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06/19/87 6334 North Sheridan v. Werner Ruehle

June 19, 1987




APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

6334 NORTH SHERIDAN CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. WERNER RUEHLE, Defendant-Appellant

510 N.E.2d 975, 157 Ill. App. 3d 829, 109 Ill. Dec. 907 1987.IL.854

Appeal from the Circuit Court of Cook County; the Hon. Clarence Bryant, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN, Defendant appeals from the judgment against him and the award of attorney fees to plaintiff in a forcible entry and detainer action.

Defendant is the owner of Unit 3E, a condominium apartment in the property located at 6334 North Sheridan Road in Chicago. On October 9, 1984, plaintiff, the 6334 North Sheridan Condominium Association, voted a special assessment equivalent to one month's general assessment -- which, for defendant's unit, was $239 -- to be paid by November 15, 1984. Defendant did not pay the special assessment and also failed to make payment of the January 1985 general assessment on his unit. On November 27, 1985, plaintiff filed this action, and after a trial on April 15, 1986, the trial court entered judgment for plaintiff, granting it possession of the unit, enforcement of which was stayed for 90 days, and damages in the amount of $901.54 plus costs.

On May 2, defendant filed a "petition to vacate" the judgment on the grounds that plaintiff lacked the legal capacity to bring the action, that the notice served upon him was defective and that the interest and late charges imposed were unauthorized and excessive. On May 6, the trial court entered an order vacating the judgment but on May 16, the date set for trial, the court held that the May 6 order had been erroneously entered and, thus, vacated it and reinstated the April 15 judgment. In late June, defendant paid plaintiff the full amount of damages, plus $525 for attorney fees, the amount requested by plaintiff in its May 2 petition for services performed up to and including April 15. Plaintiff then filed another petition for an additional $2,675 in fees in connection with the proceedings after April 15. Upon Conclusion of a hearing on July 16, the court awarded plaintiff a total of $2,050 for attorney fees, from which was deducted the $525 defendant had previously paid. On August 4, the trial court denied defendant's motion to vacate the judgment for attorney fees and this appeal followed.

Opinion, Defendant first contends that plaintiff lacked the legal capacity to bring this action because it is a voluntary, unincorporated association.

As plaintiff points out, however, section 18.3 of the Condominium Property Act (Ill. Rev. Stat. 1985, ch. 30, par. 318.3), states that a condominium unit owners' association "whether or not it is incorporated shall have the powers specified in the General Not for Profit Corporation Act . . . [and] shall have and exercise all powers necessary or convenient to affect any or all of the purposes for which the association is organized, and to do every other act not inconsistent with law which may be appropriate to promote and attain the purposes set forth in this Act or in the condominium instruments." Among the general powers granted a not-for-profit corporation in the General Not for Profit Corporation Act (Ill. Rev. Stat. 1985, ch. 32, par. 163a et seq.) is "[to] sue and be sued, complain and defend, in its corporate name." (Ill. Rev. Stat. 1985, ch. 32, par. 163a4.) See St. Francis Courts Condominium Association v. Investors Real Estate (1982), 104 Ill. App. 3d 663, 432 N.E.2d 1274; Board of Managers v. Beringer (1981), 94 Ill. App. 3d 442, 418 N.E.2d 1099.

Furthermore, in addition to the above-cited statutes, we direct the parties' attention to section 2-209.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-209.1), an amendment made effective January 1, 1984, which specifically provides that "[a] voluntary unincorporated association may sue and be sued in its own name and may complain and defend in all actions." In the light thereof, there is no merit to defendant's assertion that plaintiff lacked standing to bring this action.

Defendant next contends that, having vacated the original judgment, the trial court abused its discretion by reinstating it without a trial on the charges contained in his May 2 motion to vacate.

Parenthetically, we note that defendant has not furnished us with a report of the proceedings on May 16; however, contained in the transcript of the hearing on plaintiff's petition for attorney fees are remarks by the trial court providing some insight into what had occurred. The trial court explained that it entered the order on May 6 vacating the April 15 judgment because it had been misled by the designation of defendant's motion as a "petition to vacate" -- rather than a "motion for a new trial" -- into the mistaken belief that the judgment had been entered ex parte ; and that upon realizing that the case had been tried, it then rescinded the May 6 order and reinstated the previously entered judgment.

With respect to the substance of defendant's charges, he asserts in this appeal, as he did in a motion to dismiss filed after entry of the order discussed above vacating the judgment and setting the case for trial, that (1) the notice served upon him was defective and that (2) plaintiff had violated (a) section 18.4(l) of the Condominium Property Act (Ill. Rev. Stat. 1985, ch. 30, par. 318.4(l)) (the Act) by imposing an unreasonable penalty under the guise of late charges and interest without conducting a hearing and (b) section 22 of the condominium ...


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