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Forest Glen Community Homeowners Association v. Bishof

April 17, 2001

FOREST GLEN COMMUNITY HOMEOWNERS ASSOCIATION, PLAINTIFF-APPELLEE,
v.
JOHN S. BISHOF, JR., AND ANTOINETTE A. BISHOF, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 98-CH-0590 Honorable John W. Darrah, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

Defendants, John Bishof and Antoinette Bishof, appeal from the judgment of the circuit court of Du Page County granting the motion of plaintiff, Forest Glen Community Homeowners Association (Association), for summary judgment and denying defendants' motion for summary judgment and from the court's order granting plaintiff's petition for attorney fees. We affirm.

Defendants own a lot, approximately the size of one-half acre, located in the Forest Glen subdivision in Oak Brook, Illinois. The owner or owners, collectively, of each lot in this subdivision are members of the Association. Prior to 1996, each member had paid the same annual assessment of $127.50. This figure had been arrived at by multiplying the subdivision's minimum lot size of 15,000 square feet by $0.085. In 1996, the Association's board of directors (board) voted to calculate assessments by multiplying the actual square footage of each member's lot by $0.085. Because defendants' lot is larger than 15,000 square feet, their annual assessment increased by $64.57 to a total of $192.07. Thus, even though the board's action in 1996 did not change the assessment rate of $0.085, defendants' assessment increased because the rate of $0.085 was multiplied by the actual square footage of their lot rather than 15,000 square feet.

On February 23, 1996, the board sent to each member a letter that stated:

"Prior Boards used the smallest allowable lot size per zoning (15,000 sq. ft. x $0.085 = $127.50) because they did not have the actual lot sizes. The board feels that in order to replace the plantings lost over the past several years we need to increase the assessment to the maximum allowed within our covenants."

Defendants initially refused to pay their assessment, explaining to the board in a letter dated February 29, 1996, that they believed it was "fair" for them to pay $127.50 but they did not want to pay the increased assessment because most of the rear portion of their lot was "encumbered by an easement for a detention pond which fills after every rainfall," the water detention was a "constant source of aggravation," the backyard had been "resown twice due to malfunctions of the drainage system that is assembled beneath the surface," and they were deprived of any "enjoyment" of their backyard in that they could not build on it or excavate for a swimming pool. At that time, defendants did not contest the board's authority to establish the annual assessment for 1996. On February 29, 1996, the board rejected defendants' request for "special consideration."

On June 3, 1997, defendants paid $255.00, or $127.50 on their 1996 assessment and $127.50 on their 1997 assessment. Defendants explained in a letter that accompanied their payment that they "deducted costs incurred in mantaining [sic] the detention easement" located in their backyard "as a result of soil erosion, reseeding and removal of debris." We note that the difference between the assessments they owed and the assessments they paid is $64.57 for each year and that this is the exact amount of the increase in defendants' assessments.

On May 1, 1998, the Association filed a lien against defendants' lot, claiming that $489.70 was owed. On June 1, 1998, the Association filed a two-count complaint against defendants. In count I of the complaint, the Association sought the foreclosure of defendants' property to satisfy the payment of the lien if defendants persisted in their refusal to pay. Count II of the complaint alleged breach of contract in that defendants had agreed to pay assessments when they bought the lot but that defendants failed to pay and now owed $489.70 in unpaid assessments and late fees. The Association also sought from defendants reimbursement of attorney fees and costs. An amended complaint was filed on July 8, 1998, but the amended complaint differed from the original complaint only in that a copy of the Association's "Declaration of Easements, Covenants and Restrictions for Forest Glen" (declaration) was attached as an exhibit.

The Association moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(c) (West 1998)), alleging that the board was authorized under the declaration and under the "By-Laws of the Forest Glen Community Homeowners' Association" (bylaws) to employ the "proper formula" in calculating the assessments for 1996, which was also used in 1997 and 1998.

Defendants also moved for summary judgment. Defendants abandoned their position that they were justified in offsetting their assessment by the costs of maintaining the easement for the detention pond. Defendants argued, for the first time, that neither the declaration nor the bylaws authorized the board's decision to increase the "rate" in calculating annual assessments and that, according to the declaration and bylaws, an increase in assessments must be approved by two-thirds of the membership of the Association. Defendants also argued, for the first time, that their 1996 assessment was incorrect because the board miscalculated defendants' lot size by including in its calculation the area located within the easement for the detention pond.

On August 11, 1999, the trial court granted the Association's motion for summary judgment, denied defendants' motion for summary judgment, and ordered defendants to pay $489.70, interest at the rate of 1.5% per month from May 1, 1998, and costs of the suit. The court reserved ruling on the issues relating to attorney fees and costs until after the Association filed a petition. On October 28, 1999, the court granted the petition for fees and costs brought by the Association and ordered defendants to pay $6,107 for the Association's attorney fees plus costs of $258. Defendants filed this timely appeal.

A trial court should grant summary judgment only if, after construing the evidence in the light most favorable to the nonmoving party, "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 1998); Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 1125 (1999). We review a trial court's entry of summary judgment de novo. Hubert, 306 Ill. App. 3d at 1125.

Defendants first contend that the board's decision to increase the annual assessment for 1996 was not authorized in the declaration or the bylaws and that the annual assessment could only be increased after such an increase was approved by two-thirds of the membership of the Association. Alternatively, defendants argue that the language of the declaration and bylaws, which authorizes an increase in annual assessments, is ambiguous and that, where the language is ambiguous, it should be "construed against those parties seeking to enforce it." The cases defendants cite for this proposition do not support it. Lakeland Property Owners Ass'n v. Larson, 121 Ill. App. 3d 805, 810 (1984), actually addresses the issue of the presumption in favor of natural rights and against restrictions when construing a restrictive covenant. Moreover, while Sinnissippi Apartments, Inc. v. Hubbard, 114 Ill. App. 3d 151 (1983), addresses the interpretation of the language of the "Shareholder's Proprietary Lease," the court's analysis did not focus on language that was ambiguous but, rather, on the meaning of the plain language contained in that lease.

In any event, we agree with the trial court and find no ambiguity in the following sections from the declaration and the bylaws that are relevant to our resolution of this issue. Article VIII, ...


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