Dai v. Minchella & Associates, Ltd.

2023 IL App (2d) 220411-U

• Court: Appellate Court of Illinois
• Decided: August 21, 2023
• Docket: 2-22-0411
• Status: Unpublished

Opinion

2023 IL App (2d) 220411-U No. 2-22-0411 Order filed August 21, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

FANGZHOU DAI and YINGYI XU, ) Appeal from the Circuit Court ) of Lake County. Plaintiffs and Counterdefendants- ) Appellants, ) ) v. ) No. 21-L-578 ) MINCHELLA & ASSOCIATES, LTD.; ) ROBERT SCHROEDER and MARIE ) SCHROEDER; and CHICAGO TITLE ) INSURANCE COMPANY, ) ) Defendants ) ) Honorable (Robert Schroeder and Marie Schroeder, ) Daniel L. Jasica, Defendants and Counterplaintiffs-Appellees). ) Judge. Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Presiding Justice McLaren and Justice Kennedy concurred in the judgment.

ORDER

¶1 Held: The trial court properly granted defendants summary judgment on their counterclaim that they took by adverse possession the portion of their driveway that encroached on plaintiffs’ property. Contrary to plaintiffs’ arguments, defendants established as a matter of law that their use of the driveway was (1) adverse, although defendants and their predecessors in title might have been unaware that the driveway encroached on plaintiffs’ property; (2) open and notorious, because the driveway and defendants’ use of it were obvious to plaintiffs; and (3) exclusive, 2023 IL App (2d) 220411-U

because there was no evidence that plaintiffs used, or even had a use for, defendants’ driveway.

¶2 Plaintiffs, Fangzhou Dai and Yingyi Xu, own residential property in Kildeer. Defendants

Robert and Marie Schroeder own residential property immediately north of plaintiffs’ property.

Plaintiffs filed an action for ejectment against the Schroeders, alleging that part of their driveway

illegally encroached on plaintiffs’ property. Plaintiffs also alleged (1) negligence against

Minchella & Associates, Ltd., a law firm representing plaintiffs on the purchase of the property,

and (2) breach of contract against Chicago Title Insurance Company, which had issued a title

insurance policy in connection with the purchase. Plaintiff sought relief from these defendants for

the alleged encroachment.

¶3 The Schroeders pleaded affirmative defenses and a counterclaim, all of which alleged that

the Schroeders owned the encroaching portion of the driveway by adverse possession. On cross-

motions for summary judgment (735 ILCS 5/2-1005(c) (West 2020)), the trial court held for the

Schroeders and awarded them title to the encroaching portion. Plaintiffs have filed an interlocutory

appeal (see Ill. S. Ct R. 304(a) (eff. Mar. 8, 2016)), contending that they are entitled to summary

judgment because the Schroeders failed to prove all elements of adverse possession. We affirm.

¶4 I. BACKGROUND

¶5 On September 8, 2020, plaintiffs filed a three-count complaint. Only count I, against the

Schroeders, is pertinent here. That count alleged that plaintiffs’ property (south property), to which

they held title since September 4, 2018, was bordered on the north by the Schroeders’s property

(north property). A driveway was developed on the north property, consisting in part of a circular

drive at the front of the residence. The southern curve of the circular drive occupied part of the

south property at its northern edge (hereinafter, we refer to the encroaching portion of the driveway

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as the driveway extension). Plaintiffs prayed for an order of ejectment (see 735 ILCS 5/6-129

(West 2020)) as to the encroachment.

¶6 The Schroeders, who acquired the north property in 2008, 1 filed an answer, affirmative

defenses, and a counterclaim. The affirmative defenses and the counterclaim all asserted that the

Schroeders owned the driveway extension by adverse possession (see id. § 13-101). The

Schroeders alleged that (1) for 20 years or more before plaintiffs filed their action, the north

property’s driveway, including the extension, had been used exclusively for the benefit of the north

property owners; (2) this prior use of the driveway had been open, as the driveway and the

extension were always visible; and (3) the north property owners had occupied, improved,

maintained, and controlled the driveway extension without either the permission of the south

property owners or any legal action against the north property owners.

¶7 The Schroeders submitted with their pleadings the affidavit of Francis C. Zackary, dated

October 9, 2021. Zackary stated that, in 1975, he (1) owned the north property, which was then

vacant; (2) submitted plans and a survey; and (3) obtained a building permit. In December 1976,

having built a house and installed a driveway, he received a certificate of occupancy. To obtain

the certificate of occupancy, he was not required to, and did not, submit a final “ ‘as built’ ” survey,

1 We note that the year of the Schroeders’s purchase is not established in the record. In

their opening brief, plaintiffs presume, as they did below, that the Schroeders purchased the north

property in 2008, because the record contains a plat of survey of the north property dated March

26, 2008. The Schroeders confirm in their appellees’ brief that they purchased the north property

in 2008. We accept this representation for purposes of our analysis.

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which would have “depicted the exact location where the driveway was installed relative to the

boundary lines of [the north property].”

¶8 Zackary stated further as follows. For approximately one year after the house was

completed, the driveway had a stone base with gravel on top. In 1977 or 1978, a black asphalt

driveway was laid over the existing driveway. Zackary resided on the north property until 1995.

While he lived there, the location of the driveway was unchanged, and it always included the

driveway extension. Zackary stated that he had reviewed (1) a plat of survey for the north property

dated March 26, 2008; (2) a plat of survey for the south property dated August 29, 2018;

(3) Google aerial photograph (apparently from 2021) of the north property; and (4) aerial

photographs of the north property taken in 1980, 1998, 2000, 2002, and 2005. He affirmed that

all these documents, copies of which were attached to his affidavit, depicted the driveway in the

same location where he had installed it. The documents show the north property’s driveway

extending east from Hampton Court before forming a circular drive at the house’s entrance and,

further east, a parking area in front of the garage. The southern loop of the circular drive is shown

as encroaching on the south property.

¶9 Zackary stated that, since the Schroeders purchased the north property, he had returned two

or three times to view it, most recently two or three years ago. Each time, the driveway was still

in its original location.

¶ 10 After plaintiffs replied to the Schroeders’s affirmative defenses and counterclaim, plaintiffs

and the Schroeders filed cross-motions for summary judgment. Plaintiffs’ three-paragraph motion

alleged that the driveway extension encroached on their property and that there was no lease,

easement, or other express agreement by which plaintiffs allowed the Schroeders to maintain or

use any part of the encroachment. The motion did not attach any affidavits or other exhibits. The

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Schroeders filed an answer to the motion, noting that it did not address their adverse possession

claim.

¶ 11 The Schroeders’s motion attached Zackary’s affidavit and its exhibits. In their motion and

response to plaintiffs’ motion, the Schroeders argued that the evidence established as a matter of

law that, for the statutory 20-year period or longer, the north property owners’ possession of the

driveway extension was (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. See Joiner v.

Janssen, 85 Ill. 2d 74, 81 (1981); 735 ILCS 5/13-101 (West 2020). The Schroeders noted

Zackary’s averments that he had resided on the north property for 17 or 18 years after installing

the driveway and had visited the north property several times since, including two or three years

before he completed his affidavit in October 2021. At these subsequent visits, the driveway,

including the extension, was located where he had installed it.

¶ 12 The Schroeders noted that the driveway ran from Hampton Court to the residence on the

north property, so that Zackary and the succeeding owners, and no one else, used it continuously

to access the property. Further, the use and maintenance of the driveway were open and visible

from the south property. Finally, the Schroeders noted that plaintiffs had conceded that they never

gave the Schroeders permission to use the driveway extension, and the Schroeders also asserted

that there was no evidence that their predecessors in title had given such permission. Thus, the

Schroeders claimed title by adverse possession.

¶ 13 In response, plaintiffs argued first that the north property owners’ use of the driveway

extension had not been exclusive, as there were no fences or other barriers to access from the south

property. Further, they argued, the use of the driveway extension had not been open or notorious,

because there was no evidence that Zackary had intentionally or knowingly encroached on

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plaintiffs’ property; apparently, neither he nor anyone else knew of the problem until the

Schroeders purchased the north property in 2008 and received the survey revealing the

encroachment. Finally, plaintiffs argued, the north property owners had received their neighbors’

implicit permission to use the extension. On this point, plaintiffs relied on Piper v. Warren, 61 Ill.

App. 2d 460, 465-66 (1965), where the plaintiffs claimed an easement in a neighbor’s driveway

based on past shared use, but the court rejected the claim because the plaintiffs’ use “was under an

implied license, a mere extension of neighborly courtesy.”

¶ 14 In reply, the Schroeders contended that the evidence showed that the entire driveway,

including the extension, was used exclusively by the north property owners, as its sole purpose

was to enable access between Hampton Court and their home. Unlike in Piper, there was no shared

use; Zackary built the driveway, he and his successors used it, and the neighbors had no reason to

use it. Also, the driveway extension was not merely open but obvious, as were its use and

maintenance for at least 20 years.

¶ 15 The Schroeders cited Lehman v. Patel, 2021 IL App (1st) 200543-U, ¶ 6, in which the

defendants owned a house and the plaintiff owned an adjacent vacant lot, upon which the

defendants’ sidewalk and access stairs encroached. The trial court granted the defendants

summary judgment and awarded them title by adverse possession to the encroaching property. Id.

¶ 19. The appellate court reversed, holding that the undisputed facts established all requirements

of adverse possession except that the defendants’ use be (1) hostile or adverse and (2) under a

claim of title inconsistent with that of the true owner. Id. ¶¶ 4, 27-28. There were factual issues

on these requirements because, first, the sidewalk and stairs encroached on the plaintiff’s vacant

lot, and “[t]he use of vacant *** land is presumed to be permissive and not adverse.” Id. ¶ 29.

Second, the plaintiff’s predecessor in title had written the defendants’ predecessors in title a letter

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that constituted some evidence of permission. Id. ¶ 31. Specifically, the plaintiff’s predecessor in

title explained in her letter that the sidewalk and stairs encroached on her property, but she was

not asking for the defendant’s predecessors in title to remove them, nor was she waiving her right

to request that they remove the encroachments in the future. Id. The Schroders argued that,

because such facts were absent in the present case, Lehman was persuasive authority in their favor.

¶ 16 The trial court denied summary judgment for plaintiffs and granted summary judgment for

the Schroeders on count I of plaintiffs’ complaint and the Schroeders’ counterclaim. The court

noted, inter alia, that hostile possession requires only the assertion of ownership incompatible with

that of the true owner and all others (see Peters v. Greenmount Cemetery Ass’n, 259 Ill. App. 3d

566, 569 (1994)). Thus, whether Zackary believed he owned the driveway extension did not

matter.

¶ 17 The court made the order immediately appealable. See Ill. S. Ct. R. 304(a) (eff. Mar. 8,

2016). On plaintiffs’ motion to vacate, the court modified the judgment to describe the driveway

extension with specific reference to the survey maps. Plaintiffs timely appealed.

¶ 18 II. ANALYSIS

¶ 19 The sole issue on appeal is whether the trial court correctly held that, as a matter of law,

the Schroeders achieved title to the driveway extension by adverse possession. We hold that the

court was correct.

¶ 20 Summary judgment is proper when the pleadings, depositions, and other matters on file

establish that there is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020); Nationwide Financial, LP v.

Pobuda, 2014 IL 116717, ¶ 24. Our review is de novo. Pobuda, 2014 IL 116717, ¶ 24.

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¶ 21 To establish title to real property by adverse possession, a party must prove that, for 20

years (see 735 ILCS 5/13-101 (West 2020)), his possession of the property was (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; Peters, 259 Ill. App. 3d at 569.

There is a presumption in favor of the true owner, and the claimant’s proof must be strict, clear,

and unequivocal. Joiner, 85 Ill. 2d at 81.

¶ 22 Plaintiffs contend that the Schroeders’s proof fell short on three elements of adverse

possession: hostility or adversity, openness, and exclusivity. We consider these elements in turn.

¶ 23 As the trial court noted, hostility “does not imply actual ill will, but only the assertion of

ownership incompatible with that of the true owner and all others.” Joiner, 85 Ill. 2d at 81.

“ ‘[T]he requirement of adverse use means that the use must be with the knowledge and

acquiescence of the owner but without his permission.’ ” Burrows v. Dintlemann, 41 Ill. App. 3d

83, 86 (1976) (quoting Ruck v. Midwest Hunting & Fishing Club, 104 Ill. App. 2d 185, 190 (1968)).

¶ 24 Plaintiffs contend that the Schroeders did not establish as a matter of law that they and their

predecessors’ use of the driveway extension was hostile. Plaintiffs concede that there is no

evidence that the owners of the south property ever permitted their northern neighbors to use the

driveway extension. Plaintiffs assert, however, that permission was never granted because the

March 26, 2008, survey was the first revelation of the encroachment; before that date, no one—

not even Zackary—was aware of the trespass. Thus, plaintiffs assert, “Mr. Zackary clearly had no

intention to trespass when he built the driveway.” (Emphasis in original.) Plaintiffs conclude that,

lacking the intent to encroach, Zackary lacked “an intent to claim the fee as against the true owner

and all others” (see Morris v. Humphrey, 146 Ill. App. 3d 612, 616 (1986)), and, thus, he did not

act hostilely.

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¶ 25 Plaintiffs’ argument flatly contradicts the current law of adverse possession. Numerous

opinions, including some plaintiffs cite, hold that actions, not intentions or subjective beliefs,

determine hostility. The requirement is “adverse use,” not adverse intent (emphasis added)

(Burrows, 41 Ill. App. 3d at 86) and, although Morris speaks of “an intent to claim the fee,” that

case requires only that the claimant “us[e] and control[ ] the land as an owner.” Morris, 146 Ill.

App. 3d at 616. Indeed, Joiner states, “[O]ne’s actions can adequately convey the intent to claim

title adversely to all the world including the titleholder.” (Emphasis added.) Joiner, 85 Ill. 2d at

82. In adverse possession law, actions speak louder than words—or subjective beliefs.

¶ 26 Joiner removes any doubt that plaintiffs’ argument flouts established authority. In Joiner,

the supreme court expressly rejected the suggestion that possession cannot be adverse if the

claimant “knows or should know that record title is in another.” Id. at 81. The court also clarified

that a claimant’s lack of knowledge that another holds record title does not defeat a claim of

adverse possession. Id. at 82-83. The court refused to adopt the “subjective test” applied in other

jurisdictions, under which “the intention of [the claimant] is the controlling factor in determining

whether possession to a mistaken boundary is hostile.” Id. at 82. The court explained the

drawbacks of the subjective test:

“[Under the subjective test], if a landowner through mistake or ignorance takes

possession to a boundary beyond the true line intending only to claim to the true line and

not intending to claim the additional land if it should be ascertained that the boundary is

not as he thought it, then such possession is not adverse or hostile. [Citation.] *** The

difficulty with the subjective test is that it affords no protection to the landowner who

innocently and mistakenly occupies and improves land beyond his boundaries. He can

never acquire title thereto. Conversely, he who deliberately sets out to steal adjacent land

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may succeed. *** ‘Thus, it is held with increasing frequency that an open, notorious, and

hostile possession of property for the statutory limitation period is sufficient for the

acquisition of title by adverse possession, and the fact that the possession was taken under

mistake or ignorance as to boundary lines is immaterial.’ ” Id. at 82-83 (quoting 3 Am.

Jur. 2d Adverse Possession § 39, at 125-26 (1962)).

¶ 27 Whether or not the present case involves a “mistaken boundary,” this passage from Joiner

disposes of plaintiffs’ argument.2 The court’s reasoning and language show that the court rejected

a subjective test for the hostility element in any adverse possession case. Thus, neither ignorance

nor knowledge of the trespass matters. Actions matter. This was Illinois case law even before

Joiner. Plaintiffs’ attempt to graft a scienter requirement onto adverse possession by limiting

recovery to knowing trespassers defies long-standing precedent.

¶ 28 Plaintiffs make one more argument on hostility. They quote Joiner’s statement that

“occupancy to a visible and ascertained boundary for the statutory period is deemed the controlling

feature in determining hostility in mistaken-boundary cases. [Citations.]” Id. at 83. They contend

that the edge of the driveway extension is not a visible and ascertained boundary, because the

“edge of *** Zackary’s asphalt is not what the [s]upreme [c]ourt had in mind in Joiner.” Plaintiffs’

unsupported speculation about what the supreme court “had in mind” in Joiner is no substitute for

what the court actually said. As the Schroeders note, the driveway extension is delineated with

2 In any event, even plaintiffs’ summary of the facts implies that this is indeed a case of

mistaken boundary. Plaintiffs state that, for most of the 20-year period, the owners of both

properties mistakenly believed that the driveway extension was within the boundary of the north

property and, indeed, considered the extension’s southern edge to be part of that boundary.

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specificity on the survey maps and photographs, and its boundaries are visible and ascertainable

to any occupant of either property.

¶ 29 The trial court was correct that the Schroeders proved that the owners of the north property

used the driveway extension adversely for the requisite period. There was no evidence of

permission by any owner of the south property at any time. Indeed, plaintiffs argue that, for most

of the 20-year period, the owners of the south property were unaware that the driveway extension

lay on land to which the south property owners had title. An owner ignorant of the encroachment

could not have given permission to use the driveway extension. “Possession cannot be permissive

if neither the owner nor the possessor knows there is any encroachment.” McNeil v. Ketchens, 397

Ill. App. 3d 375, 394 (2010). In any event, by conceding in the trial court that permission was not

given, plaintiffs have forfeited any argument that the use was permissive within the 20-year period.

See Kravis v. Smith v. Marine, Inc., 60 Ill. 2d 141, 147 (1975) (party may not seek reversal of

judgment based on theory not raised in trial court).

¶ 30 There is no genuine issue of fact on the element of adversity, so we turn to plaintiffs’

remaining contentions.

¶ 31 Plaintiffs contend next that the Schroeders did not establish as a matter of law that the north

property owners’ use of the driveway extension was open and notorious for the 20-year period.

Again, they argue that, for most of that period, the owners of both properties were unaware that

the north property owners’ use of the driveway extension was a trespass. Plaintiffs state, “A

hypothetical stranger observing this driveway has no clue that it is improperly located.”

¶ 32 Plaintiffs misunderstand the nature of open and notorious use, which need not be

recognized as a trespass at the time. “ ‘Such improvements or acts of dominion over the land as

will indicate to persons residing in the immediate neighborhood who has the exclusive

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management and control of the land are sufficient to constitute possession.’ [Citations.]” Joiner,

85 Ill. 2d at 82 (quoting Augustus v. Lydig, 353 Ill. 215, 221-22 (1933)). “[T]he test for open and

notorious possession is whether the community is or could be apprised of the claimant’s

possession and exclusive use and enjoyment.” (Emphasis in original.) Knauf v. Ryan, 338 Ill.

App. 3d 265, 271 (2003).

¶ 33 Here, nothing was hidden or obscure about the north property owners’ regular use of the

driveway—necessarily including the extension—to travel between their home and their places of

work, shopping, and other activities. The driveway and Hampton Court were in plain view to all

in the area. Equally visible to the neighbors and the community were the driveway’s construction,

improvement, and maintenance. Plaintiffs’ “hypothetical stranger” (if that perspective is even

pertinent) could directly observe all these acts of dominion. Plaintiffs’ challenge on the openness

element fails.

¶ 34 Plaintiffs contend finally that the trial court erred in holding as a matter of law that, for the

20-year period, the north property owners’ use of the driveway extension was exclusive. In their

appellate brief, plaintiffs cite the statement in Davidson v. Perry, 386 Ill. App. 3d 821, 825 (2008),

that exclusivity requires that the claimant “deprive the rightful owner of all possession,’ ”

(Davidson, 386 Ill. App. 3d at 821) and they assert, “Laying a ten-foot patch of asphalt on the

ground does not exclude anyone.” The argument goes no further.

¶ 35 We would be within our prerogative to find that plaintiffs have forfeited this argument. A

court of review is entitled to have the issues clearly defined with citations to pertinent authority.

We are not a depository into which the appealing party may dump the burden of argument and

research. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 13. Insufficiently

developed arguments are forfeited. Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991).

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Quoting one general legal proposition without context and applying it in one conclusional sentence

falls short of a well-developed argument. Nonetheless, we will briefly address the merits of the

argument.

¶ 36 Admittedly, few Illinois opinions discuss the element of exclusivity. 3 Nonetheless, it is

well established that “[e]xclusivity means the claimant’s rights do not depend on the rights of

others.” Peters, 259 Ill. App. 3d at 570. Moreover, the claimant is not required to prove that he

ever excluded others from the property, but only that others “never possessed the [property] during

the adverse possession period.” (Emphasis in original.) Brandhorst v. Johnson, 2014 IL App (4th)

130923, ¶ 57.

¶ 37 Plaintiffs’ contention that the mere existence of the driveway did not prove exclusivity is

insufficient to create a genuine issue of material fact. Although there was little direct evidence of

exclusive use, the indirect evidence was compelling. The driveway extension was part of a

driveway that ran solely between the garage attached to the home on the north property and

Hampton Court. Zackary’s affidavit, the survey maps, and the photographs all show that, for more

than 20 years, the driveway was vital to the owners of the north property and both useless and

superfluous for the owners of the south property. The latter could not access their property via the

driveway unless they drove off the extension and onto their lot; it was far more efficient for them

to use their own driveway, which was wholly sufficient for their needs.

3 The Schroeders rely primarily on Lehman. The court in that unpublished decision held

that the claimants proved exclusivity, but it did not explain that conclusion. See Lehman, 2021 IL

App (1st) 200543-U, ¶ 27.

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¶ 38 Therefore, it is undisputed that, for more than 20 years after the driveway was finished, the

owners of the north property used the extension as their own, and the owners of the south property

never possessed it, even though they might have walked across it or stumbled onto it on occasion. 4

There was no evidence before the trial court that the south property owners did even that much,

and certainly no evidence that they possessed the driveway extension at any time within the period.

Although there is little evidence of what the owners of either property did between 1995 (when

Zackary sold the north property) and 2008 (when the Schroeders purchased the north property), 5

4 Moreover, although there appears to be a dearth of Illinois case law on whether allowing

others to use the claimed property defeats the exclusivity required for adverse possession, several

foreign cases hold that it does not. See Strickland v. Markos, 566 So. 2d 229, 235-36 (Ala. 1990)

(occasional presence of titleholder on disputed driveway did not defeat claim of adverse

possession); Eberhart v. Meadow Haven, Inc., 960 A.2d 1083, 1087-88 (Conn. App. Ct. 2008)

(installation of utility pole on disputed strip, which was also used for invited guests, did not defeat

claim); Schaffer v. Wietzel, 132 N.E.3d 220, 228 (Ohio Ct. App. 2019) (claimants established

adverse possession of driveway even though they occasionally allowed titleholders to go on it or

to play volleyball and have picnics on surrounding land); Harris v. Urell, 135 P.3d 530, 534 (Wash.

Ct. App. 2006) (titleholders’ occasional entry onto disputed driveway to fell a tree or walk across

the property did not defeat claim of adverse possession). These opinions reason that the claimant’s

possession “ ‘need not be absolutely exclusive; it need be only a type of possession which would

characterize an owner’s use.’ ” Eberhart, 960 A.2d at 1087 (quoting Roche v. Town of Fairfield,

442 A.2d 911, 917 (Conn. 1982)). 5 The aerial photographs that the Schroeders attached to their motion for summary judgment

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the trial court could still conclude that the owners of the north property continued to use the

driveway extension as their own (since it is extremely unlikely that they simply gave up driving to

and from their home) and that the owners of the south property never possessed that which was

needless and indeed useless to them. Thus, the trial court properly held that the Schroeders proved

exclusivity as a matter of law.

¶ 39 In addition to the preceding arguments on the elements of adverse possession, plaintiffs

also contend that the Schroeders failed to properly identify the property they claim by adverse

possession. According to plaintiffs, the Schroeders “had a duty to claim and prove a distinct and

identifiable boundary, and they did not.” We disagree. As the Schroeders note, the boundaries of

the driveway extension are clearly identifiable from the maps and photographs in the record and

visible to the naked eye.

¶ 40 In their reply brief, plaintiffs argue—admittedly for the first time in the trial court or this

court—that, because there was no little or no evidence as to the period between 1995 and 2008, a

court cannot presume continuous possession and, therefore, cannot tack any of that time onto the

Schroeders’s possession time to satisfy the 20-year requirement. Whatever the merits of this

argument, it comes too late. The trial court held that the Schroeders satisfied their burden for

summary judgment on all elements of their adverse possession claim, and plaintiffs did not raise

the tacking issue until their reply brief. Thus, they have forfeited this issue. Jaros v. Village of

do depict the condition of the property, including the driveway, at several intervals during this

period. The other documents reveal the following. In June 2003, Victor Volich, the owner of the

north property, applied for and received a permit to place a new roof on the house. In July 2004,

Volich applied for and received a permit to install a deck addition.

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Downers Grove, 2020 IL App (2d) 180654, ¶ 39; see Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)

(points not argued in appellant’s initial brief are forfeited and shall not be raised in reply brief).

Plaintiffs contend that the issue is not forfeited, because it goes to whether the Schroeders met

their burden of proof. Plaintiffs cite no authority to suggest that forfeiture does not apply in civil

appeals to the issue of whether the plaintiff met the burden of proof. Forfeiture does indeed apply

in those circumstances, and we apply it here.

¶ 41 III. CONCLUSION

¶ 42 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 43 Affirmed.

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