20 East Cedar Condominium Ass'n v. Luster

• Decision Date: 01 June 1976
• Docket Number: No. 61981,61981
• Citation: 349 N.E.2d 586,39 Ill.App.3d 532
• Parties: 20 EAST CEDAR CONDOMINIUM ASSOCIATION, an Illinois not-for- profit Corporation, Individually and as Duly Authorized Agent of the owners of Condominium Units, and David Holmkvist, Individually and in a Representative capacity on behalf of all owners of Condominium Units in the 20 East Cedar Condominium Association, except the Defendants, Plaintiffs-Appellees, v. Melvin R. LUSTER and Harold E. Friedman, Individually and d/b/a Luster, Friedman and Company, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 586

349 N.E.2d 586

39 Ill.App.3d 532

20 EAST CEDAR CONDOMINIUM ASSOCIATION, an Illinois not-for- profit Corporation, Individually and as Duly Authorized Agent of the owners of Condominium Units, and David Holmkvist, Individually and in a Representative capacity on behalf of all owners of Condominium Units in the 20 East Cedar Condominium Association, except the Defendants Plaintiffs-Appellees, v. Melvin R. LUSTER and Harold E. Friedman, Individually and d/b/a Luster, Friedman and Company, Defendants-Appellants.

No. 61981.

Appellate Court of Illinois, First District, First Division.

June 1, 1976.

Rehearing Denied July 1, 1976.

John G. Stifler, Rodney D. Joslin and Marsha E. Huff, Chicago (Jenner & Block, Chicago, of counsel), for defendants-appellants.

Weinberg & Weinberg, Ltd., Chicago (Richard S. Weinberg and Terence J. Tyksinski, Chicago, of counsel), for plaintiffs-appellees.

Sheldon A. Harris, Chicago, for White Way Sign & Maintenance Co.

O'CONNOR, Justice:

This is an appeal from a trial court order which granted plaintiffs, 20 East Cedar Condominium Association and David Holmkvist, partial summary judgment upon one of several claims in an action brought for an accounting and damages. The particular dispute involved here concerns an ornamental canopy installed at the front entrance of the 20 East Cedar building.

The canopy was leased on July 2, 1970, from the White Way Electric Sign and Maintenance Co. (hereafter White Way) by 20 E. Cedar Properties, a partnership whose sole partners were defendants-appellants, Melvin R. Luster and Harold E. Friedman. The agreement to install the canopy required a down payment of $6,128.00, and sixty monthly payments of $261.76. It was executed as part of a building renovation program instituted by defendants for the purpose of converting the 20 East Cedar building from rental property to condominium units.

On December 28, 1971, plaintiff David Holmkvist contracted with defendants to purchase one of the condominium units. The written purchase agreement called for the sale of a designated unit and an undivided percentage of the 'common elements' of the property. Specific definitions of the 'common elements' and other related terms were included and attached was a rider which expressly provided that certain repair and rehabilitation work would be completed on or before delivery of deed.

On August 24, 1972, a Declaration of Condominium Ownership was recorded and defendants Luster and Friedman began acting as managers of the building. In April, 1973, the unit owners formed their own managment association (20 East Cedar Condominium Association) and defendants were relieved of their duties. At this time plaintiff Holmkvist and the other owners discovered among other things, that the canopy was leased. In addition, it was learned that defendants had stopped making lease payments to White Way.

On April 15, 1974, suit was filed in which plaintiffs sought a complete accounting, monetary relief for improper assessments and payment of all outstanding contractual liabilities incurred in the rehabilitation of the building. Subsequently, plaintiffs moved for partial summary judgment, supported by affidavits, to require defendants to pay the balance due White Way for the canopy. Defendants answered and filed the counter-affidavit of Melvin R. Luster. On March 12, 1975, the court heard testimony, over defendants' objection, on this summary judgment motion. On March 26, 1975, the court found that 'the canopy in front of the building at 20 E. Cedar, Chicago, Illinois belongs to that building, that the defendants signed the contract under which the canopy was installed and should therefore pay for the canopy' and ordered defendants Luster and Friedman to pay $9,200.55 to defendant-appellee White Way ¹ and entered judgment for that amount. Defendants appeal.

Defendants argue that the order was improper and should be reversed for the following reasons:

1) A genuine issue of material fact existed which should have precluded summary judgment.

2) The trial court improperly conducted an evidentiary hearing on contested issues of fact.

3) The trial court lacked the power to order defendants-appellants Luster and Friedman to pay defendant-appellee White Way.

4) The trial court erred in entering a partial summary judgment without first deciding the propriety of maintaining the suit as a class action.

We believe the order of the trial court was proper and must be affirmed.

I.

Defendants' first contention is that the record establishes the existence of a genuine issue of material fact which should have precluded summary judgment. It is well established that summary judgment is inappropriate where a triable fact issue exists. (Ray v. City of Chicago (1960), 19 Ill.2d 593, 169 N.E.2d 73; Barkhausen v. Nougher (1947), 395 Ill. 562, 70 N.E.2d 565.) It is also clear that the issue of fact must be genuine and involve a material fact. (Dakovitz v. Arrow Road Const. Co. (1975), 26 Ill.App.3d 56, 324 N.E.2d 444; Lighthart v. Lindstrom (1975), 24 Ill.App.3d 918, 322 N.E.2d 70; Williams v. Stevens (1948), 335 Ill.App. 123, 80 N.E.2d 451.) Defendants have set forth, essentially, two issues of fact which they argue warranted a trial. However, we fail to see in what way either of these issues was material to the disposition of the case presented to the trial court.

Defendants initially contend that they never made representations to plaintiff Holmkvist that they owned or would complete the payments on the canopy. They argue that the question of whether or not they made such representations is a genuine, material issue of fact which requires a full trial. We disagree.

Parol or extrinsic evidence is not admissible to show the intention of the parties or to show alleged prior or contemporaneous parol agreements relating to the same subject matter, or to establish a different contract from that expressed in writing, or to impose a condition not provided for in the contract itself, or to show what was said before or at the time of the contract's execution, or to explain or determine the contract's construction where the contract is susceptible of a sensible construction. I.L.P., Evidence, § 255.

Defendants made a contract with plaintiff David Holmkvist which is unambiguous in its terms. The first page of the contract in question specifies that Holmkvist purchased without encumbrance thereon his apartment as well as '1.5985% Of the ownership interest in the 'common elements' of the 'property' . . ..' In paragraph 4 the 'common elements' are defined as '. . . all portions of the 'property' except the units.' Property, in turn, is defined as '. . . all the land, property and space comprising the Parcel, all improvements and structures constructed or contained therein or thereon, including the building and all easements, rights and appurtenances belonging thereto, and all fixtures and property intended for the mutual use, benefit or enjoyment of the unit owners.' Additionally, a rider is attached to this contract which, in provision R-3, provides, Inter alia, that all the repairs and rehabilitation work set forth in an attachment to the contract titled 'Schedule B' have been or shall be fully completed on or before delivery of deed. Schedule B, in turn, lists a wide assortment of improvments, ranging from boiler repairs to pigeon proofing. Under the heading 'Front Entrance' there is the notation: 'New canopy installed Fall, 1970.' There is no indication in the purchase contract itself or in any of the riders and attachments that plaintiff Holmkvist would have to pay the cost of these improvements in addition to paying the purchase price of his condominium unit. On the contrary, the contract clearly outlines improvements promised by the seller to the purchaser as an inducement for the sale. It makes little difference what defendants Luster and Friedman did or did not tell plaintiff Holmkvist. The terms of this contract are controlling. (Wm. O'Donell,...