Petition for Writ of Certiorari — Sambrano v. Heritage Trails Homeowners Association (No. 06-1450)

Supreine Court, U.S.

0 FILED

O61450FEB2 52007

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ATANACIO G. SAMBRANO

and CATHLEEN R. SAMBRANO,

Petitioners

Vv.

HERITAGE TRAILS HOMEOWNERS ASSOCIATION,

An Illinois not-for-profit corporation,

Respondent

On Petition For Writ Of Certiorari

To The Appellate Court of Illinois

Second Judicial District

PETITION FOR WRIT OF CERTIORARI

ATANACIO G. SAMBRANO, PE

CATHLEEN R. SAMBRANO, RN

(Pro se)

532 MADISON LANE

LINDENHURST, ILLINOIS 60046

TEL.NO: (847) 265-6992

QUESTIONS PRESENTED FOR REVIEW

1. Attorneys Fees and Costs

On May 10, 2005 the circuit court of the 19" circuit, Lake

County, Dhinois, entered an Order in Case Number 00 CH 981

awarding reasonable attorney’s fees and costs in favor of the

respondent to be determined at a hearing on these issues.

On October 17, 2005 the trial court entered a judgment in

favor of the respondent ordering the petitioners to pay the

respondent $48,732.75 in attorneys fees and $4,837.55 in

expenses and costs or a total of $53,570.30.

The Appellate Court of Illinois Second Judicial District

affirmed the judgment of the trial court in its Rule 23 Order

dated July 14, 2006 in Case Gen. Number 2-05-1102.

The question presented for review is whether the

respondent, the trial court, and the appellate court, singly or

jointly, can hold the petitioners legally liable to pay attorneys

fees and costs based solely on a resolution precipitately passed

by the Board of Directors of the respondent in the course of an

ongoing litigation between the petitioners and the respondent.

2. In-Ground Swimming Pool Barrier

The petitioners installed an in-ground swimming pool on

their lot with barriers that conformed to the barrier requirements

of the Village of Lindenhurst but did not conform to the fencing

regulations of the respondent. A conflict exists between the

barrier requirements in the ordinance of the Village and the

fencing regulations of the respondent, including but not limited

to whether a Declaration of Covenants in a subdivision shall

prevail and control the Village ordinance with regard to barrier/

fencing restrictions and requirements.

(i)

The question presented for review is whether the Village

barrier requirements for in-ground swimming pools should give

way to the fencing regulations of a corporate respondent in ways

that such regulations supersede the barrier ordinance of the

Village.

(ii)

TABLE OF CONTENTS

(Questions Presented For Review....................

I a

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TABLE OF AUTHORITIES

Cases

e Amoco Realty Co. v.

Montalbano. . nen

133 fll. App. 3d 478 N. E. 24 860 an Dist. (1985)

e Board of Directors of 175 East Delaware Homeowners

PO Mi ssc isis ats psscdieatlceats ppees cance aciecastditehanieddas 13

Hinojosa 287 Ul. App. 3d at 890

¢ Brian Campbell v. Lake Hallowell Homeowners

PN isis ined asiacecsiidaiisdisipnnscaistahenk cevisteninnitenies os J

152 Md. App. 139, 331 A.2d 465, (2002)

e Galowich v. Beech Aircraft Corp. .........:.ccccccccseeeees 3

92 Ill. App. 2d 157 N.E. 2d 318 (1982)

e Johnston v. Suckow .......... sive 28

55 Ill. App. 3% 280 N. E. 24 650 oa Dist 1977)

¢ Nagel v. Gerald Dennen & Co. . ioe naeaene

272 I. App. 3d 516, N.E. 2d, 547 as Dist 1995)

¢ State Farm Fire and Cas. Co. v. Miller Electric Co. .....13

231 Ill. App. 3d N.E. 2d 169 (2™ Dist. 1992)

1 > FAI sstlintansa 13

114 Til. App. 3d 527 N.E. 2d 151 (1* Dist 1983)

By-Laws

Article VII — Powers and Duties of the Board ..................2.: 9

PARE FF 1 — FI a g.ciivnin ci vnc ck vencecnssivsveonsssscsscivenc cg A

Ordinance

Village of Lindenhurst Ordinance Section 421.10.1.................5

Resolution

Board of Directors Resolution of December 13, 2000 ..............4

(iv)

Regulations

Declaration of Covenants Article IV, Section 4.01 ..................

Declaration of Covenants Article IV, Section 4.02 .................

Declaration of Covenants Article IV, Section 4.03...................

Declaration of Covenants Article VI, Section 6.02(d) ..............

Declaration of Covenants Article VI, Section 6.04 ...............

Declaration of Covenants Article VIII, Section 8.02 ...............

(v)

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CITATIONS

The Llinois Appellate Court Second District, in its Rule 23

Order entered on July 14, 2006, in Appellate Case Number 2-

05-1102, justified the award of attorneys fees and costs in favor

of the respondent citing a portion of Article IV, section 4.02

(Assessments) of the respondent’s Declaration of Covenants

which reads: “Assessments may be levied for the purpose of

paying *** contractual expenses of administering the Association

and enforcing the provisions of this Declaration, including

without limitation, *** fees of attorneys xxx.” (Page A-10, Rule

23 Order).

The Appellate Court also cited Article IV, section 4.03

(Levying of Assessments) of the respondent’s Declaration of

Covenants which reads: “The sums required to pay the costs

described in Section 4.02 above shall be allocated equally

among all the lots or in such other reasonable manner as the

Board may determine.” (Page A-10, Rule 23 Order).

The Appellate Court concluded that the resolution of the

respondent’s Board of Directors dated December 13, 2000 is

within the Board’s power under section 4.03. (Page A-10, Rule

23 Order); that the Board acted within its authority in adopting

the resolution. (Page A-10, Rule 23 Order). The question

presented for review regarding the granting of attorneys fees

and costs based solely on a resolution is a matter of important

public concern that, if decided with finality in this precedent-

setting case, will ultimately establish a rule for future conduct

by intra-state courts as well as inter-state courts. As of now

there is a conflict between the decision rendered by the Appellate

Court of the State of Maryland and the Appellate Court of Ilinois

with respect to the issue of attorneys fees by resolution. In the

case of Brian Campbell v. Lake Hallowell Homeowners

Association, the Maryland Court of Appeals denied the award

of attorneys fees based on a resolution that was improperly

passed for not having complied with the amendment provisions

of the Asso.» .9n’s Declaration of Covenants requiring that the

declaration it.ay be amended within the first 30-year period by

an instrument signed by not-less-than 90% of the Lot Owners

and thereafter by an instrument signed by not-less-than 75% of

the Lot Owners.

The Maryland court held that the resolution was outside

the scope of the Declaration of Covenants of the Association.

The same or similar facts were involved in this case between

the petitioners and the respondent, and yet the Illinois Appellate

Court’s Rule 23 Order of July 14, 2006 granted attorneys fees

to the respondent based on a resolution of the Board of Directors

that was improperly passed as an amendment to the Declaration

of Covenants without an instrument executed by not-less-than

75% of the members as required under Article VIII, 8.02 of the.

respondent’s Declaration of Covenants. Both resolutions in the

Maryland case and the Illinois case were improperly passed and

yet the Maryland court denied the award of attorneys fees while

the Illinois court granted the award of attorneys fees despite the

lack of statute or agreement between the parties. The denial of

attorneys fees by one state court and the granting of attorneys

fees by another state court is a conflict that will continue to

multiply until this issue is resolved with finality by this Court

which is the final arbiter of conflict between and among state

courts.

The Appellate Court went on saying: “Our research has

uncovered no cases in this state or elsewhere in which a

homeowner’s association was permitted to recover attorney’s

fees based solely on a resolution.” This manifestation

corroborates the petitioners’ contention that the matter of

attorneys fees by resolution is a virgin issue in a gray area of

jurisprudence.

With regard to the conflict between the in-ground pool

barrier requirements and respondent’s fencing restrictions, the

Appellate Court ruled that there was no conflict and that the

building code of the Village will control only when it is more

stringent or is in conflict with the respondent’s Declaration.

(Page A-8, Rule 23 Order).

BASIS FOR JURISDICTION

The judgment of the Illinois Appellate Court Second District

sought to be reviewed was its Rule 23 Order in Case Number 2-

05-1102 which was entered on July 14, 2006. A copy of the

Order appears in Appendix A. The jurisciiction of this Court is

invoked under 28 U.S.C. Section 1257.

REGULATIONS INVOLVED

Re: Attorneys Fees and Costs

With regard to the question on attorneys fees and costs,

Article [V (Assessments) section 4.02 should be construed in

teference to section 4.03 and not be taken independently. It

should be interpreted in reference to section 4.03. Pertinent

portion of Article IV section 4.02 provides:

“In addition, assessments may be levied for the purpose of

paying contractual expenses of administering the Association

and enforcing the provisions of this Declaration, including

without limitation xxx attorneys fees. xxx Assessments may be

levied for such other purposes of the Association as the Board

shall from time to time determine upon approval of two-thirds

2/3 of the members.”

Article IV section 4.03 of the respondent’s Declaration of

Covenants (levying of assessments) provides: “The sums

required to pay the cost described in section 4.02 shall

be“allocated equaily among all the lots or in such other

reasonable manner as the Board may determine.”

The respondent’s Board of Directors resolution of December

13, 2000 provides:

“All reasonable attorneys fees arising out of a default by any

owner, his tenant, invitee, or guest in the performance of the

provisions of the governing documents of the Association, Rules

and Regulations, or any applicable statute or ordinance,

including, but not limited to the collection of assessments and

fines, enforcing the covenants, By-Laws and Rules and

Regulations or representing the Association relative to actions

brought or threatened to be brought against it by the homeowner

shall be added to and deemed a part of said homeowner’s

respective share of the common expense.”

4

Article VIII (Miscellaneous) section 8.02 (Amendment) of

the respondent’s Declaration of Covenants provides:

“The provisions of this Declaration may be amended by an

instrument executed by not less than seventy-five percent (75%)

of the members; provided however, during such time as the

Declarant is an owner of any lot, provisions relating to the rights

and obligations of Declarant and Developer may not be amended

without the written consent of Declarant and Developer. The

responsibility for continued maintenance, operation and

preservation of the Common Area shall not be abrogated by any

such amendment. In addition, any amendment of any part of

Articles fi, VI or VIII shall require the prior written approval

of the Village.”

Article II] refers to property rights, Article VI refers to

restrictions on use of lots, and Article VIII refers to miscellaneous

provisions of the Declaration. Article VIII sections 8.02 refer

to requirements for amending the Declaration.

Re: Fencing Regulations

Article VI (Restrictions on Use of Lots) section 6.02(d)

provides: “The only type of fencing allowed on a lot shall be 5-

foot board-on-board type fencing constructed of cedar with at

least 30% of the fence surface area consisting of open air.”

Article VI section 6.04 (Primacy of Village Ordinances and Plat)

provides: “In the event any ordinances of the Village of

Lindenhurst are more stringent, or if any such ordinances or

the plat conflict with any of the provisions hereof, the

ordinances of the Village and the Plat shall prevail and

control.”

Section 421.10.1 of the BOCA National Building Code of

1996, referring to outdoor private swimming pools, spas and

sacs 5

hot tubs, which was adopted in ordinance of the Village, which

included in-ground, above-ground or on-ground pool, hot tub

or spa enumerates no less than ten (10) requirements for barriex

enclosures on in-ground pools. These ten requirements

sufficiently prove that section 421.10.1 is not only in conflict

with Article VI section 6.02(d) of the respondent’s Declaration

of Covenants but is also more stringent than section 6.02(d).

The conflict between the BOCA Code and Article VI section

6.02(d) of the Declaration of Covenants is best explained by

looking at Section 421.10.1, paragraph 4 of the BOCA Code,

specifically requiring in-ground pool barriers to be composed

of horizontal and vertical members and the distance between

the tops of the horizontal members less than 45 inches (1143

mm) etc. There is no such requirement under the Declaration of

Covenants. Furthermore, the Declaration of Covenants allows

the construction of three horizontal rails in the subdivision which

is a direct violation of the BOCA Code specifically requiring

only two rails. On the stringent issue, the BOCA Code

specifically requires the following under Section 421.10.1,

paragraph 9: paragraph 9.1 requires an alarm which produces

an audible warning; paragraph 9.2 requires that the pool be

equipped with a self-closing and self-latching door/gate device;

paragraph 9.3 requires that the pool be equipped with a power

safety cover. None of these are required under the Declaration

of Covenants which suggests a conclusion that the BOCA Code

barrier requirements are more rigid and more stringent than the

fencing requirements of the subdivision. Based on this

explanation, and since a contract is the law between parties,

Article VI section 6.04 of the Declaration requiring primacy of

Village requirements in case of conflict should have been upheld

by the lower courts. This issue is paramount for it involves

safety issues that may result in injury and even death. The

petitioners had complied with all the BOCA requirements in the

construction and completion of their in ground swimming pool.

6

STATEMENT OF THE CASE

On August 18, 2000, the petitioners filed with the circuit

court of the Nineteenth Judicial Circuit, Lake County, Illinois,

an action for injunctive and other relief praying for preliminary

and permanent injunction enjoining the respondent from

attempting to conduct violation hearing scheduled for August

22, 2000. On August 7, 2002, the respondent filed its two-count

Second Amended Counterclaim for declaratory injunctive and

other relief. On May 10, 2005, the trial court entered its final

judgment granting declaratory relief and injunctions requested

by the respondent. The trial court awarded to the respondent

reasonable attorneys fees and costs and ordered the petitioners

to remove the wrought-iron fence constructed around their in-

ground swimming pool by May 22, 2005 or construct a fence

which conforms to the rules of the respondent and the Village of

Lindenhurst ordinances.

The petitioners filed with the Illinois Appellate Court

Second Judicial District a timely appeal from the May 10, 2005

final judgment of the trial court, docketed as Appellate Case

Gen. Number 2-05-0489. On January 26, 2006, the Appellate

Court entered its first of two Rule 23 Orders DISMISSING the

petitioner’s appeal for lack of jurisdiction as the May 10, 2005

order appealed from was not a final and appealable order as it

left open the issue of the amount of attorneys fees the petitioners

would be required to pay.

On October 17, 2005 the trial court issued a judgment in

Case Number 00CH981 directing the petitioners to pay the

respondent $48,732.75 in attorneys fees and $4,837.55 in

expenses for costs, or a total of $53,570.30. The petitioners

filed a timely appeal of this October 17, 2005 judgment of the

circuit court to the Illinois Appellate Court Second District,

docketed as Appellate Case Gen. Number 2-05-1102. On July

14, 2006 the Appellate Court entered its second Rule 23 Order

disposing the case on the merits and affirming the May 10, 2005

and October 17, 2005 orders of the trial court.

On August 16, 2006 the petitioners filed with the Illinois

Supreme Court a Petition for Leave to Appeal from the Appellate

Court’s Rule 23 Order of July 14, 2006 pursuant to Illinois

Supreme Court Rule 315 as amended. This petition was docketed

as Case Number 103228. On November 29, 2006 the Illinois

Supreme Court DENIED the petit’ >ner’s Petition for Leave to

Appeal. A copy of the denial is in Appendix E.

ARGUMENT

I. Attorneys Fees

The award of attorneys fees by board resolution raised a

particularly significant question of law that is not settled by

jurisprudence in Illinois and elsewhere according to the

Illinois Appellate Court. Lack of precedent begs considerable

importance for this Court to grant writ of certiorari. Lack of

precedent imbues inherent significance of the question presented

for review as it calls for a judicial opinion that will ultimately

settle this question of law by precedent. Lack of precedent would

provide strong motivation for numerous boards of directors in

every subdivision and in every state in the entire country to pass

similar resolutions every time confrontations between

homeowners and subdivisions develop into a full-blown

litigation. Lack of case law precedent leaves every homeowner

in a subdivision completely at the mercy of the Board of Directors

of every homeowner association. Lack of case law precedent

will open the door to the proliferation of conflicting non-

precedential Rule 23 Orders with some Appellate Courts granting

8

the award of attorneys fees while others deny the award. It also

grants blanket discretion to State Courts to grant or deny

attorneys fees as they please with or without self serving board

resolutions.

This issue if of importance beyond the particular facts and

parties involved. The decision on this issue had nationwide

impact on all subdivision business in every state in the country

and in all state courts. Whether this foreseeable pattern of

behavior will gain momentum or be avoided depends on the

dispositive action taken by this Court in this instant petition for

writ of certiorari. These broad considerations provide enough

merit for the petition that needs to lay a precedent to preveni

gray areas on questions of law of this magnitude.

Article [V section 4.01 of the respondent’s Declaration of

Covenants refers to personal obligations of lot owners to pay

assessments levied to pay for the various types of common

expenses under Article IV section 4.02 which expenses are

equally allocated among all lots under Article IV section 4.03.

The resolution in question is an amendment to Article IV sections

4.02 and 4.03 of the Declaration of Covenants. The resolution

enlarges the scope of the “common expenses provisions” of

section 4.02. The resolution deletes the allocation clause under

section 4.03.

For a number of reasons the resolution is invalid and

unenforceable:

¢ It was not in a written instrument executed by not less than

75% of the members to be a valid amendment under Article

VIII section 8.02 of the Declaration of Covenants;

¢ It was passed in violation of Article VIII section 8.02;

e It was an ultra vires act of the respondent as it was outside

the powers and duties of the Board of Directors under Article

VII sections 7.01 and 7.02 of the By-Laws of the respondent;

9

e It was not approved by two-thirds 2/3 of the members

required under Article IV section 4.02;

e It was not legally binding upon any homeowner in the

subdivision, including the petitioners for it was never recorded

to be a real covenant with the Register of Recorder to be a valid

amendment of the Declaration;

e It was not a contract and could not be made the basis of

contractual liability binding on the petitioners or any homeowner;

* The Board has no authority to change rules immediately

binding upon any homeowner engaged in litigation with the

respondent;

¢ The resolution was a unilateral novation of the rights of the

respondent and the obligations of the petitioners;

¢ It violated Article XVI amendment provisions of the By-

Laws for it was not ratified in writing by owners representing

no less than 50% of the lots;

¢ The Board has no power to create creditor/debtor relationship

by a mere resolution which is neither a contract nor a statute;

¢ It lacks equity and made a mockery of equal justice under

the law in the sense that the petitioners cannot recover attorneys

fees and costs without a contract or statutory basis, and yet the

resolution which is not a contract allows the respondent to

recover;

¢ The resolution turned the scales of justice upside down as it

held the petitioners liable to pay so much for minor defaults

while the respondent does not have to pay a penny for its major

defaults.

These 12 substantial reasons prove that the respondent

violated specific provisions of its own contract, a take-it-or-leave-

it contract it seeks to enforce against the petitioners but refuses

to enforce against itself.

There are major defaults documented by evidence on record

showing the adamant reluctance of the Board to effectively

10

“enforce the provisions of the Declaration” within the thresholds

of Article IV section 4.02 with the same level of temerity in

meeting the hazards of litigation it had taken against the

petitioners. There is evidence on record that there were no less

than fifty-one (51) existing and pre-existing violations by other

homeowners of one race and not one of them was brought to

court. One violation is minor but fifty-one minor violations

amount to a major default. Selective enforcement of the

provisions of the Declaration of Covenants is a major default by

any tortured definition, not to mention the Board’s breach of

fiduciary duty to all homeowners to act reasonably and fairly

pursuant to the ruling of the court in the case of Wolinski v.

Kadison cited hereunder.

The petitioner’s isolated defaults turned insignificant when

compared to the Board’s insidious breach of fiduciary duty, and

their minor defaults became negligible compared to the

disastrous consequences of selective enforcement practices. The

Board’s timidity in effectively enforcing fifty-one existing and

pre-existing violations of the Declaration it was required to do

under Article TV section 4.02 and its temerity in effectively

enforcing the petitioner’s minor defaults under the same section

are boarded major defaults bordering on breach of fiduciary duty

and selective enforcement practices which are a deadly

combination of business mixed with pleasure. There is nothing

in the resolution, nothing in the governing documents of the

respondent in which any and all homeowners can successfully

hold the respondent liable to pay fines and penalties for its

defaults. And there is nothing in the governing documents

showing that the respondent’s Board of Directors can be held

liable to pay the costs of litigation and attorneys fees for breach

of fiduciary duty or violations of contractual obligations of the

respondent.

ll

The arnount of $53,570.30 in attorneys fees and costs is a

huge amount to be considered “reasonable” under Article IV

section 4.03 of the Declaration of Covenants. This amount could

hardly be justified as a “fair share” of a single homeowner in

the common expense provisions of section 4.02. What is

reasonable under section 4.03 must have been understood by

the Board to mean “unconscionable” on account of its resolution

requiring the petitioners to pay all attorneys fees, win or lose, as

a punitive measure in suing the respondent. For the Board to

make a holy cow of the respondent does not measure up to the

word “reasonable.” The Appellate Court’s conclusion that the

resolution was within the Board’s power, and that the Board

acted within its authority in adopting the resolution had no basis

in fact and in law.

Absent a contractual or statutory basis for liability to pay

attorneys fees and costs, the respondent saw a need to create a

basis for liability through board resolution. No where in the

entire proceedings of the trial court did the judge mention the

words “board resolution.” The attorney for the respondent, who

prepared the draft of the May 10, 2005 Order of the trial court,

saw an opportunity to edit the Order to fit his ends. Item 1 of

the May 10, 2005 Order reads in part: “That Atanacio Sambrano

and Cathleen Sambrano xxx are bound by xxx board resolutions.”

The attorney for the respondent furtively inserted the two words

“board resolutions” to give imprimatur of judicial authority that

laid the predicate for the resolution to justify his post-judgment

petition for attorneys fees and costs. Manufactured evidence

admitted into evidence through sneaky legal engineering tainted

the award of attorneys fees. The attorney for the respondent has

yet to show that he petitioned the court for attorneys fees and

costs with clean hands.

12

The general rule in Illinois provides that a party is not

entitled to recover attorneys fees unless an award is provided

for by statute or an agreement of parties. (Amoco Realty

Company v. Montalbano, 133 Ill. App. 3d 327, 334, 478 N.E.

2d 860, 865 (2™ Dist. 1985)). Absent statute or contractual

agreement, attorneys fees, ordinary expenses and burdens of

litigation are not recoverable costs to the prevailing party.

(Galowich v. Beech Aircraft Corp., 92 Ill. App. 2d 157, 166, 65

Ill. Dec. 405, 409, 441 N.E. 2d 318, 322 (1982)). Attorneys

fees are not taxable costs absent a contractual agreement.

(Johnston v. Suckow, 55 Ill. App. 3% 277, 280 12 Ill. Dec. 846,

849, 370 N.E. 2d 650, 653 (S5® Dist. 1977)). Ordinary litigation

expenses (Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516,

525, 208 Ill. Dec. 853, 860 650 N.E. 2d 547, 554 (1* Dist. 1995)),

attorneys fees and trial preparation costs are generally not

recoverable by the prevailing party absent statutory provision.

(State Farm Fire and Cas. Co. v. Miller Elec. Co., 231 Lil. App.

3d 355, 358, 172 Ill Dec. 890, 892 596 N.E. 2d 169, 171 (2d

Dist. 1992)). The Board has a fiduciary duty to all homeowners

to act reasonably and fairly. (Wolinski v. Kadison, 114 Ill. App.

3d 527, 535, 449 N.E. 2d 151, 157 (1* Dist. 1983)). The

respondent must be objective, even-handed and non-

discriminatory and must apply its rules uniformly. (Board of

Directors of 175 East Delaware Place Homeowners Assn. v.

Hinojosa 287 Ll. App. 3d at 890).

Il. Pool Barriers

This question presented for review is one in which

compliance of Village pool barrier requirements constitutes non-

compliance of respondent’s fencing restrictions. Compliance

of respondent’s fencing restrictions constitutes non-compliance

of Village pool barrier requirements. The Village barrier

requirements under section 421.10.1 are not only in conflict with

Article VI section 6.02(d) fencing restrictions of respondent’s

13

2

Declaration of Covenants but are also more stringent than the

fencing regulations of the respondent.

There is no question that the in-ground pool barriers installed

around the petitioner’s pool did not conform to the fencing

regulations of the respondent under Article VI section 6.02(d)

and are in violation of said section. We contend that in light of

the interpretation of the sections of Article VI of the Declaration

of Covenants, one can readily reach a conclusion that there was

no valid reason for the trial court to enjoin the petitioners to

remove their Village-conforming pool barrier in its May 10, 2005

order.

Violation of Article VI section 6.02(d) cannot justify the

Appellate Court’s Rule 23 Order dated July 14, 2006 affirming

the trial court’s order. There was error of judgment on a question

of law in resolving this matter in favor of the respondent by

both the trial court and the Appellate Court who failed to take

into account Article VI section 6.04 of the respondent’s

Declaration of Covenants which is as much an important part of

the contract which is the law between the parties. Article VI

section 6.04 provides: “In the event any ordinances of the Village

of Lindenhurst are more stringent xxx or if any such ordinances

conflict with any of the provisions hereof, the ordinances of the

Village shall prevail and control.” Reading both Article VI

section 6.02(d) and section 421.10.1 of the BOCA Code would

suggest a foregone conclusion that the latter is more stringent

and in conflict with the former. And therefore the primacy of

the Village ordinance, pursuant to Article VI section 6.04, should

have been upheld.

The petitioners were brought to court by the respondent for

enclosing their pool with fencing in violation of Article VI section

6.02(d). They were also brought to court on May 24, 2006 by

14

the Village of Lindenhurst in General Case Number 060V3794

for alleged violation of section 421.10.1 of the Boca National

Building Code of 1996, caused by the respondent’s removal of

their BOCA-conforming barriers in compliance with the May

10, 2005 injunction of the trial court.

Whose barrier/fencing regulation must be recognized or be

followed in the event of conflict was a question of law the court

may not answer as a matter of discretion. It was a question of

law that was authoritatively answered by Article VI section 6.04

of the respondent’s Declaration of Covenants expressly providing

for primacy of Village ordinances. There is no room for

interpretation for the provisions in question are plain and are

free of any doubt. The intention of the parties expressed in the

contract had been thwarted by an incorrect interpretation dealing

with questions of law.

The primacy of the Village ordinance was strengthened by

the respondent itself when on January 7, 2000 its agent, Allan J.

Kalman, wrote a letter addressed to the petitioners stating: “The

fence style of the respondent’s Reference Guide xxx refers to

normal fencing which means perimeter fencing. xxx Fences

enclosing pools only is a Village requirement, not an Association

requirement. xxx The pool enclosure issue is a Village issue.”

Until a writ of certiorari is granted by this Court, an until

this Court sets aside the July 14, 2006 Rule 23 Order of the

Illinois Appellate Court affirming the trial court’s May 10, 2005

injunction order, the petitioners will always be defendants in

actions by the Village or defendants in actions by the respondent

simply because the state court’s decisions on this fencing issue

overruled the Village primacy provisions in Article VI section

6.04 of the respondent’s Declaration of Covenants.

15

These considerations merit the granting of a writ of certiorari

to right the wrongs committed in the proceedings of the lower

courts and it is in the highest public interest to resolve the

question of attorneys fees and costs by resolution to set a

precedent for state courts in deciding similar cases uniformly.

Respectfully submitted,

Atanacio AY, mean

pease

pae_A127| n7

16

APPENDIX

¢ Appendix D— October 17, 2005 Order of the Trial Coutrt........... A-22

¢ Appendix E — November 29, 2006 letter of denial of.......A-23

Petition for Leave to Appeal by Illinois Supreme Court

¢ Appendix F— Board Resolution, dated December 13, 2000,.... A-24

authorizing attorneys fees by resolution

¢ Appendix G — Article VII of the By-Laws on the powers...A-26

and duties of the Board of Directors

¢ Appendix H — Section421.10.1 of the BOCA National.... A-28

Building Code of 1996

¢ Appendix I— Article VIII of the Declaration.................. A-31

of Covenants dealing with amendments

¢ Appendix J— Violation charge by the Village of ........ A-32

Lindenhurst regarding Section 421.10.1 of the BOCA code

17

This Order Is Not No. 2-05-1102 FILED- JUL 14 2006

Precedential APPELLATE COURT

And Is Not To Be Cited 2% DISTRICT

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

ATANACIO G. SAMBRANO and ) Appeal from the

Circuit Court

CATHLEEN R. SAMBRANO, ) of Lake County

)

Plaintiffs and Counterdefendants- )

Appellants, )

)

v. ) No.00-CH-981

)

HERITAGE TRAILS HOMEOWNERS )

ASSOCIATION, )

) Honorable

Defendant and Counterplainuff- ) David M. Hall,

Appellee ) Judge, Presiding

RULE 23 ORDER

The plaintiffs, Atanacio G. Sambrano and Cathleen R.

Sambrano, appeal from a judgment of the circuit court of Lake

County entered on the counterclaim of the defendant, the

Heritage Trails Homeowners Association (Association).

Among other things, the trial court ordered the Sambranos to

A-]

either remove a swimming pool from their property or enclose

the pool with a fence in compliance with the Association’s

governing documents. The judgment also awarded attorney fees

to the Association. We affirm.

Heritage Trails is a residential subdivision in the Village of

Lindenhurst (Village) that was developed by Westfield Homes

of Illinois, Inc, (the Developer).' The Association is a not-for-

profit corporation established for various purposes, including

the administration of architectural control over the subdivision

and the maintenance of the subdivision’s common areas. In

March 1995, the Developer executed a declaration of covenants,

conditions, restrictions, and easements (Declaration). Under the

Declaration, the Developer retained the right to select the

members of the Association’s Board of Directors (Board) until

the so-called “Turnover Date,” defined as the earlier of the date

when all lots in the subdivision were sold or the date on which

the Developer gave written notice of its election to terminate its

control. After the Turnover Date, homeowners would be entitled

to elect the Board.

The Declaration also established an Architectural Review

Committee (ARC) to advise the Board about proposals by

homeowners for improvements on their properties. With some

exceptions, homeowners must secure approval from the Board

before constructing outdoor improvements. The approval

process entails submitting construction plans to the ARC, which

then reviews the plans and recommends that the Board either

approve or disapprove them. The ARC may base its

recommendation on aesthetic consideration, the proposed

improvement’s suitability to its surroundings, and the effect of

the proposed improvement on the view from adjacent or

neighboring properties. The Declaration provides that, prior to

' Another developer, Ryland Homes, also participated in the development

of the subdivision.

A-2

the Turnover Date, the Developer is the sole member of the ARC

unless the Developer designates additional members. After the

Turnover Date, the ARC was to consist of three members

appointed by the Board.

The Declaration’s architectural controls include restrictions

on the type of fencing that may be constructed on a home site.

Section 6.02(d) of the Declaration states that “(t]he only type of

fencing allowed,*** shall be 5 foot board on board type fencing

constructed of cedar with at least 30% of the fence surface area

consisting of open air.” Section 6.03(a) provides, in pertinent

part, that “[njo*** chain-link or metal fences *** shall be

erected, constructed or placed” on any property in Heritage

Trails. Areference guide prepared for homeowners by the ARC

explains that only “Shadow Box Style” fencing will be permitted.

Section 6.04 of the Declaration provides that “‘[iJn the event any

ordinances of the Village of Lindenhurst are more stringent, or

if any such ordinances *** conflict with any of the provisions

hereof, the ordinances of the Village *** shall prevail and

control.” In addition, section 8.07 of the Declaration provides

that “[t]he failure by the Association*** to enforce any covenants

or restriction herein contained shall in no event be deemed a

waiver of the right to do so thereafter.”

The Sambranos own a home situated on lot 43 in the

subdivision. The recorded plat of the subdivision shows that

the Sambranos’ lot backs up against outlot 255, which the

Declaration designates to be a common area. A pond that

functions as a storm water management facility is located on

outlot 255, but the waterline is not on the border with lot 43.

Rather, there is dry land between the pond and the boundary

line for lot 43.

On November 18, 1999, the Sambranos submitted plans for

an in-ground swimming pool, surrounded by a wrought iron

fence enclosing the pool, a wooden perimeter fence, a concrete

deck, a wooden deck, and an additional driveway composed of

crushed stone. The Association advised the Sambranos that,

under the Declaration, the wood and concrete decks were

excepted from the approval process. However, the Association

refused the Sambranos’ request to build a crushed stone driveway

and a wrought iron fence. Noting that the Declaration permitted

only wooden fencing, the Association asked the Sambranos to

resubmit their plans with the appropriate type of fencing. The

Association also noted that the Sambranos could submit plans

for a paved driveway, but that the ARC had some concerns that

the proposed driveway was too close to a neighboring property.

The Association approved installation of a swimming pool,

provided that the matter of a proper enclosure was resolved.

The Sambranos did not revise and resubmit their construction

plans. Instead they proceeded with construction of the

unapproved driveway, swimming pool, and wrought iron fence.

During the construction of the swimming pool, dirt was dumped

in the common area between the Sambranos’ property and the

pond. The Association sent the Sambranos written notice that

they were in violation of the Declaration. After the pool was

completed, the dirt was removed from the common area.

However, the Sambranos landscaped the common area with trees,

and other plants. The Sambranos also cut down cattails growing

at the edge of the pond. The cattails and other natural vegetation

around the pond helped to preserve the water quality. Indeed,

the Board had previously debated whether to beautify the pond

by removing the cattails and had decided not to do so. In June

2000, the Association’s attorney wrote to Mr. Sambrano

demanding, inter alia, that the landscaping on the common area,

the swimming pool, and the fence be removed. The Sambranos

did not comply, and on July 28, 2000, the Association’s attomey

A4

wrote to the Sambranos to advise them that on August 22, 2000,

the Board would conduct a violation hearing to determine

whether to fine the Sambranos for their infractions.

On August 18, 2000, the Sambranos filed a complaint seeking

to enjoin the Association from conducting the violation hearing.

The trial court refused to grant an injunction, and a violation

hearing took place on September 19, 2000. Neither the

Sambranos nor their attorney attended the hearing. The Board

voted to assess the Sambranos $10 per day for each of five

separate violations unless the violations were remedied within

two weeks from September 27, 2000. On December 13, 2000,

the Board approved a resolution providing, in pertinent part, as

follows:

“All reasonable attorneys’ fees incurred by the Association

arising out of a default by any homeowner *** in the performance

of any provisions of the governing documents of the Association,

Rules and Regulations, or any applicable statute or ordinance,

including, but not limited to the collection of assessments and

fines, enforcing the covenants, By-Laws and Rules and

Regulations or representing the Association relative to actions

brought or threatened to be brought against it by homeowner

shall be added to and deemed a part of said homeowner’s

respective share of the common expense.”

Shortly thereafter, the Association filed a counterclaim for

preliminary injunctive relief. The Association subsequently filed

an amended counterclaim seeking a permanent injunction against

the Sambranos’ violations and ordering them to remove the

unapproved driveway and fence and to restore the common area

behind their home to its proper condition. In addition, the

Association sought an order compelling the Sambranos to pay

the accumulated assessments arising from their violations and

to pay the Association’s attorney fees. The Sambranos raised

A-5

several affirmative defenses including a defense of waiver based

on the Association’s alleged failure to enforce the fencing

restriction against other homeowners with nonconforming

fences. The Sambranos also asserted, as an affirmative defense,

that the fencing restriction conflicted with the Lindenhurst

Building Code, which permitted pool enclosure fences with

vertical members spaces up to 4 inches apart and which permitted

the use of materials other than wood. On the Association’s

motion, the trial court struck the latter affirmative defense.

On September 5, 2002, the trial court dismissed the

Sambranovs’ complaint. The court later entered partial summary

judgment for the Association, ruling that, pursuant to the Board’s

December 13, 2000, resolution, the Association would be entitled

to an award of attorney fees if it prevailed on its counterclaim.

The matter ultimately proceeded to a bench trial on the

counterclaim. In addition to presenting evidence concerning

the violations on the Sambranos’ property, the Association

introduced evidence to refute the Sambranos’ affirmative defense

of waiver. According to the testimony of the Association’s

witnesses, there had been other instances in which homeowners

erected fences that did not comply with the Association’s

governing documents. In most of the cases, the Association had

demanded that the homeowner correct the problem and the

homeowner had voluntarily complied. At the time of trial,

however, there were three nonconforming fences in Heritage

Trails in addition to the Sambranos’. One homeowner on a comer

lot had a split rail fence; a Village ordinance precluded the

construction of a shadow box fence because it would impede

visibility and create a potential traffic hazard. Another

homeowner had a four-foot high picket fence that had been

approved by the Developer prior to the Turnover Date. A third

homeowner was using chicken wire to fence off a vegetable

A-6

garden. The Association had issued a violation notice and had

levied a $10-per-day assessment for the violation.

Peter Chiappori, the Village’s chief building inspector,

testified without objection that he had reviewed the Declaration’s

requirements for fencing and that a swimming pool enclosure

could be constructed that complied with those requirements and

also satisfied the requirements set forth in the Building Officials

and Code Administrators’ (BOCA) National Building Code

(1996 Edition), which the Village had adopted by ordinance (see

Lindenhurst Village Code §150.01 (amended March 9, 1998).

According to Chiappori, several Heritage Trails owners had in

fact built swimming pool enclosures that conformed to both the

Village’s requirements and the Association’s.

The bench trial concluded on April 6, 2005. On May 10,

2005, the trial court entered a written order (1) enjoining the

Sambranos from interfering with the right of the Association to

maintain outlot 255 or the use and enjoyment of outlot 255 by

other homeowners; (2) ordering the Sambranos to remove the

wrought iron fence; (3) ordering the Sambranos to either remove

the swimming pool or construct a fence conforming to the

Association’s rules; and (4) authorizing the Association to restore

outlot 255 to its proper condition at the Sambranos’ expense.

The trial court continued the matter for a hearing to determine

attorney fees and how much to fine the Sambranos for their

violations. On May 16, 2005, the Sambranos filed a notice of

appeal. This court dismissed the appeal for lack of jurisdiction

on the basis that the May 10, 2005, order was not a final

judgment. Heritage Trails Homeowners Ass'n v. Sambrano, No.

2-05-0489 (2006) (unpublished order under Supreme Court Rule

23).

On October 17, 2005, the trial court entered an order awarding

the Association attorney fees and costs in the amount of

A-7

$53,570.30. The trial court also gave the Association leave to

withdraw, without prejudice, its claim for penalties. This appeal

followed.

The Sambranos first argue that they were entitled to construct

a wrought iron enclosure for their pool because it is permissible

under the Village’s building code. According to the Sambranos,

the building code controls over the Declaration. That is true,

however, only when the building code is more stringent than, or

is in conflict with, the Declaration. That is not the case here. As

noted, the Association presented uncontradicted evidence, with

no objection from the Sambranos, that it is possible to build a

wooden pool enclosure that complies both with the Village’s

ordinances and with the Declaration.

The Sambranos also argue that there is a discrepancy between

the Declaration and the homeowners’ reference guide issued by

the ARC. They contend that the Declaration specifically

prohibits metal fences, while the reference guide makes no

reference to metal fences. The argument in unpersuasive. The

reference guide indicates that cedar is the only material that may

used for fencing; thus the reference guide cannot be interpreted

as permitting metal fencing.

According to the Sambranos, the Association is guilty of

selective enforcement of the restrictions set forth in the

Declaration. A party that selectively enforces a particular deed

restriction or restrictive covenant may be found to have waived

that restriction or covenant. See, e.g., VandeLogt v. Brach, 325

fll App. 3d 847, 854 (2001) (“Where there has been acquiescence

in prior violations of a particular restriction, the plaintiff’s

acquiescence will result in the waiver of any right to enforce the

restriction”). However, minor violations do not preclude

subsequent enforcement of the covenant. VandeLogt, 325 Il.

App. 3d at 855. Moreover, courts have generally concluded

A-8

that waiver occurs only after there has been acquiescence in

multiple violations. Knolls Association v. Hinton, 71 Ill App.

3d 205, 209 (1979). Here, the record shows that the Association

was generally vigilant in enforcing the restrictions set forth in

the Declaration. Although it is true that the Board permitted a

split rail fence on a corner lot, that fence was excepted from the

requirements of the Declaration because it was subject to the

more stringent requirements of a Village ordinance. Otherwise,

the record shows that the Association permitted only a single

nonconforming fence to be maintained-a four-foot picket fence

approved by the Developer. This single violation is insufficient

to give rise to a waiver. Moreover, the Declaration expressly

provides that the failure to enforce any covenant or restriction

shall not be deemed a waiver of the covenant or restriction.

The next issue is whether the trial court properly awarded

attorneys fees to the Association. Although not a model of clarity,

the Sambranos’ argument appears to based, in part, on the

premise that the Board exceeded its authority in adopting a

resolution permitting it to collect attorneys fees, and that’the

resolution was tantamount to an amendment of the Declaration.

The Association argues that the resolution is a proper exercise

of the Board’s power under the Declaration. A homeowners,

association may recover attorney fees for enforcing a restrictive

covenant where the instrument creating the restriction so

provides. See, e.g., Forest Glen Community Homeowners Ass’n

v. Bishof, 321 Il. App. 3d 298, 305 (2001); Amoco Realty Co.

v. Montalbano, 133 Ill. App. 3d 327, 334-35 (1985).

Additionally, statues in some states may give rise to the right to

recover attorneys fees. See, e.g., Va. Code Ann. §55-515 (West

____). Our research has uncovered no cases in this state or

elsewhere in which a homeowners’ association was permitted

to recover attorney fees based solely on a resolution. In at least

one case, it was held that such a resolution was outside the scope

A-9

of a provision in a declaration of covenants, conditions, and

restrictions authorizing enforcement of the by any proceedings

at law or in equity. lly ll Homeown

Ass’n, 152 Md. App. 139, 150, 331 A.2d 465, 471 (2002). We

conclude, however, that the Board acted within its authority in

adopting the resolution. Article IV of the Declaration governs

the Association’s right to levy assessments on the homeowners.

Section 4.01 provides that each owner of a lot “by acceptance

of a deed therefore, *** shall be and is deemed to covenant and

hereby agrees to pay to the Association such assessments as are

levied pursuant to the provisions of this Declaration.” Under

section 4.02 of the Declaration,“assessments may be levied for

the purpose of paying *** contractual expenses of administering

the Association and enforcing the provisions of this Declaration,

including without limitation, *** fees of attorneys.” Finally,

section 4.03 of the Declaration provides that “[t}he sums required

to pay the costs described in Section 4.02 above shall be allocated

equally among all the Lots or in such other reasonable manner

as the Board may determine.” (Emphasis added.) Here, the

resolution determined that the cost of legal representation to

enforce the Declaration should be borne by the homeowner

whose violation made it necessary for the Association to obtain

counsel. It is reasonable to allocate the cost of legal

representation in this manner. Accordingly, the resolution is

within the Board’s power under Section 4.03.

The Sambranos complain that the resolution is “persecutory”

because “it impose[s] a burden on the homeowners to pay for

attorney’s fees regardless of which side of the litigation the

[Association] finds itself [sic].” It is true that the resolution

permits the Association to collect attorney fees for actions it

defends as well as those it prosecutes. But in any such case, the

action must arise from a default by the homeowner in the

performance of its obligations. Thus, there is no liability for

attorney fees absent blameworthy conduct.

A-10

The Sambranos complain that the resolution is “persecutory”

because “it impose[s] a burden on the homeowners to pay for

attorney’s fees regardless of which side of the litigation the

{Association} finds itself [sic].” It is true that the resolution

permits the Association to collect attorney fees for actions it

defends as well as those it prosecutes. But in any such case, the

action must arise from a default by the homeowner in the

performance of its obligations. Thus, there is no liability for

attorney fees absent blameworthy conduct.

The Sarnbranos also argue that it is unfair to hold them liable

for attorney fees when Heritage Trails’ governing documents

did not provide for such liability at the time of the alleged

violations. The Sambranos argue that it would be “equitably

unfair” to apply the resolution retroactively. We disagree. We

note that a homeowners association is not invariably forbidden

from modifying rules applicable to existing uses of property.

See Crest Builders, Inc. v. Willow Fall Improvement Ass’n, 74

Ill. App. 3d 420 (1979) (developer had no vested right to continue

posting advertising signs on property after homeowners assumed

control of the homeowners association and voted to prohibit

such advertising). Moreover, any unfairness is significantly

ameliorated because the Association has sought attorney fees

incurred only after the resolution was adopted. At that point,

the Sambranos were on notice that contesting the Association’s

counterclaim exposed them to possible liability for the

Association’s attorney fees. In addition, to the extent the

Sambranos are seeking to invoke the court’s equitable powers,

the maxim that “he who seeks equity must do equity” (Sidwell

v. Sidwell, 102 Ill. App. 3d 56, 59 (1981) is applicable. Here,

by flouting the requirements of the Declaration, the Sambranos

have failed to do equity.

A-I1

The Sambranos’ remaining arguments require only brief

discussion. First, the Sambranos argue that the Developer

conveyed outlot 255 to them. Suffice it to say that there is nothing

in the record support this assertion, the plat of the subdivision

shows that their lot does not extend to the waterline of the pond.

Second, the Sambranos complain that the violation notices

introduced into evidence by the Association were copies that

had been altered and that contained handwriting that did not

appear on the original notices they received. However, they fail

to explain how the alleged alterations are of any significance to

the outcome of the case. Third, the Sambranos assert that the

trial court’s written order of May 10, 2005, drafted by the

Association’s counsel, contains certain language that is different

from the trial court’s ruling. We find that the additional language

is consistent with the oral ruling and is not erroneous. Fourth,

the Sambranos contend that another Heritage Trails homeowner

had submitted a request for approval of an improvement prior

to the date the homeowner purchased the property. In support

of the contention, the Sambranos cite an exhibit which is not

part of the record. Matters outside the record cannot be

considered on appeal. Skrypek v. Mazzocchi, 227 Ill. App. 3d

1,4 (1992). In any event, it not at al] clear what significance

this discrepancy has to this case. Finally, the Sambranos accuse

the Association of discriminating against them on the basis of

their race or national origin. There is simply no evidence in the

record whatsoever to support the charge.

For the foregoing reasons, the judgment of the circuit court

of Lake County is affirmed.

Affirmed.

GILLERAN JOHNSON, J., with BYRNE and KAPALA, JJ.,

concurring.

A-12

This Order Is Not No. 2-05-0489 FILED- JAN 26 2006

Precedential And APPELLATE COURT

Is Not To Be Cited 204 DISTRICT

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

HERITAGE TRAILS HOMEOWNERS ) Appeal from the Circuit

Court

ASSOCIATION, an Illinois not for profit, ) of Lake County

Corporation )

Plaintiff- Appellee )

)

v. ) No.00-CH-981

)

ATANACIO SAMBRANO and )

CATHLEEN SAMBRANO, ) Honorable

) David M. Hall

Defendants- Appellants ) Judge, Presiding

RULE 23 ORDER

The defendants, Atanacio Sambrano and Cathleen Sambrano,

appeal, pro se, from the May 10, 2005, order of the circuit court

of Lake County finding them in violation of various rules of the

plaintiff, the Heritage Trails Homeowners Association, and

ordering them to remedy those violations. The trial court also

found that the defendants were required to pay certain fines and

A-13

the plaintiff’s attorney fees, but reserved determining how much

the defendants would be obligated to pay until it conducted a

hearing on that issue. On May 16, 2005, the defendants filed a

notice of appeal. Because the order the defendants are appealing

from is a non-final order, we dismiss this appeal for lack of

jurisdiction.

The instant controversy arose after the defendant installed

an in-ground swimming pool on their property without the

approval of their Homeowners Association, the plaintiff. The

defendants also installed a wrought-iron fence, a crushed stone

driveway, and cut down vegetation and planted trees in acommon

area. All of this was done without the plaintiff’s approval.

Pursuant to the provisions of the Homeowners Association’s

agreement, if a member violated the rules of the agreement, that

member would be subject to per diem fines and penalties and

would obligated to pay the plaintiff’s attorney fees incurred in

enforcing its rules.

On April 6, 2005, following a trial and nearly five years of

litigation, the trial court orally found that the defendants had

violate the Homeowners Association’s agreement by installing

a wrought-iron fence and an in-ground swimming pool and using

common area without the plaintiff’s approval. The trial court

found that the plaintiff had the right to remove all the

improvements the defendants had made to common area. The

trial court ordered that the defendants remove their fence within

45 days. The trial court also ordered that the defendants were to

remove their swimming pool or to construct a fence that was in

conformance with the plaintiff’s rules and the ordinances of

Lindenhurst.

The trial court additionally found that the plaintiff was entitled

to its attorney fees for its seeking to have the defendants comply

with the rules of the Homeowners Association. The trial court

A-14

further found that the plaintiff was entitled to fines for the

defendants’ violations of the Homeowners Association rules. The

trial court explained that it would continue the matter for further

hearing to determine the amount of attorney fees and fines that

it would order the defendants to pay the plaintiff. The trial court

explained that its order was “a final one in this stage of the

proceeding.” However, because it was continuing the matter

for a hearing on the attorneys fees, the trial court explained that

its order was not “a final order that would trigger a deadline for

filing an appeal.” In entering its order, the trial court did not

enter any findings pursuant to Supreme Court Rule 304(a)

(Official Reports Advance Sheet No. 22 (October 26, 2005),

effective January |, 2006).

On May 10, 2005, the trial court entered a written order

consistent with its oral findings. On May 16, 2005, the

defendants filed a notice of appeal.

Before addressing the merits of the defendants’ appeal, we

first consider our jurisdiction to consider the defendants’ appeal.

See Revolution Portfolio, LLC v. Beale, 341 Ill. App. 3d 1021,

1024-25 (2003) (reviewing court has a duty to consider sua

sponte its jurisdiction and to dismiss an appeal if jurisdiction is

wanting). For this court to have jurisdiction, the order of the

trial court must be a final order unless it comes within the

exceptions set forth by the Supreme Court Rules. Pottorf v.

Clark, 134 Ill. App. 3d 349, 351 (1985). A final order terminates

the litigation on the merits and settles all rights and obligations

of the parties without leaving any matters of substantial

controversy for subsequent resolution. Lincoln Towers Insurance

Agency, Inc. v. Boozell, 291 Ill. App. 3d 965, 968 (1997). A

claim for attorney fees must be resolved before appellate

jurisdiction attaches unless the claim is collateral to the

A-15

underlying action. Cannon v. William Chevrolet/GEO, Inc., 341

Ill. App. 3d 674, 679 (2003).

Here, we do not believe that the order the defendants are

appealing from is a final appealable order. The order did not

settle all the substantial matters between the parties as it left

open the issue of the amount of fines and attorneys fees that the

defendant would be required to pay. The trial court specifically

held that the defendants would be obligated to pay attorney fees

and fines, but reserved determining how much the defendants

would be obligated to pay until it conducted a hearing on those

issues. The trial court also specifically informed the parties that

its order was not final for appeal purposes.

Moreover, the issue of attorney fees was not collateral to the

underlying action. The plaintiff’s action against the defendants

was based on the defendants violating the Homeowners

Association agreement. This agreement included provisions

requiring the payment of fines and the plaintiff’s attorney fees

if a member violated the agreement. The plaintiff requested its

attorney fees and fines from nearly the outset of the litigation.

Thus, the issue of the attorney fees was concomitant with the

underlying action. Therefore, any judgment entered in the case

before the claim for fees was ruled upon was nonfinal and

nonappealable. Cannon, 341 Ill. App. 3d at 679. Because the

order the defendants are appealing from is not final, we lack

jurisdiction to consider the merits of their appeal. See Pottorf,

134 Ill. App. 3d at 351.

For the foregoing reasons, we dismiss the defendants’ appeal.

Appeal dismissed.

GILLERAN JOHNSON, J., with BYRNE and KAPALA, JJ.,

concurring.

A-16

IN THE CIRCUIT COURT OF THE NINETEENTH CIRCUIT

LAKE COUNTY, ILLINOIS

FILED- MAY 10 2005

CIRCUIT CLERK

“s/Sally D. Coffelt”

HERITAGE TRAILS HOMEOWNERS )

ASSOCIATION, an Illinois not for )

profit corporation ) No.00CH 981

Plaintiff

V. Judge Hall

ATANACIO SAMBRANO and CATHLEEN

SAMBRANO,

Defendants,

ORDER

This matter coming to be heard for Trial, the Court having heard

evidence, and after fully considering the evidence and arguments

presented, the Court rules as follows and as per its Oral Ruling

in open Court on April 6, 2005:

1. That Atanacio Sambrano’s and Cathleen Sambrano’s

(hereinafter the “Sambrano’s”) property (Lot 43, 532 N. Madison

Lane, Lindenhurst, IL) and the Sambranos, as members of the

Heritage Trails Homeowners Association (hereinafter the

Association’), are bound by the terms of the Declaration, By-

Laws, Rules and Regulations and Board Resolutions;

2. That by constructing their wrought-iron fence and

additional crushed stone driveway in contravention of the

Association’s Architectural Review Board, and by using the

common area identified as Outlot 255 to deposit fill, removing

A-17

cattail and other natural vegetation there from and by planting

trees and other plant material thereon, the Sambranos have

violated the Declaration and By-Laws, Rules and Regulations,

and continue to violate the Declaration and By-Laws, Rules and

Regulations, as long as the offending fence and appropriation

of the common area continue;

3. That by paving the additional drive way, the Sambranos

have complied with the terms of the Association’s Declaration,

By-Laws, Rules and Regulations;

4. That by installing and constructing the in-ground

swimming pool on their property without ‘receiving approval

from the Association and the Architectural Review Board, the

Sambranos are in violation of the Association’s Declaration, By-

Laws and Rules and Regulations;

5. That the Association shall be awarded its reasonable

attorney’s fees and costs, to be determined at a hearing on these

issues;

6. That the amount of the Association’s per diem fines and

penalties against the Sambranos will be determined at a hearing

on this issue;

7. That Atanacio Sambrano and Cathleen Sambranos are

permanently enjoined from continuing to violate the

Association’s Declaration, By-Laws and Rules and Regulations;

8. That the Sambranos do not have any ownership interest

in the property between their lot line and the edge of the pond

on Outlot 255, except for those interests as members the

Association who own a proportionate share of all of the

Association’s Common Elements;

9. That the Sambranos are permanently enjoined from in

any way interfering with the Association’s right to maintain,

repair, use, enter upon otherwise be in control of the property

between their lot line and the edge of the pond on Outlot 255;

10. That the Sambranos are permanently enjoined from in

any way interfering or preventing each Owner (as defined in the

A-18

Heritage Trails Declaration) or member of employees from using

and enjoying the Outlot 255, and specifically the property

between the Sambranos lot line and the edge of the pond on

Outlot 255;

11. That the Association has the right to remove the

improvements installed on the property between the Sambranos

lot line and the edge of the pond on Outlot 255 and the

Association has the right to restore said area in their discretion.

The Association will petition the Court for a determination of

the reasonable costs of removing the improvements and restoring

said property, and the Sambranos will be ordered to pay those

amounts to be determined by this Court;

12. That the Sambranos are ordered to either remove the

wrought iron metal fence constructed around their in-ground

swimming pool by May 22, 2005, which is 45 days after April

6, 2005;

13. That the Sambranos are ordered to either remove the in-

ground swimming pool on their property or construct a fence

which conforms to the rules of the Association and the

Lindenhurst Village ordinances. The Sambranos are further order

to submit to the Architectural Review Board for the Association

a request for either the removal of the in-ground swimming pool

on their property or the construction of a fence which conforms

to the rules and regulations of the Association and the

Lindenhurst Village ordinances by May 22, 2005, which is 45

days after April 6, 2005;

14. That the Association shall have until June 1, 2005 to

file its Petition For Attorney’s Fees and Petition for Fines to Be

Imposed. The Sambranos shall have until June_22_to respond

thereto. Hearing on Plaintiff’s Petition is set for _July 7, 2005

at 1:45 p.m.

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Prepared by:

Jason E. Orth (#06304256)

KOVITZ SHIFRIN NESBIT

750 Lake Cook Rd/#350

Buffalo Grove, IL 60089

(847) 537-0500

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ENTERED

“‘s/ David M. Hall”

Judge

STATE OF ILLINOIS ) FILED- OCT 17 2005

) ss CIRCUIT CLERK

COUNTY OF LAKE ) “s/Sally D. Coffelt”

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL

CIRCUIT

LAKE COUNTY, ILLINOIS

. _Hentage Trails )

Homeowners Assoc, )

) Gen. No. 00 CH 981

VS )

)

Atanacio Sambrano and __ )

Cathleen Sambrano )

ORDER

This matter coming to be heard for hearing on Plaintiff’s First

Interim Petition For Attorneys Fees and Costs and Expenses,

due notice having been given to all parties, and Plaintiff’s

Counsel and Steve Cipolla appearing, and Atanacio Sambrano

and Cathleen Sambrano not being present in Court and after the

Court Conducted a hearing, heard evidence from Steven Cipolla,

and considered Defendants’ Response to Plaintiff’s Petition it is

hereby ordered that:

1. The Court Finds that the hourly rates charged by Kovitz

Shifrin Nesbit are reasonable, and consistent with the hourly

rates charged by law firms to Associations in the Northern Illinois

area.

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2. The work performed by Kovitz Shifrin Nesbit was

reasonable and necessary.

3. The legal fees and costs incurred by the Association in

this matter are both reasonable and necessary and they are

customary for performance of similar types of tasks in the

Northern Illinois legal Community.

4. That pursuant to this Court’s April 6, 2005 and May 10,

2005 orders, the Association has the right and ability to recover

its attorneys fees and costs from the Sambranos.

5. Judgment is entered in favor of the Association and against

Atanacio Sambrano, Cathleen Sambrano and the premises

commonly known as 532 Madison Lane, Lindenhurst, Illinois

in the amounts of:

A) $48,732,75 in attorney’s fees;

B) $ 4,837.55 in expenses and costs.

6. Plaintiff is given leave to withdraw w/out prejudice its

claim for fines and penalties.

7. This order is enforceable instanter.

Dated at Waukegan, Illinois this ENTER:

17® day of October, 2005. “‘s/ David M. Hall”

Judge

ORDER PREPARED BY: J. Orth/KSN

750 Lake Cook Rd/#350

Buffalo Grove, IL 60089

103228 SUPREME COURT OF ILLINOIS

CLERK OF THE COURT

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

November 29, 2006

Mr. Atanacio G. Sambrano

532 Madison Lane

Lindenhurst, IL 60046

No. 103228 — Atanacio G. Sambrano et al., petitioners, v.

Heritage Trails Homeowners Association,

respondent. Leave to appeal, Appellate Court,

Second District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on January 4, 2007.

RESOLUTION OF THE BOARD OF DIRECTORS

OF THE HERITAGE TRAILS HOMEOWNERS

ASSOCIATION

We, the undersigned, representing a majority of the Directors

of the Heritage Trails Homeowners Association, do hereby adopt

the following Resolution and Rule and Regulation:

WHEREAS, the Heritage Trails Homeowners Association

is empowered to enact Rules and Regulations relative to the

conduct of its members; and

WHEREAS, the Board of Directors of the Heritage Trails

Homeowners Association is charged with the responsibility of

enforcing the aforesaid Rules and Regulations, together with

the Declaration and By-Laws of the Association; and

WHEREAS, it is frequently necessary for the Board of

Directors to utilize the services of legal counsel in order to

facilitate the accomplishment of these tasks and duties; and

WHEREAS, the resulting attorneys’ fees constitute an

additional financial burden upon the resources of the Association;

and

WHEREAS, the Board of Directors of the Heritage Trails

Homeowners Association feel that it is reasonable for the

individual whose conduct, necessitates the utilization of legal

counsel to pay the costs of same;

NOW, THEREFORE, in furtherance of the above-stated

determinations, objectives and goals, the Board, by Resolution,

does hereby adopt the following:

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1. All reasonable attorneys’ fees incurred by the Association

arising out of a default by any homeowner, his tenant, invitee or

guest in the performance of any of the provisions of the governing

documents of the Association, Rules and Regulations, or any

applicable statute or ordinance, including, but not limited to the

collection of assessments and fines, enforcing the covenants,

By-Laws and Rules and Regulations or representing the

Association relative to actions brought or threatened to be

brought against it by the homeowner shall be added to and

deemed a part of said homeowner’s respective share of the

common expense.

BOARD OF DIRECTORS OF THE HERITAGE

TRAILS HOMEOWNERS ASSOCIATION

“‘s/ Sheldon Haltermann’”’, Pres. 12/13

—“s/ Jennifer D. Andrew”, 1 ~ Vice-Pres

“s/ Secretary “— 12/13/00

BY-LAWS ARTICLE VII

EXHIBIT B

Mar 15 1995

POWERS AND DUTIES OF THE BOARD

7.01 POWERS. The Board shall have power to:

(a) Adopt and publish rules and regulations governing the

use, maintenance, repair, reconstruction, conservation and

administration of the Common Area in accordance with all

applicable codes, ordinances and regulations, and to establish

and impose penalties for the infraction thereof, including, but

not limited to, the penalties provided for in subsection (b) hereof:

(b) Suspend the voting rights of a Member for the period

during which any assessment against his Lot remains unpaid

and, after notice and hearing, for a reasonable period not to

exceed sixty (60) days, for any infraction of published rules

and regulations;

(c) Employ such employees as they deem necessary, and to

prescribe their duties;

(d) Procure and maintain policies of public liability

insurance in an amount that the Board in its discretion

determines to be necessary and appropriate; and

(e) Exercise for the Association all other powers, duties

and authority vested in the Association and not reserved to the

membership by other provisions of these By-Laws or the

Declaration.

7.02 DUTIES. It shall be the duty of the Board to:

(a) Cause to be kept a complete record of all its acts and

corporate affairs and to present a statement thereof to the

Members at the annual meeting , or at any special meeting when

such statement is requested in writing by one-fourth (1/4) of

the Members;

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(b) Supervise all officers, agents and employees of the

Association, and see that their duties are properly performed;

(c) As more fully provided in the Declaration, to:

(1) Fix the amount of the annual assessment against each

Lot at least thirty (30) days in advance of each annual assessment

period:

B-5

Document No. 3654002

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BOCA NATIONAL BUILDING CODE/1996

421.10.1 Outdoor private swimming pool: An outdoor private

swimming pool, including an in-ground, above-ground or on-

ground pool, hot tub or spa shall be provided with a barrier

which shall comply with the following.

1. The top of the barrier shall be at least 48 inches (1219

mm) above finished ground level measured on the side of the

barrier which faces away from the swimming pool. The

maximum vertical clearance between finished ground level and

the barrier shall be 2 inches (51 mm) measured on the side of

the barrier which faces away from the swimming pool. Where

the top of the pool structure is above finished ground level,

such as above-ground pool, the barrier shal! be at finished

ground level, such as the pool structure, or shall be mounted on

top of the pool structure. Where the barrier is mounted on the

pool structure, the opening between the top surface of the pool

frame and the bottom of the barrier shall not allow passage of

a 4-inch (102 mm) diameter sphere.

2. Openings in the barrier shall not allow passage of a 4-

inch (102 mm) diameter sphere.

3. Solid barriers shall not contain indentations or

protrusions except for normal construction tolerances and tooled

masonry joints.

4. Where the barrier is composed of horizontal and vertical

members and the distance between the tops of the horizontal

members is less than 45 inches (1143 mm), the horizontal

members shall be located on the swimming pool side of the

fence. Spacing between vertical members shall not exceed 1-3/

4 inches (44 mm) in width. Decorative cutouts shall not exceed

1-3/4 inches (44 mm) in width.

5. Where the barrier is composed of horizontal and vertical

members and the distance between the tops of the horizontal

members is 45 inches (1143 mm) or more, spacing between

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vertical members shall not exceed 4 inches (102 mm). Decorative

cutouts shall not exceed 1/3/4” (44 mm) in width.

6. Maximum mesh size for chain link fences shall be a 1-1/

4 inch (32 mm) square unless the fence is provided with slats

fastened at the top or the bottom which reduce the openings to

not more than 1 -/3/4 inches (44 mm).

7. Where the barrier is composed of diagonal members,

such as a lattice fence, the maximum opening formed by the

diagonal members shall be not more than 1-3/4 inches (44 mm).

8. Access gates shall comply with the requirements of items

] through 7 of Section 421.10.1, and shall be equipped to

accommodate a locking device. Pedestrian access gates shall

open outwards away from the pool and shall be self-closing and

have a self-latching device. Gates other than pedestrian access

gates shall have a self-latching device. Where the release

mechanism of the self-latching device is located less than 54

inches (1372 mm) from the bottom of the gate: (a) the release

mechanism shall be located on the pool side of the gate at least

3 inches (76 mm) below the top of the gate; and (b) the gate and

barrier shall not have an opening greater than 1/2 inch (13 mm)

within 18 inches (457 mm) of the release mechanism.

9. Where a wall of a dwelling unit serves as part of the

barrier and contains a door that provides direct access to the

pool, one of the following shall apply:

9.1 All doors with direct access to the pool through that wall

shall be equipped with an alarm which produces an audible

warning when the door and its screen, if present, are opened.

The audible warning shall commence not more than 7 seconds

after the door and door screen, if present, are opened and shall

sound continuously for a minimum of 30 seconds. The alarm

shall have a minimum sound pressure rating of 85 dBA at 10

feet (3048 rmm) and the sound of the alarm shall be distinctive

from other household sounds such as smoke alarms, telephones

and door bells. The alarm shall automatically reset

A-29

under all conditions. The alarm shall be equipped with manual

means, such as touchpads or switches, to deactivate temporarily

the alarm for a single opening from either direction. Such

deactivation shall last for not more than 15 seconds. The

deactivation touchpads or switches shall be located at least 54

inches (1372 mm) above the threshold of the door.

9.2 All doors with direct access to the pool through that wall

shall be equipped with a self-closing and self-latching device

with the release mechanism located a minimum of 54 inches

(1372 mm) above the floor. Swinging doors shall open away

from the pool area.

9.3 The pool shall be equipped with a power safety cover.

Where in a closed position, the cover shall be capable of holding

a weight of 485 pounds (2157 N), shall not have any openings

that allow passage of a 4-1/2 inch (114 mm) sphere and shall

incorporate a system to drain standing water that collects on the

cover. The cover control switch shall be permanently installed

in accordance with NFPA 70 listed in Chapter 35, and be key-

operated and of a spring loaded or momentary-contact type.

Where the switch is released, the operation of the cover shall

stop instantly and be capable of reversing direction immediately.

The switch shall be in the line of sight of the complete pool

cover.

10. Where an above-ground pool structure is used as a

barrier or where the barrier is mounted on top of the pool

structure, and the means of access is a fixed or removable ladder

or steps, the ladder or steps shall be surrounded by a barrier

which meets the requirements of items | through 9 of Section

421.10.1. Aremovable ladder shall not constitute an acceptable

alternative to enclosure requirements.

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DECLARATION ARTICLE VIII

F NANTS

Mar 15 1995

Miscellaneous

8.01 Severability: Invalidation of all or any portion of any

of the covenants, restrictions, easements, conditions,

reservations, liens and charges imposed by this Declaration, by

legislation, judgment or court order shall in no way affect any

other provisions of this Declaration which shall remain in full

force and effect.

8.02 Amendment: The provisions of this Declaration may

be amended by an instrument executed by not less than seventy-

five percent (75%) of the Members; provided, however, during

such time as the Declarant is an Owner of any Lot, provisions

relating to the rights and obligations of Declarant and Developer

may not be amended without the written consent of Declarant

and Developer. The responsibility for continued maintenance,

operation and preservation of the Common Area shall not be

abrogated by any such amendment. In Addition, any amendment

of any part of Articles Il, VI, or VIE shall require the prior

written approval of the Village.

-14-

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IN THE CIRCUIT COURT OF THE NINETEENTH

JUDICIAL CIRCUIT

LAKE COUNTY, ILLINOIS

VILLAGE OF LINDENHURST

Case. No. 060V3794

FILED- May 24 2005

CIRCUIT CLERK

46 3 It’

OMPL N APPEAR

Complaint and information by PETER CHIAPPORI, the

Building Inspector of the Village of Lindenhurst, hereinafter

called the Complainant, being duly sworn, on oath says that on

or prior to the 12" day of May, 2006, in the Village of

Lindenhurst, Lake County, hereinafter called the Defendant,

committed the following violation:

COUNT |: Failed to construct a barrier around his in-ground

swimming pool in violation of Section 421.10.1 of the BOCA

National Building Code.

THE DEFENDANT MUST APPEAR FOR TRIAL ON THE

ABOVE RECITED VIOLATION ON JUNE 7, 2006 AT 1:30

P.M. AT THE LAKE COUNTY CIRCUIT COURT LOCATED

AT 1792 NICOLE LANE IN ROUND LAKE BEACH,

ILLINOIS.

NOTICE: IF YOU FAIL TO APPEAR IN COURT ON THE

ABOVE DATE ANDTIME, THE VILLAGE WILL REQUEST

THAT THE COURT ISSUE A WARRANT FOR YOUR

ARREST FOR FAILING TO APPEAR PURSUANT TO

THIS COMPLAINT AND NOTICE TO APPEAR.

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Under penalties as provided by law for oral certification

pursuant to Section 1-109 of the Code of Civil Procedure and

perjury pursuant to Section 32-2 of the Criminal Code of 1961,

the undersigned certifies that the statements set forth in this

instrument are true and correct.

“s/ PETER CHIAPPORI’, Complainant

Building Inspector for the

Village of Lindenhurst

2301 East Sand Lake Road

Lindenhurst, Llinois 60046

847-356-8252

“s/Cindy Spangler”

Subscribed and sworn to before me

this 12th day of May, 2006.

NOTARY PUBLIC

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE NINETEENTH

JUDICIAL CIRCUIT

LAKE COUNTY

(Name all parties)

VILLAGE OF LINDENHURST,

No .060V3794

Plainuff

VS.

A a an a

ATANACIO SAMBRANO, )

) Amount Claimed $

Defendant )

SUMMONS

To each defendant:

YOU ARE HEREBY SUMMONED and required to appear

before the court at the Round Lake Beach Courthouse, 1792

Round Lake, Illinois at_1:30 P.M., on June 7, 2006 to answer

the complaint in this case, a copy of which is hereto attached. IF

YOU FAIL TO DO SO, A JUDGMENT BY DEFAULT MAY

BE TAKEN AGAINST YOU FOR THE RELIEF ASKED IN

THE COMPLAINT.

To the officer:

This summons must be returned by the officer or other person

to whom it was given for service, with endorsement of service

and if any, immediately after service and not less that 3 days

before the day for appearance. If service cannot be made, this

summons be returned so endorsed.

This summons may not be served later than 3 days before the

day for appearance,

WITNESS ;2006

(Seal of Court) *s/Salley D. Coffelt”

Clerk of the Circuit Court

”s/Tracie P.”

(Deputy)

(Plaintiff’s attorney or plaintiff if he or she is not represented

by an attorney)

Name JEFFREY J. NUTSCHNIG/SOFFIETTI, JOHNSON,

TEEGEN, PHILLIPS, MOROZIN & ARGUETA, LTD.

Attorney for Plaintiff

Address 74 E. Grand Ave., P.O. Box 86

City Fox Lake, IL 60020-0086

Telephone 847-587-2551

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NOTICE TO DEFENDANT

IF YOU WISH TO CONTEST THIS CLAIM, you must do the

following:

(A) Pay the statutory appearance fee (NO PERSONAL CHECKS

ACCEPTED).

(B) File a written appearance (forms may be obtained at the

main office of the Clerk of the Circuit Court) on or before the

day and time specified for appearance, hereinafter called the

return day.

(C) Mail or otherwise deliver to the plaintiff’s attorney or the

plaintiff if there is no attorney, a copy of your appearance.

(D) If the appearance is timely filed and the fee paid, you are

NOT required to appear in court in person on the return day,

instead you should be present in court at the specified address

prepared to proceed to trial at the same time on the 14" day after

the stated return day.

In the event the trial day falls on a court holiday, the trial shall

be held on the next earliest court day following said court holiday.

IF YOU DO NOT WISH TO CONTEST THIS CLAIM, you

need not appear in person or file a written appearance and a

judgment will be entered against you on the return day for the

amount claimed by the plaintiff in the complaint plus court costs.

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