Sherwood Commons Townhome Owners Ass'n v. DuBois ( 2020 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2020.07.09
12:32:51 -05'00'
Sherwood Commons Townhome Owners Ass’n v. DuBois,
2020 IL App (3d) 180561Appellate Court SHERWOOD COMMONS TOWNHOME OWNERS
Caption ASSOCIATION, INC., Plaintiff-Appellant, v. RICARDO J. DuBOIS
and ALL UNKNOWN OCCUPANTS, Defendants (Ricardo J.
DuBois, Defendant-Appellee).
District & No. Third District
No. 3-18-0561
Filed April 2, 2020
Decision Under Appeal from the Circuit Court of Will County, No. 18-LM-1067; the
Review Hon. Brian E. Barrett, Judge, presiding.
Judgment Affirmed.
Counsel on Stuart A. Fullett, Jeffrey D. Swanson, and Benjamin D. Rios, of Fullett
Appeal Swanson PC, of Lake Zurich, for appellant.
Ricardo J. DuBois, of Bolingbrook, appellee pro se.
Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Presiding Justice Lytton and Justice Wright concurred in the judgment
and opinion.
OPINION
¶1 The plaintiff, Sherwood Commons Townhome Owners Association, Inc., appeals the Will
County circuit court’s judgment in favor of the defendant, Ricardo J. DuBois. The plaintiff
argues that the court erred in finding that (1) the former Forcible Entry and Detainer Act did
not apply and (2) the defendant was not liable for breach of contract.
¶2 I. BACKGROUND
¶3 On May 10, 2018, the plaintiff filed a two-count complaint entitled “Complaint for
Possession of Unit and Common Expenses” against the defendant. The complaint alleged that
the defendant was the owner of a townhome wherein the plaintiff administered the property.
According to the complaint, the plaintiff was “a common interest community” association
“granted the authority to administer the property pursuant to the Illinois Condominium
Property Act [(Condominium Act) (765 ILCS 605/1 et seq. (West 2018))], and/or the Illinois
Common Interest Community [Association] Act [(Common Interest Community Act) (765
ILCS 160/1-1 et seq. (West 2018))].” Based on the plaintiff’s declaration and bylaws, the
defendant was obligated to pay its share of the common expenses. Count I sought possession
of the defendant’s unit, alleging that, pursuant to the former Forcible Entry and Detainer Act
(735 ILCS 5/9-101 et seq. (West 2018); see also Pub. Act 100-173 (eff. Jan. 1, 2018) (replacing
most references to “forcible entry and detainer” with “eviction”)), it had the right to evict the
defendant to collect the unpaid assessments. Count II alleged breach of contract, stating that,
by accepting a deed to the unit, the defendant agreed to be bound by the plaintiff’s governing
documents, including that the defendant was responsible for paying his share of the common
expenses.
¶4 According to a notice sent to the defendant on December 13, 2017, the defendant owed
$998.62 “for the proportionate share of the expenses of administration, maintenance and repair
of the common elements/areas and other expenses lawfully agreed upon due and owing” plus
$265.02 in legal fees and costs for a total of $1263.64. The notice further provided the
defendant had 30 days to dispute the validity of the debt. Attached to the complaint were two
ledgers. One ledger was from American Utility Management (AUM) dated December 6, 2017,
that stated it was a “Unit Account Ledger Report for Sherwood Commons” and just listed
monthly statement charges and late payment charges for the defendant’s unit. The other was a
financial transactions ledger from the plaintiff with the last assessment dated December 11,
2017, and included charges solely listed as assessments, attorney fees, late fees, and collection
fees.
¶5 The plaintiff’s declaration included a list of definitions. It defined “Common Assessment”
as “The amounts which the Association shall assess and collect from the Owners to pay the
Common Expenses and accumulate reserves for such expenses, as more fully described in this
Declaration.” It further defined “Common Expenses” as
-2-
“[t]he expenses of administration (including management and professional services),
operation, maintenance, repair, replacement of, and snow removal from the Common
Area; the cost of and expenses incurred for, the landscaping of each Townhome, as
more fully provided in this Declaration; the cost of, and the expenses incurred for, the
maintenance, repair and replacement of personal property acquired and used by the
Association in connection with the maintenance of the Common Area and the
Townhomes for which the Association is responsible hereunder; the cost of furnishing
any services which the Association is required to furnish pursuant to the provisions of
this Declaration; any expenses designated as Common Expenses by this Declaration;
and any other expenses lawfully incurred by the Association for the common benefit
of all of the Owners.”
The declaration provided that, by accepting a deed, each owner of a unit agreed to pay
“assessments and user charges.” As for the purpose of the assessments, the declaration stated,
“The assessments levied by the Homeowners Association shall be used for the
purpose of promoting the health, safety and welfare of the Members of the
Homeowners Association and in particular, without limiting the foregoing: (1) for the
improvement and maintenance of the services and facilities devoted to such purpose
and related to the use and enjoyment of the Community Area, including reasonable
reserves, and further including by not limited to, the maintenance, repair, and
replacement of the streets, walks, paths, access facilities, detention pond, perimeter
fencing, and of all other improvements on the Community Area, and added planting,
replanting, care, and maintenance of trees, shrubs, flowers, grass, and all other
landscaping of the Community Area; (2) for the payment of taxes and insurance on and
the making of repairs, replacements and additions to the Community Area, defraying
the cost of labor, equipment, material and office and utility space required for the
management and maintenance of the Community Area[;] and (3) in general for carrying
out the duties of the Board as set forth in this Declaration and the By-Laws of the
Homeowners Association.”
¶6 The assessment procedures stated that each year the board would meet to create the budget
for the following year and determine the amount each owner would have to pay.
“On or before January 1st of the ensuing year, and the 1st day of each and every month
of said year, each Member shall be personally obligated to pay, in the way prescribed
herein, one-twelfth (1/12) of such Member’s annual assessment, together with all user
charges incurred by such Member during the preceding month.”
For “user charges,” the declaration stated,
“The Board may establish, and each Member shall pay, user charges to defray the
expense of providing services, facilities or benefits which may not be used equally or
proportionately by all of the Members or which, in the judgment of the Board should
not be charged to every Member. Such expenses may include, without limitation,
charges predicated on the negligence of any Member or the abuse of any part of the
Community Area, and fees for such other services and facilities provided to Members
which should not reasonably be allocated among all of the Members in the same
manner as Member assessments. Such user charges may be billed separately to each
Member benefited thereby, or may be added to such Member’s assessments as
otherwise determined, and collected as provided herein. Nothing herein shall require
-3-
the establishment of user charges as hereinabove authorized, and the Board may elect
to treat all or any portion thereof as expenses to be defrayed by Member assessments.”
The declaration further provided that any assessment not paid within 30 days after the due date
is delinquent and
“[t]he Homeowners Association may bring an action against the Owner or Member
personally obligated to pay assessments and recover the same, including interest, costs
and reasonable attorney’s fees for any such action, which shall be added to the amount
of such assessment and included in any judgment rendered in such action; and the
Association may enforce and foreclose any lien it has or which may exist for its
benefit.”
¶7 The case proceeded to a bench trial on July 9, 2018. The plaintiff was represented by
counsel, but the defendant appeared as a self-represented litigant. Kathleen Powers testified
that she was employed by Advocate Property Management, which managed the business
affairs for the plaintiff. Powers stated that, according to the records, the defendant owned his
unit and had “unpaid common expenses,” so a 30-day notice was sent on December 13, 2017.
The defendant did not pay in full within 30 days of the notice. Powers stated that the ledger
from AUM was for the water bill and that AUM was the vendor that provided the billing. When
asked why the plaintiff charged separately for the assessments and the water bill, Powers said,
“when this community was established, it was originally an apartment complex that
was converted to condominium townhomes, and they were not individually metered.
So in order to make it equitable for the Association and the residents, they have a
third-party vendor that does the billing.”
Powers stated that, at that time, the defendant owed $735.85 for the water bill and owed a total
of $1787.87, which included the water bill, a charge for Powers to appear in court, the cost of
the notice sent out, collection charges, and legal fees. Counsel for the plaintiff showed Powers
updated ledgers and documents that are not included in the record on appeal. After Powers’s
testimony, the plaintiff rested.
¶8 The defendant testified that he received a late notice dated November 15 that informed him
that he owed $337 and had 15 days to pay in order to avoid further collection. When he received
a demand letter, he contacted an attorney, who sent correspondence to the plaintiff. The
defendant read the letter in court, which stated that it was disputing the validity of the debts
the plaintiff was claiming. The plaintiff’s attorney did not contact the defendant’s attorney for
over a month. The plaintiff continued to send notices to the defendant. The defendant made
multiple payments during this time. It is unclear from the record how much the defendant paid
and owed, as those ledgers are not included in the record on appeal. The defendant stated that
he did not believe the water bill was a common expense or assessment and that he felt that the
amount owed and the resulting legal action was “unfair, given that I’ve been in contact with
Miss Powers and the Association trying to amicably resolve this matter.” The defendant stated
that he did not dispute that he owed a water bill. However, the defendant did dispute the amount
owed, stating,
“I contacted Miss Powers to see why my water bill was so high. I would say maybe in
November of 2016 it went from being about $75 a month to being anywhere from
[$]100 to $150 a month. She advised me to contact the billing company, which I did.
They told me that there was not much they could do.
-4-
I contacted them again, and then they sent a letter to the Association, which the
Association forwarded to me to have a plumber come out. And I’ve been unemployed
since September of 2017, so I haven’t had a chance to have a plumber come out.”
The defendant stated that he did not think the water bill was part of the common expenses or
assessments, stating, “the way I viewed it was like it was an electric bill *** that it’s billed by
a third-party vendor.” The defendant stated that he looked in the bylaws and declarations and
did not find anything that addressed the water bill. The defendant showed the court copies of
the correspondence sent to the plaintiff and received from the plaintiff, but that correspondence
is not included in the record on appeal.
¶9 The plaintiff called Powers as a rebuttal witness. She stated that people have disputed the
separate ledgers for the water bill, but usually it is someone new to the property who does not
understand how it works. She stated that other residents have had malfunctioning meters. The
meters were read remotely, not in the unit, and when the meter was not reading properly, the
utility company was estimating the bill. AUM would contact Powers when this happened. The
court asked Powers what notice the residents had that the water bill was included as an
assessment. Powers stated that she believed it was disclosed in the documents they received
when they purchased the unit. Powers stated that she did not have that documentation. The
court said, “Let me put [it] to you this way. The burden is on the plaintiff. *** Where do you
get to say, right here, he’s on notice?” Powers pointed to the “User Charges” portion of the
declaration.
¶ 10 The defendant asked Powers where it says “water bill” in the declaration and bylaws,
noting that the language seems ambiguous and appeared to point to “landscaping or something
that’s provided for the common good for the entire association.” Powers stated that she did not
know why it was set up like that but that she thought that it would cost the owners more to
have individual meters installed to bypass it. She stated,
“Currently, your other things, such as your phone, your utilities, like, your electric and
your gas, you have your own individual items inside your unit that you create your own
account and you take care of that. This, because of the way the buildings were built, is
the reason for that type of language.”
The defendant asked, “wouldn’t it be reasonable to infer that *** maybe the meters that are
currently there aren’t individual meters, and maybe that there are meters for two units or three
units or six units or however many units are currently attached?” Powers stated that she could
not answer that, but she believed the meters had been updated so that the water use in the
individual units could be read. Powers stated,
“When a resident calls up and tells me that they think their water bill is high, before we
engage the services of the provider, the resident has to establish that there are no
plumbing issues within the unit, too, that would cause the water bill to be higher than
normal. And then we guide people on the most cost-effective ways to do that when we
can.”
¶ 11 The court ruled in favor of the defendant, stating,
“Court’s listened to the evidence, the arguments, reviewed the evidence, considered
the testimony, and credibility thereon.
This is a homeowner’s assessment issue pursuant to the Eviction Code.
-5-
Notice is sent out December 13th. There was a payment on December 9th, which
made the assessment amount zero.
The attorney’s fees, reasonable attorney’s fees, had been paid up until that point.
So the question is, is there a water bill that is now an assessment?
In reviewing the declarations, 403(e) states, User Charges. The Board may establish
and each member shall pay user charges to fray the expenses, et cetera.
402, Purpose of Assessments. There’s three issues for a purpose—levying of
assessments:
Improvement and maintenance of the services and facilities, payment of taxes and
insurance, and general, for carrying out the duties of the Board as set forth in this
declaration and bylaws of the homeowners’ association.
When the user charges state, The Board may establish, it is incumbent upon the
Board to establish the assessment.
It may be valid for this board to state in bylaws or other properly-noticed
information that a water bill is now considered assessment. It fails to do so.
The ambiguity and vagueness is construed against the drafter. And, therefore, the
water bill is not an assessment, according to this. And the eviction code does not apply.
It doesn’t mean you don’t owe the water bill.
***
*** What they can’t do is evict you because of a water bill. That’s not what they
can do. They can go after you and make sure that you pay the water bill if it is against
them, but they’re not going to be able to evict you on that.
This is an easy cure by having a properly-noticed meeting with a change to the
bylaw and adding that as a specific assessment.
It’s not there. The assessments having been paid in full, finding in favor of the
defendant.”
The plaintiff asked for clarification, noting that it also alleged breach of contract. The court
said,
“Still the same. On the breach of contract claim, the common allegations *** don’t
allege any difference in the water bill.
In your Count II, the breach of contract claim, it still states by the associations and
declarations that same argument.”
The court stated that the it was not specific “and the ambiguity lies in favor of the
defendant.”
¶ 12 The plaintiff filed a motion to reconsider, and a hearing was held without the defendant
present. The court denied the motion, stating,
“In this situation there was a factual dispute. That factual dispute laid in favor of the
owner, not to the association, so while I did make a finding that that by itself was not a
common expense based on the fact that the bill was not in dispute and that there was a
separate—not a separate meter for the individual owner, that the amounts of the water
were in dispute because it was not individual to the owner, the factual dispute is what
may have led the Court to find in favor of the owner and against the association. So
while I found that it was not a common expense, that is true. More important here the
-6-
factual dispute laid in favor of the defendant and it was a finding against the
association.”
The court continued,
“The water bill was not considered an assessment or additional rent or additional
assessment because the association separated it out, and because there was a dispute as
to the amount of water that was used and the increase in the bill in one area where the
*** owner was disputing the amount of the water. I found that it was not a common
expense which would allow the association to evict and the eviction law was not
applicable. I found that the dispute over the factual amounts of the water laid in favor
of the defendant because of his defenses and the lack of individual meters.”
¶ 13 II. ANALYSIS
¶ 14 On appeal, the plaintiff argues the court erred in (1) failing to enter an eviction order in
favor of the plaintiff and (2) finding the defendant not liable under a breach of contract theory.
The plaintiff solely challenges the court’s ruling with regard to the water bill and does not
argue that any other expense other than the water bill was owed to it.
¶ 15 A. Eviction
¶ 16 The plaintiff argues that the court erred in failing to enter an order evicting the defendant
from the unit. Specifically, the plaintiff argues that it has broad authority to determine its
expenses and, because the water charges could either be considered common expenses or other
lawful expenses, the court should have ruled in its favor.
¶ 17 “The construction of a statute is a question of law that is reviewed de novo.” State Place
Condominium Ass’n v. Magpayo, 2016 IL App (1st) 140426, ¶ 20. The function of the courts
in construing statutes is to ascertain and give effect to the intent of the legislature, and we
presume that the General Assembly, in its enactment of the legislation, did not intend absurdity,
inconvenience, or injustice. Glens of Hanover Condominium Ass’n v. Chiaramonte, 159 Ill.
App. 3d 287, 290 (1987). “The most reliable indicator of legislative intent is the language of
the statute, given its plain and ordinary meaning. [Citation.] Further, when a statute defines the
very terms it uses, those terms must be construed according to the definitions contained in the
statute.” Magpayo, 2016 IL App (1st) 140426, ¶ 20.
“A court presumes that the legislature intended that two or more statutes which relate
to the same subject are to be read harmoniously so that no provisions are rendered
inoperative. [Citation.] Statutes relating to the same subject must be compared and
construed with reference to each other so that effect may be given to all of the
provisions of each if possible. [Citation.] Even when an apparent conflict between
statutes exists, they must be construed in harmony with one another if reasonably
possible.” Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458-59 (2002).
¶ 18 While we consider statutory construction de novo, since the court reached its decision after
a bench trial, we review its factual findings under a manifest weight of the evidence standard.
Magpayo, 2016 IL App (1st) 140426, ¶ 21; Crest Hill Land Development, LLC v. Conrad,
2019 IL App (3d) 180213, ¶ 34.
“A ruling is against the manifest weight of the evidence only if it is clearly apparent
from the record that the trial court should have reached the opposite conclusion or if
-7-
the ruling itself is unreasonable, arbitrary, or not based upon the evidence presented.
Best v. Best, 223 Ill. 2d 342, 350 (2006). Under the manifest weight standard, deference
is given to the trial court as finder of fact because the trial court is in a better position
than the reviewing court to observe the conduct and demeanor of the parties and
witnesses. Id. A reviewing court will not substitute its judgment for that of the trial
court as to the credibility of witnesses, the weight to be given to the evidence, or the
inferences to be drawn from the evidence.” Conrad, 2019 IL App (3d) 180213, ¶ 34.
The plaintiff, as the appellant, has the burden of establishing any error. First Capitol Mortgage
Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 132 (1976).
¶ 19 At the outset, we note that, at various times in its filings in the circuit court, the plaintiff
referred to itself as “a common interest community association” or a “condominium
association” and stated that it has the authority to administer the property pursuant to the
Condominium Act “and/or” the Common Interest Community Act. However, on appeal, the
plaintiff solely defines itself as “a common interest community association” and argues that it
derives its authority from the Common Interest Community Act. The plaintiff’s own
declaration states that it was adopted pursuant to section 18.5 of the Condominium Act, which
makes it a “master association” under the Condominium Act. 765 ILCS 605/18.5 (West 2018).
The plaintiff’s governing documents make no mention of the Common Interest Community
Act. Because the declaration was adopted pursuant to the Condominium Act, it does not fall
under the purview of the Common Interest Community Act. Further, section 1-10 of the
Common Interest Community Act states that it applies to all common interest community
associations in the state. 765 ILCS 160/1-10 (West 2018). Section 1-5 defines “common
interest community” as “real estate other than a condominium” and specifically states, “A
‘common interest community’ does not include a master association.” Id. § 1-5. Therefore, the
Common Interest Community Act does not apply, and we will, instead, apply the
Condominium Act.
¶ 20 Section 9 of the Condominium Act provides that each unit owner must “pay his
proportionate share of the common expenses.” 765 ILCS 605/9(a) (West 2018). Common
expenses are defined as “the proposed or actual expenses affecting the property, including
reserves, if any, lawfully assessed.” Id. § 2(m). It also provides that each year the board of
managers
“shall prepare and distribute to all unit owners a detailed proposed annual budget,
setting forth with particularity all anticipated common expenses by category as well as
all anticipated assessments and other income. The initial budget and common expense
assessment based thereon shall be adopted prior to the conveyance of any unit. The
budget shall also set forth each unit owner’s proposed common expense assessment.”
Id. § 9(c)(1).
The board must give each unit a copy of such proposed budget before adopting it and must
“annually supply to all unit owners *** an itemized accounting of the common expenses for
the preceding year actually incurred or paid, *** with a tabulation of the amounts collected
pursuant to the budget or assessment.” Id. § 18.5(c)(2). Moreover, the board must provide
notice to the unit owners concerning the adoption of the budget, regular assessments, or any
special assessments. Id. §§ 18(a)(8)(i), 18.5(c)(3). Should the owner fail to pay his share of the
common expenses, the association may place a lien on the unit. Id. § 9(g)(1).
-8-
¶ 21 The Condominium Act also allows an association to file a forcible entry and detainer action
against a defaulting owner. Id. § 9.2(a). Section 9-111(a) of the Forcible Entry and Detainer
Act provides, in pertinent part,
“when the action is based upon the failure of an owner of a unit *** to pay when due
his or her proportionate share of the common expenses of the property, or of any other
expenses lawfully agreed upon or the amount of any unpaid fine, and if the court finds
that the expenses or fines are due to the plaintiff, the plaintiff shall be entitled to the
possession of the whole of the premises claimed, and the court shall enter an eviction
order in favor of the plaintiff and judgment for the amount found due by the court
including interest and late charges, if any, together with reasonable attorney’s fees, if
any, and for the plaintiff’s costs.” 735 ILCS 5/9-111(a) (West 2018).
Therefore, the plaintiff must prove (1) common expenses or “other expenses lawfully agreed
upon” were owed, (2) the owner failed to pay, and (3) the amount owed. See Board of
Managers of Dunbar Lakes Condominium Ass’n II v. Beringer, 94 Ill. App. 3d 442, 445-46
(1981); North Spaulding Condominium Ass’n v. Cavanaugh, 2017 IL App (1st) 160870, ¶ 25.
The plaintiff must prove the allegations by a preponderance of the evidence. 735 ILCS 5/9-
109.5 (West 2018).
¶ 22 Here, Powers testified for the plaintiff that the owners received two separate ledgers for
assessments, one from the plaintiff and a separate one from AUM. AUM provided the billing
for each unit’s water bill. The units were not individually metered, and while she believed the
meters had been updated so that the individual units could be read, she did not know. When
asked how the defendant was on notice that the water bill was included as an assessment,
Powers stated that she believed it was in the documents provided to the defendant when he
bought the unit but that she did not have that information with her. She then pointed to a portion
of the declaration that provided for the establishment of user charges. She agreed that the
declaration did not specifically provide for the water bill. While the defendant did not dispute
that he owed a water bill, he did not admit that he owed the water bill to the plaintiff. Moreover,
he specifically disputed that it was considered as an expense owed to the plaintiff and disputed
the amount owed, noting that his bill increased by an inordinate amount. He had contacted the
plaintiff to figure out why, who had told him to contact AUM.
¶ 23 The court held that, while the plaintiff had the ability to levy assessments and user charges,
it had to actually establish such assessments by providing notice to the unit owners through the
declaration and bylaws or some other notice, which the plaintiff had failed to do. Moreover,
the court clarified in the hearing on the motion to reconsider that it found that the amount of
water was in dispute, and it found that the plaintiff did not prove by a preponderance of the
evidence the amount owed.
¶ 24 This holding was not against the manifest weight of the evidence. While we agree with the
plaintiff that the Condominium Act “gives the board of managers broad latitude in determining
common expenses” (Chiaramonte, 159 Ill. App. 3d at 291), the Condominium Act clearly
requires that the board actually adopt any expenses or assessments and provide notice of such
to the unit owners. The plaintiff did not provide any evidence that it established the water bill
as an assessment in this way. Powers stated that she thought it was included in the documents
presented to the defendant when he bought the property, however, she did not have any
documentation to show that. Moreover, the ledger itself is from AUM, is not an actual bill, and
does not provide any information that the charges are actually owed to the plaintiff, as opposed
-9-
to AUM or a separate utility provider. The record is devoid of any evidence regarding how the
defendant owes the plaintiff for the water bill. The plaintiff has not proven that the water bill
is a common expense or other expense “lawfully agreed upon” so as to bring it within the
Forcible Entry and Detainer Act.
¶ 25 Even if the plaintiff proved that the water bill was a lawfully agreed upon expense, the only
physical evidence that the plaintiff presented of the amount owed, at least on appeal, was a
ledger from AUM dated December 6, 2017. The report of proceedings mentions multiple
exhibits entered by both parties, including updated ledgers and letters between the parties.
However, none of these exhibits are included in the record on appeal. As the appellant, the
plaintiff has
“the burden of presenting a sufficiently complete record of the proceedings at trial to
support a claim of error and, in the absence of such a record on appeal, a reviewing
court will presume that the order entered by the trial court was in conformity with the
law and had a sufficient factual basis. [Citation.] Any doubts arising from the
incompleteness of the record are resolved against the appellant.” Wackrow v. Niemi,
231 Ill. 2d 418, 428 n.4 (2008).
The defendant stated that his water bill went up by 30-50%, and he challenged such increase.
See Spanish Court Two Condominium Ass’n v. Carlson, 2014 IL 115342, ¶ 32 (recognizing
that a unit owner has recourse and can challenge whether assessments are due). The plaintiff
provided no information regarding how the water bill was calculated. Powers read the amount
owed from the ledger into the record but did not have personal knowledge regarding the
calculation or billing of the water bill, and no one from AUM testified. Powers stated that there
were times when the meter malfunctioned and AUM estimated the bills, but she said that AUM
would contact her when this happened.
¶ 26 We cannot say that “it is clearly apparent from the record that the trial court should have
reached the opposite conclusion or *** the ruling itself is unreasonable, arbitrary, or not based
upon the evidence presented.” Conrad, 2019 IL App (3d) 180213, ¶ 34. Therefore, the court’s
ruling was not against the manifest weight of the evidence.
¶ 27 B. Breach of Contract
¶ 28 The plaintiff further contends that the court erred in failing to find the defendant liable
under a breach of contract theory. We review de novo the interpretation of a contract.
Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007). However, whether a breach of contract
occurred is a question of fact, and the court’s finding will not be disturbed on appeal unless it
was against the manifest weight of the evidence. Timan v. Ourada, 2012 IL App (2d) 100834,
¶ 24. “The elements of a breach of contract claim are: (1) the existence of a valid and
enforceable contract; (2) performance by the plaintiff; (3) breach of contract by the defendant;
and (4) resultant injury to the plaintiff.” Henderson-Smith & Associates, Inc. v. Nahamani
Family Service Center, Inc., 323 Ill. App. 3d 15, 27 (2001).
¶ 29 Here, the court found the defendant not liable under a breach of contract theory for much
of the same reasons that it found the plaintiff’s forcible entry and detainer claim failed. The
plaintiff pointed to the declaration as establishing a contractual relationship requiring the
defendant to pay the water bill to the plaintiff. As stated above, the declaration does not itself
establish that the defendant will be responsible for paying the water bill to the plaintiff but
instead gives the board the ability to lawfully establish certain charges and assessments. Supra
- 10 -
¶ 25. The plaintiff provided no evidence that it established a charge for the water bill pursuant
to this declaration. Supra ¶ 25.
¶ 30 We note that the court found the declaration ambiguous as to whether it included the water
bill. “A contract will be considered ambiguous if it is capable of being understood in more
sense than one.” Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 447 (1991).
Whether a contract is ambiguous is a question of law for the trial court. William Blair & Co.
v. FI Liquidation Corp., 358 Ill. App. 3d 324, 334 (2005). Where a court determines that a
contract is ambiguous, its construction then becomes a question of fact. Whitlock, 144 Ill. 2d
at 447.
¶ 31 We agree that the contract is ambiguous on this point. While the contract discusses its
ability to levy user charges, common expenses, and assessments, it states that such are for the
purpose of improving and maintaining the services and facilities, paying taxes and insurance,
and “for carrying out the duties of the Board.” The user charges state that the board may
establish user charges
“to defray the expense of providing services, facilities or benefits which may not be
used equally or proportionately by all of the Members or which, in the judgment of the
Board should not be charged to every Member. Such expenses may include, without
limitation, charges predicated on the negligence of any Member or the abuse of any
part of the Community Area, and fees for such other services and facilities provided to
Members which should not reasonably be allocated among all of the Members in the
same manner as Member assessments.”
While the plaintiff can argue that the declaration includes the water bill, it can just as easily be
read to exclude utilities, such as water, provided to individual units outside of the common
area. Because it is capable of being understood in more than one sense, it is ambiguous.
“Ambiguous contractual language is generally construed against the drafter of the language
***.” Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 493 (1987).
¶ 32 The plaintiff does not provide any further evidence to establish that the water bill was a
user charge, common expense, or assessment. Powers stated that the ledger from AUM was
the amount the defendant owed on the water bill. However, as stated above (supra ¶ 25), the
ledger itself does not state that the defendant owed the water bill to the plaintiff. While the
defendant agreed that he owed a water bill, he did not admit that he owed it to the plaintiff. In
the absence of such evidence, it was not against the manifest weight of the evidence for the
court to find that the plaintiff did not prove that there was a valid, enforceable contract
requiring the defendant to pay the plaintiff for the water bill.
¶ 33 Moreover, the court found that the plaintiff did not prove how much the defendant owed
for the water bill. The defendant disputed the amount, and the plaintiff provided no information
regarding how the bill was calculated. “As the party seeking to recover, the plaintiff bears the
burden of proving that he or she sustained damages resulting from the breach and establishing
both the correct measurement of damages and the final computation of damages based on that
measurement.” Ollivier v. Alden, 262 Ill. App. 3d 190, 196 (1994). As stated above, it was not
against the manifest weight of the evidence for the court to find that the plaintiff failed to meet
this burden. See supra ¶¶ 24-26.
- 11 -
¶ 34 III. CONCLUSION
¶ 35 The judgment of the circuit court of Will County is affirmed.
¶ 36 Affirmed.
- 12 -