Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago
312-588-5000 | Email Kenneth Michaels, Jr.
From Bathroom Remodel to Appellate Dismissal: Lessons on Fiduciary Duty and Due Process Claims
The Appellate Court for the First District recently issued an opinion worth reviewing insofar as it presents a good overview of Illinois law pertaining to claims for breach of fiduciary duty and, to some extent, claims for breach of procedural due process.
Facts
In Getman v. McPike, 2025 IL App (1st) 250771-U, ¶4, plaintiff unit owner Marot Getman was given permission by her condominium association board of directors to remodel one of the bathrooms in her unit. After her contractor began demolition work, the association learned that Getman had failed to obtain a building permit for the remodeling project. Id. The approval to proceed with work was never finalized at a board meeting because the board learned that no permit had been obtained. Id. The manager notified Getman’s contractor to cease work until a permit was obtained and work was approved to resume. Id.
Getman filed a small claims action against the directors of the association, but not the association itself. 2025 IL App (1st) 250771-U at ¶5. After the initial complaint was dismissed, an amended complaint was filed sounding in breach of fiduciary duty, violation of due process, and promissory estoppel. Id. The plaintiff’s counts sounding in breach of fiduciary duty and violation of due process were dismissed pursuant to the defendants’ motion under §2-615 of the Code of Civil Procedure, 735 ILCS 5/2-615. 2025 IL App (1st) 250771-U at ¶6. A bench trial was held on the promissory estoppel count, and judgment was entered against Getman for failing to meet her burden of proof and presenting no evidence of damages. 2025 IL App (1st) 250771-U at ¶7.
Analysis
The appellate court’s analysis initially observed that the plaintiff’s pro se brief was substantially deficient in violation of Illinois Supreme Court Rule 341(h) “in multiple manners,” including failure to include a sufficient statement of facts, failure to include an argument with citations to the record supporting it, and failure to develop multiple contentions on appeal. 2025 IL App (1st) 250771-U at ¶11. Rather than striking the brief and dismissing the appeal, the court chose to review the case because the record was short and the defendants’ brief provided sufficient information to review the plaintiff’s contentions on appeal. 2025 IL App (1st) 250771-U at ¶12.
1. Breach of Fiduciary Duty
The appellate court presented an excellent breach of fiduciary duty analysis. It began by stating the elements of pleading a cause of action for breach of fiduciary duty: “[P]laintiff must plead ‘that a fiduciary duty exists, that the fiduciary duty was breached, and that such breach proximately caused the injury of which the plaintiff complains.’ ” 2025 IL App (1st) 250771-U at ¶16, quoting Neade v. Portes, 193 Ill.2d 433, 739 N.E.2d 496, 502, 250 Ill.Dec. 733 (2000). The court observed that Getman correctly pleaded the first element, namely that the directors owe fiduciary duties to unit owners pursuant to §18.4 of Illinois’ Condominium Property Act, 765 ILCS 605/1, et seq. 2025 IL App (1st) 250771-U at ¶16.
However, Getman “failed to sufficiently allege a breach of that duty. This fiduciary duty requires that members of the board of managers strictly comply with the condominium association’s bylaws, declaration and the Act.” 2025 IL App (1st) 250771-U at ¶17, citing D’Attomo v. Baumbeck, 2015 IL App (2d) 140865, ¶64, 36 N.E.3d 892, 394 Ill.Dec. 601, and Duffy v. Orlan Brook Condominium Owners’ Ass’n, 2012 IL App (1st) 113577, ¶21, 981 N.E.2d 1069, 367 Ill.Dec. 341. Additionally, the duty requires that each member of the board must “treat the unit owners ‘with the utmost candor, rectitude, care, loyalty, and good faith.’ ” 2025 IL App (1st) 250771-U at ¶17, quoting Boucher v. 111 East Chestnut Condominium Ass’n, 2018 IL App (1st) 162233, ¶36, 117 N.E.3d 1123, 427 Ill.Dec. 186.
Getman’s amended complaint failed to allege that the board’s retraction of approval for remodeling the bathroom violated an obligation of the board under the declaration, bylaws, or Act. 2025 IL App (1st) 250771-U at ¶18. Additionally, Getman failed to show how the board’s conduct failed to treat her with candor, care, loyalty, or good faith. Id.
Furthermore, the business-judgment rule is a rebuttable presumption that arises as a matter of law and must be overcome with pleadings of facts and evidence showing that the corporate directors acted in bad faith, fraudulently, illegally, or grossly overreached. 2025 IL App (1st) 250771-U at ¶19, citing Goldberg v. Astor Plaza Condominium Ass’n, 2012 IL App (1st) 110620, ¶63, 971 N.E.2d 1, 361 Ill.Dec. 346. The business-judgment rule is not an affirmative defense but rather a rebuttable presumption that must be pleaded over and supported by evidence. 2025 IL App (1st) 250771-U at ¶19, citing Babbitt Municipalities, Inc. v. Health Care Service Corp., 2016 IL App (1st) 152662, ¶47, 64 N.E.3d 117, 408 Ill.Dec. 93. The court also cited Stamp v. Touche Ross & Co., 263 Ill.App.3d 1010, 636 N.E.2d 616, 621 – 623, 201 Ill.Dec. 184 (1st Dist. 1993), in which the appellate court used a slightly different standard to rebut the business-judgment rule, namely pleading and evidence that the defendant directors decision involved fraud, bad faith, illegality, or a conflict of interest. 2025 IL App (1st) 250771-U at ¶19.
2. Due Process
To support a claim for violation of due process, Getman cited §18.5 of the Act, which states that a master association board or common interest community association board has the power to impose fines for violation of the declaration, bylaws, rules and regulations, or Act, after providing notice and opportunity to be heard. 2025 IL App (1st) 250771-U at ¶25, citing 765 ILCS 605/18.5(c)(7). (The appellate court opinion did not note that §18.5 would not be applicable to this particular defendant condominium association. However, a substantively similar provision applicable to condominium associations is contained in §18.4(l) of the Act.)
The appellate court observed the due process is protected by both the United States Constitution and Illinois Constitution. 2025 IL App (1st) 250771-U at ¶23, citing U.S.CONST. amend. XIV and ILL.CONST. art. I, §2. Generally, due-process protections are categorized as those involving procedural due process and substantive due process. 2025 IL App (1st) 250771-U at ¶23, citing In re Marriage of Miller, 227 Ill.2d 185, 879 N.E.2d 292, 300, 316 Ill.Dec. 225 (2007). “Whereas procedural due process governs the procedures employed to deny a person’s life, liberty or property interest, substantive due process limits the state’s ability to act, irrespective of the procedural protections provided.” 2025 IL App (1st) 250771-U at ¶23, quoting Miller, 879 N.E.2d at 300. “To plead a procedural due-process claim, a plaintiff must allege (1) a cognizable property interest, (2) a deprivation of that interest, and (3) a denial of due process.” 2025 IL App (1st) 250771-U at ¶23, quoting Mullins v. Evans, 2021 IL App (1st) 191962, ¶38, 187 N.E.3d 178, 453 Ill.Dec. 204. Also, there must be such a “close nexus between the State and the challenged action of the regulated entity . . . that the latter may be treated as that of the State itself.” 2025 IL App (1st) 250771-U at ¶23, quoting Hill v. PS Illinois Trust, 368 Ill.App.3d 310, 856 N.E.2d 560, 566, 305 Ill.Dec. 755 (1st Dist. 2006).
The appellate court found that Getman failed to plead any facts to support a claim for violation of due process. In particular, it noted that it was questionable (1) whether the condominium association was acting for the state in withdrawing approval to remodel the bathroom until she obtained a permit, (2) whether a person has a cognizable property interest under the constitution in remodeling that person’s bathroom, and (3) whether the directors prohibited her from remodeling the bathroom or merely delayed it until she obtained a permit. 2025 IL App (1st) 250771-U at ¶24.
The court also observed that while Getman’s amended complaint entitled the count as one pertaining to due process, in substance the allegations focused on whether the board violated 765 ILCS 605/18.5. 2025 IL App (1st) 250771-U at ¶¶24 – 25. Section 18.5 requires notice and an opportunity to be heard in connection with imposing violations of the condominium instruments, rules and regulations, and the Act. 2025 IL App (1st) 250771-U at ¶25. No fines for violations were involved in this case.
3. Other Claims
Finally, the appellate court concluded that Getman did not have a right to a jury trial when she filed a jury demand much later after she filed the action, in violation of S.Ct. Rule 285. 2025 IL App (1st) 250771-U at ¶28.
Regarding Getman’s arguments that she was not provided an opportunity to refute false testimony or that the trial court incorrectly ruled on her failure to produce evidence supporting promissory estoppel, the appellate court rejected these arguments because the record was not prepared and filed sufficiently to consider these claims. 2025 IL App (1st) 250771-U at ¶¶34 – 36.
For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.