Zimmerman v. 1660 Condominium Ass'n
| Decision Date | 29 June 1984 |
| Docket Number | No. 83-2149,No. 24558738,24558738,83-2149 |
| Citation | 81 Ill.Dec. 356,466 N.E.2d 1158,126 Ill.App.3d 71 |
| Parties | , 81 Ill.Dec. 356 Irving R. ZIMMERMAN d/b/a Irving Zimmerman Associates, Plaintiff-Appellant, and Louis Natenshon, Intervenor, v. 1660 CONDOMINIUM ASSOCIATION, an Illinois not-for-profit corporation; Board of Managers of Condominium Declared by Cook County Recorder Document, on behalf of all unit owners of said condominium, Defendants-Appellees, Jomeca, Inc., an Illinois corporation; Diane E. Carr; John M. Gabor; Exchange National Bank of Chicago, a national banking association; and Unknown Owners, Defendants. |
| Court | United States Appellate Court of Illinois |
Charles M. Steinberg, Chicago, for plaintiff-appellant.
Roger L. Price, Stephen M. Dorfman and Gary E. Mitchell, Chicago, for defendants-appellees.
Plaintiff, Irving R. Zimmerman, doing business as Irving Zimmerman Associates, filed suit to foreclose a mechanics' lien and for unjust enrichment against the defendants, 1660 Condominium Association (the Association) and the Board of Managers of the 1660 Condominium (the Board). The trial court dismissed plaintiff's suit for failure to name and individually serve each of the owners of the 429 condominium units. On appeal, plaintiff raised the issue whether a party pursuing a mechanics' lien foreclosure action or an unjust enrichment action involving improvements made to the common elements of a multi-unit condominium may proceed by naming and serving only the condominium Board of Managers in their representative capacity on behalf of all unit owners. Defendants raise the issue whether plaintiff has waived his right to appeal by filing an amended complaint following dismissal of the complaint at issue.
Plaintiff, a construction contractor, alleges that he expended labor and materials to improve the common areas of the condominium building at 1660 North La Salle Drive in Chicago, for use as a restaurant and that a balance of $14,000 remains due. Plaintiff performed the improvements pursuant to a contract with the lessees of the common area, Jomeca, Inc., Diane Carr and John Gabor. Jomeca, Carr and Gabor subsequently defaulted on the contract and the lease. Although they are defendants in this action, plaintiff states that he has been unable to serve process on them. Counts II and III of plaintiff's complaint are directed against these defendants and were not dismissed by the trial court.
Count I of plaintiff's complaint alleges that the improvements were performed to the common areas of the condominium with the permission and express authorization of the lessor, the condominium association and/or the Board of Managers, and seeks to foreclose a mechanics' lien against all units of the condominium. Count IV seeks to recover against the Association and the Board and the defendant lessees for unjust enrichment. The Association and the Board filed a motion to dismiss count I of the complaint because neither the Board nor the Association are owners of the condominium and they may not be served as representatives of the unit owners. They also filed a motion to dismiss count IV for failure to name the necessary parties.
On August 16, 1983, the trial court dismissed counts I and IV for failure to specifically name and serve each and every one of the 429 unit owners. On that same day the trial court also granted plaintiff's motion for leave to file an amended complaint naming each unit owner and for appointment of a special process server to serve the complaint and summons on each owner. The amended complaint was filed on September 16, 1983, and plaintiff has represented that at least 70 owners were served as of ...
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...and unit owners were adequately protected by their rights to intervene in the lawsuit.[119] See Zimmerman v. 1660 Condo. Ass'n, 126 Ill. App. 3d 71, 466 N.E.2d 1158 (1984) (holding trial court's order dismissing mechanic's lien complaint against condominium association and board of managers......