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Doherty v. Kill





Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.


This is an action in which the trial court entered summary judgment against plaintiffs and gave defendants a monetary award. Plaintiffs now appeal.

In April of 1978, the defendants contracted to purchase Unit 301 in a condominium building at 6049 Marshall, Chicago Ridge. In anticipation of this purchase, the defendants asked the board of managers for a written statement of any unpaid assessments owing on Unit 301. On May 26, 1978, before the defendants had closed on their apartment, the board notified them in writing that an assessment of $375 was due on Unit 301 in order to be paid in full up to July 1, 1978. The defendants purchased their unit on June 2, 1978, but they have never paid the maintenance fee of $375.

In November of 1978, the board of managers and the Marshall Condominium Association filed suit against the defendants, seeking to foreclose on a lien of $1,375. The plaintiffs contended in their verified complaint that the defendants owed $375 in maintenance fees and $1,000 in a special assessment. The assessment was purportedly levied against each unit in the building on December 27, 1977. Plaintiffs claim that the assessment was then reenacted on February 15, 1978, and July 17, 1978.

In their answer, the defendants denied that any special assessment was levied on their unit. Moreover, defendants observed that the board purported to enact this assessment prior to the time when defendants closed on their apartment. According to the defendants, since this alleged assessment was excluded from the written notice of fees due on Unit 301, the plaintiffs should be estopped from going forward with their claim for $1,000.

In addition to the foregoing, defendants asserted an affirmative defense in which they claimed a setoff against any maintenance fees due on their unit. The defendants contended that as a condition of closing, they had to give a credit of $464 to their seller, Daniel O'Donnell. This amount represented a premium payment that O'Donnell allegedly made when an insurance policy covering the condominium building was about to lapse. Since the defendants claimed that they reimbursed O'Donnell for this premium, they demanded that their payment of $464 be set off against the $375 maintenance fee owing on Unit 301.

More than four years after filing their answer, the defendants moved for summary judgment. As part of their motion, they included an affidavit and deposition from plaintiff Dennis Doherty, president of the board of managers of the condominium. This affidavit and deposition were taken as part of another action involving the same condominium building. In these documents, Doherty admitted that no special assessment of $1,000 had been levied against the condominium units. Instead, according to Doherty, if an apartment owner decided to move, he was expected to advance $1,000 to the association for possible repairs to the building. Then he would be reimbursed if the repairs were unnecessary or cost less than anticipated.

The plaintiffs did not file any affidavits of their own to counter the defendants' motion for summary judgment, and the trial court ruled in defendants' favor. In addition, the court awarded defendants a sum of $464 despite the fact that they had never asked for this amount in a counterclaim. Plaintiffs now appeal from the court's grant of summary judgment and award of $464.

The plaintiffs' initial objection on appeal is that the trial court erred in granting summary judgment for the defendants. In support of this objection, plaintiffs argue that the trial court should not have considered an affidavit from Dennis Doherty as evidence favorable to defendants' motion. Since this affidavit was taken as part of another action, plaintiffs characterize it as former testimony, admissible only when the declarant is unavailable as a witness. Doherty's availability has not been questioned, so plaintiffs believe that his former testimony must be excluded.

Contrary to plaintiffs' assertion, Doherty's affidavit was admissible as evidence in support of defendants' motion for summary judgment. It is true that if evidence would be inadmissible at trial, it is inadmissible in an affidavit accompanying a motion of summary judgment. (Loveland v. City of Lewistown (1980), 84 Ill. App.3d 190, 192-93, 405 N.E.2d 453.) It is also true that testimony given in another action is admissible as substantive evidence only when the declarant is unavailable as a witness. George v. Moorhead (1948), 399 Ill. 497, 501, 78 N.E.2d 216.

• 1 In the present situation, the declarant, Doherty, is apparently available as a witness. If his affidavit could be classified only as former testimony, then it might have to be excluded as evidence. Such is not the case, however, since Doherty's affidavit is an admission by party-opponent. When they are relevant to issues in the case, admissions made by a party are admissible as substantive evidence. An admission made by the party or his agent in sworn testimony may be used as evidence to the same extent as any other admission made by that person. See Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App.3d 606, 611, 396 N.E.2d 320.

• 2 Dennis Doherty is a named party in this action. Despite the fact that his affidavit was taken as part of another case, Doherty's remarks about an alleged special assessment are relevant to the dispositive issue in the present controversy. This being so, Doherty's affidavit was properly considered as an admission by party-opponent.

Plaintiffs contend further that summary judgment was improper here because the case presents a genuine issue of material fact. This argument lacks merit, however. A summary judgment is proper if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005.) In determining whether an issue of material fact exists, the evidence must be viewed in a light most favorable to the non-movant. If facts admit of more than one reasonable conclusion, then summary judgment should be denied. (Smothers v. Butler (1979), 78 Ill. App.3d 1018, 1020, 398 N.E.2d 12.) Even if there is some evidence from which differing inferences might be drawn, this is not significant so long as there is a reasonable basis in substantial evidence to support the inference that is drawn. Manahan v. Daily News-Tribune (1977), 50 Ill. App.3d 9, 12, 365 N.E.2d 1045.

• 3 In the present case, no genuine issue of material fact exists. The only evidence presented by the plaintiffs in support of their $1,000 claim was a verified complaint in which the president and secretary of the board alleged that a special assessment was levied. Plaintiffs argue on appeal that since their complaint was verified, the allegations contained in the pleading were sufficient to inject an issue of fact into this controversy. As authority for this proposition, the plaintiffs cite Donart v. Board of Governors (1976), 39 Ill. App.3d 484, ...

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