Lakeland Property Owners Ass'n v. Larson

• Decision Date: 01 February 1984
• Docket Number: No. 83-388,83-388
• Citation: 77 Ill.Dec. 68,121 Ill.App.3d 805,459 N.E.2d 1164
• Parties: , 77 Ill.Dec. 68 LAKELAND PROPERTY OWNERS ASSOCIATION, Plaintiff-Appellant, v. Robert LARSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1164

459 N.E.2d 1164

121 Ill.App.3d 805, 77 Ill.Dec. 68

LAKELAND PROPERTY OWNERS ASSOCIATION, Plaintiff-Appellant, v. Robert LARSON, Defendant-Appellee.

No. 83-388.

Appellate Court of Illinois Second District.

Feb. 1, 1984.

Rehearing Denied March 6, 1984.

Foran, Wiss & Schultz, Chicago, for plaintiff-appellant.

Soffietti Johnson Teegen & Phillips, Ltd., Howard R. Teegen, Fox Lake, for defendant-appellee.

UNVERZAGT, Justice:

This appeal concerns the construction of a deed conveying a parcel of land in Lakeland Estates Subdivision in Lake County to Robert Larson, defendant, which contains use and construction restrictive covenants but also authorizes changes of these covenants upon approval of the majority of the lot owners of the subdivision. An apparent majority of the lot owners filed a document entitled "1980 Revised Deed Restrictions," which included provisions permitting Lakeland Property Owners Association, Inc. (Association), plaintiff, to establish dues assessable against lot owners, the nonpayment of which would cause a lien upon the property, and to enforce other rules and regulations adopted by the Association. The Association assessed defendant's dues for 1980 to be $110 and upon his refusal to pay this assessment, brought a small claims action against him for that amount in the circuit court of Lake County. The circuit court denied the Association's prayer for relief, finding that the majority of the lot owners did not have the authority to impose a covenant upon individual lot owners which was new and different from those covenants delineated in the lot owner's deed. The Association appeals.

The parties stipulated to the relevant facts, those being that the defendant purchased a lot in Robert Bartlett's Lakeland Estate Subdivision in 1960 by a deed from the original developer which was similar to other deeds for land in this subdivision subject to various restrictions and covenants relating to the use of the lots and permissible types of construction. Before delineating these covenants and restrictions, the deed provided:

"SUBJECT to such of the following covenants as refer to the real estate herein described which shall run with the land and shall be in force and effect and shall be binding on all parties and all persons claiming under them until January 1, 1980, at which time said covenants shall automatically extend for successive periods of ten years, unless by a vote of the majority of the then owners of the lots in said subdivision it is agreed to change the said covenants in whole or in part."

The deed also conveyed to the grantee easements to use two lakes in the subdivision and lots for ingress and egress.

The Association, a not for profit corporation, which began as a voluntary group and became active in the subdivision's affairs, caused the adoption by a majority of the then lot owners of the 1980 Revised Deed Restrictions, which contained the following new covenants:

"24. * The Lakeland Property Owners Association, Inc. shall have the right to establish dues from time to time assessable against lot owners and lots in the Subdivision. The dues assessed from time to time, if not paid within the calendar year they are assessed, shall constitute a lien against the lot upon the Association's filing a written claim for lien with the Recorder of Deeds of Lake County describing the lot and the nature and amount of the lien. Collection of dues may be sought in law or in equity and costs incurred by the Association, including attorney's fees and expenses and interest at the maximum legal rate from time to time shall be included in satisfaction of the assessed dues or lien claimed. *

* * *

* * *

29. * The by-laws, rules and regulations adopted by the Lakeland Property Owners Association, Inc., and the actions taken by the Board of Directors of said Association shall be binding upon all lot owners. * "

Pursuant to these provisions, dues were assessed on defendant's property. Upon his refusal to pay these dues, the Association brought the instant action.

The trial court entered a judgment for defendant and so informed the parties by letter in which he stated that: "the covenants * * * were not changes in the original covenants but rather entirely new and different in character. * * * [T]herefore * * * the Association had no power to make a binding assessment on the defendant as he had not agreed to be bound by the terms thereof."

Before considering the merits of the Association's argument on appeal, defendant's request that this court affirm the trial court's judgment because the Association failed to submit to this court a report of proceedings or its substitutes as provided in Supreme Court Rule 323 (87 Ill.2d R. 323) must be addressed. He correctly states that an appellant has the duty to present a complete record on appeal so that the reviewing court will be fully informed regarding the issues in the case (Coombs v. Wisconsin National Life Insurance Co. (1982), 111 Ill.App.3d 745, 746, 67 Ill.Dec. 407, 444 N.E.2d 643; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill.App.3d 651, 661, 62 Ill.Dec. 54, 435 N.E.2d 852; Saint Joseph Hospital v. Downs (1978), 63 Ill.App.3d 742, 744, 20 Ill.Dec. 551, 380 N.E.2d 529), and that absent an adequate record on appeal, it will be presumed that the trial court's judgment conforms to the law and has a sufficient factual basis. (In re Estate of Rice (1982), 108 Ill.App.3d 751, 762, 64 Ill.Dec. 456, 439 N.E.2d 1264; Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill.App.3d 452, 454, 41 Ill.Dec. 466, 407 N.E.2d 964.) A statement of facts in an appellant's brief, as found in plaintiff's brief in the instant case, does not suffice to provide a court with the necessary facts where they are not supported in the record because they lie outside of the record and thus cannot be considered. Coombs v. Wisconsin National Life Insurance Co. (1982), 111 Ill.App.3d 745, 746, 67 Ill.Dec. 407, 444 N.E.2d 643; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill.App.3d 651, 661, 62 Ill.Dec. 54, 435 N.E.2d 852; Saint Joseph Hospital v. Downs (1978), 63 Ill.App.3d 742, 744, 20 Ill.Dec. 551, 380 N.E.2d 529.

The absence of a report of proceedings, however, deprives a reviewing court only of a basis for reviewing issues whose merits depend upon the matters omitted; it does not deprive a reviewing court of jurisdiction to entertain the appeal. (111 Ill.App.3d 745, 746, 67 Ill.Dec. 407, 444 N.E.2d 643; Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill.App.3d 1039, 1042, 27 Ill.Dec. 370, 389 N.E.2d 182.) In these instances, the lack of a report of proceedings requires an affirmance of those issues which depend for resolution upon facts not in the record (70 Ill.App.3d 1039, 1042, 27 Ill.Dec. 370, 389 N.E.2d 182) and mandates that any doubts arising from the incomplete record must be resolved against the appellant. Potts v. Madison County Mutual Automobile Insurance Co. (1983), 112 Ill.App.3d 50, 52, 67 Ill.Dec. 741, 445 N.E.2d 33; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill.App.3d 651, 661, 62 Ill.Dec. 54, 435 N.E.2d 852.

Since the absence of a report of proceedings deprives a reviewing court only of a basis of reviewing issues whose merits depend on omitted matters, where the principal issue raised on appeal involves a question of law, the absence of the report of proceedings does not bar this court's review. (Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill.App.3d 452, 454, 41 Ill.Dec. 466, 407 N.E.2d 964.) The instant appeal raises an issue whose resolution depends upon the construction of a deed. Inasmuch as the construction of an instrument is a question of law for the court to determine (see Wilson v. Illinois Benedictine College (1983), 112 Ill.App.3d 932, 937, 68 Ill.Dec. 257, 445 N.E.2d 901; Vigilante v. National Bank of Austin (1982), 106 Ill.App.3d 820, 823, 62 Ill.Dec. 626, 436 N.E.2d 652), this court has a sufficient basis to review the circuit court's judgment.

We further note that defendant filed a memorandum of law in the trial court setting forth the stipulated facts which were the basis of the appealed from judgment. The record of a case tried upon stipulated facts is sufficient. Kann v. Rosset (1940), 307 Ill.App. 153, 168, 30 N.E.2d 204.

The primary object in considering a deed is to determine the intent of the parties which is ascertained from the deed as a whole and by the words employed (Gelfius v. Chapman (1983), 118 Ill.App.3d 290, 292, 73 Ill.Dec. 798, 454 N.E.2d 1047; Goin v. Eater (1982), 107 Ill.App.3d 887, 890, 63 Ill.Dec. 496, 438 N.E.2d 234; see Schoeneweis v. Herrin (1982), 110 Ill.App.3d 800, 806, 66 Ill.Dec. 513, 443 N.E.2d 36); parties are bound only by the words of the deed regardless of any secret or undisclosed intent (Cimino v. Dill (1982), 108 Ill.App.3d 782, 785, 64 Ill.Dec. 315, 439 N.E.2d 980; Vigilante v. National Bank of Austin (1982), 106 Ill.App.3d 820, 823, 62 Ill.Dec. 626, 436 N.E.2d 652). A court may not add a provision simply to reach a more equitable agreement. National Tea Co. v. American National Bank & Trust Co. of Chicago (1981), 100 Ill.App.3d 1046, 1049, 56 Ill.Dec. 474, 427 N.E.2d 806.

Where a court must construe a restrictive covenant found in a deed, each case must be decided upon its own facts so as to give effect to the actual intent of the parties at the time the covenant was made and a covenant should be construed most strongly against the coventor with all doubts and ambiguities resolved in favor of natural rights and against restrictions. (Cimino v. Dill (1982), 108 Ill.App.3d 782, 786, 64 Ill.Dec. 315, 439 N.E.2d 980; Moore v. McDaniel (1977), 48 Ill.App.3d 152, 163, 5 Ill.Dec. 911, 362 N.E.2d 382; Kessler v. Palmeri (1972), 3 Ill.App.3d 901, 904, 278 N.E.2d 813.) Restrictive covenants which affect land, while not favored at law, will be enforced according to their plain and unambiguous language where reasonable, clear, and definite. (Levitt Homes, Inc....