MOUNT VERNON – Fifth District appellate judges reversed St. Clair County Associate Judge Chris Kolker for ruling that a homeowners association can’t charge dues and assessments because it doesn’t exist.

 

They reversed summary judgment that Kolker entered in 2016, in a dispute from The Briars subdivision in Millstadt.

 

Fifth District Justice Melissa Chapman found many mistakes in Kolker’s judgment, and at one point called it nonsensical.

 

Chapman rejected his conclusion that there was no difference between amendment of a restriction and revocation of a restriction.

“The two terms have different meanings by definition,” she wrote.

 

She quoted from Black’s law dictionary that revocation means repeal, annulment, cancellation or reversal.

 

She wrote that an amendment signifies a modification, a formal and usually minor revision or addition.

 

The action returns to circuit court, five years after it started there.

 

The land under the homes of The Briars once belonged to Ralph Weilbacher Jr.

 

He built a dam and in 1999, he recorded a final plat for 46 lots.

 

He separately recorded restrictive covenants and recorded new restrictions in 2001, declaring the old ones inadequate.

 

Lot owners voted to incorporate The Briars Property Owners Association, and they adopted bylaws.

In 2002, the Secretary of State approved articles of incorporation.

 

In 2004, the association passed a special $185 assessment for tennis courts.

 

In 2010, it assessed $450 for lighting.

 

In 2012, it assessed $500 for lake repair.

 

In 2013, some owners stopped paying annual dues and special assessments.

 

The association retained Jay Dowling, who petitioned for declaratory judgment in miscellaneous relief court.

Dowling sought compensatory damages ranging from $375 to $925, plus costs, legal fees, and equitable relief.

   

He named as defendants Bruce and Kay Addison, Cindy and Tony Baudo, Don and Mary Dintelman, Felix and Sue Erlenbusch, Jason and Brenna Fischer, Bud and Clarice Haney, Clyde and Angela Hutchinson, David and Beth Nester, assistant state’s attorney Lisa Porter and Jim, K. T. and Chris Toenjes, and Tom and Judy Vernier.

 

Some defendants retained Thomas LeChien, and some retained Michael Nester.

 

They moved to dismiss the complaint, alleging defects in the restrictions and in the organization of the association.

 

Associate judge Stephen McGlynn held a hearing and dismissed the complaint, but he granted leave to amend it.

 

“The question is whether or not there exists a writing signed by the named defendants as well as all other lot owners that could form a basis upon which the relief sought by plaintiff could be granted,” he wrote.

 

He wrote that the association filed a writing that “appeared to be signed by the named defendants at various times in 2001.”

 

Dowling amended the association’s complaint three times, and defendants moved to dismiss each version.

 

In December 2014, McGlynn denied the motions to dismiss.

 

LeChien then withdrew as counsel for his group of owners, and Michael Nester took charge of their defense.

 

In July 2015, the Porters substituted Eric Rhein for Nester.

 

Rhein moved for summary judgment, writing that the Porters never agreed to pay for upkeep of a lake they have no frontage on or real access to.

“Defendants did not write the restrictions,” Rhein wrote. “They never signed any document agreeing to them.”

“Plaintiff or their agent or attorney prepared the restrictions and they are stuck with the language in the documents.”

 

In September 2015, Tom Keefe of Swansea entered an appearance alongside Michael Nester for David and Beth Nester.

 

In January 2016, McGlynn recused himself.

 

Chief Judge John Baricevic assigned Kolker.

 

Nester moved for summary judgment in March 2016, writing that the 1999 restrictions didn’t grant rights to a hypothetical future association.

 

He wrote that Weilbacher recorded the second set of restrictions without unanimous consent of lot owners.

“Illinois law is clear that once title to property passes from the developer, any such reserved rights are extinguished,” Nester wrote.

 

He wrote that the association failed to allege that a vote was held or that 100 percent of owners voted to incorporate the association.

“The restrictions are unsigned by anyone, despite containing blank signature blocks,” he wrote.

 

Dowling responded for the association that Addison, Dintelman, Erlenbusch, Nester, Toenjes, and Vernier signed the 2001 restrictions.

 

Without identifying husband or wife, he wrote that Dintelman, Toenjes, and Vernier served on the board of directors.

 

He wrote that Addison served on the lake committee and Erlenbusch served on the grounds committee.

 

He wrote that contrary to Porter’s assertion about being stuck with language, the court must not defeat the obvious purpose of the restrictions.

 

Kolker held a hearing in May 2016, and granted summary judgment to all defendants except the Porters.

 

He wrote that the association was a legal nullity because homeowners lacked express authority to create it.

 

He wrote that it had no legal authority to enforce dues, fees, costs, or special assessments against defendants or other past, present and future owners.

“The purported bylaws were adopted by the association prior to its legal existence and the bylaws are therefore a nullity,” Kolker wrote.

“Plaintiffs failed to allege that a vote was even held, or that 100 percent of the homeowners voted to incorporate the association.”

 

He wrote that preservation of a right to amend restrictions allowed the developer to change minor terms for certain lots to suit potential buyers.

 

The Porters moved for clarification, pleading that Kolker didn’t include them.

 

Kolker granted the motion and included them.

 

The association filed notice of appeal and asked Kolker to stay judgment.

 

He denied a stay, finding it would severely prejudice defendants if they attempted to sell their properties like the Porters were attempting to do.

 

A decision at the Fifth District took two years, and the association prevailed.

 

Chapman wrote that the restrictions didn’t mandate 100 percent consent.

 

She wrote that they clearly only applied to future amendments or revocations.

“It is nonsensical to declare that an amendment policy within the 2001 amended restrictions is applicable to the passage of those very short restrictions,” she wrote.

 

She wrote that a paragraph in the 1999 restrictions was inexpertly worded and that Weilbacher raised an issue of material fact in an affidavit.

“We find fault with the court’s conclusion that the blank signature blocks invalidated the 1999 restrictions,” she wrote.

“The 1999 restrictions were not signed by anyone when recorded, because on the date of recordation no lots had yet been sold.

“The issue of the lack of signatures is simply irrelevant and does not invalidate the restrictions.

 

“We also find fault with the court’s conclusion that Weilbacher’s failure to reference the plat on the face of the 1999 restrictions invalidates the restrictions.”

She wrote that simple review of the plat establishes that the plat referenced the restrictions and indicated they were attached.

 

She wrote that Kolker’s conclusion that the incorporation vote wasn’t unanimous was without factual basis in the record.

 

She wrote that association director Rusty Wagner swore that all owners at the meeting were present and voted to incorporate.

 

“Clearly this sworn testimony raises a factual question,” she wrote.

 

She wrote that association president Marilou Dugan asserted in an affidavit that directors have consistently held meetings since the association’s formation.”

 

She wrote that the association alleged in its complaint that at the first meeting in 2002, the board adopted and ratified Weilbacher’s bylaws from 2001. 

“The defendants do not contradict this statement, but argue that the bylaws are invalid because they were prematurely adopted,” she wrote.

 

She wrote that while the record contained no confirmation of their adoption or ratification, this also raised a factual issue.

“Weilbacher intended that a homeowners association would assume the management and maintenance of The Briars,” she wrote.

“Furthermore, it is only common sense that given the common areas, including the lake and tennis courts, the association fees could not remain at the $50 amount listed in the 1999 restrictions.”

 

Justices John Barberis and Richard Goldenhersh concurred.

 

The Porters escaped the dispute last year, selling their property for $299,900.

 

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