                                                                               Digitally signed by
                              Illinois Official Reports                        Reporter of Decisions
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                                                                               of this document
                                      Appellate Court                          Date: 2017.05.31
                                                                               10:07:59 -05'00'




           Siena at Old Orchard Condominium Ass’n v. Siena at Old Orchard, L.L.C.,
                                  2017 IL App (1st) 151846



Appellate Court          SIENA AT OLD ORCHARD CONDOMINIUM ASSOCIATION, an
Caption                  Illinois Not-for-Profit Corporation, and THE BOARD OF
                         DIRECTORS OF THE SIENA AT OLD ORCHARD
                         CONDOMINIUM ASSOCIATION, Plaintiffs-Appellants and Cross-
                         Appellees, v. SIENA AT OLD ORCHARD, L.L.C., an Illinois
                         Limited Liability Company; LENNAR CHICAGO, INC., an Illinois
                         Corporation; and LARRY KEER, Individually, Defendants-Appellees
                         (Siena at Old Orchard, L.L.C.; and Lennar Chicago, Inc., Cross-
                         Appellants).



District & No.           First District, Fifth Division
                         Docket No. 1-15-1846



Filed                    March 24, 2017
Rehearing denied         April 24, 2017


Decision Under           Appeal from the Circuit Court of Cook County, No. 13-L-8154; the
Review                   Hon. Patrick J. Sherlock, Judge, presiding.



Judgment                 Reversed.



Counsel on               Diane J. Silverberg and Jason E. Orth, of Kovitz Shifrin Nesbit, of
Appeal                   Mundelein, for appellants.

                         E. Michael Ciesla, of Ciesla & Ciesla, P.C., of Northbrook, for
                         appellee Larry Keer.
                              Colby A. Kingsbury and Shawn M. Doorhy, of Faegre Baker Daniels
                              LLP, of Chicago, for other appellees.



     Panel                    PRESIDING JUSTICE GORDON delivered the judgment of the
                              court, with opinion.
                              Justices Lampkin and Reyes concurred in the judgment and opinion.


                                               OPINION

¶1          The instant appeal arises from a dispute over construction defects discovered at a
       condominium complex in Skokie, Illinois. Plaintiffs, Siena at Old Orchard Condominium
       Association and its board of directors (collectively, the Association), filed suit against the
       developer, Siena at Old Orchard, L.L.C.; the developer’s management company, Lennar
       Chicago, Inc. (collectively, the developers); and Larry Keer, the president of the Association’s
       initial board of directors. Defendants filed a motion to dismiss the complaint, claiming that the
       Association had failed to follow the mandatory arbitration requirements contained in the
       Association’s declaration, resulting in waiver of their claims. The trial court granted the
       motion to dismiss, finding that the Association had waived all claims by failing to abide by the
       declaration’s requirements. The Association appeals the trial court’s dismissal of its complaint.
       The developers cross-appeal, claiming that the trial court did not award them all of the attorney
       fees and costs to which they were entitled. For the reasons that follow, we reverse.

¶2                                          BACKGROUND
¶3                                            I. Complaint
¶4                                           A. Allegations
¶5         On July 17, 2013, the Association filed an eight-count complaint against defendants. The
       complaint alleges that Siena at Old Orchard, L.L.C., was the developer of Siena at Old Orchard
       Condominium, a residential condominium complex located in Skokie, and that Lennar
       Chicago, Inc., was the developer’s manager. The Association was established on July 24,
       2006, and from its formation until March 2007, it was governed by a board of directors
       appointed by the developer. In March 2007, control of the Association was transferred from
       the initial developer-appointed board to a board of directors elected from the unit owner
       membership. Larry Keer was the president of the Association’s board of directors on July 18,
       2008.
¶6         The complaint alleges that “the common elements of the building are experiencing
       numerous latent defects in the construction of the common areas for the Association, namely
       water leaks are entering the interior of the building.” The complaint further alleges that the
       exterior walls were constructed “without the required flashing and weeps” and were also
       “undergoing severe cracking and deterioration.” Finally, the complaint alleges that “an
       improper water proofing system was utilized.”



                                                   -2-
¶7          The complaint alleges that after the turnover, some of the unit owners retained a consultant
       to investigate the cause of water infiltration problems that were being experienced. During the
       course of his investigation, “the consultant performed several tests and made exploratory
       investigations into the common elements of the building to determine the causes of the leaks.”
       The consultant issued a report to the Association in May 2010, identifying “defective” portions
       of the property, including the asphalt paving, the exterior masonry walls, the masonry
       expansion joints, and balcony deck membranes. The complaint further alleges that “[t]his is the
       first time that the post developer Board became aware that there [were] defects at the
       Association that were attributable to the developer’s defective development of the
       Association.” These construction defects were “affecting the structural integrity of the building
       and its common elements.” Furthermore, the complaint alleges, “the manner in which several
       portions of the building were installed and constructed is contrary to the architectural drawings
       and specifications prepared for the Association building.”
¶8          The complaint alleges that prior to the turnover, the developer and the initial board had
       actual knowledge of the construction defects in the common elements, but that “[t]he unit
       owner controlled board did not have knowledge of these construction defects until after” the
       May 2010 report by the Association’s consultant. However, despite having knowledge of the
       construction defects, the developer and the initial board “failed to inform the post developer
       Board of the fact that the defective conditions at the Association were caused by the defective
       development, design and construction of the Condominium.”
¶9          The complaint set forth eight counts. Counts I through IV were applicable to the
       developers, while counts V through VIII were aimed at Keer. Count I was for breach of
       fiduciary duty and alleged that the initial developer-appointed board breached its fiduciary
       duty to the unit owners by failing to properly investigate the complex, failing to ask the
       developer to remedy the defects, and “otherwise fail[ing] to protect the interests of the
       Association’s members,” which the complaint alleged were intentional acts done “for the
       purpose of increasing and maximizing the Developer’s profits in the development and sale of
       the Complex and units in the Association and to avoid its share of assessment responsibility for
       reserves and repairs, all to the detriment of the owners in the Association.”
¶ 10        Count II was for breach of contract and alleged that the developer failed to construct the
       condominium complex according to the terms set forth in the purchase agreement. Count III
       was for breach of the implied warranty of habitability and count IV was for breach of the
       implied warranty of good workmanship and materials. All of the counts directed at the
       developers sought damages “in an amount equal to the total cost of repair or replacement of the
       aforesaid defects,” which the complaint alleged “is believed to be in excess of $500,000.00.”
¶ 11        Counts V through VIII were directed at Keer, who was the president of the Association on
       July 18, 2008, when he executed a release1 “that indicated that the Association was releasing
       its claims against the developer purportedly on behalf of the Association.” However, the
       complaint alleged that Keer did not have the authority to sign documents on behalf of the
       Association without the approval of the majority of the board, which he did not have at the time
       of the signing of the release. Accordingly, the complaint set forth two counts for breach of


           1
            Two of the counts refer to a release executed on July 18, 2008, while the other two counts refer to
       a release executed on October 30, 2008.

                                                      -3-
       fiduciary duty and two counts of constructive fraud.

¶ 12                            B. Declaration of Condominium Ownership
¶ 13       Attached to the complaint was the declaration of condominium ownership for Siena at Old
       Orchard Condominium, recorded on July 24, 2006. Article 12 of the declaration was titled
       “Dispute Resolution,” and contained five sections. Section 12.01 was titled “Consensus for
       Action by the Condominium Association” and provided that, “[e]xcept as provided in this
       Section, the Condominium Association may not commence a legal proceeding or an action
       under this Article without the affirmative vote of at least seventy-five percent (75%) of the
       Voting Members.” Section 12.01 further provided that “[p]rior to the Condominium
       Association or any member commencing any proceeding to which Declarant[2] is a Party,
       including but not limited to an alleged defect of any improvement, Declarant shall have the
       right to be heard by the members, or the particular member, and to access, inspect, correct the
       condition of, or redesign any portion of any improvement as to which a defect is alleged or
       otherwise correct the alleged dispute.”
¶ 14       Section 12.02 was titled “Alternative Method for Resolving Disputes” and provided, in
       full:
               “Declarant, its officers, directors[,] employees and agents; the Condominium
               Association, its officers, directors and committee members; all Persons subject to this
               Declaration; and any Person not otherwise subject to this Declaration who agrees to
               submit to this Article (each such entity being referred to as a ‘Bound Party’) agree to
               encourage the amicable resolution of disputes, without the emotional and financial
               costs of litigation. Accordingly, each Bound Party covenants and agrees to submit
               those Claims, grievances or disputes described in Section 12.03 (collectively,
               ‘Claims’) to the procedures set forth in Section 12.04.”
¶ 15       The “Claims” referred to in section 12.02 of the declaration were set forth in section 12.03,
       which was titled “Claims.” Section 12.03 provided, in relevant part:
               “[A]ll claims between any of the Bound Parties regardless of how the same might have
               arisen or on what it might be based, including but not limited to Claims (a) arising out
               of or relating to the interpretation, application or enforcement of the provisions of the
               Act, this Declaration, the By-Laws and reasonable rules and regulations adopted by the
               Board or the rights, obligations and duties of any bound Party under the provisions of
               the Act, this Declaration, the By-Laws and reasonable rules and regulations adopted by
               the Board, (b) relating to the design or construction of improvements; or (c) based upon
               any statements, representations, promises, warranties, or other communications made
               by or on behalf of any bound Party shall be subject to the provisions of Section 12.04.”
¶ 16       Section 12.04, which was titled “Mandatory Procedures,” set forth the procedure the
       parties agreed to follow in the event a claim arose. Specifically, section 12.04(a) was titled
       “Notice” and provided:
               “As a condition precedent to seeking any action or remedy, a Bound Party having a
               Claim (‘Claimant’) against any other Bound Party (‘Respondent’) (the Claimant and
               the Respondent referred to herein being individually, as a ‘Party,’ or, collectively, as

          2
              “Declarant” was the developer, according to the declaration’s definitions section.

                                                       -4-
               the ‘Parties’) shall notify each Respondent in writing (the ‘Notice’), stating plainly and
               concisely:
                   (i) the nature of the Claim, including the defect or default, if any, in detail and the
               Persons involved and the Respondent’s role in the Claim;
                   (ii) the legal basis of the Claim (i.e., the specific authority out of which the Claim
               arises);
                   (iii) the proposed remedy;
                   (iv) any evidence that depicts the nature and cause of the Claim and the nature and
               extent of repairs necessary to remedy the Claim, including expert reports, photographs
               and videotapes; and
                   (v) the fact that Claimant will meet with Respondent to discuss in good faith ways
               to resolve the claim.
                   Notices given to Respondent pursuant to this Section shall be deemed sufficient if
               personally delivered, delivered by commercial messenger service, or mailed by
               registered or certified mail, postage prepaid, return receipt requested to the last known
               address of the Respondent as it appears on the records of the Condominium
               Association on the date of mailing.”
¶ 17        Section 12.04(b), titled “Claims Involving Declarant,” provided additional rights for the
       Declarant developer. These provisions included that: “Claimant agrees to permit Declarant and
       its agents to perform inspections and tests and to make all repairs and replacements deemed
       necessary by Declarant to respond to the claim,” and “Declarant or Condominium Association,
       as the case may be, shall have not less than 35 days nor more than 90 days from receipt of the
       Notice (the ‘Cure Period’) to cure as provided herein or to otherwise respond to the Claimant in
       the event that the Declarant determines that no default has occurred and/or default exists.” The
       provision provided that “Declarant shall have the right, but not the obligation, to take action
       during the Cure Period and/or respond to any notice received from Claimant.”
¶ 18        Section 12.04(b)(iv), titled “Dispute Resolution,” then provided:
               “Any dispute (whether contract, warranty, tort, statutory or otherwise) including, but
               not limited to (a) any and all controversies, disputes or claims arising under, or related
               to, the Purchase Agreement, the Unit, or any dealings between the Declarant and
               Owner ***, (b) any controversy, dispute or claim arising by virtue of any
               representations, promises or warranties alleged to have been made by Declarant or
               Declarant’s representative, and (c) any personal injury or property damage alleged to
               have been sustained by Purchaser on the Property (hereinafter individually and
               collectively referred to as ‘disputes’ or ‘Claims’), shall first be submitted to mediation
               and, if not settled during mediation, shall thereafter be submitted to binding arbitration
               as provided in Paragraphs 12.04(c) and 12.04(d) below and as provided by the Federal
               Arbitration Act (9 U.S.C. Section 1 et seq.) or applicable state law relating to
               arbitration and not by or in a court of law.”
¶ 19        Section 12.04(c), titled “Negotiation and Mediation,” provided under subsection (ii), in
       relevant part, “If the Parties do not resolve the Claim within 90 days after the date of the Notice
       and the Cure Period has expired (or within such other period as may be agreed upon by the
       Parties) (‘Termination of Negotiations’), either Party shall have 30 days from the date of
       Termination of Negotiations to submit the claim to mediation.” Subsection (iii) stated that “[i]f

                                                    -5-
       a Claimant does not submit the Claim to mediation within such time, or does not appear for the
       mediation, then the Claimant shall be deemed to have waived the Claim, and the Respondent
       shall be released and discharged from any and all liability to Claimant on account of such
       Claim.”
¶ 20       Section 12.04(e), titled, “Costs and Expenses” provided, in full,
               “Except as otherwise provided under subparagraph 12.04(b) above, each Party shall
               bear its own costs and expenses, including attorney’s fees, for any mediation and
               arbitration. Notwithstanding the foregoing, if a Party unsuccessfully contests the
               validity or scope of arbitration in a court of law, the non-contesting Party shall be
               awarded reasonable attorneys fees and expenses incurred in defending such a contest.
               In addition, if a Party fails to abide by the terms of a mediation settlement or arbitration
               award, the other Party shall be awarded reasonable attorneys fees and expenses
               incurred in enforcing such a settlement or award.”
¶ 21       Section 12.05, titled “Amendment of Article,” stated in full, “Without express prior written
       consent of Declarant, this Article may not be amended for a period of twenty years from the
       effective date of this Declaration.”
¶ 22       Attached as an exhibit to the declaration was the Association’s bylaws. Section 5.10 of the
       bylaws provided that, “[e]xcept as otherwise expressly provided herein or in the Declaration,
       any action may be taken upon the affirmative vote of a majority of the Directors present at a
       meeting at which a quorum is present.” Furthermore, section 8.01 discussed authority for the
       execution of instruments:
               “EXECUTION OF INSTRUMENTS: The Board may authorize any officer or officers,
               agent or agents of the Condominium Association, in addition to the officers so
               authorized by these By-Laws, to enter into any contract or execute and deliver any
               instrument (including amendments to the Declaration or these By-Laws which must be
               executed by the Condominium Association) in the name of and on behalf of the
               Condominium Association and such authority may be general or confined to specific
               instances. In the absence of any such authorization by the Board, any such contract or
               instrument shall be executed by the President or a Vice President and attested to by the
               Secretary or an Assistant Secretary of the Condominium Association.”
¶ 23       Finally, included within the declaration is a document titled “Amendment of the
       Declaration of Condominium Ownership for Siena Old Orchard Condominium Association.”
       Pursuant to the amendment, article 12 of the declaration was deleted in its entirety. The
       amendment stated: “[T]he following Amendment has been approved by the affirmative vote of
       Voting Members having no less than sixty-seven percent (67%) of the owners as evidenced by
       the Certification attached hereto ***.” The document was signed by the president of the
       Association and dated August 14, 2011.

¶ 24                              C. Real Estate Purchase Agreement
¶ 25       Also attached to the complaint was the “Real Estate Purchase Agreement” for the purchase
       of a unit within the condominium building, executed by the developer and Larry and Theresia
       Keer, 3 dated June 24, 2006. The agreement contains a section titled, “Seller’s Limited
           3
             The record does not disclose Theresia Keer’s relationship to defendant Keer, but we presume she
       is his spouse.

                                                     -6-
       Warranty/Waiver of Implied Warranty of Habitability.” The language stated, in all capital
       letters, “seller hereby disclaims and purchaser hereby waives the implied warranty of
       habitability described above.” The agreement further stated, “if a dispute arises with seller and
       if a dispute arises with seller and the dispute results in a lawsuit, purchaser will not be able to
       rely on the implied warranty of habitability described above as a basis for suing the seller.” In
       an addendum to the agreement, a clause was added that stated, “Purchasers agree that in
       consideration for Seller providing Purchaser with Limited Warranties, Purchaser will accept
       the Limited Warranties as a substitute for the Implied Warranty of Habitability.” The
       addendum additionally stated, in all capital letters: “if a dispute arises with seller and the
       dispute results in a lawsuit, purchaser will not be able to rely on the implied warranty of
       habitability described above as a basis for suing the seller. Purchaser may, however, rely on the
       limited warranties made by seller to purchaser.” Larry Keer’s and Theresia Keer’s initials are
       located under both of these sections. The document is followed by a document titled, “Siena
       Condominium Unit Warranty.” Though the document failed to identify the parties, the
       agreement provided the purchaser with a limited warranty of one year after the closing date.
       Section 8 of the agreement required the parties to submit all claims to mediation and binding
       arbitration. The warranty is not dated or signed.

¶ 26                                            D. Releases
¶ 27       Additionally attached to the complaint are the two releases referred to in counts V through
       VIII of the complaint against Keer. The Association, represented by Keer, and the developer
       executed the documents on July 18, 2008, and October 30, 2008. According to the releases,
       which contained identical language, “[t]he Association *** made various claims against the
       Developer including, among other things, the ‘Items’ on the Punch list attached hereto as
       Exhibit A,” which included problems such as broken concrete in the parking lot and improper
       placement of the wood trim in the hallways,4 and “[t]he parties desire to resolve the claims
       made by the Association and any and all other future claims or causes of action.” Accordingly,
       the developer agreed to pay the Association $20,734 in the July 18, 2008, release and agreed to
       pay $7779.53 in the October 30, 2008, release. In exchange, the Association agreed to release
       and discharge the developer from:
               “any and all claims, causes of action, or liabilities whosoever, known or unknown,
               asserted or unasserted, whether arising out of contract, tort, or otherwise, in law or in
               equity arising, accruing, or based on any action or inaction of any such parties,
               including, without limitation, any claim for construction defects in connection with the
               construction of the improvements which are part of the Condominium, the
               administration of the Association prior to the turnover of control to a board of directors
               elected by the unit owners and the payment of assessments, charges or other amounts
               whatsoever due to the Association from the Developer.”

           4
            “Exhibit A” was identical in both releases, except that in the exhibit attached to the October 30,
       2008, release, there was an additional item that provided that, “[a]s a result of [water-seepage issues due
       to the pitch of the garage floor], the elevator system control sustained $20,734 of damage.” The “status”
       of this item provided that “[the developer] has reimbursed the [Association] for the cost of the repairs.”
       We note that the $20,734 listed as the amount of damage is also the precise amount the developer
       agreed to pay in the July 18, 2008, release.

                                                       -7-
¶ 28        The developer agreed to release the Association from “any and all claims and causes of
       action or liabilities whatsoever, known or unknown, asserted or unasserted, whether rising out
       of contract, tort, or otherwise in law or in equity, arising, accruing, or based on any action of
       the Association or its directors, officers, or agents.” Defendant Lennar Chicago, Inc., through
       its vice president, Glenn V. Richmond, signed the releases on behalf of the developer, while
       defendant Larry M. Keer signed on behalf of the Association.

¶ 29                                       II. Motions to Dismiss
¶ 30       On August 28, 2013, Keer filed a motion to dismiss the Association’s complaint pursuant
       to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)). On
       October 9, 2013, the developers filed a motion to dismiss the Association’s complaint pursuant
       to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). These two motions contained
       identical arguments despite the fact they were seeking dismissal pursuant to different sections
       of the Code. The developers and Keer argued article 12 of the declaration deprived the court of
       jurisdiction and required the parties to submit the dispute to arbitration. In response, the
       Association argued that, prior to filing this lawsuit, the board amended article 12 to delete the
       article in its entirety. On February 13, 2014, the trial court granted the motions to dismiss and
       dismissed the Association’s complaint without prejudice. The court relied on section 12.05 of
       the declaration, which required express written consent from the developer prior to an
       amendment of the declaration, to find that the amendment removing article 12 was not valid.
¶ 31       On February 26, 2014, the Association filed a motion to reconsider the trial’s order, based
       on an error in the court’s previous application of existing law. The Association argued that the
       amendment removing article 12 was proper pursuant to section 27(a)(i) of the Condominium
       Property Act (Act) (765 ILCS 605/27(a)(i) (West 2012)), which provides that the “only” basis
       for amendment to a declaration is “upon the affirmative vote of ⅔ of those voting” and that “in
       no event shall the condominium instruments require more than a three-quarters vote of unit
       owners.” The Association argued that pursuant to the Act, section 12.05, which required the
       developer’s consent prior to an amendment, was invalid. The Association also argued that
       section 32 of the Act should be interpreted to permit mandatory arbitration only in matters
       below $10,000 in dispute and, since the instant dispute had a higher value, the mandatory
       arbitration requirement in article 12 was invalid. In response, the developers argued that the
       Association waived these arguments by failing to bring this law to the court’s attention during
       the pendency of the motions to dismiss.
¶ 32       On May 8, 2014, the trial court granted the Association’s motion to reconsider, based on an
       error in the court’s previous application of existing law.5 The trial court held that section 27 of
       the Act invalidated section 12.05 of the declaration, since the only means to amend a
       declaration was through a ⅔ vote and section 12.05 sought to impose an additional
       requirement, namely, the developer’s consent to the amendment. As such, the board’s vote to
       amend and delete article 12 of the declaration was proper, and the parties were not required to
       submit the claim to arbitration. However, the court rejected the Association’s argument under
       section 32 of the Act. The court found that section 32 cannot be interpreted to permit

           5
            Although the trial court stated that the motion was based on an error in the previous application of
       the law, the trial court had not previously applied section 27 or section 32 of the Act granting the
       motions to dismiss.

                                                       -8-
       mandatory arbitration only in disputes involving less than $10,000, as this interpretation was
       unsupported by case law and contrary to the plain meaning of the Act. The court also found this
       interpretation of section 32 violated the Illinois public policy favoring the enforcement of
       arbitration and mediation agreements.

¶ 33                           III. Amended Complaint and Motion to Dismiss
¶ 34        On May 29, 2014, the Association filed an amended complaint, and defendants again filed
       motions to dismiss the amended complaint, with Keer filing a motion to dismiss under section
       2-619 of the Code and the developers filing a combined motion to dismiss under section
       2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2012)). While the motions to dismiss were
       pending, the Association sought leave to file a second amended complaint, claiming that the
       section 2-615 portion of the developers’ motion to dismiss raised pleading deficiencies that the
       Association sought to amend through the filing of a second amended complaint; the
       Association claimed that “[a]llowing this amendment would permit the hearing of all issues
       raised, both 2-615 and 2-619, issues, at one time and prevent duplicative pleadings and motion
       practice.”
¶ 35        The Association was granted leave to file a second amended complaint, and it filed its
       second amended complaint on September 10, 2014. The second amended complaint included
       allegations regarding the board’s amendment to delete article 12 of the declaration, which
       required the parties to submit all claims to arbitration and mediation. These allegations
       included that the amendment occurred on August 14, 2011, and was properly recorded with the
       Cook County recorder of deeds office. The amended complaint also alleged that, prior to this
       amendment, the Association had not sent notice pursuant to section 12.04(a) of the declaration
       to trigger the mediation and arbitration requirements.
¶ 36        On September 24, 2014, the developers filed a combined motion to dismiss the
       Association’s second amended complaint pursuant to section 2-619.1 of the Code. 6 The
       developers claimed that prior to the amendment of article 12 of the declaration, the Association
       sent a letter to the developer that constituted notice to trigger the mediation and arbitration
       process required by the declaration. The developer argued that, pursuant to section 12.04(c),
       the Association waived its claims by failing to submit the claims to mediation within the
       allotted time requirement. The developers also claimed the releases executed by Keer
       extinguished the cause of action. Further, as to count I for breach of fiduciary duty, the
       developers argued the count was not sufficiently pled.
¶ 37        The letter, which was attached to the motion to dismiss, was dated August 13, 2010, and
       signed by an attorney representing the Association. The letter indicated that it had been sent via
       email and that its subject was “Re: Claim against Developer: Siena at Old Orchard
       Condominium Association.” The letter stated, in full:
                    “Please be advised that I represent the Above referenced condominium association
               relative to its *** claim against the developer for certain construction defects. Attached
               please find a transition study outlining, in detai[l] the construction and design

          6
            The record does not show that Keer filed a new motion to dismiss after the filing of the second
       amended complaint. However, since the second amended complaint sought to remedy only the
       pleading deficiencies raised by the developers’ section 2-615 motion, Keer’s section 2-619 motion
       would have remained pending.

                                                    -9-
               deficiencies. Also please find[ ] [a] ‘bid comparison’ sheet setting forth bids for
               correcting some of the work.
                    The Association intends on scheduling the work *** in the next two weeks.
               Accordingly, in order to avoid a claim by the Developer of spoliation of evidence, you
               are hereby advised that your representatives may inspect/test/photograph the area to be
               repaired so that evidence may be secured for upcoming litigation. Please contact the
               undersigned prior to August 30, 2010 in order to avail yourself this opportunity.”
       In response to the motion to dismiss, the Association claimed that the letter acted only to
       prevent spoliation and did not conform to the notice requirements under section 12.04(a). As
       such, the letter did not trigger the mediation and arbitration requirement.
¶ 38       Additionally, attached to Keer’s motion to dismiss was a letter sent by the Association to
       Keer in his capacity as a unit owner on September 16, 2010, which he claimed was an
       additional way that the Association gave him notice. The letter provided, in relevant part:
               “[T]he purpose of this letter is to clarify facts regarding exterior building issues and
               what led up to issues of payment for the required work. In the fall of 2009 management
               brought to Lennar’s attention that there were defects to the exterior of the buildings.
               Two members of Lennar showed up and admitted that indeed it appeared that there was
               unfinished work done by the contractors regarding the balconies. They said they would
               come back out the following summer (2010) to discuss scheduling repairs, but would
               not admit to any other defects.
                    But on November 5, 2009 Lennar sent out an email to us (see attachment) and again
               on August 24, 2010 a letter to our attorneys attaching a Release dated July 2008 and
               signed by the then Board President Larry Keer. In the Release, in return for
               approximately $28,500 towards elevator and boiler repairs, Larry Keer signed a Letter
               of Release that removed Lennar from any further work and held Lennar harmless from
               further issues. As a result you will see from the attached documentation, ‘Lennar
               respectively declines any responsibilities for any repairs to the project.[’]
                    This was the first time the current Board ever heard or saw of the Release.
                    This Release becomes very significant, since in August 2010 the current Board had
               a transition report completed where it was discovered that substantial work needs to be
               done to both buildings, amounting to close to $900,000. The Board sought Legal
               Council [sic], where it was learned that because of the Release signed by Larry Keer,
               the Association would likely lose any lawsuit against the developer[.]
                    It should be emphasized that by simply walking around the North building one
               could have seen cracked and crumbling masonry and unfinished balconies clearly
               visible to anyone who took the time to look. With such knowledge nobody could
               possibl[y] have signed the Release, which gave away the Association’s ability to seek
               corrective action by Lennar.
                    Knowing that the suit by the Association would be dismissed, the only option open
               to the Association would be to sue Larry Keer in the hope that the Directors and
               Officers insurance would kick in to pay for the error made by signing the Release in the
               first place without having pertinent information regarding the repair costs.” (Emphasis
               in original.)



                                                  - 10 -
¶ 39       On November 4, 2014, the parties came before the trial court for a hearing on the
       developers’ motion to dismiss. The trial court found the letter drafted by the Association’s
       attorney constituted notice under section 12.04(a) to initiate the mediation and arbitration
       process as delineated in article 12 of the original declaration. The trial court also found that the
       Association waived its claims by failing to submit the claims to mediation as required. The trial
       court dismissed the Association’s second amended complaint with prejudice as to all
       defendants. On March 3, 2015, the trial court denied the Association’s motion to reconsider.

¶ 40                          IV. Motion to Recover Costs and Attorney Fees
¶ 41        On December 4, 2014, the developers filed a motion to recover fees and costs and for
       sanctions pursuant to section 12.04(e) of the declaration and Illinois Supreme Court Rule 137
       (eff. July 1, 2013). The Association argued that section 12.04(e) did not apply due to the
       amendment of the declaration on August 14, 2011. On March 3, 2015, the trial court held that
       article 12 must be applied in its entirety. Pursuant to section 12.04(e), the developer was titled
       to recover fees and expenses it incurred in defending the validity of article 12 of the
       declaration.
¶ 42        On May 27, 2015, the trial court awarded the developers attorney fees in the amount of
       $106,237.50 and costs in the amount of $700.50. The trial court found recoverable only those
       fees associated with the defense of article 12 and the mandatory arbitration provisions as
       proscribed under section 12.04(e). Thus, the court found that the developers could not recover
       for insurance related matters or for paralegal time that involved general office overhead
       functions. The developers also could not recover for any matters simply deemed “other tasks.”
       The court held that the large amounts of money claimed were warranted due to the aggressive
       litigation tactics of the developers and the complexity of the legal issues involved. The trial
       court additionally awarded defendant Keer attorney fees in the amount of $22,904.50 and costs
       in the amount of $451.80. Because the trial court awarded fees under section 12.04(e), the trial
       court denied the developers’ motion for sanctions under Illinois Supreme Court Rule 137 (eff.
       July 1, 2013).
¶ 43        On June 26, 2015, the Association filed a notice of appeal and, on July 8, 2015, the
       developers filed a notice of cross-appeal.

¶ 44                                             ANALYSIS
¶ 45       On appeal, the Association raises a number of ways in which it claims that the trial court
       erred in dismissing its complaint: (1) that the letter sent by the Association’s attorney did not
       constitute “notice” such that it triggered the dispute resolution procedure under article 12 of the
       declaration; (2) that public policy voided the mandatory mediation and arbitration
       requirements of article 12 of the declaration; (3) that the releases did not release the
       Association’s claims; and (4) that the second amended complaint stated a cause of action for
       breach of fiduciary duty. The Association also argues (5) that defendants were not entitled to
       an award of attorney fees and costs. In their cross-appeal, the developers claim that the trial
       court erred by (1) declining to award them certain fees and costs and (2) failing to rule on their
       Rule 137 motion. The developers also claim that the trial court erred in finding that section 27
       of the Act invalidated section 12.05 of the declaration. We first consider the parties’ arguments
       concerning the propriety of the dismissal of the complaint and then turn to the consideration of


                                                    - 11 -
       the award of fees and costs.

¶ 46                                    I. Dismissal of the Complaint
¶ 47       In the case at bar, the trial court dismissed the Association’s initial complaint without
       prejudice under section 2-615 of the Code, but then granted the Association’s motion to
       reconsider, finding that section 12.05 of the declaration, which required the developer’s
       consent to amend the declaration, was inconsistent with section 27 of the Act. After the
       Association amended its complaint, the trial court dismissed the second amended complaint
       under section 2-619 of the Code, finding that the Association had waived its claims by failing
       to abide by the mandatory dispute resolution procedures triggered by its sending notice of its
       claims to the developers. The trial court then denied the Association’s motion to reconsider,
       which was based on a public policy argument concerning an amendment to the Act.
¶ 48       A section 2-615 motion to dismiss “tests the legal sufficiency of a complaint,” while a
       section 2-619 motion to dismiss “admits the sufficiency of the complaint, but asserts
       affirmative matter that defeats the claim.” Bjork v. O’Meara, 2013 IL 114044, ¶ 21. “In ruling
       on motions to dismiss pursuant to either section 2-615 or 2-619 of the Code, the trial court must
       interpret all pleadings in the light most favorable to the nonmoving party” (Doe v. Chicago
       Board of Education, 213 Ill. 2d 19, 23-24 (2004)), and a cause of action should not be
       dismissed under either section unless it is clearly apparent that no set of facts can be proved
       that would entitle the plaintiff to relief (Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.
       2d 463, 473 (2009) (section 2-615 motion); Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277-78
       (2003) (section 2-619 motion)). Our review of a motion to dismiss under either section is
       de novo (Carr v. Koch, 2012 IL 113414, ¶ 27), and we may affirm the dismissal of a complaint
       on any ground that is apparent from the record (Golf v. Henderson, 376 Ill. App. 3d 271, 275
       (2007)). De novo consideration means we perform the same analysis that a trial judge would
       perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). Additionally, while
       the decision to grant or deny a motion to reconsider lies within the discretion of the trial court,
       “ ‘where a motion to reconsider raises a question of whether the trial court erred in its previous
       application of existing law, we review de novo the trial court’s determinations of legal
       issues.’ ” TCF National Bank v. Richards, 2016 IL App (1st) 152083, ¶ 41 (quoting JP
       Morgan Chase Bank v. Fankhauser, 383 Ill. App. 3d 254, 259 (2008)).

¶ 49                                      A. Adequacy of Notice
¶ 50       The Association first takes issue with the trial court’s finding that the August 13, 2010,
       letter from its counsel to the developers constituted “notice” so as to trigger the mandatory
       dispute resolution procedures. “Because many of the facts are not disputed, and because
       condominium declarations are covenants running with the land, we need only examine the
       language of the declaration in this case, to the extent the language is unambiguous, to
       determine whether the trial court acted properly.” Goldberg v. Astor Plaza Condominium
       Ass’n, 2012 IL App (1st) 110620, ¶ 48. The construction of condominium declarations is a
       question of law. Carl Sandburg Village Condominium Ass’n No. 1 v. Carl Sandburg Village
       Condominium Homeowners’ Ass’n, 175 Ill. App. 3d 1, 5 (1987). “ ‘The paramount rule for the
       interpretation of covenants is to expound them so as to give effect as to the actual intent of the
       parties as determined from the whole document construed in connection with the


                                                   - 12 -
       circumstances surrounding its execution.’ ” Carney v. Donley, 261 Ill. App. 3d 1002, 1008
       (1994) (quoting Amoco Realty Co. v. Montalbano, 133 Ill. App. 3d 327, 331 (1985)).
¶ 51       As an initial matter, the developers claim that this issue has been forfeited because the
       Association did not raise it until it filed a motion to reconsider the order granting the
       developers’ motion to dismiss. However, we note that the second amended complaint
       contained an allegation that “prior to the Amendment of the Declaration on or about August
       14, 2011, the Association did not provide to any defendant, or any other entity or person, a
       notice that was in compliance with or pursuant to Section 12.04(1) of the original Declaration.”
       Additionally, the developers argued that the Association had failed to comply with the
       mandatory arbitration requirements in their motion to dismiss the Association’s second
       amended complaint and, in response, the Association argued that the letter relied upon by the
       developers did not comply with the declaration’s notice requirements so as to trigger the
       arbitration process. Thus, we find no basis for the developers’ argument that this issue has been
       forfeited on appeal and proceed to consider the merits of the Association’s argument.
¶ 52       As noted, section 12.04 of the declaration, which was titled “Mandatory Procedures,” set
       forth the procedure the parties agreed to follow in the event a claim arose. Specifically, section
       12.04(a) was titled “Notice” and provided:
               “As a condition precedent to seeking any action or remedy, a Bound Party having a
               Claim (‘Claimant’) against any other Bound Party (‘Respondent’) (the Claimant and
               the Respondent referred to herein being individually, as a ‘Party,’ or, collectively, as
               the ‘Parties’) shall notify each Respondent in writing (the ‘Notice’), stating plainly and
               concisely:
                   (i) the nature of the Claim, including the defect or default, if any, in detail and the
               Persons involved and the Respondent’s role in the Claim;
                   (ii) the legal basis of the Claim (i.e., the specific authority out of which the Claim
               arises);
                   (iii) the proposed remedy;
                   (iv) any evidence that depicts the nature and cause of the Claim and the nature and
               extent of repairs necessary to remedy the Claim, including expert reports, photographs
               and videotapes; and
                   (v) the fact that Claimant will meet with Respondent to discuss in good faith ways
               to resolve the claim.
                   Notices given to Respondent pursuant to this Section shall be deemed sufficient if
               personally delivered, delivered by commercial messenger service, or mailed by
               registered or certified mail, postage prepaid, return receipt requested to the last known
               address of the Respondent as it appears on the records of the Condominium
               Association on the date of mailing.”
       Under section 12.04(c), “[i]f the Parties do not resolve the Claim within 90 days after the date
       of the Notice and the Cure Period has expired (or within such other period as may be agreed
       upon by the Parties) (‘Termination of Negotiations’), either Party shall have 30 days from the
       date of Termination of Negotiations to submit the claim to mediation.” Additionally, “[i]f a
       Claimant does not submit the Claim to mediation within such time, or does not appear for the
       mediation, then the Claimant shall be deemed to have waived the Claim, and the Respondent
       shall be released and discharged from any and all liability to Claimant on account of such

                                                   - 13 -
       Claim.” Thus, if notice pursuant to section 12.04(a) was sent, and the claim was not submitted
       to mediation within 30 days after the date of termination of negotiations, the claim would be
       considered waived. In the case at bar, then, if a notice was sent that triggered the mandatory
       dispute resolution process, then the Association would be deemed to have waived its claims
       against defendants, because there is no dispute in the instant case that the Association’s claims
       against defendants were never submitted to mediation.
¶ 53       In the case at bar, the developers argued, and the trial court agreed, that the Association
       sent the developers notice pursuant to section 12.04(a) when the Association’s attorney sent
       them a letter concerning the Association’s claims. The letter was dated August 13, 2010, and
       was signed by an attorney representing the Association. The letter indicated that it had been
       sent via email and that its subject was “Re: Claim against Developer: Siena at Old Orchard
       Condominium Association.” The letter stated, in full:
                   “Please be advised that I represent the Above referenced condominium association
               relative to its *** claim against the developer for certain construction defects. Attached
               please find a transition study outlining, in detai[l] the construction and design
               deficiencies. Also please find[ ] [a] ‘bid comparison’ sheet setting forth bids for
               correcting some of the work.
                   The Association intends on scheduling the work *** in the next two weeks.
               Accordingly, in order to avoid a claim by the Developer of spoliation of evidence, you
               are hereby advised that your representatives may inspect/test/photograph the area to be
               repaired so that evidence may be secured for upcoming litigation. Please contact the
               undersigned prior to August 30, 2010 in order to avail yourself this opportunity.”
       The Association argues that this letter was merely intended to prevent a spoliation of evidence
       claim and was not “notice” that would trigger the mandatory dispute resolution process.
¶ 54       “The rules of construction for contracts govern our interpretation of the covenants
       contained in the declaration.” Forest Glen Community Homeowners Ass’n v. Bishof, 321 Ill.
       App. 3d 298, 303 (2001); Stobe v. 842-848 West Bradley Place Condominium Ass’n, 2016 IL
       App (1st) 141427, ¶ 13. “The primary rule of interpretation is to give effect to the drafting
       parties’ intent.” Stobe, 2016 IL App (1st) 141427, ¶ 13. “If the words in the contract are clear
       and unambiguous, they must be given their plain, ordinary and popular meaning.” Thompson v.
       Gordon, 241 Ill. 2d 428, 441 (2011).
¶ 55       In the case at bar, there is no dispute that the letter sent by the attorney fails to satisfy a
       number of the declaration’s requirements. First, the letter was sent via email, not “personally
       delivered, delivered by commercial messenger service, or mailed by registered or certified
       mail.” Additionally, the letter does not state “the fact that Claimant will meet with Respondent
       to discuss in good faith ways to resolve the claim.” Finally, while the letter makes reference to
       “upcoming litigation” and a “claim against the developer for certain construction defects,” the
       letter does not state “the legal basis of the Claim (i.e., the specific authority out of which the
       Claim arises).” The Association also claims that the letter failed to set forth “the proposed
       remedy,” but we note that the letter indicated that the Association was planning on scheduling
       the required work within two weeks, leading to the conclusion that the proposed remedy was
       repair of the damaged areas.
¶ 56       The Association argues that the letter’s failure to satisfy all of section 12.04(a)’s
       requirements means that the letter did not constitute “notice” so as to trigger the mandatory
       dispute resolution process. By contrast, the developers argue that any deficiencies are

                                                   - 14 -
       immaterial, since they received actual notice that there was a claim against them. The trial
       court found that the letter was sufficient to trigger the dispute resolution process. However, we
       cannot agree with this conclusion.
¶ 57        As stated, there is no dispute that the letter does not satisfy a number of the requirements of
       section 12.04(a). Thus, there is no basis for concluding that it is a “notice” under that section.
       The developers’ arguments that “actual notice” excuses any noncompliance with section
       12.04(a) presupposes that the letter sent by the Association’s attorney is, in fact, a notice under
       section 12.04(a); it is a circular argument. “The purpose of a contract’s notice provision is to
       ensure that the notice was delivered and that the party was informed.” Denis F. McKenna Co.
       v. Smith, 302 Ill. App. 3d 28, 32 (1998). It is axiomatic that, in order for notice to be sent, there
       must have been some type of “notice.” The developers’ argument would turn the letter into
       section 12.04(a) “notice” through the simple fact that the developers received it.
¶ 58        If the form of mailing was the sole way in which the letter failed to satisfy section 12.04(a),
       the developers’ argument would be more persuasive, since a provision concerning the form of
       mailing is merely intended to ensure that the notice was delivered. Vole, Inc. v.
       Georgacopoulos, 181 Ill. App. 3d 1012, 1019 (1989) (“A provision requiring sending of notice
       by registered mail is merely intended to insure delivery.”). However, that is not the case. In the
       case at bar, there were a number of ways in which the letter failed to satisfy the requirements
       for notice under section 12.04(a), and we do not agree with the developers that these failures
       are “immaterial.”
¶ 59        For instance, the letter does not state “the legal basis of the Claim (i.e., the specific
       authority out of which the Claim arises),” and does not state “the fact that Claimant will meet
       with Respondent to discuss in good faith ways to resolve the claim.” The letter does not even
       mention arbitration or mediation at all, nor does it refer to section 12.04(a). The specific,
       detailed requirements of section 12.04(a) protect both parties. They protect the claimant both
       by ensuring that a communication that complies with the requirements of the section will
       undisputedly be considered notice to the respondent of a claim against it, and also by ensuring
       that not every communication sent to the respondent will trigger the dispute resolution
       procedures. They also protect the respondent by providing details concerning the claim and
       offering the opportunity to remedy it before proceeding to mediation or arbitration. The
       requirements of section 12.04(a) are clear and unambiguous. Thus, “they must be given their
       plain, ordinary and popular meaning.” Thompson, 241 Ill. 2d at 441. Here, there is no dispute
       that not all of the requirements of section 12.04(a) were satisfied. Consequently, the letter sent
       to the developer cannot be considered a notice under that section and the trial court erred in
       finding that it was.
¶ 60        Keer also argues that he received the required notice by virtue of a letter sent to all unit
       owners by the Association’s board on September 16, 2010. While this was not a basis for the
       trial court’s dismissal of the complaint, we may affirm the dismissal of a complaint on any
       ground that is apparent from the record (Golf, 376 Ill. App. 3d at 275). The letter, which was
       received by Keer in his capacity as a unit owner, provided, in relevant part:
                 “[T]he purpose of this letter is to clarify facts regarding exterior building issues and
                 what led up to issues of payment for the required work. In the fall of 2009 management
                 brought to Lennar’s attention that there were defects to the exterior of the buildings.
                 Two members of Lennar showed up and admitted that indeed it appeared that there was
                 unfinished work done by the contractors regarding the balconies. They said they would

                                                    - 15 -
                come back out the following summer (2010) to discuss scheduling repairs, but would
                not admit to any other defects.
                     But on November 5, 2009 Lennar sent out an email to us (see attachment) and again
                on August 24, 2010 a letter to our attorneys attaching a Release dated July 2008 and
                signed by the then Board President Larry Keer. In the Release, in return for
                approximately $28,500 towards elevator and boiler repairs, Larry Keer signed a Letter
                of Release that removed Lennar from any further work and held Lennar harmless from
                further issues. As a result you will see from the attached documentation, ‘Lennar
                respectively declines any responsibilities for any repairs to the project.[’]
                     This was the first time the current Board ever heard or saw of the Release.
                     This Release becomes very significant, since in August 2010 the current Board had
                a transition report completed where it was discovered that substantial work needs to be
                done to both buildings, amounting to close to $900,000. The Board sought Legal
                Council [sic], where it was learned that because of the Release signed by Larry Keer,
                the Association would likely lose any lawsuit against the developer[.]
                     It should be emphasized that by simply walking around the North building one
                could have seen cracked and crumbling masonry and unfinished balconies clearly
                visible to anyone who took the time to look. With such knowledge nobody could
                possibl[y] have signed the Release, which gave away the Association’s ability to seek
                corrective action by Lennar.
                     Knowing that the suit by the Association would be dismissed, the only option open
                to the Association would be to sue Larry Keer in the hope that the Directors and
                Officers insurance would kick in to pay for the error made by signing the Release in the
                first place without having pertinent information regarding the repair costs.” (Emphasis
                in original.)
¶ 61       We cannot find that this letter constitutes notice such that the mandatory dispute resolution
       process was triggered. As with the letter drafted by the Association’s attorney, this letter does
       not satisfy all of section 12.04(a)’s requirements and therefore cannot be considered notice
       under that section. Furthermore, the letter itself was not even directed at Keer but was sent to
       all of the unit owners, and it was only in that capacity that Keer received the letter. A finding
       that such a letter serves to trigger the mandatory dispute resolution process would render
       section 12.04(a) effectively meaningless, since it would mean a communication could be
       considered notice even if (1) it did not comply with the declaration’s clearly specified
       requirements and (2) it was part of a mass communication to all unit owners as opposed to a
       communication directed at the person against whom the claim was going to be made.
       Accordingly, we do not find this letter serves as an alternative basis for affirming the trial
       court’s finding that the Association had waived its claims against defendants.

¶ 62                             B. Validity of Amendment to Declaration
¶ 63       Since we have concluded that there was no notice sent under section 12.04(a), the
       mandatory dispute resolution process was never triggered and the Association’s claims against
       defendants were never waived for noncompliance with that process. However, the Association
       would still be required to submit its claims to mediation and arbitration under section
       12.04(b)(iv) if not for the fact that, in 2011, the Association amended the declaration to remove


                                                  - 16 -
       article 12 in its entirety. The trial court found this was a valid amendment, a ruling which the
       developers challenge in their cross-appeal.
¶ 64       The basis for the developers’ argument is that section 12.05 concerned the amendment of
       article 12 and provided:
                “AMENDMENT OF ARTICLE: Without the express prior written consent of
                Declarant, this Article may not be amended for a period of twenty years from the
                effective date of this Declaration.”
       The developers claim that, because the amendment was done without their express prior
       written consent, the amendment was invalid.
¶ 65       The trial court found that section 12.05’s restrictions on amending the declaration
       conflicted with the terms of the Act, rendering the restrictions void. In deciding a controversy
       concerning a condominium, “we must examine any relevant provisions in the Condominium
       Property Act [citation], and the declaration or bylaws of the condominium and construe them
       as a whole. [Citation.]” Goldberg, 2012 IL App (1st) 110620, ¶ 47. Further, the Act makes
       clear that “[a]ny provisions of a condominium instrument that contains provisions inconsistent
       with the provisions of this Act are void as against public policy and ineffective.” 765 ILCS
       605/2.1 (West 2010).
¶ 66       In the case at bar, the trial court found that section 12.05 was inconsistent with section 27
       of the Act, which provides, in relevant part:
                “If there is any unit owner other than the developer, the condominium instruments shall
                be amended only as follows:
                     (i) upon the affirmative vote of ⅔ of those voting or upon the majority specified by
                the condominium instruments, provided that in no event shall the condominium
                instruments require more than a three-quarters vote of unit owners; and
                     (ii) with the approval of any mortgagees required under the provisions of the
                condominium instruments.” 765 ILCS 605/27(a) (West 2010).
       The trial court found that section 12.05 was invalid because “here[,] the Illinois legislature has
       defined the only manner by which amendments to condominium declarations can be
       accomplished—a ⅔, but not more than ¾ vote of the condominium owners. Defendant has
       inserted a term that is more onerous than the Act allows and requires the approval of the
       declarant. The Act does not allow for such a provision.” We find the trial court’s reasoning,
       and the Association’s arguments, persuasive.
¶ 67       “The fundamental objective of statutory construction is to ascertain and give effect to the
       intent of the legislature.” 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL
       118372, ¶ 21 (citing Bettis v. Marsaglia, 2014 IL 117050, ¶ 13). “The most reliable indicator
       of legislative intent is the statutory language, given its plain and ordinary meaning.” 1010 Lake
       Shore Ass’n, 2015 IL 118372, ¶ 21 (citing State Building Venture v. O’Donnell, 239 Ill. 2d
       151, 160 (2010)). “A reasonable construction must be given to each word, clause, and sentence
       of a statute, and no term should be rendered superfluous.” 1010 Lake Shore Ass’n, 2015 IL
       118372, ¶ 21 (citing Slepicka v. Illinois Department of Public Health, 2014 IL 116927, ¶ 14).
       “ ‘[W]hen statutory language is plain and certain the court is not free to give it a different
       meaning.’ ” Kalkman v. Nedved, 2013 IL App (3d) 120800, ¶ 12 (quoting In re Estate of
       Hoehn, 234 Ill. App. 3d 627, 629 (1992)). “[A] court may not depart from the plain statutory
       language by reading into it exceptions, limitations, or conditions not expressed by the

                                                   - 17 -
       legislature.” Kalkman, 2013 IL App (3d) 120800, ¶ 12 (citing In re Estate of Ellis, 236 Ill. 2d
       45, 51 (2009)).
¶ 68       In the case at bar, section 27(a) of the Act clearly provides that, “[i]f there is any unit owner
       other than the developer, the condominium instruments shall be amended only as follows.”
       (Emphasis added.) 765 ILCS 605/27(a) (West 2010). We agree with the trial court that this
       language means that additional restrictions to the amendment process are not permitted. The
       developers argue that this language is intended merely to distinguish between amendments to
       the declaration, which are subject to a heightened threshold for amendments, and amendments
       to bylaws or rules passed by an association’s board, which may be amended with fewer votes.
       We do not find this argument persuasive at all. First, the language does not require a
       heightened threshold but only permits it; section 27(a) requires the “affirmative vote of ⅔ of
       those voting or upon the majority specified by the condominium instruments,” up to a
       three-quarters requirement, meaning that a simple majority could be sufficient if the
       condominium instrument so provides. 765 ILCS 605/27(a) (West 2010). Furthermore, had the
       legislature intended simply to impose a heightened threshold for amending a declaration
       without also prohibiting the imposition of more severe restrictions, it could have provided so
       specifically. In fact, it did so several times in the Act, including within other subsections of
       section 27. See, e.g., 765 ILCS 605/27(b)(1) (West 2010) (providing vote requirements for
       correcting omissions or errors in condominium instruments “unless the Act or the
       condominium instruments specifically provide for greater percentages or different
       procedures”); 765 ILCS 605/15(a) (West 2010) (“Unless a greater percentage is provided for
       in the declaration or bylaws,” setting forth minimum vote requirements for selling the
       property); 765 ILCS 605/14.3 (West 2010) (“Unless the condominium instrument expressly
       provides for a greater percentage or different procedures,” setting a majority vote requirement
       for authorization of a grant of an easement for cable television cable). It did not do so with
       respect to section 27(a). Instead, it imposed a default threshold of a two-thirds affirmative vote,
       as well as an absolute ceiling of a three-quarters affirmative vote and stated that the declaration
       “shall be amended only” through this vote, along with the approval of any necessary
       mortgagees. (Emphasis added.) 765 ILCS 605/27(a) (West 2010). Thus, the language of the
       statute itself shows that the legislature specifically selected a range that it felt appropriate and
       limited the restrictions for amendments to that range. Indeed, section 27 originally did not
       provide a ceiling but only required “the affirmative vote of ⅔ of those voting or upon the
       majority specified by the condominium instruments.” Ill. Rev. Stat. 1983, ch. 30, ¶ 327.
       Section 27 was amended in 1984 (Pub. Act 83-833, § 1 (eff. July 1, 1984)) to impose a ceiling
       of a three-quarters vote requirement, which demonstrates the legislature’s desire not to permit
       overly severe vote requirements. Ill. Rev. Stat. 1983, ch. 30, ¶ 327(a). As noted, “ ‘[w]hen
       statutory language is plain and certain the court is not free to give it a different meaning.’ ”
       Kalkman, 2013 IL App (3d) 120800, ¶ 12 (quoting In re Estate of Hoehn, 234 Ill. App. 3d at
       629). Here, we find no basis for the developers’ argument that section 27 was intended to mean
       something different than its plain language requires.
¶ 69       We are not persuaded by the developers’ arguments that “Illinois courts have upheld ***
       similar additional requirements for amending a condominium declaration,” because none of
       the cases cited by the developers has any application to the case at bar. First, in Streams Sports
       Club, Ltd. v. Richmond, 99 Ill. 2d 182, 192-93 (1983), there is no indication that there was any
       issue as to whether the declaration’s requirements for amendments were valid under section


                                                    - 18 -
       27(a) of the Act; the only issue concerning an amendment was whether the proposed
       amendment itself complied with those requirements, a question that the supreme court did not
       decide because it found that there was not enough information in the record. Moreover, the
       “additional requirement” in that case was simply a requirement that the secretary of the
       association’s board certify the amendment, which is a far cry from the type of additional
       requirement the developer seeks to impose here.
¶ 70       Additionally, Schaffner v. 514 West Grant Place Condominium Ass’n, 324 Ill. App. 3d
       1033, 1042 (2001), the second case cited by the developer, required the court to consider
       whether the proposed amendment was a scrivener’s error such that section 27(b)(2) applied
       and did not involve section 27(a). In fact, section 27(a) would not have been applicable to that
       case, since the proposed amendment involved the diminishment of the common elements,
       which is governed by section 4(e) of the Act. See 765 ILCS 605/27(a) (West 1998) (“Except to
       the extent authorized by other provisions of this Act, no amendment to the condominium
       instrument shall change the boundaries of any unit or the undivided interest in the common
       elements ***.”); 765 ILCS 605/4(e) (West 1998) (the percentages of ownership interest in the
       common elements allocated to each unit “shall remain constant unless otherwise provided in
       this Act or thereafter changed by agreement of all unit owners”). Thus, the court did not
       interpret the language of section 27(a) to determine if the restrictions to the amendments were
       permissible under that section. Similarly, the court in Picerno v. 1400 Museum Park
       Condominium Ass’n, 2011 IL App (1st) 103505, ¶ 14, was asked to consider a proposed
       amendment that would diminish the unit owners’ interest in the common elements and was not
       asked to interpret the language of section 27(a); that case does not even set forth the
       declaration’s amendment procedures, but only makes reference to “certain paragraphs of the
       declaration [that] require additional approval” (Picerno, 2011 IL App (1st) 103505, ¶ 26).
       These cases thus do not add support to the developers’ argument that additional restrictions to
       the amendment process are permitted under the language of section 27(a).
¶ 71       We are similarly unpersuaded by the developers’ reliance on Scott v. York Woods
       Community Ass’n, 329 Ill. App. 3d 492 (2002), a case they cite for a holding that 25- and
       30-year restrictions on amendments were presumptively valid. However, Scott did not involve
       interpretation of the Act; indeed, it does not appear that there was even a condominium
       involved, as the case involved “homeowners in a residential community” and the association
       was a “Community Association.”7 Scott, 329 Ill. App. 3d at 493. Furthermore, as pointed out
       by the Association, the Scott court noted that “[a]lthough the amendment restrictions may
       strike some people as unwise, the Association never identified any statute or other expression
       of public policy that might bar them.” Scott, 329 Ill. App. 3d at 501. Here, by contrast, the Act
       governs the condominium documents at issue and specifically provides that “[a]ny provisions
       of a condominium instrument that contains provisions inconsistent with the provisions of this
       Act are void as against public policy and ineffective.” 765 ILCS 605/2.1 (West 2010). As we
       have concluded, the plain and clear language of section 27(a) of the Act provides the only
       method for amending the declaration and section 12.05 seeks to impose alternate, more severe,

           7
            We also note that the name of the community appears to have simply been “York Woods” (see
       Scott, 329 Ill. App. 3d at 493), which also lends support to the conclusion that the community was not a
       condominium, as the Act requires the name of the condominium to include the word “Condominium”
       or be followed by the words “a Condominium.” 765 ILCS 605/4(c) (West 2000).

                                                     - 19 -
       restrictions. This is not permitted by the Act and, accordingly, the trial court properly found
       that the amendment removing article 12 in its entirety was valid. Since the amendment was
       valid, the Association was not required to submit its claims to mediation or arbitration prior to
       filing the instant lawsuit.

¶ 72                                       C. Scope of Releases
¶ 73       Our conclusion on the issues concerning article 12 of the declaration—that there was no
       notice such that the mandatory dispute resolution process was triggered and that the
       declaration was validly amended to remove that article—means that the Association’s
       complaint should not have been dismissed based on noncompliance with the mandatory
       dispute resolution process. However, as noted, we may affirm the dismissal of a complaint on
       any ground that is apparent from the record. Golf, 376 Ill. App. 3d at 275. Accordingly, we
       must consider the effect of the releases executed by Keer when he was the Association’s
       president.
¶ 74       In the case at bar, the Association, represented by Keer, and the developer executed two
       releases, one on July 18, 2008, and the other on October 30, 2008. According to the releases,
       which contained identical language, “[t]he Association *** made various claims against the
       Developer including, among other things, the ‘Items’ on the Punch list attached hereto as
       Exhibit A,” which included problems such as broken concrete in the parking lot and improper
       placement of the wood trim in the hallways,8 and “[t]he parties desire to resolve the claims
       made by the Association and any and all other future claims or causes of action.” Accordingly,
       the developer agreed to pay the Association $20,734 in the July 18, 2008, release and agreed to
       pay $7779.53 in the October 30, 2008, release. In exchange, the Association agreed to release
       and discharge the developer from:
               “any and all claims, causes of action, or liabilities whosoever, known or unknown,
               asserted or unasserted, whether arising out of contract, tort, or otherwise, in law or in
               equity arising, accruing, or based on any action or inaction of any such parties,
               including, without limitation, any claim for construction defects in connection with the
               construction of the improvements which are part of the Condominium, the
               administration of the Association prior to the turnover of control to a board of directors
               elected by the unit owners and the payment of assessments, charges or other amounts
               whatsoever due to the Association from the Developer.”
¶ 75       The Association has raised two different arguments concerning the validity of the releases
       throughout the instant litigation. First, in responding to the developers’ motion to dismiss its
       second amended complaint, the Association argued that Keer did not have the authority to
       execute the releases on behalf of the Association; this argument also serves as the basis for the
       counts of the Association’s complaint that allege that Keer breached his fiduciary duty to the
       Association. On appeal, however, the Association focuses on the scope of the releases, arguing

           8
            As noted, “Exhibit A” was identical in both releases, except that in the exhibit attached to the
       October 30, 2008, release, there was an additional item that provided that, “[a]s a result of
       [water-seepage issues due to the pitch of the garage floor], the elevator system control sustained
       $20,734 of damage.” The “status” of this item provided that “[the developer] has reimbursed the
       [Association] for the cost of the repairs.” We note that the $20,734 listed as the amount of damage is
       also the precise amount the developer agreed to pay in the July 18, 2008, release.

                                                    - 20 -
       that the claims against the developers were not encompassed within the language of the
       releases. The developers claim that this change of focus means that the Association “does not
       contest” Keer’s authority to execute the releases on appeal. We find this to be an overly
       restrictive characterization of the Association’s position, especially given that the issue the
       developers claim is “not contest[ed]” serves as the basis for two counts of the complaint.
       Accordingly, we consider both of the Association’s arguments concerning the validity of the
       release.
¶ 76       A release “ ‘is the abandonment of a claim to the person against whom the claim exists.’ ”
       Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 21 (2003) (quoting Hurd v. Wildman,
       Harrold, Allen & Dixon, 303 Ill. App. 3d 84, 88 (1999)); Fuller Family Holdings, LLC v.
       Northern Trust Co., 371 Ill. App. 3d 605, 614 (2007). It is a contract and is therefore governed
       by contract law. Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 447 (1991) (citing
       Polo National Bank v. Lester, 183 Ill. App. 3d 411, 414 (1989)).
¶ 77       “A contract executed by a party that does not have authority is void ab initio.” Alliance
       Property Management, Ltd. v. Forest Villa of Countryside Condominium Ass’n, 2015 IL App
       (1st) 150169, ¶ 29 (citing Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis Insurance
       Co., 355 Ill. App. 3d 156, 164 (2004)). Such authority may be actual or apparent, and actual
       authority may be either express or implied. Cove Management v. AFLAC, Inc., 2013 IL App
       (1st) 120884, ¶ 23. “Express authority is actual authority granted explicitly by the principal to
       the agent, while implied authority is actual authority proven circumstantially by evidence of
       the agent’s position. [Citation.] Apparent authority, by contrast, is authority imposed by
       equity. [Citation.]” Cove Management, 2013 IL App (1st) 120884, ¶ 23. “Generally, the
       question of whether an agency relationship exists and the scope of the purported agent’s
       authority are questions of fact.” Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d
       206, 210 (2003).
¶ 78       With respect to condominiums, the unit owners’ association is responsible for the overall
       administration of the condominium property through its duly elected board of managers. 765
       ILCS 605/18.3 (West 2006). This board of managers “shall exercise for the association all
       powers, duties and authority vested in the association by law or the condominium instruments
       except for such powers, duties and authority reserved by law to the members of the
       association.” 765 ILCS 605/18.4 (West 2006).
¶ 79       In the case at bar, section 5.10 of the bylaws provides that, “[e]xcept as otherwise expressly
       provided herein or in the Declaration, any action may be taken upon the affirmative vote of a
       majority of the Directors present at a meeting at which a quorum is present.” Furthermore,
       section 8.01 discusses authority for the execution of instruments:
                “EXECUTION OF INSTRUMENTS: The Board may authorize any officer or officers,
                agent or agents of the Condominium Association, in addition to the officers so
                authorized by these By-Laws, to enter into any contract or execute and deliver any
                instrument (including amendments to the Declaration or these By-Laws which must be
                executed by the Condominium Association) in the name of and on behalf of the
                Condominium Association and such authority may be general or confined to specific
                instances. In the absence of any such authorization by the Board, any such contract or
                instrument shall be executed by the President or a Vice President and attested to by the
                Secretary or an Assistant Secretary of the Condominium Association.”


                                                   - 21 -
       Thus, in order for there to be actual authority to execute the releases at issue, (1) the action
       must have been approved by a majority of the directors at a meeting at which a quorum is
       present or (2) the contract must have been executed by the Association’s president or vice
       president and attested to by the secretary or an assistant secretary. Here, the complaint alleges
       that at the time of the execution of the releases, Keer did not have the approval of a majority of
       the board to execute the releases. Furthermore, while Keer was the president of the Association
       at the time, an examination of the releases shows that they were executed by Keer and by the
       developer’s representative; there is no attestation by the Association’s secretary or assistant
       secretary. Thus, taking the facts alleged in the complaint as true, as we must when reviewing a
       motion to dismiss (Snyder v. Heidelberger, 2011 IL 111052, ¶ 8), under the terms of the
       bylaws, Keer had no actual authority to execute the releases.
¶ 80       Furthermore, Keer did not have apparent authority to execute the releases. Apparent
       authority is the authority that a reasonably prudent person would naturally suppose the agent to
       possess, given the words or conduct of the principal. State Security Insurance Co. v. Burgos,
       145 Ill. 2d 423, 431-32 (1991). “It is a well-established precept of agency law that a principal
       will be bound by the authority he appears to give to another, as well as that authority which he
       actually gives.” (Emphasis in original.) Burgos, 145 Ill. 2d at 431 (citing Lynch v. Board of
       Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 426 (1980)). Once
       the principal has created the appearance of authority, he is estopped from denying it to the
       detriment of a third party. Burgos, 145 Ill. 2d at 432. To establish apparent agency, the party
       alleging the existence of the agency must prove that (1) the principal or its agent acted in a
       manner that would lead a reasonable person to believe that the individual allegedly at fault was
       an employee or agent of the principal, (2) the principal had knowledge of and acquiesced in the
       acts of the agent, and (3) the injured party acted in reliance upon the conduct of the principal or
       its agent, consistent with ordinary care and prudence. Wilson v. Edward Hospital, 2012 IL
       112898, ¶ 18. However, “[i]f [the third person] knows, or has good reason for believing, that
       the acts exceed the agent’s powers or if such reasonable inquiry as he is under the duty to
       make, would result in discovery of the true state of the powers, and he fails to fulfill that duty,
       he cannot assert an apparent authority effective against the principal.” (Internal quotation
       marks omitted.) Cove Management, 2013 IL App (1st) 120884, ¶ 27.
¶ 81       In the case at bar, the bylaws were attached to the declaration, which was drafted by the
       developers. Accordingly, the developers would have, or should have, been aware of the
       provisions of the bylaws, including those provisions defining the authority to execute contracts
       on the Association’s behalf. When the releases were signed by Keer alone, the developers
       therefore should have known that he was acting outside the scope of his authority. Given their
       knowledge of the bylaws, there can be no argument that the Association gave the developers
       reason to believe that Keer had the authority to execute the releases. Thus, Keer did not have
       apparent authority to execute the releases.
¶ 82       The developers argue that, even if Keer did not have actual or apparent authority, the
       Association nonetheless ratified his signature by accepting the funds provided in exchange for
       the releases. Even if an agent did not have authority to execute a release, it is possible for the
       principal to be bound by the release if the principal later ratified it. Borsellino v. Putnam, 2011
       IL App (1st) 102242, ¶ 104. “Ratification occurs when the principal learns of an unauthorized
       transaction, then retains the benefits of the transaction or takes a position inconsistent with



                                                   - 22 -
       nonaffirmation.” (Internal quotation marks omitted.) Cove Management, 2013 IL App (1st)
       120884, ¶ 31.
¶ 83       In the case at bar, however, there is no indication that the Association was aware of the
       releases at the time that it accepted any funds from the developers. Indeed, in its letter to the
       unit owners, which Keer attached to his motion to dismiss, the Association’s board states:
       “[O]n November 5, 2009 Lennar sent out an email to us (see attachment) and again on August
       24, 2010 a letter to our attorneys attaching a Release dated July 2008 and signed by the then
       Board President Larry Keer. In the Release, in return for approximately $28,500 towards
       elevator and boiler repairs, Larry Keer signed a Letter of Release that removed Lennar from
       any further work and held Lennar harmless from further issues. As a result you will see from
       the attached documentation, ‘Lennar respectively declines any responsibilities for any repairs
       to the project.[’] This was the first time the current Board ever heard or saw of the Release.”
       (Emphasis omitted.) Thus, according to this letter, the Association did not become aware of the
       releases until over a year after their execution and so, at this early stage of the proceedings, we
       cannot find that the Association ratified the releases. See Alliance Property Management, 2015
       IL App (1st) 150169, ¶ 41 (finding no ratification where “the Board did not have knowledge of
       the restriction in the bylaws during the relevant period”). Since it is not clear as a matter of law
       that Keer had the authority to execute the releases, we cannot find the releases to provide an
       alternate basis to affirm the trial court’s dismissal of the Association’s second amended
       complaint. Accordingly, the trial court’s dismissal must be reversed.

¶ 84                                   II. Attorney Fees and Sanctions
¶ 85       The parties also raise several issues concerning the trial court’s award of attorney fees.
       Specifically, the Association argues that the trial court should not have awarded attorney fees
       at all, and if it did properly award some fees, it nevertheless awarded too much. By contrast,
       the developers argue that the trial court should have awarded more and also argue that the trial
       court should have considered their motion for Rule 137 sanctions. However, since we have
       determined that the trial court erred in dismissing the Association’s second amended
       complaint, we have no need to consider the arguments concerning attorney fees, as the case
       remains active. Similarly, we have no need to consider the propriety of the trial court’s
       decision concerning Rule 137 sanctions.

¶ 86                                         CONCLUSION
¶ 87        For the reasons set forth above, the trial court erred in finding that the Association had
       waived its claims against defendants by failing to follow the mandatory dispute resolution
       procedures set forth in article 12 of the declaration. Furthermore, since that article was
       subsequently amended, the Association could properly proceed directly to a lawsuit without
       first seeking mediation or arbitration. Accordingly, we find that the trial court erred in
       dismissing the Association’s second amended complaint. We further find that the releases
       signed by Keer do not provide an alternate basis for affirming the trial court’s dismissal, as the
       facts as alleged in the complaint show that Keer did not have the authority to execute the
       releases.

¶ 88      Reversed.


                                                    - 23 -
