The opinion of the court was delivered by: Presiding Justice Hall
Appeal from the Circuit Court of Cook County. No. 98 CH 5004 Honorable Moshe Jacobius Judge Presiding.
The plaintiffs, LaSalle National Trust NA, as trustee under Trust number 116409 and Howard M. Robinson, *fn1 filed a complaint for declaratory judgment against the defendant, the board of directors of the State Parkway Condominium Association (the Board). The complaint sought a judicial determination of the rights and obligations of the parties with respect to the furnishing of electricity to a condominium unit owned by the plaintiffs. The trial court granted the motion of Alan O. Amos and Marcia Lazar (the intervenors) to intervene and file a complaint. The Board filed a counterclaim seeking a judgment against the plaintiffs for unpaid assessments.
All parties filed motions for summary judgment. The trial court granted the summary judgment motions of the plaintiffs and the intervenors and denied the Board's motion for summary judgment. The Board appeals.
The sole issue on appeal is whether the trial court erred in granting summary judgment to the plaintiffs and the intervenors and denying summary judgment to the Board.
The following facts are taken from the pleadings and the affidavits in the record.
An entity known as the 1445 Limited Partnership (the developer) renovated and converted the property at 1445 North State Parkway to condominium ownership. On or about November 5, 1992, the developer recorded a declaration of condominium ownership and easements, restrictions, covenants and bylaws (the Declaration) for the State Parkway Condominium. As of April 18, 1994, 75% of the condominium units had been sold. In accordance with the terms of the Declaration, an initial meeting of the owners took place at which time a unit-owner controlled board of directors was elected.
In the spring of 1995, it was discovered that the building's electrical service was inadequate to provide power to unit 2701, owned by the plaintiffs, and to unit 2703, owned by the intervenors, both of which occupied the twenty-seventh and twenty-eighth floors of the building. Prior to the renovation, the twenty-eighth floor had not been used for residential purposes, but had housed a laundry room, storage areas and housing for mechanical elements that served the entire property.
On or about July 31, 1995, the developer granted a nonexclusive easement to the plaintiffs and the intervenors to allow them to access an existing electrical line running to the twenty-eighth floor which provided power for the common elements. The easement grant provided that the unit owners would reimburse the Board for the electrical power usage at the same rate paid by the Board to the electrical service provider and pay a fee, not to exceed 5% of the cost of electrical power used by each unit, to the Board to reimburse administrative costs. The plaintiffs and the intervenors paid for the installation of transformers and meters to facilitate the supply of electricity to their units. Commonwealth Edison charged an industrial rate for electrical usage with respect to the utility line that provided electrical power to units 2701 and 2703.
On or about February 18, 1997, the Board granted to the owners of units 2701 and 2703 a perpetual, nonexclusive easement to connect to an electric utility line serving the common elements of the building for the purpose of providing electrical power to those units. The easement grant further provided that the cost of the electricity would be charged at the residential rate plus tax and that a fee of 5% of the electric cost would be charged to cover the Board's administrative costs.
Based upon its easement grant, the Board demanded that the plaintiffs and the intervenors pay the Board for electrical service and the applicable taxes at the residential rate, even though the Board paid for electrical power based upon the industrial rate, which was lower than the residential rate. In response, the plaintiffs filed a complaint for declaratory judgment against the Board, in which they were joined by the intervenors. The Board filed a counterclaim for unpaid assessments and related charges against the plaintiffs.
All parties filed motions for summary judgment. The circuit court granted summary judgment to the plaintiffs and the intervenors and denied summary judgment to the Board. This timely appeal followed.
Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Cozza v. Culinary Foods, Inc., 311 Ill. App. 3d 615, 619, 723 N.E.2d 1199, 1203 (2000). In this case, neither party asserts that material questions of fact exist, and therefore, summary judgment is appropriate in this case. Because the propriety of an order granting summary judgment ...