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Cimino v. Dill

OPINION FILED DECEMBER 31, 1980.

JOSEPH J. CIMINO, PLAINTIFF-APPELLANT,

v.

CONRAD DILL ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action for declaratory judgment to determine the validity and enforceability of certain restrictive covenants as regards property which he has contracted to purchase. The trial court granted defendants' motion for summary judgment, and plaintiff appeals from that order.

The following pertinent facts appear from the record. The subject property is Lot 4675 which comprises approximately 2 1/2 acres of an 11 1/2 acre subdivision in Elk Grove Village. The subdivision was owned by Vale Development (Vale) in 1967. On August 27, 1967, Vale filed "Proposed Covenants and Restrictions" (original document) with the Recorder of Deeds of Cook County (Recorder). That document provided in pertinent part that:

"All lots shall be used for single family residence purposes except * * * Lot 4675 * * * shall be designated as a Church Site. * * * It is understood that, with regard to Lot[s] * * * 4675 * * * the owner or owners in fee simple of said lot, shall at the time of subdivision thereof, be the sole parties who shall have the right to determine whether * * * Lot 4675, as subdivided, shall be used for a church site * * *."

In October 1967 Vale conveyed Lot 4675 to the Catholic Bishop of Chicago (Catholic Bishop), and the deed was recorded on October 25, 1967. On February 15, 1968, Vale filed an "Instrument of Construction, Correction and Amplification" (second document) with the Recorder, which provided in pertinent part:

"The phrase `church site', as employed in instrument recorded August 28, 1967 * * * [original document] with respect to Lot 4675 * * * is hereby construed, corrected and amplified to include use of said lot as a church, church school, priests rectory and convent by the denomination erecting the church on said site, but if development of said premises for said purposes is not commenced within five (5) years from this date, the applicable restriction shall be for single-family residence purposes. Whether or not said lot is so developed, use thereof for single-family residence purposes shall also be permitted after thirty (30) years from this date."

After 1968, the subdivision was developed. A medical facility was constructed on adjacent property and an existing structure on an adjacent lot was used for treatment of alcoholics. The park district placed recreational facilities on a third lot and over 200 single-family residences were built. In 1978 the Catholic Bishop contracted to sell Lot 4675 to plaintiff. Plaintiff then brought this action joining certain landowners in the subdivision as representatives of the class subject to the original document to determine whether the restrictions on the lot were binding upon him.

In his two-count amended complaint plaintiff stated that he intended to construct a medical/business service office building to benefit doctors at a hospital located opposite the subject property. He alleged that such a building conformed to the applicable zoning ordinance of Elk Grove. It was further alleged that a building on an adjoining parcel which was subject to the recorded restrictions had been used as an alcohol treatment facility for approximately 7 years and did not conform to the restrictions. In his first count, plaintiff alleged that because of changes in the character and condition of the subdivision and surrounding neighborhood, the enforcement of the restrictions was unreasonable and inequitable. In the second count, plaintiff alleged that the recorded restriction document was ambiguous on its face and that the ambiguities rendered the restrictions unenforceable.

Plaintiff filed a motion for summary judgment on count II of his amended complaint. Defendants filed a reply and a cross-motion for summary judgment seeking dismissal of only that count. The trial court denied plaintiff's motion and granted defendants' cross-motion and dismissed the complaint. The court found that the recorded document was clear and unambiguous and entered an order which dismissed the amended complaint.

OPINION

I.

Plaintiff first contends that the trial court erred in granting defendants' motion for summary judgment because the "Proposed Covenants and Restrictions" is ambiguous and not mandatory but merely suggestive. He therefore argues that the restrictions should give way to the policy favoring free use and alienation of property. (See St. John's Evangelical Lutheran Church v. Kreider (1977), 54 Ill. App.3d 257, 260, 369 N.E.2d 370, 372; Kessler v. Palmeri (1972), 3 Ill. App.3d 901, 905, 278 N.E.2d 813, 816.) Plaintiff points specifically to the following factors, which he claims demonstrate the ambiguous and non-mandatory nature of the original document: (1) the document is captioned "Proposed Covenants and Restrictions"; (2) the document merely provides that the lot "shall be designated as a Church site" and does not expressly direct that its use be restricted to that purpose; and (3) the fact that the "Instrument of Construction, Correction and Amplification" was filed a year later.

Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57(3)) provides that summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, summary judgment is proper when the issue is determinable solely as a question of law. Sidwell v. Sidwell (1975), 28 Ill. App.3d 580, 583, 328 N.E.2d 595, 598; Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill. App.2d 260, 266, 222 N.E.2d 168, 171.

In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits included therein most strictly against the moving party and most liberally in favor of the opponent. (Harris Trust & Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App.3d 542, 547, 368 N.E.2d 629, 633; Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App.2d 80, 88, 243 N.E.2d 40, 45.) The right of a party to summary judgment must be clear and free from doubt. McHenry Sand & Gravel, Inc. v. Rueck (1975), 28 Ill. ...


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