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Beitner v. Marzahl

December 9, 2004


Appeal from the Circuit Court of McHenry County. No. 01-CH-233. Honorable Michael T. Caldwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala


Defendants, Christopher Marzahl and Linda J. Marzahl, appeal from an order of the circuit court of McHenry County that quieted title to a disputed strip of land on defendants' southern boundary in favor of plaintiffs, Otto Beitner and Ann Beitner, by adverse possession. We affirm in part, vacate in part, and remand with directions.


In 1978, plaintiffs purchased property on Zarnstorff Road in Spring Grove, McHenry County, from James and Patricia Ruemelin. This parcel was part of a larger tract that the Ruemelins owned. The Ruemelins desired to convey to plaintiffs a parcel that measured 330 feet on the west side, 325 feet on the east side, and approximately 799 feet east to west. To accomplish this, James Ruemelin hired Charles Mionske, a registered land surveyor, to plat a survey. Ruemelin furnished Mionske with the legal description of the parcel to the north and Mionske based his survey on that description. The parcel that Mionske surveyed in 1978, and that plaintiffs purchased, was 6.082 acres.

The property to the north of plaintiffs' parcel was owned by George and Doris Redmann, who took title in 1973. Mionske's 1978 survey shows a wire fence that runs generally east and west just south of the Redmanns' southern boundary and strays slightly onto plaintiffs' property, as the fence was depicted in the survey. The fence, known as the Redmann fence, commences at the northeast corner of plaintiffs' property and abruptly ends a short distance before it reaches the western boundary. At all times during plaintiffs' occupancy of their property and while George Redmann was alive, he owned and maintained the fence.

When plaintiffs bought their property, it was all in pasture. They built a house and driveway on the western part of the parcel facing Zarnstorff Road and used the remainder for crops and farm animals. Plaintiffs occupied their property up to the Redmann fence but never occupied any property north of the fence. This "fence line" was observed even in the westernmost area of plaintiffs' property, where no physical fence exists. Plaintiffs planted evergreens and mowed their grass in this area along an imaginary extension of the fence line.

In 1994, defendants purchased the parcel north of plaintiffs' property from George Redmann's estate. Defendants, like the Redmanns, occupied their property south to the fence, and plaintiffs continued to occupy their property north to the fence. The parties found this situation livable until a developer started surveying the property north of defendants' parcel. Christopher testified that he came home one day and saw a "white stake with a big red head" in his front yard. It was "obvious when I pulled in my driveway like [sic] somebody was surveying and it wasn't me," he testified. Seeing survey stakes in his yard prompted Christopher to commission a resurvey of his property. Land Technology, Inc., performed the resurvey in December 1999. This survey fixed defendants' southern boundary south of the Redmann fence. In response to seeing survey stakes on their property, plaintiffs in turn ordered a resurvey of their property. Mionske resurveyed in July 2000. Mionske's resurvey disclosed a strip of land along the northern boundary of plaintiffs' property that is 13.24 feet wide at plaintiffs' northwest corner and 16.63 feet wide at plaintiffs' northeast corner. The Redmann fence is situated within this strip. Mionske called this strip a "deed overlap" because, as a result of a discrepancy between the Marzahl and Beitner deeds, there is an overlap of property descriptions seemingly granting both parties legal title to this strip. Trouble ensued between plaintiffs and defendants.

On July 19, 2001, plaintiffs filed an amended complaint to quiet title to this overlap strip. On August 6, 2003, after a trial without a jury, the trial court made written findings of fact and conclusions of law. The trial court awarded "the subject 13 feet" to plaintiffs, by adverse possession, finding that plaintiffs have "openly, continuously and hostilely occupied the subject property for a period in excess of twenty years." Defendants filed a timely appeal.


Before we address defendants' contentions, we must dispose of a preliminary matter. Plaintiffs filed a motion to strike defendants' opening brief or alternatively to strike the statement of facts. We ordered that motion taken with the case. Plaintiffs find fault with defendants' argumentation, lack of citation to the record, and extensive use of footnotes. But plaintiffs also recognize that we will strike a brief in whole or in part only where the violation of the rules is so flagrant as to hinder or preclude review. Amcore Bank, N.A. v. Hahnaman-Albrecht, Inc., 326 Ill. App. 3d 126, 134 (2001).

Plaintiffs first contend that the statement of facts is "replete" with argument and commentary, in violation of Supreme Court Rule 341(e)(6) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(6), eff. October 1, 2001). That rule requires in part that the statement of facts contain "the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(6), eff. October 1, 2001. The appellate court has held that argumentative language is inappropriate for a statement of facts and against the mandate of the rule. Cottrill v. Russell, 253 Ill. App. 3d 934, 938 (1993). We find plaintiffs to be overly technical about the argumentative nature of the statement of facts, except for one objection they raise. Defendants' discussion of the trial court's order is blatantly argumentative. Any statement that is argumentative or made without reference to the record need not be considered by this court. Bank of Chicago v. Park National Bank, 277 Ill. App. 3d 167, 168 (1996). Accordingly, we will ignore any argument made by defendants in their reference to the trial court's order.

Plaintiffs next complain that a summary descriptive passage that begins the statement of facts contains no references to the appropriate pages of the record. This is true, and defendants acknowledge that this technically violates the rule. However, this passage is approximately one page long and merely orients the reader to the geographical location of the property in dispute, and the remainder of the statement of facts is sufficiently compliant with the rule with respect to record references. While defendants are not free to indulge in stylistic flourishes at the expense of supreme court rules, we believe that it would be unduly harsh for us to strike the brief or portions of it for this minor transgression.

Plaintiffs' last contention in their motion is that defendants violated Supreme Court Rule 341(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(a), eff. October 1, 2001), which provides in part that "[f]ootnotes, if any, shall be used sparingly." This objection deserves comment. There are 17 single-spaced footnotes in the statement of facts alone that are used to annotate the statement of facts. The facts of this case are not so complex that these footnotes are needed or desirable. Ideally, any information defendants consider important enough to convey to this court should be included in the body of the brief. We echo our comment in Terrill v. Oakbrook Hilton Suites & Garden Inn, L.L.C., 338 Ill. App. 3d 631, 638 (2003), that this excessive use of footnotes in violation of the rule is "inexcusable." ...

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