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100 Roberts Road Business Condominium Association v. Khalaf

Court of Appeals of Illinois, First District, Fourth Division

September 19, 2013

100 ROBERTS ROAD BUSINESS CONDOMINIUM ASSOCIATION, Plaintiff-Appellant,
v.
VICTORIA KHALAF and STANLEY HORN, Defendants Judd Azulay, Glenn Seiden and All Unknown Occupants, Defendants-Appellees

Held [*]

In a forcible entry and detainer action arising from defendants’ failure to pay common assessments for a business condominium, where the trial court initially entered judgment for plaintiffs but reduced the damages due to the finding that plaintiff failed to mitigate its damages, but upon reconsideration found that defendants waived their right to argue mitigation and dismissed the case on the ground that plaintiff brought the action for an improper purpose, the appellate court reversed the trial court’s ultimate ruling and remanded the cause for entry of a judgment in plaintiff’s favor for the assessments due, without deduction for the failure to mitigate damages, and costs and attorney fees, since plaintiff had no duty to mitigate damages under the relevant statutory provisions, and under the circumstances here, where the collection of past-due assessments, and not possession, was at issue, the defense of improper motive would not be expanded beyond a retaliatory eviction context.

Appeal from the Circuit Court of Cook County, No. 10-M3-4333; the Hon. Martin S. Agran, Judge, presiding.

Patrick E. Dwyer III, of Law Office of Patrick E. Dwyer III, of Chicago, for appellant.

Alan J. Mandel, of Alan J. Mandel, Ltd., of Skokie, for appellees.

Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

HOWSE PRESIDING JUSTICE

¶ 1 On November 24, 2010, plaintiff 100 Roberts Road Business Condominium Association filed a forcible entry and detainer lawsuit against defendants Victoria Khalaf, Stanley Horn, Judd Azulay, Glenn Seiden and all unknown occupants, claiming that defendants had failed to pay the common assessments due for a business condominium since 2004.

¶ 2 On July 28, 2011, following a bench trial, the trial court entered a judgment for the plaintiff for past-due assessments against defendants Judd Azulay and Glenn Seiden. However, the trial court reduced plaintiff's damage award based on its finding that plaintiff had failed to mitigate its damages.

¶ 3 Plaintiff filed a motion to reconsider, claiming that it was inappropriate to reduce plaintiff's award based on its alleged failure to mitigate damages. On plaintiff's motion for rehearing the trial court granted plaintiff's motion to reconsider, finding that defendants had waived their right to argue mitigation based on the declaration of condominium owners. However, the court then made a finding that plaintiff had brought the forcible entry and detainer lawsuit for an improper purpose and dismissed the case against defendants. Plaintiff appealed. For the reasons that follow, we reverse the judgment of the circuit court and remand with directions for further proceedings.

¶ 4 Background

¶ 5 The 100 Roberts Road Condominium building consists of a three-unit building in Palos Heights, Illinois. The first unit, 10001, is owned by a land trust, with the named beneficiary being John C. Griffin. Unit 10001 is occupied by the law firm Griffin and Gallagher, LLC. Unit 10003 is owned by Omer Abuzir and is occupied by the law firm Abuzir & Mitchell, which is associated with Victoria Khalaf. Unit 10005, the unit at issue in this lawsuit, is titled to Victoria Khalaf, Stanley Horn, Glenn Seiden and Judd Azulay, but has been vacant for a number of years. Unit 10005 is encumbered with a mortgage signed by Victoria Khalaf, Stanley Horn, Glenn Seiden and Judd Azulay.

¶ 6 The 100 Roberts Road Business Condominium Association, plaintiff, consists of three members: Victoria Khalaf, Omer Abuzir and John C. Griffin. Pursuant to the declaration of condominium ownership, plaintiff has a duty to maintain the common areas of the building, estimate the costs associated with maintaining the common areas and collect assessments from the unit owners to cover the costs of such maintenance.

¶ 7 Defendants, owners of unit 10005, have not paid common assessments since 2004, with the exception of $2, 000, which was paid by a Daniel Azulay in 2007.

¶ 8 On June 11, 2010, plaintiff filed a claim for a lien with the Cook County recorder of deeds in the amount of the unpaid assessments, $12, 910, and mailed the lien to defendants on August 25, 2010. The notice of lien indicated that plaintiff had retained the law firm Fullest Rosenlund Anderson P.C. to file a lawsuit and collect the amounts owed in assessments, if necessary.

¶ 9 On September 23, 2010, plaintiff caused a notice and demand for possession to be served on all defendants. When there was no response within the statutory period, plaintiff filed a forcible entry and detainer lawsuit against defendants on November 24, 2010. In the lawsuit, plaintiff sought possession, unpaid assessments, and the payment of costs, late charges, interest and reasonable attorney fees.

ΒΆ 10 On June 15, 2011, default judgments were entered against Khalaf and Horn. The default judgments were never vacated and they are not parties to this appeal. On July 6, 2011, Azulay and Seiden appeared and ...


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