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,

), 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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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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¶ 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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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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¶ 32 I. Section 2-615 Motion

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

DeHart,

(citing Bajwa v. Metropolitan Life Insurance

Co.,

(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,

(citing Doe v. Chicago Board of Education,

(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,

(citing Bajwa,

). 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,

(citing Bonhomme v. St. James,

).

¶ 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.,

(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,

. "[M]ere conclusory allegations

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

(2006).

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

DeHart,

(citing Bonhomme v. St. James,

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

trial judge would perform. Khan v. BDO Seidman, LLP,

(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,

(2008). See also

People v. Ward,

(2005) ("point raised in a brief but not

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

Marriage of Bates,

(2004) ("A reviewing court is entitled to

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

Mountains, Inc.,

(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.,

(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,

(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,

; First

Springfield Bank & Trust v. Galman,

(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,

(citing Chandler v. Illinois

Central R.R. Co.,

(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,

(citing Espinoza v. Elgin Joliet & Eastern Ry. Co.,

(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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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.,

(1998); (2) Goennenwein v. Rasof,

(1998); (3) Severson v. Ring,

(1993); and (4)

Lucas v. Kriska,

(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,

. 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,

. 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,

.

¶ 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,

(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,

.

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

), 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,

; 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,

. 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,

. 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,

.

¶ 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,

. 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,

. 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,

("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,

(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,

(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,

("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.,

(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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