Cross v. O'Heir

2013 IL App (3d) 120760

993 N.E.2d 1100

373 Ill.Dec. 541

Robert CROSS, Plaintiff–Appellee,

v. Sandra M. O'HEIR, as Executor of the Estate of Estate of Richard J. O'Heir, the Estate of Richard J. O'Heir, Location Finders International, Inc., as president of Location Finders International, Inc., the Richard J. O'Heir Family Trust UAD July 21, 2003, the Richard J. O'Heir Revocable Trust UAD July 26, 1989, George S. Sarris, Dan Regan, Michelle Castellarin, Kathleen Lehnerer, Julie Quinn, Margaret Mary Zegley, Richard J. O'Heir, and Unknown Owners, Defendants–Appellants(Sandra M. O'Heir, as Executor of the Estate of Richard J. O'Heir, The Estate of Richard J. O'Heir, The Richard J. O'Heir Family Trust UAD July 21, 2003, The Richard J. O'Heir Revocable Trust UAD July 26, 1989, Sandra M. O'Heir and Gary L. Penrith, as Co–Trustees of the Marital Trust created by Richard J. O'Heir Revocable Trust under Agreement Dated July 26, 1989, as amended, Counterplaintiffs and Counterdefendants–Appellants;George S. Saris, Counterdefendant and Counterplaintiff–Appellee).

Docket No. 3–12–0760.

Appellate Court of Illinois, Third District.

Aug. 2, 2013.

Rehearing Denied Aug. 30, 2013.

Raymond E. Stachnik (argued), of Raymond E. Stachnik & Associates, Ltd., of Chicago, for appellants.

Gary S. Mueller (argued), of Gary S. Mueller & Associates, Ltd., of Joliet, for appellees.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

[373 Ill.Dec. 544]¶ 1 In 1987, George Sarris and Richard O'Heir became business partners. Richard O'Heir died in 2006, and his wife, Sandra, was appointed executor of his estate. In 2008, Sandra O'Heir filed an action against Sarris, seeking a declaration that a cross-access easement created by Sarris and adjoining property owners included O'Heir property. Sarris filed a counterclaim for dissolution of the partnership and an accounting. The parties filed motions for summary judgment, and the trial court granted Sarris's motion with respect to Sandra O'Heir's easement claim and Sarris's dissolution and accounting claim. The trial court later granted judgment in favor of Sarris and against O'Heir for $34,461.47. We affirm.

¶ 2 In 1987, George Sarris and Richard O'Heir entered into a partnership named Georgetown Estates. The purpose of the partnership was to develop 77 acres of real property located on Route 30 in Frankfort. The partnership agreement provided that the partnership would continue for 40 years unless terminated sooner by operation of law or agreement of the partners. The agreement provided that the death of a partner would have no effect upon the continuation of the partnership business.

¶ 3 According to the partnership agreement, Sarris would be managing partner. Upon termination of the partnership, Sarris was to perform an accounting and liquidate the assets of the partnership. The agreement further provided that Sarris, as managing partner, could employ or engage individuals to “render services, including, but not limited to, * * * accounting and legal services, and he or they shall be entitled to be compensated for such services as partnership expenses.”

¶ 4 In 1996, after Georgetown Estates had developed most of the 77 acres in Frankfort, Sarris and O'Heir agreed to divide the remaining partnership property into two parcels. O'Heir became the equitable owner of the western 540 feet of the parcel. Sarris became the equitable owner of the remainder of the property. Legal title to the property was held in a trust known as Trust No. 7–1580, with First Star Bank Illinois acting as the trustee.

¶ 5 In August 2000, Sarris filed a complaint, seeking dissolution of the GeorgetownEstates partnership and an accounting and alleging breach of contract against O'Heir. Sarris voluntarily dismissed his partnership dissolution and accounting claim. A bench trial was held on Sarris's breach of contract claim, and the trial court entered judgment in favor of Sarris for $135,889.50, plus $16,365.14 in attorney fees and $2,600 in appraiser's fees. O'Heir appealed. We reversed the trial court's decision and granted judgment to O'Heir. Sarris v. O'Heir, No. 3–02–0512 (2003) (unpublished order under Supreme Court Rule 23).

¶ 6 In June 2001, a cross-access easement was recorded between three entities: Trust No. 6351, Trust No. 7–1580, and System Capital Real Property Corporation (SCC). The property owned by SCC is referred to as “Parcel 1” in the easement agreement. The property held in Trust No. 6351 is referred to as “Parcel 2” in the easement agreement. The property held in Trust No. 7–1580 is referred to as “Parcel 3.” The legal description of “Parcel 3” includes the partnership property awarded solely to Sarris in 1996 and excludes “the West 540 feet thereof, taken as a Tract.” The western 540 feet of the property held in Trust No. 7–1580 is owned by O'Heir, pursuant to the 1996 agreement between Sarris and Richard O'Heir to divide the remaining partnership property.

¶ 7 The purpose of the easement agreement was for the owners of the respective properties “to grant and to receive certain easements over, under and across Parcel 1, Parcel 2 and Parcel 3.” The agreement provided that Trusts 6351 and 7–1580 “grant and convey to SCC, a perpetual non-exclusive easement appurtenant to Parcel 1, for the use and benefit of SCC, its successors, assigns, licensees, tenants, suppliers and customers, for a full access road and driveway to permit vehicular and pedestrian ingress and egress, to and from Parcel 1, over, upon and across that part of Parcels 1, 2 and 3 described in Exhibit D.” The legal description of the easement contained in exhibit D states that the east to west dimension of the easement is 543.39 feet.

¶ 8 The agreement further provided that “Each Trust reserves and SCC grants a perpetual, non-exclusive easement, appurtenant to Parcel 2 and Parcel 3 * * * for the purpose of vehicular and pedestrian ingress and egress, to and from Parcel 2 and Parcel 3 * * * over, upon and across that portion of Parcel 1 as described on Exhibit D, attached.” Finally, the agreement stated that the trusts reserved an “access easement across the West line of the premises at a location within 50' North of the Southwest corner thereof, for the benefit of adjoining property to the West.”

¶ 9 In April 2004, Sarris filed an action for declaratory relief and a temporary restraining order against O'Heir, the successor trustee of the partnership's real property, and Georgetown Estates, to prevent O'Heir from selling his property to anyone except Sarris. The trial court entered judgment in favor of Sarris. This court reversed and entered judgment in favor of O'Heir, finding that the 1996 agreement between the parties removed any partnership interest in the property, making it separately owned by each partner. Sarris v. O'Heir, No. 3–04–0968, 359 Ill.App.3d 1213, 328 Ill.Dec. 738, 904 N.E.2d 1248 (2005) (unpublished order under Supreme Court Rule 23).

¶ 10 Richard O'Heir died in July 2006. His wife, Sandra O'Heir, was appointed executor of his estate. At the time of Richard's death, the only remaining assets of the partnership were two outlots that had not yet been sold or given away.

¶ 11 In March 2008, Sandra O'Heir filed a claim against Sarris, seeking a declaratory judgment on the interpretation of the cross-access easement. She alleged that the easement benefits and includes the estate's property. Attached to the counterclaim was a plat of survey prepared by Rogina & Associates in 2002 that shows the easement crosses the western line dividing Sarris's property and O'Heir's property.

¶ 12 In 2008, a new plat of easement was recorded. The new east-west dimension of the cross-access easement was 542.39 feet. David Tyson, who prepared the revised easement, explained that he recorded the new plat at the direction of Sarris to make clear that the easement created in 2001 was not intended to benefit O'Heir's property.

¶ 13 In May 2008, Sarris filed a counterclaim against Sandra O'Heir. Count I requested an order allowing Sarris to purchase any remaining assets of the partnership and award him damages for breach of the partnership agreement. Count II requested an accounting and dissolution of the partnership. Count III alleged fraud against Sandra O'Heir.

¶ 14 Sarris filed a motion for summary judgment with respect to O'Heir's easement counterclaim. Attached to the motion were deposition transcripts from various individuals. Sarris testified at his deposition that he entered into an easement agreement with the owners of Parcels 1 and 2 identified in the easement agreement. It was his intention that the easement benefit his property, not O'Heir's property. O'Heir was not a party to the easement agreement.

¶ 15 David Tyson, a registered professional engineer and land surveyor retained by Sarris, testified at his deposition that he created and recorded an easement for Sarris and the property owners identified in the easement agreement at Sarris's direction. He testified that the easement on Sarris's property was outside the west 540 feet of the north property line and was contained entirely within Sarris's property. He further testified that it was Sarris's intent that the easement would go just to the line of O'Heir's property, but not over it, and that the easement would cover only Sarris's property. Tyson also testified that the owner of property cannot grant an easement over property he does not own.

¶ 16 John Kella, a land surveyor retained by O'Heir, testified that the company he works for, Rogina & Associates, created a survey in 2002 to determine the scope of the 2001 easement, at O'Heir's request. According to Rogina's plat of survey, the easement extends approximately two inches onto O'Heir's property.

¶ 17 Timothy Atchinson, a title attorney and law professor who was retained by Sarris, testified at his deposition that he reviewed the easement grant recorded in 2001, as well as the surveys completed...