Krueger v. Oberto
| Citation | 309 Ill. App.3d 358,724 N.E.2d 21,243 Ill.Dec. 712 |
| Decision Date | 29 December 1999 |
| Docket Number | No. 2-98-1611, No. 2-98-1637. |
| Parties | William KRUEGER and Audrey Krueger; Terrence J. Brady and Debra R. Brady; Patrick Lubenow and Paula Lubenow; Michael McNamara and Beth McNamara; Ruth Prest; Jerry Quist and Danielle Quist; Kathleen Osmond and Walter Osmond, Jr., Kevin Gherlone and Kimberly Gherlone; Clifton Stewart; Roberta Bernard; Susan MacCauley; Pat Bell and George R. Bell, Jr.; and Robert W. and Mildred J. Vehlow, Plaintiffs and Counter-defendants-Appellees, v. Edwin L. OBERTO and Annette B. Oberto, Michael Werchek, and Werchek Builders, Ltd., Defendants and Counter-plaintiffs-Appellants. |
| Court | United States Appellate Court of Illinois |
Michael Gilman, O'Brien, O'Rourke & Hogan, Chicago, John W. Quinn, Churchill, Baumgartner & Quinn, Ltd., Grayslake, for Annette B. Oberto, Edwin L. Oberto.
Marshall N. Dickler, James A. Slowikowski, Marshall N. Dickler, Ltd., Arlington Heights, for George R. Bell Jr., Pat Bell, Roberta Bernard, Debra Brady, Terrence J. Brady, Kevin Gherlone, Kimberly Gherlone, Audrey Krueger, William Krueger, Paula Lubenow, Patrick Lubenow, Susan MacCauley, Beth McNamara, Michael McNamara, Kathleen Osmond, Walter Osmond Jr., Ruth Prest, Danielle Quist, Jerry Quist, Clifton Stewart, Mildred J. Vehlow, Robert W. Vehlow in No. 2-98-1611.
Glen T. Keysor, Robert H. Lang, Fagel & Haber, Chicago, for Michael Werchek, Werchek Builders, Ltd.
Marshall N. Dickler, Marshall N. Dickler, Ltd., Arlington Heights, for Audrey Krueger, William Krueger in No. 2-98-1637.
The defendants, Edwin L. and Annette B. Oberto and Michael Werchek and Werchek Builders, Ltd., appeal the trial court's ruling in a preliminary and permanent injunction action enjoining the defendants from subdividing a parcel of property into three lots and building single-family residences on each lot. We reverse.
The following facts are taken from the pleadings and attached documents. In the 1950s, Francis C. and Adelaide Paradise (the Paradises) subdivided a parcel of land in Libertyville, Illinois, and created a sub-division named Paradise Park Estates (Paradise Park). The plat of subdivision was recorded in the Lake County recorder of deeds office on April 20, 1957. The plat shows restrictions pertaining to easements and building line setbacks. The plat also shows 34 lots. All of the lots are approximately one-half an acre each except for lot 34, which is approximately three acres (six times as large as the other lots). The plat shows that lot 34 does not have access to the two subdivision roads.
Subsequently, the Paradises transferred their interests in Paradise Park to a land trustee; this transfer was recorded on April 20, 1957. The land trustee then transferred lots 24 and 34 by a trustee deed back to the Paradises; this transfer was recorded on June 8, 1957.
The land trustee then conveyed other lots of Paradise Park containing restrictive covenants. The deeds were recorded as follows: lot 4, conveyed back to the Paradises, recorded on September 17, 1957, showing no protective covenants; lot 4, conveyed to a third party, containing the protective covenants at issue, recorded on October 10, 1957; lots 15, 16, and 17, recorded on November 20, 1957, containing protective covenants; and lots 2, 5, 6, 12, 14, 21, 25, 26, and 27, recorded on December 30, 1958, also containing protective covenants. All of the deeds noted above, except for the conveyance of lot 4 from the trustee to the Paradises, included the following restriction:
Subsequently, defendants Edwin L. and Annette B. Oberto (the Obertos) acquired lot 34 from the Paradises by a warranty deed, recorded in the Lake County recorder of deeds grantor-grantee index on July 17, 1959. The title report issued to the Obertos from Chicago Title Insurance Company showed no protective covenants encumbering lot 34. The deed stated that the Obertos' interest was subject only to the subdivision and utility easements of record.
Sometime before March 1988, the Obertos entered into a contract to sell lot 34 to defendants Michael Werchek and Werchek Builders (Werchek), who proposed to subdivide lot 34 into three lots and build single-family residences on each of the lots. On March 2, 1998, the plaintiffs, William and Audrey Krueger, Terrence J. and Debra R. Brady, Patrick and Paula Lubenow, Michael and Beth McNamara, Ruth Prest, Jerry and Danielle Quist, Kathleen and Walter Osmond, Jr., Kevin and Kimberly Gherlone, Clifton Stewart, Roberta Bernard, Susan MacCauley, Pat and George R. Bell, Jr., and Robert W. and Mildred J. Vehlow, filed a two-count complaint seeking preliminary and permanent injunctions. Count I alleged that the protective covenants listed above applied to lot 34 and sought a preliminary and permanent injunction to order the defendants to comply with the protective covenants allowing only one single-family structure on lot 34 and prohibiting the resubdivision of lot 34 and construction of a road. Count I also sought a declaration that the building of more than one single-family structure on lot 34 was prohibited by the plat of subdivision and the protective covenants. Count II alleged violations of the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 1998)).
On April 2, 1998, the Obertos filed an answer to the plaintiffs' complaint, raising as an affirmative defense that the action was barred by the 40-year statute of limitations set forth in section 13-118 of the Code of Civil Procedure (Code) (735 ILCS 5/13-118 (West 1998)). The Obertos also filed a counterclaim, alleging that the protective covenants were not in their chain of title and seeking a declaration that the protective covenants did not encumber lot 34. Subsequently, the Obertos amended their counterclaim to allege that they did not have either actual or constructive notice of the protective covenants when they bought lot 34.
On March 26, 1998, Werchek filed a motion to dismiss the plaintiffs' complaint pursuant to sections 2-615 and 2-619 of the Code. (735 ILCS 5/2-616, 2-619 (West 1998)). Werchek asserted that the protective covenants did not apply to lot 34, the plaintiffs waived any right to enforce the protective covenants because the plaintiffs had violated them, there was no general plan for Paradise Park, the protective covenants did not prohibit the proposed development, and the action was barred by the 40-year statute of limitations (735 ILCS 5/13-118 (West 1998)). In support of its motion, Werchek attached, inter alia, copies of the land trustee's deed conveying lots 24 and 34 to the Paradises and the deed conveying lot 34 to the Obertos. Regarding count II of the plaintiffs' complaint alleging violations of the Municipal Code, Werchek attached an affidavit of defendant Michael Werchek. The affidavit stated that lot 34 consisted of three acres, that the average acreage of the other lots in Paradise Park was half an acre, and that each lot of the proposed development would exceed this size.
On April 7, 1998, the plaintiffs filed a two-count "Amended First Amended Complaint" against the defendants, seeking a preliminary and permanent injunction requiring the defendants to comply with the protective covenants permitting only one single-family structure on lot 34. Count I alleged that the protective covenants listed above applied to lot 34, the Obertos had actual or constructive notice of the covenants prior to their contract to sell lot 34 to Werchek, and the protective covenants were part of a general plan for Paradise Park. Count II alleged that the acts of the defendants violated the Municipal Code.
Subsequently, the plaintiffs filed a response in opposition to Werchek's motion to dismiss. In support of their response, the plaintiffs attached an affidavit of Kathleen Ryg, the current chief deputy recorder of deeds for Lake County. In her affidavit, Ryg stated that Lake County maintained an index of recorded plats of subdivisions and a "public index of restrictions, covenants and conditions," which listed the recorded restrictions, covenants, and conditions of Paradise Park. This index of restrictions, covenants, and conditions listed the restrictions under document No. 1015928, containing the deed for lots 2, 5, 6, 12, 14, 21, 25, 26, and 27, recorded on December 30, 1958. This document cross-referenced document No. 968150, containing the deed for lot 4, recorded on October 10, 1957.
The plaintiffs' response also contained the affidavit of Dale Kolber, an attorney and former title examiner, title officer, and office counsel for Chicago Title Insurance Company. Kolber stated that he began working for the title company in 1966. He further stated that title examiners followed a custom and practice that included an examination of the "first deed out" (the first deed sold from a subdivision developer to another) to determine whether any covenants, conditions, or restrictions of record applied to all lots of a subdivision. On April 22, 1998, the trial court denied Werchek's motion to dismiss. The court stated that the deed for lot 4 (recorded on October 10, 1957) containing the protective covenants was the "first deed out," that the conveyance to the Obertos occurred on July 16, 1959, by which time "the public index of restrictions, covenants and conditions" maintained by the ...
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