FIRST BANK AND TRUST CO. v. Village of Orland Hills
| Decision Date | 17 March 2003 |
| Docket Number | No. 1-01-3539.,1-01-3539. |
| Citation | 272 Ill.Dec. 485,787 N.E.2d 300,338 Ill. App.3d 35 |
| Parties | FIRST BANK AND TRUST COMPANY OF ILLINOIS, as Trustee u/t/a dated March 28, 2000, and Known as Trust No. 10-2377; First Bank and Trust Company of Illinois, as Trustee u/t/a dated April 11, 2000, and Known as Trusts No. 10-2395 and No. 10-2396; and Glenbrook Development of NML, L.L.C., an Illinois Limited Liability Company, Plaintiffs-Appellants, v. The VILLAGE OF ORLAND HILLS, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Horwood, Marcus & Berk, Chartered, Eugene E. Murphy, Jr. and John N. Hourihane, Jr., Tabet, DiVito & Rothstein, L.L.C., Gino DiVito and Deborah E. Decker, Chicago, for Appellant.
Rosenthal, Murphey & Coblentz, John B. Murphey and Kelly Cleland, Chicago, Odelson & Sterk, Ltd., Mark Sterk, Evergreen Park, for Appellee. Justice GORDON delivered the opinion of the court:
Plaintiffs-appellants First Bank and Trust Company of Illinois, as trustee under trust agreement dated March 28, 2000, and as trustee under trust agreement dated April 11, 2000, and Glenbrook Development of NML (collectively Glenbrook, or as named) appeal from the trial court's order granting defendant-appellee Village of Orland Hills' (Orland Hills) motion to dismiss with prejudice. Glenbrook asks that we reverse the court's dismissal of its complaint and enter judgment in its favor or, alternatively, that we reverse and remand this cause for further proceedings. For the following reasons, we affirm.
BACKGROUND
This cause involves property located at 171st Street and LaGrange Road, which was divided into lots 1, 2, 3 and 4. A & M Limited Partnership (A & M) was the original owner and Formula Outdoor, Inc. (Formula), was the original developer of the property.1 On November 3, 1999, Orland Hills entered into an annexation agreement with A & M and Formula for the property, binding these parties and their successors in interest. Under the annexation agreement, Orland Hills is responsible for extending all water service to the property. In addition, section 7 of the agreement states, in pertinent part:
Citizens Utilities Company of Illinois (Citizens) provided water service to Orland Hills, as well as to other neighboring cities, such as the Village of Tinley Park (Tinley Park). Soon after Orland Hills entered into the annexation agreement, it sought to have Citizens extend water service to the property. Citizens and Tinley Park were opposed to this extension. Orland Hills filed a complaint for declaratory judgment against Citizens and Tinley Park, seeking a declaration that Citizens be obligated to provide water to the property (the Citizens litigation).2
Meanwhile, Tinley Park filed a motion for preliminary injunction to contest the validity of Orland Hills' annexation of the property. During a hearing conducted on January 24, 2000, Formula's president, Douglas Engberg, testified with respect to the annexation agreement. He stated that Formula had contracted to buy the property from A & M and that, once ownership was transferred, Formula planned to sell a portion of the property (lots 2, 4 and part of 1) to Glenbrook. Engberg also testified that Formula and Orland Hills had entered into an amendment to the annexation agreement affecting Formula's right, as developer, to petition for disconnection of the property. Engberg averred that the amendment, once finalized, would eliminate the language in the annexation agreement with respect to the right to disconnect. Engberg testified that, instead, the right to disconnect would be dependent upon the resolution of the Citizens litigation; if Orland Hills were victorious, the disconnection right could not be exercised. At the close of the hearing, Tinley Park's motion was denied and summary judgment was entered in favor of Orland Hills.3
On February 9, 2000, A & M completed its sale of the property to Formula, which was now both owner and developer. On that same date, Orland Hills and Formula finalized their amendment to the annexation agreement. The amendment contains five recitals, A through E. Recital A refers to the original annexation agreement. Recital B refers to the then-pending Citizens litigation and Orland Hills' efforts to effect a judicial declaration that Citizens is obligated to provide water to the property. Recital C cites that language in the annexation agreement (section 7) that gave the developer the right to disconnect on or before December 30, 2000. Recital D states that the parties "acknowledge that the reason for granting a right of disconnection is directly related to the possibility that Citizens be found not obligated to service the * * * property with water." Recital E concludes that if Orland Hills were to prevail in the Citizens litigation, thereby obligating Citizens to provide water to the property by final court order, then Orland Hills would immediately proceed with any construction for water service and the owner and developer would waive their right to disconnect. The body of the amendment binding the parties and their successors in interest states:
At some point thereafter, Orland Hills and Formula signed a letter of interpretation (Letter) comprised of three numbered paragraphs discussing the amendment and the right to disconnect. Paragraph one states that the December 30, 2000, disconnection date in the original annexation agreement was designed to accommodate the possibility that Orland Hills would not be able to provide water to the property. Paragraph two states that the purpose of the amendment "is to eliminate the December 30, 2000 deadline and relate the Developer's right to disconnect to final adjudication of the issues pending in" the Citizens litigation. Finally, paragraph three states that by executing the amendment, the parties thereto intend to "measure" the right to disconnect only by the results of the Citizens litigation and not by any specific date, leaving the developer with the ability to exercise his right to disconnect only if Orland Hills were to lose that litigation.
On April 4, 2000, after the amendment to the annexation agreement was executed and after the Letter was signed by Orland Hills and Formula, Formula sold a portion of the property (lots 2, 4 and part of 1) to First Bank and Trust Company, as trustee of trust number 10-2377, which in turn conveyed separate parts of this portion of the property to trust number 10-2395 and trust number 10-2396. By these conveyances, Glenbrook Development became the successor developer of this portion of the property. On May 25, 2000, Glenbrook petitioned Orland Hills to disconnect its portion of the property, citing the annexation agreement and noting that it was exercising its right to disconnect before the December 30, 2000, deadline. Orland Hills denied Glenbrook's petition. Glenbrook filed a complaint against Orland Hills, asking the trial court to order Orland Hills to grant its petition to disconnect. In response, Orland Hills moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)) (Code), asserting that under the amendment, Glenbrook's right to disconnect was dependent upon the outcome of the pending Citizens litigation.
The trial court granted Orland Hills' motion with prejudice, finding that there were no genuine issues of material fact precluding it from ruling on the interpretation of the annexation agreement and the amendment. The court found that these documents were unambiguous and that it was clear that the amendment modified the original annexation agreement by "extend[ing] the time to disconnect further, not to a specific date but until a specific event occurs," namely, a resolution of the Citizens litigation that is adverse to Orland Hills. The court concluded that these documents were "susceptible to no other meaning."
ANALYSIS
Glenbrook appeals the trial court's grant of Orland Hills' section 2-619 motion to dismiss. We review an appeal from the grant of a section 2-619 motion on a de novo basis in order to determine whether the trial court correctly found no genuine issue of material fact existed and judgment as a matter of law was proper. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993); accord Spirit of Excellence, Ltd. v. Intercargo Insurance Co., 334 Ill.App.3d 136, 145, 267 Ill.Dec. 857, 777 N.E.2d 660, 668 (2002). Dismissing a cause pursuant to section 2-619 of the Code allows for the disposal of issues of law or easily proved facts early in the litigation process. See Coles-Moultrie Electric Cooperative v. City of Sullivan, 304 Ill.App.3d 153, 158, 237 Ill.Dec. 263, 709 N.E.2d 249, 252 (1999).
On appeal, Glenbrook makes two contentions of error on the part of the trial court. First, Glenbrook contends that the court improperly construed the amendment, because the amendment did not replace section 7 of the annexation agreement (Agreement) but, rather, only added a condition to Glenbrook's right to disconnect. Glenbrook claims that the plain language of these documents grants it the right to disconnect (1) if it files its petition on or before December 30, 2000, and (2) if it files its petition before entry of an order in the Citizens litigation...
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