Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

07/28/94 BENEFICIAL DEVELOPMENT CORPORATION ET AL.

July 28, 1994

BENEFICIAL DEVELOPMENT CORPORATION ET AL. (BENEFICIAL DEVELOPMENT CORPORATION, APPELLANT),
v.
THE CITY OF HIGHLAND PARK ET AL., APPELLEES.



Miller

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

Plaintiffs, Beneficial Development Corporation, Tennyson Development Corporation, and Betty Holst, brought suit in the circuit court of Lake County against defendants, the City of Highland Park and Shaf Home Builders, Inc., for a declaration of rights that a recapture agreement entered into between defendants could not be enforced against plaintiffs. Plaintiffs further alleged in a separate count that defendants constructed a street that encroached on property owned by plaintiffs, and that this encroachment was an unlawful conversion of their property. In the unlawful-conversion count, plaintiffs sought monetary damages, attorney fees, and an order requiring Highland Park to begin eminent domain proceedings to acquire the property in question.

The trial court held that the terms of the recapture agreement were valid and enforceable against plaintiffs, but that Shaf Home Builders had trespassed in constructing the street on plaintiffs' property. The trial court awarded damages against Shaf Home Builders in the amount of $5,445, the market value of the property used in the street construction, and denied all other relief requested by plaintiffs. Plaintiff Beneficial Development Corporation filed a timely notice of appeal. Plaintiffs Tennyson Development Corporation and Betty Holst were not named as parties in the notice of appeal. After holding that Tennyson and Holst had waived their right to appeal, the appellate court affirmed the judgment of the trial court. (239 Ill. App. 3d 414.) We granted Beneficial Development Corporation's petition for leave to appeal (134 Ill. 2d R. 315).

FACTS

Shaf Home Builders, Inc. (Shaf), a developer, owned a 22-acre parcel of land that it desired to develop into a residential subdivision (Tara Subdivision). The TaraSubdivision site was located within the boundaries of the City of Highland Park. As a condition of Highland Park's approving the final plat of Tara Subdivision, Highland Park required Shaf to make numerous improvements to the land. These improvements included the construction of streets, sidewalks, street lights, water mains, sanitary sewers and storm sewers. Betty Hoist owned a five-acre parcel of property adjacent to the Tara Subdivision site (the Hoist property). Shaf anticipated that the owners of the Hoist property would eventually want connection to the Tara Subdivision improvements.

In order to reimburse Shaf for a portion of its expenses in making the improvements to Tara Subdivision, Shaf and Highland Park entered into a recapture agreement. The recapture agreement provided that if an owner of any portion of the Hoist property requested a building permit, or a tap-on permit to any of the Tara Subdivision improvements, the owners of the Hoist property would be bound to pay Highland Park a recapture fee. The fee would equal five twenty-sevenths of the entire cost incurred by Shaf in making the required improvements to Tara Subdivision. Highland Park would then pay this fee over to Shaf. The five twenty-sevenths figure was calculated by taking the ratio of the area of the Hoist property to the combined area of Tara Subdivision and the Hoist property. To notify persons interested in the Hoist property that there would be a charge for a building permit or a tap-on permit, a copy of the recapture agreement was filed with the recorder of deeds of Lake County.

After the filing of the recapture agreement, Tennyson Development Corporation (Tennyson) entered into a contract to purchase two acres of the Hoist property. Beneficial Development Corporation (Beneficial) then entered into a contract to purchase those two acres fromTennyson. In the spring of 1989, the general manager of Beneficial, Michael Wellek, met with an employee of Highland Park's building department to discuss building a home on the two acres. The employee allegedly told Wellek that Highland Park would not issue a building permit until Beneficial paid the fee provided for in Shaf's recapture agreement. Instead of requesting a building permit, plaintiffs filed the instant suit to declare the recapture agreement unenforceable.

In addition to claiming that the recapture agreement is unenforceable, plaintiffs alleged that a street constructed by Shaf (Tennyson Lane) encroached on approximately one-half acre of the Hoist property Tennyson Lane is 66 feet wide and runs between the Holst property and Tara Subdivision. In constructing Tennyson Lane, Shaf paved the western most 33 feet of Tara Subdivision and the eastern most 33 feet of the Hoist property. This was done without the consent of Hoist.

The portion of the Hoist property used in the construction of Tennyson Lane was subject to an easement of ingress and egress for two parcels of property (dominant tenements). Tara Subdivision contained one of the dominant tenements, as well as substantial other land. A gravel road existed on the Hoist easement property before Shaf paved Tennyson Lane.

As a preliminary matter, we must determine what issues are properly before this court. Beneficial seeks in this court to raise issues on behalf of Tennyson Development Corporation and Betty Hoist. Tennyson and Hoist did not file a timely notice of appeal to the appellate court, and the appellate court held that they had waived their right to appeal.

Beneficial does not claim that the appellate court erred in its decision that Tennyson and Hoist had waived their right to appeal. Tennyson and Hoist did not join in the petition for leave to appeal to this court, and they are not parties to this appeal. Nevertheless, Beneficial claims that we have discretion to consider their substantive claims. We will not consider the claims of parties not before this court. Because Beneficial is the sole plaintiff before us in this appeal, we will only consider those issues which Beneficial has standing to raise. We must therefore separate those issues that have been properly presented from those issues that have not been properly presented.

ISSUES NOT PROPERLY PRESENTED

Beneficial alleges the $5,445 award of trespass damages against Shaf was insufficient. Beneficial raised this issue in the appellate court, but the appellate court deemed the issue waived because Beneficial failed to provide authority in support of its argument. Beneficial does ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.