APPEAL from the Circuit Court of Jefferson County; the Hon.
BRUCE IRISH, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 15, 1980.
Defendants Joe Lawrence and Security Bank & Trust Company, Mount Vernon, Illinois, appeal from an order of the circuit court of Jefferson County enjoining defendant Lawrence to remove a swimming pool and surrounding deck and a dock from his property, allegedly constructed in violation of certain of plaintiff's rules and restrictive covenants, and awarding plaintiff punitive damages in the amount of $5,383.89. On appeal defendants contend: (1) The rules of the association were not violated; (2) plaintiff's suit for a mandatory injunction was barred by a section of the restrictive covenants; (3) the suit was barred by laches; (4) the injunction places a disproportionate burden upon defendant Lawrence when compared with the benefits secured by plaintiff; (5) the dock does not violate the rules or covenants; and (6) punitive damages were improperly awarded in this case. For the following reasons we reverse.
On August 3, 1976, Lot 32A in Hawthorne Hills Subdivision was conveyed by a deed in trust to Security Bank & Trust Company, Mount Vernon, Illinois, as trustee under the provisions of a trust agreement, defendant Lawrence being the beneficiary. The deed in trust was expressly made subject to the restrictive covenants contained in a certain "Declaration of Covenants and Restrictions" executed on July 8, 1970, and recorded on July 13, 1970, and a certain "Amendment to Declaration of Covenants and Restrictions" executed on September 4, 1970, and recorded on September 22, 1970. The relevant restrictive covenant, entitled "Architectural Control Committee; Access; Repair" and appearing in Article VI, states:
"Section 1. Review by Committee. No building, fence, wall or other structure shall be commenced, erected or maintained upon The Properties, nor shall any exterior addition to or change or alteration therein be made, nor shall any substantial change in grade or drainage be commenced, nor shall any improvement or alteration of lake front areas (including Semi-Private Common Areas) be commenced, nor shall any exterior lighting be placed, nor shall any change, alteration or improvement of any buffer zone or Semi-Private Common Area between Lots be commenced until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said board, or its designated committee, fail to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with."
Defendants' lot was also subject to "Hawthorne Hill Association Rules," which contained certain setback rules and footage restrictions. They need not be quoted here because the covenants and restrictions which authorized the passage of such rules contain the provision which is dispositive of this case on appeal.
The evidence indicates that between March 1977 and May 1977, Mr. Lawrence constructed a large in-ground swimming pool and surrounding deck behind his home on Lot 32A. On approximately June 10, 1977, he placed a dock in the subdivision lake behind his property. Plaintiff impliedly contests some of these completion dates, but the evidence speaks otherwise. No plans were ever submitted by Lawrence or approved by plaintiff's architectural committee at any time with respect to these improvements which cost defendant over $20,000. On June 21, 1977, plaintiff Hawthorne Hills Association (hereinafter referred to as the Association) instituted this action seeking a mandatory injunction and punitive damages. Defendants filed their joint answer, and defendant Lawrence counterclaimed, seeking attorney's fees and punitive damages. Numerous witnesses testified and various exhibits were introduced at the bench trial of this case on June 21 and 22, 1979. In order to avoid an undue extension of this opinion, only that matter necessary to the resolution of this case will be referred to below. Following the trial, the trial court granted the mandatory injunction, awarded the Association punitive damages in the amount of attorney's and expert's fees as well as costs, and denied the counterclaim. The injunction was to be complied with within 90 days of issuance, but the trial court stayed enforcement upon the filing of a $5000 bond.
The above-quoted Article VI, Section 1 restriction applicable to defendants' lot clearly calls for the submission and approval of plans respecting any construction to the Association's board of directors or architectural committee. During all relevant times, the Association did have an operative three-person architectural committee. It is undisputed that no plans regarding the pool, deck or dock were ever submitted to the committee prior to their completion. However, Article VI, Section 1, provided for such a situation by stating that "in any event, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with." Since completion of the improvements was had prior to June 21, 1977, the day suit was filed, the Association appears to be precluded from the relief sought.
Defendants had raised this point as an affirmative defense in their answer, but the court ruled that they were estopped from relying on this clause because the Association relied on Lawrence's alleged statement to a member of the architectural committee that he would submit plans for his improvements and obtain approval thereof. Defendant Lawrence denied having this particular conversation. Mr. Ivan Moreton testified via an evidence deposition that he was a member of the architectural committee in 1977. He said he was made aware of construction being performed on Lot 32A and called Lawrence to discuss the matter.
"Joe answered the phone, and I asked Joe if there was some construction taking place, and he said yes. And I said, `Well, you know, Joe, I am a member of the Architectural Control Committee. I am asking if you did get an approval to start this work.' He said, `No, I don't have time.'
And I, being as persuasive or in a requestive manner cap in hand so to speak asked Joe to get some plans prepared so that we could avert any problems.
Joe says, `Oh, all right.' I said, `Well, Joe, I would like to have the plans as soon as possible so that we can get them approved.' And Joe says, `All right. I will get them as soon as possible.' It was like a silence and then the that was the end of the conversation."
However, when asked the point in time at which it was apparent that Lawrence was not going to submit any plans for approval to the committee, Moreton replied:
"Well, in due respect to Joe, the conversation over the phone, you know, you might say how do I know this, but it didn't seem as though it was going to be very fruitful, you know, ...