                            2014 IL App (1st)132762
                                 No. 1-13-2762

                                                                     Fifth Division
                                                                     June 20, 2014

                                     IN THE

                     APPELLATE COURT OF ILLINOIS

                               FIRST DISTRICT

                                        )
MARTA TYRKA, Individually and as )              Appeal from the Circuit Court
Next Friend of EMILIA TYRKA, a          )       of Cook County.
Minor,                                  )
                                        )
      Plaintiffs-Appellants,            )
                                        )
             v.                         )       No. 12 M1 301780
                                        )
GLENVIEW RIDGE CONDOMINIUM )                    The Honorable
ASSOCIATION,                            )       James E. Snyder,
                                        )       Judge, presiding.
      Defendant-Appellant               )
                                        )
(Melissa Bermejo as Special             )
Representative of the Estate of Geri M. )
Allegretti,                             )
      Defendant).                       )



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




                                  OPINION
     No. 1-13-2762



¶1            Plaintiffs Marta and Emilia Tyrka appeal the trial court's order dismissing

        the counts in their complaint against defendant Glenview Ridge Condominium

        Association (condo association) pursuant to section 2-615 of the Code of Civil

        Procedure (735 ILCS 5/2-615 (West 2012)). Although other counts remain

        against another defendant, the trial court found, pursuant to Illinois Supreme

        Court Rule 304(a) (eff. Feb. 26, 2010), that there was no just reason to delay the

        appeal of its order dismissing counts VII and VIII against defendant condo

        association.

¶2            This appeal concerns injuries sustained by plaintiffs Marta and Emilia

        Tyrka as the result of an attack by a dog belonging to a condo owner. The issue

        on appeal is whether plaintiffs have stated a cause of action against the condo

        association for their injuries.    For the following reasons, we affirm the

        dismissal.

¶3                                   BACKGROUND

¶4                          I. The Second Amended Complaint

¶5            The subject of the trial court's dismissal order was plaintiff's second

        amended complaint. Since this appeal comes to us on a 2-615 dismissal, we

        assume that all the well-pleaded facts in this complaint are true (DeHart v.

        DeHart, 2013 IL 114137, ¶ 18), and we summarize them below.


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¶6            Counts VII and VIII were directed against defendant condo association,

        and these counts allege that defendant condo association was responsible for the

        management of the condo property located at 4150 West Central Road in

        Glenview, including the property's common areas.

¶7            The complaint alleges that, on August 11, 2011, a dog owned by

        defendant Allegretti attacked and mauled a dog owned by plaintiff Marta Tyrka.

        Allegretti's unleashed dog also attacked plaintiffs Marta and Emilia Tyrka. As a

        result of the attack, which occurred in a common area, plaintiffs suffered "great

        pain and discomfort, physical and emotional impairment, all of which injuries

        are permanent."

¶8            The complaint does not allege whether Allegretti was a condo owner, but

        it does allege that she was a "resident" and "harbored" the dog at the condo

        premises. In addition, the complaint does not allege whether plaintiffs were

        condo owners, residents, lessees, or invitees but only that they were where they

        "had a lawful right to be." The complaint does not allege whether the "common

        area" where the attack occurred was a lobby where the public is invited, or a

        hallway used by residents and invitees, or an interior courtyard used by

        residents and invitees for relaxation, or an event room which residents can

        reserve, or another type of space. Since Allegretti died on August 30, 2012, the




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          complaint names as a party defendant Melissa Bernejo, who is the special

          representative of Allegretti's estate.

¶9                Although the complaint alleges that Allegretti's dog attacked plaintiffs

          "without provocation," the complaint does not provide details concerning the

          attack, such as whether the attack on plaintiffs' dog occurred before or after the

          attack on plaintiffs themselves, whether plaintiffs were trying to break up a

          fight between the two dogs when they themselves were attacked, or whether

          plaintiffs were walking their dog unleashed through the common area, as they

          allege defendant Allegretti was doing.

¶ 10              According to the complaint, defendant Allegretti's dog weighed more

          than 25 pounds, and defendant condo association had regulations against

          owning dogs weighing more than 25 pounds at the condo premises, and

          defendant condo association knew that defendant Allegretti's dog weighed more

          than 25 pounds. Defendant condo association also knew that the dog was

          "violent or had a propensity for violence or a mischievous propensity to cause

          injury or damage," because "prior to August 11, 2011, residents *** had

          complained to [defendant condo association] about the violent nature of the

          dog."

¶ 11              In addition, prior to August 11, 2011, defendant condo association knew

          that the dog "had attacked another resident's dog in the common area." "At

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          least three individuals who lived in the Glenview Ridge Condominiums *** had

          complained to [defendant condo association] regarding:" (1) a prior attack by

          the dog; (2) the dog's presence in the building despite the condo association's

          regulations; and (3) general nuisance complaints about the dog. Defendant

          condo association knew or should have known that the dog owned by defendant

          Allegretti "would need to be walked" through the common areas of the condo

          premises on a daily basis, and that the dog was walked without a leash. The

          complaint does not allege whether the Allegretti dog would need to be walked

          through the specific common area where the attack occurred.

¶ 12            As a result of these actions, the complaint alleged that defendant condo

          association had acted negligently by failing to take steps to remove the dog and

          by failing to warn others of the dangerous nature of the dog and that, as a result

          of defendant condo association's negligence, plaintiffs were injured.

¶ 13            Counts VII and VIII are identical, except for the fact that count VII seeks

          relief for injuries suffered by plaintiff Marta Tyrka, while Count VIII seeks

          relief for injuries suffered by minor plaintiff Emilia Tyrka. The complaint does

          not allege the age of the minor plaintiff.

¶ 14            The prayer for relief for both counts begins: "Wherefore the Plaintiff ***

          prays for entry of judgment against the Defendant, Geri Allegretti." Like the

          second amended complaint, the first amended complaint also mistakenly named

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          "Defendant, Geri Allegretti" in the prayer for relief for the two counts against

          defendant condo association.

¶ 15                                  II. Procedural History

¶ 16            We provide here only a short summary of the relevant procedural history

          leading up to the filing of plaintiffs' second amended complaint.

¶ 17            After plaintiffs filed their original complaint on June 26, 2012, defendant

          moved to dismiss the counts against it. Defendant's original dismissal motion is

          not in the appellate record but its reply is in the record. The reply argues, among

          other things, that the complaint's allegations about defendant's knowledge of the

          dog's alleged viciousness were "conclusory" and hence insufficient to allow the

          complaint to go forward at the pleading stage.             The trial court granted

          defendant's dismissal motion on November 28, 2012, but also allowed plaintiff

          28 days to replead. The record does not contain a transcript of proceedings, and

          the trial court's order does not state the reasons for the dismissal.

¶ 18            Plaintiffs filed their first amended complaint on December 27, 2012, and

          defendants again moved to dismiss on January 22, 2013. Defendant again

          argued, among other things, that plaintiffs' allegations about defendant's

          knowledge were "wholly conclusory in nature."          On April 15, 2013, the trial

          court again granted defendant's dismissal motion and again granted plaintiffs'



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       No. 1-13-2762


          leave to replead. The record does not contain a transcript of these proceedings

          and the trial court's order does not state the reasons for the dismissal.

¶ 19            On May 7, 2013, plaintiffs filed their second amended complaint, and

          defendant again moved to dismiss. The substance of defendant's final dismissal

          motion is discussed below.

¶ 20                                III. The Dismissal Motion

¶ 21            On May 20, 2013, defendant condo association moved to dismiss the

          counts against it pursuant to section 2-615 on the grounds (1) that the counts

          were technically deficient since the prayer for relief sought relief only from

          defendant Allegretti, the dog owner; and (2) that the counts were substantively

          defective since plaintiffs had failed to establish a duty of care owed by

          defendant condo association to protect against an attack by Allegretti's dog.

¶ 22            First, the motion stated: "Each count is technically deficient in that its

          prayer for relief seeks relief from Geri Allegretti (whose death was spread of

          record by Order of October 16, 2012) and not from the condominium

          association. The corresponding counts of the First Amended Complaint had the

          same technical deficiency, and plaintiffs failed to cure it in this Second

          Amended Complaint."




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       No. 1-13-2762


¶ 23            Second, the motion argued that plaintiffs had failed to establish that

          defendant condo association had a duty to protect entrants from the potential

          presence of dogs in the common areas.

¶ 24            Third, the motion argued that "plaintiffs' allegations as to this defendant's

          knowledge that the Allegretti dog had already inured someone are wholly

          conclusory in nature." The motion argued that, while plaintiffs alleged that the

          Allegretti dog had attacked another dog, the complaint did not allege the

          specific date or whether a bite or other injury occurred or whether the dog ever

          attacked a person.

¶ 25            In plaintiffs' response to defendant's motion, plaintiffs argued that, under

          common law negligence for dog attacks, regardless of the ownership of the dog,

          a landowner is liable when the attack occurred on the landlord's premises and

          the landowner knew of or had reason to know of the dog's viciousness.

¶ 26                           IV. The Trial Court's Dismissal Order.

¶ 27            The trial court's order, entered on July 30, 2013, stated with respect to

          defendant's motion to dismiss:

                       "This cause coming on to be heard on the motion of the defendant,

                Glenview Ridge Condominium Association, to Strike and Dismiss

                Counts VII and VIII of the Second Amended Complaint, briefs



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       No. 1-13-2762


                submitted, due notice and oral argument heard and the Court fully

                advised in the premises[,]


                       It is hereby ordered that the motion is granted and Counts VII and

                VIII of the Second Amended Complaint are stricken and the Second

                Amended Complaint is dismissed as to Glenview Ridge Condominium

                Association, with a special finding that no just cause exists to delay

                enforcement of or appeal from said order of dismissal. "


¶ 28         Although the above order states that "oral argument [was] heard," the

          appellate record does not contain a transcript or bystander's report for the

          proceedings.

¶ 29            A notice of appeal was filed on August 22, 2013, and this appeal

          followed.

¶ 30                                       ANALYSIS

¶ 31            On this appeal, plaintiffs challenge the trial court's dismissal of the counts

          in plaintiffs' second amended complaint, after defendant condo association

          moved to dismiss these counts pursuant to section 2-615 (735 ILCS 5/2-615

          (West 2012)).




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       No. 1-13-2762


¶ 32                                 I. Section 2-615 Motion

¶ 33               A section 2-615 motion attacks the legal sufficiency of the complaint.

          DeHart, 2013 IL 114137, ¶ 18 (citing Bajwa v. Metropolitan Life Insurance

          Co., 208 Ill. 2d 414, 421 (2004)). When ruling on a section 2-615 motion, a

          court must accept as true all well-pleaded facts in the complaint, as well as any

          reasonable inferences that may be drawn from those facts. DeHart, 2013 IL

          114137, ¶ 18 (citing Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28

          (2004)). A trial court should dismiss a count or cause of action under section 2-

          615 only if it is readily apparent from the pleadings that there is no possible set

          of facts which would entitle plaintiffs to the requested relief. DeHart, 2013 IL

          114137, ¶ 18 (citing Bajwa, 208 Ill. 2d at 421). The question for the court is

          whether the allegations of the complaint, when construed in the light most

          favorable to the plaintiffs, are sufficient to establish the cause of action.

          DeHart, 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James, 2012 IL 112393,

          ¶ 34).

¶ 34               However, our supreme court has also emphasized that Illinois is a fact-

          pleading jurisdiction, and that plaintiffs are required to allege sufficient facts to

          bring a claim within a legally recognized cause of action. Marshall v. Burger

          King Corp., 222 Ill. 2d 422, 430 (2006). Although plaintiffs are not required to

          set forth evidence in a complaint, they also cannot set forth "simply

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          conclusions." Marshall, 222 Ill. 2d at 430. "[M]ere conclusory allegations

          unsupported by specific facts will not suffice." Primax Recoveries v. Atherton,

          365 Ill. App. 3d 1007, 1010 (2006).

¶ 35            On appeal, our review of a trial court's 2-615 dismissal order is de novo.

          DeHart, 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James, 2012 IL 112393,

          ¶ 34). De novo consideration means that we perform the same analysis that a

          trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,

          578 (2011).

¶ 36                      I. Technical Deficiency in Prayer for Relief

¶ 37            Defendant argues that we may affirm on one of two grounds: (1) that the

          prayer for relief was technically deficient; and (2) that the complaint was

          substantively deficient because it failed to establish a duty on the part of

          defendant condo association to protect plaintiffs from the dog owned by

          defendant Allegretti.

¶ 38            As noted above, the prayer for relief in the counts against defendant

          condo association asked for relief solely from defendant Allegretti. This same

          technical defect existed in the first amended complaint, and plaintiffs failed to

          correct it in their second amended complaint.

¶ 39            However, defendant has failed to provide any legal authority for this

          point either in its appellate brief or in its motion to dismiss before the trial

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          court. "This court has repeatedly held that a party waives a point by failing to

          argue it." Lozman v. Putnam, 379 Ill. App. 3d 807, 824 (2008). See also

          People v. Ward, 215 Ill. 2d 317, 332 (2005) ("point raised in a brief but not

          supported by citation to relevant authority *** is therefore forefeited"); In re

          Marriage of Bates, 212 Ill. 2d 489, 517 (2004) ("A reviewing court is entitled to

          have issues clearly defined with relevant authority cited."); Rosier v. Cascade

          Mountains, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting

          legal authority or any reasoned argument, plaintiffs waived consideration of

          their theory for asserting personal jurisdiction over defendants); Ferguson v.

          Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 78 (1998) ("it is not necessary

          to decide this question since the defendant has waived the issue" by failing to

          offer case citation or other support as Supreme Court Rule 341 requires); Ill. S.

          Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument in appellate brief must be

          supported by citation to legal authority and factual record).

¶ 40            For the foregoing reasons, we do not find persuasive defendant's

          argument about this technical defect.

¶ 41                                    II. Duty of Care

¶ 42            Defendant also argued, both in its appellate brief and in its motion to

          dismiss before the trial court, that plaintiffs failed to establish that defendant

          owed a duty of care to protect plaintiffs from defendant Allegretti's dog.

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¶ 43            Both of plaintiffs' counts against defendant are for common law

          negligence. Although the parties discuss the Illinois Animal Control Act (the

          Act) (510 ILCS 5/16 (West 2012)) in their appellate briefs, plaintiffs have not

          alleged a statutory cause of action against defendant condo association pursuant

          to the Act. The Act provides that a dog "owner" is liable in civil damages to a

          person who was attacked by a dog without provocation, if that person was

          peacefully conducting herself in any place where she had a lawful right to be.

          510 ILCS 5/16 (West 2012). The Act defines the word "owner" broadly to

          include any person "who knowingly permits a dog to remain on any premises

          occupied by him or her" (510 ILCS 5/2.16 (West 2012)), and it does not require

          plaintiffs to prove that the defendant knew of a dog's vicious nature. Severson

          v. Ring, 244 Ill. App. 3d 453, 456 (1993). However, in their complaint,

          plaintiffs bring claims of only common law negligence against defendant condo

          association. Plaintiffs do not assert either a statutory claim under the Act or a

          claim of breach of fiduciary duty against defendant condo association. In their

          brief to this court, plaintiffs state: "Plaintiffs' case was filed pursuant to

          common law negligence as opposed to the Illinois Animal Control Act." Thus,

          neither the Act nor any fiduciary duty owed by the condo association is at issue

          on this appeal.




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¶ 44            To state a cause of action for common law negligence, a complaint must

          allege facts that establish: (1) the existence of a duty to use reasonable care

          owed by the defendant to the plaintiffs, (2) a breach of that duty, and (3) an

          injury proximately caused by that breach. Marshall, 222 Ill. 2d at 430; First

          Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999).

¶ 45            In the case at bar, defendant did not move to dismiss on either the second

          or third elements, which are (2) the breach of a duty or (3) the injuries

          proximately caused by that breach. Defendant argued solely that it lacked (1) a

          duty to use reasonable care.

¶ 46            Whether a duty exists in a particular case is a question of law for the

          court to decide and so it is therefore an appropriate ground for a section 2-615

          motion to dismiss. See Marshall, 222 Ill. 2d at 430 (citing Chandler v. Illinois

          Central R.R. Co., 207 Ill. 2d 331, 340 (2003)). By contrast, whether            a

          defendant breached that duty and whether the breach was the proximate cause

          of the plaintiffs' injuries are generally factual matters for a jury to decide, so

          long as there is a genuine issue of material fact regarding those elements.

          Marshall, 222 Ill. 2d at 430 (citing Espinoza v. Elgin Joliet & Eastern Ry. Co.,

          165 Ill. 2d 107, 114 (1995)).

¶ 47            Plaintiffs allege that defendant owed them a duty because defendant

          owned the premises upon which they were injured. To begin with, plaintiffs do

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       No. 1-13-2762


          not allege the status of their presence on the premises. We do not know

          whether they were condo owners, residents, lessees, or invitees. Plaintiffs do

          not allege where the incident occurred, but offer only the conclusion that the

          attack occurred in "a common area." Plaintiffs allege knowledge by defendant

          but not which person, on behalf of the condo association, possessed that

          knowledge, or in what form the residents' complaints were made, or when they

          were made.

¶ 48            To support their allegation that defendant owed them a duty, plaintiffs

          rely primarily on the following four cases: (1) Frost v. Robave, Inc., 296 Ill.

          App. 3d 528, 537-38 (1998); (2) Goennenwein v. Rasof, 296 Ill. App. 3d 650,

          654 (1998); (3) Severson v. Ring, 244 Ill. App. 3d 453, 458 (1993); and (4)

          Lucas v. Kriska, 168 Ill. App. 3d 317, 320 (1988). In the majority of these

          cases, no liability was found.

¶ 49            In Frost, this court held that a business entity was not liable in common

          law negligence for a dog attack which occurred on the second-floor landing

          immediately outside of the business' office, although the dog was owned by a

          co-owner of the business and the dog's owner occasionally took the dog to

          work. Frost, 296 Ill. App. 3d at 530-31. The Frost court acknowledged that,

          under common law negligence, a business entity does not necessarily have to be

          the dog's owner to be liable for a dog attack, and that "[f]acts giving rise to a

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          duty" occur "where [a] defendant is legally responsible for the premises where

          the injury occurred." Frost, 296 Ill. App. 3d at 537. However, since the attack

          in Frost did not occur on the defendant business' premises and the business did

          not own or have custody or control of the dog, the defendant business could not

          be held liable. Frost, 296 Ill. App. 3d at 537.

¶ 50              Plaintiffs argue that Frost shows that defendant condo association is

          liable because it is legally responsible for the premises where the attack

          occurred. However, all Frost establishes is that defendant may be liable, not

          that it is.

¶ 51              In Goennenwein, the appellate court affirmed a trial court's grant of

          summary judgment in favor of the defendant, although the defendant was the

          undisputed owner of the home where a dog attack occurred. Goennenwein, 296

          Ill. App. 3d at 651, 655. In Goennenwein, a four-year-old was attacked at a

          Passover seder by a dog owned by the adult son of the defendant host and

          premises owner. Goennenwein, 296 Ill. App. 3d at 651-52. The court affirmed

          the dismissal of the common-law negligence claim because "plaintiff failed to

          come forward with evidence to raise an issue of fact as to defendant [premises

          owner]'s knowledge of the dog's alleged dangerousness." Goennenwein, 296

          Ill. App. 3d at 655.

¶ 52              Discussing the issue of knowledge, the court stated:

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                "It is presumed that a dog is tame, docile, and harmless absent evidence

                that the dog has demonstrated vicious propensities. Lucas v. Kriska, 169

                Ill. App. 3d 317, 320 (1988). To impose a duty on defendant, plaintiff

                needed to establish that defendant knew or had reason to know that the

                dog would be dangerous to children. See Lucas, 168 Ill. App. 3d at 320.

                Because a dog ordinarily is not a danger to children (see Lucas, 168 Ill.

                App. 3d at 320), plaintiff needed to come forward with evidence to show

                that defendant knew that [this particular dog] was a danger to children."

                Goennenwein, 296 Ill. App. 3d at 654-55.

          Thus, to impose liability on someone other than the dog's owner under

          principles of common law negligence, plaintiffs must show that a defendant

          premises owner had prior knowledge of the dog's viciousness. Lucas, 168 Ill.

          App. 3d at 320; see also Goennenwein, 296 Ill. App. 3d at 654-55.

¶ 53            The Goennewein court then discussed facts which could have provided

          the defendant host and premises owner with the knowledge that the dog might

          pose a potential danger to the child. Those facts included whether the dog had

          "growl[ed], snarl[ed] or threaten[ed] anyone" in the hours immediately prior to

          the attack, and whether the dog had previously attacked anyone when

          previously on the defendant's premises. Goennenwein, 296 Ill. App. 3d at 655.




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¶ 54            Similarly, in Severson, the appellate court also considered what facts

          would provide a premises owner with knowledge that a dog might pose a

          danger, and it also found significant the existence of a prior attack on a person.

          Severson, 244 Ill. App. 3d at 458-59. In Severson, the appellate court held that

          a trial court erred in granting summary judgment on a common-law negligence

          claim, because there was a material issue of fact about whether the defendant

          premises owner knew of the dog's vicious nature. Severson, 244 Ill. App. 3d at

          458-59.      In Severson, the appellate court reversed because the dog had bitten

          another child just 20 days before it bit this 2-year-old plaintiff, and because the

          dog owner had stated in front of the defendant premises owner that a person

          should not "go near" his dog when the dog was "chained up" in the defendant's

          yard. Severson, 244 Ill. App. 3d at 458-59.

¶ 55            In Lucas, which was also cited by plaintiffs, the appellate court held that

          the trial court erred in not entering judgment for the defendant premises owner

          on the plaintiff's common-law negligence claim, notwithstanding the jury's

          verdict for the eight-year-old plaintiff. Lucas, 168 Ill. App. 3d at 319, 321. The

          appellate court held that, although the defendant was undisputedly both the

          premises owner and the brother of the dog's owner, reversal was required in

          light of the complete absence of evidence of any prior bites by the dog. Lucas,

          168 Ill. App. 3d at 319, 321. Thus, in Goennenwein, Severson and Lucas, the

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          appellate court considered the absence or presence of prior attacks on people

          significant in determining whether a premises owner had the knowledge

          required for a common-law negligence claim that a dog was potentially

          dangerous.

¶ 56            Since the case at bar involved a section 2-615 motion to dismiss rather

          than a summary judgment motion as in both Goennenwein and Severson,

          plaintiffs here do not have to come forward with evidence but only with factual

          allegations.     However, they still must allege sufficient facts in order to

          overcome the presumption discussed above in Goennenwein and Lucas that

          dogs are tame, docile and harmless. Goennenwein, 296 Ill. App. 3d at 654-55;

          Lucas, 168 Ill. App. 3d at 320 ("Illinois law presumes the tameness and docility

          of dogs and only imposes liability where there is notice of the dog's vicious

          propensities").

¶ 57            Plaintiffs argue in their appellate briefs that paragraphs 14 through 18 of

          their two negligence counts allege sufficient facts to show the knowledge which

          was lacking in Goennenwein and Lucas:

                       "14. That on and prior to August 11, 2011, and at all times relevant

                hereto, [defendant condo association], knew that the dog owned and

                harbored by [defendant Allegretti] was violent or had a propensity for

                violence or a mischievous propensity to cause injury and damage.

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                       15. That prior to August 11, 2011, residents of the Glenview Ridge

                Condominium premises complained to [defendant condo association]

                about the violent nature of the dog owned and harbored by [defendant

                Allegretti].

                       16. That prior to August 11, 2011, [defendant condo association]

                knew that the dog owned and harbored by [defendant Allegretti] had

                attacked another resident's dog in the common area of the Glenview

                Ridge Condominiums.

                       17. That prior to August 11, 2011, [defendant condo association]

                knew of said dog attack in the common area of their premises.

                       18. That prior to August 11, 2011, at least three individuals who lived

                in the Glenview Ridge Condominiums located at 4150 W. Central Road,

                in the City of Glenview, County of Cook, and State of Illinois had

                complained to [defendant condo association] regarding a prior attack by

                said dog, the dog's presence in the building despite the violation of the

                Defendant's rules and regulations, and general nuisance complaints

                regarding the dog owned and harbored by [defendant Allegretti]."


¶ 58            When these paragraphs are stripped of their legal conclusions and

          reduced to only their factual allegations, the paragraphs allege that three


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          individuals living at the condo premises complained to defendant condo

          association about "[1] a prior attack by said dog, [2] the dog's presence in the

          building despite the violation of the Defendant's rules and regulations, and [3]

          general nuisance complaints."

¶ 59             Of these three factual allegations, only one relates to the dog's potentially

          violent nature, namely, the alleged prior attack. The dog's presence in violation

          of defendant's regulations and general nuisance complaints reveals nothing

          about a potential propensity for violence. Nuisance complaints could be due to

          barking; and the violation of defendant's regulations, according to plaintiffs,

          was because the dog was over 25 pounds. Illinois courts do not presume that

          any particular breed, size or type of dog is vicious, and every dog must be

          evaluated individually. Goennenwein, 296 Ill. App. 3d at 655

¶ 60             As for "the prior attack" identified in paragraph 18, paragraph 18 does

          not allege what the Allegretti dog attacked: whether the target of this prior

          attack was a person, another unleashed dog, a cat, a squirrel or a piece of

          furniture. The complaint does not allege any of the circumstances of this prior

          attack, such as whether the dog attacked to ward off a perceived danger to its

          owner. Although the complaint states repeatedly that the attack on plaintiffs

          was "unprovoked," the complaint does not make the same assertion with respect

          to this prior attack.

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¶ 61            In paragraph 16, the complaint does allege that defendant condo

          association knew of a prior attack by the Allegretti dog on "another resident's

          dog in the common area." If the attacks in paragraphs 16 and 18 are one and

          the same, this allegation is still not sufficient, without more, to show that

          defendant had knowledge that this dog was likely to attack, without any

          provocation, people peaceably walking through the common areas of the condo

          association. Again, there are no allegations concerning the circumstances of

          this prior attack, such as the date, whether there were any injuries or bites,

          whether the dog's owner was under any threat or danger, whether the attack was

          unprovoked, or whether the dogs involved were unleashed.

¶ 62            Nowhere does the complaint allege the facts discussed in prior appellate

          cases such as whether the dog previously snarled at, growled at, threatened or

          attacked another person. Goennenwein, 296 Ill. App. 3d at 655 (appellate court

          considered whether the dog had previously attacked, "growl[ed], snarl[ed] or

          threaten[ed] anyone"); Severson, 244 Ill. App. 3d at 458-59 (a recent prior

          attack, plus a warning by the dog owner delivered in front of the defendant

          premises owner, created a material issue of fact about the premises owner's

          knowledge); Lucas, 168 Ill. App. 3d at 321 (the trial court erred in not granting

          judgment notwithstanding the verdict in light of the complete absence of

          evidence of prior bites by the dog). As a result, plaintiffs' second amended

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          complaint fails to show knowledge by defendant condo association, and we

          must affirm the trial court's dismissal of the counts against defendant condo

          association. Primax, 365 Ill. App. 3d at 1010 ("mere conclusory allegations

          unsupported by specific facts will not suffice").

¶ 63            We observe that the second amended complaint is plaintiffs' third attempt

          at drafting a complaint, and plaintiffs did not seek leave to amend for a third

          time after defendant argued for a third time both that knowledge was an issue

          and that plaintiffs' allegations of knowledge were "conclusory." A reviewing

          court must presume that another attempt at repleading will be fruitless when

          there is no proposed amended pleading in the record. Lake County Grading Co.

          of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d

          452, 461 (1995).

¶ 64                                    CONCLUSION

¶ 65            For the foregoing reasons, we affirm the trial court's dismissal of counts

          VII and VIII in plaintiffs' second amended complaint against defendant condo

          association.

¶ 66            Affirmed.




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