.” Regarding their

private nuisance” claim against Dress, they allege that the evidence “establish[es] that smoke

infiltrated [p]laintiffs’ unit from Dress’ unit,” which “impact[ed] their health and wellbeing, and

interferes with the use and enjoyment of their unit.” Plaintiffs also contend that the trial court

improperly granted the Association’s and Dress’s motions to strike.

¶ 78 We first address the trial court’s order striking the purported expert evidence. In particular,

plaintiffs sought to rely on expert reports from “Public Health & Safety” and Repace Associates,

and an email from James Repace containing purported expert opinions.

¶ 79 The decision of whether to admit or exclude evidence, including whether to allow an expert

to present certain opinions, rests solely within the discretion of the trial court and will not be

disturbed absent a demonstrated abuse of discretion. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 36–

37 (2010). Moreover, “[a] trial court’s decision whether to allow evidence that was not disclosed

during pretrial discovery or whether to impose a discovery sanction” is also reviewed for an abuse

of discretion. Morrow v. Pappas, 2017 IL App (3d) 160393, ¶ 27. An abuse of discretion occurs

only if no reasonable person would take the view adopted by the trial court. Foley v. Fletcher, 361

Ill. App. 3d 39, 46 (2005).

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No. 1-23-0358

¶ 80 Initially, we note that in the circuit court, plaintiffs maintained that it did not intend to rely

on the proposed evidence “for the truth of the matter asserted,” and instead, that the report and the

attorney letter were admissible to show the “effort and expense Plaintiffs had to endure to get the

Association to take Plaintiffs’ complaints seriously.” Again, in this court, plaintiffs contend that

they did not “ask[ ] the circuit court to accept the facts set forth in those documents, but instead to

take notice of *** them as an effort by Plaintiffs to prompt the Association to take their complaints

seriously and issue Notices of Violation and conduct a hearing in the proper exercise of its

fiduciary duty.” They clarify that they “are not seeking to prove the secondhand smoke infiltration

or concentration in [p]laintiffs’ unit,” and contend that they do not intend to use the report “for the

truth of the matter,” i.e., to substantiate the existence of smoke in their unit. Instead, they assert

that they rely on such evidence “to show the information the Association had and ignored.”

¶ 81 First, plaintiffs provide no authority for their argument that they can seek the introduction

of expert opinions—without having disclosed the authors of those opinions as expert witnesses—

because they are not using the reports “for the truth of the matter.” Absent any reasoned argument

and citation to relevant authority, we could conclude that plaintiffs have forfeited this claim. Ill.

Sup. Cr. R. 341(h)(7) (eff. Oct. 1, 2020) (providing that briefs must contain “Argument, which

shall contain the contentions of the appellant and the reasons therefor, with citation of the

authorities and the pages of the record relied on.”); Bank of America, N.A. v. Kulesza, 2014 IL App

(1st) 132075, ¶ 18 (“It is well settled that a contention that is supported by some argument but does

not cite any authority does not satisfy the requirements of Supreme Court Rule 341(h)(7), and bare

contentions that fail to cite any authority do not merit consideration on appeal.”).

¶ 82 Moreover, while claiming they are not relying on the reports for their truth, plaintiffs assert

that the report provides evidence of “a snapshot in time of the conditions in [p]laintiffs’ unit,” and

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No. 1-23-0358

they describe that report as showing, among other things, Mr. Repace’s conclusions “ ‘within a

reasonable degree of scientific certainty,’ that ‘secondhand smoke is present in [plaintiffs’]

apartment;’ [and] that [plaintiffs] are ‘exposed’ to secondhand smoke ‘during their neighbor’s

smoking.’ ” Plaintiffs’ arguments are also unavailing because they presuppose that the report’s

contents are true—that smoke existed in the Unit and in an amount that the Association was

required to provide even more substantial remediation than was done.

¶ 83 Nevertheless, the court’s order of September 21, 2022, essentially tracked plaintiffs’

argument, granting the motions to strike and barring the expert report “from being offered for the

truth of the matters asserted as a discovery sanction.” The circuit court, however, “reserve[d] ruling

with regard to the use of the reports for other purposes.” Having asserted, in the trial court and in

this court, that they did not intend to rely on the reports and expert opinions for their truth, plaintiffs

cannot be heard to complain when the trial court barred them from being used for that purpose.

¶ 84 We acknowledge, however, that in the trial court’s later order filed January 25, 2023, it

reiterated its holding that “[p]laintiffs’ purported expert evidence is stricken,” this time without

providing language limiting the decision to plaintiffs’ use of the reports “for the truth of the

matter.” Based on this court’s review of the record, it is unclear whether the court’s January 2023

order striking the expert reports was still subject to the same limitations set forth in the prior order,

or whether the order indicated the trial court’s revised decision to strike the reports for all purposes.

Nonetheless, even if the court’s order granted the Association’s and Dress’s motions to strike the

purported evidence for all purposes, we find no abuse of discretion in the trial court’s decision.

¶ 85 Pursuant to Rule 213(f), “Upon written interrogatory, a party must furnish the identities

and addresses of witnesses who will testify at trial.” When that witness is a controlled expert

witness, the party must identify: “(i) the subject matter on which the witness will testify; (ii) the

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No. 1-23-0358

conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the

witness; and (iv) any reports prepared by the witness about the case.” Ill. Sup. Ct. R. 213(f)(3).

Pursuant to Rule 213(g), “[t]he information disclosed in answer to a Rule 213(f) interrogatory, or

in a discovery deposition, limits the testimony that can be given by a witness on direct examination

at trial.” Ill. Sup. Ct. R. 213(g).

¶ 86 The purpose of discovery rules governing the timely disclosure of expert witnesses, “is to

avoid surprise and to discourage strategic gamesmanship” among the parties. (Internal quotation

marks omitted) Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 92. Accordingly, “Rule

213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Tirado,

2019 IL App (1st) 181705, ¶ 48. “[I]f an opinion is important to the theory of one’s case, it is

essential that it and the bases [for it] be disclosed.” Id. ¶ 49. “Disclosure of a retained expert

witness’ opinions and the basis for that opinion is a bright line rule and must be followed.” (Internal

quotation marks omitted.) Morrisroe v. Pantano, 2016 IL App (1st) 143605, ¶ 44. Kubicheck v.

Traina, 2013 IL App (3d) 110157, ¶ 39 (“The discovery rules impose enforceable obligations upon

the parties, including a duty to disclose relevant and discoverable information relating to their

controlled expert witnesses. [Citation.] The failure to make such disclosures in a timely and

complete fashion justifies sanctions against the parties, even if the failure is the result of actions

taken or not taken by the controlled witnesses themselves.”); see also Clayton v. County of Cook,

346 Ill. App. 3d 367, 378 (2003) (“To allow either side to ignore the plain language of Rule 213

defeats its purpose and encourages tactical gamesmanship.”)

¶ 87 “Where a party fails to comply with the provisions of Rule 213, a court should not hesitate

sanctioning the party, as Rule 213 demands strict compliance.” Sullivan v. Edward Hospital, 209

Ill. 2d 100, 110 (2004). “In determining whether the exclusion of a witness is a proper sanction for

26
No. 1-23-0358

nondisclosure, a court must consider the following factors: (1) the surprise to the adverse party;

(2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the

adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling

the witness.” Id.

¶ 88 In their appellate brief, plaintiffs briefly contend that they did in fact provide a discovery

response “follow[ing] the letter of Rule 213(f) and identify[ing] Repace as an expert and detail[ing]

the conclusions he arrived at ‘to a reasonable degree of scientific certainty.’ ” Plaintiffs, however,

provide no citation to the record for this discovery response. Based on our review of the record,

we have found no document in which plaintiffs answered Rule 213(f) interrogatories, or otherwise

disclosed the identities of any expert witnesses, the testimony they expected to elicit, or the basis

for any opinion testimony.

¶ 89 Plaintiffs’ contention that they did respond is also contrary to their statements at the

hearing on the motions to strike. When asked by the court why they did not comply with the

discovery order requiring them to disclose controlled expert witnesses, plaintiffs responded that it

was “an oversight, “ and “at the time, to be honest, [plaintiffs] were uncertain [as to whether they]

were going to identify experts *** and what those experts would say.”

¶ 90 Although plaintiffs had produced a copy of the Repace Associates report during fact

discovery, they never disclosed that they would rely on the opinions in the report at trial, or that

they would call anyone from Repace Associates to offer fact or opinion testimony. Accordingly,

the Association and Dress contend that they were surprised by plaintiffs’ reliance on the purported

expert reports, since plaintiffs had allowed the trial court’s deadline to disclose expert witnesses

to pass without any disclosure. And based on plaintiffs’ nondisclosure, the Association and Dress

did not depose any representatives of Repace Associates. In such circumstances, the Association

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No. 1-23-0358

and Dress would be prejudiced in their ability to contest the reports, because the authors of these

reports were never disclosed or made available for depositions in compliance with the court’s

order.

¶ 91 The record also shows that the Association and Dress promptly objected to the introduction

of this evidence as exhibits to their motion for summary judgment.

¶ 92 Finally, regarding plaintiffs’ diligence and good faith, plaintiffs have provided no

explanation, in either the trial court or this court, for their failure to disclose the expert opinions,

other than it being “an oversight.” And as noted above, the record shows that, two weeks after the

deadline passed, plaintiffs apparently made an oral motion to extend the deadline for witness

disclosures. That motion was denied in a May 12, 2022, order, almost five years after this case

was initially filed, and plaintiffs do not challenge that order on appeal. Moreover, because the

motion was made orally at the hearing, and no transcript of that hearing is included in the record

on appeal, this court does not know what arguments were presented to the trial court in favor of,

or against, extending the deadline for expert witness disclosures, or the basis of its ruling.

Accordingly, absent a record on which to review that order we “presume[ ] that the order entered

by the trial court” denying plaintiffs’ request to extend the deadline for expert witness disclosures

was “in conformity with law and had a sufficient factual basis.” Foutch, 99 Ill. 2d at 392. Where,

as here, the trial court already heard, and denied, plaintiffs’ request to extend the discovery

deadlines, on a basis which we presume to be sufficient and proper (id.,) such circumstances also

weigh in favor of the trial court’s later decision to bar that evidence.

¶ 93 Finally, plaintiffs apparently argue that the court’s consideration of the Association and

Dress’s motions to strike was premature, alleging that Rule 213(g) does not apply at the summary

judgment stage, and it only limits expert opinions at trial. It is clear, however, that “[e]vidence that

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would be inadmissible at trial is not admissible in support of or in opposition to a motion for

summary judgment.” Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 394

Ill. App. 3d 105, 108 (2009). Accordingly, it was proper for the trial court to consider whether the

purported expert reports were admissible when considering whether summary judgment was

appropriate. Id.

¶ 94 Based on the record, we find no abuse of discretion in the trial court’s decision to bar the

expert opinions on which plaintiffs proposed to rely, for plaintiffs’ failure to disclose them. In light

of that conclusion, we need not consider the alternative arguments posed by the Association and

Dress regarding why the evidence was otherwise inadmissible.

¶ 95 We now turn to the parties’ respective motions for summary judgment.

¶ 96 Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West

2018). To determine whether there is a genuine issue of material fact, we construe the pleadings,

depositions, admissions, and affidavits strictly against the moving party and liberally in favor of

the opponent. MEP Construction, LLC v. Truco MP, LLC, 2019 IL App (1st) 180539, ¶ 12 (citing

Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 131-32 (1992)). If

reasonable people would draw divergent inferences from undisputed facts, summary judgment is

inappropriate. Id. (citing Williams v. Manchester, 228 Ill. 2d 404, 417 (2008)). The purpose of

summary judgment is not to try an issue of fact, but rather to determine whether a triable issue of

fact exists. Robidoux v. Oliphant, 201 Ill.2d 324, 335 (2002).

¶ 97 “A defendant moving for summary judgment may meet its initial burden of proof by

affirmatively showing that some element of the case must be resolved in his favor or by

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No. 1-23-0358

establishing that there is an absence of evidence to support the nonmoving party’s case.”

Freedberg v. Ohio Nat. Ins. Co., 2012 IL App (1st) 110938, ¶ 25. “Although a plaintiff is not

required to prove his case at the summary judgment stage, in order to survive a motion for summary

judgment, the nonmoving party must present a factual basis that would arguably entitle the party

to a judgment.” Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002). Put differently, “[i]f the plaintiff

fails to establish any element of the cause of action, summary judgment for the defendant is

appropriate.” Lewis, 2020 IL 124107, ¶ 15.

¶ 98 We review the granting of summary judgment de novo, meaning we perform the same

analysis that the circuit court performed. Outboard Marine, 154 Ill. 2d at 102; Bowman v. Chicago

Park District, 2014 IL App (1st) 132122, ¶ 45. Finally, we review the judgment, not the reasoning,

of the circuit court, and we may affirm on any grounds in the record, regardless of whether the

court relied on those grounds or whether its reasoning was correct. Leonardi v. Loyola University

of Chicago, 168 Ill. 2d 83, 97 (1995).

¶ 99 Where, like here, the parties file cross-motions for summary judgment, they agree that no

material questions of fact existed and they invite the court to decide the issue based on the record.

Pielet v. Pielet, 2012 IL 112064, ¶ 28. Nonetheless, the mere filing of cross-motions for summary

judgment does not conclusively establish that there is no issue of material fact, nor is the circuit

court obligated to enter summary judgment for either party. Id.

¶ 100 Plaintiffs first contend that the trial court erred in granting summary judgment in favor of

the Association on their breach of fiduciary duty claim.

¶ 101 As an initial matter, plaintiffs briefly contend in their appellate briefs that this court should

strike the deposition testimonies of Pritzker and Dress. They claim that “Pritzker’s testimony

generally” should be stricken because his claims that he could not independently verify plaintiffs’

30
No. 1-23-0358

complaints were “made without any supportive evidence.” And similarly, they assert that “Dress

only offers self-serving and conclusory deposition testimony” which should not be considered.”

Plaintiffs did not ask the trial court to strike their deposition testimony, and they provide no

authority which would allow this court to do so. Accordingly, plaintiffs’ argument is waived. Jones

v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 306 (2000) (“Issues raised for the first time on

appeal are waived.”).

¶ 102 To state a cause of action for a breach of fiduciary duty, a plaintiff must allege (1) a

fiduciary duty on the part of the defendant, (2) a breach of that duty, (3) damages, and (4) a

proximate cause between the breach and the damages. Feliciano v. Geneva Terrace Estates

Homeowners Ass'n, 2014 IL App (1st) 130269, ¶ 35; Tully v. McLean, 409 Ill. App. 3d 659, 681

(2011) (“To recover for breach of a fiduciary duty, a plaintiff must prove that a fiduciary duty

exists, that the fiduciary duty was breached, and that the breach proximately caused the injury of

which the plaintiff complains.”).

¶ 103 The Condominium Property Act (765 ILCS 605/1 et seq. (West 2014)) regulates the

operation of condominium associations (Palm v. 2800 Lake Shore Drive Condominium Ass'n, 2014

IL App (1st) 111290, ¶ 51) and provides that individual members of the board of a condominium

association owe a fiduciary duty to the unit owners ((765 ILCS 605/18.4 (West 2014); Wolinsky

v. Kadison, 114 Ill. App. 3d 527, 533 (1983)). A condominium association may enact and amend

rules and regulations covering the details of the operation and use of the property, and such rules

must be objective, evenhanded, nondiscriminatory, and applied uniformly. Board of Directors of

175 East Delaware Place Homeowners Ass’n v. Hinojosa, 287 Ill. App. 3d 886, 890-91 (1997)

(citing 765 ILCS 605/18.4(h) (West 1994)). In performing their duties, “the officers and members

of the board *** shall exercise the care required of a fiduciary of the unit owners.” (765 ILCS

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605/18.4 (West 2014).; Palm, 2014 IL App (1st) 111290, ¶ 94. The Board and its members must

“act in a manner reasonably related to the exercise of that duty, and the failure to do so will result

in liability for the board and its individual members.” Palm, 2014 IL App (1st) 111290, ¶ 111.

¶ 104 In this case, the plaintiffs claim, and the Association does not dispute, that it owed a

fiduciary duty to the plaintiffs. What is in dispute, however, is whether defendants breached that

duty.

¶ 105 As stated above, section 42 of the building’s Rules and Regulations provide that “Smoking

is permitted only in [u]nits, and only if it does not create a nuisance or unreasonable disturbance

to others.” Plaintiffs assert that the Association breached their fiduciary duty to adequately

investigate and uniformly enforce that Rule, based on their complaints that Dress had violated it.

¶ 106 Plaintiffs’ claim requires us to construe the language of section 42. “The construction of a

contract is a question of law for the trial judge and is suitable for summary judgment.” Omnitrus

Merging Corp. v. Illinois Tool Works, Inc., 256 Ill. App. 3d 31, 34 (1993). In contract construction,

the primary objective is to give effect to the intentions of the parties. Thompson v. Gordon, 241

Ill. 2d 428, 441 (2011). “[A] contract must be construed as a whole, viewing each part in light of

the others.” Gallagher v. Lenart, 226 Ill. 2d 208, 233 (2007). “If the words in the contract are clear

and unambiguous, they must be given their plain, ordinary and popular meaning.” Thompson, 241

Ill. 2d at 441.

¶ 107 Here, plaintiffs appear to argue only that the alleged smoke infiltration created an

“unreasonable disturbance,” contending that they are “not required to meet the legal definition of

nuisance,” because the rule applies to both.

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No. 1-23-0358

¶ 108 The Rules and Regulations do not define the term “unreasonable.” When a contract term

is not defined, a court will “afford that term its plain, ordinary and popular meaning, i.e., we look

to its dictionary definition.” Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 436 (2010).

¶ 109 Merriam-Webster Dictionary defines unreasonable as “beyond what can be accepted” and

“clearly inappropriate, excessive, or harmful in degree or kind.” Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/unreasonable (last visited Mar. 20,

2024). Applying the definitions to the Rule at issue indicates that the Rule permits smoking, as

long as it does not cause an “unacceptable” disturbance, or a disturbance which is “clearly

inappropriate, excessive, or harmful.” The trial court found, and we agree, that this interpretation

suggests that the measure of whether a smoking related disturbance is unreasonable is objective,

rather than subjective, in nature. See also Zurich Insurance Co. v. Walsh Construction Co. of

Illinois, 352 Ill. App. 3d 504, 509 (2004) (“Reasonableness is an objective standard”); Aetna

Casualty & Surety Co. v. Dichtl, 78 Ill. App. 3d 9706 (1979) (“In short an objective standard is

governed by reasonableness; a subjective standard is governed by the actor’s actual objective.”).

¶ 110 Plaintiffs acknowledge that, “[u]ndeniably, [their] reports arise from a personal, subjective

view of the impact smoke infiltration has on their health, well-being and ability to enjoy their unit.”

They contend, however, that there was objective evidence of unreasonableness because “Dress

admitted she and others smoked in her unit and on the balcony,” and they contend that her claim

to have quit smoking in 2013 is “perjured.”

¶ 111 Initially, plaintiff’s argument mischaracterizes the evidence that was before the trial court.

Dress maintained that she had quit smoking in 2013, and that she did not smoke in her unit at any

point during the relevant time period of 2015 and after. Dress testified that she occasionally had

visitors who smoked on her balcony, but that no one had smoked within Dress’s unit.

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No. 1-23-0358

¶ 112 In Carey’s deposition, she asserted that Dress admitted that she smoked, but Carey did not

have any memory of when that conversation happened. Plaintiffs also testified to certain occasions

in which they saw visitors smoke on Dress’s balcony, however, they never saw Dress, or anyone

else, smoking inside Dress’s unit. Carey testified that she believed she saw Dress smoking once,

on her balcony, when her sister was visiting, but admitted that she did not see a cigarette in Dress’s

hand. She believed that Dress was sharing a cigarette with her sister, because Carey could “see

some hand gesture back and forth” and she could “see some smoke.”

¶ 113 Carey’s vague observations do not rebut Dress’s unambiguous testimony that she did not

smoke in the relevant period. Without any timeframe for Dress’s purported admission, it is possible

that the conversation occurred in, or prior to, 2013, when Dress admits that she smoked. And the

circumstances of Carey’s observations of Dress and her sister on Dress’s balcony make clear that

Carey’s characterization of Dress as “smoking,” was mere speculation.

¶ 114 Plaintiffs, however, fault the court for “revers[ing] the course it took at oral argument,”

when it later ruled against them. Plaintiffs point to one comment from the court that it “d[id]n’t

think any jury’s going to believe Ms. Dress wasn’t smoking and smoke was coming through the

units.” Plaintiff’s reliance on one isolated comment of the trial court as it considered the parties

motions is not well-taken. Indeed, the court later explained to the parties that they should not read

too much into comments made during the hearing, saying

“these are questions that may sound like I’m making statements. These are

questions as I work through I have not made a determination one way or the other

on any of this, so don’t be surprised if then you get the rule and it’s totally different.

This is how I ask questions and try to flush out the argument.”

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¶ 115 Our review of the record reveals that after the court’s comment, counsel for Dress

explained to the court the lack of evidence that Dress had smoked. And the trial court’s subsequent

written order clarifies its finding that there was no evidence showing that the smoke that plaintiffs

claimed infiltrated their unit had originated from Dress’s unit, or that the “infiltration is of such a

level so as to constitute a disturbance that is unacceptable or clearly inappropriate, excessive, or

harmful.”

¶ 116 Nonetheless, the question is not whether Dress or her visitors smoked, or whether any

amount of smoke, no matter how small, infiltrated into plaintiffs’ unit. While the record

undoubtably shows some instances during which visitors to Dress’s unit smoked on her balcony,

such evidence is not sufficient to show that such smoking was unreasonable. The Rules and

Regulations provide that smoking is permitted in units of the building, and it is only prohibited if

it creates “a nuisance or unreasonable disturbance to others.” Such a policy cannot be read to

prohibit any and all smoking in Units. Accordingly, the evidence that plaintiffs saw Dress’s visitors

smoking, or the handful of photographs submitted purporting to be visitors smoking on Dress’s

balcony over the course of several years, does not establish that such smoking created a nuisance

or an unreasonable disturbance so that the Association could be required to take further actions on

plaintiffs’ complaints.

¶ 117 The record shows that plaintiffs have a strong subjective aversion to any amount of smoke,

and would prefer to live in a smoke-free building. Carey took issue with the Association’s efforts

to investigate transitioning to a smoke-free building, and as Fry stated, “[i]t doesn’t take much to

make [smoking] unacceptable as far as I’m concerned.” In plaintiffs’ reply brief in this appeal,

they take issue with the Association’s failure to conduct a follow-up survey, when not enough

residents responded to justify a change in building policies.

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¶ 118 While we sympathize with Carey’s health history and her desire to effect changes to the

building policies, that fact remains that she and her husband own a Unit in a building which permits

smoking. Plaintiffs’ subjective belief that they should not be required to tolerate any amount of

smoking in a multi-unit building which specifically permits it, does not make any amount of smoke

objectively unreasonable.

¶ 119 Plaintiffs additionally contend that the evidence shows that the Association “failed to

thoroughly investigate Plaintiffs’ complaints.” Plaintiffs also assert that the record shows that the

Association “handled other smoking complaints far more thoroughly, and impartially, than

[p]laintiffs’ complaints.” We disagree, and find no evidence to support such conclusions.

¶ 120 Despite plaintiffs’ displeasure with the outcome of the Association’s investigation, the

record shows that the Association undertook significant efforts to investigate and address

plaintiffs’ complaints. Pritzker met with the unit owners on both sides of plaintiffs’ unit, arranged

for inspections, and had maintenance workers seal open areas around the pipes. That remediation

work was completed in plaintiffs’ unit, and in Unit 3711. In Dress’s unit, the work was either

completed, or determined to be unnecessary. Pritzker and others at the Association met and

communicated with plaintiffs several times to hear their complaints. Carey at least initially

believed those efforts to be satisfactory, sending emails thanking them for their “effort and time

regarding the smoke issues,” and their “consistent attention, ongoing dialogue, and relational

effort.” After plaintiffs’ complaints persisted, the Association sent a letter to residents requesting

that smokers use air purifiers to try to mitigate the smell, reached out to another association to

learn about the process of becoming a smoke-free building, and sent a survey to all building

residents to solicit interest in changing the rule to ban smoking in the units altogether.

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¶ 121 Those “notices of violation” that plaintiffs rely on to argue that their complaints were

handled differently do not indicate that they were sent without verification of the allegations.

Plaintiffs seem to suggest that any and all grievances they made should have been immediately

taken as true and proceeded to a hearing without the need for any verification. However, had the

Association proceeded as plaintiffs request and issued Dress a Notice of Violation without

independent verification, the Association would have been violating its own policies, possibly

breaching its duty to Dress to uniformly enforce any alleged violations against her.

¶ 122 Particularly in light of the above significant efforts, the evidence in the record supports the

conclusion that the Association acted in a manner reasonably related to the exercise of their

fiduciary duty, and there is no evidence to support plaintiffs’ claim that the Association breached

a duty to plaintiffs to investigate their claims of smoke infiltration.

¶ 123 Because there is no evidence that would show that the Association breached its fiduciary

duty to plaintiffs, summary judgment for the Association was proper. See Lewis, 2020 IL 124107,

¶ 15. Accordingly, we need not analyze whether there was sufficient evidence to show damages

or proximate cause, or whether any of the Association’s additional arguments support the trial

court’s summary judgment, including whether the business judgment rule precludes any liability

for the Association.

¶ 124 We next turn to plaintiffs’ claim for private nuisance against Dress.

¶ 125 “A private nuisance is the substantial invasion of a person’s interest in the use and

enjoyment of his property.” Whipple v. Village of North Utica, 2017 IL App (3d) 150547, ¶ 45.

The invasion must be unreasonable and either intentional or negligent. Id. Whether particular

conduct constitutes a nuisance is determined by the conduct’s effect on a reasonable person (In re

Chicago Flood Litigation, 176 Ill. 2d 179, 204 (1997)) and does not take into account any special

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sensitivities the complaining landowner may have. (Carroll v. Hurst, 103 Ill. App. 3d 984, 990

(1982)). See also Statler v. Catalano, 167 Ill. App. 3d 397, 403 (1988) (“The standard for

determining if particular conduct is unreasonable is determined by the effect it would have on a

normal person of ordinary habits and sensibilities.”); Schweihs v. Chase Home Finance, LLC, 2015

IL App (1st) 140683, ¶ 42, aff’d, 2016 IL 120041, ¶ 42 (“[T]he crux of the tort of private nuisance

is to remedy wrongful behavior that substantially interferes with the use and enjoyment of one’s

property. *** [Plaintiff’s] argument not only distorts the meaning of a private nuisance, but equates

any singular de minimis encroachment or trespass into a private nuisance.” (Emphasis original.));

Gardner v. Int’l Shoe Co., 386 Ill. 418, 427 (1944) (“In determining the question of a nuisance,

the question of time, location, and all the circumstances should be taken into consideration. The

general rule is that people who live in cities must submit to the annoyance of city life, where smells

and odors are complained of as nuisances.”)

¶ 126 This court has found no Illinois case in which a court has considered whether a private

nuisance claim is cognizable where smoke emanates from a neighbor’s unit in a building where

smoking is permitted. Although we need not address this question to resolve this appeal, we note

that courts in other jurisdictions have concluded that, generally, such conduct is insufficient to

provide a basis for a claim of private nuisance. Ewen v. Maccherone, 927 N.Y.S.2d 274, 277 (App.

Term 2011) (“the law of private nuisance would be stretched beyond its breaking point if we were

to allow a means of recovering damages when a neighbor merely smokes inside his or her own

apartment in a multiple dwelling building. *** To the extent odors emanating from a smoker’s

apartment may generally be considered annoying and uncomfortable to reasonable or ordinary

persons, they are but one of the annoyances one must endure in a multiple dwelling building.”);

Schuman v. Greenbelt Homes, Inc., 212 Md.App. 451, 69 A.3d 512, 520 (2013) (“Because

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[cooperative housing association]’s members were allowed to smoke at the time the contracts were

signed (and still are), the mere act of smoking in one’s unit or on one’s patio is unlikely to be

substantially and unreasonably offensive to any person at any time.”); Nuncio v. Rock Knoll

Townhome Vill., Inc., 389 P.3d 370, 375 (2016) (concluding that there was no authority, and

plaintiff could “show no set of facts entitling him to relief on his claims” that his condo building

was “liable for smoke migrating from the [neighbor’s] private home into the common areas, [and]

into [plaintiff’s] outdoor patio area, or *** open windows.”)

¶ 127 Nonetheless, because we concluded above that the record does not contain any evidence

that smoke infiltrated plaintiffs’ unit at a level that could be found to be unreasonable, plaintiffs’

claim for private nuisance necessarily fails as well. Whipple, 2017 IL App (3d) 150547, ¶ 45 (to

constitute a nuisance, the invasion must be unreasonable).

¶ 128 Moreover, although plaintiffs speculate that the smoke in their unit emanated from inside

Dress’s unit, speculation is not sufficient to defeat a motion for summary judgment. Outboard

Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 132 (1992) (“unsupported

conclusions, opinions, or speculation are insufficient to raise a genuine issue of material fact”).

Plaintiffs presented no competent evidence, from an expert or otherwise, that it was probable that

the source of the smoke infiltrating their unit was caused by Dress or her visitors smoking within

her unit. See Majetich v. P.T. Ferro Construction Co., 389 Ill. App. 3d 220, 225 (2009) (“If

plaintiff relies upon circumstantial evidence to establish proximate cause to defeat a motion for

summary judgment, the circumstantial evidence must be of such a nature and so related as to make

the conclusion more probable as opposed to merely possible.”). It is axiomatic that mere

guesswork or speculation is insufficient to create a genuine issue of material fact to survive a

motion for summary judgment. Judge-Zeit v. General Parking Corp., 376 Ill. App. 3d 573, 584

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(2007) (citing Tzakis, 356 Ill. App. 3d at 747); Sorce, 309 Ill. App. 3d at 328. The only evidence

in the record, other than plaintiffs’ mere speculation, supports the conclusion that no smoking

occurred in Dress’s unit during the relevant time period. Dress testified that she did not smoke in

her unit, and that her visitors did not smoke in her unit. And, as explained above, plaintiffs’ vague

observations and speculation of what was happening inside Dress’s unit was insufficient to rebut

Dress’s testimony. Without any evidence, other than plaintiffs’ mere speculation, that smoke was

emanating from Dress’s unit, summary judgment for Dress was proper.

¶ 129 The only evidence of smoking in the record indicates that visitors to Dress’s unit

occasionally smoked on her balcony. However, even if were to assume that some amount of smoke

infiltrated plaintiffs’ unit during those occasions, the evidence before the trial court showed

approximately one incident of smoking every two months—the alleged offending conduct

occurred over approximately seven years, and plaintiffs testified that they saw smoking on Dress’s

balcony approximately 35 times (Carey testified she saw people smoking on Dress’s balcony at

least 25 times, and Fry testified that he saw people smoking on Dress’s balcony on 7 to 9

occasions). And despite admittedly setting up a security camera aimed at Dress’s balcony, the

record contains five photographs over the course of those seven years which purport to show

someone smoking. In these circumstances, and because the building specifically permits smoking

in units, we can find no evidence that Dress engaged in any “wrongful behavior” which

“substantially interfere[d] with the use and enjoyment of [plaintiffs’] property. Schweihs, LLC,

2015 IL App (1st) 140683, ¶ 42. Accordingly, summary judgment for Dress was properly granted.

¶ 130 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 131 Affirmed.

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