APPEAL from the Circuit Court of McHenry County; the Hon.
LaVERNE A. DIXON, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The plaintiff, Wooded Shores Property Owners Association, Inc., has appealed the final order of the circuit court of McHenry County which dismissed plaintiff's amended complaint with prejudice without stating its reasons. On appeal, plaintiff raises one issue, whether or not the amended complaint sets forth a cause of action for which relief could be granted.
The plaintiff, a not-for-profit corporation of the lot owners in the Wooded Shores subdivision since 1945, brought this action seeking to have it declared the legal owner of, or, in the alternative, either beneficial owner through a constructive trust or holder of an exclusive easement, of the 13 roads, 3 beach accessways and beach property located in and adjacent to the Wooded Shores subdivision, as well as damages, other equitable relief and any other relief that might be justified. The primary defendants in this action are Thomas and Lois Mathews, alleged holders of the tax deed to the beach property and the purchasers of easements in the roads and title to the northeast beach accessway from Grover and Anna Wickline, the developers of the Wooded Shores subdivision. After hearing arguments from the attorneys on the defendants' motion to dismiss the amended complaint, the trial court dismissed the amended complaint with prejudice to all defendants.
The plaintiff is an association of 130 lot owners in the Wooded Shores subdivision, which was incorporated on April 28, 1945, as a not-for-profit organization solely for the purpose of taking and holding the title to the roads, beach, beach accessways and water systems of the Wooded Shores subdivision. The members of the association took title to their lots through Grover Wickline and Anna Wickline, the developers of the Wooded Shores subdivision. Anna Wickline acquired title to the property in question in her name only on March 23, 1931, and thereafter, on March 25, 1935, filed and recorded the plat of Wooded Shores subdivision. The plat expressly designated the 13 roads in the subdivision as "private." It also designated the three beach accessways as "Walks" and the beach as a "Park." As an inducement to purchase, Grover Wickline orally represented to the purchasers of the lots that the roads and the community areas were private and would be deeded to the association of lot owners when formed. In each deed which transferred title to the lot owners, there was a clause to the effect that the grantee would become a member of the lot owners' association to be formed and it would govern and supervise the drives and community grounds. The deeds also contained a clause stating that each lot owner would contribute proportionately for the care of the drives and community grounds. Each lot owner did contribute their proportionate share for the care of the roads, beach accessways and beach property. At no time did Anna or Grover Wickline, joint tenants after February 12, 1945, deed title to the property in question to the plaintiff association, but instead, in May,, 1959, in two separate transactions, transferred easements to the private roads and title to the northeast beach accessway to Thomas and Lois Mathews. After Anna's death, in 1959, Grover Wickline allowed the taxes for the beach property to fall in default and The John Allan Company acquired the beach property by tax deed in 1964. Subsequently, tax title to the beach property was conveyed to the Illinois State Bank of Chicago, as trustee, and apparently then conveyed to Thomas Mathews.
The defendants' motion to dismiss alleged that the amended complaint failed to state a cause of action for which relief could be granted in that it contained mere conclusions of law, not facts sufficient to support the alleged actions and that many of the facts it contained were immaterial. The motion also alleged that the plaintiff was represented in an action filed in 1959 by one William T. Born, a lot owner in Wooded Shores subdivision, for a declaratory judgment asking that the property in question be declared private and for the exclusive use and enjoyment of the lot owners of Wooded Shores and that that action is a bar to the instant action since it was still pending when this motion to dismiss was heard. The final allegations of the motion to dismiss were that the plaintiff seeks but fails to offer to do equity and that plaintiff is guilty of laches in not filing its complaint within a reasonable time after the occurrence of the alleged wrongful acts. As indicated above, the motion to dismiss was granted by the trial court.
1 It is settled law that an action should not be dismissed pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 45), for failure to state a cause of action or for insufficiency at law unless it clearly appears that no set of facts could be proven under the pleadings which would entitle plaintiff to relief. (Courtney v. Board of Education (1972), 6 Ill. App.3d 424, 286 N.E.2d 25.) Moreover, a motion to dismiss, being in the nature of a common law demurrer, admits all facts well pleaded, together with all reasonable inferences which can be drawn from those facts for purposes of such motion. (Dear v. Locke (1970), 128 Ill. App.2d 356, 262 N.E.2d 27.) Hence, in the present action this court's sole task is to determine whether the allegations of the amended complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action for which relief may be granted.
A review of the amended complaint discloses numerous alternative prayers for relief, including declaratory judgments, mandatory and prohibitory injunctions and compensatory and punitive damages. At the start we note that the plaintiff has failed to raise two of its theories for relief on appeal, viz., a violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1969, ch. 38, par. 60-1 et seq.) and an accounting, and therefore those issues are considered waived. Ill. Rev. Stat. 1973, ch. 110A, par. 341(e)7.
2 We first consider whether the plaintiff's prayer for equitable relief was properly dismissed. In their motion to dismiss the amended complaint the defendants raised the affirmative defense of laches to the equitable relief requested. The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as a neglect to assert a right or claim which, taken together with a lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in the court of equity. Dixon v. Cahill (1973), 10 Ill. App.3d 779, 295 N.E.2d 349.
Plaintiff contends that the motion to dismiss was in an improper form to place the defense of laches before the court. The plaintiff correctly states that:
"* * * the defense of laches can be raised by a motion * * * if: (1) an unreasonable delay appears on the face of the pleading; (2) no sufficient excuse for delay appears or is pleaded; and (3) the motion specifically points out the defect." (Hartsman v. Abboreno (1960), 18 Ill.2d 467, 470, 165 N.E.2d 338, 340.)
Plaintiff claims that none of these elements exist in the present case. We do not agree. A careful examination of the pleadings reveals that the defendants' motion to dismiss alleged that the plaintiff was organized in 1945 and is guilty of laches in not commencing this action within a reasonable time. Furthermore, the pleadings do not state an excuse for the delay. Finally, the motion to dismiss specifically raised the defense of laches. Therefore, we find that the plaintiffs contention that the defendants' motion was in an improper form is unfounded.
The pleadings disclose that between 1945, when the plaintiff was incorporated, and 1971, when this suit was originally instituted, the plaintiff did not prosecute any action to clear the title of the property in question. The court notes that while the plaintiff was represented in the declaratory judgment suit commenced in 1959 for the same purpose, that it was dismissed for want of prosecution in 1967 and reinstated the same year. We lack knowledge as to whether or not this suit ever went to trial. However, the pleadings show that the plaintiffs knew of the alleged violation of their alleged rights in that they were represented in this suit filed in 1959 to enforce that right and, that at the time that the motion to dismiss the instant suit was heard the plaintiff had failed to prosecute the 1959 suit. Furthermore, the plaintiff did not institute the instant suit until death had silenced both Anna and Grover Wickline, principals to the original transaction. As the court stated in Steinhauer v. Botsford (1945), 327 Ill. App. 296, 308, 64 N.E.2d 187, 192:
"A court of equity will refuse relief after inexcusable delay because of the difficulty, if not the impossibility, of arriving at a safe and certain conclusion as to the truth of the matters in controversy and doing justice between the parties, where evidence has been lost through the disappearance of witnesses to the transaction involved in the suit. [Citation.]"
The delay in commencing this suit and prosecuting the 1959 one has had a prejudicial effect upon the defendants in that they have lost the testimony of both Anna and Grover Wickline along with the obvious problems of discovering and construing the intent of various parties 20, 30, and 40 years after the fact. Therefore, we find that the plaintiff's delay in commencing the 1971 suit was unreasonable and has had a prejudicial effect upon the defendants. We hold that that part of plaintiff's suit seeking the declaration of a constructive trust and issuance of injunctions for equitable relief is ...