201 4 IL App ( 1st ) 1 32762 No. 1

- 1 3

- 2762 Fifth Division June 20 , 2014
IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT ) MARTA TYRKA, I ndividually and as ) Next F riend of EMILIA TYRKA, a ) M inor, ) ) Plaintiff s - Appell ants , ) ) v. ) ) GLENVIEW RIDGE CONDOMINIUM ) ASSOCIATION , ) ) Defendant

- Appellant ) ) ( Melissa Bermejo as Special ) Representative of the Estate of Geri M. ) Allegretti , ) Defendant). ) Appeal from the Circuit Court of Cook County.

No. 12 M 1 301780 The Honorable James E. Snyder , Judge, presiding.

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

.

OPINIONNo. 1

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2 ¶ 1 Plaintiffs Marta and Emilia Tyrka appeal the trial court's order dismissing the counts in their complaint against defendant Gle n view Ridge Condom i nium Association ( condo a ssociation) 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. Fe b

. 26, 2010) , that there was no just reason to delay the appeal of its order dismissing counts VII and VIII against defendant condo

a ssociation

. ¶ 2 This appeal concerns injuries sustained by plaintiff s 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 the ir 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 u s on a 2

- 615 dismissal, we
assume that all the well

- plead ed facts in th is complaint are true ( DeHart v. DeHart , 2013 IL 114137, ¶ 18) , and we summarize them below.No. 1

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3 ¶ 6 Counts VII and VIII were directed against defendant condo association , and these counts allege that defendant condo association wa s 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, o n 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 p laintiffs 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 s he was a "resident" and " harbo r e d " the dog at the condo premises. In addition, t he complaint does not allege whether plaintiffs were condo owners , residents , less ees, or invit ees 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 c an
reserve, or an other type of space. Since Allegretti died on August 30, 2012 , theNo. 1

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4 complaint names as a party defendant Melissa Bernejo, w ho is the special representative of Allegretti's estate. ¶ 9 Although the complaint alleges that Allegretti's dog attacked plaintiffs "without provocation," t he complaint does not provide details concerning the attack, such as whether the attack on plaintiff s' 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 plaintiff s 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 d efendant 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 weigh ed 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 ," be cause "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." "AtNo. 1

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5 least three individuals who lived in the Glenview Ridge Condominiums *** had complained to [defendant condo assoc iation] 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 do g 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 throug h 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 t he dangerous nat ure of the dog and that, as a result of defendant condo association's negligence, plaintiffs were injured. ¶ 13 Count s VII and VIII are identical, except for the fact that count VII seeks relief for injuries suffered by plaintiff Marta Tyrka, while Count VI II seeks relief for injuries suffered by minor plaintiff Emilia Tyrka

. The complaint does not allege the age of the minor plaintiff. ¶ 14 T he 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, t he first amended complaint also mistakenly namedNo. 1

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6 "Defendant, Geri Allegret ti" in the prayer for relief for the two counts against defendant condo association. ¶ 15 I I. Procedural History ¶ 16 W e provide here only a short summary of the relevant procedural history leading up to the filing of plaintiffs' second amended complaint. ¶ 17 A fter 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, t hat 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 Novem ber 28, 2012, b ut 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'No. 1

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7 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 s econd amended complaint, and defendant again moved to dismiss. The substance of defend ant's final dismissal motion is discussed below. ¶ 20 II I . 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 ground s (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 faile d 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 d eath 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. "No. 1

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8 ¶ 23 Second, the motion argued that plaintiff s had failed to establish that defend a nt 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 p laintiffs alleged that the Allegretti dog had attacked an other 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 att acks, 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 vici ousness. ¶ 26 I V . 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, briefsNo. 1

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9 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 d elay enforcement of or appeal from said order of dismissal. "
¶ 28 Although the above order states that "oral argument [was] heard," t he appellate record does not contain a transcript or bystander's report for the proceedings

. ¶ 29 A notice of appeal was filed o n August 22, 2013, and this appeal followed. ¶ 30 ANALYSIS ¶ 31 On this appeal, p laintiffs challenge the trial court 's dismiss al 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)).No. 1

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10 ¶ 32 I. Section 2

- 615 Motion ¶ 33 A section 2

- 615 motion attacks the legal sufficiency of the complaint.
DeHart , 2013 IL 114137, ¶ 18 (citing Bajwa v. Metropolitan Life Insurance
Co. , 208 Ill. 2d 414, 421 (20 04) ) . When ruling on a section 2

- 615 motion, a court must accept as true all well

- pleaded facts in the complaint, as well as any reasonable inferences that may be drawn from those facts

. DeHart , 2013 IL 114137, ¶ 18 (citing Doe v. Chicago Board of Educat ion , 213 Ill. 2d 19, 28 (2004 ) ). A trial court should dismiss a count or caus e 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 plaintiff s to the requested relief. DeHart , 2013 IL 114137, ¶ 18 (citing Bajwa , 208 Ill. 2d at 421 ) . The question for the court is whether the allegations of the complaint , when construed in the light most favorable to the plaintiffs, are sufficient to establish the cause of action.
DeHart , 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James , 2012 IL 112393, ¶ 34). ¶ 34 However, our supreme court has also emphasized that Illinois is a fact

pleading jurisdiction, and that plaintiffs are required to allege sufficient facts to bring a claim withi n a legally recognized cause of action. Marshall v. Burger King Corp. , 222 Ill. 2d 422 , 430 (2006) . Although plaintiffs are not required to set forth evidence in a complaint, they also cannot set forth "simplyNo. 1

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11 conclusions." Marshall , 222 Ill. 2d at 430. "[M]ere conclusory allegations unsupported by specific facts will not suffice." Primax Recoveries v. Atherton , 365 Ill. App. 3d 1007, 1010 (2006). ¶ 35 On appeal, our review of a trial court's 2

- 615 dismissal order is de novo

. DeHart , 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James , 2012 IL 112393, ¶ 34). De novo consideration means that we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP , 408 Ill. App. 3d 564, 578 (2011). ¶ 36 I. Technical Defi ciency 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 trialNo. 1

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12 court. "This court has repeatedly held that a party waives a point by failing to argue it." Lozman v. Putnam , 379 Ill. App. 3 d 807 , 824 (2008). See also People v. Ward , 215 Ill. 2d 317, 332 (2005) ( "point raised in a brief but not supported by citation to relevant authority *** is therefore forefeited"); In re Marriage of Bates , 212 Ill. 2d 489, 517 (2004) ("A reviewing court is entitled to have issues clearly defined with relevant authority cited."); Rosier v. Casc ade Mountains, Inc. , 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting legal authority or any reasoned argument, plaintiffs waived consideration of their theory for asserting personal jurisdiction over defendants); Ferguson v. Bill Berger As sociates, Inc. , 302 Ill. App. 3d 61, 78 (1998) ("it is not necessary to decide this question since the defendant has waived the issue" by failing to offer case citation or other support as Supreme Court Rule 341 requires); Ill. S. Ct. R. 341(h)(7) (eff. Fe b

. 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 plai n tiffs failed to establish that defendant owed a duty of care to protect plaintiffs from defendant Allegretti 's dog

.No. 1

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13 ¶ 43 Both of plaintiffs ' counts against d efendant 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 th e 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 w as peacefully conducting herself in any place where she had a lawful right to be.
51 0 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 pro ve that the defen dant knew of a dog's vicious nature. Severson v. Ring , 244 Ill. App. 3d 453 , 456 (1993). However , in their complaint , plaintiffs bring claims of only common law negligence against defendant condo association

. Plaintiffs do not assert either a statutory claim under the Act or a claim of bre ach 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 th e Illinois Animal Control Act

. " Thus, neither the Act nor any fiduciary duty owed by the condo association is at issue on this appeal.No. 1

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14 ¶ 44 T o state a cause of action for common law negligence, a complaint must allege facts that establish : (1) the existe nce of a duty to use reasonable care owed by the defendant to the plaintiff s , (2) a breach of that duty, and (3) an injury proximately caused by that breach. Marshall , 222 Ill. 2d at 430; First Springfield Bank & Trust v. Galman , 188 Ill. 2d 252, 256 (1999). ¶ 45 In the case at bar, defendant did not move to dismiss on either the second or third elements, which are (2) the breach of a duty or (3) the injuries proximately caused by that breach. Defendant argued solely that it lacke d (1) a duty to use reasonable care. ¶ 46 Whether a duty exists in a particular case is a question of law for the court to decide and so it is therefore an appropriate ground for a section 2

- 615 motion to dismiss. See Marshall , 222 Ill. 2d at 430 (citing Chandler v. Illinois Central R.R. Co. , 207 Ill. 2d 331, 340 (2003)). By contrast, whether a defendant breached th at duty and whether the breach was the proximate cause of the plaintiffs' injuries are generally factual matters for a jury to decide , so long as there is a genuine issue of material fact regarding those elements. Marshall , 222 Ill. 2d at 430 (citing Espinoza v. Elgin Joliet & Eastern Ry

. Co. , 165 Ill. 2d 107, 114 (1995 ) ). ¶ 47 Plaintiffs allege that defendant owed them a duty because defendant owned the premises upon which they were injured. To begin with, plaintiffs doNo. 1

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15 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 inci den t occurred, but offer only the conclusion that the attack occurred in " a common area. " Plaintiffs allege knowledge by defendant but not which person, on behalf of the condo association, possessed that knowledge , or in what form the residents' complaints were made, or when they were made

. ¶ 48 To support their allegation that defendant owed them a duty, plaintiffs rely primarily on the following four cases: (1) Frost v. Robave, Inc. , 296 Ill. App. 3d 528, 537

- 38 (1998); (2) Goen nenwein v. Rasof , 29 6 Ill. App. 3d 650, 654 (1998) ; (3) Severson v. Ring , 244 Ill. App. 3d 453, 458 (1993) ; and (4) Lucas v. Kriska , 168 Ill. App. 3d 317, 320 (1988)

. In th e 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 busines s and the dog's o wner occasionally took the dog to work. Frost , 296 Ill. App. 3d at 53 0

- 3 1. T he Frost court acknowledge d 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 aNo. 1

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16 duty" occur "where [a] defendant is legally responsible for the premises where the injury occurred." Frost , 296 Ill. App. 3d at 537. However, s ince the attack
in Frost did not occur on the defendant business' premises a nd the business did not own or have custody or control of the dog , the defendant business could not be held liable

. Frost , 296 Ill. App. 3d at 537. ¶ 50 Plaintiffs argue that Frost shows that defendant condo as sociation 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, alt hough 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 knowledg e of the dog's alleged dangerousness." Goennenwein , 296 Ill. App. 3d at 655. ¶ 52 Discussing the issue of knowledge, the court stated:No. 1

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17 "It is presumed that a dog is tame, docile, and harmless absent evidence that the dog has demonstrated vicious propensities. Lucas v. Kriska , 169 Ill. App. 3d 317, 320 (1988). To impose a duty on defendant, plaintiff need ed to establish that defendant knew or had reason to know that the dog would be dangerous to children. Se e Lucas , 168 Ill. App. 3d at 320. Because a dog ordinarily is not a danger to children (see Lucas , 168 Ill. App. 3d at 320), plaintiff needed to come forward with evidence to show that defendant knew that [this particular dog] was a danger to children."
Goennenwein , 296 Ill. App. 3d at 654

- 55. Thus, to impose liability on someone other than the dog's ow ner under principles of common law negligence, plaintiffs must show that a defendant premises owner had prior knowledge of the dog ' s viciousness. Lucas , 1 68 Ill. App. 3d at 320 ; see also Goennenwein , 296 Ill. App. 3d at 654

- 55

. ¶ 53 The Goennewein court then discussed facts which could have provided the defendant host and premises owner with the knowledge that the dog might
pose a potential danger to the child. Those facts included whether the dog had

" growl [ ed ] , snarl [ ed ] or threaten [ ed ] any one" 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.No. 1

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18 ¶ 54 Similarly, in Severson , the appellate court also considered what facts would provide a premises owner with kn owledge that a dog might pose a danger , and it also found significant the existence of a prior attack on a person . Severs on , 244 Ill. App. 3d at 458

- 59. In Severson , the appellate court held that a trial court erred in granting summary judgment on a common - law negligence
claim , because there was a material issue of fact about whether the defendant premises owner knew of the dog's vicious nature

. Severson , 244 Ill. App. 3d at
458

- 59. In Severson , the appellate court reversed because the dog had bitten another child just 20 days before it bit th is 2

- year - old plaintiff , and because the dog owner had stated in front of the defendant premises owner that a person should not " go near" his dog when the dog was " chained up" in the defendant's yard. Severson , 244 Ill. App. 3d at 458

- 59. ¶ 55 In Lucas , which was also cited by plaintiff s , 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 f or the eight

- year - old plaintiff. Lucas , 168 Ill. App. 3d at 319, 321

. The appellate court held that , although the defendant was undisputedly both the premises owner and the brother of the dog's owner, reversal was required in light of the complete absence of evidence of any prior bites by the dog. Lucas , 168 Ill. App. 3d at 319, 321. Thus, in Go e nnenwein , Severson and Lucas , theNo. 1

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19 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 negli gence 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 o nly with factual allegations . However, they still must allege sufficient facts in order to overcome the presumption discussed above in Goennenwein and Lucas that dogs are tame, docile and harmless

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

- 55 ; Lucas , 168 Ill. App. 3d at 320 ("Illinois law presumes the tameness and docility of dogs and only imposes liability where there is notice of the dog's vicious propensities")

. ¶ 57 Plaintiffs argue in their appellate briefs that paragraphs 14 through 18 of
the ir two neglige nce counts allege sufficient facts to show the knowledge wh ich

w as 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.No. 1

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20 15. That prior to August 11, 2011, residents of the Glenvi ew 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 harbor ed by [defendant Allegretti] had
attacked another res id ent'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. Tha t prior to August 11, 2011, at least three individuals who lived in the Glenvie w 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 stri pped of their legal conclusions and reduced to only their factual allegations, the paragraphs allege that threeNo. 1

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21 individuals living at the condo premises complained to defendant condo associ ation 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 do g's presence in violation of defendant's regulations and general nuisance complaints reveal s nothing about a potential propensity for violence. Nuisance complaints could be due to barking ; and the violation of defendant's regulations, according to plainti ff s , 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" identif ied in paragraph 18, paragraph 18 does not allege what the Allegretti dog attacked: whether the target of th is 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 th is 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 th is prior attack.No. 1

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22 ¶ 61 In paragraph 16, the complaint does allege that defendant condo association knew of a prior attack by the Allegr etti dog on "another resident's dog in the common area." If the attacks in paragraphs 16 and 18 are one and th e same , this allegation is still not sufficient , without more, to show that defendant had knowledge that th is 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 a ny injuries or bites, whether the dog 's owner was under any threat or danger, whether the attack was unprovoked, or whether the dogs i nvolved were unleashed. ¶ 62 Nowhere does the complaint allege the facts discussed in prior appellate

cases such as whether the dog previously sna rled at , growled at , threatened or attacked another person . Goennenwein , 296 Ill. App. 3d at 655 (appellate court considered whether the dog had previously attacked, "growl[ed], snarl[ed] or threaten[ed] anyone" ) ; Severson , 244 Ill. App. 3d at 458

- 59 (a recent prior attack , plus a warning by the dog owner delivered in front of the defendant premises owner , created a material issue of fact about the premises owner's knowledge) ; Lucas , 168 Ill. App. 3d at 321 (the trial court erred in not granting judgment notwithstanding the verdict in light of the complete absence of evidence of prior bites by the dog ). As a result, plaintiffs' second amendedNo. 1

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23 complaint fails to show knowledge by defendant condo association, and we must affirm the trial court's dismissal of the counts against defendant condo
association

. Primax , 365 Ill. App. 3d at 1010 ("mere conclusory allegations unsupported by specific facts will not suffice"). ¶ 63 We observe that t he second amended complaint is plaintiffs' third attempt at drafting a co mplaint, and plaintiffs did not seek leave to amend for a third
time after defendant argued for a third time both that knowledge w as an issue and that plaintiffs' allegations of knowledge were "conclusory

. " A reviewing court must presume that another attempt at repleading w ill be fruitless whe n there is no proposed amended pl eading in the record. Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc. , 275 Ill. App. 3d 452, 461 (1995). ¶ 64 CONCLUSION ¶ 65 For the foregoing reasons, we affirm the trial court's dismissal of counts VII and VIII in plaintiffs' second amended complaint against defendant condo association. ¶ 66 Affirmed.