complaint against sproing

7/24/2019 Complaint Against Sproing

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ALF KJC- 3027906

Atty. No

42907

IN THE CIRCUIT

COURT

OF

COOK

COUNTY, ILLINOIS

COUNTY

DEPARTMENT, CHANCERY DIVISION

THE EUGENIE/WELLS CONDOMINIUM

ASSOCIATION, an Illinois Not-For-Profit

Corporation, STEPHAN C. DRAKE and NICOLE

H DRAKE, husband and wife, MATTHEW A.

SCHMALING and RITA W. SCHMALING,

husband and wife, STEPHEN MURRAY, JR. and

CHRISTINE MURRAY, husband and wife, and

MARY DEE BERNSTEIN,

Plaintiffs;

vs.

)

)

)

)

)

)

)

)

)

)

)

)

)

SPROING FITNESS, LLC, an Illinois Limited )

Liability Company, SPROING SPORTS CLUB, )

LLC, an Illinois Limited Liability Company, )

WAUKEE REAL ESTATE ASSOCIATES, LLC, )

an Iowa Limited Liability Company,

WEST

BANK,)

an Iowa banking corporation, and WATERMARK )

PROPERTY MANAGEMENT, LLC, an Illinois )

Limited Liability Company, )

Defendants.

)

)

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COMPLAINT

FOR

PRELIMINARY and

PERMANENT

INJUNCTIONS

0

TRESPASS, EJECTMENT, BREACH OF COVENANTS

DECLARATORY JUDGMENT, NUISANCE and DAMAGES

Plaintiffs, THE EUGENIE/WELLS CONDOMINIUM ASSOCIATION, an Illinois Not

For-Profit Corporation, STEPHAN C

DRAKE

and NICOLE H. DRAKE, husband and wife,

MATTHEW A. SCHMALING and RITA W. SCHMALING, husband and wife, STEPHEN

MURRAY, JR. and CHRISTINE MURRAY, husband and wife, and MARY DEE BERNSTEIN,

for their Complaint against Defendants, SPROING FITNESS, LLC, an Illinois Limited Liability

Company, SPROING SPORTS CLUB, LLC, an Illinois Limited Liability Company, WAUKEE

REAL ESTATE ASSOCIATES, LLC, an Iowa Limited Liability Company,

WEST BANK, an

Iowa banking corporation, and

WATERMARK

PROPERTY MANAGEMENT, LLC, an Illinois

Limited Liability Company, state as follows:

PARTIES

1

THE EUGENIE/WELLS CONDOMINIUM ASSOCIATION (the

ASSOCIATION ) is an Illinois Not-For-Profit Corporation which has the rights, duties and

obligations vested in it by the owners

of

the Eugenie/Wells Condominiums located at 205 West


2/14

Eugenie Street, in Chicago, Illinois (the CONDO PROPERTY ), pursuant

to

the Illinois

Condominium Property Act, 765 ILCS 60511, et. seq. and the Declaration of Condominium

Ownership ( the Condominium Declarations ) and the Declaration of Covenants, Conditions

Restrictions and Easements (the Declaration of Covenants ), including but not limited to the

rights

to

enforce the Declaration

of

Covenants and to bring suit

to

obtain redress for the interests

ofthe

ASSOCIATION. A true and accurate copy

of

the Declaration

of

Covenants is attached

hereto and incorporated by reference as Exhibit 1.

2.

The CONDO PROPERTY is part of a four (4) story mixed-use building (the

TOTAL PROPERTY ). The CONDO PROPERTY consists

of

a ground level parking area, and

the 2 d, 3rd, and 4th floor of the TOTAL PROPERTY TOTAL PROPERTY, along with common

area walkways and an open courtyard.

3.

The

1st

floor ofthe TOTAL PROPERTY consists of commercial space (the

COMMERCIAL PROPERTY ).

4. STEPHAN

C.

DRAKE and NICOLE

H.

DRAKE own unit G

of

the CONDO

PROPERTY and reside there with their infant daughter.

5. MATTHEW A. SCHMALING owns unit D ofthe CONDO PROPERTY and

resides there with his wife RITA W. SCHMALING.

6. STEPHEN MURRAY, JR. and CHRISTINE MURRAY own unit F of the

CONDO PROPERTY and reside there with their infant son.

7. MARY DEE BERNSTEIN owns and resides in

unit

of the CONDO

PROPERTY.

8. SPROING FITNESS, LLC, and SPROING SPORTS CLUB, LLC, are Illinois

Limited Liability Companies which lease a portion of the COMMERCIAL PROPERTY, in the

same building as the CONDO PROPERTY but using a street address of 1652 North Wells Street,

in Chicago, Illinois, and either one or both of these companies conduct business as Sproing

Sport (together, the Sproing LLCs and the business conducted at 1652 North Wells shall be

referred

to

as SPROING ).

9. The CONDO PROPERTY contains 10 residential units, each of which has been

damaged by the defendants' actions. However, 6 residential unit owners are not separately

identified as plaintiffs as their interests are adequately represented by the ASSOCIATION. The

residential unit owner-plaintiffs (identified above) occupy units that are situated directly above

SPROING and have suffered distinct harms in addition

to

the damages suffered by the

ASSOCIATION.

10. WAUKEE REAL ESTATE ASSOCIATES, LLC ( WAUKEE ), is an Iowa

Limited Liability Company that owns the COMMERCIAL PROPERTY, and leases

to

SPROING.

2


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11. WEST

BANK

is an Iowa banking corporation that holds a mortgage interest in

the COMMERCIAL PROPERTY and is named as an interested party.

12. WATERMARK PROPERTY MANAGEMENT, LLC ( WATERMARK ), an

Illinois Limited Liability Company, manages COMMERCIAL PROPERTY

on behalf

of, and as

an agent ofWAUKEE

VENUE

13. The matters in dispute all concern the TOTAL PROPERTY (which consists

ofthe

CONDO PROPERTY and the COMMERCIAL PROPERTY}, located within the Old Town

neighborhood in Chicago, Illinois, within Cook County.

BACKGROUND

14. The TOTAL PROPERTY has operated in its current form since 1991 when the

Declaration

of

Covenants between the CONDO PROPERTY and the COMMERCIAL

PROPERTY was created and recorded with the Cook County Recorder

of

Deeds as document

number 91306546, and the CONDO PROPERTY has been continuously occupied since then.

15. The Declaration of Covenants sets forth the rights, benefits, and obligations of the

ASSOCIATION, WAUKEE and SPROING, vis-a-vis each other and, to the TOTAL

PROPERTY, in order protect the respective values of each portion of the TOTAL

PROPERTY.

16. Each

of the covenants, conditions, restrictions, and uses created by the Declaration of

Covenants run with the land and is binding upon the ASSOCIATION, WAUKEE and

SPROING.

17. Historically, the CONDO PROPERTY has been home to 10 exclusive, highly

desirable, residential condominium units located in one

of

the most inviting and charismatic

neighborhoods within the City

of

Chicago. To this point, the Declaration

of

Covenants

specifically provide at 27.6: The provisions of this Declaration shall be construed to the end that

the Total Property shall remain a first-class mixed-use property.

18. Prior to SPROING's operations, the residents

ofthe

CONDO PROPERTY lived

peacefully and harmoniously with the COMMERCIAL PROPERTY. If there were any

disturbances from the commercial units, they were rare and isolated events.

19. Through the many years oftrouble-free, peaceful co-existence between the

CONDO PROPERTY and the COMMERCIAL PROPERTY the common walls have been

demonstrated to

be

sufficiently sound-proofed for typical urban uses, and the residents of the

CONDO PROPERTY have established themselves as being tolerant

of

typical urban noise.

1

A recorded covenant runs with the land, and a tenant has constructive notice of recorded covenants. e Kalb

ank

v Purdy

(1988), 166 Ill.App.3d 709, 725, 117 Ill.Dec. 606, 520 N.E.2d 957.

3


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20. The Declaration of Covenants specifically provide at Article XXVIII,

"RESTRICTION ON USE OF COMMERCIAL PROPERTY," that:

a "28.1 -The Owner

of

the Commercial Property shall be restricted from

leasing all or any portion of the Commercial Property to a tenant which use may be

considered a private or public nuisance by a court oflocal jurisdiction."

b 28.2(A)- Notwithstanding the zoning which applies to the Commercial

Property, the Commercial Property may not be used for ... [uses] ... which requires

exhaust/ventilation .. "

21. The Declaration ofCovenants specifically provide at Article XXIII,

"ALTERATIONS," that:

a "23 1 (B) - . . . Alterations shall not be made without the prior written

consent of the Owners

if

such Alterations will:

(1) unreasonably diminish the benefits afforded to such Owners by

any Easement or unreasonably interrupt such Owners use or enjoyment

of

any Easement,

(2) materially alter the fa9ade of the Improvements

...

(5) materially change the expected pedestrian and Vehicular traffic

patterns or ingress and egress."

b. 23.4- Nothing contained in this Article XXIII shall give any Owner or

Owners the right

to

construct any additional structures which may interfere with light, air

or access to property

of

the other Owner or interfere with any Owner's right to derive the

benefits ofthis Agreement."

22 On information and belief, at some point prior to January of2014, WAUKEE's

predecessor entered into a lease with SPRO

IN

G through the assistance

of

WATERMARK.

23. On information and belief, at some point prior to June of2014 SPROING began

to

conduct aerobic fitness classes.

24. SPROING's aerobic fitness classes are similar

to

the classes popularized by

Richard Simmons and Jane Fonda in the 1980s, but are differentiated by the use of a proprietary

spongy treadmill that students bounce on as they are guided through fancy dance steps.

25. To motivate the students in their aerobic fitness classes, the instructors play music

at

excessive volume and shout inspiring mantras at the students through microphones, such as,

"you can do it," "harder faster. .. one more," "feel the bum," and "five more

...

four more

...

three more

...

two more

..

one more

...

good job, good job "

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26. Throughout its operations, SPROING's aerobic classes have been conducted

seven days a week, as early as 5:30a.m., and as late as 8:30p.m.

27. From the moment SPROING began conducting its aerobic classes and continuing

through the date of this Complaint, it has created a nuisance

to

all plaintiffs

by

playing their

dance-club and hip-hop style music at such extreme volumes that it causes disturbances in the

individual units

of

the CONDO PROPERTY as further described below. These disturbances

become even more acute when the instructors shout motivational catch-phrases at the students

through their microphones.

28. The disturbances emanating from SPROING have been so loud that the plaintiffs

are often able to recognize the songs and the motivational phrases used

by

the instructors from

their residential units. At many other times, the plaintiffs are disturbed

by

thumping bass,

vibrations, and other collateral impacts.

29. The disturbances emanating from SPROING have awoken the unit owner

plaintiffs, prevented them from going to sleep, prevented them from holding conversations in

their units, interfered with their relationships and social plans, prevented them from holding

conference calls and/or conducting business from their homes, and have otherwise disturbed the

peaceful enjoyment of their property.

30. Title VI

of

the Environmental Protection Act (415 ILCS 5/23, et. seq.) provides

that, excessive noise endangers physical and emotional health and well-being, interferes with

legitimate business and recreational activities, increases construction costs, depresses property

values, offends the senses, creates public nuisances, and in other respects reduces the quality of

our environment. ( 415 ILCS 5/23) Further that, [n ]o person shall emit beyond the boundaries

ofhis property any noise that unreasonably interferes with the enjoyment oflife or with any

lawful business or activity (415 ILCS 5/24

.

31. Despite often and repeated complaints to SPROING, WATERMARK, and

WAUKEE, the disturbances emanating from SPROING have persisted without abatement.

32. In March, 2015, industrial ventilation ducts and fans were installed at two

locations on the CONDO PROPERTY: an exterior ventilation shaft was affixed to the western

wall

ofthe

CONDO PROPERTY beginning at a height of approximately sixty-five inches and

extending vertically upward; and a large circular fan was affixed to the southern wall

of

the

CONDO PROPERTY in the fire exit stairwell, at an approximate height

of

forty-two inches,

with a diameter

of

approximately three feet, and intruding into the stairwell by approximately

eighteen inches (cumulatively, industrial ductwork ).

33. On information and belief, the industrial ductwork above provides ventilation to

SPROING and was installed

by

or on behalf

of

SPROING and WAUKEE with the cooperation

and consent ofWATERMARK.

34. The industrial ductwork was installed by accessing the CONDO PROPERTY's

common areas without permission and against the will of the ASSOCIATION.

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35. The industrial ductwork was installed by permanently altering the CONDO

PROPERTY's common area walls, without permission and against the will of the

ASSOCIATION.

36. The industrial ductwork is unsightly, devalues the CONDO PROPERTY,

interferes with Plaintiffs' ability

to

move about the common areas, vents smoke and debris into

the CONDO PROPERTY and creates a safety hazard that conflicts with the Chicago Building

Code, particularly including Chapter 13-160 pertaining to fire exits (e.g. There shall be no

obstruction in any exitway that may hamper travel and evacuation. 13-160-070).

3

7.

Article V

of

the Declaration

of

Covenants specifies the Easements granted in

favor

of

the Commercial Property, but no easements have been created that provide any right for

SPROING, WATERMARK, or WAUKEE to install or maintain the industrial ductwork.

38. The Declaration of Covenants provides at section 13.9 that WAUKEE, as

defaulting Owner, shall pay all reasonable attorneys' fees and court costs paid or incurred by

plaintiffs, the creditor Owners, in enforcing the rights set forth in the Declaration of Covenants.

39. The ASSOCIATION has made repeated requests to SPROING, WAUKEE, and

WATERMARK to remove the industrial ductwork, but this request has been ignored.


WATERMARK to reduce the noise broadcast from SPROING, but this request has been

ignored.


WATERMARK to install sufficient soundproofing at SPROING to reduce the impact of the

noise broadcast from SPROING to tolerable levels, but this request has been ignored.

COUNT

I:

BREACH OF COVENANTS

For Count I

of

its Complaint, the ASSOCIATION seeks relief against WAUKEE and

states as follows:

42. The ASSOCIATION incorporates above paragraphs 1 41 as

if

said allegations

were fully set forth herein.

43. As the Owner of the COMMERCIAL PROPERTY, WAUKEE, and SPROING

are bound by the terms and conditions

of

the Declaration

of

Covenants.

44. As the Lessor

to

SPROING, WAUKEE owes a duty to the ASSOCIATION to

ensure that the Declaration

of

Covenants is observed by SPROING.

45. As the principal and master over WATERMARK, WAUKEE owes a duty to the

ASSOCIATION to ensure that the Declaration ofCovenants is enforced

y

WATERMARK.


7/14

46. As the successor in title to SPROING s prior Lessor, WAUKEE is legally

responsible for the predecessor s duties, responsibilities, and liabilities under the SPROING

lease.

47. As leaseholder upon the COMMERCIAL PROPERTY, SPROING is bound by

the covenants, conditions and restrictions found in the Declaration

o

Covenants.

48. WAUKEE has violated the Declaration

o

Covenants through one or more

o

the

following acts or omissions:

a Leasing the COMMERCIAL PROPERTY

to

SPROING with the knowledge

that SPROING was likely to create a nuisance.

b Facilitating and/or failing to prevent SPROING and WATERMARK from

making unauthorized use

o

the CONDO PROPERTY to install industrial

ductwork.

c Facilitating and/or failing to prevent SPROING and WATERMARK from

installing industrial ductwork upon the CONDO PROPERTY.

d

Failing

to

remove the industrial ductwork upon demand from the

ASSOCIATION.

e

Failing to reduce the noise broadcast from SPROING upon demand from the

ASSOCIATION.

f

Failing to install sufficient soundproofing at SPROING to reduce the impact

o

the noise broadcast from SPROING to tolerable levels upon demand from

the ASSOCIATION; and

g

Failing to evict SPROING.

49. As a direct and proximate result o WAUKEE s breaches as set forth above, the

ASSOCIATION has suffered multiple damages, including but not limited to:

a Presumptive damages for violation o the Declaration o Covenants;

b Property damage to the CONDO PROPERTY;

c Costs to remove the industrial ductwork and repair the CONDO PROPERTY;

d Diminution in value;

e

The rental value for WAUKEE s use and occupancy

o

the CONDO

PROPERTY;

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f. Lost access to means

of

ingress and egress; and,

g. Attorneys fees.

50. The Association lacks an adequate remedy at law in that monetary damages are

insufficient to adequately compensate the Association, the CONDO PROPERTY is unique and

the Association is entitled to have the CONDO PROPERTY restored to its prior condition, and

the Association s damages will continue to grow unless and until WAUKEE s wrongful conduct

and breaches are halted.

WHEREFORE, for relief under Count

I

the Association seeks damages against

WAUKEE in an amount adequate to compensate the Association for breaching the Declaration

of Covenants, property damage to the CONDO PROPERTY, costs to remove and repair the

industrial ductwork, diminution in value, rental for use and occupancy of the CONDO

PROPERTY, lost access for ingress and egress, all attorneys fees and costs incurred in this

matter, AND

PRELIMINARY INJUNCTIVE RELIEF which prohibits WAUKEE from broadcasting

music, voice commands, or other noise at a volume that causes noise from the COMMERCIAL

PROPERTY

to

reach the ASSOCIATION at a volume that is audible within the CONDO

PROPERTY,

to

be determined, measured, and monitored

y

a professional sound engineer, at

WAUKEE s cost, AND

a PERMANENT INJUNCTION which requires WAUKEE to remove the industrial

ductwork and return the CONDO PROPERTY

to

its former condition, and to either evict

SPROING, or to install soundproofing and engineering controls which restrict WAUKEE from

broadcasting music, voice commands, or other noise from the COMMERCIAL PROPERTY at a

volume that causes the noise

to

reach the ASSOCIATION at a volume that is audible within the

CONDO PROPERTY

to

be determined, measured, and monitored

y

a professional sound

engineer, at WAUKEE s cost.

COUNT II: TRESPASS

For Count

II ofits

Complaint, the ASSOCIATION seeks relief against WAUKEE,

SPROING, and WATERMARK and states as follows:

51. The ASSOCIATION incorporates above paragraphs

1-41 as if

said allegations


52. WAUKEE, SPROING, and WATERMARK entered upon the CONDO

PROPERTY without right or permission when they installed the industrial ductwork.

53. WAUKEE, SPROING, and WATERMARK continue to occupy the CONDO

PROPERTY without right or permission through the installation of the industrial ductwork and

their refusal to remove the same.

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54. As a direct and proximate result

of

WAUKEE, SPROING, and WATERMARK s

trespasses as set forth above, the ASSOCIATION has suffered multiple damages, including but

not limited to:

a.

Presumptive damages for trespass;

b.

Property damage to the CONDO PROPERTY;

c. Costs to remove the industrial ductwork and repair the CONDO PROPERTY;

d.

Diminution in value;

e.

The rental value for the use and occupancy

of

the CONDO PROPERTY;

f.

Lost access

to

means

of

ingress and egress; and,

g. Attorneys fees.

55. The Association lacks an adequate remedy at law in that monetary damages are

insufficient to adequately compensate the Association, the CONDO PROPERTY is unique and

the Association is entitled to have the CONDO PROPERTY restored to its prior condition, and

the Association s damages will continue to grow unless and until the defendants wrongful

conduct and breaches are halted.

WHEREFORE, for rel ief under Count II the Association seeks damages against

WAUKEE, SPROING, and WATERMARK in an amount adequate

to

compensate the

Association for intruding upon the CONDO PROPERTY, property damage to the CONDO

PROPERTY, costs to remove and repair the industrial ductwork, diminution in value, rental for

use and occupancy of the CONDO PROPERTY, lost access for ingress and egress, all attorneys

fees and costs incurred in this matter, AND

a PERMANENT INJUNCTION which requires WAUKEE, SPROING, and

WATERMARK to remove the industrial ductwork and return the CONDO PROPERTY

to

its

former condition, at defendants cost.

COUNT III: EJECTMENT

For Count III

of

its Complaint, the ASSOCIATION seeks re lief against WAUKEE and

SPROING and states

as

follows:

56. The ASSOCIATION incorporates above paragraphs 1-41

as if

said allegations


57. The ASSOCIATION has the right to possession of the CONDO PROPERTY, to

the exclusion ofWAUKEE and SPROING, with the exception

of

easements that are recognized

y

the Declaration

of

Covenants.


10/14

58. There is no easement or other property right that grants WAUKEE or SPROING

any right to possession of the areas where WAUKEE and SPROING have wrongfully installed

industrial ductwork and/or the areas of ingress and egress constructively occupied y WAUKEE

and SPROING.

59. WAUKEE and SPROING unlawfully occupy the areas where WAUKEE and

SPROING have wrongfully installed industrial ductwork and the areas

of

ingress and egress

constructively occupied by WAUKEE and SPROING.

60. The ASSOCIATION has been deprived

ofthe

use and reasonable value of the

areas wrongfully occupied by WAUKEE and SPROING through the installation

of

industrial

ductwork.

WHEREFORE, the ASSOCIATION prays for this Court to order WAUKEE and

SPROING to remove the industrial ductwork improperly installed y them, to return the

CONDO PROPERTY to its prior condition, and to grant damages and attorneys fees to the

ASSOCIATION, together with such other and further rel ief as this Court may deem to be just

and proper.

COUNT IV: NUISANCE

For Count IV

of

its Complaint, PLAINTIFFS seek relief against WAUKEE, SPROING,

and WATERMARK and state as follows:

61. The ASSOCIATION incorporates above paragraphs 1 41 as if

said allegations


62. At regular and repeated intervals, since it began to operate, SPROING has

interfered with Plaintiffs use and enjoyment of their property through excessive noise broadcasts

including but not limited to the following:

a.

conducting aerobic classes seven days a week, as early

as

5:30a.m., and

as

late

as 8:30p.m.

b. playing dance-club, hip-hop, and other high intensity music at such extreme

volumes that it causes disturbances in the individual units of

the CONDO PROPERTY.

c. playing music so loud that the plaintiffs are often able to recognize the songs

and the motivational phrases used by the instructors from their residential units.

d.

playing music

so

loud that smartphone apps can identify the songs.

e. playing music at loud volumes with thumping bass and vibrations that travel

through the walls.

10


11/14

f.

shouting phrases through microphones that can be heard in the individual units

of the CONDO PROPERTY, such

as

"you can do it," "harder

.

faster. .. one more," "feel

the bum," and "five more four more three more two more one more good job,

good job "

g.

broadcasting music and phrases so loud as to interfere with plaintiffs' sleep and

conversations.

h.

broadcasting music and phrases so loud as to interfere with plaintiffs' social

plans.

i. broadcasting music and phrases so loud as to prevent plaintiffs from holding

conference calls and/or conducting business from their homes; and,

j. broadcasting music and phrases so loud as to disturb plaintiffs' peaceful

enjoyment of their property.

63. SPROING's excessive noise broadcasts as described above endangers plaintiffs'

physical and emotional health and well-being, interferes with their legitimate business and

recreational activities, depresses their property values, offends their senses, and reduces the

quality of their environment.

64. SPROING's excessive noise broadcasts as described above have deprived

plaintiffs of sleep, increased their stress, and diminished their quality of life.

65. SPROING's excessive noise broadcasts as described above have interfered with

plaintiffs' ability to exercise, practice yoga, meditate, think, and share intimate moments with

their spouses and children.

66. SPROING's excessive noise broadcasts as described above have strained

plaintiffs' relationships with one another.

67. SPROING's excessive noise broadcasts as described above have caused plaintiffs

to spend less time in their homes, leading to additional expense for meals, travel, hotels, and fuel.

68. SPROING's excessive noise broadcasts as described above and the consequential

impacts described herein have caused plaintiffs to suffer diminished productivity in their jobs

and/or school.

69. SPROING's excessive noise broadcasts have interfered with plaintiffs' ability

to

study, read, and complete projects and/or homework.

70. SPROING's excessive noise broadcasts as described above have inhibited and

prevented plaintiffs' ability to host guests for daytime visits, meals, or overnight stays.


12/14

71. The excessive noise broadcast by SPROING has been facilitated

y

WAUKEE

and WATERMARK.

72. The excessive noise broadcast y SPROING has persisted on a regular basis

without abatement, reasonable soundproofing, or efforts to prevent the noise

y

SPROING,

WAUKEE or WATERMARK despite repeated demands for such remedial measures

y

the

ASSOCIATION.

73

The excessive noise broadcast y SPROING is a substantial invasion ofplaintiffs

interest in the use and enjoyment

of

their property.

74. SPROING s activities are incompatible with the CONDO PROPERTY and are in

direct violation ofthe Declaration ofCovenants.

75. Defendants, and each

of

them, will, unless restrained

y

this Court, continue to

maintain the nuisance and continue the acts complained of, and each and every act has been, and

will be, without the consent, against the will, and in violation ofthe rights ofASSOCIATION

and the individual unit-owner Plaintiffs.

76. Unless Defendants, and each

of

them, are enjoined from continuing their course

of conduct, the Plaintiffs will suffer irreparable injury in that the value of the CONDO

PROPERTY will diminish and the enjoyment

of

the use

of

property

y

the individual unit-owner

Plaintiffs will be unreasonably harmed.

77. The Plaintiffs have no adequate remedy at law for the injuries currently being

suffered in that it will be impossible for the Plaintiffs to determine the precise amount

of

damages that they will suffer

if

Defendants conduct is not restrained.

78

In maintaining the nuisance, Defendants, and each

of

them, are acting with

full knowledge of the consequences and damages being caused to the Plaintiffs, and their

conduct is willful, oppressive and malicious; accordingly, the Plaintiffs are entitled

to

punitive

damages against Defendants, and each

of

them.

WHEREFORE, for rel ief under Count IV, the Plaintiffs seek damages against SPROING,

WAUKEE, and WATERMARK in an amount adequate to compensate Plaintiffs for the direct

and consequential damages caused

y

their broadcast

of

offensive noise at excessive volume and

at inappropriate times, exemplary and punitive damages, all attorneys fees and costs incurred in

this matter, AND

PRELIMINARY INJUNCTIVE RELIEF which prohibits SPROING, WAUKEE, and

WATERMARK from broadcasting music, voice commands, or other noise at a volume that

causes noise from the COMMERCIAL PROPERTY to reach Plaintiffs at a volume that is

audible within the CONDO PROPERTY, to be determined, measured, and monitored by a

professional sound engineer, at WAUKEE s cost, AND

12


13/14

a PERMANENT INJUNCTION which requires WAUKEE and WATERMARK to either

evict SPROING,

or

for SPROING, WAUKEE, and WATERMARK to install soundproofing and

engineering controls which restrict WAUKEE, SPROING, and WATERMARK from

broadcasting music, voice commands, or other noise from the COMMERCIAL PROPERTY at a

volume that causes the noise to reach the Plaintiffs at a volume that is audible within the

CONDO PROPERTY to be determined, measured, and monitored

by

a professional sound

engineer, at defendants cost.

COUNT

V:

DECLARATORY JUDGMENT T INVALIDATE LEASE

For Count V of its Complaint, the ASSOCIATION seeks relief against WAUKEE and

SPROING and states as follows:

79. The ASSOCIATION incorporates above paragraphs 1-41 as

if

said allegations


80. SPROING and WAUKEE claim to have a valid lease granting SPROING asserted

rights in the COMMERCIAL PROPERTY.

81. For the reasons set out above, the SPROJNG lease violates the Declaration of

Covenants, including but not limited to the prohibitions found in provisions 28.1 and 28.2(A)

which prohibit uses that create a nuisance and which require ventilation, respectively.

WHEREFORE, the ASSOCIATION prays for this Court to declare the lease between

WAUKEE and SPROING to be null and void, to demand WAUKEE and SPROING to return the

CONDO PROPERTY to its prior condition, and to grant damages and attorneys fees to the

ASSOCIATION, together with such other and further relief as this Court may deem to be just

and proper.

3


14/14

Alan L Farkas

Katherine J. Calhoun

SMITHAMUNDSEN LLC

150 North Michigan

Suite 3300

Chicago, Illinois 60601

312) 894-3200, Phone

312) 894-3210, Fax

[email protected]

[email protected]

and

Constantine G Kaloudis

Kaloudis Law Office P.C.

5901 N Cicero Ave. Suite 306

Chicago IL 60646

312-282-2935

Atty. No. 33825

[email protected]

Respectfully submitted,

THE

EUGENIE/WELLS

CONDOMINIUM

ASSOCIATION, STEPHAN C. DRAKE,

NICOLE

H.

DRAKE,

MATTHEW

A. SCHMALING RITA W.

SCHMALING

STEPHEN MURRAY JR., CHRISTINE

MURRAY

andM

EEBERNSTEIN

14

complaint against sproing

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