{ "id": 132385, "name": "FOREST GLEN COMMUNITY HOMEOWNERS ASSOCIATION, Plaintiff-Appellee, v. JOHN S. BISHOF, JR., et al., Defendants-Appellants", "name_abbreviation": "Forest Glen Community Homeowners Ass'n v. Bishof", "decision_date": "2001-04-17", "docket_number": "No. 2\u201499\u20141346", "first_page": "298", "last_page": "306", "citations": [ { "type": "official", "cite": "321 Ill. App. 3d 298" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "304 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564638 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "823" }, { "page": "823" }, { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0818-01" ] }, { "cite": "147 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3603524 ], "year": 1986, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0230-01" ] }, { "cite": "173 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3478683 ], "year": 1988, "pin_cites": [ { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0939-01" ] }, { "cite": "180 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2614543 ], "year": 1989, "pin_cites": [ { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0830-01" ] }, { "cite": "306 Ill. App. 3d 697", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336043 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "705" }, { "page": "705-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0697-01" ] }, { "cite": "114 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590387 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0151-01" ] }, { "cite": "121 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560945 ], "year": 1984, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0805-01" ] }, { "cite": "306 Ill. App. 3d 1118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336052 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "1125" }, { "page": "1125" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/1118-01" ] } ], "analysis": { "cardinality": 765, "char_count": 18907, "ocr_confidence": 0.767, "pagerank": { "raw": 7.43151658538745e-08, "percentile": 0.44380618329485616 }, "sha256": "80f204ee4e82a0c58d998a5bfc38c9c99e4cfa0b439d21e91c0325a7d0a11032", "simhash": "1:90e039a00f9b144c", "word_count": 3053 }, "last_updated": "2023-07-14T16:50:01.734981+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FOREST GLEN COMMUNITY HOMEOWNERS ASSOCIATION, Plaintiff-Appellee, v. JOHN S. BISHOF, JR., et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nDefendants, 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\u2019 motion for summary judgment and from the court\u2019s order granting plaintiffs petition for attorney fees. We affirm.\nDefendants 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\u2019s minimum lot size of 15,000 square feet by $0,085. In 1996, the Association\u2019s board of directors (board) voted to calculate assessments by multiplying the actual square footage of each member\u2019s lot by $0,085. Because defendants\u2019 lot is larger than 15,000 square feet, their annual assessment increased by $64.57 to a tot\u00e1l of $192.07. Thus, even though the board\u2019s action in 1996 did not change the assessment rate of $0.085, defendants\u2019 assessment increased because the rate of $0.085 was multiplied by the actual square footage of their lot rather than 15,000 square feet.\nOn February 23, 1996, the board sent to each member a letter that stated:\n\u201cPrior 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.\u201d\nDefendants initially refused to pay their assessment, explaining to the board in a letter dated February 29, 1996, that they believed it was \u201cfair\u201d 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 \u201cencumbered by an easement for a detention pond which fills after every rainfall,\u201d the water detention was a \u201cconstant source of aggravation,\u201d the backyard had been \u201cresown twice due to malfunctions of the drainage system that is assembled beneath the surface,\u201d and they were deprived of any \u201cenjoyment\u201d 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\u2019s authority to establish the annual assessment for 1996. On February 29, 1996, the board rejected defendants\u2019 request for \u201cspecial consideration.\u201d\nOn 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 \u201cdeducted costs incurred in mantaining [sic] the detention easement\u201d located in their backyard \u201cas a result of soil erosion, reseeding and reitioval of debris.\u201d 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\u2019 assessments.\nOn May 1, 1998, the Association filed a hen against defendants\u2019 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\u2019 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\u2019s \u201cDeclaration of Easements, Covenants and Restrictions for Forest Glen\u201d (declaration) was attached as an exhibit.\nThe Association moved for summary judgment pursuant to section 2\u20141005 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u20141005(c) (West 1998)), alleging that the board was authorized under the declaration and under the \u201cBy-Laws of the Forest Glen Community Homeowners\u2019 Association\u201d (bylaws) to employ the \u201cproper formula\u201d in calculating the assessments for 1996, which was also used in 1997 and 1998.\nDefendants 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\u2019s decision to increase the \u201crate\u201d 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\u2019 lot size by including in its calculation the area located within the easement for the detention pond.\nOn August 11, 1999, the trial court granted the Association\u2019s motion for summary judgment, denied defendants\u2019 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\u2019s attorney fees plus costs of $258. Defendants filed this timely appeal.\nA trial court should grant summary judgment only if, after construing the evidence in the light most favorable to the nonmoving party, \u201cthe 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.\u201d 735 ILCS 5/2\u20141005(c) (West 1998); Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 1125 (1999). We review a trial court\u2019s entry of summary judgment de nova. Hubert, 306 Ill. App. 3d at 1125.\nDefendants first contend that the board\u2019s 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 \u201cconstrued against those parties seeking to enforce it.\u201d The cases defendants cite for this proposition do not support it. Lakeland Property Owners Ass\u2019n 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 \u201cShareholder\u2019s Proprietary Lease,\u201d the court\u2019s analysis did not focus on language that was ambiguous but, rather, on the meaning of the plain language contained in that lease.\nIn 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, section 6, of the declaration provides, in pertinent part:\n\u201cAssessment Procedure. Regular Assessments.\n1. From and after January 1, 1978, the regular assessments shall be determined by the affirmative vote of two-thirds (2/a) of the Board of Directors of the Association, as provided in this Declaration and the By-Laws of the Association *** and the maximum annual rate of assessment which may be levied for any year shall be 85/100ths of a cent per square foot.\u201d\nSection 2(c)(i) of article IX of the bylaws provides, in pertinent part:\n\u201cIt shall be the duty of the Board of Directors to *** [c]onduct a regular meeting of the Board of Directors on or before December 1st of each year for the purpose of determining the regular assessment against each lot prior to such regular assessment period.\u201d\nSection 9 of article VII of the bylaws provides:\n\u201cThe act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, except when the Board shall consider the following matter, set forth at length in the Declaration:\n(a) The fixing of the amount of all regular assessments.\nIn this case, the affirmative vote of two-thirds (2/s) of the Board of Directors present at a meeting at which a quorum is present shall be necessary to adopt any measure with respect thereto.\u201d\nDefendants point to language in section 5 of article VI of the bylaws that, they contend, contradicts the proposition that the board was authorized to establish the annual assessment for 1996. Article VI addresses \u201cMEETINGS OF MEMBERS,\u201d and section 5 provides, in pertinent part:\n\u201cQuorum:\n* * *\nIn the event the Membership shall consider *** the levying of regular assessments larger than the previous year\u2019s regular assessment, *** such matter or matters shall be adopted at a Membership meeting at which a quorum is present upon the affirmative vote of two-thirds (2/s) of the entire Membership, except as provided for in ARTICLE VIII, Section 6, 1, of the Declaration.\u201d\nThe rules of construction for contracts govern our interpretation of the covenants contained in the declaration. See Seven Bridges Courts Ass\u2019n v. Seven Bridges Development, Inc., 306 Ill. App. 3d 697, 705 (1999). A contract is ambiguous if it is reasonably susceptible to more than one meaning, but contractual language is not rendered ambiguous simply because the parties disagree on its meaning. Seven Bridges, 306 Ill. App. 3d at 705-06. The interpretation and construction of a contract are matters to be determined by a court as questions of law. The Streams Club, Ltd. v. Thompson, 180 Ill. App. 3d 830, 838 (1989). The meaning of the provisions of a contract must be determined from the language, and we will not arrive at a construction that runs contrary to the plain and ordinary meaning of the language used. Konewko v. Kidder, Peabody & Co., 173 Ill. App. 3d 939, 943 (1988), citing Tate v. Wabash Datatech, Inc., 147 Ill. App. 3d 230, 236 (1986).\nIn this case, the language of the declaration and of the bylaws is unambiguous and clearly vests in the board the authority to establish the amount of the annual assessments. That language further provides that the board may establish the annual assessments at a maximum rate of \u201c85/100ths of a cent per square foot.\u201d The board did, in fact, establish the assessment for 1996 based on the maximum rate of $0,085 of a cent per square foot of property. We reject defendants\u2019 interpretation of section 5 of article VI of the bylaws and read this language, giving the language its plain and ordinary meaning, as providing that matters relating to \u201cthe levying of regular assessments larger than the previous year\u2019s regular assessment,\u201d if accomplished through article VIII, section 6(1), of the declaration, need not be adopted through a vote of the membership. Thus, we conclude that the board acted within the scope of its duties when it employed the proper formula in establishing the annual assessment for 1996.\nDefendants also contend that their assessments were improper in that the board incorrectly calculated their lot size, including in that calculation the area within the easement for the detention pond. We disagree.\nThe plain language of the declaration requires that the board calculate the assessment by multiplying the actual square footage of a lot by the rate selected by the board. Article II, section 14, of the declaration defines the term \u201clot area\u201d as \u201c[t]he area of a horizontal plane bounded by lot lines.\u201d Although the declaration also provides that this definition would be modified to make it consistent with the zoning ordinance of the Village of Oak Brook (Village) if it is inconsistent with that language, no such inconsistency exists. The Village\u2019s zoning ordinance defined \u201clot area\u201d as follows:\n\u201cThe area of a horizontal plane bounded by lot lines. For the purposes of meeting minimum lot area requirements, the land area of a lot used for providing private access rights of way shall not be included.\u201d Oak Brook Village Code, opp. A, \u00a7 XIV(77) (amended June 8, 1993).\nThe rules that govern the construction of statutes are also applied in the construction of municipal ordinances. Crawford v. City of Chicago, 304 Ill. App. 3d 818, 823 (1999). The construction of a statute requires the identification of legislative intent and the effect it should be given. Crawford, 304 Ill. App. 3d at 823. The most rehable indicator of legislative intent is the statute\u2019s language and, where it is clear and unambiguous, the plain and ordinary meaning of the words will be given effect. Crawford, 304 Ill. App. 3d at 823.\nGiven these rules of construction, and in light of the clear and unambiguous language of the zoning ordinance, we find that the board correctly included the area within the easement for the detention pond in its calculation of defendants\u2019 easement. The limiting language of the ordinance would not affect the board\u2019s calculation and would not apply in this case, where the determination of the lot size is for the sole purpose of calculating defendants\u2019 annual assessment. Defendants do not dispute that the area located within the easement for the detention pond is also located within their lot lines. Hence, the board\u2019s determination of defendants\u2019 \u201clot area,\u201d for this narrow purpose, would properly include the square footage of the easement for the detention pond:\nThe lack of merit of defendants\u2019 arguments now on appeal is highlighted by the fact that they did not initially complain that the board lacked the authority to establish the annual assessment for 1996 nor did they complain that the board incorrectly calculated their lot area. Instead, defendants offered to pay a portion of their assessment and complained about the $64.57 increase because they could not fully \u201cenjoy\u201d their backyard. Then, defendants paid a portion of the assessments due, but explained that they deducted costs of maintenance of their backyard, which amounted to $64.57 for 1996 and $64.57 for 1997, precisely the amount of the increase in their assessment. Coincidence or not, defendants fail to point to any language in the declaration or the bylaws that authorizes their unilateral decision to offset their assessment by their own maintenance costs.\nLastly, defendants contend that the court erred in awarding attorney fees and costs to the Association. Defendants acknowledge that an award of attorney fees and costs would be authorized under article VII, section 8, of the declaration in cases where lot owners refuse to pay their assessments. That section provides, in pertinent part, as follows:\n\u201cAny assessments, regular or special, which are not paid on the due date shall be delinquent. *** The Association may recover any delinquent assessments by bringing an action at law or in equity against the then Owner personally obligated to pay the same or foreclose the lien against the Lot. Such recovery shall include interest, costs and reasonable attorneys\u2019 fees incurred in connection with any such action.\u201d\nDefendants do not challenge the amount of the award. Rather, defendants argue that the award was improper where their challenge to the annual assessment was legally justified and not capricious.\nSuch an argument would be relevant if the fee award had been entered pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), but it was not. Fees and costs were awarded pursuant to article VII, section 8, which is unambiguous and contemplates the recovery of expenses for attorney fees and costs incurred in any legal determination necessary to recover delinquent assessments. The board properly established defendants\u2019 annual assessments, and defendants admit they refused to pay the full amount. Defendants\u2019 assessments then became delinquent.\nDefendants were solely responsible for the manner in which they chose to contest their assessments. Since defendant John S. Bishof, Jr., is a lawyer and represented himself and his wife, they may not have incurred legal fees in litigating this $60 dispute over the assessment of a one-half-acre lot in Oak Brook. But they knowingly took the risk that their arguments, which, incidentally, we have found to be without merit, would fail and this $60 dispute would result in liability for several thousand dollars of legal fees. As we noted above, defendants have acknowledged that the declaration provides that they are liable for fees and costs, and they have not contested the amount. We agree with the trial court that defendants are liable for fees and costs pursuant to the declaration.\nIn conclusion, the board acted within the scope of its duties when it employed the proper formula in establishing the annual assessment for 1996. Defendants\u2019 annual assessment was calculated by multiplying the actual square footage of their lot by the rate of $0.085. We find no support for defendants\u2019 conclusion that the board incorrectly determined the square footage of their lot where the calculation of the assessment correctly included the area located within the easement for the detention pond. Once the board established the proper assessments, defendants were obligated to pay them. Defendants owed the Association reimbursement of attorney fees and costs where the Association brought legal action to recover defendants\u2019 delinquent assessments. Thus, as there are no genuine issues of material fact, the court properly granted summary judgment to the Association, denied defendants\u2019 motion for summary judgment, and awarded the Association attorney fees and costs.\nAccordingly, for the foregoing reasons, we affirm the judgment of the circuit court of Du Page County granting the Association\u2019s motion for summary judgment and the court\u2019s order granting the Association\u2019s petition for attorney fees and costs.\nAffirmed.\nHUTCHINSON, P.J., and RAPP J., concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "John S. Bishof, Jr., and Antoinette A. Bishof, both of Chicago, appellants pro se.", "Reese J. Peck, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee." ], "corrections": "", "head_matter": "FOREST GLEN COMMUNITY HOMEOWNERS ASSOCIATION, Plaintiff-Appellee, v. JOHN S. BISHOF, JR., et al., Defendants-Appellants.\nSecond District\nNo. 2\u201499\u20141346\nOpinion filed April 17, 2001.\nJohn S. Bishof, Jr., and Antoinette A. Bishof, both of Chicago, appellants pro se.\nReese J. Peck, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee." }, "file_name": "0298-01", "first_page_order": 316, "last_page_order": 324 }