our next case for today is case number four sixteen zero one four by order of managers mike brier versus lin wood and for the colors we have this hagar is that correct and for the novo review is appropriate because the question here is the application of law to undisputed facts this court is empowered to independently review the record in determining the correct application of the law where the lower court failed to do s case were about credibility the plain ship would still have a problem here because its arguments on appeal contradict the testimony of its only witness at trial the appeal brief relies on argument concerning a february two thousand and fifteen abundantly clear that all the assessments were paid in full before the complainant issue here was filed that no lawsuit had been required to obtain payment of those assessments and by the time plaintiff complaint was filed every penny involved in that complaint payment which was late in coming our way through seven through two would force the crew of the review it was not a judge and i will get to that later i can address that now if you'd like to move on to that i'd like to hear your grocer thank you all right so what's the that simply is not true so the provision of the condominium association second declaration allows recovery in the event that the condo association incurs attorney's fees in forcing the provisions of its governing documents but that's a fee shifting provision  ripley which records and the court in that case said the language did speak for itself it said we will construct a provision to mean nothing more than nothing less than the letter of the text and so it did take the words at their face value and construed them as they were written now and in bright horizons one party could claim the other party to be in default of their agreement and the allegation was not taken conclusively by the court in fact the trial court found the i believe that the fourth district case of sham county of champagne housing authority the liles provides governing authority for this matter in the in the issue of whether those attorney fees were incurred in forcing a provision of the condo association governing documents and in that case the tenant miles had been sued with allegations that she had breached the terms of a peace again a private agreement between the parties and the circuit court there found that liles had not reached the agreement but in fact the plaintiff had the housing authority to breach the agreement so the trial court awarded defendant her attorney's fees at the prevailing party and the e c agreement in that case stated if the fees are incurred in enforcing the agreement then the prevailing party can recover them but on appeal of this court the fourth district court that said if you're not suing to compel compliance with the requirements of your lease then the attorney's fees are not incurred in horsemen of that document or at least in fact fees were not incurred in a lawsuit to enforce the terms of any agreement between the parties where you're going in a lawsuit but it isn't the case here let me back up do you agree that that amount was owed and was not pa by defendant because it was not incurred in forcing provisions of the lease it was simply an expense that condominium association incurred as part of its business which those must be assessed specially through a process  was like a defendant doesn't dispute that defendant paid that assessment with a late fee as soon as the owner became aware that it was late and so the association context kill safely about this latest case assessment bill safely as  testified at trial and it's in the record feels like we could not represent the association again let me let me shorten this up a little bit and then didn't mr safely didn't he contact your client about the delinquent assessment he did and he build the association for contacting your client for delay to sesame he did in your client paid the latest sesame and after being contacted by him he did the phone call to the defendant's owner can only be construed as a courtesy call to a current client you'll safely couldn't represent the association in any capacity what does that have to do with a bill being incurred by the association as a result of your client's failure to pay on time it's defendant pay this he says i forgot he sent in the payment of that the assessment that was lawfully imposed there was no indication from safely or anyone else that sekali would then bill somebody that might come back to defend it and its owner if so it was a reminder call from current counsel to current client saying heads up this is happening and thanks to that reminder call he paid  with a late fee but the by was in the declaration of the condo association even give him a grace period before he was ever would have been considered in default where they could have sued on that assessment and it's undisputed that he paid that assessment w before anything accrued to have this current complaint filed this current complaint is based only on that one hundred eighty dollars nothing else was outstanding and do so there's no precedence hypothetically speaking it's possible sure it's a current lawyer talking to a current client that attorney bill was not incurred by any lawsuit or any attempts to enforce the provisions of the document that has to be attached every every description of attorneys fees being incurred in enforcement for a writing out a default or being to some other charge has a lawsuit attached to it there was no lawsuit attached to this bill it was just sent out of the blue he said i don't have to pay this and that's when they decided to sue him because he did not honor and pay that one hundred eighty dollars bill plaintiff acknowledged at trial he testified that safely did not represent plaintiffs in any capacity against the defendant in fact he stressed that safely could not have would not could not represent plaintiff against him so safely was not under  lawsuit might come never has it been heard of charging a non client for work done on behalf of a client and so to come to the question that your honor asked earlier when that bill of rights to the condo association logically speaking they should governing documents it is not empowered to require more than that it cannot simply receive a bill and arbitrarily require one of its members to pay the entire thing there is a process within the declaration and bylaws to take a bill that comes in to divvy it up among the unit owners to levy an assessment and then to ask for payment the condo association did not follow that procedure in this in this instance in fact there was testimony on the record that there was no boat to assess this charge or any other charge connected with it to the defendant unit owner or any of the other you know owners until well after the initial complaint in this matter was filed so it was an attempt to go back and bootstrap and correct an error they found out there was no lawful l doorstep in the lower court erred in allowing that claim there is no evidence in the record to support the circuit court court's finding an attempt to rescue the plaintiffs claim it found that their eight hundred one hundred eighty dollars bill was a specialist testament well there's no evidence in the record to support that there's simply no authority in the law or the governing documents for this finding in fact that findings expressly contradicted by the testimony  who testified that the association did not vote to levy any assessment against defendant regarding that bill until well after the complaint in this matter had been filed so even though defend its position is that the standard of the novo review applies here even that more deferential standard of manifest weight of the evidence would not say if the circuit court's decision in this case pursuant to happen b scholtz two three four illinois second three eight one that finding was unreasonable arbitrary that was due february twentieth riotous also was not paid on time manner standing is that was paid prior to this lawsuit being filed is that correct that's correct but it was paid late it was paid late and there's an allegation that there were fees incurred in terms of enforcing the payment for that as well to my knowledge and the record supports that there was no enforcement mechanism set in place to recover the february two thousand fifteen assessment hired the attorney prior to to get that complaint ready and to prepare something regarding the title but as far as the defendant unit owner was concerned he became aware that the payment was late through a third party there was another scenario and so he was aware the payment was late then he paid it tax that hundred dollars late fee on it is that really relevant i mean you have a contract and you have due dates is it some type of defense that why did you realize that was the due date or someone had to remind me i mean doesn't it boil down to this is when it was due it wasn't pay when it was due they undertook this action to get it paid and then it was paid maybe they didn't have to to get into court but there was action taken you feel as incurred as a result of pursuing the payment i see where your honor is headed i think what defend his position here boils down to is that he did he was reminded of the payment and didn't make it before he was ever aware that the other attorney had been hired and that the action behind the scenes had been taken so is there so firemen that he has to be aware that i don't know how he can be responsible for those costs but it was not the attorney's involvement that spurred the payment and so he made the payment he had no knowledge the attorney was involved i'm not sure how you arrive at any point where he's already made the payment and yet we get to come back and say well we did all this work  did they do this to the courier these expenses as relates to trying to force whether or not your client was aware isn't that the inquiry were there not be incurred these expenses in trying to enforce this by the time it came to trial on this complaint that is not what they were seeking to recover but that they were time they incurred the expenses is what i'm referring to not when the complaint was filed that maybe their argument but i cannot concede that defendant should have to  that burden when he had no knowledge or no way to know he knew he had not paid on time and when he responded to discovered that he paid it with the late he he resolved the issue under the governing documents there was some there was some talk on the record in the transcript about the communication between the parties and i think defendant did testified that he didn't receive reminders of the different payments that were due so these socio voted i think in one block to do these broken down payments and then there was talk on the record of whether the reminders when out whether they went to the correct address or the correct email address and so defendant did at one point say he did not receive any reminders that may have been sent out but he was aware of the down aides several years ago he knew these were coming due and when he found out the day had come and gone he did make the payments he did pay the late eighty's the argument here is that that order sad that the defendant and was in fact in default now with respect to the argument that gil stately out of the clear blue senate bill you'll find in the transcripts that mr sims who's the president of the condo association says well i had to call our condo attorney so when mr sands is calling our condo attorney he's calling the attorney that's represented the condominium interesting la that same law firm also represented either mr by room or lin wood l l c has limited liability mr sim testimony is that you know hey i just need to get this guy to pay his bill and say please saying well i can't do a lawsuit i can't get into something adversarial the way i interpreted way his comments were so what he does is he makes a call is it a courtesy call not being on the record that suggests it's a courtesy call what's in the record is is condo lawyer and so therefore there was an attorney client relationship with respect to condominium documents and being the condominium lawyer my interpretation is he could not take it beyond a let me see what i can do to get it worked out as the others as to make a call and the court found it right after hearing  the very first comment was mr byron testified that he was late paying the assessment which necessitated a phone call or brought on a phone call by mr say early after which point he then the court finds the bill is something that condominium association hampers to the owner of the unit and he says he sent a check for  this is fire and senate check for one hundred dollars basically saying i'm not paying one hundred eighty dollars which started all of this next now that's that's judge burton's findings and he's finding that this hundred eighty dollars based on the testimony based on the way judge burton heard and saw and considered in at trial that this work i say mr on a late fee was paid and then we come up on the second assessment that it's due in february and in february that assessment was not paid until march twenty fifth urso and correct but the the condo association curd attorneys fees associated with efforts to get the assessments paid and it's those attorneys fees us there is nothing in the condominium documents or in the law there were acquired any affirmative action by the condominium association to vote on anything the condominium at the declarations just state when you're light or you don't do something you're supposed to do the condominium association has the right to charge the violator reasonable attorneys fees incur period they don't have to vote on a special assessment they don't have to do anything like that now you've got to keep in mind we're dealing with a six unit condo every single one of those unit owners is a member of the association and a member of the board they all know what's going on it's a very very small community now some of the discussions are some of the evidence of course most mr byrom said he didn't know about it ok so here's the judge listening to the testimony the judge is listening to the testimony saying that mr sim is sending e mails asked him for his involvement and whether or not to split the fourth phase of the siding job into two payments which would make it more manageable mr sands use the email addresses he typically use never got responses no reaction but mr sands testify throughout the record that he alerted mr meyer every moment of fees that were doing when they were due he sent out just reminder notice nothing so you know the court and weighing the evidence and taking a look and considering you know what the court's going to believe and what works not going to believe it would appear because the core found reasonable fee now i did ask for a leave of core to submit an affidavit because it is as if we were in court i had no idea to know exactly what was going to happen in court so that i can even prepare a final bill feeds and typically we would submit an affidavit event turning speed so we get around to trying to decide the final order and the final order when we went to court to argue on the final order the judge made a decision where you know on second thought i'm reversing myself i'm going to let you submit an affidavit of attorneys fees to show the reasonable to make determination what the attorneys should be so it went back to the drawing board we submitted an affidavit of attorney's fees and that is in the record and then he came back  and there was no objection to anything in the attorney's fees affidavit that was submitted and this would have been in february yes early february late late january and from that point he then finalized his decision and issued the order with the findings of the default and the dollar amounts of the default and in the order there is a provision that talks about the reasonable ness of the phase in so far as how the defendant went about so it didn't seem to me like he was facing that on any in boyce's of any kind yet and let's take a look at the exhibit exhibits are an act defendant exhibit  let's see the plaintiff sought any fiction and if fiction was denied because the plaintiff did not do the statutory notice before someone is obligated to move out of something to enforce says oppose the fan a lawsuit but no justice hope there are and forces in there and the transcript by judge to do it and appeal of attorney's fees you know i'm coming to this court asking the court to make determination that the lower court to be used is discretion and so i'm thinking what's the of coming to court asking the court to rule finding maybe i should have had more faith because it's an abuse of discretion standard where i believe we're here on the manifest way to the evidence issue because this went to trial the judge made his findings after determining the facts and the credibility of the witnesses and the judge's findings is what really bill the crowd but he did the point is i'm just wondering to what extent was this argument about the inappropriate  to enforce the covenant they asked take lead in or being safely intervened and when you've got i think naive for lack of a better word consumers of legal services have they g aware of these various due dates you're disputing whether or not he received reminders but your client was aware of these various duty sure he was aware that he owed them slipped his memory to pay them when he became aware that they were late he did pay those underlying assessments with lee it's i do want to clarify that by the time this case reached its judgment feb sixteenth two thousand and sixteen that judgment amount is in the record i believe it's seventy eight fifty was the final judgment amount and that amount composed of the one hundred dollars one hundred eighty dollars fee bill from attorney safely seven hundred dollars in late fees that is so solution piled onto that bill and then the balance of the judgment was missed alaina says attorneys fees tied to the underlying l a case ok so that in the february assessment i believe that she made argument that that was tied in there but really you do have the affidavit and voices that were submitted asking for twenty four thousand dollars and then the judge brought it down to something like thousand dollars and i don't know that there's an explanation in the record of which parts he kept which hours he kept which he threw out so you end up with almost six thousand dollar attorney people from miscellaneous now the thing is those attorneys fees get tacked onto the judgment only if that underlying basis of the judgment the one hundred eighty dollars bill from attorney safely is recoverable in the first place so that's why we're here because that base of the judgment defendant position is could not be recovered from defendant it's either an assessment a special assessment which the court said in his findings this is a special assessment against defendant but there was no vote for it that is required by the declaration and bylaws there would be a vote to assess and make the special assessment it's either that or it was incurred in enforcement and we've talked about the fact that under champagne county if you lyall's this incurred in the force in a phrase has a very specific meaning and simply put that one hundred eighty safely made two phone calls build them to the condo association the first phone call is essentially what he did he build them to say i can't help he built them for for something where he couldn't he couldn't take the case and are there and then he built them for a call to another client and now your honor you talked about was this raises the trial level was it talked about on in the trial and at that level there were eyebrows raised i do believe if you look back through the transcript you will find it a  documents it is a floating out there bill it was never voted specially assess it against anybody and it was not incurred in force and now for those for that tourney the bill from attorney safely to be recoverable it would have to be subjected to the reasonable  standard and it never was there was not testimony to trial about the reasonableness of mr safety bill the hourly fee that was involved and the i know less expensive and so the under the condominium act section nine one eleven  requires those fees to be reasonable as well as attached to some kind of judgment or some kind of force and if the court didn't find them to be reasonable he levied the judgment against them as especially i'm asking you a question did the court find him to be reasonable i think as part of his finding that there were special assessment that could be construed as that's part and parcel of it i don't recall a specific but they were i think you also have the problem of testimony from plaintiff's witness that he was going to seek an expensive and mean way out of this if the payment was not received so that bears on the reasonableness argument that the transcript shows that plaintiff's witness was trying to seek punitive nature against the defendant and as to whether defendant disputed the bill he received a bill that included the hundred dollars late fee plus the one hundred eighty dollars tourney sfi he only paid part of it so he did not pay this bill when it was presented to him because he did not know it was not properly levied against the defendant's account and for that reason defendant asked that this court reversed the judgment of the court and remained with instructions for the circuit for to enter judgment for the