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Verni v. Imperial Manor of Oak Park Condo.

OPINION FILED SEPTEMBER 2, 1981.

CHARLES M.D. VERNI, PLAINTIFF-APPELLANT,

v.

IMPERIAL MANOR OF OAK PARK CONDOMINIUM, INC., DEFENDANT-APPELLEE. — (THOMAS DOLAN ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Charles M.D. Verni, the plaintiff, appeals from the denial of his section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate an order assessing attorneys' fees against him. The sole issue for review is whether the trial court abused its discretion in denying the petition.

The award of attorneys' fees to the defendant-appellee, Imperial Manor of Oak Park Condominium, Inc. (Imperial Manor), was made to reimburse the defendant for its legal expenses incurred to collect condominium assessments from Verni, a unit owner. When Verni refused to pay the assessments, Imperial Manor brought a forcible entry and detainer action against him. On March 11, 1975, while this action was pending, Verni filed a complaint in chancery seeking injunctive relief and a writ of mandamus. *fn1 The plaintiff sought to enjoin Imperial Manor from proceeding with its forcible entry and detainer action and to compel Imperial Manor and its officers to allow him to examine the books and records of the condominium association.

On April 16, 1975, the plaintiff filed a motion for a temporary restraining order and a preliminary injunction to enjoin the forcible detainer action scheduled for trial on that day. The trial court refused to grant the injunctive relief, gave the plaintiff additional time to file an amended complaint, ordered that the plaintiff be allowed to audit the records of Imperial Manor, and reserved the question of attorneys' fees for the defendant's forcible detainer action and the plaintiff's chancery action. The relief ordered was conditioned upon the plaintiff's payment of $1,582.94 for his past due condominium assessments. Payment was made by check dated April 16, 1975; and the forcible entry and detainer action was subsequently dismissed with prejudice.

Thereafter, the plaintiff was given two extensions of time to file his amended complaint while the defendant was ordered on five occasions to produce certain documents sought by the plaintiff. Plaintiff's amended complaint, filed on February 20, 1976, was stricken on September 14, 1976. At that time, the plaintiff was given leave to file a second amended complaint, and the issue of attorneys' fees was continued. On February 14, 1977, the plaintiff's action was dismissed with prejudice. The trial court retained jurisdiction over the matter of attorneys' fees and costs. The plaintiff's motion to reinstate his action and grant him leave to file a second amended complaint was denied on May 9, 1977; and on June 17, 1977, the defendant was given leave to file a motion for fees. On March 13, 1978, the trial court entered an order assessing fees in the amount of $6,895 against the plaintiff. Although notice had been sent to the plaintiff's attorneys, neither the plaintiff nor anyone on his behalf appeared at the hearing on the motion for fees.

Citation proceedings against the plaintiff commenced in October 1979. On November 5, 1979, the plaintiff filed his section 72 petition to vacate the order of March 13, 1978. This petition was denied on November 26, 1979.

It is well settled that attorneys' fees cannot be awarded to a successful litigant in courts> of law or equity in the absence of an authorizing statute or contract. (E.g., Meyer v. Marshall (1976), 62 Ill.2d 435, 343 N.E.2d 479; Kolkovich v. Tosolin (1974), 19 Ill. App.3d 524, 311 N.E.2d 782.) Where there is such authorization, the statute or contract can only be enforced in terms of its specific language. Qazi v. Ismail (1977), 50 Ill. App.3d 271, 364 N.E.2d 595.

The "Declaration of Condominium Ownership" of Imperial Manor of Oak Park Condominium, Inc., provides in part in article VI (g):

"If an owner is in default in the monthly payment of * * * charges or assessments for thirty (30) days, the members of the Board may bring suit for and on behalf of themselves and as representatives of all owners, to enforce collection thereof or to foreclose the lien therefor as hereinafter provided; and there shall be added to the amount due the costs of said suit, together with legal interest and reasonable attorneys' fees to be fixed by the court. To the extent permitted by any decision or any statute or law now or hereafter effective, the amount of any delinquent and unpaid charges or assessments, and interest, costs and fees as above provided shall be and become a lien or charge against the unit ownership of the owner involved when payable and may be foreclosed as in the case of foreclosure of liens against real estate. Said lien shall take effect and be in force when and as provided in the Condominium Property Act of Illinois [Ill. Rev. Stat. 1977, ch. 30, par. 301 et seq.] * * *."

Section 13.1 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1977, ch. 57, par. 13.1) also provides for the award of reasonable attorneys' fees and costs in a forcible entry and detainer action based upon the failure of a condominium owner to pay the assessments due.

The plaintiff in the instant case recognizes the above-stated provisions but argues that they are inapplicable because the legal expenditures of Imperial Manor were incurred to defend against the plaintiff's complaint to compel disclosure of the books and records of the defendant corporation and to prosecute the forcible entry and detainer action brought to collect his past due assessments. This is evident, according to the plaintiff, since the defendant's motion for fees sought reimbursement for legal services performed through May 24, 1977, whereas the plaintiff had paid the past due assessments by check dated April 16, 1975, pursuant to the court order entered.

When seeking relief from a default judgment, the section 72 petition must affirmatively set forth facts showing the existence of a meritorious defense to the cause in the original action and the exercise of due diligence on the part of the petitioner in presenting both a defense to the lawsuit and the section 72 petition. (E.g., American Reserve Corp. v. Holland (1980), 80 Ill. App.3d 638, 400 N.E.2d 102; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App.3d 667, 360 N.E.2d 1355.) Whether or not such a petition is granted lies within the sound discretion of the trial judge, and the trial court's decision will not be disturbed unless there is an abuse of discretion. Hogan & Farwell, Inc. v. Meitz (1976), 45 Ill. App.3d 216, 359 N.E.2d 740.

The defendant contends that the plaintiff does not have a meritorious defense because the attorneys' fees were properly awarded in accordance with the condominium declaration and statute. The defendant argues that the plaintiff's chancery action was an extension of its forcible entry and detainer action and that the plaintiff's tender of funds in payment of the past due assessments did not end the dispute over the legality and propriety of those assessments.

• 1 We have considered the arguments of the parties in this regard and find that the plaintiff has a meritorious defense. The judgment for attorneys' fees entered against the plaintiff was erroneous because it required the plaintiff to reimburse the defendant for all legal expenses incurred as a result of both parties' lawsuits. While the plaintiff's chancery complaint was related to the defendant's forcible entry and detainer action, because it sought to enjoin that proceeding, we believe it was separate and distinct from that action. The primary remedy the plaintiff sought from his action was a court order compelling the defendant to disclose the books and records of Imperial Manor. The plaintiff alleged in his complaint that he had tried unsuccessfully to examine Imperial Manor's books and records which as a unit owner he had the right to do (see Ill. Rev. Stat. 1977, ch. 30, par. 319). Had the plaintiff's complaint been filed as a single count seeking only the disclosure of defendant's books and records, the defendant would not have been entitled to reimbursement for legal fees for the defense of such an action. Therefore, we find that the defendant is not entitled to be reimbursed for those expenditures in the case at bar merely because the plaintiff sought ...


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