SECOND DIVISION FILED: July 20, 2010
No. 1-09-2200
527 S. CLINTON, LLC, an Illinois ) APPEAL FROM THE limited liability company, ) CIRCUIT COURT OF ) COOK COUNTY. Plaintiff-Appellant, ) ) v. ) 07 CH 12339 ) WESTLOOP EQUITIES, LLC, an ) Illinois limited liability ) company, ) THE HONORABLE ) MARTIN S. AGRAN Defendant-Appellee. ) JUDGE PRESIDING
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, 527 S. Clinton, LLC, brought the instant
suit, seeking judicial declarations that its proposed development
of a multi-story commercial and residential building would not
violate an easement held by the defendant, Westloop Equities,
LLC. In two separate orders, the circuit court dismissed two of
the three counts of the plaintiff's complaint, finding them to be
time barred. As to the third count, the circuit court entered a
directed finding in favor of the defendant. The plaintiff now
appeals, arguing that all three rulings were improper. For the
reasons which follow, we reverse and remand for further
proceedings. No. 1-09-2200
The essential facts giving rise to this appeal are not in
dispute. The plaintiff is the owner of a parcel of real estate
commonly known as 519-527 South Clinton Street in Chicago,
Illinois. The plaintiff's property is currently used as an open-
air parking lot. The defendant owns a parcel of real estate
adjacent to the plaintiff's property, commonly known as 506 West
Harrison Street. The defendant operates a hotel upon its
property.
Prior to 1984, both properties were under common ownership.
In October of that year, the hotel, along with the property upon
which it was situated, was sold to the defendant's predecessor-
in-interest. As part of the transaction, the defendant's
predecessor-in-interest was granted an easement for ingress and
egress and for free parking. The easement provided, in relevant
part, as follows:
"1. All persons, by motor vehicle or
otherwise, shall have the rights to ingress
and egress in perpetuity to or from the
property through and/or across the parking
facility property, which rights shall not be
terminable for any reason.
2. Grantee's registered guests of the
hotel and banquet invitees shall have the
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right to park on the parking facility
property at no cost.
3. Patrons of the bar and restaurant
inside the subject hotel property shall have
the right to park at no cost for a maximum of
three (3) hours.
4. The easement for parking in the
above Paragraphs 2 and 3 shall be subject to
the following terms and conditions, a
violation of which shall cause said easement
to terminate immediately upon the violation:
(a) The easement will remain
in force so long as the property is
operated as a hotel. Ceasing to
operate the subject hotel as a
hotel business shall cause this
easement to terminate immediately
and without notice."
Over time, the hotel fell into disuse and closed. In June
of 1998, the defendant purchased the property containing the
hotel. The defendant refurbished the hotel and reopened it in
1999.
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In October of 2006, the plaintiff purchased the adjacent
property containing the open-air parking lot. Shortly
thereafter, the plaintiff sought to develop the property and
build a multi-story commercial and residential building
consisting of 276 residential units, as well as ground floor
retail shops and parking.
On March 6, 2007, representatives of the plaintiff met with
the manager of the hotel to discuss the proposed development. In
a letter dated March 23, 2007, the defendant's attorney expressed
his opinion that the erection of a building on the plaintiff's
property would interfere with the defendant's easement and
threatened immediate litigation. In a subsequent letter dated
March 27, 2007, the defendant's attorney also threatened to sue
the architect hired by the plaintiff to design the development.
On May 8, 2007, the plaintiff filed a three-count complaint
against the defendant. In count I, the plaintiff sought a
judicial declaration that, under the terms of the easement, the
defendant's right to free parking ended in "approximately 1986,"
the year the original hotel ceased operations. Count II sought a
judicial declaration that the plaintiff's proposed development of
its property would not interrupt the hotel's ingress and egress
and that the terms of the easement would not be violated.
Finally, in count III, the plaintiff sought a mandatory
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injunction compelling the removal of a parking ramp allegedly
encroaching on its property by approximately 50 feet. The
complaint alleged that, until the plaintiff purchased the
property in 2006, the ramp was permitted to exist on the
plaintiff's property as an accommodation to the hotel.
On August 3, 2007, the defendant filed a motion to dismiss
all three counts of the plaintiff's complaint pursuant to
sections 2-615 and 2-619 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-615, 2-619 (West 2006)). Attached to the
defendant's motion was an affidavit from Leslie Barnard, a member
of the defendant. In his affidavit, Barnard attested that the
ramp allegedly encroaching on the plaintiff's property was
constructed in the early 1960s and, since then, has been used by
the hotel for ingress and egress.
Initially, the circuit court denied the defendant's motion
to dismiss in its entirety. Following a motion to reconsider,
however, the circuit court dismissed count III of the plaintiff's
complaint with prejudice. In reaching this conclusion, the court
found that, because the ramp in question had been used since the
grant of the easement in 1984, count III was barred by the 20-
year statute of limitations set forth in section 13-101 of the
Code (735 ILCS 5/13-101 (West 2006)).
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On March 12, 2009, the plaintiff filed an amended complaint.
In count I of the amended complaint, the plaintiff again sought a
judicial declaration that the defendant's right to free parking
had ended as no hotel business was conducted on the defendant's
property from "approximately 1986 until the hotel was reopened on
May 30, 1999." As in the original complaint, count II sought a
judicial declaration that the plaintiff's proposed development
would not violate the terms of the easement. The plaintiff also
re-pled count III in order to "preserve [its] rights on appeal."
On April 3, 2009, the plaintiff moved for summary judgment
on count I of the amended complaint, arguing that there was no
dispute that the hotel ceased operations in the late 1980s.
While the plaintiff's motion for summary judgment was still
pending, the defendant filed another motion to dismiss count I of
the amended complaint pursuant to section 2-619 of the Code (735
ILCS 5/2-619 (West 2006)). In relevant part, the defendant
argued that the plaintiff's cause of action in count I accrued
when the hotel ceased operations in 1986 and, therefore, was time
barred by the 20-year statute of limitations contained in section
13-101 of the Code (735 ILCS 5/13-101 (West 2006)) and the 7-year
statute of limitations set forth in 13-102 of the Code (735 ILCS
5/13-102 (West 2006)).
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Attached to the plaintiff's response to the motion to
dismiss count I was a portion of Leslie Barnard's deposition and
an affidavit from Lewis Spector, the former manager of the
parking lot from 1992 to 2006. When deposed, Barnard testified
that neither he nor anyone involved in the day-to-day management
of the hotel ever demanded that the hotel's patrons or guests be
provided with free parking. In his affidavit, Spector, likewise,
attested that at no time after the hotel reopened in 1999 did
managers of the hotel demand that its guests or patrons be
permitted to park in the parking lot without charge.
On May 29, 2009, the plaintiff filed a motion for leave to
amend its complaint to change the year the hotel ceased
operations from 1986 to 1988. In support of its motion, the
plaintiff attached the affidavit of Anthony Christopher, the
manager of the hotel from 1986 to 1988, who attested that the
hotel ceased operation in the spring of 1988.
On June 3, 2009, the circuit court denied the plaintiff's
motion to amend its first amended complaint, finding that the
extent to which the proposed amendment would cure the defective
pleading was questionable, that the amendment would prejudice and
surprise the defendant, and that the amendment was untimely. The
court further found that, because the plaintiff's amended
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complaint was verified, the allegation that the hotel closed "in
approximately 1986" constituted a judicial admission.
On August 5, 2009, the circuit court entered a written
memorandum opinion, in which it dismissed count I of the amended
complaint as time barred under sections 13-101 and 13-102 of the
Code (735 ILCS 5/13-101, 13-102 (West 2006)). In that same
order, the circuit court also denied the plaintiff's motion for
summary judgment on count I as moot.
Thereafter, the parties proceeded to a bench trial on count
II. At trial, the plaintiff presented several witness, including
James Plunkard, the architect hired to design the proposed
development, and Luay Aboona, a traffic engineer retained by the
plaintiff to evaluate the impact of the proposed development on
the hotel.
Plunkard testified that, under the proposed development,
hotel patrons and guests would be able to drive down a ramp on
the plaintiff's property and then either exit onto Clinton Street
or enter the hotel's underground parking garage and storage
facility. Plunkard opined that the hotel's ingress and egress
would be essentially the same as it is now. He also believed
that the development would enhance the hotel's accessibility by
providing a cover over the ramp, thereby eliminating the need for
snow removal and deterioration due to the elements.
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According to Plunkard, the proposed development would be
constructed in two phases. In phase I, the residential and
commercial building would be constructed. During phase II, a
four-story parking garage would be built. Plunkard believed that
temporary canopies could be erected to protect hotel patrons and
guests seeking to gain ingress and egress during the construction
period and that the project could be completed without
significant interference to their ingress and egress.
Aboona testified that he counted the amount of traffic that
used the driveways into the parking lot and the ramp from the
hotel into the parking lot for two days in 2008. He also
analyzed the anticipated traffic that would be generated by the
proposed development. In Aboona's opinion, the access drive to
Clinton Street was adequate to accommodate the traffic from the
proposed development as well as the traffic from the hotel. He
further believed that, both during the construction and when the
project is completed, access to the hotel property would be
maintained.
At the conclusion of the plaintiff's case in chief, the
defendant moved for a directed finding.1 The defendant argued,
1 We note that the motion filed by the defendant in the circuit
court was labeled as a motion for a "directed verdict." Normally,
a party moves for a directed verdict in a jury trial (735 ILCS 5/2-
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inter alia, that the easement specifically provided for ingress
and egress over the entirety of the plaintiff's property and that
the construction of a permanent structure on the property would
violate its rights under the easement. The circuit court
subsequently granted the defendant's motion for a directed
finding and entered judgment for the defendant on count II of the
plaintiff's amended complaint. This appeal followed.
Initially, the plaintiff contends that the circuit court
erred in dismissing count III of its complaint, in which it
sought a mandatory injunction compelling the removal of a parking
ramp allegedly encroaching on its property. The plaintiff argues
that the defendant's use of the ramp was neither hostile nor
adverse, and, thus, the circuit court improperly applied the
statute of limitations for adverse possession set forth in
section 13-101 of the Code (735 ILCS 5/13-101 (West 2006)). We
agree.
1202 (West 2006)) and a directed finding in a bench trial (735 ILCS
5/2-1110 (West 2006)). Although it would have been more
appropriate for the defendant to move for a directed finding as a
bench trial was held in this case, the content of a motion, not its
title or label, determines its character. See Padilla v. Vazquez,
223 Ill. App. 3d 1018, 1023, 586 N.E.2d 309 (1991).
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Count III of the plaintiff's complaint was dismissed
pursuant to 2-619(a)(5) of the Code, which allows for involuntary
dismissal when "the action was not commenced within the time
limited by law." 735 ILCS 5/2-619(a)(5) (West 2006). A section
2-619 motion to dismiss admits the legal sufficiency of the
complaint and raises defects, defenses, or other affirmative
matters that defeat the claim. Cohen v. McDonald's Corp., 347
Ill. App. 3d 627, 632, 808 N.E.2d 1 (2004). Such a motion should
be granted if, after construing the pleadings and supporting
documents in a light most favorable to the nonmoving party, the
court finds that no set of facts can be proved upon which relief
can be granted. Webb v. Damisch, 362 Ill. App. 3d 1032, 1037,
842 N.E.2d 140 (2005). This court does not give deference to the
circuit court's ruling on a motion to dismiss pursuant to section
2-619, but, rather, reviews the matter de novo. Fuller Family
Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613,
863 N.E.2d 743 (2007).
Section 13-101 provides, in relevant part, that:
"No person shall commence an action for
the recovery of lands, nor make an entry
thereon, unless within 20 years after the
right to bring such an action or make such
entry first accrued, or within 20 years
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after, he, she or those from, by, or under
whom he or she claims, have acquired title or
possession of the premises." 735 ILCS 5/13-
101 (West 2006).
This section of the Code incorporates the doctrine of adverse
possession. Joiner v. Janssen, 85 Ill. 2d 74, 81, 421 N.E.2d 170
(1981); McNeil v. Ketchens, 397 Ill. App. 3d 375, 393, __ N.E.2d
__ (2010). Accordingly, for an action to be barred under section
13-101, the disputed lands must be in the possession of another
for 20 years and that possession must be (1) continuous; (2)
hostile or adverse; (3) actual; (4) open, notorious, and
exclusive; and (5) under a claim of title inconsistent with that
of the true owner. Joiner, 85 Ill. 2d at 81; Miller v.
Metropolitan Water Reclamation District of Greater Chicago, 374
Ill. App. 3d 188, 189-90, 870 N.E.2d 1040 (2007).
In seeking to uphold the circuit court's dismissal of count
III, the defendant asserts that the parking ramp in question was
in existence when the easement was created in October of 1984,
and was, therefore, used by the hotel for more than 20 years
before the plaintiff initiated this lawsuit in 2007. According
to the plaintiff's complaint, however, the former owners of the
plaintiff's property permitted the existence of the parking ramp
as an accommodation to the hotel. Where, as in this case, the
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property is used with the permission of the owners, possession is
not hostile or adverse. See McNeil, 397 Ill. App. 3d at 393.
The complaint further alleges that this permission was not
withdrawn until the plaintiff purchased the property in 2006.
Because the filing of this lawsuit a year later tolled the
running of the adverse possession statute (see Baird & Warner,
Inc. v. Addison Industrial Park, Inc., 70 Ill. App. 3d 59, 75,
387 N.E.2d 831 (1979)), it cannot be said that the existence of
the ramp was adverse or hostile for a period of 20 years. Absent
20 years of hostile or adverse possession, the statute of
limitations contained in section 13-101 does not apply. See
Joiner, 85 Ill. 2d at 81. Consequently, the circuit court
erroneously dismissed count III on that basis.
Next, the plaintiff contends that the circuit court erred in
dismissing count I of its complaint, seeking a declaration that
the defendant's rights to free parking ended in "approximately
1986," the year the original hotel ceased operations. The
plaintiff argues that, contrary to the circuit court's findings,
count I is not time barred under either section 13-101 or section
13-102 of the Code (735 ILCS 5/13-101, 13-102 (West 2006)).
Because this count was also dismissed pursuant to section 2-
619(a)(5) of the Code (735 ILCS 5/219(a)(5) (West 2006)), our
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review is de novo. See Fuller Family Holdings, 371 Ill. App. 3d
at 613.
With regard to the dismissal of count I under section 13-
102, the plaintiff argues that this section of the Code sets
forth the limitations period for the recovery of land premised
upon the breach of a condition subsequent. According to the
plaintiff, section 13-102 is inapplicable to count I, as no
condition subsequent was created by the language in the easement
stating that the free parking rights would "terminate immediately
and without further notice" when the hotel ceased operation.
In response, the defendant asserts that the plaintiff has
forfeited this issue by failing to raise it in the circuit court.
The plaintiff disagrees, maintaining that the argument that the
easement for free parking did not contain a condition subsequent
was raised in the lower court. Although the record reveals that,
in response to the defendant's motion to dismiss the plaintiff's
amended complaint, the plaintiff did argue that "[c]ount I seeks
a declaratory judgement that the provisions in paragraphs 2 and 3
of the easement allowing free parking to guests of the hotel have
terminated pursuant to the express provisions of paragraph 4," we
do not believe that this vague and general allegation was
sufficient to overcome forfeiture. Nevertheless, forfeiture is a
limitation on the parties and not this court. Michigan Avenue
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National Bank v. County of Cook, 191 Ill. 2d 493, 518, 732 N.E.2d
528 (2000). In the interests of achieving a just result and
maintaining a sound and uniform body of precedent, we will
consider this issue. Village of Lake Villa v. Stokovich, 211
Ill. 2d 106, 121, 810 N.E.2d 13 (2004).
Pursuant to Section 13-102 of the Code, "[n]o person shall
commence an action for the recovery of lands, nor make an entry
thereon, by reason of the breach of a condition subsequent,
unless within 7 years after the time that condition is first
broken." 735 ILCS 5/13-102 (West 2006). In this case, the
easement granting free parking to the hotel's patrons and guests
was to continue "so long as" the hotel remained in operation. It
further provided that "[c]easing to operate the subject hotel as
a hotel business shall cause this easement to terminate
immediately and without notice." As the easement in question
provided that, when the hotel ceased operations, the right to
free parking would automatically terminate without any reentry or
other act on the part on the grantor, the easement does not
contain a condition subsequent. See Pure Oil Co. v. Miller-
McFarland Drilling Co., 376 Ill. 486, 495, 34 N.E.2d 854 (1941)
(upon the breach of a condition subsequent, the property does not
automatically return to the grantor, but he or she is entitled to
reenter and repossess the estate when the stated condition
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occurs). Moreover, an easement only provides a right or
privilege in the use of another's property. Matanky Realty
Group, Inc. v. Katris, 367 Ill. App. 3d 839, 842, 856 N.E.2d 579
(2006). Because the ownership interest in the land remains with
the grantor (Matanky Realty Group, Inc., 367 Ill. App. 3d at
842), it follows that no right of reentry or reverter is
necessary to revest the grantor of an easement with absolute
ownership (Schnabel v. County of DuPage, 101 Ill. App. 3d 553,
562-63, 428 N.E.2d 671 (1981)). For these reasons, we conclude
that count I is not barred by the statute of limitations for
breach of a condition subsequent contained in section 13-102 and,
therefore, should not have been dismissed on that ground.
We reach a similar conclusion regarding the circuit court's
dismissal of count I pursuant to section 13-101 of the Code (735
ILCS 5/13-101 (West 2006)). As previously discussed, section 13-
101 requires 20 years of possession that must be (1) continuous;
(2) hostile or adverse; (3) actual; (4) open, notorious, and
exclusive; and (5) under a claim of title inconsistent with that
of the true owner. Joiner, 85 Ill. 2d at 81; Miller, 374 Ill.
App. 3d at 189-90. The record before us, however, does not
establish continuous, adverse possession for a period of 20
years. To the contrary, the plaintiff alleged in its amended
complaint that the hotel was not in operation from approximately
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1986 until 1999. As a consequence, vehicles from the hotel could
not have utilized the parking lot during that period. Even when
the hotel reopened, there is no evidence that hotel patrons or
guests were ever allowed to park on the plaintiff's property
under the terms of the easement as originally written. Instead,
Lewis Spector, the former manager of parking lot, attested in his
affidavit that at no time after the hotel reopened in 1999 did
its managers demand that hotel patrons or guests be permitted to
park in the parking lot without charge. Leslie Barnard, a
member of the defendant, also admitted in his deposition that
neither he nor anyone involved in the day-to-day management of
the hotel ever demanded that the hotel's patrons or guests be
provided with free parking. Because the evidence fails to show
the hotel's continuous and adverse use of the plaintiff's
property for 20 years, section 13-101 has no application in this
case. Accordingly, we conclude that the circuit court, likewise,
erred in dismissing count I on that basis.
In a related argument, the plaintiff asserts that the
circuit court erroneously denied its motion for leave to amend
its complaint to change the year the hotel ceased operations from
1986 to 1988. In its briefs before this court, the plaintiff
admits that it sought this amendment in order to avoid the 20-
year statute of limitation contained in section 13-101. Having
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previously found that section 13-101 is inapplicable to the facts
of this case, we need not address the plaintiff's arguments in
this regard.
The plaintiff also contends that it is entitled to summary
judgment on count I of its complaint and asks this court to grant
its motion in this regard. The record, however, reflects that
the circuit court never addressed the merits of the plaintiff's
motion for summary judgment, finding the motion moot because of
its ruling that count I was time barred by sections 13-101 and
13-102. As a consequence, we decline to address this issue for
the first time on appeal. See Universal Underwriters Insurance
Co. v. Judge & James, Ltd., 372 Ill. App. 3d 372, 387-88, 865
N.E.2d 531 (2007).
Finally, the plaintiff argues that the circuit court erred
in granting the defendant's motion for a directed finding on
count II of its complaint. Again, we agree.
In a bench trial, section 2-1110 of the Code allows the
defendant, at the close of the plaintiff's case in chief, to move
for a directed finding in his or her favor. 735 ILCS 5/2-1110
(West 2006). In ruling on such a motion, a court must engage in
a two-step analysis. Kokinis v. Kotrich, 81 Ill. 2d 151, 155,
407 N.E.2d 43 (1980). First, the court must determine as a
matter of law whether the plaintiff has presented a prima facie
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case. Zannini v. Reliance Insurance Co. of Illinois, 147 Ill. 2d
437, 449, 590 N.E.2d 457 (1992). That is to say, did the
plaintiff present some evidence on every element essential to the
cause of action? Kokinis, 81 Ill. 2d at 154. Second, if the
plaintiff has presented some evidence on each element, the court
then must consider and weigh the totality of the evidence
presented, including evidence which is favorable to the
defendant. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264,
275-76, 786 N.E.2d 139 (2003). After weighing all the evidence,
the court should determine, applying the standard of proof
required for the underlying cause, whether sufficient evidence
remains to establish the plaintiff's prima facie case. People
ex. rel. Sherman, 203 Ill. 2d at 276.
If the circuit court finds that the plaintiff has failed to
present a prima facie case as a matter of law, the standard of
review is de novo. People ex rel. Sherman, 203 Ill. 2d at 275.
If, however, the circuit court considers the weight and quality
of the evidence and finds that no prima facie case remains, the
circuit court's decision will not be disturbed on appeal unless
it is against the manifest weight of the evidence. Zannini, 147
Ill. 2d at 449.
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In granting the defendant's motion for a directed finding,
the circuit court determined that the plaintiff failed to
"sustain its burden." Specifically, the court noted that:
"Although ingress and egress will be
maintained in the manner in which it is
presently used, the easement is very specific
as to the boundaries and as to the use of the
entire easement property for ingress, egress,
and parking. Building of Phase I would
violate [the] defendant's rights under the
easement."
As the plaintiff correctly asserts, the circuit court did not
make any credibility findings in reaching this conclusion and,
instead, appears to have construed the easement as a matter of
law. Consequently, we review the circuit court's ruling de novo.
See People ex rel. Sherman, 203 Ill. 2d at 277.
In count II, the plaintiff sought a judicial declaration
that, during and after the construction of the proposed
development, the hotel's ingress and egress would be adequately
maintained, and, as a consequence, the terms of the easement
would not be violated. The essential elements of a declaratory
judgment action are: (1) a plaintiff having a legal, tangible
interest; (2) a defendant having an opposing interest; and (3)
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the existence of an actual controversy between the parties
concerning such interests. Beahringer v. Page, 204 Ill. 2d 363,
372, 789 N.E.2d 1216 (2003); Record-A-Hit, Inc. v. National Fire
Insurance Co., 377 Ill. App. 3d 642, 645, 880 N.E.2d 205 (2007).
In this case, the parties do not dispute that the defendant has
an interest in this matter or that an actual controversy exits
between the parties. Accordingly, we focus our consideration on
whether the plaintiff presented some evidence that it had a
legal, tangible interest.
As it did in the circuit court, the defendant maintains that
its easement for ingress and egress would be violated if the
plaintiff was allowed to build the proposed development. Noting
that the legal description contained in the easement refers to
parcels one through four of the plaintiff's property, the
defendant asserts that it has the right of ingress and egress
over these four parcels, an area 273.33 feet by 159 feet in size.
According to the defendant, a portion of the proposed development
would require permanent improvements to be built in parcels one
through four, thereby preventing its access to this area.
Although the general boundaries of the easement are clearly
defined by the legal description contained therein, the easement
does not provide a specific width or location for the ingress and
egress. Cf. Ogilby v. Donaldson's Floors, Inc., 13 Ill. 2d 305,
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306, 148 N.E.2d 758 (1958) (easement "for the maintenance of the
present alleyway from South Main Street to Wyman Street of the
Southernly 20.15 feet in width of said lot 5"); Seymour v. Harris
Trust & Savings Bank of Chicago, 264 Ill. App. 3d 583, 586 n.3,
636 N.E.2d 985 (1994) (easements over the "southeasterly twenty
(20) feet of each said Lots 2, 3, & 4" and "southeasterly three
(3) feet of said Lot 1"). Instead, the easement merely states
that "[a]ll persons, by motor vehicle or otherwise, shall have
the rights to ingress and egress in perpetuity to or from the
property through and/or across the parking facility property."
When unspecified, the dimensions of an easement will be construed
as those reasonably necessary and convenient for the purposes for
which the easement was created. Koplin v. Hinsdale Hospital, 207
Ill. App. 3d 219, 231, 564 N.E.2d 1347 (1990); Vallas v. Johnson,
72 Ill. App. 3d 281, 282, 390 N.E.2d 939 (1979). Contrary to the
defendant's assertions, the easement only grants it an ingress
and egress of a width and location reasonably necessary and
convenient for its use, not the right to utilize the entire
portion of the plaintiff's property contained in parcels one
through four.2
2 The defendant also contends that the easement grants it the
right to free parking throughout parcels one through four of the
plaintiff's property, and that the proposed development would
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Furthermore, the plaintiff, as the owner of the servient
estate, may modify or relocate the easement, so long as the
changes would not cause substantial harm to the dominant estate,
in this case the defendant. McGoey v. Brace, 395 Ill. App. 3d
847, 859, 918 N.E.2d 559 (2009); see also Restatement (Third) of
Property § 4.8(3) (2000). At trial, James Plunkard, the
architect hired to design the proposed development, testified
that the project could be completed without significant
interference to the hotel's ingress and egress. Plunkard further
testified that, upon completion of the development, the hotel's
ingress and egress would be essentially the same. Luay Aboona, a
traffic engineer retained by the plaintiff to evaluate the impact
of the proposed development, also opined that, both during the
construction and after the development is completed, access to
the hotel property would be maintained. Based on the record
before us, it cannot be said the plaintiff failed to present any
evidence establishing that the defendant would not be
violate that right. In light of our previous conclusion that the
circuit court erred in dismissing count I of the plaintiff's
amended complaint, the question of whether the defendant's right to
free parking ended after the original hotel ceased operation
remains unresolved. Accordingly, it would be premature for us to
address this issue on appeal.
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substantially harmed by the proposed modifications to the
easement for ingress and egress. In fact, after hearing the
plaintiff's case in chief, the circuit court determined that
"ingress and egress will be maintained in the manner in which it
is presently used."
Under the facts of this case, we find that the plaintiff
presented some evidence that it had the legal right to modify the
easement for ingress and egress. We, therefore, conclude that
the plaintiff established a prima facie case for a declaratory
judgment action. Consequently, the circuit court erred in
granting the defendant's motion for a directed finding on count
II.
For the foregoing reasons, we reverse the circuit court's
dismissal of counts I and III, reverse the entry of a directed
finding on count II, and remand the matter to the circuit court
for further proceedings.
Reversed and remanded.
CUNNINGHAM, P.J., and THEIS, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be attached to Each Opinion)
Please use the 527 S. CLINTON, LLC, an Illinois limited liability company, following form: Plaintiff-Appellant, Complete v. TITLE of Case. WESTLOOP EQUITIES, LLC, an Illinois limited liability company,
Defendant-Appellee.
Docket No. No. 1-09-2200 Court Appellate Court of Illinois First District, Second Division Opinion Filed July 20 ,2010 (Give month, day and year)
JUSTICE THOMAS E. HOFFMAN, delivered the opinion of the Court.
CUNNINGHAM, P.J. THEIS, J. , concur[s]. JUSTICES , dissent.
Appeal from the Lower Court and trial Judge(s) in form indicated in margin: Circuit Court of Cook County; the Appeal from the Circuit Court of Cook County. Judge Presiding. The Hon. MARTIN S. AGRAN , Judge(s) Presiding.
For Appellants, Indicate if attorney represents APPELLANTS or APPELLEES and include John Doe, of attorneys of counsel. Indicate the word NONE if not represented. Chicago. FOR APPELLANT(s): Kevin M. Forde, Joanne R. Driscoll and Melissa For Appellees, G. Lafferty, of Chicago & of counsel. Smith & Smith, of Chicago.
Also add attorneys for third party FOR APPELLEE(s): Robert A. Egan, P.C., of Chicago & of counsel. appellants and/or
-25- No. 1-09-2200
appellees.
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