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06/11/96 MARSHALL SPIEGEL AND CAROL SPIEGEL v.

June 11, 1996

MARSHALL SPIEGEL AND CAROL SPIEGEL, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
HOLLYWOOD TOWERS CONDOMINIUM ASSOCIATION, DEFENDANT-APPELLEE AND CROSS-APPELLANT AND THIRD-PARTY PLAINTIFF (RAYMOND J. DES ROSIERS, BONITA DES ROSIERS, AND M. DES ROSIERS, THIRD-PARTY DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County. No. 93 CH 9656. Honorable Adolphus Rivers, Judge Presiding.

Certiorari Denied October 6, 1997, As Modified on Denial of Rehearing October 8, 1996. Released for Publication October 22, 1996. Subsequent Rehearing Denied November 7, 1996.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

Defendant Hollywood Towers Condominium Association (the Association) served a notice of intention to evict on plaintiffs Marshall and Carol Spiegel, who were tenants in a condominium unit owned by the Des Rosiers in the Hollywood Towers Condominium on North Sheridan Road in Chicago. Subsequently, plaintiffs brought an action in the chancery division of the circuit court seeking a declaratory judgment that the Association was bound by the Chicago Residential Landlord and Tenants Ordinance (the ordinance) (Chicago Municipal Code ยง 5-12-030(b) (November 6, 1991)). The Association, seeking plaintiffs' eviction, counterclaimed. The chancery division dismissed plaintiffs' complaint for declaratory judgment and transferred the action to the municipal department for eviction proceedings. There, the court granted summary judgment in favor of the Association; ordered plaintiffs evicted; granted back rent to defendants Raymond, Bonita, and M. Des Rosiers; and sanctioned plaintiffs and their attorneys pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).

In this consolidated appeal, plaintiffs contend that (1) the chancery division erred in determining that the ordinance did not apply to the Association, (2) they were entitled to a hearing on their defenses to the eviction action, and (3) the circuit court erred in awarding the Des Rosiers Rule 137 sanctions. Plaintiffs' trial counsel, the law firm of Starr & Rowells, appeals on independent grounds the imposition of those sanctions, and the Association cross-appeals, asserting that the denial of its petition for sanctions against plaintiffs was an abuse of discretion. For the reasons that follow, we affirm the judgments of the circuit court.

In January 1993, plaintiffs made several complaints to the Association regarding loud noises coming from the unit located directly above them. As a result, the board of directors of the Association conducted a hearing to determine whether there had been any violations of the condominium declaration. The board concluded that plaintiffs' complaints of noise from the apartment above them were unfounded and that the sounds complained of were common "to most apartment buildings of the same age as Hollywood Towers." With respect to harassment complaints that had been made against Marshall Spiegel, the board cautioned that "any further confrontation between any of the participating parties *** will be considered a violation of the Association's by-laws."

Sometime later, additional complaints were made against Marshall Spiegel. On July 6, 1993, the board determined that plaintiffs had violated the Association's declaration and bylaws; that plaintiffs and the Des Rosiers each should be required to pay $300; and that plaintiffs had to vacate their apartment by July 23, 1993.

In September and October 1993, the Association served plaintiffs with 30-day notices of its intention to file a forcible entry and detainer action. Plaintiffs responded by seeking an injunction, a declaration that the Association had not complied with the ordinance and was therefore barred from filing that action, and damages. Plaintiffs later amended their complaint to seek a declaration that the Association had not properly resolved their complaint of intolerable noise and requesting that the Association be enjoined to enforce the bylaws against the other tenants.

The Association filed a motion to dismiss and a counterclaim seeking to evict plaintiffs. The chancery division dismissed plaintiffs' complaint with prejudice. The court specifically found that the ordinance was not applicable to the Association where it was not the owner of the rental unit and that the Association's decision was binding with regard to its ruling both on plaintiffs' eviction for failure to comply with the Association's declaration and bylaws and on plaintiffs' complaint of nuisance against the adjoining unit. The court then transferred the Association's forcible entry and detainer counterclaim to the municipal department for further proceedings. There, the Association's counterclaim was consolidated with a similar claim that had been filed by the Des Rosiers.

In the municipal department, the Association, relying on the doctrine of res judicata, moved for summary judgment. On May 23, 1994, the circuit court granted the Association's motion for summary judgment, awarding it possession of the unit with enforcement of the order to be stayed for 45 days until July 7, 1994. After trying unsuccessfully to stay that order, plaintiffs were evicted on July 21, 1994.

The Des Rosiers also filed a motion for summary judgment, which was granted on June 29, 1994. In addition to granting the Des Rosiers possession of the unit, the circuit court ordered plaintiffs to pay $8,400 in back rent plus costs. As in the Association's motion, enforcement of the order was stayed until July 7, 1994.

On June 9, 1994, the Association filed a motion seeking Supreme Court Rule 137 sanctions and attorney fees, but that motion was denied. On July 29, 1994, the Des Rosiers also filed a motion for sanctions and attorney fees. The circuit court entered an order awarding the Des Rosiers sanctions in the amount of $5,515.84 against plaintiffs and their counsel, Starr & Rowells, jointly and severally. The court further ordered additional sanctions against Marshall Spiegel, individually, in the amount of $550.41.

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiffs contend that the circuit court erred in dismissing their complaint for declaratory judgment. They assert that because the Association's intention in filing the forcible entry and detainer action was to assume the possessory rights of the Des Rosiers, it was bound by the provisions of the ordinance as a "successor in interest."

Several preliminary matters must be addressed before we turn to the merits of plaintiffs' claim. Plaintiffs contend that the circuit court lacked jurisdiction under the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 1992)) to ...


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