                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




           Goldberg v. Astor Plaza Condominium Ass’n, 2012 IL App (1st) 110620




Appellate Court            MARGARET GOLDBERG, Plaintiff-Appellant, v. ASTOR PLAZA
Caption                    CONDOMINIUM ASSOCIATION, DANIEL G. MOHEN, TRAVIS W.
                           COCHRAN, GEETA KRISHNAMURTHI, and WILLIAM S. LODER,
                           Defendants-Appellees.



District & No.             First District, Sixth Division
                           Docket No. 1-11-0620


Opinion filed          March 23, 2012
Rehearing denied       April 30, 2012
Modified Opinion filed May 4, 2012


Held                       In an action arising from a dispute between an owner of a condominium
(Note: This syllabus       unit and defendant condominium association, the trial court properly
constitutes no part of     found that the windows of the individual units were to be maintained by
the opinion of the court   the unit owners, that the board of directors of the association had the
but has been prepared      power to enter into a renovation loan and to increase the assessments to
by the Reporter of         repay the loan, and that plaintiff failed to prove she was a victim of
Decisions for the          oppression, but the trial court erred by failing to award plaintiff
convenience of the         reasonable attorney fees after she prevailed on the count of her complaint
reader.)
                           requiring the association to produce minutes of its board of directors
                           meetings for specific periods of time.


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-CH-24682; the
Review                     Hon. Mary Mikva, Judge, presiding.


Judgment                   Affirmed in part and reversed in part with instructions.
Counsel on                 Ted A. Donner, of Donner & Company Law Offices LLC, of Wheaton,
Appeal                     for appellant.

                           Arthur W. Aufmann and Jacob L.V. Armstrong, both of Law Offices of
                           Edward T. Joyce & Associates, P.C., of Chicago, for appellees.


Panel                      PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
                           with opinion.
                           Justices Garcia and Palmer concurred in the judgment and opinion.



                                             OPINION

¶1          This appeal arises from a dispute between plaintiff Margaret Goldberg (Margaret) and
        defendants Astor Plaza Condominium Association (Association) and its board of directors
        in their individual capacities: Daniel Mohen, Travis Cochran, Geeta Krishnamurthi, and
        William Loder (collectively, the board).

¶2                                         BACKGROUND
¶3                                     I. Events Prior to Lawsuit
¶4          We begin by relating the background of the parties, which is set out in each party’s brief
        and is uncontradicted by the other party. In her brief, Margaret states the following. Astor
        Plaza is an eight-unit condominium building located in Chicago. Margaret owns one of the
        units, and four of the others are owned by defendants Mohen, Cochran, Krishnamurthi, and
        Loder; the remaining three units are owned by Paula Krasny, Mark Karno, and David Drew.
        Margaret first moved into the building in 1983.
¶5          In 2005, Margaret expressed a number of concerns about the operation of the
        Association. As she testified at trial, she was concerned about a lack of communication
        among the unit owners and about problems with the internal and external structure of the
        units that needed to be addressed, including problems with windows and balconies, a lack
        of maintenance in the common areas, and the absence of reserves for the Association.
        Margaret was also concerned because board meetings were occurring but she was not
        provided notice or minutes of the meetings. The unit owners met to discuss Margaret’s
        concerns and afterward, the manager came to inspect her windows.
¶6          In March 2006, a meeting was scheduled to elect a new board of directors, and the new
        board consisted of the individuals named as defendants in the instant case. The board had a
        few informal gatherings shortly after the election but did not hold another meeting until
        September 2006, when a meeting was scheduled to discuss proposed improvements. The
        project was expected to cost approximately $450,000. Since the Association did not have

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       sufficient funds in its reserves, the material distributed to the unit owners proposed that the
       Association seek a bank loan to fund the project which would be guaranteed by the unit
       owners. The other unit owners approved the financing, but Margaret was concerned that she
       could end up responsible for other unit owners’ shares of the cost, so she filed a complaint
       on November 14, 2006.
¶7         In its brief, the Association adds the following facts. At the beginning of 2005, the board
       consisted of three unit owners but during 2005, the three board members resigned from the
       board or moved, leaving a period with no board management until the March 2006 election
       of the new board. Prior to the disintegration of the old board, Margaret had expressed a
       number of concerns before the board, and she renewed her grievances after the election of
       the new board.
¶8         One of the grievances raised by Margaret involved the replacement of her bay window,
       which she asked the Association to pay for. In response, the new board considered adopting
       a policy in which the Association would pay for bay windows while the unit owners would
       remain responsible for all other windows. However, prior to making a final decision, the
       board consulted with its attorneys, Keough & Moody, P.C. (K&M). In September 2006,
       K&M informed the board that article XIV, section 2(l), of the Association’s declaration
       required all unit owners to maintain, repair, and replace all of the windows in their units.
       Consequently, the board informed Margaret that she would have to pay for the replacement
       of her bay window.
¶9         Margaret did not accept the board’s decision and also objected to the board’s renovation
       project. Margaret’s attorney argued that article V, section 2, of the declaration prohibited the
       board from financing the renovation with an Association loan. In response, K&M opined that
       article V, section 2, applied only to unit owner loans and not to Association loans.
¶ 10       In order to respond to Margaret’s complaints, the board authorized K&M to share its
       legal opinions with Margaret’s attorney and K&M sent Margaret’s attorney a letter on
       October 10, 2006, in which it explained its understanding that the Association had the
       authority to borrow money and that Margaret was responsible for maintaining, repairing, and
       replacing her own windows pursuant to the declaration. Margaret continued to object, and
       K&M sent another letter to Margaret’s counsel on November 1, 2006, again stating the
       board’s position. On November 6, 2006, a motion to increase the monthly assessments for
       the building renovation project was passed by a vote of all of the Association membership
       7 to 1, with Margaret providing the only vote against the project. On November 14, 2006,
       Margaret filed her initial complaint.

¶ 11                                       II. Complaint
¶ 12       Margaret’s complaint was amended several times during the pendency of the instant
       action, with the final complaint being the third amended complaint, filed on June 6, 2008.
       That complaint, including an amendment adding three additional counts that was filed on
       April 20, 2009, contained a total of 14 counts. The complaint included a “prefatory” section
       stating that counts I, II, IV, and VI of the complaint had been dismissed either due to
       mootness or pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

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       615 (West 2008)) but that Margaret was including them “solely for purposes of preserving
       her objections for appeal.” The prefatory section also noted that Margaret had named Karno,
       Krasny, and Drew as defendants solely for purposes of count XI.
¶ 13       The counts at issue in the case at bar are counts VII, VIII, X, and XIII, so we relate only
       the allegations relevant to those counts.
¶ 14       Count VII was against the Association and concerned failure to maintain common
       elements. The complaint alleges that Margaret “has a balcony which is substantially rusted,
       a deteriorating window frame in the front bay window, and side window frames which are
       badly deteriorated in [Margaret’s] apartment.” The complaint further alleges that
       “[n]otwithstanding a long history of discussion with regard to these elements, however, and
       assurances from both the current and prior boards, [the Association] has sought to avoid any
       responsibility for [Margaret’s] balcony and window frames by summarily excluding them
       from the building’s historical and published definition of what constitutes a common
       element.”
¶ 15       According to the complaint, the Association based its determination on article XIV,
       section 2, of the declaration, which provided that the duties of the board included paying for
           “tuckpointing, maintenance, decorating, repair, and replacement of the Common
           Elements (but not including the windows and glass doors appurtenant to the Unit, if any,
           *** which the Unit owners shall *** maintain and repair, except if necessitated by
           repairs to the Common Elements).”
       The complaint alleges that the declaration did not exclude the Association’s responsibility
       to maintain the window frames, as opposed to the windows themselves, and that the problem
       arose from structural defects in the building itself and not from the windows.
¶ 16       The complaint further alleges that the board has paid for correcting such problems in the
       past when they occurred in the units of board members and that the Association had assessed
       all of the unit owners previously in order to pay for repairs to balconies. Furthermore, the
       complaint alleges that board member Loder, purportedly on behalf of the board, had
       repeatedly promised Margaret that the window frame would be repaired.
¶ 17       Count VIII of the complaint is against the Association for relief pursuant to section
       112.50 of the General Not For Profit Corporation Act of 1986 (Not For Profit Act) (805
       ILCS 105/112.50 (West 2008)). The complaint alleges that based on all of the conduct set
       forth in the complaint, “the defendants have acted in a manner that is oppressive with regard
       to [Margaret’s] interest in the building, in dereliction of the obligations imposed upon them
       by the governing documents, in bad faith and in an arbitrary, overbearing and heavy-handed
       manner, and in a manner likely to result in unnecessary waste, gross over-reaching, and
       expense that will need to be wrongfully borne by [Margaret].” Specifically, Margaret pointed
       to (1) the segregation of classes of unit ownership based on whether the unit owner was a
       board member, (2) the refusal of the board to complete the work required on Margaret’s
       windows and balcony, and (3) the board’s invalid and unenforceable procurement of
       financing for the renovation project. Accordingly, Margaret sought the appointment of a
       receiver to manage the business and affairs of the Association.
¶ 18       Count X was against the Association and sought relief under section 19 of the

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       Condominium Property Act (Condominium Act) (765 ILCS 605/19 (West 2008)) for failure
       to keep, maintain, and produce minutes of meetings. The complaint alleges that the board has
       never produced minutes of meetings held in 2005 and that the board has met a number of
       times without notice to the unit owners and without producing minutes of those meetings.
¶ 19       Count XIII was directed at the individual defendants and sought relief pursuant to section
       103.20 of the Not For Profit Act (805 ILCS 105/103.20 (West 2008)). The complaint alleges
       that the individual defendants conspired to negotiate a financial agreement for the renovation
       project “which ran contrary to that initially disclosed to the unit owners, for a greater sum
       of money than that approved by the unit owners, and for additional work not contemplated
       by the original project or approved by the unit owners.” The complaint further alleges that
       defendants knew prior to the vote on the project that the financing was not permitted under
       the Association’s governing documents and therefore misrepresented the nature of the
       project. The complaint also alleges that the individual defendants secured an additional
       $100,000 line of credit that was largely used to pay their personal legal expenses and not for
       general building expenses as represented.

¶ 20                                    III. Motion to Compel
¶ 21       One of defendants’ defenses to the complaint was that they had relied on the advice of
       counsel, and on March 11, 2010, the trial court considered Margaret’s fourth motion to
       compel concerning that defense. The motion to compel requested the entry of an order
       compelling defendants to produce the documents listed in their privilege log since defendants
       had placed reliance on counsel at issue. At the hearing on the motion, Margaret’s counsel
       pointed to the privilege log submitted by defendants and noted that the privilege log was over
       300 pages, involving at least 1,000 pages of documents. The privilege log did not identify
       the specific subject matter for which the privilege was being asserted and Margaret’s counsel
       asserted that “I have no idea, looking at that, whether what this involves is one of the subject
       matters for which there has been a waiver in this case.” The court denied the motion, telling
       Margaret’s counsel to take the depositions of defendants’ former attorneys as planned and
       “[s]ee what they say.” The court stated that it would reconsider the motion if necessary after
       the deposition but that it would not “deal with ‘what if.’ ” After the depositions, Margaret
       filed another motion, but the trial court again denied the motion to compel.

¶ 22                                           IV. Trial
¶ 23       On September 29, 2010, following a bench trial, the trial court entered its judgment in
       a written opinion. The court made a number of findings of fact applicable to all counts: (1)
       that the Association’s bylaws stated that the windows and interior surfaces of units are to be
       maintained, repaired, and replaced by the unit owners; (2) that “the Condominium’s
       Declaration provides that in the event of any question of interpretation or application of the
       Declaration or by-laws, the determination thereof by the Board shall be final and binding”;
       (3) that “the Condominium’s Declaration provides that the members of the Board shall not
       be liable to the unit owners for any mistake of judgment or any acts or omissions made in
       good faith”; (4) that the construction project was properly classified as a renovation; (5) that

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       “the Board had the power to enter into the renovation loan with Harris Bank and signed the
       loan agreement in good faith reliant on legal advice from the Board’s attorney”; (6) that “the
       Board had legal authority and power to spend the loan proceeds to renovate the building and
       did so in good faith reliance on legal advice”; (7) that “the Board had the power to increase
       the assessment to repay the Association’s loan and did so in good faith reliant on legal advice
       and a proper unit owner vote (7 to 1)”; and (8) that the individual defendants were entitled
       to indemnification by the Association “because they acted in good faith and in a manner they
       reasonably believed to be in the best interest of the Association.”
¶ 24        Concerning count VII, the court noted that Loder advised Margaret that the Association
       would pay to replace her window, but that the assurance was given prior to the board’s
       receipt of legal opinions that stated that the windows were the unit owners’ responsibility.
       The court found that the board “acted on good faith reliance upon proper legal advice” and
       accordingly entered judgment in favor of the Association.
¶ 25        When discussing count VIII, seeking the appointment of a receiver, the court noted that
       Margaret was permitted to introduce evidence relating to other counts in support of her
       oppression claim.1 The court observed that Margaret had argued that all of defendants’
       conduct, taken as a whole, demonstrated that the Association acted to oppress Margaret and
       that only through the appointment of a receiver could her rights as a unit owner be protected.
       However, the court found that Margaret was unable to prove that she was a victim of
       oppression. The court found that “[t]o date, the Board has failed to fully comply with their
       obligation to keep proper minutes of their meetings and provide those minutes to any unit
       owner. Their excuse that they are waiting for Mr. Karno’s suggested procedure demonstrated
       a conscious disregard of their legally imposed duty.” Nevertheless, the court found that the
       board’s failure did not constitute oppression since Margaret had been permitted to have a
       shorthand reporter present at board meetings and thus was kept advised of board actions. The
       court rejected the rest of Margaret’s allegations and evidence, finding that it failed to prove
       oppression by the Association and that “[i]n reality, what the evidence most clearly
       demonstrated is Plaintiff’s refusal to accept that the Board’s good faith interpretation and
       application of the Declaration or By-Laws is final and binding regarding disputes between
       the Board and a unit owner.” The court accordingly entered judgment in favor of the
       Association as to count VIII.
¶ 26        With respect to count X, the court found that the Association had failed to comply with
       its statutory obligation to keep and maintain minutes of the board’s meetings. The court
       further found that there was no evidence that any minutes were taken regarding the 2005-06
       board and that the board had not approved any minutes subsequent to July 2007.
       Consequently, the court entered judgment in favor of Margaret and ordered the Association
       to produce “proper minutes for all meetings subsequent to July 2007” within 90 days of the
       judgment order. The court denied Margaret’s request for attorney fees but ordered the


               1
                Specifically, the court noted that Margaret “was allowed to introduce evidence relative to
       Counts I, II, IV, V and VI that had been disposed [of] prior to trial and to argue evidence relative to
       Counts III and VII that was received in the course of the trial.”

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       Association to reimburse Margaret for all costs and fees that she paid in order to have a
       certified shorthand reporter record the board’s meetings subsequent to July 2007.
¶ 27        The court entered judgment in favor of the individual defendants on count XIII, which
       concerned derivative claims, in light of the court’s earlier findings applicable to all counts
       of the complaint.
¶ 28        Finally, the court considered a motion filed by Margaret requesting an award of attorney
       fees for defendants’ failure to produce properly requested documents. The court found that
       defendants failed to produce a “very large quantity” of documents until the “virtual eve of
       trial,” despite Margaret’s numerous motions to compel and court orders requiring production
       of the documents. The court accepted Margaret’s counsel’s representation that timely
       production of the documents may have altered the direction of the litigation, and sanctioned
       defendants in the amount of $25,000 for their discovery violation, the amount of the court
       reporter expenses incurred by Margaret.
¶ 29        On January 18, 2011, the trial court2 denied Margaret’s motion for reconsideration. In its
       oral ruling, the court stated the following concerning the issue of attorney fees sought in
       count X:
                “On the attorney’s fees for production, her entitlement to attorney’s fees for having
            the minutes produced, *** [t]he minutes under the state law, final minutes did not exist.
            Judge Riley recognized that that was not fair to the plaintiff to simply never finalize the
            final minutes, so he ordered the condo association to finalize those minutes and produce
            them within 90 days.
                In terms of whether there should be some remedy for their failure to having finalized
            the minutes for so long, which clearly can be and he found to be problematic, he said,
            Well, in this case it really didn’t prejudice the plaintiff because she did have a court
            reporter transcript available to her and she did that at her own expense and that expense
            would be reimbursed by the association.
                I do not think there’s any clear error in the way he handled the attorney’s fee
            provision.”
¶ 30        On February 17, 2011, the court entered an order concerning the amount owed to
       Margaret for hiring the certified shorthand reporter, thereby resolving any remaining issues
       in the case and Margaret filed her notice of appeal the same day.

¶ 31                                        ANALYSIS
¶ 32                                 I. Count X: Attorney Fees
¶ 33       Margaret argues that the trial court erred by not awarding her attorney fees and costs after
       entering judgment in her favor on count X of her complaint. Margaret argues that section 19
       of the Condominium Act (765 ILCS 605/19(b) (West 2006)) is a mandatory statute on the
       subject of attorney fees because of the statute’s use of the term “shall.” In addition, Margaret

              2
              The trial was heard by Judge Daniel Riley. However, the posttrial motions were heard by
       Judge Mary Mikva due to Judge Riley’s retirement.

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       argues that the trial court’s examination of whether or not she suffered “prejudice” was
       inappropriate, because no such requirement is present in the statute.
¶ 34        Count X of Margaret’s complaint seeks an order compelling the Association to produce
       minutes from meetings and an award of attorney fees and costs. The trial court found that the
       Association failed to abide by the statutory obligations imposed upon it to keep and maintain
       minutes of the Association’s board of directors meetings. The trial court found that there was
       no evidence that any minutes were taken between 2005 and 2006, but found the record clear
       that the board had not approved any minutes subsequent to July 2007 and ordered them to
       produce those minutes. The trial court ordered the Association to pay Margaret $25,000 to
       reimburse her for court reporter fees incurred at board meetings as a discovery sanction, but
       disallowed any attorney fees, finding that Margaret had not established the elements of a
       claim for attorney fees under the statute, but failed to tell us what the elements are.
¶ 35        The issue here is whether or not the statute is mandatory. If a statute is mandatory, a trial
       court has no discretion in applying the statute. People v. Delvillar, 235 Ill. 2d 507, 516
       (2009). Whether a statute is mandatory or discretionary is a matter of statutory construction
       and is reviewed de novo. Delvillar, 235 Ill. 2d at 517. 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). The purpose of statutory construction is to “ascertain and give
       effect to the legislature’s intent.” Michigan Avenue National Bank v. County of Cook, 191
       Ill. 2d 493, 503-04 (2000). The best indication of legislative intent is the plain and ordinary
       meaning of the statutory language. Paris v. Feder, 179 Ill. 2d 173, 177 (1997); Delvillar, 235
       Ill. 2d at 517.
¶ 36        The statute at issue states, in pertinent part, that “[a]ny member who prevails in an
       enforcement action to compel examination of the records *** shall be entitled to recover
       reasonable attorney’s fees and costs from the association.” (Emphasis added.) 765 ILCS
       605/19(b) (West 2006). Our supreme court has held that the use of the term “shall” indicates
       that a statute is mandatory. Citizens Organizing Project v. Department of Natural Resources,
       189 Ill. 2d 593, 598 (2000); People v. Ramirez, 214 Ill. 2d 176, 182 (2005) (“[i]t is well
       established that, by employing the word ‘shall,’ the legislature evinces a clear intent to
       impose a mandatory obligation”).
¶ 37        Our supreme court has found that, in some circumstances, the context of a statute may
       dictate otherwise, and may find that the use of “shall” does not indicate a mandatory statute.
       See In re Application of Rosewell, 97 Ill. 2d 434, 440-41 (1983); Cooper v. Hinrichs, 10 Ill.
       2d 269, 272 (1957). For example, the statute at issue in Cooper used the phrase “whenever
       possible” in addition to the term “shall,” which our supreme court interpreted as indicating
       that the legislature did not intend for the law to be mandatory because the legislature
       anticipated cases in which following the statute would not be possible. Cooper, 10 Ill. 2d at
       272-73. The entirety of an act may also be used to place a statute in context. In Ramirez, the
       supreme court found that a statute allowing criminal defendants to be tried in absentia
       required the clerk of the court to send notice to defendants via certified mail. Ramirez, 214
       Ill. 2d at 182. The court held that the statute’s use of “shall” meant that the legislature
       intended for the requirement to be mandatory because the statute read that notice “shall” be
       given by certified mail. Ramirez, 214 Ill. 2d at 182. Therefore, the court found that the

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       conviction was improper because the clerk did not send notice via certified mail. Ramirez,
       214 Ill. 2d at 187. In People v. Robinson, 217 Ill. 2d 43, 59 (2005), analyzing Ramirez, the
       supreme court reiterated that the use of “shall” indicates a mandatory statute. The court then
       expanded upon this reasoning and found that the statute in Ramirez had the purpose of
       safeguarding the rights of criminal defendants being tried in absentia. Robinson, 217 Ill. 2d
       at 59. The court determined that the certified mail requirement served the “larger legislative
       scheme” of protecting constitutional rights, thus bolstering the already strong presumption
       that the statute was mandatory. Robinson, 217 Ill. 2d at 59.
¶ 38        In the case at bar, the statute at issue is a fee-shifting statute which clearly states that
       attorney fees shall be awarded if Margaret prevails against a condominium board in an
       enforcement action. 765 ILCS 605/19 (West 2006). In Citizens Organizing Project, the
       supreme court analyzed a similar fee-shifting statute that is part of the Illinois Administrative
       Procedure Act (5 ILCS 100/10-55 (West 1998)). Citizens Organizing Project, 189 Ill. 2d at
       598. The statute applied when parties successfully brought an action against the government
       for violating an administrative rule. Citizens Organizing Project, 189 Ill. 2d at 598. The
       statute stated that the “ ‘court shall award the party bringing the action the reasonable
       expenses of the litigation, including reasonable attorney’s fees.’ ” (Emphasis in original.)
       Citizens Organizing Project, 189 Ill. 2d at 598 (quoting 5 ILCS 100/10-55(c) (West 1998)).
       The supreme court found no reason to hold that the legislature did not intend the fee-shifting
       statute to be mandatory and determined that the trial court had no choice but to award
       attorney fees. Citizens Organizing Project, 189 Ill. 2d at 598.
¶ 39        Not all fee-shifting statutes are mandatory. In McNiff v. Mazda Motor of America, Inc.,
       384 Ill. App. 3d 401, 405-06 (2008), the Illinois Appellate Court for the Fourth District found
       that a fee-shifting statute allowing for attorney fees was not mandatory. However, that case
       is distinguishable from the case at bar because the statute specifically stated that the award
       of attorney fees was within the court’s discretion. McNiff, 384 Ill. App. 3d at 405 (quoting
       15 U.S.C. § 2310(d)(2) (2000)). The statute stated that prevailing parties “ ‘may be allowed
       by the court’ ” to recover costs, which the court has the discretion to determine. (Emphasis
       added.) McNiff, 384 Ill. App. 3d at 405 (quoting 15 U.S.C. § 2310(d)(2) (2000)). The statute
       also read that courts have the discretion to determine that an award of attorney fees may be
       inappropriate under the circumstances of the case. McNiff, 384 Ill. App. 3d at 405 (quoting
       15 U.S.C. § 2310(d)(2) (2000)).
¶ 40        That is not the case here. The Illinois Condominium Property Act specifically states that
       prevailing parties “shall” be entitled to recover reasonable attorney fees. 765 ILCS 605/19(b)
       (West 2006). The use of the term “shall” strongly indicates that the legislature intended for
       this statute to be mandatory. Citizens Organizing Project, 189 Ill. 2d at 598; Ramirez, 214
       Ill. 2d at 182; Robinson, 217 Ill. 2d at 59. No other language in the statute indicates that the
       legislature did not intend for the fee-shifting provision to be mandatory. Compare Cooper,
       10 Ill. 2d at 272 (in which the use of the phrase “whenever possible,” coupled with the term
       “shall,” indicated that the legislature did not intend for the provision to apply in all cases).
       The supreme court held in Citizens Organizing Project that the very purpose of a fee-shifting
       statute was to discourage improper conduct and encourage parties to litigate against such
       improper conduct by removing the high cost of litigation and imposing it on wrongdoing

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       defendants. Citizens Organizing Project, 189 Ill. 2d at 598-99. The purpose of section 19 is
       to ensure that condominium boards remain accountable to their residents; therefore, the
       desire by the legislature to encourage litigation against improper conduct through mandatory
       fee-shifting is quite apparent.
¶ 41        We note the existence of a decision from this court that examined this statute. Taghert
       v. Wesley, 343 Ill. App. 3d 1140 (2003); however, we find the case distinguishable from the
       case at bar because the court did not consider whether the statute was mandatory. In Taghert,
       the plaintiff successfully proved that the defendants failed to provide requested condominium
       documents, and the trial court awarded attorney fees. Taghert, 343 Ill. App. 3d at 1142. On
       appeal, the defendants argued that the award of attorney fees was improper. Taghert, 343 Ill.
       App. 3d at 1147. This court determined that an award of attorney fees is a matter within the
       trial court’s discretion and, finding no abuse of discretion, affirmed the award of fees.
       Taghert, 343 Ill. App. 3d at 1147-48. The court at no point addressed the purpose or rules
       of statutory construction, nor did it address the statute’s use of the term “shall.” Therefore,
       we do not find the reasoning of Taghert relevant to the disposition of the case at bar.
¶ 42        Here, the trial court rested its reasoning, in part, on the notion that because Margaret had
       obtained transcripts of the meetings through the use of a court reporter, she had not been
       “prejudiced” and was therefore not entitled to attorney fees. Margaret argues that such a
       finding is improper because nowhere in the statute is there a requirement that the plaintiff
       be “prejudiced” before she may recover attorney fees. 765 ILCS 605/19 (West 2006). Indeed,
       the only requirement given by the statute is that plaintiff prevails in her action to compel
       examination of records. 765 ILCS 605/19(b) (West 2006). Courts may not read in words to
       alter the meaning of statutes. People v. Janas, 389 Ill. App. 3d 426, 429-30 (2009), appeal
       denied, 233 Ill. 2d 579 (2009). To do so would be to contravene the legislature’s intentions,
       because if the legislature had intended to include words in the statute, it would have done so.
       Janas, 389 Ill. App. 3d at 430.
¶ 43        The role of courts in interpreting statutes is to give effect to the legislature’s intent when
       enacting a statute. When the statute is plain and unambiguous, we look only to what is
       actually contained within the statute by determining its plain and ordinary meaning. Anthony
       v. Butler, 166 Ill. App. 3d 575, 579 (1988). In the case at bar, neither party argues that section
       19 is ambiguous, and we do not independently find it so. The plain and ordinary meaning of
       the statute expressly mandates that attorney fees “shall” be paid to the prevailing party. As
       a result, the trial court erred in failing to award reasonable attorney fees to Margaret after she
       prevailed in count X of her third amended complaint requiring defendant to produce minutes
       of its board of managers meetings for specific periods of time.
¶ 44        On Margaret’s petition for rehearing, she states, “this Court appears to have granted
       Goldberg the relief sought by her with regard to Article 7, Section 4, notwithstanding the
       Court’s Affirmation of the trial court’s decision on the individual counts in question.” We
       have not granted Margaret’s relief which should be obvious and Margaret’s argument to that
       effect is not persuasive. Margaret asks for clarification, but objects to this court making
       comments limiting the attorney fees to count X. As a result of Margaret’s comments and
       judicial economy, we are compelled to include this direction in our opinion. Since this court
       affirmed the trial court on all counts at issue except count X, the trial court should consider

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       what fees were incurred by Margaret pertaining to count X only, because the Association
       should not be responsible for all the attorney fees Margaret incurred in this litigation. As to
       the question of out-of-pocket costs, if Margaret can show that she incurred costs pertaining
       to count X, she should be awarded those costs.

¶ 45                                     II. The Other Counts
¶ 46                                A. The Window Controversy
¶ 47       When a controversy regarding the rights of a condominium unit owner in a condominium
       arises, we must examine any relevant provisions in the Condominium Property Act (765
       ILCS 605/1 et seq. (West 2006)), and the declaration or bylaws of the condominium and
       construe them as a whole. Carney v. Donley, 261 Ill. App. 3d 1002 (1994) (citing Wolinsky
       v. Kadison, 114 Ill. App. 3d 527, 532 (1983)). The parties agree that article XIV, section 2(c),
       of this condominium declaration requires all unit owners to maintain, repair, and replace all
       of the windows in their units. Margaret argues that windows do not mean the structures that
       hold the window and the board found that it does.
¶ 48       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. Since there are no disputed questions of material fact, we may properly
       address de novo the issue of whether the declaration authorized the board to approve
       Margaret’s window renovation. Carney, 261 Ill. App. 3d at 1005. De novo consideration
       means we perform the same analysis that a trial judge would perform. Khan, 408 Ill. App.
       3d at 578. Initially some or all of the board may have agreed with Margaret, but they changed
       their minds on the advice of counsel.
¶ 49       Because “the Association’s by-laws state that the windows and interior surfaces of the
       units are to be maintained, repaired, and replaced by the unit owners,” the board acted
       properly. In addition, the Association obtained a legal opinion on the window issue and acted
       on that opinion, finding that Margaret was responsible both for the window replacement and
       the structures holding the windows. The trial court was correct in finding for the defendants
       on this issue.

¶ 50                                    B. Derivative Claims
¶ 51       Margaret first contends that condominium owners, such as herself, have standing to bring
       derivative suits against third parties, such as the individual defendants who were former
       board members.
¶ 52       A derivative action is an action that a corporate shareholder brings on behalf of a
       corporation to seek relief for injuries done to that corporation, where the corporation either
       cannot or will not assert its own rights. Caparos v. Morton, 364 Ill. App. 3d 159, 167 (2006).
       As the United States Supreme Court has explained:
           “[Derivative] lawsuits are one of the remedies which equity designed for those situations
           where the management through fraud, neglect of duty or other cause declines to take the


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            proper and necessary steps to assert the rights which the corporation has. The
            stockholders are then allowed to take the initiative and institute the suit which the
            management should have started had it performed its duty.” Meyer v. Fleming, 327 U.S.
            161, 167 (1946).
       See Brown v. Tenney, 125 Ill. 2d 348, 355 (1988) (derivative suit is a “device to protect
       shareholders against abuses by the corporation, its officers and directors, and is a vehicle to
       insure corporate accountability”).
¶ 53        Necessarily, therefore, the general rule under these cases is that shareholders may bring
       derivative suits against the third parties who have allegedly wronged the corporation. A
       derivative suit technically consists of two causes of action: one against the board of directors
       for failing to sue, and the other based upon the corporate right that was allegedly violated.
       Brown, 125 Ill. 2d at 355. Because of this, a corporation is a necessary party to a derivative
       suit on its behalf. Meyer, 327 U.S. at 167; Metropolitan Sanitary District of Greater Chicago
       ex rel. O’Keeffe v. Ingram Corp., 85 Ill. 2d 458, 472 (1981). However, the corporation “is
       only nominally a defendant, since any judgment obtained against the real defendant runs in
       its favor.” Meyer, 327 U.S. at 167.
¶ 54        Defendants do not concede in their brief that unit owners, such as plaintiffs, may bring
       derivative suits on behalf of a condominium association against the current board of
       directors. However, the case law in support of that proposition is instructive. Board of
       Directors of Kennelly Square Condominium Ass’n v. Mob Ventures, L.L.C., 359 Ill. App. 3d
       991, 995 (2005) (stating that unit owners “have the remedy of filing a derivative action
       against the Board if the Board fails to assert their claim against [third-party] defendants”);
       Poulet v. H.F.O., L.L.C., 353 Ill. App. 3d 82, 100 (2004) (same). The defendants question
       whether Margaret had the standing to sue derivatively against the former members of the
       board.
¶ 55        Courts in other jurisdictions have answered this question in the affirmative. In the New
       Jersey decision of Siller v. Hartz Mountain Associates, 461 A.2d 568 (N.J. 1983), the
       Supreme Court of New Jersey dealt with the issue of who has the right to sue for injuries
       allegedly done to commonly owned condominium elements. The Siller court noted that New
       Jersey’s condominium act states that the association has responsibility over the maintenance,
       repair, and replacement of such common elements. Thus, the Siller court held that unit
       owners could not pursue individual claims for damage to these elements: “A sensible reading
       of the statute leads to the conclusion that such causes of action belong exclusively to the
       association ***.” Siller, 461 A.2d at 573-74. However, the court then went on to state:
                 “This is not to say that a unit owner may not act on a common element claim upon
            the association’s failure to do so. In that event the unit owner’s claim should be
            considered derivative in nature and the association must be named as a party. ***
                 The unit owner may also sue the developer on behalf of the association irrespective
            of its governing board’s willingness to sue during the period of time that the association
            remains under the control of the developer.” Siller, 461 A.2d at 574
       Thus, although the right to sue belongs exclusively to the association, unit owners do not
       usurp that right by bringing derivative suits on the association’s behalf against third parties;

                                                -12-
       rather, they are simply acting as the arms of the association to exercise that associational
       right.
¶ 56       The Supreme Judicial Court of Massachusetts reached a similar conclusion in Cigal v.
       Leader Development Corp., 557 N.E.2d 1119 (Mass. 1990). The Cigal court found that unit
       owners lacked standing to pursue individual claims against a subcontractor for defects in the
       construction of commonly owned areas, as such claims were the exclusive province of the
       association. Cigal, 557 N.E.2d at 1122-23 (citing Siller, 461 A.2d at 568). Instead, the Cigal
       court stated that the unit owners’ proper recourse was to bring a derivative suit on behalf of
       the association against the subcontractor, and on remand it instructed that the unit owners be
       given leave to amend their complaint to proceed on a derivative basis. Cigal, 557 N.E.2d at
       1123 n.10. The court noted that a derivative suit against the third party was appropriate in
       light of the unit owners’ allegation that they brought suit only after repeated efforts to
       convince the association to pursue the matter on its own. Cigal, 557 N.E.2d at 1123 n.10.
¶ 57       Here, defendants claim that Margaret did not have derivative standing to bring her claims
       because she did not fairly and adequately represent the interests of the members similarly
       situated in enforcing the rights of the corporation. Since the action is against former board
       members for mishandling the association’s resources, we find Margaret has standing.
¶ 58       The trial court recognized and decided these claims, which were enumerated in count
       XIII, as “a series of derivative claims.”
¶ 59       The trial court found in favor of the individual defendants. Margaret’s brief before this
       court points only to the board’s decision not to reimburse Margaret for repairs, claimed in
       common elements adjoining her window. Margaret’s brief indicates that she produced Marco
       Parra, who testified that the damage was caused by a problem in the building walls and
       common areas, and thus it was the responsibility of the Association.
¶ 60       In deciding a case based on the evidence, our standard of review is manifest weight of
       the evidence, which means a reviewing court should overturn a trial court’s factual findings
       only if they are against the manifest weight of the evidence. Addison Insurance Co. v. Fay,
       232 Ill. 2d 446 (2009). “A judgment is against the manifest weight of the evidence only when
       an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or
       not based on evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). This deferential
       standard of review exists because the trial court is in a superior position to determine and
       weigh the credibility of the witnesses, observe witnesses’ demeanor, and resolve conflicts
       in their testimony. People v. Jones, 215 Ill. 2d 261, 268 (2005).
¶ 61       Marco Parra was never qualified as an expert in anything in the trial of this matter. He
       testified that he worked construction for six years and performed some construction work at
       the property located at 39 East Schiller in two units, one being that of Margaret. He oversaw
       and managed the replacement of Margaret’s first-floor bay window. Parra then read from
       certain trial exhibits presented to him. Parra testified that when the bay window was taken
       out he observed damage on the window pane and below the sill he observed that the framing
       was rotted as well as the sill. There was no testimony by Parra as to the costs that would
       apply to repair the common elements adjoining Margaret’s window and no foundation was
       laid to show he would be able to distinguish the costs paid by Margaret for common elements


                                               -13-
       from the costs incurred for the replacement of the window and its internal structure. As a
       result, we cannot overturn the trial court’s factual findings as against the manifest weight of
       the evidence.
¶ 62        The individual members of the board of a condominium association owe a fiduciary duty
       to the unit owners (765 ILCS 605/18.4 (West 2006); Wolinsky v. Kadison, 114 Ill. App. 3d
       527, 533 (1983)). This fiduciary duty requires that board members act in a manner reasonably
       related to the exercise of that duty and the failure to do so results in liability for the board and
       its individual members. Wolinsky, 114 Ill. App. 3d at 533-34. When a board properly
       exercises its business judgment in interpreting its own declaration, we will not find the
       board’s interpretation a breach of fiduciary duty. Carney, 261 Ill. App. 3d at 1011 (citing
       Yorkshire Village Community Ass’n v. Sweasy, 170 Ill. App. 3d 155, 159 (1988)).
¶ 63        Under the business judgment rule, “[a]bsent evidence of bad faith, fraud, illegality, or
       gross overreaching, courts are not at liberty to interfere with the exercise of business
       judgment by corporate directors.” Fields v. Sax, 123 Ill. App. 3d 460, 467 (1984); see Stamp
       v. Touche Ross & Co., 263 Ill. App. 3d 1010, 1015 (1993). The purpose of this rule is to
       protect directors who have been diligent and careful in performing their duties from being
       subjected to liability from honest mistakes of judgment. Stamp, 263 Ill. App. 3d at 1015.
       However, it is a prerequisite to the application of the business judgment rule that the
       directors exercise due care in carrying out their corporate duties. Stamp, 263 Ill. App. 3d at
       1016. If directors fail to exercise due care, then they may not use the business judgment rule
       as a shield for their conduct. Stamp, 263 Ill. App. 3d at 1016; Lower v. Lanark Mutual Fire
       Insurance Co., 114 Ill. App. 3d 462, 467 (1983) (directors must be diligent and careful in
       carrying out their duties to earn the protection of the business judgment rule); Ferris Elevator
       Co. v. Neffco, Inc., 285 Ill. App. 3d 350, 354 (1996) (evidence of directors’ lack of due care
       was sufficient to overcome the business judgment rule).
¶ 64        One component of due care is that directors must inform themselves of material facts
       necessary for them to properly exercise their business judgment. Stamp, 263 Ill. App. 3d at
       1015 (citing Gaillard v. Natomas Co., 256 Cal. Rptr. 702, 711 (Cal. Ct. App. 1989)
       (directors “may not close their eyes to what is going on about them in corporate business, and
       must in appropriate circumstances make such reasonable inquiry as an ordinarily prudent
       person under similar circumstances”)). Thus, the business judgment rule is defeated where
       directors act without “becoming sufficiently informed to make an independent business
       decision.” Ferris, 285 Ill. App. 3d at 354.
¶ 65        Here, we conclude that the board members did not breach their fiduciary duty to the unit
       owners when they interpreted the declaration to conclude that the board did not have the
       authority to pay for Margaret’s windows and surrounding structures. The record shows that
       the board sought legal advice before reaching its decision and relied on that advice in
       reaching its decision.

¶ 66                    C. The Association Had the Authority to Enter
                              Into Loans for Needed Renovation
¶ 67       Margaret claims that the board did not have the authority to enter into a financial

                                                  -14-
       agreement involving “structural alterations, additions to, or improvements of the common
       elements,” without unit owner approval of a special assessment, which the unit owners were
       prohibited from doing in a manner that would result in a lien on the property under the
       Association bylaws, article XIV(2)(g).
¶ 68       The trial court properly concluded that the board had the authority to enter into the loan
       after seven out of eight unit owners approved the work to be done and increase in
       assessment. We review this issue de novo because it concerns statutory construction.
       Delvillar, 235 Ill. 2d at 517.

¶ 69                                D. Condominium Property Act
¶ 70       The Condominium Property Act (765 ILCS 605/18.4 (West 2006)), states:
           “Powers and Duties of Board of Managers. The 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. The powers and duties of the board of managers shall
           include, but shall not be limited to, the following:
                     (a) To provide for the operation, care, upkeep, maintenance, replacement and
                improvement of the common elements. Nothing in this subsection (a) shall be
                deemed to invalidate any provision in a condominium instrument placing limits on
                expenditures for the common elements, provided, that such limits shall not be
                applicable to expenditures for repair, replacement, or restoration of existing portions
                of the common elements. The term ‘repair, replacement or restoration’ means
                expenditures to deteriorated or damaged portions of the property related to the
                existing decorating, facilities, or structural or mechanical components, interior or
                exterior surfaces, or energy systems and equipment with the functional equivalent of
                the original portions of such areas. Replacement of the common elements may result
                in an improvement over the original quality of such elements or facilities; provided
                that, unless the improvement is mandated by law or is an emergency as defined in
                item (iv) of subparagraph (8) of paragraph (a) of Section 18 [765 ILCS 605/18], if the
                improvement results in a proposed expenditure exceeding 5% of the annual budget,
                the board of managers, upon written petition by unit owners with 20% of the votes
                of the association delivered to the board within 14 days of the board action to
                approve the expenditure, shall call a meeting of the unit owners within 30 days of the
                date of delivery of the petition to consider the expenditure. Unless a majority of the
                total votes of the unit owners are cast at the meeting to reject the expenditure, it is
                ratified.”
¶ 71       This statute provides the authority for the board to finance the work notwithstanding the
       conditions in the Association’s declaration.
¶ 72       The statute states that limits on expenditures “shall not be applicable to expenditures for
       repair, replacement, or restoration of existing portions of the common elements.” As a result,
       article XIV(2)(g) of the Association’s bylaws is a limitation and not applicable to this
       project. The project consists of “interior and exterior renovations to the common elements,

                                                -15-
       consisting of painting, installation of all new trim in common hallways, all new unit entry
       doors, updating of the elevator interior, facade repairs/replacements, masonry, tuckpointing,
       balcony fencing, [and] installation of paver a brick drive.”
¶ 73        Even if some of these items are considered improvements as Margaret claims, seven out
       of eight condominium owners approved the work and the loans. If the process that was
       utilized did not occur exactly as the statute dictates, the law would not require a futile act to
       redo the process. People v. Cameron, 286 Ill. App. 3d 541, 544 (1997), appeal denied, 173
       Ill. 2d 530 (1997).
¶ 74        Section 2.1 of the Act provides that any provisions of a condominium instrument that
       contains provisions inconsistent with the provisions of this Act are void as against public
       policy and ineffective. River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268, 278
       (2009). We find that the board’s action in obtaining the loan was proper and affirm the trial
       court’s decision as to the loan being appropriate. We have the right to affirm a trial court’s
       decision even when we do not agree with its analysis. See In re Alfred H.H., 233 Ill. 2d 345,
       347 (2009) (affirming a case on different grounds than those relied upon by the appellate
       court).

¶ 75                        E. Production of Documents Relating to the
                               Legal Opinions Relied on by the Board
¶ 76        Margaret was denied her request to review the Association’s attorneys’ documents under
       which they claimed reliance. Although this court decided many of the issues of this case
       basically on statutory construction instead of the business judgment of the board, we will still
       decide this issue because the trial court decision, as well as our own, discussed the business
       judgment of the board and its reliance on the legal opinions. The trial court’s refusal to
       compel the production of documents based on attorney-client privilege is reviewed de novo.
       Sterling Finance Management, L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442, 446
       (2002).
¶ 77        Margaret argues that she was deprived of a fair trial because of the trial court’s failure
       to order the production of documents the Association received from its attorneys and
       documents generated between the Association and its attorneys. Defendants in their brief fail
       to answer Margaret’s arguments, contending only that Margaret cannot establish reversible
       error.
¶ 78        The purpose of the attorney-client privilege is “to encourage and promote full and frank
       consultation between a client and legal advisor by removing the fear of compelled disclosure
       of information.” Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 117-18 (1982).
       However, because the privilege poses a bar to the discovery of relevant and material facts,
       it is an exception to the general duty to disclose and is interpreted narrowly. Consolidation
       Coal, 89 Ill. 2d at 118.
¶ 79        The privilege log in the case at bar is approximately 265 pages long, with 10 to 15
       documents referenced per page. Margaret claims that she was unable to determine whether
       the privilege had been waived with respect to any of the documents in the privilege log
       because the descriptions of the subject matter were insufficient. However, there is no

                                                 -16-
       indication in the record that Margaret asked the trial court to make any determination
       concerning the applicability of the privilege to the specific documents at issue; instead,
       Margaret generally requested production of the documents so that her attorney could
       determine if they were privileged or at least a more specific privilege log. Likewise, there is
       no indication in the record that the trial court reviewed the documents in camera to
       determine whether they were covered by the attorney-client privilege. Without this
       information, we cannot review the propriety of the trial court’s finding. Most importantly,
       the correspondence between a board and its attorney is ordinarily originated in a confidence
       that the correspondence would not be disclosed, was made by an attorney acting in his legal
       capacity for the purpose of securing legal advice, and would remain confidential.
       Consolidation Coal, 89 Ill. 2d at 119. And, finally, the denial by the trial court did not affect
       the outcome of this case.
¶ 80       As a result, we affirm the trial court’s denial of Margaret’s motion to compel the
       production of the documentation contained in the privilege log.

¶ 81                                     CONCLUSION
¶ 82       As to count X, we find that the statute is mandatory and attorney fees “shall” be paid to
       the prevailing party and we reverse the trial court with instructions. As to all other counts,
       we affirm the judgment of the circuit court of Cook County.

¶ 83       Affirmed in part and reversed in part with instructions.




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