Westfield Homes, Inc. v. Herrick

• Decision Date: 12 May 1992
• Docket Number: No. 2-91-0796,2-91-0796
• Citation: 229 Ill.App.3d 445,593 N.E.2d 97,170 Ill.Dec. 555
• Parties: , 170 Ill.Dec. 555 WESTFIELD HOMES, INC., et al., Plaintiffs-Appellants, v. Michael HERRICK, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 97

593 N.E.2d 97

229 Ill.App.3d 445, 170 Ill.Dec. 555

WESTFIELD HOMES, INC., et al., Plaintiffs-Appellants, v. Michael HERRICK, et al., Defendants-Appellees.

No. 2-91-0796.

Appellate Court of Illinois Second District.

May 12, 1992.

Bernard Wysocki, on the brief, Bernard Wysocki & Associates, P.C., Waukegan, for Westfield Homes, Inc. and Westridge Homeowners Assoc.

Richard J. Nakon, James W. Kaiser, on the brief, Richard J. Nakon & Associates, Wauconda, for Michael Herrick and Andrea Herrick.

Presiding Justice INGLIS delivered the opinion of the court:

Plaintiffs, Westfield Homes, Inc., and Westridge Homeowners Association, filed suit seeking to enjoin defendants, Michael and Andrea Herrick, from maintaining and using an above-ground swimming pool on their property allegedly in violation of a restrictive covenant applicable to defendants' property. The trial court denied relief, and plaintiffs appeal, contending that the court misconstrued the language of the covenant and ignored unrebutted testimony of the violation of the covenant when it refused to grant an injunction. Defendants filed a motion to strike plaintiffs' reply brief. We ordered defendants' motion and plaintiffs' response to be taken with the case. We affirm.

Plaintiff Westfield Homes is the developer of the Westridge subdivision in Island Lake, Illinois. In conjunction with the development, Westfield recorded a "Declaration of Covenants, Conditions, Restrictions and Easements For Westridge Homeowners Association" (hereafter the covenant). By this document, all lots in Westridge became subject to its terms. The covenant provides for the creation of the Westridge Homeowners Association, which is to be the governing body for the administration of Westridge. The covenant also provides for an architectural review committee which is to review the plans for all construction and improvements in the subdivision, except homes constructed by Westfield.

In January 1990, defendants visited Westridge while looking for a new home. They were helped by one of Westfield's sales agents, Marjorie "Misty" Wright. Defendants returned to Westridge in March. At that time, they asked Wright whether above-ground pools were permitted in the subdivision because they had an above-ground pool at their present home and this would be a "very big factor" in deciding whether to purchase a new home. According to Andrea Herrick, Wright then referred to the covenant. She pointed out that certain structures, such as television antennas, clotheslines and satellite dishes are specifically prohibited, but that an above-ground pool was not so prohibited. Andrea Herrick said that Wright then told her that a pool was "not specifically mentioned and that it wouldn't be a problem."

The Herricks told Wright that they were interested in purchasing a lot. However, only one lot was available for the model home they wanted, and the Herricks determined that the lot was unsuitable for their purposes, which included construction of the pool. Wright advised them to return on April 20, when additional lots would become available. They returned on that day and put down a $500 deposit on a lot. Two days later, they returned to sign the contract with Wright. At that time, they were given a copy of the covenant. The Herricks sent the contract and covenant to their attorney for review.

During the summer of 1990, Michael Herrick returned to the sales office numerous times. He often discussed having a pool with members of the sales staff. Since the Herricks' lot is adjacent to the sales office, the staff joked about using the pool during their lunch hours.

After the Herricks purchased their home, Christa Zink and her husband also signed a contract to purchase a home in Westridge. Mrs. Zink also discussed the possibility of an above-ground pool with Wright. According to Zink, Wright had a telephone conversation with Robert Siuda, plaintiff's vice-president of sales and marketing, who determined that the Zinks' lot would be sufficient for an above-ground pool.

Defendants' home was subsequently completed and they moved in. They purchased a pool on April 18, 1991. According to Michael Herrick, excavation work for the pool began between April 21 and April 26, and construction was completed sometime during the day of Saturday, May 18.

Brian Harris is Westfield's vice-president of construction. He and Bob Siuda also comprise the architectural review committee. On May 14, 1991, Harris noticed some excavation on defendants' property. On May 15, he sent a letter as president of the Westridge Homeowners Association to defendants. The letter stated that it appeared defendants were constructing an above-ground pool, that they had to submit a request to the architectural review committee for such an improvement, and that they must discontinue further work. The letter referred specifically to the provisions of the covenant.

The Herricks maintain that they did not retrieve the letter from their mailbox until Sunday, May 19, after construction of the pool was complete. They promptly submitted a request which included plans for the pool, a deck, a shed, a screened-in porch and a sandbox.

On May 29, 1991, defendants received a letter from the Association approving their deck, screened-in porch and sandbox, but disapproving the pool and shed. Michael Herrick immediately called Harris. Herrick spoke to both Harris and Siuda by speakerphone, but the three were unable to resolve the dispute. Plaintiffs then filed the instant suit for an injunction requiring the removal of the pool.

The trial court initially granted a temporary restraining order. Following trial, the court ruled that the covenant did not give plaintiff the power to prohibit an above-ground pool. The court held that the provisions of the covenant requiring plans to be submitted to the architectural review committee were valid, but that the committee had to exercise its review powers in a reasonable, nonarbitrary manner. The court further held that a complete prohibition was not reasonable under the facts of the case. The court also found that the reasons given for the disapproval of defendants' plans were vague. The court granted plaintiffs eight days to provide defendants with reasonable conditions and restrictions for the construction of an above-ground pool on their property. The court stated that it would then issue a permanent injunction in accordance with the reasonable conditions and restrictions.

At the end of the eight days the attorneys for all parties again appeared before the trial court. Plaintiffs' attorney stated that plaintiffs were unwilling to provide conditions for the construction of a pool, but would stand on their unconditional denial. The court thereupon dissolved the temporary restraining order and entered judgment for defendants.

DEFENDANTS' MOTION TO STRIKE

Defendants filed a motion to strike plaintiffs' reply brief, and we ordered the motion and plaintiffs' response taken with the case. Defendants' motion appears to be merely a surreptitious surreply to the reply brief. Defendants essentially contend that any arguments not strictly raised in the plaintiffs' opening brief should be stricken for being raised for the first time in the reply and any arguments which were previously raised should be stricken as redundant. In fact, the vast majority of the material which defendants find objectionable is proper reply to arguments raised in the defendants' brief. (See, e.g., People v. Brownell (1984), 123 Ill.App.3d 307, 319-20, 78 Ill.Dec. 817, 462 N.E.2d 936.) We therefore deny the motion to strike the reply brief, but will disregard any improper matter contained therein.

TRIAL COURT'S DENIAL OF PERMANENT INJUNCTION

On appeal plaintiffs raise two issues, which can be summarized as a contention that the trial court abused its discretion in failing to grant a permanent injunction where it was essentially undisputed that defendants violated the covenant.

In reviewing a trial court's decision to deny an injunction, our function is to determine whether the lower court's factual findings are contrary to the manifest weight of the evidence. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill.App.3d 736, 743, 152 Ill.Dec. 692, 566 N.E.2d 379.) The trial court's ruling will not be set aside absent an abuse of discretion. Millard Maintenance Service, 207 Ill.App.3d at 744, 152 Ill.Dec. 692, 566 N.E.2d 379.

The trial court's ruling was based on the language of the covenant, as well as principles of law applicable to covenants generally. Thus, before we proceed to a discussion of the relevant authorities, we must set forth the relevant provisions of the covenant at some length. Article VI sets forth numerous specific "restrictions," which are actually complete prohibitions. Within that article, paragraph 6.01 provides that no lot shall be used for other than residential purposes. Paragraph 6.02 provides that front and side yards must be seeded or sodded to the curb line and that owners shall not permit grass or weeds to grow to a height in excess of five inches. Paragraph 6.03 specifically prohibits several types of structures and provides as follows:

"6.03 Lot Use Restrictions

(a) No outdoor clothes-lines, microwave, shortwave or other towers for the reception or transmission of television electrical signals, or electrical or high intensity lighting shall be erected, constructed or placed on any portion of the Property.

(b) There shall be no parking of recreational vehicles, boats, trailers, tent trailers or tractor/trailer components, permanently or temporarily, in any location in front of the front building line of the lot."

Article VII provides for the creation and operation of the architectural review committee (ARC). Within that article, paragraph 7.01 provides that as long as the developer owns any real estate in the development it shall be the sole member of the ARC. Paragraph 7.02 then sets...