Gialamas v. Deacon , 2023 IL App (1st) 221400-U ( 2023 )

2023 IL App (1st) 221400-UOrder filed: August 24, 2023
FIRST DISTRICT
FOURTH DIVISION
No. 1-22-1400
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
GEORGE GIALAMAS, THOMAS MANOS, ) Appeal from the
DDS, MS, JOHN VELERIS and ANNA ) Circuit Court of
GONIS O’CONNOR, individually and as ) Cook County
Trustees of the Third Restatement of the John )
G. Gonis 1979 Declaration of Trust, )
) No. 2013 CH 19182
Plaintiffs-Appellees, )
)
v. )
)
DIANE M. DEACON and VINCENT )
APRUZZESE, ) Honorable
) Alison C. Conlon,
Defendants-Appellants. ) Judge, presiding.
______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Lampkin and Justice Hoffman concur in the judgment.
ORDER
¶1 Held: The circuit court entered orders granting plaintiffs summary judgment and
equitable relief on their complaint for enforcement of a settlement agreement. We
affirmed in part, reversed in part, and remanded.
¶2 This appeal arises from litigation between plaintiffs, George Gialamas, Thomas Manos,
John Veleris, and Anna Gonis O’Connor, who are trustees of the Estate of the John G. Gonis 1979
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Declaration of Trust (Trust), and defendants Diane Deacon, a beneficiary of the Trust, and Vincent
Apruzzese, who is Deacon’s attorney. In 2011, the litigation culminated in a written settlement
agreement between the parties, including confidentiality and non-disclosure provisions, which
defendants allegedly violated. Plaintiffs filed a lawsuit to enforce the settlement agreement. The
circuit court entered an order granting summary judgment in favor of plaintiffs, as well as orders
awarding plaintiffs injunctive relief and requiring specific performance from defendants.
Defendants appeal the court’s orders. For the reasons that follow, we affirm in part, reverse in part,
and remand.
¶3 The undisputed facts show that at the time of his death in February 2008, Dr. John Gonis
owned a dental practice appraised at $22 million and real estate valued at over $3 million. Pursuant
to his will, his assets, including his dental practice, poured over into the Trust, of which plaintiffs
were the trustees. Dr. Gonis named Deacon as one of the beneficiaries of the Trust. Under the
terms of the Trust, Deacon was to receive a fractional share of the Trust not to exceed $3 million,
as well as the “entire interest (free and clear of all liens and encumbrances)” in a condominium
located at 14117 Ventanas Court in Bonita Springs, Florida (the Bonita Springs condominium).
¶4 Plaintiffs refused to distribute to Deacon the fractional share of the Trust or the Bonita
Springs condominium. In August 2010, Deacon filed her second amended complaint in the circuit
court of Cook County (the Illinois litigation), accusing plaintiffs of misconduct in administering
Dr. Gonis’ estate (the Estate) and the Trust and in valuing Dr. Gonis’ assets. Meanwhile, in June
2010, Anna Gonis O’Connor, as personal representative of Dr. Gonis, filed a complaint against
Deacon in Florida (the Florida litigation) seeking to evict Deacon from the Bonita Springs
condominium and to recover back rent.
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¶5 During the pendency of the Illinois and Florida litigation, the IRS initiated an audit of the
Estate’s tax return. On July 7, 2010, Apruzzese sent a letter to the IRS on behalf of Deacon,
informing it that plaintiffs had filed federal Form 706, “United States Estate and Generation-
Skipping Transfer Tax Return” on May 23, 2009, which “grossly underestimates” the value of the
Estate. Apruzzese stated “[w]e stand ready to cooperate with you in any way you deem
appropriate.”
¶6 On August 30, 2010, Apruzzese sent a second letter to the IRS in which he attached a copy
of the operative complaint in the Illinois litigation and stated:
“[The complaint] very clearly sets forth the issues being attacked in the administration of
the John Gonis Estate which all bear on the valuations set forth in the Form 706, United
States Estate Tax Return, filed in this matter. As is fairly obvious, there are many millions
of dollars at issue. I trust this will prove helpful in your audit.”
¶7 On November 23, 2010, Apruzzese sent a third letter to the IRS, complaining that plaintiffs
had sold Dr. Gonis’ dental practice for $14.6 million, “substantially below” its appraised value of
$22 million and had failed to “submit proper accountings” for tax purposes.
¶8 In March 2011, the parties entered into a signed settlement agreement settling the Illinois
and Florida litigation. Under paragraph two, plaintiffs agreed to pay Deacon $3 million for her
fractional share of the Trust. Paragraph three provided that with respect to the Bonita Springs
condominium, plaintiffs “agree to pay off any mortgages and otherwise eliminate all other
encumbrances on the property in order to transfer clear title by warranty deed” to Deacon.
¶9 Paragraph 12 provided that the parties agreed to return or destroy certain documents
provided to them in the Illinois litigation. Paragraph 12 further stated:
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“In no event shall any information gained exclusively from any of the above-mentioned
documents be provided to any third party for any reason, except as required by law. To the
extent any information contained in any of the above-mentioned documents was already
known to the Parties prior to the initiation of the Illinois Litigation, the obligations of this
Paragraph do not apply.”
¶ 10 Paragraph 13 stated:
“Confidentiality Provisions. The Parties agree that, except as provided herein, the terms
and conditions of this Settlement Agreement, and the content of all prior discussions
between the Parties relating to this Settlement Agreement, the Florida Litigation, the
Illinois Litigation, and any other litigation (collectively, ‘Litigation’) between the Parties,
shall remain confidential. Additionally, neither the Parties nor their representatives shall
communicate with anyone other than each other concerning the Litigation [subject to four
exceptions not at issue here].”
¶ 11 Paragraph 14 stated:
“[Deacon] agrees that neither she, nor anyone acting within her control or otherwise acting
as her agent or for or on her behalf, will have any voluntary communications of any type
or kind with any regulatory or governmental body or agency regarding the Trust, any of
the other Parties to this Settlement Agreement, or the subject matter of the Illinois or
Florida Litigations, other than as may be required by law or subpoena.”
¶ 12 Paragraph 15 provided that in the event that the Trustees failed to fulfill their obligations
under paragraphs two and three, then paragraphs 13 and 14 will be deemed null and void.
¶ 13 Pursuant to the settlement agreement, plaintiffs paid $3 million to Deacon and transferred
title to the Bonita Springs condominium to her.
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¶ 14 On October 31, 2011, the IRS notified plaintiffs that it was closing its investigation of the
Estate and assessed additional estate taxes, penalties and interest.
¶ 15 In December 2011, Apruzzese demanded that plaintiffs reimburse Deacon for certain
annual assessments on the Bonita Springs condominium, which allegedly constituted unpermitted
“encumbrances” in violation of the requirement in paragraph three of the settlement agreement
that plaintiffs transfer clear title to Deacon. We will more fully discuss the assessments later in this
order.
¶ 16 Plaintiffs responded to Apruzzese’s demand by asserting that they were not required to
reimburse Deacon for the assessments under the settlement agreement. After learning of plaintiffs’
refusal to pay the assessments, defendants authored a 210-page manuscript entitled “Conniving
Trustees” detailing plaintiffs’ alleged misconduct in administering the Estate and Trust and
underpaying Estate taxes. Defendants stated their intent to publish the manuscript in book and
audio form and eventually turn the book into a movie.
¶ 17 On September 4, 2011, Apruzzese filed on behalf of himself and Deacon an Application
for Award for Original Information with the IRS (whistleblower application), reiterating the
concerns he had previously disclosed to the IRS regarding the underestimation of the Estate for
tax purposes. The IRS gave Apruzzese a pending whistleblower claim number 2011-012502, and
it gave Deacon a pending whistleblower claim number 2011-012501.
¶ 18 In February 2017, the IRS notified defendants that it had collected $424,018.62 in
additional taxes, interest and penalties from the Estate and that it determined that defendants were
entitled to over $43,000 in whistleblower payments.
¶ 19 In April 2017, Apruzzese filed a qui tam action against plaintiffs on behalf of the State of
Illinois, under the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2016). The April 2017
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complaint generally alleged that defendants failed to remit and report estate tax on Dr. Gonis’
property within Illinois. The circuit court dismissed the complaint with prejudice. This court
affirmed. See People ex rel. Apruzzese v. Gialamas, 2020 IL App (1st) 182216-U.
¶ 20 In May 2017, Apruzzese filed a petition with the United States Tax Court seeking a
redetermination of the $424,018.62 tax liability for the Estate, arguing that the tax liability should
have been determined to be at least $48 million. On October 21, 2019, the Tax Court granted
summary judgment for the IRS. See Apruzzese v. Commissioner of Internal Revenue, T.C. Memo
2019-141. The Tax Court’s order was affirmed on appeal. See Apruzzese v. Commissioner of
Internal Revenue, 811 Fed. Appx. 1 (D.C. Cir. 2020).
¶ 21 Meanwhile, plaintiffs brought a second amended complaint against defendants to enforce
the confidentiality provisions of the settlement agreement and prevent publication of their
manuscript. Count I sought an injunction preventing defendants from publishing the manuscript.
Count II alleged that defendants’ threatened publication of the manuscript was a breach of the
settlement agreement. Count III sought an order requiring defendants to specifically perform their
“confidentiality obligations” under the settlement agreement. Count IV sought, in the alternative,
rescission of the settlement agreement based on defendants’ breach thereof. Count V sought, in
the alternative, damages against defendants for unjust enrichment.
¶ 22 Defendants filed several affirmative defenses; the first and fourth ones are at issue here.
The first affirmative defense asserted that plaintiffs breached the settlement agreement by failing
to deliver clear title to the Bonita Springs condominium, thereby rendering paragraphs 13 and 14
null and void. The fourth affirmative defense argued that paragraph 14 is void because it offends
the public policy of encouraging reporting of unlawful conduct to law enforcement.
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¶ 23 The circuit court granted summary judgment in favor of plaintiffs on the first and fourth
affirmative defenses.
¶ 24 On November 9, 2021, plaintiffs filed a motion for summary judgment on “all remaining
case issues.” Issue one asked whether defendants breached any provision of the settlement
agreement. Issue two asked whether plaintiff Anna Gonis O’Connor was entitled to recover any
nominal damages in connection with defendants’ breaches of the settlement agreement. Issue three
asked whether plaintiffs were entitled to an order compelling defendants’ specific performance of
the settlement agreement. Issue four asked whether plaintiffs were entitled to a permanent
injunction with respect to defendants’ obligations under the settlement agreement.
¶ 25 As to issue one, the court granted summary judgment for plaintiffs, finding that defendants
breached paragraphs 12, 13, and 14 of the settlement agreement. The court denied summary
judgment for plaintiffs on issue two, finding that Anna Gonis O’Connor was not entitled to recover
any nominal damages.
¶ 26 The court granted summary judgment for plaintiffs on issue three and entered the following
order of specific performance: defendants were required to destroy certain specified documents in
their possession related to the Illinois litigation and bates labeled with a “GO” prefix; defendants
must dismiss with prejudice any litigation, including their pending whistleblower claims in claim
number 2011-012502 (Apruzzese) and 2011-012501 (Deacon) and qui tam claims, which: (i)
concern, arise out of, and/or relate to the settlement agreement, the Florida litigation, the Illinois
litigation, and/or the Trust; and (ii) are based on any event or matter occurring prior to the date of
the settlement agreement, including any matters alleged in the Illinois and Florida litigations or
otherwise relating to the financial affairs and/or estate plans of Dr. Gonis. Defendants also must
withdraw, with prejudice, their pending whistleblower claims, including forfeiting whistleblower
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rewards previously awarded to them by the IRS, and clawback any copies of the manuscript sent
to any person or entity.
¶ 27 As to issue four, the circuit court also entered the following permanent injunction order:
enjoining defendants from obtaining, from any source, the GO documents; enjoining defendants
from using any of the GO documents “for any reason whatsoever” or providing any information
gained exclusively from the GO documents to any third party, except as required by law, and
except to the extent any information contained in any of the GO documents already was known to
defendants; enjoining defendants from initiating or engaging in any litigation, including their
pending whistleblower claims in claim numbers 2011-012501 and 2011-012502 and/or qui tam
claims (i) arising out of or relating to the settlement agreement, the Florida litigation, the Illinois
litigation, and/or the Trust and (ii) based on any event or matter occurring prior to the date of the
settlement agreement, including any of the matters alleged in the Illinois and Florida litigations or
otherwise relating to the financial affairs and/or estate plans of Dr. Gonis; and enjoining defendants
from publishing or disseminating the manuscript and/or any portions thereof in any form.
¶ 28 The circuit court concluded that “[t]his Order, together with the Order contemporaneously
entered by the Court disposing of Plaintiffs’ summary judgment motion, is a final order and this
case is disposed.”
¶ 29 On appeal, defendants argue that the court erred by entering summary judgment for
plaintiffs on the fourth affirmative defense and entering orders for a permanent injunction and
specific performance, which enforced paragraph 14 of the settlement agreement. As discussed,
paragraph 14 prevents defendants from voluntarily communicating with any regulatory or
governmental body regarding the Trust or the subject matters of the Illinois or Florida litigations.
Defendants contend that the court should have granted summary judgment in their favor on the
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fourth affirmative defense because paragraph 14 violated the public policy encouraging
whistleblowers to report illegal conduct.
¶ 30 Summary judgment is appropriate when the pleadings, depositions, admissions and
affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is
no genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. Northbrook Bank & Trust Co. v. 2120 Division LLC, 2015 IL App (1st) 133426, ¶ 38. Review
is de novo. Id.¶ 31 Permanent injunction orders are reviewed under a manifest weight standard. C.J. v.
Department of Human Services, 331 Ill. App. 3d 871, 878 (2002). Specific performance orders are
reviewed for an abuse of discretion. Schwinder v. Austin Bank of Chicago, 348 Ill. App. 3d 461,
477 (2004).
¶ 32 Settlement agreements, including confidentiality provisions, are presumed valid and
enforceable. Jordan v. Knafel, 355 Ill. App. 3d 534, 540 (2005). However, courts will not enforce
a private contract, such as a settlement agreement, if it is contrary to public policy. Swavely v.
Freeway Ford Truck Sales, Inc., 298 Ill. App. 3d 969, 976 (1998). “Public policy is the legal
principle that no one may lawfully do that which has the tendency to injure the welfare of the
public. The public policy of the state is reflected in its constitution, statutes and judicial decisions.”
Id.¶ 33 It is in the public interest that persons should not be unnecessarily restricted in their
freedom to make their own contracts, and therefore the power to declare a private contract invalid
on public policy grounds is “exercised sparingly.” Country Preferred Insurance Co. v. Whitehead,
2012 IL 113365, ¶ 28. The courts apply a strict test in determining whether a contract violates
public policy. Swavely, 298 Ill. App. 3d at 976. Because public policy strongly favors an
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individual’s freedom to contract, a contract will not be declared illegal unless it “ ‘expressly
contravenes the law or a known public policy of this State.’” (Emphasis added.) Id. at 976-77.
(quoting Holstein v. Grossman, 246 Ill. App. 3d 719, 726 (1993). “An agreement will not be
invalidated unless it is clearly contrary to what the constitution, the statutes, or the decisions of the
courts have declared to be the public policy of Illinois, or unless it is manifestly injurious to the
public welfare.” Whitehead, 2012 IL 113365, ¶ 28. Whether a contract violates public policy
depends on the particular facts and circumstances of the case. Id.¶ 34 Defendants argue that paragraph 14 of the settlement agreement violates the public policy
encouraging whistleblowers to report illegal conduct to “the proper authorities.” In support,
defendants cite the following case law: Palmateer v. International Harvester Co., 85 Ill. 2d 124,
132 (1981) (holding that public policy favors citizens reporting crimes); Jordan, 355 Ill. App. 3d
at 540 and Cosby v. American Media, Inc., 197 F. Supp. 3d 735 (E.D. Penn. 2016) (contracts
preventing individuals from reporting criminal conduct violate public policy); SEC v. Lipson, 1997
WL 801712 (N.D. Ill. 1997) (contract preventing cooperation with the SEC violated public policy);
United States v. Cancer Treatment Centers of America, 350 F. Supp. 2d 765 (N.D. Ill. 2004)
(contract preventing disclosure of fraud against the government violated the False Claims Act’s
strong public policy of protecting such whistleblowers); Equal Employment Opportunity
Commission v. Astra USA, Inc., 94 F. 3d 738 (1st. Cir. 1996) (contractual provision prohibiting
voluntary cooperation with EEOC violated public policy). Defendants also cite the Dodd-Frank
Act, 15 U.S.C. § 78u-6, which protects whistleblowers from retaliation for reporting violations of
federal securities laws, and the Defend Trade Secrets Act, 18 U.S.C. § 1833(b)(1), which protects
whistleblowers who reveal trade secrets.
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¶ 35 In contrast to all the cases and statutes cited above, the settlement agreement was only
entered after defendants took three opportunities (in letters sent to the IRS on July 7, 2010, August
30, 2010, and November 23, 2010) to blow the whistle on plaintiffs’ alleged mismanagement of
the Estate and Trust and their underpayment of taxes. Defendants also filed a qui tam action in the
circuit court and a petition with the Tax Court again related to plaintiffs’ alleged mismanagement
and underpayment of taxes and filed appeals from the adverse decisions entered against them in
those actions. Thus, this is not a case where paragraph 14 prevented defendants from reporting
plaintiffs’ alleged unlawful activity, thereby injuring the public welfare. To the contrary, the IRS
heard plaintiffs’ claims and eventually collected over $400,000 in additional taxes from the Estate.
The IRS has since completed its investigation and closed the audit of the Estate.
¶ 36 Defendants contend that the circuit court’s enforcement of paragraph 14 prevents them
from blowing the whistle on some additional concerns that have not yet been reported, specifically,
on plaintiffs’ allegedly false assertion that Dr. Gonis’ domicile at the time of his death was in
Florida. Defendants argue that plaintiffs’ false assertion of Dr. Gonis’ Florida domicile enabled
them to pay estate taxes only in Florida and not in Illinois, thereby depriving Illinois of significant
tax revenue. Defendants’ argument is not well-taken, as they concede that plaintiffs have since
filed an Illinois estate tax return, thereby enabling Illinois to recover the lost revenue.
¶ 37 Based on the particular facts and circumstances of this case, and balancing the competing
public policies of freedom to contract and encouragement of whistle-blowing, we find that
defendants have not clearly shown that the balance favors invalidation of paragraph 14 of the
settlement agreement. This is especially so where the settlement agreement was only entered into
after defendants had made multiple whistleblower reports to the IRS. Thus, the settlement
agreement did not serve to conceal defendants’ alleged misconduct or otherwise cause injury to
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the public welfare. Accordingly, we affirm the order of summary judgment in favor of plaintiffs
as well as the award of specific performance and permanent injunction premised on paragraph 14’s
terms.
¶ 38 Next, defendants argue that the court erred by entering summary judgment for plaintiffs on
counts I and II of their amended complaint, finding that paragraph 13 of the settlement agreement
bars publication of their manuscript. Defendants also argue that the court erred by entering an order
of specific performance requiring them to clawback any copies of the manuscript sent to any
persons, and enjoining defendants from publishing the manuscript in any form.
¶ 39 A settlement agreement is a contract, the construction of which is governed by principles
of contract law. Gallagher v. Lenart, 367 Ill. App. 3d 293, 301 (2006). The primary objective when
construing a contract is to ascertain and give effect to the parties’ intent, the best indicator of which
is the plain language of the contract. Id. The interpretation of a contract is a question of law which
we review de novo. Id.¶ 40 As discussed earlier in this order, paragraph 13 contains two prongs. The first prong
provides that the terms and conditions of the settlement agreement, as well as the content of all
prior discussions between the parties relating to the settlement agreement, the Illinois litigation,
and the Florida litigation (collectively “Litigation”) “shall remain confidential.” The second prong
provides that the parties shall not communicate with anyone other than each other “concerning the
Litigation” (subject to certain exceptions not applicable here).
¶ 41 Defendants’ intended publication of the manuscript to the general public (both as a book
and as a movie) would violate both prongs of paragraph 13, as the manuscript references both the
Litigation and the settlement agreement in contravention of paragraph 13’s confidentiality
provisions. Accordingly, the court did not err by granting summary judgment for plaintiffs and
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entering the specific performance and injunctive orders preventing the publication of the
manuscript in its current form and requiring defendants to clawback any manuscripts sent to any
person. However, the court’s order went too far in preventing defendants from disseminating “any
portions” of the manuscript, even portions completely unrelated to the Litigation and settlement
agreement. We reverse that portion of the order and remand for the circuit court to enter a
modification allowing defendants to disseminate portions of the manuscript completely unrelated
to the Litigation and settlement agreement. When entering the modified order, the circuit court
may take any additional protective steps it deems necessary to ensure that only portions of the
manuscript unrelated to the Litigation and settlement agreement are disseminated, including
requiring defendants to send plaintiffs the manuscript portions for their review and approval prior
to dissemination.
¶ 42 Defendants argue, though, that in construing a contract we must read it as a whole (see
Thompson v. Gordon, 241 Ill. 2d 428, 442 (2011)) and they direct our attention to paragraph 12,
which provides that any information “gained exclusively” from the GO documents may not be
provided to any third party for any reason except as required by law. Paragraph 12 further states
that to the extent any information contained in those documents already was known to the parties
prior to the initiation of the Illinois litigation, “the obligations of this Paragraph do not apply.”
Defendants argue that when paragraphs 12 and 13 are read together, they indicate an intent to
prohibit publication only of information gained exclusively from the Illinois litigation and not of
information known prior thereto. Defendants contend that the court’s summary judgment and
injunctive orders go too far in prohibiting them from publishing information about the Illinois
litigation which they already knew.
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¶ 43 We do not agree with defendants’ construction of the settlement agreement. Paragraph 12
relates only to how the parties were to disclose certain documents produced during the Illinois
litigation and specifically prevents the parties from disclosing to third parties any information
gained exclusively from those documents. Paragraph 13 contains a far broader confidentiality
agreement relating to the entire Litigation (constituting both the Illinois and Florida litigations),
preventing the parties from disclosing any information about the Litigation, regardless of when
that information was learned. Defendants’ construction of the settlement agreement would require
us to effectively rewrite paragraph 13 so as to limit the confidentiality provision in a way not
intended by the parties. This we cannot do. See Gallagher, 367 Ill. App. 3d at 301 (“a court cannot
alter, change or modify the existing terms of a contract or add new terms or conditions to which
the parties do not appear to have assented”).
¶ 44 Defendants also argue that the court’s summary judgment and injunctive orders go too far
in barring them from publishing publicly available information. Specifically, defendants argue that
their manuscript contains information from the Illinois complaint filed in the circuit court, which
is available to the general public and subject to common law and first amendment rights of access
which should not be abridged. See Fidelity Financial Services, Inc. v. Hicks, 267 Ill. App. 3d 887,
892 (1994); In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074 (1992) (holding that once
documents are filed with the court, they lose their private nature and become part of the court file
and public components of the judicial proceeding to which the right of access attaches).
¶ 45 The circuit court’s orders enforcing paragraph 13 of the settlement agreement and
enjoining defendants from publishing information about the Litigation do not prevent any member
of the public from searching the court file, accessing the documents filed with the court, and
learning the information on their own. As the court’s orders simply hold the parties to the
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confidentiality provisions of their settlement agreement and do not deny any member of the public
access to court files, we find no error.
¶ 46 Next, defendants argue that the court erred by granting summary judgment for plaintiffs on
the first affirmative defense which alleged that plaintiffs breached paragraph three of the settlement
agreement by failing to deliver clear title to the Bonita Springs condominium, thereby rendering
paragraphs 13 and 14 null and void under paragraph 15.
¶ 47 The Bonita Springs condominium is located within the Parklands West Community
Development District (Parklands CDD) in Florida. CDDs are unique entities authorized under
Florida law and are created to fund the construction and maintenance of the infrastructure (water,
sewers, streets, etc.) for real estate developments. CDDs levy assessments against the properties
within the development to recoup the cost of the construction and maintenance of the infrastructure
improvements.
¶ 48 The CDD assessments have two components: (1) a capital assessment covering the original
cost of constructing and installing the infrastructure; and (2) an operating and maintenance (O&M)
assessment covering the continuing cost of operating and maintaining the infrastructure. The
capital assessment is a specific amount based on the property’s pro rata portion of the total
construction cost for the development which is typically amortized over several years and thus
paid in yearly installments. The capital assessment can be prepaid in full at any time.
¶ 49 The Parklands CDD levied both capital and O&M assessments against the Bonita Springs
condominium each November 1 on an annual basis. The assessments were payable in 30 annual
installments, although the owner could prepay the total amount at any time.
¶ 50 Deacon was represented by counsel for the transfer of the Bonita Springs condominium to
her. Deacon’s counsel agreed to pro-rate responsibility for payment of the Parklands CDD’s capital
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assessment. As a result, plaintiffs paid their pro-rated portion of the annual installment of the
capital assessment through the date of closing in March 2011 and Deacon remained liable for
future installment payments.
¶ 51 In December 2011, Apruzzese, on behalf of Deacon, notified plaintiffs’ counsel of the
Parklands CDD’s annual capital assessments and asserted that they constituted unpermitted
encumbrances on the Bonita Springs condominium in violation of paragraph three’s requirement
that plaintiffs transfer clear title to Deacon. Apruzzese demanded that plaintiffs cure the breach by
prepaying the total amount of the 30 annual installments of the Parklands CDD capital
assessments, but plaintiffs refused. Deacon subsequently prepaid the capital assessments in full,
thus eliminating all future installment payments.
¶ 52 Defendants argue on appeal that plaintiffs’ failure to prepay the entire 30 years’ worth of
capital assessments at the time of closing meant that there was a continuing encumbrance on the
Bonita Springs condominium that violated paragraph three’s requirement that plaintiffs eliminate
all encumbrances and deliver clear title. Pursuant to paragraph 15, defendants argue that plaintiffs’
violation of paragraph three voided paragraphs 13 and 14, meaning that defendants should be
allowed to continue with their whistleblower complaints and publish their manuscript.
¶ 53 We disagree. Under Florida law, CDD assessments “constitute a lien on the property ***
from the date of imposition thereof until paid.” Fla. Stat. § 190.021(9). CDD assessments are
“imposed” when they are “levied” against the property. Trout Creek Properties, LLC v. Akerman,
Senterfitt & Eidson, P.A., 294 F. Supp. 2d 1280, 1288-1289 (M.D. Fla. 2003). The notice of
establishment of the Parkland CDD, as well as Parkland CDD’s financial report, state that the
capital assessments at issue here are levied on an annual basis, meaning that a new lien arises every
year when the new capital assessments are levied. By paying off their pro-rated portion of the
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capital assessments currently due at the time of closing, plaintiffs eliminated the lien/encumbrance
for that year and transferred clear title to Deacon. We read nothing in the settlement agreement
requiring plaintiffs to prepay the entire 30 years’ worth of annual capital assessments before
transferring title to Deacon.
¶ 54 Our holding is bolstered by: the testimony of Deacon’s attorney at closing, who stated that
plaintiffs complied with the clear title requirement by paying their pro-rated portion of the capital
assessment due for that year; and the affidavit of a Florida attorney who similarly attested that
plaintiffs satisfied their obligation under paragraph three of the settlement agreement to convey
clear title by paying their pro-rated portion of the capital assessment due for that year. Also,
Deacon’s title agent issued a title commitment detailing the items necessary to clear title, and the
payment of future capital assessments was not one such item. The title agent subsequently issued
the title insurance policy, representing the agent’s conclusion that plaintiffs had taken all of the
necessary steps to transfer clear title.
¶ 55 Duck Dog, L.C. v. Brownstar Properties, LLC, 990 So.2d 525 (Fla. DCA 2nd Dist. 2008),
cited by defendants, is inapposite, as it did not address the issue here: whether the passage of clear
title requires the transferor of a property in a CDD to prepay all 30 years of a capital assessment,
or whether he must pay only the portion of the capital assessment due in the year of the transfer.
For all the reasons discussed in this order, we hold that plaintiffs here satisfied the clear title
requirement when they paid the pro-rated portion of the capital assessment due in the year of the
transfer.
¶ 56 Finally, defendants contend that the court failed to properly balance the equities when
granting specific performance and injunctive relief for plaintiffs. In determining whether to grant
injunctive relief or specific performance, the court should balance the equities (see County of
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Kendall v. Rosenwinkel, 353 Ill. App. 3d 529, 541 (2004); Schwinder, 348 Ill. App. 3d at 477) by
examining the impact the granting of equitable relief will have on the respective parties as well as
on the general public. Kalbfleisch ex rel. Kalbfleisch v. Columbia Community Unit School No. 4,
396 Ill. App. 3d 1105, 1119 (2009). At a minimum, the court must tailor the equitable relief as
narrowly as possible so as not to impose any greater restraint on defendants’ activities than
necessary and avoid unduly impacting public interests. Elmer Miller, Inc. v. Landis, 253 Ill. App.
3d 129, 135 (1993); Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago, 2016 IL
App (1st) 143884, ¶ 28.
¶ 57 Defendants allege that the equitable relief granted to plaintiffs unfairly requires defendants
to forfeit their pending whistleblower award in claim numbers 2011-012502 (Apruzzese), and
2011-012501 (Deacon) and that such relief is harmful to the public welfare as it discourages private
citizens from reporting wrongdoing to appropriate authorities. Defendants here made three
whistleblower reports prior to entering into the settlement agreement, and the IRS’s whistleblower
award of over $40,000 was based on the allegations of wrongdoing contained in those reports. As
defendants’ whistleblower reports predated the settlement agreement and were a basis of the IRS’
ultimate recovery of over $400,000 in additional taxes from the Estate, we find it inequitable for
defendants to be required to forfeit the award premised on those reports. Accordingly, we remand
for the circuit court to modify the order of specific performance and the injunctive order so as to
allow defendants to keep the whistleblower award in claim numbers 2011-012502 and 2011-
012501.
¶ 58 For all the foregoing reasons, we affirm in part, reverse in part, and remand for further
proceedings.
¶ 59 Affirmed in part, reversed in part, and remanded.
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