Grover v. Commonwealth Plaza Condominium Ass'n

• Decision Date: 04 September 1979
• Docket Number: No. 78-1943,78-1943
• Citation: 76 Ill.App.3d 500,394 N.E.2d 1273,31 Ill.Dec. 896
• Court: United States Appellate Court of Illinois
• Parties: , 31 Ill.Dec. 896 Abner GROVER, Plaintiff-Appellee, v. COMMONWEALTH PLAZA CONDOMINIUM ASSOCIATION and Sudler & Company, Defendants- Appellants.

Page 1273

394 N.E.2d 1273

76 Ill.App.3d 500, 31 Ill.Dec. 896

Abner GROVER, Plaintiff-Appellee, v. COMMONWEALTH PLAZA CONDOMINIUM ASSOCIATION and Sudler &amp Company, Defendants- Appellants.

No. 78-1943.

Appellate Court of Illinois, First District, Second Division.

Sept. 4, 1979.

Paul M. Heller, Wexler, Wexler & Heller, Ltd., Chicago, for defendants-appellants.

Abner Grover, pro se.

STAMOS, Presiding Justice:

Plaintiff, Abner Grover, the owner of a condominium unit, brought this contract action against defendants Commonwealth Plaza Condominium Association (the Association), the condominium association of which plaintiff is a member, and its managing agent, Sudler & Company (Sudler). In his action, which was brought pro se, plaintiff sought to recover money he was allegedly caused to expend as a result of defendants' breach of an alleged agreement to install heating units in the sequence of orders placed.

The cause proceeded to a trial before a jury, which rendered a verdict of $30 in favor of plaintiff and against both defendants. In addition, after the jury had retired to deliberate, the trial court acting on its own motion assessed a penalty of $70 against defendants under section 41 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 41) for statements which defendants' attorney had made in procuring a continuance of the trial.

Defendants appeal, contending (1) that the trial court erred in failing to direct a verdict in their favor; (2) that the conduct of the trial court deprived them of a fair trial; (3) that the trial court erred in failing to instruct the jury adequately; and (4) that the trial court erred in making the section 41 award. The following pertinent testimony was adduced at trial.

Because plaintiff was acting in a pro se capacity, the court permitted him to read a brief opening statement and then testify in narrative form, subject to defendants' right to object and to cross-examine. Plaintiff owns a condominium unit in Commonwealth Plaza Condominium, a complex consisting of two high-rise buildings with a total of 370 residential units. The Association is a not-for-profit corporation established to govern affairs relating to the maintenance, repair, administration, and operation of the complex and composed of all condominium unit owners. The Association's authority is vested in a Board of Directors (the Board), which in turn has since July of 1977 retained a real estate agent, Sudler, to act as managing agent for the property.

Sometime after October of 1976 and before September of 1977, the Board became aware of problems relating to the heating and air conditioning systems in the complex, specifically the fan coil units, several of which were in each individual condominium. At a meeting of the Board on September 15, 1977, the Board was advised of the need to replace most of the fan coil units. After deliberation, the Board directed Sudler to procure the manufacture and installation of new heating units for condominium owners who wanted to purchase replacements for their failing units.

On October 7, 1977, Sudler sent a letter to all condominium owners, including plaintiff, informing them that Sudler had received a firm contract proposal for the new heaters from a manufacturer. The letter stated that the fan coil units would be sold to one of three firms in the business of installing such units, who would then sell them to and install them for individual condominium owners. After stating that the first group of 40 units would be ready in six weeks and after spelling out the terms of the sale, the letter concluded:

"If you wish to order new fan coil units, complete the accompanying form and return it to the management office * * * At the earliest possible moment. All order will be processed in the order in which they are received. * * * " (Emphasis supplied.)

The letter was signed by Ted Johnson of Sudler as agents for the Association.

Plaintiff appeared at the management office with his order early the next morning, before the office had even opened, as did one or two other residents of the complex, resulting in plaintiff's order being one of the first two or three orders received. Plaintiff's order requested replacement of three of his four heating units. By letter dated October 24, 1977, Sudler requested a deposit of $100 to confirm previous orders, which deposit was timely made by plaintiff.

Meanwhile, at the Board meeting on October 11, 1977, the last meeting plaintiff attended as a member of the Board, Sudler's representatives informed the Board that the low bidder for installation of the heaters was Thermo-Dynamics, Inc. Plaintiff asked what was included in the price quoted by the installer, but was told that Sudler would send him the specifications. On October 17, plaintiff spoke with Ted Johnson of Sudler, who again said he would send plaintiff the specifications and who affirmed that plaintiff was "in the first batch with failed units." However, unbeknownst to plaintiff, Sudler soon after learned by a letter from Thermo-Dynamics dated October 19, 1977, that Thermo-Dynamics' bid was contingent on the firm's ability to "provide a work schedule based on a logical sequence of apartments."

Thermo-Dynamics began installing the heaters during the first week of January, 1978. By letter dated January 11, 1978, Sudler announced that heaters were being installed first in the nearly 40 apartments in which all heaters had become inoperative, and that installation would continue on a systematic basis. Payments for the heaters would be made to the Commonwealth Plaza Condominium, which would then pay the contractor. The minutes of the next Board meeting reflect that heaters were being installed in the order stated in Sudler's letter of January 11, 1978.

Plaintiff thereafter contacted Ted Johnson of Sudler seven times, complaining about the delay in receiving his heaters. He was told that the contractor was proceeding floor-by-floor. Along with all other residents, plaintiff received a letter from Sudler announcing that heaters were being installed on a priority basis, contrary to the contractor's floor-by-floor schedule, only upon payment of an additional $30 charge by the condominium owner, which the letter further stated was authorized by the Board.

Plaintiff's heaters were installed at the end of February, 1978, on a priority basis, for which he paid $30. Plaintiff was seeking that amount in damages as well as $75 expended to buy electric blankets and an electric heater and approximately $200 for additional electricity allegedly used to power these interim heating devices.

On cross-examination, plaintiff admitted that he purchased the blankets and heater on October 3, and October 11, 1977, respectively, before he knew of or experienced any delay in getting the fan coil units. Plaintiff also testified that the last Board meeting he attended was on October 11, 1977, and that he did not ever protest the $30 charge or the decision regarding priority at any subsequent Board meeting. However, he stated that he did make informal protests to Sudler's representatives and several Board members. Plaintiff then rested.

Defendants' first witness was Gerald Melahn, an officer of Thermo-Dynamics. He stated that a condition of his company's proposal was that installation proceed in a "normal, logical sequence," one floor at a time. The additional $30 charge was for "jumping around" the building. He testified that Sudler and the Board agreed to this.

Robert Decker, a Board member and immediate past president of the Board (until October of 1977), testified next. He stated that Sudler accepted the contractor's proposal on behalf of the Association, but the decisions to allow priority installation for apartments with no heaters functioning and to levy the $30 charge on others seeking priority were made by the Board at regularly scheduled meetings; the Board directed Sudler, as its agent, to act accordingly. On cross-examination, he stated that individual condominium owners are allowed to ask questions and participate at Board meetings during a certain period of time, but the discussion is not part of the official meeting and is not reported in the minutes. He also testified as to Sudler's authority to "take whatever action is necessary" to remedy problems in the building.

Defendants' final witness was Sudler's representative, Ted Johnson, who further explained the function of Sudler, as managing agent, to execute policies set by the Board, rather than dictate policy. He testified that Sudler's letter of October 7, 1977, which he wrote, was not written on any specific command by the Board, but as part of Sudler's function of informing residents. At the time of his letter, the Board had not yet adopted any policy regarding the processing of orders. Sudler subsequently did play a role in deciding the ultimate order of installation, but the decision to levy the $30 charge for priority of installation was the Board's.

Defendants rested their case. The court then asked defendants' attorney the whereabouts of Mr. Bodenstein, who was the current president of the Board and who was to be one of defendants' witnesses. Defendants' attorney said that Bodenstein had unexpectedly had to fly to New York. After the court denied defendants' motion for a directed verdict and permitted the jury to retire to deliberate its verdict, the court began to interrogate defendants' attorney concerning a petition and supporting affidavit he had filed pursuant to Supreme Court Rule 231 (Ill.Rev.Stat.1977, ch. 110A, par. 231), seeking a continuance of the trial, which the court had granted. The petition alleged that Bodenstein was a material witness; that because he had been called out of town, he would be unavailable to testify between August 11 (the date the cause was set for trial) and August 18, 1978; and that plaintiff had been notified and would not suffer any hardship. Accompanying the petition was an...