Chicago Title & Trust Co. v. Weiss, 2-92-0185

Decision Date21 December 1992
Docket NumberNo. 2-92-0185,2-92-0185
Citation605 N.E.2d 1092,238 Ill.App.3d 921,179 Ill.Dec. 78
Parties, 179 Ill.Dec. 78 CHICAGO TITLE and TRUST COMPANY, as Trustee, Plaintiff-Appellant, v. John WEISS et al., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Page 1092

605 N.E.2d 1092
238 Ill.App.3d 921, 179 Ill.Dec. 78
CHICAGO TITLE and TRUST COMPANY, as Trustee, Plaintiff-Appellant,
v.
John WEISS et al., Defendants-Appellees.
No. 2-92-0185.
Appellate Court of Illinois,
Second District.
Dec. 21, 1992.

Page 1093

[238 Ill.App.3d 922] [179 Ill.Dec. 79] Richard E. Steck, Steck & Spataro, Chicago, for Chicago Title & Trust Co.

Ronald L. Berns, Solano & Berns, Ltd., Wheaton, for Robin Hill Development Co.

Anthony F. Mannina, Wheaton, for John Weiss.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, Chicago Title & Trust Company as trustee of a land trust for the benefit of Donald Derrico, appeals the judgment of the circuit court of Kane County which dismissed its two-count complaint against

Page 1094

[179 Ill.Dec. 80] defendants, Robin Hill Development Company I (Robin Hill) [238 Ill.App.3d 923] and John Weiss. Plaintiff raises on appeal the issues whether the trial court erred in dismissing the complaint because plaintiff lacked standing to bring suit and because it sought an injunction for continuing trespasses, and whether count II failed to state a cause of action.

Plaintiff alleged that it purchased a lot in Royal Fox, a planned unit development (PUD). Robin Hill and the trustee of the land trust which owned the PUD real estate entered into a "Declaration of Covenants, Conditions and Restrictions" (Declaration) for the Royal Fox Community Association I or II (Association). Weiss purchased the lot adjoining plaintiff's lot. In count I, plaintiff alleged that defendants violated the Declaration when Weiss put in a driveway less than eight feet from the lot line. Plaintiff further alleged that Robin Hill failed to enforce the covenants for the benefit of plaintiff. Plaintiff requested an injunction requiring Weiss to maintain the driveway at least eight feet from the lot line and damages and attorney fees. In count II, plaintiff alleged that Weiss had erected a basketball hoop on the driveway and that Weiss repeatedly trespassed on plaintiff's property to retrieve the basketball. Plaintiff alleged that these trespasses constituted a nuisance in violation of the Declaration. Plaintiff sought to enjoin Weiss from maintaining the basketball hoop on the driveway and from trespassing onto plaintiff's property.

Robin Hill filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-619). Robin Hill asserted that under the Declaration it had the sole right to enforce the covenants until it turned control of the PUD over to the Association. As a result, Robin Hill concluded that plaintiff lacked standing to bring this action. In addition, Robin Hill argued that it waived the eight-foot setback restriction for Weiss' driveway. Robin Hill attached to its motion the affidavit of its secretary/treasurer, Vincent Solano. In his affidavit, Solano stated that Robin Hill continued to exercise its control over the Association and no event occurred requiring Robin Hill to relinquish its control. Solano further averred that Robin Hill approved Weiss' plan which depicted the edge of his driveway four feet from the lot line, and Robin Hill has refused plaintiff's requests that Robin Hill require Weiss to relocate the driveway or to remove or relocate the basketball hoop. In addition, Solano stated that Weiss began construction on his home in February 1989 and completed it in October 1989. The basketball hoop had been in place since April or May 1991.

Weiss also filed a motion to dismiss count I pursuant to section 2-619 and count II pursuant to both section 2-619 and section 2-615 (Ill.Rev.Stat.1991, ch. 110, par. 2-615). In addition to the bases [238 Ill.App.3d 924] asserted in Robin Hill's motion, Weiss alleged that plaintiff's action for trespass in count II was an action in law and, therefore, was not properly before a court of equity. Weiss further asserted that plaintiff failed to allege any facts to support the allegation of an irreparable injury.

Plaintiff submitted the affidavit of Donald Derrico, in which he stated that basketballs frequently fly onto plaintiff's property and people playing basketball on Weiss' driveway often retrieve those basketballs. As a result, Derrico's flowers, garden, lawn and shrubs have been damaged. In addition, Derrico feared that his young child, other family members, or guests might be injured by the errant basketballs.

On January 8, 1992, the trial court ruled, as a matter of law, that plaintiff did not have standing to bring an action under count I of the complaint. The court dismissed count II without prejudice. Defendants each filed a motion for sanctions against plaintiff.

On February 5, the court, in a written order, noted that plaintiff elected to stand on count II, rather than amend it. The court...

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