2019 IL App (5th) 180332 NOTICE Decision filed 09/13/19. The text of this decision may be NO. 5-18-0332 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
PHILLIP D. ALWARD, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Christian County. ) v. ) No. 16-CH-25 ) JACOB HOLDING OF ONTARIO L.L.C., ) GRANT P. ALWARD, and CARRIE M. ) ALWARD, ) ) Defendants ) ) Honorable (Jacob Holding of Ontario L.L.C., Defendant- ) J. Marc Kelly, Appellee). ) Judge, presiding. ______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court, with opinion. Justices Chapman and Cates concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Phillip D. Alward, brought an action to quiet title to property located in Christian
County, Illinois. Plaintiff had previously executed a quitclaim deed purporting to convey title to
his son, Grant Alward, and daughter-in-law, Carrie Alward (the Alwards). 1 The agreement stated
that the Alwards were responsible for the principal balance on the loan. Although the original loan
was secured by a recorded mortgage through Chase Bank, the Alwards subsequently entered into
1 The Alwards did not file an answer or other responsive pleading to the quiet title complaint. On that basis, the circuit court entered a default order in favor of plaintiff on October 6, 2017, and against the Alwards. The Alwards did not file an appeal, and they are not parties to this appeal. 1 a loan agreement secured by a recorded mortgage with the appellee, Jacob Holding of Ontario
L.L.C. (Jacob Holding).
¶2 Plaintiff later averred that he had mistakenly forgotten that the property was held in an
Illinois land trust. Thus, plaintiff did not have legal authority to convey title to the Alwards when
he executed the quitclaim deed in his individual capacity. Consequently, plaintiff asserted that the
quitclaim deed was invalid and the title transfer was ineffective because Chicago Title and Land
Trust Company (Chicago Title), as successor trustee, had sole authority to convey title. Plaintiff,
claiming superior title, dissolved the land trust and asserted that the quitclaim deed and the
subsequent mortgage constituted a cloud on title. Plaintiff and Jacob Holding filed cross-motions
for summary judgment. The circuit court granted Jacob Holding’s motion for summary judgment
and denied plaintiff’s motion for summary judgment. This appeal followed.
¶3 I. Background
¶4 Plaintiff was the sole surviving beneficiary of an Illinois land trust, recorded in 1996, for
property located in Christian County, Illinois. The following language gave plaintiff, as
beneficiary, the power to direct the trustee to convey title:
“(b) The interest of any person or beneficiary hereunder shall consist solely of the
power of direction over the title to said property and the right to receive the proceeds from
rentals, mortgages, sales or other dispositions of said property or rights therein.
***
(g) The beneficiary or beneficiaries hereunder shall have the full management and
control of said property and of the selling, renting, and handling thereof, including
collection of rent and proceeds of sale, and the payment of taxes, assessments, insurance
and other expenses in connection therewith.”
2 ¶5 On March 5, 2012, plaintiff executed a quitclaim deed purporting to convey title to the
Alwards in exchange for paying the principal balance of the loan to Chase Bank. The quitclaim
deed included the following language:
“Grantor does hereby grant, bargain and sell all of the Grantor’s rights, title, and
Interest in and to the above described property and premises to the Grantee(s); and to the
Grantee(s) heirs and assigns forever, so that neither Grantor(s) nor Grantor’s heirs, legal
representatives or assigns shall have, claim or demand any right or title to the property,
premises, or appurtenances, or any part thereof.”
The quitclaim deed provided the parcel number, address, and legal description of the property, but
it did not designate plaintiff as a beneficiary or specify that the property was held in a land trust.
Although plaintiff intended to transfer ownership to the Alwards, which he believed took place
when he executed the quitclaim deed, he acknowledged that he overlooked that the property was
held in a land trust.
¶6 On April 12, 2012, the Alwards recorded the quitclaim deed, even though the last recorded
deed indicated that the property had been in a land trust since 1996.
¶7 From May 26, 2015, to June 1, 2015, plaintiff’s legal counsel corresponded via e-mail with
Macon County Title, the real estate closing agent; Chase Bank, the mortgagor; and Chicago Title,
the successor trustee of the land trust. Plaintiff’s legal counsel summarized the following issues
via e-mail:
“[Plaintiff] intended to convey a residence to his son Grant in April 2012 with the
understanding that Grant would take over the mortgage loan. However, [plaintiff] forgot
that title was in a land trust ([Chicago Title] is now Trustee). Grant has recently signed a
3 contract to sell the residence to an unrelated third party with a closing scheduled for June
10, 2015. [Chase Bank’s] loan will be repaid in full from closing proceeds.”
The sale of the property from the Alwards to the third-party purchaser did not materialize. The
record supports that the Alwards were unaware of the existence of the land trust in 2012. However,
the record is unclear whether the Alwards had knowledge of the land trust in June 2015.
¶8 In September 2015, the Alwards entered into a loan agreement, secured by a mortgage held
by Jacob Holding, without plaintiff’s knowledge. While the record is unclear whether the Alwards
had knowledge of the land trust at that time, it is undisputed that, prior to entering into the
agreement, the Alwards did not secure a trustee’s deed or inform Jacob Holding of the land trust.
Shortly thereafter, Jacob Holding recorded the mortgage with the Christian County Recorder of
Deeds.
¶9 On May 27, 2016, plaintiff directed the trustee of the land trust to dissolve the trust by
executing a deed to plaintiff. The deed was recorded on June 2, 2016. On June 9, 2016, plaintiff
filed a quiet title complaint alleging that he held superior, fee simple title to the property. Plaintiff
asserted that the 2012 quitclaim deed was ineffective to convey any interest to the Alwards because
the property was held in a land trust at the time the deed was executed. Plaintiff further asserted
that the recorded mortgage by Jacob Holding was “ineffective to pledge the Property as security
for any loan because *** [the Alwards] had no ownership interest in the Property.” Plaintiff
requested the circuit court to declare the quitclaim deed and mortgage invalid and remove the cloud
on title from public record.
¶ 10 On February 22, 2017, plaintiff filed a motion for summary judgment alleging that no
genuine issue of material fact existed with respect to the complaint to quiet title. Jacob Holding
subsequently filed a response to plaintiff’s motion for summary judgment and a cross-motion for
4 summary judgment. Jacob Holding asserted that Illinois case law permitted a beneficiary to convey
property rights even if the property was held in a land trust; thus, the quitclaim deed assigned
plaintiff’s beneficiary interests to the Alwards. Alternatively, Jacob Holding asserted that it was
protected from adverse claims as a “bona fide purchaser for value” because it had no notice of
defect in the title.
¶ 11 On May 17, 2018, the circuit court entered an order denying plaintiff’s motion for summary
judgment and granting Jacob Holding’s motion for summary judgment. The court reasoned that it
would be unjust to allow plaintiff “to subsequently take back this transfer on which subsequent
parties have relied” because plaintiff had the ability to direct the transfer of the land trust and “fully
intended to do so.” The court did not clarify whether plaintiff had conveyed legal title or his
beneficial interest in the property when he executed the quitclaim deed. Plaintiff filed a timely
appeal.
¶ 12 II. Analysis
¶ 13 On appeal, plaintiff contends that the circuit court erred in resolving the cross-motions for
summary judgment in favor of Jacob Holding because plaintiff was not the title holder and lacked
authority to convey title to property held in a land trust. Plaintiff asserts that the court should have
invalidated the quitclaim deed and had the trustee retain title.
¶ 14 In response, Jacob Holding contends that the court did not err because the land trust
expressly authorized plaintiff to direct the trustee to convey title to the property. In an alternative
argument, Jacob Holding asserts that, even if title was not conveyed, plaintiff, as beneficiary of
the land trust, assigned his interest by executing the quitclaim deed to the Alwards, who,
effectively, became beneficiaries of the land trust. We agree with plaintiff.
5 ¶ 15 A quiet title action is an equitable proceeding in which a party seeks to remove a cloud on
title to a property. Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 52 (2009). “A
cloud on title is the semblance of title, either legal or equitable, appearing in some legal form but
which is, in fact, unfounded or which it would be inequitable to enforce.” Id. A plaintiff in a quiet
title action cannot claim a cloud on his title unless he actually holds title to the property. Id.; see
also Marlow v. Malone, 315 Ill. App. 3d 807, 812 (2000). A plaintiff must prevail on the strength
of his own title, rather than merely on defects in a defendant’s title. Diaz v. Home Federal Savings
& Loan Ass’n of Elgin, 337 Ill. App. 3d 722, 726 (2002).
¶ 16 Summary judgment is appropriate when all pleadings, depositions, admissions, and
affidavits demonstrate there is no genuine issue of material fact and, therefore, the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). Where parties file
cross-motions for summary judgment, they concede the absence of a genuine issue of material
fact, agree that only questions of law are involved, and invite the court to decide the issues based
on the record. Stevens v. McGuireWoods LLP, 2015 IL 118652, ¶ 11. When the circuit court grants
one party’s motion and denies the other party’s motion on the same issues, the resulting order is
final and appealable. Chicago Tribune Co. v. Cook County Assessor’s Office, 2018 IL App (1st)
170455, ¶ 18. An appellate court reviews a summary judgment order de novo and construes the
record in the light most favorable to the nonmoving party. Harris v. Adame, 2015 IL App (1st)
123306, ¶ 21. Under the de novo standard of review, the reviewing court performs the same
analysis as the circuit court, giving no deference to the circuit court’s decision or rationale.
Bituminous Casualty Corp. v. Iles, 2013 IL App (5th) 120485, ¶ 19.
¶ 17 Here, the property at issue involved an Illinois land trust. In a conventional trust, the trustee
holds legal title, and the beneficial owner holds equitable title. Parkway Bank & Trust Co. v.
6 Gleich, 213 Ill. App. 3d 444, 448 (1991). Illinois land trusts, on the other hand, are a device by
which real property is conveyed to a trustee under an arrangement that reserves the full
management and control of the property to the beneficiary. IMM Acceptance Corp. v. First
National Bank & Trust Co. of Evanston, 148 Ill. App. 3d 949, 954 (1986) (citing Robinson v.
Chicago National Bank, 32 Ill. App. 2d 55, 58 (1961)). Section 1 of the Land Trust Beneficial
Interest Disclosure Act defines a land trust as follows:
“[A]ny express agreement or arrangement whereof a use, confidence or trust is declared of
any land, or of any charge upon land, for the use or benefit of any beneficiary, under which
the title to real property, both legal and equitable, is held by a trustee, subject only to the
execution of the trust, which may be enforced by the beneficiaries who have the exclusive
right to manage and control the real estate, to have the possession thereof, to receive the
net proceeds from the rental, sale, hypothecation or other disposition thereof, and under
which the interest of the beneficiary is personal property only.” 765 ILCS 405/1 (West
2018).
¶ 18 Typically, most of the usual attributes of real property ownership are retained by the
beneficiary under an Illinois land trust agreement. People v. Chicago Title & Trust Co., 75 Ill. 2d
479, 488 (1979). Specifically, legal and equitable title lie with the trustee, and the beneficiary
retains what is referred to as personal property interest. Id. Moreover, only the trustee may deal
with or convey title. In re Estate of Crooks, 266 Ill. App. 3d 715, 723 (1994). The policy of our
courts is to demand that persons dealing with trust property strictly observe the trust features.
Kortenhof v. Messick, 18 Ill. App. 3d 1, 7 (1974).
¶ 19 On appeal, plaintiff argues that the quitclaim deed and Jacob Holding’s mortgage are
“invalid” and “outside the chain of title.” In support, plaintiff argues that, contrary to the circuit
7 court’s order, it is well settled under Illinois law that “a land trust beneficiary cannot convey legal
title.” Plaintiff acknowledges that a beneficiary may contract to direct the trustee to convey title to
the land trust property in appropriate circumstances; however, he argues that no Illinois case has
held that a beneficiary, in place of a trustee, can convey legal title of a property held in a land trust.
We agree.
¶ 20 Plaintiff’s primary argument relies on the reasoning in In re Estate of Crooks, 266 Ill. App.
3d at 721, where our colleagues in the First District directly addressed the question of whether a
beneficiary of a land trust could convey title to real property by executing a quitclaim deed. In
Crooks, a beneficiary executed quitclaim deeds to convey five parcels of real property held in a
land trust. Id. The court affirmed the circuit court’s determination that a beneficiary “could not
convey what he did not own,” and the parcels at issue were nontransferable by the quitclaim deeds.
Id. The court explained the nature of Illinois land trusts as follows:
“ ‘The land trust form of land ownership yields certain benefits to the beneficiaries,
whether it be effective management, secret ownership, insulation from personal liability or
some other advantage. These benefits result from the willingness, on the part of the courts
of Illinois, to observe the form of the trust transaction. *** Consistency requires, then, the
observance by the beneficiary of the form of the trustee’s ownership. Retaining the nature
of his interest in order to be entitled to the advantages of a land trust, he may not then deal
with the property as if no such trust existed.’ ” Id. at 722 (quoting Schneider v. Pioneer
Trust & Savings Bank, 26 Ill. App. 2d 463, 466 (1960)).
Moreover, pursuant to well-established policy, “a beneficiary may not enter into a land trust
agreement with a trustee and then deal with the property as if no trust existed; persons dealing with
8 the trust property must strictly observe the trust’s features.” Id. (citing Kortenhof, 18 Ill. App. 3d
at 7).
¶ 21 In response, Jacob Holding contends that, regardless of plaintiff’s lapse of judgment, “the
conveyance is nevertheless valid because it only needs a direction to convey to be finalized.” For
support, Jacob Holding cites several cases to demonstrate “exceptions to the general rule,”
asserting that “this court is free to reject Crooks and come in line with the better reasoned
approach.” See Madigan v. Buehr, 125 Ill. App. 2d 8 (1970); Rizakos v. Kekos, 56 Ill. App. 3d 404
(1977); Paine/Wetzel Associates, Inc. v. Gitles, 174 Ill. App. 3d 389 (1988); In v. Cheng, 232 Ill.
App. 3d 165 (1991).
¶ 22 First, in Madigan, in affirming the denial of damages for an alleged breach of a sales
contract involving property in a land trust, the court determined that “it cannot be said that a
beneficiary can never contract to sell the trust property.” 125 Ill. App. 2d at 16. Instead, a
beneficiary could do so under appropriate circumstances because the “trust agreement gives him
‘control of the selling’ and the right to direct the trustee to convey title to whomever he designates.”
Id. at 16-17. “Since he has the power to designate conveyance he may contract to exercise that
power.” Id. at 17. Regardless, the beneficiary’s “legal interest in the trust remains personal
property.” Id.
¶ 23 In Rizakos, a purchaser sought to enforce a real estate contract executed by two
beneficiaries of a land trust who deliberately failed to disclose that they were beneficiaries and
that the subject property was held in a land trust. 56 Ill. App. 3d at 405-07. The court held that the
purchaser was entitled to specific performance; thus the beneficiaries entered into a valid and
enforceable contract to convey the trust property. Id. at 408. Based on an examination of the trust
declaration and agreement, the court determined that the beneficiaries had the right to direct the
9 trustee to convey title to the trust property. Id. at 406-07. Additionally, the terms of the contract
provided that the balance of the purchase price would be paid on delivery of a stamped warranty
or trustee’s deed and expressly delineated the cobeneficiary’s unequivocal acceptance of the
plaintiff’s offer. Id. After concluding that the plaintiff did not have an affirmative obligation to
search title prior to signing, the court concluded that the beneficiaries entered into a valid and
enforceable contract to convey trust property. Id. at 408. The court noted that “[t]o deny specific
enforcement of this contract, would *** allow the defendants to have a unilateral option whereby
they could choose to enforce or escape their obligation under this contract at their whim.” Id. at
407.
¶ 24 In Paine/Wetzel Associates, 174 Ill. App. 3d at 391, the plaintiff, a real estate brokerage,
brought an action, seeking declaratory judgment, against trustees and beneficiaries of land trusts.
In reversing the circuit court’s dismissal of declaratory judgment, the First District stated that a
“well-settled exception to a beneficiary’s inability to affect title to [land trust] property” is where
a “beneficiary of an Illinois land trust, when acting in his capacity as beneficiary, may enter into a
valid contract affecting title to trust property if the trust agreement vests in him the sole right to
direct the trustee to convey title.” Id. at 394 (citing Madigan, 125 Ill. App. 2d at 16-17). Applying
the exception, the court determined the plaintiff’s complaint was legally and factually sufficient.
Id.
¶ 25 Lastly, in In, 232 Ill. App. 3d at 166, a purchaser brought an action to quiet title to a parcel
of commercial property against a competing holder who acquired a subsequent interest in the
property. Although the land trust agreement vested power to convey title in the trustee, the court
held the trust agreement does not preclude the purchaser from enforcing the real estate contract
executed by the beneficiary of the trust. Id. at 171-72. The court noted that prior courts had
10 “carv[ed] out exceptions to [the] general rule” to expand the authority of beneficiaries to contract
to sell real estate owned in a land trust. Id. at 170-71 (citing Rizakos, 56 Ill. App. 3d at 406); see
also Farley v. Roosevelt Memorial Hospital, 67 Ill. App. 3d 700, 706 (1978) (“Illinois appears to
be expanding the authority of beneficiaries to contract to sell real estate owned in a land trust,
particularly where enforcement of the contract is sought by a purchaser who was not informed by
the seller that his status was that of beneficiary under a land trust.”). The court reasoned that the
land trust agreement did not preclude enforcement because evidence demonstrated that the
cobeneficiary consented to the sale, the plaintiff had no opportunity to check the land trust
agreement, given that he was not informed the property was held in trust, and there existed no
evidence that the trustee would have opposed the sale. In, 232 Ill. App. 3d at 171-72.
¶ 26 Dissimilar to the cases cited above, here, the Alwards did not take action to enforce the real
estate sales agreement entered into by plaintiff, an apparent absentminded beneficiary, after
learning that plaintiff did not hold title at the time of the purported conveyance. Because the case
before us involves an action to prevent a subsequent mortgagor, Jacob Holding, from encumbering
property, it does not involve contractual rights of a purchaser. As a result, the question before this
court is not whether plaintiff was obligated to direct the trustee to convey title but whether title
was conveyed prior to the subsequent mortgage held by Jacob Holding.
¶ 27 Under the circumstances of this case, we cannot find authority to “reject Crooks,” as Jacob
Holding asserts, to create a new exception to the general rule stated in Madigan. We also disagree
that the cases cited by the defendant create exceptions to the fundamental tenet under Illinois land
trust law that “a beneficiary cannot transfer legal title to property held in trust because the
beneficiary does not hold that interest; only the trustee holds that interest.” See Campbell v.
Campbell, 2017 IL App (3d) 160619, ¶ 20 (citing Restatement (Third) of Trusts, pt. 4, ch. 11, intro.
11 note (2003), Restatement (Third) of Trusts § 51 cmt. b (2003), and Kortenhof, 18 Ill. App. 3d at
7-8). Instead, the commonality in these cases, which is well settled and consistent with Illinois
land trust law, is the determination that a beneficiary may in “appropriate circumstances” enter
into a contractual relationship to direct the trustee to execute a trustee’s deed to convey title.
Madigan, 125 Ill. App. 2d at 16-17. In fact, that right is limited to situations where the land trust
agreements vest the beneficiary with the sole right to direct the trustee to convey title. Madigan,
125 Ill. App. 2d at 16; Rizakos, 56 Ill. App. 3d at 405 (citing Seaberg v. American National Bank
& Trust Co. of Chicago, 35 Ill. App. 3d 1065, 1069-70 (1976)). Importantly, we note that Illinois
case law does not suggest that a beneficiary can convey title in place of the trustee, and we decline
to allow it here.
¶ 28 Next, Jacob Holding argues, in the alternative, that plaintiff in effect relinquished his
beneficial interest in the land trust by the quitclaim deed. As a consequence, the Alwards hold the
beneficial rights under the trust. We disagree.
¶ 29 We cannot say that plaintiff was acting as the beneficiary in executing the quitclaim deed,
because it is undisputed that he forgot that the property was held in a land trust. Consequently, the
deed does not mention the land trust or identify plaintiff as beneficiary. Rather, a plain reading of
the quitclaim deed demonstrates that plaintiff, acting in his individual capacity, intended to convey
title to the property.
¶ 30 It is well settled that a quitclaim deed will not constitute an express or equitable assignment
of the beneficial interest in a land trust if the deed merely describes the property and does not refer
to the trust. In re Estate of Crooks, 266 Ill. App. 3d at 734-35. Here, there is nothing in the record
to demonstrate that plaintiff was acting in his capacity as beneficiary to convey his beneficial
interest in the land trust. As described above, the quitclaim deed merely provided the legal
12 description of the property. It was neither signed by plaintiff, as beneficiary, nor does it otherwise
mention the land trust. Likewise, the quitclaim deed’s statement of consideration suggests that the
Alwards contracted to purchase title to the property rather than plaintiff’s beneficial interest. Thus,
it appears on the face of the quitclaim deed that plaintiff was acting in his individual capacity, not
as beneficiary.
¶ 31 In our view, the Alwards and Jacob Holding each had constructive knowledge that the
property was held in a land trust, given that a search of the public record would have revealed the
trustee’s deed had been filed in 1996. Jacob Holding could have required the Alwards to obtain
title through a direction to convey a trustee’s deed, if possible, prior to issuing a mortgage loan.
Accordingly, we cannot conclude that the quitclaim deed transferred any interest—legal, equitable,
or beneficial—in the land trust to the Alwards. Simply put, plaintiff, acting in his individual
capacity and not as beneficiary, had no interest to convey.
¶ 32 Furthermore, even though the quitclaim deed sets out purported consideration of the land
purchase agreement, the written real estate contract is not in the record on appeal. Other than the
issuance of the quitclaim deed, there is nothing in the record to show that the Alwards actually
paid the balance of the mortgage loan to Chase Bank. Regardless, as Jacob Holding pointed out,
the real estate sales contract “needs a direction to convey to be finalized.” Likewise, the Alwards
abandoned any claim of superior title and undertook no action to force plaintiff to fulfill the terms
of the real estate sales agreement by directing the trustee to convey title. By not filing an answer
or response to the quiet title complaint, the Alwards effectively voided the real estate sales
agreement before a proper transfer of title was finalized. See Nikolopulos v. Balourdos, 245 Ill.
App. 3d 71, 78 (1993) (“ ‘[I]f a beneficiary of a land trust deals with the property as if no trust
13 existed and contracts as an owner to sell the property, the contract is void as being beyond the
beneficiary’s power to act.’ ” (quoting Jacobs v. Carroll, 46 Ill. App. 3d 74, 79 (1977))).
¶ 33 Based on the foregoing, we find that the quitclaim deed and the mortgage created a cloud
on title. The circuit court erred in deciding the cross-motions for summary judgment in favor of
Jacob Holding where plaintiff, acting as a seller, mistakenly believed he held title rather than a
beneficiary interest. Thus, plaintiff did not transfer title to the land trust property as a matter of law
by executing the 2012 quitclaim deed to the Alwards.
¶ 34 Accordingly, we reverse the circuit court’s order denying plaintiff’s motion for summary
judgment because there is no genuine issue of material fact where the quitclaim deed was
ineffective in transferring either title to the property, or alternatively, plaintiff’s beneficial interest
in the land trust. We thereby reverse the court’s order entering summary judgment in favor of
Jacob Holding.
¶ 35 III. Conclusion
¶ 36 For the foregoing reasons, we reverse the circuit court’s order, which denied plaintiff’s
motion for summary judgment on his complaint to quiet title and entered summary judgment in
Jacob Holding’s favor. We remand to the circuit court for the entry of an order granting plaintiff’s
motion for summary judgment.
¶ 37 Reversed and remanded with directions.
14 2019 IL App (5th) 180332 NO. 5-18-0332 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
PHILLIP D. ALWARD, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Christian County. ) v. ) No. 16-CH-25 ) JACOB HOLDING OF ONTARIO L.L.C., ) GRANT P. ALWARD, and CARRIE M. ) ALWARD, ) ) Defendants ) ) Honorable (Jacob Holding of Ontario L.L.C., Defendant- ) J. Marc Kelly, Appellee). ) Judge, presiding. ______________________________________________________________________________
Opinion Filed: September 13, 2019 ______________________________________________________________________________
Justices: Honorable John B. Barberis, J.
Honorable Melissa A. Chapman, J., and Honorable Judy L. Cates, J. Concur ______________________________________________________________________________
Attorneys Scott E. Garwood, Craig W. Runyon, Samuels, Miller, Schroeder, Jackson for & Sly, LLP, 225 North Water Street, Suite 301, P.O. Box 1400, Decatur, Appellant IL 62525 ______________________________________________________________________________
Attorneys Brad A. Elward, Michael T. Kokal, Craig L. Unrath, Heyl, Royster, for Voelker & Allen, P.C., 300 Hamilton Blvd., P.O. Box 6199, Peoria, IL Appellee 61601-6199 ______________________________________________________________________________