Heerey v. Maniatis
| Decision Date | 22 December 1989 |
| Docket Number | No. 4961,No. 1-88-2324,4961,1-88-2324 |
| Citation | 140 Ill.Dec. 40,192 Ill.App.3d 868,549 N.E.2d 691 |
| Parties | , 140 Ill.Dec. 40 Bernard A. HEEREY, Plaintiff-Appellant, v. Sam MANIATIS, Western National Bank of Cicero, a National Banking Association, as Trustee U/T, and City of Chicago, a Municipal Corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Kimberly Anderson FortCamp, Nathaniel I. Grey, P.C., Chicago, for plaintiff-appellant.
Alvin R. Becker, Timothy M. Kelly, of counsel, Beermann, Swerdlove, Woloshin, Barezky & Berkson, Chicago, for Sam Maniatis.
Plaintiff Bernard A. Heerey appeals from an order of the trial court granting summary judgment to defendants in a dispute over the ownership and obstruction of an alley on Chicago's near north side. 1 The defendants are Sam Maniatis (Maniatis), the beneficial owner of property abutting the disputed alley, and the city of Chicago (City); Western National Bank of Cicero (Bank), the title owner of Maniatis' property, is not involved in this appeal.
The pertinent facts are as follows. On February 6, 1985, Heerey filed a three-count complaint against Maniatis, the Bank and the City. In count I of his complaint, Heerey sought a declaratory judgment against the City, asserting that a certain alley lying adjacent to and contiguous to the east line of Maniatis' property and the west line of Lot 4 of Heerey's property is a private alley. Count II of the complaint sought an injunction against Maniatis, barring his future interference with the alleged private alley. Count III of the complaint sought compensatory and punitive damages for Maniatis' past interference with the alleged private alley. After defendants filed answers to the complaint, Heerey filed a motion for summary judgment and Maniatis and the City filed cross-motions for summary judgment, both asserting that the alley was a public one.
On March 29, 1988, the trial court granted summary judgment in favor of defendant Maniatis and against Heerey on the cross-motions for summary judgment, and dismissed Heerey's entire complaint. In doing so, the court, in a written decision, stated: The restrictive covenant contained in the 1899 deed referred to by the court, which preceded Heerey's purchase of the property abutting the alley [Lot 4], states as follows:
"A part of the consideration herein is that the grantee herein and all persons holding under and through him [of Lot 4] shall never join in any petition to vacate the public alley next west of those premises, but such alley shall forever remain a public alley situated in the City of Chicago." (Emphasis added.)
On July 13, 1988, Heerey filed a motion for reconsideration. The trial court subsequently denied the motion, and this appeal followed.
On appeal, Heerey seeks either a reversal of the trial court's dismissal of his cause with a declaration that the alley is a private one and a remandment for a determination of his injunction count (count II) and damages count (count III) of his complaint or a remandment with instructions to the trial court to enter a declaratory judgment on the ownership status of the alley after an evidentiary hearing and a hearing thereafter on counts II and III of his complaint.
Heerey makes his prayer for relief based on arguments, among others, that the trial court erred in leaving the ownership of the disputed alley unresolved, that it erred in dismissing the entire complaint where there were three counts in the complaint and only one was addressed by the court's order, that it was error for the trial court to hold that the restrictive covenant contained in the 1899 deed barred his action, that the alley could not be public as a matter of law, and that the trial court misinterpreted the restrictive covenant which it relied on.
Maniatis argues that the trial court properly concluded that the restrictive covenant barred the action and, accordingly, the court properly entered summary judgment in his favor. In addition, both Maniatis and the City argue that the alley is a public one.
Summary judgment should be granted where "the pleadings, depositions and admissions on file, together with the supporting affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." (Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill.App.3d 108, 110, 17 Ill.Dec. 111, 376 N.E.2d 4; Ill.Rev.Stat. 1987, ch. 110, par. 2-1005(c).) Evidence is to be construed strictly against the moving party and liberally in favor of the opponent. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill.App.3d 1053, 291 N.E.2d 202.) The right to summary judgment must be clear beyond question and an order granting summary judgment must be reversed if a reviewing court determines that a material question of fact does exist. Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill.App.3d 108, 17 Ill.Dec. 111, 376 N.E.2d 4.
In the instant case, we find that not only did the trial court misapply the effect of the restrictive covenant in holding that it barred Heerey from seeking his declaratory action, but also that a genuine issue of material fact existed and therefore the court erred in granting summary judgment to Maniatis. We first observe that Heerey's declaratory action did not seek to vacate a public alley. Heerey requested that the court determine, based on his position that the alley was a private one, that he and Maniatis each owned 50% of the alley (12' X 49.36') and that the City had no rights of any kind in the alleged private alley. In other words, Heerey was requesting the court to determine his and Maniatis' ownership rights in the alley and the City's nonownership; he was not requesting the court to vacate a public alley.
Moreover, Heerey's complaint simply cannot be construed as an action to vacate an alleged public alley. The procedure for vacating a public alley is governed by sections 6 through 8 of the Plats Act (Ill.Rev.Stat. 1987, ch. 109, pars. 6-8). Under the Act, the granting or denial of a vacation of public property may only...
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General Auto Service Station v. Maniatis, 1-01-0330.
...surrounding the alley.1 This appeal is a continuation of the litigation previously before this court in Heerey v. Maniatis, 192 Ill.App.3d 868, 140 Ill.Dec. 40, 549 N.E.2d 691 (1989). Although the facts of the case are largely detailed in the Heerey opinion, it is useful to review them and ......
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