Koplin v. Hinsdale Hosp.
Decision Date | 31 December 1990 |
Docket Number | No. 2-90-0845,2-90-0845 |
Citation | 151 Ill.Dec. 685,207 Ill.App.3d 219,564 N.E.2d 1347 |
Parties | , 151 Ill.Dec. 685 Alfred N. KOPLIN, Plaintiff-Appellee, v. HINSDALE HOSPITAL, et al., Defendants-Appellants. |
Court | United States Appellate Court of Illinois |
Fred I. Feinstein, Bruce H. Weitzman, Douglas C. Tibble (argued), Michael D. Phillips, McDermott, Will & Emery, Chicago, for Hinsdale Hosp. and Harris Bank Hinsdale TUT. Fredric Adam Cohen, Theodore A. Shapero, Thomas F. Geselbracht (argued), Rudnick & Wolfe, Chicago, for Alfred N. Koplin.
The defendants, Hinsdale Hospital and Harris Bank Hinsdale as trustee under trust dated February 1, 1990, and known as trust No. L-2525 ( ), bring this interlocutory appeal from the order of the circuit court of Du Page County preliminarily enjoining it from using its right-of-way over Spinning Wheel Road, a road privately owned by plaintiff, Alfred N. Koplin, for ingress or egress to or from the Office Park of Hinsdale property which is immediately adjacent to Spinning Wheel Road on the west. The Hospital also appeals the court's order preliminarily enjoining it from using its own property immediately adjacent to Spinning Wheel Road on the east as a temporary parking facility. No issue is raised concerning the further order of the court mandatorily enjoining the Hospital to restore the curb where it was cut on the west side of Spinning Wheel Road. This court has jurisdiction over the Hospital's appeal under the provisions of Supreme Court Rule 307 (107 Ill.2d R. 307(a)(1)).
The Hospital contends the court erred when it (1) preliminarily enjoined it from crossing the servient property (referred to hereafter as Spinning Wheel Road) in an east-west direction because its easement provides an unlimited right-of-way "for all purposes"; (2) preliminarily enjoined its use of its own property as a temporary parking lot because Koplin's original motion for preliminary injunction did not request such relief and it had no opportunity consistent with due process to prepare for or respond to plaintiff's amended complaint requesting such relief; and (3) preliminarily enjoined the use of its property as a temporary parking lot because there was no evidence of, and it did not find, irreparable injury, a substantial likelihood of success on the merits, or lack of an adequate remedy at law.
Initially, we address the Hospital's motion to strike the statement of facts included in Koplin's appellee's brief, and Koplin's objections thereto, which we ordered to be taken with the case. The Hospital asserts Koplin's statement of facts is argumentative, mischaracterizes the various portions of the testimony and aspects of the proceedings, and contains facts unsupported by the record on appeal. The Hospital urges that this court strike the statement in its entirety because the improprieties are so pervasive. Koplin objects, arguing his statement of facts is confirmed by the record or is "based upon reasonable inference[s] drawn from the [r]ecord as a whole * * * in an effort to state the facts of the case fairly and accurately."
Supreme Court Rule 341(f) provides in pertinent part that the appellee's brief need not contain a statement of facts as required in subsection (e)(6) of the Rule except to the extent that the presentation by the appellant is deemed unsatisfactory. Any statement of facts, whether presented by the appellant or the appellee, is to be stated accurately and fairly without argument or comment. 113 Ill.2d Rules 341(e)(6), (f).
An appellee's statement of facts which was neither objective nor without comment and which did not identify in what respect the appellant's statement was deficient was found to offend against the requirements of Rule 341 in People v. Williams (1967), 86 Ill.App.2d 209, 214, 229 N.E.2d 158. Observing that the material set forth in the statement of facts more appropriately could have been placed in the argument portion of the brief, the court did not strike the statement of facts but, rather, concluded simply that, "a following of the rules as to briefs is to be encouraged." (86 Ill.App.2d at 214, 229 N.E.2d 158.) In several other cases, the appellants' statements of facts were found to be either a mischaracterization of the evidence, argumentative or highly conclusional. (Wald v. Chicago Shippers Association (1988), 175 Ill.App.3d 607, 616, 125 Ill.Dec. 62, 529 N.E.2d 1138; Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill.App.3d 637, 646, 123 Ill.Dec. 288, 527 N.E.2d 926; James v. Yasunaga (1987), 157 Ill.App.3d 450, 452, 109 Ill.Dec. 663, 510 N.E.2d 531.) The statements of facts were not stricken, however, where they otherwise were supported by record references and were found to be not so flagrantly violative of the rules as to hinder or preclude review of the cause.
Although we find Koplin's appellee's statement of facts fleshes out the evidence more than we believe is justified by the record and tends to be phrased in conclusional terms, it nonetheless is supported by appropriate record references and is not so flagrantly argumentative or conclusional as to hinder or preclude review. Moreover, as Koplin notes in his objections, the Hospital's statement of facts is not without fault, either, inasmuch as it omits any reference whatever to Koplin's expert traffic engineer, Dan Goetsch. Both parties--and this court--would have been better served by presentation of a thorough, entirely factual statement of the evidence presented as required by the supreme court rules. "Reasonable inferences drawn from the record as a whole" are simply not facts and do not belong in the statement of facts. Nevertheless, the Hospital's motion to strike is denied, and we proceed to consider the cause.
A visual depiction of the location of the properties implicated in this appeal is provided in appendix A and will be helpful to an understanding of the case. It is based on plaintiff's exhibit No. 2 which was admitted at trial. In general terms, the properties involved are located in Hinsdale, north of Ogden Avenue, west of the Tri-State Tollway, east of Salt Creek Lane, and south of Salt Creek itself.
Legal title to parcels A and B shown on appendix A are held in trust by Old Kent Bank and the beneficial owners are Alfred N. Koplin and his wife. Parcel A was improved in 1968 with a 17-story 156-unit apartment building and has a near-capacity residency rate of about 250 to 300 tenants. Parcel B was improved in 1967 with a five-floor commercial office building and parking lot. Parcel C shown on appendix A was acquired by Alfred N. Koplin individually in 1967 to provide access to the otherwise landlocked parcels A and B. It is presently a private road known as Spinning Wheel Road which Koplin improved with pavement and curbs and which he maintains.
The trustee's deed conveying parcel C to Koplin recited that it was subject to: "[a] perpetual right-of-way for all purposes over subject property in favor of [the east property]." The beneficial and legal owners, respectively, of the east property are the defendants, Hinsdale Hospital and Harris Bank Hinsdale as trustee. The front portion of the east property (nearest Ogden Avenue) is presently improved with a building used as a clinic providing health rehabilitation and treatment services and meeting and health education facilities. This building formerly was used and known as the Spinning Wheel Restaurant. There is a parking lot located on the east side of the building which is accessed from County Line Road and Ogden Avenue. A service road in the back (west side) of the building is accessed from Spinning Wheel Road by way of a curb cut on the east side of Spinning Wheel Road. It is used for loading and unloading, and parking of service and maintenance vehicles. Clinic staff sometimes park back there also. A grassy lot located on the rear (north) portion of the east property was used primarily by kids as a baseball field until late May 1990 when the Hospital converted it to a temporary parking facility.
The instant cause was precipitated when the Hospital president, Ken Bauer, sent Koplin a letter dated May 25, 1990, advising him that the Hospital "intends to use its easement over Spinning Wheel Drive [sic ], to provide access to the Office Park of Hinsdale property immediately west of the easement [the west property]." With no prior or subsequent permission from Koplin, the Hospital cut an opening in the west curb of Spinning Wheel Road during the week of May 28, 1990. A gravel road extends from that curb cut to the parking lot of one of the office buildings located on the west property in the Office Park of Hinsdale. The west property is owned by the Office Park of Hinsdale Corporation which, in turn, is owned by the Adventist Health Resources, a sister corporation of the Hinsdale Hospital. The gravel road extending from the west curb cut of Spinning Wheel Road affords cars traveling west thereon indirect access to Salt Creek Lane, a private road which intersects at its south end with Ogden Avenue and Oak Street, a signalized intersection. Utilizing this same route in an eastbound direction, cars can access the temporary parking lot on the Hospital's east property by crossing Spinning Wheel Road from the west curb cut to the service road at the east curb cut and thence to the newly graveled-over baseball field parking lot. Thus, persons traveling eastbound or westbound from the temporary parking lot would have access to the signalized intersection at Salt Creek Lane and Ogden Avenue rather than having to make left-hand turns from or onto Ogden Avenue at Spinning Wheel Road, where there is no traffic signal.
Koplin filed his original single-count complaint seeking to enjoin the Hospital from using its Spinning Wheel Road easement for ingress and egress to the west...
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