1010 Lake Shore Association v. Deutsche Bank National Trust Company , 2015 IL 118372 ( 2016 )

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1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372Caption in Supreme 1010 LAKE SHORE ASSOCIATION, Appellee, v. DEUTSCHE
Court: BANK NATIONAL TRUST COMPANY, as Trustee for Loan
Tr 2004-1, Asset-Backed Certificates, Series 2004-1, Appellant.
Docket No. 118372
Filed December 3, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Martin Paul Moltz, Judge, presiding.
Judgment Affirmed.
Counsel on Jena M. Valdetero and Aukse Stase Joiner, of Chicago, Timothy J.
Appeal Hasken, of St. Louis, Missouri, and K. Lee Marshall, all of Bryan
Cave LLP, for appellant.
Matthew J. Goldberg and Kaitlyn Connelly, of Bancroft, Richman and
Goldberg, LLC, of Chicago, for appellee.
Robert H. Rappe, Jr., and Louis J. Manetti, Jr., of Codilis &
Associates, P.C., of Burr Ridge, for amicus curiae Federal National
Mortgage Association.
David J. Bloomberg and Adam K. Beattie, of Chuhak & Tecson, P.C.,
of Chicago, for amicus curiae Condominium Association Institute.
Justices JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1 The issue in this case involves the construction of section 9(g)(3) of the Condominium
Property Act (Act) (765 ILCS 605/9(g)(3) (West 2008)). The appellate court held that under
section 9(g)(3), defendant Deutsche Bank National Trust Company failed to confirm the
extinguishment of the plaintiff condominium association’s lien created when the prior unit
owner did not pay common expense assessments. 2014 IL App (1st) 130962. For the
following reasons, we affirm the appellate court’s judgment.
¶2 I. BACKGROUND
¶3 Defendant Deutsche Bank National Trust Company, as Trustee for Loan Tr 2004-1,
Asset-Backed Certificates, Series 2004-1, purchased a condominium unit at a judicial
foreclosure sale on June 17, 2010. On March 27, 2012, plaintiff 1010 Lake Shore Association
mailed defendant a demand for payment of the unit’s assessments for common expenses.
¶4 On May 17, 2012, plaintiff filed a complaint seeking possession of the property, an award
of all unpaid assessments, attorney fees, and costs. In its complaint, plaintiff alleged that
defendant owed $62,530.81 in assessments as of March 27, 2012.
¶5 After defendant filed its answer, plaintiff moved for summary judgment arguing there
were no questions of material fact on the amount owed or defendant’s failure to pay the
assessments. Based on section 9(g)(3) of the Act (765 ILCS 605/9(g)(3) (West 2008)),
plaintiff asserted that the lien against the property for the prior owner’s unpaid assessments
had not been extinguished because defendant failed to pay the assessments accruing after it
purchased the unit at the judicial foreclosure sale. Consequently, plaintiff alleged defendant
was also required to pay those prior assessments.
¶6 Plaintiff attached to its summary judgment motion an affidavit of its property manager,
Mary Morrison. Morrison averred that: (1) no assessment payments were made for the unit
since July 1, 2010; (2) the outstanding balance was $67,935.16 as of August 8, 2012; (3)
assessments accrued at the rate of $1,041.87 per month; and (4) late fees were $50 per
month.
¶7 Defendant responded that it could not be held liable under section 9(g)(3) of the Act for
unpaid assessments that accrued before it purchased the unit at the judicial foreclosure sale.
Defendant asserted those prior assessments accounted for more than $43,000 of the total.
Defendant also contended that any lien relating to the preforeclosure assessments was
extinguished in the foreclosure action and there was a genuine issue of material fact on the
amount of assessments incurred after it purchased the unit. Following a hearing, the trial
court of Cook County granted summary judgment for plaintiff in the amount of $70,018.90
and entered an order awarding plaintiff possession of the property.
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¶8 On appeal, defendant contended that the trial court misconstrued section 9(g)(3) of the
Act. Defendant argued that under section 9(g)(3) a purchaser of a condominium unit at a
foreclosure sale is only required to pay the common expenses that accrue following the sale.
The appellate court agreed that the first sentence of section 9(g)(3) only requires the
purchaser to pay assessments from the first day of the month following the sale. The second
sentence, however, provides that making those assessment payments “confirms the
extinguishment” of the lien created when the prior owner failed to pay assessments. 2014 IL
App (1st) 130962, ¶ 12. The appellate court determined that “under the plain language of
section 9(g)(3), a lien created under section 9(g)(1) for unpaid assessments by a previous
owner is not fully extinguished following a judicial foreclosure and sale until the purchaser
makes a payment for assessments incurred after the sale.” 2014 IL App (1st) 130962, ¶ 12.
¶9 The appellate court found that the lien for the prior owner’s unpaid assessments was not
extinguished because defendant failed to pay the assessments following the foreclosure sale.
2014 IL App (1st) 130962, ¶ 17. The appellate court concluded there was no genuine issue of
material fact on the amount owed by defendant, and the trial court did not err in granting
summary judgment for plaintiff. 2014 IL App (1st) 130962, ¶ 19. The trial court’s judgment
was, therefore, affirmed. 2014 IL App (1st) 130962, ¶ 31.
¶ 10 Justice Liu dissented, asserting that section 9(g)(3) of the Act and section 15-1509(c) of
the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1509(c) (West
2008)), establish a complementary procedure for extinguishing liens held by a condominium
association. Section 15-1509(c) of the Foreclosure Law applies to bar any claim based on a
lien when the condominium association has been named as a party to a foreclosure action.
2014 IL App (1st) 130962, ¶ 38 (Liu, J., dissenting). Section 9(g)(3) of the Act applies when
a condominium association is not named as a party to the foreclosure action, and it provides a
way for a foreclosure sale purchaser to extinguish a preexisting lien that survives the
foreclosure action. To extinguish the lien under section 9(g)(3), the purchaser must pay the
assessments that accrue after the sale. 2014 IL App (1st) 130962, ¶ 38 (Liu, J., dissenting).
The dissenting justice concluded that plaintiff’s lien based on the assessments owed by the
prior owner was extinguished in the foreclosure action because plaintiff “was purportedly a
party in [that] action.” 2014 IL App (1st) 130962, ¶ 39 (Liu, J., dissenting).
¶ 11 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. May 1, 2013).
We also allowed the Federal National Mortgage Association and the Condominium
Association Institute to file amicus curiae briefs. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 12 II. ANALYSIS
¶ 13 Defendant raises two issues on appeal to this court. First, defendant raises the argument
on the construction of section 9(g)(3) of the Act, asserting that issue “has been the crux of
this case since [plaintiff] filed its motion for summary judgment.” Second, defendant
challenges the remedy chosen by plaintiff, contending the appellate court erred in allowing
plaintiff to enforce the lien through a personal money judgment action rather than a lien
foreclosure proceeding. Defendant contends that the appropriate remedy is for plaintiff to file
a lien foreclosure action rather than a forcible entry and detainer action under section 9.2(a)
of the Act (765 ILCS 605/9.2(a) (West 2008)) and the forcible entry and detainer statute (735
ILCS 5/9-101 et seq. (West 2008)).
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¶ 14 Plaintiff responds that defendant’s argument challenging the remedy is forfeited for
failure to raise it in the trial court. Issues not raised in either the trial court or the appellate
court are forfeited. WISAM 1, Inc. v. Illinois Liquor Control Comm’n, 2014 IL 116173, ¶ 23.
The purpose of this court’s forfeiture rules is to encourage parties to raise issues in the trial
court, thus ensuring both that the trial court is given an opportunity to correct any errors prior
to appeal and that a party does not obtain a reversal through his or her own inaction. People
v. Denson, 2014 IL 116231, ¶ 13.
¶ 15 Defendant did not present any argument in the trial court challenging plaintiff’s use of the
forcible entry and detainer remedy under section 9.2 of the Act. In fact, the issue was never
raised until after the appellate court issued its decision. At that point, defendant filed a
petition for rehearing raising the question for the first time. The trial court did not have an
opportunity to consider and rule upon this question. Defendant, therefore, forfeited this issue
by failing to timely raise it in the trial court.
¶ 16 We now address the remaining issue in this appeal on the construction of section 9(g)(3)
of the Act. Defendant asserts its argument “mirrors” the appellate court dissent. Defendant
contends that subsection 9(g)(3) provides foreclosure sale purchasers an alternative means of
extinguishing a condominium association’s lien if the foreclosing party failed to extinguish
the lien under the Foreclosure Law (735 ILCS 5/15-1509(c) (West 2008)). Defendant
maintains that the Foreclosure Law extinguishes assessment liens when the condominium
association is joined as a party to the foreclosure action and section 9(g)(3) of the Act permits
a foreclosure sale purchaser to extinguish a surviving lien by paying the assessments coming
due after the sale. Defendant asserts it joined plaintiff in the foreclosure action and, therefore,
plaintiff’s lien was extinguished under the Foreclosure Law.
¶ 17 Initially, plaintiff contends defendant forfeited its argument relying on canons of statutory
construction because it did not raise that argument in either the trial or the appellate court.
Plaintiff argues that defendant failed to even acknowledge the second sentence of section
9(g)(3) in the trial and appellate courts, and it cannot now argue that section 9(g)(3) conflicts
with the Foreclosure Law.
¶ 18 Defendant’s contention based on canons of statutory construction is merely one argument
addressing the issue of the proper construction of section 9(g)(3). Even if defendant did not
make that specific argument in the trial or appellate court, defendant has consistently
disputed the issue of statutory construction. This court only requires parties to preserve issues
or claims for appeal. They are not required to limit their arguments in this court to the same
ones made in the trial and appellate courts. Brunton v. Kruger, 2015 IL 117663, ¶ 76.
Accordingly, defendant's statutory construction argument is not forfeited.
¶ 19 On the merits, plaintiff contends that section 9(g)(3) of the Act imposes an additional step
in extinguishing a condominium association’s lien. The additional step simply requires the
foreclosure sale purchaser to pay its common expense assessments following the sale.
Plaintiff maintains that by refusing to pay any postforeclosure sale assessments, defendant
failed to confirm the extinguishment of plaintiff’s lien for the unpaid assessments of the prior
owner.
¶ 20 This appeal arises from the trial court’s order granting plaintiff summary judgment.
Summary judgment is proper when “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
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and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2008). The interpretation of a statute is a matter of law appropriate for summary
judgment. Lake County Grading Co. v. Village of Antioch, 2014 IL 115805, ¶ 18. We review a
trial court’s summary judgment ruling de novo. Nationwide Financial, LP v. Pobuda, 2014 IL
116717, ¶ 24.
¶ 21 In resolving this appeal, we must construe the terms of the Act and the Foreclosure Law.
Questions of statutory construction are also reviewed de novo. Skaperdas v. Country Casualty
Insurance Co., 2015 IL 117021, ¶ 15. The fundamental objective of statutory construction is
to ascertain and give effect to the intent of the legislature. Bettis v. Marsaglia, 2014 IL
117050, ¶ 13. The most reliable indicator of legislative intent is the statutory language, given
its plain and ordinary meaning. State Building Venture v. O’Donnell, 239 Ill. 2d 151, 160
(2010). A reasonable construction must be given to each word, clause, and sentence of a
statute, and no term should be rendered superfluous. Slepicka v. Illinois Department of Public
Health, 2014 IL 116927, ¶ 14.
¶ 22 We begin by reviewing the relevant provisions of the Act. Section 9(g)(1) provides:
“(1) If any unit owner shall fail or refuse to make any payment of the common
expenses or the amount of any unpaid fine when due, the amount thereof *** shall
constitute a lien on the interest of the unit owner in the property prior to all other liens
and encumbrances, recorded or unrecorded, except only (a) taxes, special assessments
and special taxes theretofore or thereafter levied by any political subdivision or
municipal corporation of this State and other State or federal taxes which by law are a
lien on the interest of the unit owner prior to preexisting recorded encumbrances
thereon and (b) encumbrances on the interest of the unit owner recorded prior to the
date of such failure or refusal which by law would be a lien thereon prior to
subsequently recorded encumbrances. Any action brought to extinguish the lien of the
association shall include the association as a party.” 765 ILCS 605/9(g)(1) (West
2008).
¶ 23 The plain language of section 9(g)(1), therefore, creates a lien in favor of a condominium
association upon the failure or refusal of a unit owner to pay common expense assessments.
Section 9(g)(3) states that:
“(3) The purchaser of a condominium unit at a judicial foreclosure sale, or a
mortgagee who receives title to a unit by deed in lieu of foreclosure or judgment by
common law strict foreclosure or otherwise takes possession pursuant to court order
under the Illinois Mortgage Foreclosure Law, shall have the duty to pay the unit’s
proportionate share of the common expenses for the unit assessed from and after the
first day of the month after the date of the judicial foreclosure sale, delivery of the
deed in lieu of foreclosure, entry of a judgment in common law strict foreclosure, or
taking of possession pursuant to such court order. Such payment confirms the
extinguishment of any lien created pursuant to paragraph (1) or (2) of this subsection
(g) by virtue of the failure or refusal of a prior unit owner to make payment of
common expenses, where the judicial foreclosure sale has been confirmed by order of
the court, a deed in lieu thereof has been accepted by the lender, or a consent
judgment has been entered by the court.” 765 ILCS 605/9(g)(3) (West 2008).
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¶ 24 The first sentence of section 9(g)(3) plainly requires a foreclosure sale purchaser to pay
common expense assessments beginning in the month following the foreclosure sale. The
second sentence provides an incentive for prompt payment of those postforeclosure sale
assessments, stating “[s]uch payment confirms the extinguishment of any lien created” under
subsection 9(g)(1) by the prior unit owner’s failure to pay assessments. “[C]onfirm” means
“[t]o give formal approval to,” “[t]o verify or corroborate,” or “[t]o make firm or certain.”
Black’s Law Dictionary 318 (8th ed. 2004). “Extinguishment” is defined as “[t]he cessation
or cancellation of some right or interest.” Black’s Law Dictionary 623 (8th ed. 2004).
Accordingly, under the plain language of section 9(g)(3), the payment of postforeclosure sale
assessments formally approves and makes certain the cancellation of the condominium
association’s lien.
¶ 25 By requiring the foreclosure sale purchaser to “confirm[ ] the extinguishment” of the lien,
section 9(g)(3) plainly mandates an additional step beyond the extinguishment of the lien in a
foreclosure action. Section 9(g)(3) sets forth that additional step, stating the extinguishment
is confirmed by payment of postforeclosure sale assessments.
¶ 26 Contrary to defendant’s argument, the language of section 9(g)(3) cannot be construed as
an alternative means for foreclosure sale purchasers to extinguish a condominium
association’s lien when the association was not joined as a party to the foreclosure action.
Section 9(g)(1) creates an association’s lien upon the failure or refusal of a unit owner to
make common expense payments when due, and that section states, “[a]ny action brought to
extinguish the lien of the association shall include the association as a party.” Thus, section
9(g)(1) is very specific on the method for extinguishing an association’s lien created by the
prior unit owner’s failure to pay assessments. Section 9(g)(1) states an action to extinguish
the lien “shall include the association as a party.” The statute does not provide that a
foreclosure sale purchaser may extinguish the lien by simply making postforeclosure sale
assessment payments.
¶ 27 Additionally, defendant’s argument is contrary to the plain language of section 9(g)(3).
Section 9(g)(3) requires payment of postforeclosure sale assessments to “confirm the
extinguishment” of the lien. The plain language of section 9(g)(3) assumes that the lien has
already been extinguished by including the association as a party to a foreclosure action.
Section 9(g)(3) provides an additional step to confirm or formally approve the
extinguishment by paying the postforeclosure sale assessments. We conclude that
defendant’s proposed construction of section 9(g)(3)—that it provides an alternative method
to extinguish the condominium association’s lien—is contrary to the express language of
sections 9(g)(1) and 9(g)(3). Significantly, defendant does not provide any other proposed
construction for the second sentence of section 9(g)(3).
¶ 28 Defendant contends, however, that sections 9(g)(4) and 9(g)(5) show the legislature did
not intend for mortgagees to be liable for their borrower’s prior unpaid assessments.
Defendant asserts that in those subsections, the legislature enacted a rule allowing
condominium associations to collect up to six months of unpaid assessments incurred prior to
the foreclosure sale, but expressly exempted mortgagees from the requirement to pay those
assessments. Defendant argues the six-month rule in sections 9(g)(4) and 9(g)(5) shows the
legislature did not intend foreclosure sale purchasers to be liable for all unpaid assessments
incurred prior to the sale.
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¶ 29 Section 9(g)(4) provides:
“(4) The purchaser of a condominium unit at a judicial foreclosure sale, other than
a mortgagee, who takes possession of a condominium unit pursuant to a court order
or a purchaser who acquires title from a mortgagee shall have the duty to pay the
proportionate share, if any, of the common expenses for the unit which would have
become due in the absence of any assessment acceleration during the 6 months
immediately preceding institution of an action to enforce the collection of
assessments, and which remain unpaid by the owner during whose possession the
assessments accrued. If the outstanding assessments are paid at any time during any
action to enforce the collection of assessments, the purchaser shall have no obligation
to pay any assessments which accrued before he or she acquired title.” 765 ILCS
605/9(g)(4) (West 2008).
¶ 30 Section 9(g)(5) provides, in pertinent part:
“(5) The notice of sale of a condominium unit under subsection (c) of Section
15-1507 of the Code of Civil Procedure shall state that the purchaser of the unit other
than a mortgagee shall pay the assessments and the legal fees required by
subdivisions (g)(1) and (g)(4) of Section 9 of this Act.” 765 ILCS 605/9(g)(5) (West
2008).
¶ 31 We believe sections 9(g)(4) and 9(g)(5) are consistent with our interpretation of section
9(g)(3). Together, those provisions allow condominium associations to recover a portion of
the prior owner’s unpaid assessments and to ensure payment of assessments that accrue
following the foreclosure sale.
¶ 32 Specifically, sections 9(g)(4) and 9(g)(5) apply to foreclosure sale purchasers other than
mortgagees and to purchasers acquiring title from a mortgagee. Those third-party purchasers
are required to pay a prior owner’s unpaid assessments that accrued during the six months
preceding an action to collect assessments. Section 9(g)(5) requires the notice of the
foreclosure sale to state that a purchaser other than a mortgagee must pay those prior unpaid
assessments. Sections 9(g)(4) and 9(g)(5), therefore, allow condominium associations to
recover a portion of the prior owner’s unpaid assessments from the new owner.
¶ 33 Section 9(g)(3), in contrast, applies to all foreclosure sale purchasers, including
mortgagees, and it simply requires the purchaser to pay assessments beginning the month
following the foreclosure sale to confirm the extinguishment of the lien created by the prior
owner’s failure to pay assessments. Section 9(g)(3) does not require a foreclosure sale
purchaser to pay any of the prior owner’s unpaid assessments if the purchaser pays the
assessments coming due following the sale. Thus, section 9(g)(3) ensures payment of
assessments accruing after the foreclosure sale. Under section 9, mortgagees may be
exempted from liability for the prior owner’s unpaid assessments, but only if the mortgagee
pays the assessments coming due following its purchase of the unit at the foreclosure sale.
¶ 34 We further note that although sections 9(g)(1) and 9(g)(3) do not require notice to
defendant of the prior owner’s unpaid assessments, the terms of section 9(g)(1) effectively
put mortgagees on notice of the potential for unrecorded association liens. Section 9(g)(1)
states any action to extinguish those liens must include the association as a party.
Additionally, the Act allows an encumbrancer “from time to time [to] request in writing a
written statement *** setting forth the unpaid common expenses with respect to the unit
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covered by his encumbrance.” 765 ILCS 605/9(j) (West 2008). Thus, a mortgagee may
protect its interest by requesting notice of unpaid assessments, joining the association as a
party to a foreclosure action, and paying assessments that accrue following its purchase of a
property at a foreclosure sale.
¶ 35 Defendant also argues that the appellate court’s construction of section 9(g)(3) conflicts
with section 15-1509(c) of the Foreclosure Law. Section 15-1509(c) provides that foreclosure
of a mortgage extinguishes all junior lien interests of parties joined in the foreclosure action.
Defendant maintains plaintiff’s lien was extinguished in the foreclosure action and it cannot
be revived to “confirm the extinguishment” under the Act.
¶ 36 Section 15-1509(c) of the Foreclosure Law provides, in pertinent part:
“Any vesting of title *** by deed pursuant to subsection (b) of Section 15-1509,
unless otherwise specified in the judgment of foreclosure, shall be an entire bar of (i)
all claims of parties to the foreclosure and (ii) all claims of any nonrecord claimant
who is given notice of the foreclosure ***.” 735 ILCS 5/15-1509(c) (West 2008).
¶ 37 We presume that several statutes relating to the same subject are governed by a single
spirit and policy and that the legislature intended the statutes to be consistent and
harmonious. Uldrych v. VHS of Illinois, Inc., 239 Ill. 2d 532, 540 (2011). Even when there is
an apparent conflict between statutes, they must be construed in harmony if reasonably
possible. Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002). Section 9(g)(3) of
the Act and section 15-1509(c) of the Foreclosure Law both relate to the foreclosure of
condominium units. Accordingly, we presume that the legislature intended the Act and the
Foreclosure Law to be consistent and harmonious.
¶ 38 A review of those statutory provisions shows they may be construed consistently. Under
section 15-1509(c) of the Foreclosure Law, vesting of title in the purchaser acts as a bar to
claims of parties to the foreclosure action, thus extinguishing junior liens. Consistent with the
Foreclosure Law, section 9(g)(1) of the Act states that “[a]ny action brought to extinguish the
lien of the association shall include the association as a party.” 765 ILCS 605/9(g)(1) (West
2008). Section 9(g)(1), therefore, requires compliance with the Foreclosure Law to
extinguish the association’s lien. Section 9(g)(3) then provides an additional step to “confirm
the extinguishment” of the association’s lien by requiring payment of postforeclosure sale
assessments. By employing the “confirms the extinguishment” language, section 9(g)(3)
assumes that the lien has been extinguished under the Foreclosure Law. The plain language
of the Act and the Foreclosure Law may, therefore, be reasonably construed together to
provide a process for extinguishing and confirming the extinguishment of the association’s
lien.
¶ 39 While defendant argues that a mortgagee must be able to extinguish junior lien interests
joined in the foreclosure action to convey clear title to a subsequent purchaser, section 9 of
the Act does not impede defendant’s ability to provide clear title. Section 9(g)(3) only
requires the foreclosure sale purchaser to pay assessments coming due following the
foreclosure sale. Payment of those assessments confirms the extinguishment of the lien for
the prior owner’s unpaid assessments. Accordingly, defendant’s interest in providing clear
title will not be impaired if it complies with section 9(g)(3) and pays the assessments coming
due following its purchase of a property at a foreclosure sale.
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¶ 40 Given our construction of the statutory provisions, we conclude that the trial court did not
err in granting plaintiff summary judgment. While defendant argues that the trial court erred
in granting summary judgment because plaintiff’s lien was extinguished under section
15-1509(c) of the Foreclosure Law, the record is not entirely clear that plaintiff was joined as
a party to the foreclosure action. Although defendant asserts in its brief that it joined plaintiff
as a party, it admits “the underlying foreclosure papers are not of record.”
¶ 41 In any case, even if the record clearly established that defendant joined plaintiff as a party
to the foreclosure, defendant failed to confirm the extinguishment of plaintiff’s lien under
section 9(g)(3) of the Act. The record shows that defendant purchased the unit at a
foreclosure sale on June 17, 2010. The affidavit of plaintiff’s property manager establishes
that defendant did not make any assessment payments after purchasing the property at the
foreclosure sale. Based on the evidence of record, we conclude that defendant failed to
confirm the extinguishment of plaintiff’s lien for the prior owner’s unpaid assessments under
section 9(g)(3) of the Act.
¶ 42 Defendant does not present any other argument challenging the trial court’s order
granting summary judgment. Accordingly, the trial court’s order granting plaintiff summary
judgment must be affirmed.
¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, the judgments of the circuit and appellate courts are affirmed.
¶ 45 Affirmed.
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