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Amoco Realty Co. v. Montalbano

OPINION FILED MAY 14, 1985.

AMOCO REALTY COMPANY ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES.

v.

ANTHONY MONTALBANO ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Amoco Realty Company and American Growth-Midwest, Inc., partners doing business as the Midwest Club Company (Midwest Club), appeal the trial court's denial of their request for attorney fees pursuant to a contractual provision. The defendants, Anthony and Susan Montalbano (Montalbanos), cross-appeal from the trial court's grant of injunctive relief. The sole issue raised by the Midwest Club in their appeal is whether the trial court erred in denying the plaintiffs' request for attorney fees. The Montalbanos raise two issues in their cross-appeal: (1) whether the Midwest Club is a proper party to this appeal; and (2) whether the trial court's grant of injunctive relief is against the manifest weight of the evidence.

The Midwest Club Company developed a high-quality residential community located in Oakbrook, known as the Midwest Club. The Montalbanos own two of the 221 lots in that community. Prior to the community's development, the Midwest Club adopted and recorded a document known as the Midwest Club Declaration of Trust (declaration), which described the community's purpose and established the guidelines under which the community would operate. This declaration, recorded on December 7, 1978, in the Du Page County recorder of deeds' office, stated that all covenants and restrictions created by it run with the land, and that every conveyance or other instrument is subject to the covenants and restrictions as firmly as if the covenants and restrictions were fully restated in the conveyance or other instrument.

The declaration proposed to protect and preserve the distinctive qualities, amenities and characteristics of the area so that it would at all times be regarded as a residential community of outstanding excellence. To this end, the declaration reserved to the Midwest Club the right to establish architectural and landscaping controls, and to approve all plans and specifications of the prospective residences. The declaration further authorized the Midwest Club to appoint a control committee to review blueprints and to make recommendations to the Midwest Club before construction commenced. The declaration also provided that the Midwest Club's approval or disapproval of any designs shall be conclusive and binding on all parties.

In pursuing this legal action, the Midwest Club sought to enforce specific provisions of the declaration relating to a covenant restricting the property's use to residential purposes only, and a section prohibiting any structure that would physically or visually obstruct or delineate any boundary contiguous to the community area. These provisions provide:

"5.1 Land Use and Building Type. All lots in the Club Area, except the lot reserved as Community Area, shall be used for single family private residence purposes only, and no dwellings other than a single family private residence shall at any time be constructed or maintained. No regular business of any kind or nature whatsoever shall be permitted or carried on. No building other than a private residence shall be constructed, except that patios, swimming pools, tennis courts, gazebos and other landscape structures properly appurtenant to a fine quality residence and consistent with the character of the Club Area may be constructed.

5.4 Landscaping Contiguous Community Area. On any Lot boundary contiguous to the Community Area there shall be no landscaping, planting, growth or structure permitted that would have the effect of physically or visually obstructing, defining or delineating said boundary."

Further, the Midwest Club sought to invoke a provision in the declaration indicating that in any legal proceeding arising out of an alleged default by an owner, the trustees, if prevailing, shall be entitled to recover reasonable attorney fees and expenses.

In April 1979, the Midwest Club adopted a second document known as the Architectural and Landscaping Control Manual (control manual). The control manual supported the declaration's prohibitory covenants, stating:

"There shall be no planting, growth or structure permitted that would have the effect of physically or visually obstructing, defining or delineating any lot boundary contiguous to any other lot, or the Community Area."

In April 1980, the control manual was codified and reissued to all lot owners, including the Montalbanos.

In late 1978, the Montalbanos purchased two lots with the intention of building a home on one of the lots. Mr. Montalbano, a contractor, prepared the plans for the residence which designated space on the first floor for an office and reception area for Montalbanos' construction business. Mr. Montalbano testified that Robert Gaimari, general sales manager for the Midwest Club, reviewed the construction plans and told him that he could operate his business from his home if his plans were approved by the control committee. Gaimari denied viewing Montalbano's plans, and claimed to have made no such representation to Montalbano.

Subsequently, the Montalbanos submitted their blueprints to the control committee. After the control committee approved of the plans and specifications, the Montalbanos built their home and moved into the Midwest Club in May 1981. Between August 1981 and May 1983, the Montalbanos operated their construction business from their residence. This involved employees driving their cars and trucks to the home when reporting for work. Mr. Montalbano admitted to having received a copy of the declaration prior to building his home but states he never read it. He testified that had he been aware of the prohibition against the use of a residence as a business, he probably would not have purchased a lot in the Midwest Club.

In addition to operating a business from their home, the Montalbanos constructed four stone, square lightposts which measured 4 feet high and 2 feet wide. These lightposts flanked the two entrances of their circular driveway. The construction blueprints submitted to the control committee did not include any design for these lightposts, and no subsequent plans were submitted for approval. The control committee objected to the existence of the stone lightposts, finding them inappropriate for their particular function. The testimony of Michael Lach, a civil engineer and a committee member, revealed that had the plans for the lightposts been submitted, they would have been denied by the committee. The committee members agreed the lightposts ...


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