An Ill. Ltd. Liab. Co. v. Westloop Equities Llc., 1-09-2200.
| Court | United States Appellate Court of Illinois |
| Writing for the Court | Justice HOFFMAN delivered the opinion of the court: |
| Citation | 403 Ill.App.3d 42,932 N.E.2d 1127,342 Ill.Dec. 666 |
| Parties | 527 S. CLINTON, LLC, an Illinois limited liability company, Plaintiff-Appellant, v. WESTLOOP EQUITIES, LLC, an Illinois limited liability company, Defendant-Appellee. |
| Docket Number | No. 1-09-2200.,1-09-2200. |
| Decision Date | 17 August 2010 |
403 Ill.App.3d 42
932 N.E.2d 1127
342 Ill.Dec. 666
527 S. CLINTON, LLC, an Illinois limited liability company, Plaintiff-Appellant,
v.
WESTLOOP EQUITIES, LLC, an Illinois limited liability company, Defendant-Appellee.
No. 1-09-2200.
Appellate Court of Illinois,First District, Second Division.
July 20, 2010.
Rehearing Denied Aug. 17, 2010.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Kevin M. Forde, Joanne R. Driscoll and Melissa G. Lafferty, Chicago, of counsel, for Appellant.
Robert A. Egan, P.C., Chicago, of counsel, for Appellee.
Justice HOFFMAN delivered the opinion of the court:
The plaintiff, 527 S. Clinton, LLC, brought the instant suit, seeking judicial declarations that its proposed development of a multi-story commercial and residential building would not violate an easement held by the defendant, Westloop Equities, LLC. In two separate orders, the circuit court dismissed two of the three counts of the plaintiff's complaint, finding them to be time barred. As to the third count, the circuit court entered a directed finding in favor of the defendant. The plaintiff now appeals, arguing that all three rulings were improper. For the reasons which follow, we reverse and remand for further proceedings.
The essential facts giving rise to this appeal are not in dispute. The plaintiff is the owner of a parcel of real estate commonly known as 519-527 South Clinton Street in Chicago, Illinois. The plaintiff's property is currently used as an open-air parking lot. The defendant owns a parcel of real estate adjacent to the plaintiff's property, commonly known as 506 West Harrison Street. The defendant operates a hotel upon its property.
Prior to 1984, both properties were under common ownership. In October of that year, the hotel, along with the property upon which it was situated, was sold to the defendant's predecessor-in-interest. As part of the transaction, the defendant's predecessor-in-interest was granted an easement for ingress and egress and for free parking. The easement provided, in relevant part, as follows:
“1. All persons, by motor vehicle or otherwise, shall have the rights to ingress and egress in perpetuity to or from the property
through and/or across the parking facility property, which rights shall not be terminable for any reason.
2. Grantee's registered guests of the hotel and banquet invitees shall have the right to park on the parking facility property at no cost.
3. Patrons of the bar and restaurant inside the subject hotel property shall have the right to park at no cost for a maximum of three (3) hours.
4. The easement for parking in the above Paragraphs 2 and 3 shall be subject to the following terms and conditions, a violation of which shall cause said easement to terminate immediately upon the violation:
(a) The easement will remain in force so long as the property is operated as a hotel. Ceasing to operate the subject hotel as a hotel business shall cause this easement to terminate immediately and without notice.”
Over time, the hotel fell into disuse and closed. In June of 1998, the defendant purchased the property containing the hotel. The defendant refurbished the hotel and reopened it in 1999.
In October of 2006, the plaintiff purchased the adjacent property containing the open-air parking lot. Shortly thereafter, the plaintiff sought to develop the property and build a multi-story commercial and residential building consisting of 276 residential units, as well as ground floor retail shops and parking.
On March 6, 2007, representatives of the plaintiff met with the manager of the hotel to discuss the proposed development. In a letter dated March 23, 2007, the defendant's attorney expressed his opinion that the erection of a building on the plaintiff's property would interfere with the defendant's easement and threatened immediate litigation. In a subsequent letter dated March 27, 2007, the defendant's attorney also threatened to sue the architect hired by the plaintiff to design the development.
On May 8, 2007, the plaintiff filed a three-count complaint against the defendant. In count I, the plaintiff sought a judicial declaration that, under the terms of the easement, the defendant's right to free parking ended in “approximately 1986,” the year the original hotel ceased operations. Count II sought a judicial declaration that the plaintiff's proposed development of its property would not interrupt the hotel's ingress and egress and that the terms of the easement would not be violated. Finally, in count III, the plaintiff sought a mandatory injunction compelling the removal of a parking ramp allegedly encroaching on its property by approximately 50 feet. The complaint alleged that, until the plaintiff purchased the property in
2006, the ramp was permitted to exist on the plaintiff's property as an accommodation to the hotel.
On August 3, 2007, the defendant filed a motion to dismiss all three counts of the plaintiff's complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2006)). Attached to the defendant's motion was an affidavit from Leslie Barnard, a member of the defendant. In his
affidavit, Barnard attested that the ramp allegedly encroaching on the plaintiff's property was constructed in the early 1960s and, since then, has been used by the hotel for ingress and egress.
Initially, the circuit court denied the defendant's motion to dismiss in its entirety. Following a motion to reconsider, however, the circuit court dismissed count III of the plaintiff's complaint with prejudice. In reaching this conclusion, the court found that, because the ramp in question had been used since the grant of the easement in 1984, count III was barred by the 20-year statute of limitations set forth in section 13-101 of the Code (735 ILCS 5/13-101 (West 2006)).
On March 12, 2009, the plaintiff filed an amended complaint. In count I of the amended complaint, the plaintiff again sought a judicial declaration that the defendant's right to free parking had ended as no hotel business was conducted on the defendant's property from “approximately 1986 until the hotel was reopened on May 30, 1999.” As in the original complaint, count II sought a judicial declaration that the plaintiff's proposed development would not violate the terms of the easement. The plaintiff also re-pled count III in order to “preserve [its] rights on appeal.”
On April 3, 2009, the plaintiff moved for summary judgment on count I of the amended complaint, arguing that there was no dispute that the hotel ceased operations in the late 1980s. While the plaintiff's motion for summary judgment was still pending, the defendant filed another motion to dismiss count I of the amended complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)). In relevant part, the defendant argued that the plaintiff's cause of action in count I accrued when the hotel ceased operations in 1986 and, therefore, was time barred by the 20-year statute of limitations contained in section 13-101 of the Code (735 ILCS 5/13-101 (West 2006)) and the 7-year statute of limitations set forth in 13-102 of the Code (735 ILCS 5/13-102 (West 2006)).
Attached to the plaintiff's response to the motion to dismiss count I was a portion of Leslie Barnard's deposition and an affidavit from Lewis Spector, the former manager of the parking lot from 1992 to 2006. When deposed, Barnard testified that neither he nor anyone involved in the day-to-day management of the hotel ever demanded
that the hotel's patrons or guests be provided with free parking. In his affidavit, Spector, likewise, attested that at no time after the hotel reopened in 1999 did managers of the hotel demand that its guests or patrons be permitted to park in the parking lot without charge.
On May 29, 2009, the plaintiff filed a motion for leave to amend its complaint to change the year the hotel ceased operations from 1986 to 1988. In support of its motion, the plaintiff attached the affidavit of Anthony Christopher, the manager of the hotel from 1986 to 1988, who attested that the hotel ceased operation in the spring of 1988.
On June 3, 2009, the circuit court denied the plaintiff's motion to amend its first amended complaint, finding that the extent to which the proposed amendment would cure the defective pleading was questionable, that the amendment would prejudice and surprise the defendant, and that the amendment was untimely. The court further found that, because the plaintiff's amended complaint was verified, the allegation that the hotel closed “in approximately 1986” constituted a judicial admission.
On August 5, 2009, the circuit court entered a written memorandum opinion, in which it dismissed count I of the amended complaint as time barred under sections
13-101 and 13-102 of the Code (735 ILCS 5/13-101, 13-102 (West 2006)). In that same order, the circuit court also denied the plaintiff's motion for summary judgment on count I as moot.
Thereafter, the parties proceeded to a bench trial on count II. At trial, the plaintiff presented several witness, including James Plunkard, the architect hired to design the proposed development, and Luay Aboona, a traffic engineer retained by the plaintiff to evaluate the impact of the proposed development on the hotel.
Plunkard testified that, under the proposed development, hotel patrons and guests would be able to drive down a ramp on the plaintiff's property and then either exit onto Clinton Street or enter the hotel's underground parking garage and storage facility. Plunkard opined that the hotel's ingress and egress would be essentially the same as it is now. He also believed that the development would enhance the hotel's accessibility by...
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