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Joe Hoch, A/K/A Joseph E. Hoch, and Linda Hoch, A/K/A Linda R. Hoch v. Lillian C. Boehme; Roy E. Schmidt

May 9, 2013

JOE HOCH, A/K/A JOSEPH E. HOCH, AND LINDA HOCH, A/K/A LINDA R. HOCH,
PLAINTIFFS AND COUNTERDEFENDANTS- APPELLEES,
v.
LILLIAN C. BOEHME; ROY E. SCHMIDT, INDIVIDUALLY AND AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 24, 1998, A/K/A THE ROY E. SCHMIDT REVOCABLE TRUST;
LINDA SCHMIDT, INDIVIDUALLY AND AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 24, 1998, A/K/A THE LINDA J. SCHMIDT REVOCABLE TRUST; AND
UNKNOWN OTHERS, DEFENDANTS AND COUNTERPLAINTIFFS- APPELLANTS.



Appeal from the Circuit Court of McHenry County. No. 05-CH-960 Honorable Michael T. Caldwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

Presiding Justice Burke and Justice McLaren concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, Joe and Linda Hoch, filed a complaint against defendants, Roy and Linda Schmidt et al., seeking to quiet title to a parcel of land in McHenry County. The Schmidts counterclaimed for a decree quieting title in their favor. Following a bench trial, the court quieted title in favor of the Hochs. The Schmidts appeal. For the reasons that follow, we reverse the judgment for the Hochs and remand for the trial court to enter judgment for the Schmidts on their counterclaim.

¶ 2 BACKGROUND

¶ 3 The appendix to this disposition is an enlargement of part of defendants' exhibit No. 1 at trial, which is a plat of survey of property immediately south of Collinwood Subdivision. We refer to it in its totality as the "Boehme property," after Lillian Boehme, who once owned the entire tract pictured south of Collinwood Subdivision. To the east of the Boehme property is Wayside Drive, running north and south. There are several deeds in the record. In the earliest deeds that purport to convey the Boehme property, the land immediately north of the Boehme property is described as the "tract of land conveyed by C. Ben Jacoby and wife to Anna Dianis by Warranty Deed dated February 21, 1922, and recorded in Book 164 of Deeds, Page 307, McHenry County, Illinois." The eastern boundary of the Jacoby property was 20 feet west of the eastern boundary of the Boehme property. In those older deeds, the Boehme property is reckoned from a point 20 feet east of the Jacoby property. The Jacoby property is now part of Collinwood Subdivision, which extends 20 feet east of the former Jacoby property. Consequently, the later deeds reckon the (now subdivided) Boehme property simply from the southeast corner of Collinwood Subdivision.

¶ 4 We have added numbers to the individual parcels. There are nine in all. The earliest deeds in the record identify a single division within the Boehme property. Specifically, these deeds convey the entire Boehme property but for "the East 20 feet and the North 20 feet" of the property. These east and north 20-foot strips were later divided into parcels 4 through 9. Parcel 4, the disputed parcel here, is shaded on defendants' exhibit No. 1. Defendants' exhibit No. 1 represents the parcel as being 477.84 feet along, extending from the southeast corner of the former Jacoby property, but the deeds in the record describe the tract as being 497.84 feet along-that is, as extending from the southeast corner of Collinwood Subdivision. The discrepancy is not material for our purposes.

¶ 5 There is no dispute in this action that parcels 2, 5, and 7 are owned by the Hochs, and that parcels 1, 3, 6, 8, and 9 are owned by the Schmidts.*fn1 The Hochs and the Schmidts are in conflict over parcel 4 alone. It is undisputed that, since the 1980s, the Schmidts have maintained a fence around parcel 4.*fn2 (Judged by photographs in the record, the fence appears to be composed of steel-link sections and wood posts.) Both couples trace their claims of ownership of parcel 4 ultimately to Lillian Boehme, who died in 1974. The Hochs claim they received parcels 2, 4, 5, and 7 through a trustee's deed dated August 6, 2003, pursuant to a purchase agreement between the Hochs and Charles and Lee Ann Black, who had placed the property in trust in 1995. The Schmidts claim ownership of parcel 4 through quitclaim deeds and assignments of interest from the surviving heirs of Lillian Boehme.

¶ 6 In December 2005, the Hochs filed suit to quiet title to parcel 4. First, they cited the August 2003 trustee's deed as conveying them the parcel. Second, they claimed ownership under section 13-110 of the Limitations Act (Act) (735 ILCS 5/13-110 (West 2010)), which provides that a person will be adjudged the owner of "vacant and unoccupied land" where the person has a good-faith claim to title and has paid the legally imposed taxes on the property for seven successive years.

¶ 7 The Schmidts filed a motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2010)), arguing that the Hochs could not claim ownership under section 13-110 because parcel 4 was not "vacant and unoccupied," as the Schmidts had maintained a fence around it since the late 1980s. In response, the Hochs argued that the Schmidts' motion addressed only one ground for the Hochs' assertion of ownership, namely, section 13-110, while the Hochs were alternatively claiming title by virtue of a deed. Regarding the Schmidts' mention of the fence around parcel 4, the Hochs submitted that the Schmidts' "claim with respect to the property appears to be the fact that they have enclosed the subject property, together with their property, for 17 or 18 years. It is precisely this effort by the Defendants to acquire title by adverse possession for 20 years that has prompted the Plaintiffs to initiate this lawsuit at this time."*fn3

¶ 8 In their reply in support of the motion to dismiss, the Schmidts expanded their argument to dispute as well the Hochs' claim to title based on a deed. The trial court denied the motion to dismiss, but the record does not reflect a rationale for the decision.

¶ 9 The Schmidts subsequently filed an answer to the Hochs' complaint, pleading as affirmative defenses the same grounds on which they had moved for dismissal. The Hochs then moved for summary judgment, claiming that it was undisputed that (1) they received a trustee's deed dated August 6, 2003, that specifically included parcel 4; (2) they and their immediate predecessors in interest to parcel 2 paid the taxes on parcel 4 for a combined seven successive years, as required by section 13-110; and (3) the October 22, 1987, deed that the Schmidts received from their immediate predecessors in interest, Tadeusz Szydlowski and Maria Galbarski, specifically excluded parcel 4. In opposition to summary judgment, the Schmidts again asserted that parcel 4 was, because of the fence enclosing it, not "vacant and unoccupied" per section 13-110. The Schmidts also submitted an affidavit from Charles Black, who averred that, to the best of his knowledge, he never owned parcel 4.

¶ 10 An October 20, 2006, order by the trial court indicates that the summary judgment motion was heard in court. No transcript of the hearing, however, appears in the record. On November 1, 2006, the trial court entered a written order granting summary judgment for the Hochs, quieting title to parcel 4 in their favor. The order characterizes the summary judgment as "partial" but does not state what issues were resolved. The court included in the order language from Illinois Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) necessary to authorize an appeal from "a final judgment as to one or more but fewer than all the parties or claims."

¶ 11 The Schmidts moved the court to reconsider the summary judgment ruling, and also moved for leave to file a counterclaim. They represented that they had located Lillian Boehme's living heirs, Gloria Ruth Fisher and James Griffin, and had obtained from them deeds to parcel 4 as well as assignments of their interests in the property. The Schmidts argued that, based on the documents, they should "remain in the case in a different capacity, as assignees," and that it would be "premature" for the court to require them to appeal the summary judgment ruling. Therefore, the Schmidts asked the court to strike the Rule 304(a) language from its order. The court struck the language and granted the Schmidts leave to file a counterclaim.

¶ 12 In their counterclaim, the Schmidts alleged that, subsequent to the summary judgment ruling, they acquired title to parcel 4 from Fisher and Griffin. The Schmidts attached quitclaim deeds dated December 14, 2006, from Fisher and Griffin purporting to convey parcel 4. The Hochs moved to dismiss the counterclaim since the Schmidts had failed to plead as assignees of Fisher and Griffin. The court granted the motion to dismiss with leave to refile. The court also denied the Schmidts' motion to reconsider the summary judgment ruling. The Schmidts subsequently filed an amended counterclaim styling themselves as the assignees of Lillian Boehme.

¶ 13 After notice by publication, and the failure of any additional parties to claim an interest in parcel 4, the trial court entered a default judgment against "the unknown others" named in the Hochs' complaint.

¶ 14 The case proceeded to an evidentiary hearing. Numerous deeds were admitted into evidence. As noted, the Hochs and the Schmidts all trace their claims of title to Lillian Boehme. The succession of title can be divided into three main phases. First, there is the succession from Ben and Henrietta Jacoby, through Lillian Boehme, to Theodor and Mila Kotiw. By warranty deed dated August 31, 1938, the Jacobys conveyed to Joseph Sikes a tract of land, which, as initially described, was inclusive of all the tracts numbered in the appendix to this opinion. However, a proviso at the end of the legal description reads: "excepting and reserving therefrom the East 20 feet thereof to be used as a private road." By these terms, parcels 6, 7, and 8 (which at that point were not distinguished from each other) were excluded. An identical exception appears in the February 7, 1939, warranty deed from Joseph and Lois Sikes to Max and Lillian Boehme. The September 25, 1954, warranty deed from Lillian Boehme (now a widow) to Theodor and Mila Kotiw contains an added exception: "excepting and reserving therefrom the East 20 and the North 20 feet thereofto be used as a private road" (emphasis added). The italicized language excepts parcels 4, 5, and 9 (which at that point were not distinguished from each other). Therefore, all of parcels 4, 5, 6, 7, 8, and 9 were excluded from the September 1954 conveyance from Lillian Boehme to the Kotiws.

¶ 15 The record contains no evidence of any other conveyances by Lilian Boehme or her heirs until the December 2006 quitclaim deeds from Griffin and Fisher to the Schmidts. William Doland, who prepared defendants' exhibit No. 1, testified that he examined the deeds dating from when the property depicted in the exhibit was still a single parcel. He was asked, "Prior to the time [the Schmidts] obtained quitclaim deeds [from Griffin and Fisher], did you ever find a deed out for the Boehme property by William Boehme of the 20-foot area known as a private road commencing at the northwest corner and going to the northeast corner?"*fn4 Doland said no.

¶ 16 The second phase of conveyances consisted of three deeds from the 1960s. Like the earlier deeds, they purport to convey the entire Boehme property, with a reservation for the north and east 20-foot strips. The third deed, dated November 2, 1967, conveys the property to Peter and Sophie Kulis.

¶ 17 The third main phase of conveyances began when the Kulises subdivided the Boehme property and sold parcels 2 and 3 to separate parties. The first branch of the third phase began when, by warranty deed dated July 22, 1974, the Kulises conveyed parcel 3 to Tadeusz and Maria Szydlowski. The deed reserved "the East 20 feet and the North 20 feet thereof to be used as a private road." The October 22, 1987, warranty deed from Tadeusz Szydlowski and Maria Galbarski (formerly Szydlowski) to the Schmidts has an identical property description and reservation.

¶ 18 The second branch of the third main phase commenced with three deeds dated November 1, 1976, from the Kulises to Peter and Rita Lazzari. The first is a warranty deed that describes parcel 2 but excepts "the North 20.00 feet of the West 252.07 feet of the East 749.91 feet, and the East 20.00 feet of the South 243.00 feet of the North 428.00 feet (as measured along the North and East lines thereof), of that part of said Southwest 1/4 lying South of the South line of the tract of land conveyed by C. Ben Jacoby and wife aforesaid, all in McHenry County, Illinois." That is, the deed excepts parcels 5 and 7. These parcels were, however, conveyed separately to the Lazzaris by two quitclaim deeds of the same date.

ΒΆ 19 Subsequently, by three deeds dated July 3, 1985, with property descriptions identical to the three November 1976 deeds, the Lazzaris conveyed parcels 2, 5, and 7 to Howard and Aisha Hinman. In June 1988, the Hinmans conveyed all three parcels to Charles and Lee Ann Black. On this occasion, only two deeds were used: a warranty deed for parcel 2 and a quitclaim deed for both parcels 5 and 7. Parcels 2, 5, and 7 were identified as parcels ...


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