March 1, 2013
The following is a tale of a condominium association’s unjust practices and an owner’s path to justice. In September of 2011 a condominium owner came to DiMonte & Lizak seeking assistance with resolving a dispute with her condominium association. The association was refusing to recognize responsibility for defects in the common elements which caused flooding and the development of mold in the owner’s unit. When the owner came to our office she had already made numerous requests upon the association to address the water infiltration and mold in her unit; her requests had fallen on deaf ears. Without any means to compel the association to act on her behalf, the owner took measures into her own hands and made the necessary repairs to remediate the mold in her unit and to prevent future water infiltration. The owner came to DiMonte & Lizak and asked us to assist her in recouping the costs she had incurred due to the associations failure to assume its responsibilities.
DiMonte & Lizak agreed to assist the owner. We reviewed the condominium association’s by-laws and determined that the association had a duty to act. We issued a demand letter to the association seeking reimbursement for the costs the owner had incurred. Our request was simple, pay the owner for the costs she incurred because of your failure to adhere to your association responsibilities. The association denied our request claiming it was unconvinced it had a duty to act, despite the overwhelming evidence supporting our position.
The owner and DiMonte & Lizak decided to escalate the matter and filed a law suit against the association. The law suit, like the demand letter, set forth the clear logic of our position, and sought to recover the owner’s damages, plus punitive damages, and attorney fees. The basis for the punitive damages and attorney fees was the association’s egregious and baseless denial of the owner’s request. From the beginning of this matter it was clear that the association failed to act because it believed it could use its position of strength to exploit its members.
A year after filing the lawsuit the matter was ready for a bench trial. All along the association stuck to its position that it did not have to act. After two days of trial the flaws in the association’s position were exposed through the use of fact witness testimony, expert reports, and the owner’s paid invoices. At the conclusion of the our case in chief we asked for damages in the amount of the repairs, punitive damages in an amount two and a half times the amount of the repair damages, and attorney fees as punitive damages relying upon recent case law. After a short deliberation, the Judge awarded the owner everything we asked for.
In the end, and over two and a half years after the association’s initial offense, the owner obtained just retribution in an amount 7 times greater than the damages sought in the initial demand letter. The result was righteous, and for the association a tough lesson in understanding the obligations born from their own by-laws.
The foregoing result achieved by Jordan Finfer is truly a remarkable litigation achievement.
It is the kind of result that most clients expect when they are involved in a dispute and are convinced of the righteousness of their position. The client wants you to secure an award for the full amount of their damages, the amount of their attorneys fees, and punitive damages.
It is highly unlikely that they will achieve such a result for the following reasons:
1. In most cases there are two sides to every story – the prevailing party usually does not get one hundred percent of what he or she asks for;
2. Illinois follows the “American Rule” that disallows claims for attorneys fees except in cases where a statute or contract specifically provides for attorneys fees;
3. Punitive damages are usually awarded only in cases of willful and wanton conduct.
It is highly unlikely that your claim will result in a litigation trifecta i.e., an award for the full amount of damages, attorneys fees and punitive damages. If you have a chance to settle your claim on a reasonable basis, do so.
If Jordan ever achieves another litigation trifecta we will add the letters “S.L.” to his name. (Super Litigator)