2021 IL App (1st) 201005-U Order filed: May 21, 2021
FIRST DISTRICT FIFTH DIVISION
No. 1-20-1005
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
J & B SIGNS, INC., and CHICAGO ) Appeal from the TITLE LAND TRUST COMPANY, as ) Circuit Court of Trustee Under Trust Number 301023-05, ) Cook County ) Plaintiffs-Appellants, ) No. 11 CH 36912 v. ) ) COMMONWEALTH EDISON COMPANY, ) Honorable ) Sophia H. Hall, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.
ORDER
¶1 Held: Following a bench trial, the court ruled in favor of defendant on plaintiffs’ claim in their fourth amended complaint for ejectment. We affirmed, holding that the court’s judgment was not against the manifest weight of the evidence and that the court did not abuse its discretion in denying plaintiffs leave to file a fifth amended complaint. Plaintiffs waived review of their appeal of the dismissal of the trespass count.
¶2 Plaintiffs, J&B Signs, Inc. (J&B) and Chicago Title Land Trust Company, as trustee under
trust number 301023-05 (CTLTC), filed a fourth amended complaint against defendant,
Commonwealth Edison Company (ComEd) under the Ejectment Act (735 ILCS 5/6-101 (West No. 1-20-1005
2014)). The litigation involved a strip of land (the Property) belonging to plaintiffs upon which
ComEd had installed utility poles with attached electric transmission lines (the facilities). Plaintiffs
sought the removal of the facilities as they allegedly were interfering with the Property’s best use,
specifically, with the placement of billboards that plaintiffs could rent to advertisers for millions
of dollars. A bench trial was held and the trial court ruled in favor of ComEd, finding that plaintiffs
had waived their ejectment claim. On appeal, plaintiffs argue that the court erred by: (1) finding
that they waived their ejectment claim and ruling in favor of ComEd at the conclusion of the bench
trial; (2) dismissing their trespass claim which they had pleaded in their earlier, second amended
complaint; and (3) denying them leave to file a fifth amended complaint. We affirm.
¶3 We set forth the procedural history of this case in some detail, including relevant
communications between the parties and the multiple pleadings filed, as they are relevant to the
waiver issue.
¶4 J&B is an outdoor advertising company that owns or leases real estate upon which it
maintains billboards. J&B rents space on the billboards to advertisers. At all relevant times, J&B
acted through its president and sole shareholder, Robert Hoelterhoff.
¶5 The Property consists of three parcels, designated parcels 1, 2, and 3, located north of North
Avenue, south of Grand Avenue, east of County Line Road, and west of I-294. Parcel 1 is not
contiguous to parcels 2 and 3. Parcel 1 is the northernmost parcel and parcel 3 is the southernmost
parcel.
¶6 In 1980, the Chicago and North Western Railroad (CNW) owned the Property and in that
year, it granted ComEd a license (License) to maintain and use an electric transmission line over
the Property for the sole purpose of conveying electric current not to exceed 34.5 kilovolts (KV)
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for power and lighting. Pursuant to the License, ComEd maintains the facilities on the Property to
convey the electricity.
¶7 In pertinent part, paragraph 3(e) of the License states that
“[i]f at any time it shall be necessary in the judgment of [CNW] to change the location,
elevation or method of construction or installation of said facility, such change will be
made by the Licensee [ComEd], at its sole expense, and in the manner requested by [CNW],
within thirty (30) days after receipt of written notice thereof from [CNW].”
¶8 Paragraph 5 of the License states that CNW
“shall have the right to use, occupy and enjoy its tracks and property *** as [CNW] shall
desire ***. If any such railroad use shall necessitate any change in the location or
construction of said facility, or any part thereof, such change shall be made by [ComEd],
at its own cost and expense, upon demand of [CNW].”
¶9 Paragraph 10 of the License states that
“[t]his license is personal to the Licensee, and is not assignable or transferable without the
written consent of [CNW] first obtained.”
Paragraph 10 was consistent with the rule in common law that a license is personal and
lasts only as long as the land belongs to the grantor and therefore it is automatically revoked by
the sale or conveyance of the land unless the grantor reserves an easement protecting the license it
granted the licensee (“a protective easement”). Champaign National Bank v. Illinois Power Co.,
125 Ill. App. 3d 424, 429 (1984); Perbix v. Verizon North, Inc., 396 Ill. App. 3d 652, 661 (2009).
¶ 10 On October 1, 1995, CNW merged with Union Pacific Railroad (UPRR). On March 25,
1998, UPRR conveyed title to the Property to J&B via a quitclaim deed without reserving a
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protective easement. Legal title to the Property was subsequently conveyed in trust to CTLTC on
behalf of J&B, its sole beneficiary.
¶ 11 At various times, J&B received permits from the Illinois Department of Transportation
(IDOT) to construct multiple double-faced billboards on the property so as to rent them to
advertisers. J&B alleges that it has been unable to construct the billboards because: (1) ComEd’s
facilities make it unsafe and impossible to do so; and (2) ComEd’s facilities would impede or block
the view of the billboards from I-294, making it difficult or impossible for the traveling public to
read the billboard messages with the result that the billboards are of little to no value for outdoor
advertising.
¶ 12 On January 28, 2003, Larry Duffin, J&B’s lease manager, contacted George Welter, an
external affairs manager for ComEd and requested that ComEd relocate its facilities by burying
the transmission wires so that J&B could construct the billboards on the Property. Duffin faxed
Welter a copy of the License, stating that “J&B Signs feels [that the License] covers the property
in question” and that paragraphs 3(e) and 5 of the License required ComEd to relocate the facilities
at its expense pursuant to J&B’s request.
¶ 13 ComEd’s assistant general counsel, Edward Malstrom, sent Duffin a letter dated February
25, 2003, noting Duffin’s assertion that J&B is the “owner of the property covered by the License”
and succeeded to the rights of CNW. Malstrom rejected J&B’s request for ComEd to relocate its
facilities at its expense, stating that the License did not require ComEd to bear the cost of burying
the transmission wires.
¶ 14 On March 19, 2003, Duffin sent Malstrom a letter acknowledging ComEd’s refusal to
“bury, relocate or remove its facilities from our property” and stated that J&B will now “consider
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other options that will allow us to develop our property at this location.” J&B would be in contact
with ComEd to advise it of “[J&B’s] position on this matter.”
¶ 15 On December 8, 2004, Duffin sent a fax to Art Barsema, director of external affairs for
ComEd, stating:
“J&B Signs purchased the subject property from [UPRR] that is approximately 2 miles
long and 17’ wide. There is a License from [UPRR] to ComEd for a 34.5 KV line that runs
north and south along the property that is now owned by J&B Signs. There is a provision
in the License that states ComEd would remove/relocate the pole line at the request of the
RR or any assigns that the railroad may transfer the property.”
¶ 16 Duffin further stated that ComEd’s pole line was preventing J&B from developing
billboards on the Property and that he had met with Welter and with John Pribich from ComEd’s
real estate department to review the site and pole locations and that they had promised to “get back
to us regarding this issue.” However, the only response that J&B had received came from
Malstrom, who opined that the License did not require it to remove and/or relocate the facilities at
ComEd’s expense. Duffin asked Barsema for a meeting “to resolve these issues so that ComEd
can continue to provide service in this area and J&B Signs can develop its property.”
¶ 17 On February 8, 2005, Malstrom sent a letter to Karl Wilt, J&B’s general manager,
reiterating ComEd’s belief that it was “entitled to maintain our facilities on the Subject Property.”
Malstrom stated that ComEd was prepared to discuss relocation of its facilities, but that “any such
relocation would have to be at the sole cost and expense of J&B.”
¶ 18 On January 17, 2008, Thomas Walsh, a J&B consultant, wrote a memo to Tom Selinger,
an executive with Ameren, a holding company for several power and energy companies. Walsh
sought Selinger’s help in resolving J&B’s dispute with ComEd. Walsh wrote: -5- No. 1-20-1005
“Bob Hoelterhoff, through his wholly owned entity J&B Signs, purchased excess railroad
land from the Union Pacific Railroad approximately ten (10) years ago. This property is
about two (2) miles long and has varying degrees of width. Essentially running down the
center of this property (for the entire 2 mile length), are ComEd wooden power poles that
exist pursuant to a license granted to ComEd by the prior owner, the railroad. J&B is a
successor-in-interest to the railroad and therefore assumes the railroad’s (i.e. the
landowner’s position) relative to that license. Bob desires to have ComEd remove its
equipment (in its entirety) from his property.” *** J&B’s position is that it can enforce its
rights relative to the license agreement in a court of law.”
¶ 19 On July 6, 2011, Robert Weber, J&B’s attorney, sent a letter to Frank M. Clark, the
Chairman and Chief Executive Officer of ComEd, stating:
“In reliance upon the *** 1980 license (the ‘License’) from Chicago Northwestern
Transportation Company, ComEd maintains approximately forty (40) poles and as many
as thirteen (13) lines (the ‘Facilities’) on property located west of I-294, east of County
Line Road and between Grand and North Avenues in Northlake, Illinois (the ‘Property’).
J&B owns the Property but cannot construct advertising structures there because of
ComEd’s facilities.”
¶ 20 Weber stated that ComEd “is violating the License” by maintaining 13 lines conveying
electrical current exceeding 34.5 KV and is trespassing, but that if ComEd would cantilever the
transmission lines or bury them underground, then J&B “will re-write the License to accommodate
ComEd’s current use of the Property.”
¶ 21 ComEd did not agree to cantilever the transmission lines or bury them underground.
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¶ 22 On October 24, 2011, J&B filed its initial complaint for declaratory judgment, injunction,
and damages against ComEd. In count I, J&B sought a declaration that under the License, ComEd
must comply with its request to change the location, elevation and/or method of construction or
installation of the facilities to permit J&B to safely and effectively maintain and construct the
proposed billboards on the Property. J&B asked for a mandatory injunction to that effect. In count
II, J&B sought damages for ComEd’s breach of the License. In count III, J&B alleged that ComEd
was trespassing on the Property by maintaining more than one transmission line, by permitting
others to maintain lines on and over the Property, and by maintaining underground footings for its
transmission towers located on the adjacent I-294 right of way. J&B sought a mandatory injunction
directing ComEd, at its cost, to “remove from the Subject Property all footings of its Transmission
Towers.”
¶ 23 There was no allegation in the complaint that the License had automatically terminated
when UPRR conveyed the Property to J&B without reserving a protective easement in March
1998.
¶ 24 J&B further asserted its rights under the License in its sworn answers to ComEd’s first set
of interrogatories in January 2013. In those answers, J&B stated that ComEd breached the License
by failing to change the location, elevation, or method of construction of its facilities on the
Property and that the breach was ongoing. J&B did not assert in those answers that the License
had automatically terminated upon UPPR’s conveyance of the Property to J&B in March 1998
without reserving a protective easement.
¶ 25 Following J&B’s answers to ComEd’s first set of interrogatories, CTLTC was added as a
plaintiff.
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¶ 26 On January 24, 2013, plaintiffs J&B and CTLTC filed an amended complaint against
ComEd again asserting a claim for breach of the License. Plaintiffs did not assert or plead in the
alternative that the License automatically terminated upon UPRR’s conveyance of the Property to
J&B in March 1998 without reserving a protective easement.
¶ 27 On July 18, 2013, plaintiffs filed their second amended complaint alleging, for the first
time, that the License automatically terminated on March 25, 1998, when UPRR conveyed title to
the Property to J&B via a quitclaim deed without reserving a protective easement. In count I,
plaintiffs alleged that ComEd’s refusal to remove its facilities from the Property constituted a
continuing trespass. Plaintiffs sought a mandatory injunction directing ComEd to remove the
facilities from the Property, at its expense, and to pay plaintiffs damages. In count II, plaintiffs
alleged that assuming the License was not automatically terminated by UPRR’s conveyance of
title to the Property to J&B without a protective easement, then plaintiffs are entitled to damages
for ComEd’s various breaches of the License as well as a mandatory injunction requiring ComEd
to remove the facilities at its expense. In count III, plaintiffs sought a declaratory judgment that
the License was terminated or, if the court finds that it remains in effect, a declaratory judgment
that ComEd must comply with J&B’s request to change the location, elevation and/or method of
construction of the facilities.
¶ 28 ComEd filed a motion to dismiss plaintiffs’ second amended complaint, arguing that their
trespass claims are barred by the five-year limitations period set forth in section 13-205 of the
Code of Civil Procedure (Code) (735 ILCS 5/13-205 (West 2012)) and that the contract claims are
barred by the 10-year limitations period set forth in section 13-206 of the Code (735 ILCS 5/13-
206 (West 2012)). On August 12, 2014, the trial court dismissed plaintiffs’ trespass action for
damages and their breach of contract claims on limitations grounds. -8- No. 1-20-1005
¶ 29 On May 8, 2015, plaintiffs filed their third amended complaint realleging that the License
automatically terminated when UPRR transferred the Property to J&B in March 1998 via a
quitclaim deed without reserving a protective easement. Count I alleged, for the first time, a cause
of action under the Ejectment Act (735 ILCS 5/6-101 (West 2014)) and sought removal of
ComEd’s facilities from the Property as well as damages. Count II alternatively alleged that
ComEd committed various breaches of the License.
¶ 30 ComEd filed a motion to dismiss the damages claim in count I of plaintiffs’ third amended
complaint for ejectment, arguing that the claim is barred by the five-year limitations period set
forth in section 13-205. ComEd sought to dismiss count II in its entirety as it realleged the same
breach of contract claims that had previously been dismissed on limitations grounds and was
brought only to preserve appeal rights.
¶ 31 On October 2, 2015, the trial court denied ComEd’s motion to dismiss the damages claim
in count I for ejectment. The court granted ComEd’s motion to dismiss count II.
¶ 32 On February 9, 2016, plaintiffs filed their fourth amended complaint to correct scrivener’s
errors in the third amended complaint. Count I again alleged a cause of action under the Ejectment
Act based on the automatic termination of the License. Count II again alleged breach of the License
and was brought to preserve plaintiffs’ appeal rights.
¶ 33 On February 23, 2016, ComEd filed an affirmative defense arguing that from the time J&B
took title to the Property in March 1998, until the filing of the second amended complaint in July
2013, J&B had engaged in a course of conduct whereby it repeatedly asserted its rights under the
License to remove ComEd’s facilities from the Property. ComEd argued that J&B’s course of
conduct constituted a waiver of its right to now assert a cause of action for ejectment based on the
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theory that the License had automatically terminated upon the transfer of title to it in March 1998
without the reservation of a protective easement.
¶ 34 On January 4, 2018, the Illinois State Toll Highway Authority (ISTHA) took title to the
Property under eminent domain. On February 16, 2018, plaintiffs filed a motion for leave to file a
fifth amended complaint to revive their trespass claim that had been dismissed almost four years
earlier. Plaintiffs argued in their motion for leave to amend that the January 4 order vesting title to
ISTHA mooted their prayer for possession of the Property, requiring them to bring a trespass count
instead. ComEd replied that the loss of title did not warrant amendment because plaintiffs still
could recover damages under the Ejectment Act. In response, plaintiffs withdrew their February
2018 motion for leave to amend, acknowledging that ComEd was correct in arguing that they could
still recover damages under the Ejectment Act.
¶ 35 ComEd brought a motion in limine to bar plaintiffs’ claim for lost profits, arguing they
were not recoverable under the Ejectment Act. The trial court granted the motion on the second
day of trial. Plaintiffs then renewed their motion for leave to file a fifth amended complaint adding
a trespass count. The trial court denied plaintiffs’ motion for leave to file a fifth amended
complaint.
¶ 36 At the bench trial held on plaintiffs’ ejectment count, Hoelterhoff testified in pertinent part
that when he was negotiating with UPRR on behalf of J&B to purchase the Property, he inspected
the Property and became aware of ComEd’s facilities thereon. The License granting ComEd the
right to place the facilities on the Property was made available to Hoelterhoff sometime prior to
the 1998 closing on UPRR’s sale of the Property to J&B, but he did not “[get] around to look at
it” until after the closing. Hoelterhoff further testified that since 2000 he had one or two
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conversations per year with ComEd representatives in an unsuccessful attempt to convince ComEd
to remove its facilities from the Property so that J&B could put up its billboards.
¶ 37 Thomas Walsh, a J&B consultant who advised J&B about obtaining permits from IDOT
and did some consulting on legal issues, testified that he read the License sometime prior to 2008
and hired two electric companies, a ground radar service, and a surveyor to investigate whether
and how ComEd was breaching the License.
¶ 38 The court heard testimony from a number of other witnesses regarding damages. Their
testimony is not pertinent to our resolution of the issues on appeal and need not be summarized
here.
¶ 39 The court admitted into evidence the various written communications between J&B and
ComEd from 2003-2011 which we discussed earlier in this order, regarding J&B’s attempts to
enforce the License’s requirement that ComEd remove the facilities from the Property at its
expense.
¶ 40 At the conclusion of all the evidence, the trial court entered a written judgment finding that
J&B knew or should have known that the License automatically terminated on March 25, 1998,
when UPRR conveyed title to the Property to J&B without reserving a protective easement. As a
result of the automatic termination, J&B could have sought ComEd’s ejection from the Property
as soon as it closed on the sale.
¶ 41 The court also found that J&B’s course of conduct from March 1998 to July 2013, in which
it attempted to enforce the License’s requirement that ComEd remove the facilities from the
Property, demonstrated its intent to waive its right to eject ComEd based on the automatic
termination of the License. Accordingly, the court entered judgment in favor of ComEd on
plaintiffs’ ejectment action. -11- No. 1-20-1005
¶ 42 The court found that as J&B had waived its claim for ejectment, a determination of
damages was unnecessary and would be dicta. However, as extensive evidence was presented on
the issue of damages, the court reviewed the damages evidence anyway and concluded that
plaintiffs “fail[ed] to prove damages to a reasonable degree of certainty.” We need not address the
damages evidence or the court’s findings thereon because as discussed later in this order we affirm
the court’s finding that J&B waived its claim for ejectment.
¶ 43 We proceed to address plaintiffs’ appeal. Plaintiffs’ first argument is that the court erred
by entering judgment for ComEd on their ejectment claim. In a bench trial the trial court weighs
the evidence and makes findings of fact and we defer to the court’s factual findings unless they
are against the manifest weight of the evidence. Cahnman v. Timber Court LLC, 2021 IL App (1st)
200338, ¶ 84. A finding is against the manifest weight of the evidence only when the opposite
conclusion is apparent or when the finding is unreasonable, arbitrary, or not based on the evidence.
Id.
¶ 44 The issue on appeal is whether the trial court erred in finding that J&B waived its right to
assert a cause of action for ejectment based on the theory that the License had automatically
terminated in March 1998 when UPRR conveyed the property to it via a quitclaim deed without
reserving a protective easement. Waiver is defined as the intentional relinquishment of a known
right. Ryder v. Bank of Hickory Hills, 146 Ill. 2d 98, 104-05 (1991). Waiver may be made by
express agreement or may be implied from the conduct of the party who is alleged to have waived
the right. Id. at 105. Implied waiver of a legal right must be proved by a clear, unequivocal, and
decisive act of the party who is alleged to have committed the waiver. Id. “ ‘An implied waiver
may arise where a person against whom the waiver is asserted has pursued such a course of conduct
as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with -12- No. 1-20-1005
any other intention than to waive it.’ ” Id. (quoting Kane v. American National Bank & Trust Co.,
21 Ill. App. 3d 1046, 1052 (1974)).
¶ 45 Plaintiffs contend that there was no waiver here because J&B’s president, Hoelterhoff, did
not know until the filing of the second amended complaint in July 2013 of the right alleged to have
been waived, specifically, the right to deem that the License automatically terminated on March
25, 1998, when UPRR conveyed the property to it via a quitclaim deed without reserving a
protective easement.
¶ 46 A party may waive a right of which it only has constructive knowledge. Egan v. Steel, 137
Ill. App. 3d 539, 543 (1985). Constructive knowledge is defined as “[k]nowledge that one using
reasonable care or diligence should have, and therefore that is attributed by law to a given person.”
Black’s Law Dictionary (7th ed. 1999). Hoelterhoff testified at trial that at the time of the closing
on J&B’s purchase of the Property, he was aware of ComEd’s facilities thereon, which was the
subject of the License. Hoelterhoff further testified:
“Q. So to the extent that you had the [License] after the J&B purchase, presumably
was delivered to J&B before the closing, correct?
A. Correct.
Q. And you may not have gotten around to look at it, but you did that sometime
after the closing in 1998, correct?
A. Yes.
Q. But it was available to you to look at even before that?
A. Yes.”
¶ 47 Hoelterhoff’s testimony reveals that prior to the closing on the sale of the Property to J&B
on March 25, 1998, he was provided the License governing ComEd’s placement of the facilities -13- No. 1-20-1005
thereon which expressly states in paragraph 10 that it was personal to ComEd and was not
assignable or transferable without written consent of CNW. Hoelterhoff’s testimony supports a
finding that at or before the time of closing, through reasonable diligence, he could and should
have read the License governing ComEd’s placement of the facilities on the Property. Therefore,
Hoelterhoff is charged with the constructive knowledge, as of the time of closing, of the
information contained in paragraph 10 of the License regarding its being personal to ComEd and
limiting its transferability. Hoelterhoff is also charged with the knowledge of his agents, Duffin,
Walsh, and Weber, whose communications with ComEd and/or Ameren from 2003 to 2011
indicate that they had read the License which included paragraph 10. See McRaith v. BDO
Seidman, LLP, 391 Ill. App. 3d 565, 589 (2009) (the knowledge and conduct of agents are
generally imputed to their principals).
¶ 48 Plaintiffs argue that paragraph 10 addressed certain limitations on ComEd’s ability to
assign or transfer its License to a third party without CNW’s (or its successor railroad’s) consent
but that paragraph 10 “does not hint at automatic termination after UPRR transfers title.”
Therefore, plaintiffs contend that even if Hoelterhoff had constructive knowledge of paragraph 10,
he was not put on notice of the License’s automatic termination as of the date of UPRR’s
conveyance of the Property to J&B without a protective easement.
¶ 49 Plaintiffs’ argument is unavailing, as there is a long-standing common law rule providing
that a license is personal and lasts only as long as the land belongs to the grantor and therefore it
is automatically revoked by the sale or conveyance of the land unless the grantor reserves a
protective easement. Champaign National Bank, 125 Ill. App. 3d at 429; Perbix, 396 Ill. App. 3d
at 661. As a general principle of contract law, common law decisions and rules relevant to the
contract are considered a part thereof and are presumed to be known by the parties to the contract. -14- No. 1-20-1005
See Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 217 (1997). Hoelterhoff was a party to
the purchase agreement resulting in UPRR’s conveyance of the Property to J&B and he received
the deed that on its face did not provide for a protective easement, and he is charged with
knowledge of the common law rule providing that the conveyance without a protective easement
resulted in the automatic termination of the License.
¶ 50 Accordingly, the trial court’s finding that Hoelterhoff had constructive knowledge of the
automatic termination of the License as of the conveyance of the Property to J&B in March 1998
without a protective easement is not against the manifest weight of the evidence.
¶ 51 Plaintiffs next argue that ComEd failed to show the second component of the waiver
defense, that J&B intended to waive the right to eject ComEd from the Property based on the
automatic termination of the License. The trial court found that J&B’s attempt to enforce the
License for 15 years from March 1998 to July 2013 amounted to a course of conduct implying an
intent to waive its right to assert that the License had automatically terminated upon UPRR’s
transfer of the Property to J&B via a quitclaim deed without reservation of a protective easement
in March 1998.
¶ 52 The evidence at trial, which we discussed in some detail earlier in this order, supports the
trial court’s finding. During the 15-year time period from March 1998 to July 2013, nobody from
J&B ever informed ComEd of its intent to assert that the License had automatically terminated as
of the date of the transfer of the property to J&B in March 1998, nor did anyone from J&B ever
enter into any negotiations with ComEd premised on the automatic termination of the License.
Rather, J&B’s representatives, Hoelterhoff, Duffin, and Weber, repeatedly communicated with
ComEd executives and attorneys and attempted to enforce paragraphs 3(e) and 5 of the License,
arguing that those paragraphs required ComEd to remove/relocate the facilities from the Property -15- No. 1-20-1005
at its expense. Welsh hired two electric companies, a ground radar service, and a surveyor to
investigate ComEd’s breaches of the License and contacted an Ameren executive to help with
resolving J&B’s dispute with ComEd, specifically noting J&B’s intention to “enforce its rights
relative to the license agreement.”
¶ 53 When its efforts to amicably enforce the License failed, J&B filed its initial complaint
against ComEd in October 2011 and its amended complaint in January 2013 asserting its legal
right to enforce paragraphs 3(e) and 5 of the License and to require ComEd to remove the facilities
from the Property at its expense. J&B did not alternatively plead in its initial and amended
complaints that the License automatically terminated upon UPRR’s conveyance of the Property to
J&B in March 1998 without a protective easement. In its answers to ComEd’s first interrogatories
in January 2013, J&B continued to assert its right to enforce the License and did not assert the
automatic termination of the License until the filing of the second amended complaint in July 2013.
¶ 54 Plaintiffs’ argument is that notwithstanding J&B’s failure to assert the automatic
termination of the License until July 2013, their intent has always been to have ComEd remove
the facilities from the Property at its expense so that J&B could erect billboards thereon. There
were two methods to effectuate that intent: (1) to enforce paragraphs 3(e) and 5 of the License; or
(2) to eject ComEd from the Property based on the automatic termination of the License upon
UPRR’s conveyance of the Property to J&B in March 1998 without a protective easement.
Plaintiffs contend that the two methods for removal are not inconsistent with each other as they
have the same goal of ultimately allowing for the erection of billboards on the Property and that
the utilization of the first method for ComEd’s removal from the Property did not imply an intent
to forego the second method. In rejecting plaintiffs’ argument, the trial court noted that J&B had
only utilized the first method, the attempted enforcement of the License, for the 15-year period -16- No. 1-20-1005
from March 1998 to July 2013 and had never once asserted the automatic termination of the
License during that time-frame. The court found that J&B’s 15-year attempt to enforce the License
indicated its implied intent to rely only on that particular method for removing ComEd’s facilities
from the Property. We cannot say that the court’s finding was against the manifest weight of the
evidence.
¶ 55 Plaintiffs argue that we should reverse the trial court’s judgment because ComEd failed to
show how it was prejudiced by J&B’s waiver. Plaintiffs’ argument is unavailing as a showing of
prejudice is not an essential element of waiver. See Vaughn v. Speaker, 126 Ill. 2d 150, 161-62
(1988) (“a waiver does not necessarily imply that the party asserting it has been misled to his
detriment”).
¶ 56 Next, plaintiffs argue that the trial court erred by dismissing, on statute of limitations
grounds, their claim in count I of the second amended complaint for damages resulting from
ComEd’s trespassing. In its motion to dismiss, ComEd argued that plaintiffs brought the action
more than five years after the trespass began in violation of the five-year limitations period set
forth in section 13-205 of the Code. Plaintiffs countered that the trespass was a continuing one
such that the limitations period does not begin to run until the tortious acts cease (i.e., when ComEd
removes the facilities from the Property). The trial court rejected the argument that the trespass
was a continuing one, found that the five-year limitations period set forth in section 13-205 was
applicable, and granted ComEd’s motion to dismiss. The court stated, “Count I, although the
trespass claims for money damages are [dismissed] on limitations grounds, stands as a claim for
ejectment, a claim for possession of the property.”
¶ 57 Plaintiffs subsequently filed their third and fourth amended complaints, alleging a cause of
action for ejectment but not for trespass. Our supreme court has held that “a party who files an -17- No. 1-20-1005
amended pleading waives any objection to the trial court’s ruling on the former complaints” and
“ ‘[w]here an amendment is complete in itself and does not refer to or adopt the prior pleading, the
earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and
withdrawn.’ ” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54
(1983) (quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963)).
¶ 58 Plaintiffs did not replead their separate cause of action for trespass in their third and fourth
amended complaints and therefore waived review of the trial court’s dismissal of that claim. Id. at
155. We recognize that in their ejectment count, plaintiffs pleaded that ComEd’s refusal to remove
the facilities from the Property made it a “trespasser,” but this general reference to ComEd’s
alleged trespass was made to show that ComEd was unlawfully withholding possession of the
Property from J&B, which is one of the elements plaintiffs must prove in their ejectment claim.
See 735 ILCS 5/6-109 (West 2014). A simple footnote or paragraph in the third and fourth
amended complaints notifying ComEd and the trial court that plaintiffs were preserving the
trespass count for appeal, in addition to the ejectment count, would have been sufficient to avoid
the consequences of the Foxcroft rule (see Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d
108, 114 (1996)), but plaintiffs failed to so notify ComEd and the court of its intent to preserve the
trespassing count for appeal and therefore the issue is waived for review.
¶ 59 Next, plaintiffs argue that the trial court erred by denying them leave to file a fifth amended
complaint on the second day of trial on December 11, 2018, to allege a claim of “intentional
trespass.” Plaintiffs do not have an absolute and unlimited right to amend. Hayes Mechanical, Inc.
v. First Industrial, L.P., 351 Ill. App. 3d 1, 6 (2004). The decision to grant leave to amend rests
within the sound discretion of the trial court. Id. at 7. The relevant factors to consider when
determining whether the trial court abused its discretion in denying leave to amend are: “ ‘(1) -18- No. 1-20-1005
whether the proposed amendment would cure the defective pleading; (2) whether other parties
would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed
amendment is timely; and (4) whether previous opportunities to amend the pleading could be
identified.’” Id. (quoting Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273
(1992)). Plaintiffs must meet all four Loyola Academy factors. Hayes Mechanical, Inc., 351 Ill.
App. 3d at 7.
¶ 60 Plaintiffs argue that they sought leave to file their fifth amended complaint on December
11, 2018, only after the court granted, earlier that same day, ComEd’s motion in limine barring
their claim for lost business profits under the Ejectment Act. Plaintiffs contend they were surprised
by the court’s grant of the in limine motion and that they immediately and timely sought leave to
file the fifth amended complaint containing the trespass claim to cure the defective pleading and
allow them to bring a viable claim for lost business profits. ComEd counters that the relevant
starting point for determining the timeliness of plaintiffs’ proposed fifth amended complaint is not
the court’s December 11, 2018, order granting its motion in limine, but rather the August 14, 2014,
order dismissing plaintiffs’ trespass claim in their second amended complaint on limitations
grounds. ComEd contends that “[i]f plaintiffs thought they had a basis to revive their trespass
claim, then they could have filed a motion to do so at any time after the August 14, 2014,
dismissal.” ComEd argues that plaintiffs’ four-year delay in filing the motion for leave to amend
until the second day of trial on December 11, 2018, rendered it untimely. ComEd also argues that
the proposed fifth amended complaint did not cure the “defect” that resulted in the dismissal of the
trespass count in the second amended complaint on limitations grounds, as the trespass claim
alleged in the fifth amended complaint remained untimely and barred by the five-year limitations
period. -19- No. 1-20-1005
¶ 61 We need not resolve the parties’ competing arguments regarding the timeliness of the
proposed fifth amended complaint or whether it cured any prior defective pleadings, as we may
affirm the trial court’s denial of leave to amend because ComEd would have been surprised and
prejudiced by the amendment. Plaintiffs’ claim for intentional trespass requires a showing of “ ‘a
high degree of certainty that an intrusion of another’s property will result from the act of the
defendant.’ ” Illinois Bell Telephone Co. v. City of Highland Park, 214 Ill. App. 3d 15, 30 (1991)
(quoting Dial v. City of O’Fallon, 81 Ill. 2d 548, 555 (1980)). There is no such element in an
ejectment claim. See 735 ILCS 5/6-109 (West 2014) (setting forth the elements to be pleaded for
an ejection action). ComEd did not conduct any discovery with respect to the “high degree of
certainty” requirement for an intentional trespass claim and was not prepared to immediately try a
case with that element. Accordingly, we find no abuse of discretion in the trial court’s decision to
deny plaintiffs’ motion on the second day of trial for leave to file their fifth amended complaint
containing an intentional trespass count.
¶ 62 For all the foregoing reasons, we affirm the circuit court. As a result of our disposition of
this case, we need not address the arguments on appeal related to damages.
¶ 63 Affirmed.
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