Sadler v. Creekmur, 3-03-0039.

• Decision Date: 23 December 2004
• Docket Number: No. 3-03-0039.,3-03-0039.
• Citation: 290 Ill.Dec. 289,354 Ill. App.3d 1029,821 N.E.2d 340
• Parties: Monica J. SADLER, Plaintiff-Appellant, v. William V. CREEKMUR, Individually and as Trustee of the William V. Creekmur Living Trust; Nira Del Creekmur, Individually and as Trustee of the Nira Del Creekmur Living Trust; The Oak Run Property Owners Association; Robert Brenkman; Tom Sacco; Dale E. Sundberg; Merle G. Huff; A. Dean Dearing; James L. Kuntz; Gene Shrader; Jim Lair; Bill Cain; Michael Massie; and the County of Knox, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

821 N.E.2d 340

354 Ill. App.3d 1029

290 Ill.Dec. 289

Monica J. SADLER, Plaintiff-Appellant, v. William V. CREEKMUR, Individually and as Trustee of the William V. Creekmur Living Trust; Nira Del Creekmur, Individually and as Trustee of the Nira Del Creekmur Living Trust; The Oak Run Property Owners Association; Robert Brenkman; Tom Sacco; Dale E. Sundberg; Merle G. Huff; A. Dean Dearing; James L. Kuntz; Gene Shrader; Jim Lair; Bill Cain; Michael Massie; and the County of Knox, Defendants-Appellees.

No. 3-03-0039.

Appellate Court of Illinois, Third District.

December 23, 2004.

Rehearing Denied January 26, 2005.

Peter C. Fieweger (argued), Katz, Huntoon & Fieweger, P.C., Rock Island, for Monica J. Sadler.

Paul Mangieri, State's Attorney, Galesburg, for County of Knox.

John W. Robertson (argued), Daniel S. Alcorn, Stoerzbach, Morrison, Robertson, Wilcox & Alcorn, Galesburg, for Oak Run Property Owners Association.

R. Michael Henderson (argued), Laura A. Petersen, Quinn, Johnston, Henderson & Pretorius, Peoria, for Michael Massie.

David Simpson (argued), Hattery, Simpson & West, Galesburg, for William V. Creekmur.

Justice BOWMAN delivered the opinion of the court:

In this matter transferred from the Appellate Court, Third District, plaintiff, Monica J. Sadler, appeals from orders entered in the circuit court of Knox County dismissing her second amended complaint with respect to certain defendants, granting summary judgment in favor of other defendants, and entering sanctions against her pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137). Sadler argues on appeal that: (1) the trial court erred in interpreting the restrictive covenant at issue, (2) genuine issues of material fact preclude the dismissal of her complaints and the entry of summary judgment against her, (3) her claims against defendants were not moot, (4) the trial court erroneously denied her request for a temporary injunction, (5) the trial court improperly granted defendants' dispositive motions while her motion for substitution of judge was pending, and (6) the trial court abused its discretion in sanctioning her.

I. BACKGROUND

This dispute involves certain real property located in the Forest Ridge subdivision of the Oak Run community, a group of eight subdivisions, in Knox County. Sadler owned, in fee simple, lot 107 Forest Ridge, and also held an undivided interest in lots 195, 536, and 249 Forest Ridge. Defendants William and Nira Del Creekmur were the beneficial owners of lot 194 Forest Ridge, which was held in two trusts. The Creekmurs had a house on their lot, where they resided. At all times relevant to this litigation, the Forest Ridge subdivision was governed by a declaration of restrictive covenants. Defendant Oak Run Property Owners Association (Association) was charged with maintaining and administering the community properties and facilities and enforcing the restrictive covenants.

In January 1997, the Creekmurs recorded a plat that subdivided lot 194 into two lots called Sandy Ridge lot 1 and Sandy Ridge lot 2. They intended to build another residence on the subdivided lot and, toward that end, obtained a building permit (County building permit) from the Knox County zoning administrator. The Creekmurs also obtained a building permit (Association building permit) from the Association's architectural control committee.

Sadler objected to the subdivision of lot 194 and to allowing the Creekmurs to build another house on the subdivided lot. She contended that the subdivision of the lot violated the Forest Ridge restrictive covenants. Article VII, section 1, of the restrictive covenants provides in relevant part:

"No building shall be erected, altered, placed or permitted to remain on any lot other than one single family dwelling not exceeding two and one-half stories in height, and one private garage or boathouse, or combination garage and boathouse for family automobiles and boats, in keeping with the dwelling so erected."

The covenants did not define "lot."

Also in existence was a sanitary district ordinance prohibiting a sewer tap-on or private sewage treatment system on any Forest Ridge lot other than an originally platted lot. Based on this ordinance, the sanitary district denied the Creekmurs' request for a permit to tap on the proposed new residence to the sewer system. The Creekmurs also sought a permit to install a private septic system on their lot, but the Knox County zoning administrator denied their request. Because the Creekmurs did not have the necessary permit from the sanitary district, the Association's architectural control committee suspended the Creekmurs' Association building permit on April 12, 1997.

On May 24, 1997, the Creekmurs agreed to sell Sandy Ridge lots 1 and 2 to defendants Peter and Chantal Williams, with the intention that the Williamses would acquire the former lot 194 as two separate parcels of land, each able to contain a single-family home.

On June 12, 1997, Sadler filed a verified petition for declaratory and injunctive relief (petition) against the Creekmurs, the Williamses, and the Association, alleging that the restrictive covenant prohibited the Creekmurs from subdividing their property and building a second residence on it. She sought declarations that the Creekmurs' acts of subdividing their property and recording the subdivision were illegal, null, and void, and that the County building permit was illegal, null, and void. She also sought a temporary restraining order and a preliminary injunction prohibiting the Creekmurs from conveying any interest in lot 194 and from taking any action to build a second house on lot 194. She further requested that the court enter a permanent injunction, requiring the Creekmurs to take all steps necessary to vacate the subdivision and prohibiting them from building on lot 194.

In response to Sadler's petition, the Association filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1996)), arguing that the dispute had become moot because the Creekmurs intended to vacate the plat of subdivision and the Williamses did not oppose vacating the plat. The trial court determined that the case was not yet moot, but granted the Association's motion to dismiss without prejudice because Sadler did not request any declaratory or injunctive relief as to the Association. The court denied Sadler's request for a temporary restraining order and preliminary injunction, on the ground that Sadler had not suffered any immediate or irreparable harm.

On July 3, 1997, Sadler conveyed by deed her interest in lot 195 Forest Ridge, which adjoined the Creekmurs' property, to a nonparty. On July 14, 1997, she filed a lis pendens against approximately 2,600 lots in all 8 Oak Run subdivisions, but the court limited the lis pendens to the Creekmur property.

Also on July 14, 1997, the Creekmurs presented to the Knox County zoning administrator a petition to vacate the Sandy Ridge subdivision plat. On July 17, 1997, the Association adopted a resolution providing that, prospectively, it would not provide permits for more than one residence per original lot. On July 19, 1997, the Williamses and the Creekmurs agreed to terminate the contract for the sale of lots 1 and 2 Sandy Ridge. On August 6, 1997, the executive land use committee of the Knox County Board held a hearing and recommended to the full Knox County Board that it should vacate the Sandy Ridge plat. At a meeting before the Knox County Board on August 20, 1997, Sadler's attorney spoke against vacating the plat. The Knox County Board took no action on the recommendation to vacate the plat. On August 26, 1997, Knox County filed an application to intervene in the instant litigation, which the court granted.

Sadler filed an amended petition on August 28, 1997, without leave of court, in which she added as defendants all individual members of the Association's board of directors, namely, defendants Robert Brenkman, Tom Sacco, Dale E. Sundberg, Merle G. Huff, A. Dean Dearing, James L. Kuntz, and Gene Shrader (Board). Sadler also sought relief from defendants Jim Lair and Bill Cain, who were members of the Association's architectural control committee, as well as Board attorney Michael Massie. The Association moved to dismiss the amended petition pursuant to section 2-619(a)(9) of the Code, arguing that the events following the filing of Sadler's petition rendered her claims moot. At that time, the Creekmurs and Williamses still had pending motions to dismiss on file.

The trial court conducted hearings on the parties' motions to dismiss in September and November 1997. On January 6, 1998, it entered an order dismissing with prejudice Sadler's claims against the Williamses, her claims for declaratory and injunctive relief against the Association, and her claim for injunctive relief against the Creekmurs. The court granted Sadler leave to file an amended complaint.

On March 3, 1998, Sadler filed a verified second amended complaint. Count I sought a declaration that the Creekmurs' subdivision of lot 194 violated the restrictive covenants and was null and void. It also sought a declaration that the County building permit was illegal because it violated the restrictive covenants. Count II sought damages against the Creekmurs for the material breach of the restrictive covenants. Count III alleged breach of contract against the Association and the Board for refusing to enforce the restrictive covenants. Count IV alleged a breach of fiduciary duty by the Association and the Board. Count V alleged a breach of fiduciary duty by defendants Lair and Cain in approving the Creekmurs' building permit. Count VI alleged that attorney Massie failed to enforce the restrictive covenants, gave erroneous legal advice to the Board, and had a conflict of interest because he owned lots in another Oak Run subdivision.

The Creekmurs moved to dismiss counts I and II of the second...