Court of Appeals of Illinois, First District, Third Division
EXCELSIOR GARAGE PARKING, INC., an Illinois Corporation, and CHICAGO TITLE LAND TRUST COMPANY, as Trustee u/t/a No. 1099549, Dated August 23, 1993, Plaintiffs-Appellees,
1250 NORTH DEARBORN CONDOMINIUM ASSOCIATION, Defendant-Appellant
Appeal from the Circuit Court of Cook County. No. 13 CH 22693. The Honorable Kathleen G. Kennedy, Judge, presiding.
Affirmed in part and vacated in part.
For PLAINTIFF-APPELLEE: Rita M. Alliss Powers, Caitlin M. Annatoyn, GREENBERG TRAURIG, LLP, Chicago, Illinois.
For DEFENDANT-APPELLANT: Christopher M. Heintskill, Jason B. Hirsh, LEVENFELD PEARLSTEIN, LLC, Chicago, Illinois.
HYMAN, JUSTICE delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
[¶1] After defendant, 1250 North Dearborn Condominium Association (Association), refused to provide an estoppel certificate, plaintiffs Excelsior Garage Parking, Inc., and Chicago Title Land Trust Company, (collectively, Excelsior), filed a one-count action for declaratory judgment. A few days later, the Association provided an estoppel certificate, which included unreimbursed payments claimed to have benefited Excelsior.
[¶2] Despite receipt of an estoppel certificate, Excelsior continued to press their claim, contending the Association should have provided a " clean" estoppel certificate (without mention of any defaults) due to the Association's failure to abide by the terms of the parties' agreement. The trial court declined to grant the Association's affirmative defense that Excelsior failed to state a claim on which relief could be granted and, only days after the case was filed and without any discovery, after a hearing, ordered the Association prepare and tender a " clean" estoppel certificate.
[¶3] We conclude that under the agreement, while the Association could not refuse to provide an estoppel certificate because it believed it was owed money, neither could Excelsior demand a " clean" estoppel certificate. Once the Association tendered the estoppel certificate, albeit late under the agreement, the trial court should have granted the Association's affirmative defense that Excelsior failed to state a claim on which relief could be granted. Because the Association provided Excelsior a " clean" estoppel certificate and the sale closed, we cannot undo that part of the trial court's judgment. But, as to the trial court's improper ruling extinguishing the Association's rights to pursue reimbursement, the Association is entitled to litigate the reimbursement claim against Excelsior, should it so choose, without res judicata consequences.
[¶5] Excelsior and the Association both owned and operated out of the mixed-use condominium high rise building at 1250 North Dearborn, Chicago (the property). The Association administered the condominium units at the property and Excelsior owned the three-storey parking garage underneath. Both were parties to the " Declaration of Covenants, Conditions, and Restrictions," dated August 30, 1993 (Declaration).
[¶7] Two articles of the Declaration were at issue. Article XVIII, entitled " Estoppel Certificates," provides for the execution and delivery of an estoppel certificate within 10 days of receipt of a written request. Article V, entitled " Building Services," provides for the payment of building services according to Exhibit 5.4, which states, in relevant part, " payment for [building] services *** shall be divided at the time of the expenditure by mutual agreement of the owner of the commercial ...