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Cross v. O'Heir

Court of Appeals of Illinois, Third District

August 2, 2013

ROBERT CROSS, Plaintiff-Appellee,
v.
SANDRA M. O'HEIR, as Executor of the Estate of Estate of Richard J. O'Heir, THE ESTATE OF RICHARD J. O'HEIR, LOCATION FINDERS INTERNATIONAL, INC., as president of Location Finders International, Inc., THE RICHARD J. O'HEIR FAMILY TRUST UAD JULY 21, 2003, THE RICHARD J. O'HEIR REVOCABLE TRUST UAD JULY 26, 1989, GEORGE S. SARRIS, DAN REGAN, MICHELLE CASTELLARIN, KATHLEEN LEHNERER, JULIE QUINN, MARGARET MARY ZEGLEY, RICHARD J. O'HEIR, and UNKNOWN OWNERS, Defendants-Appellants. (Sandra M. O'Heir, as Executor of the Estate of Richard J. O'Heir, The Estate of Richard J. O'Heir, The Richard J. O'Heir Family Trust UAD July 21, 2003, The Richard J. O'Heir Revocable Trust UAD July 26, 1989, Sandra M. O'Heir and Gary L. Penrith, as Co-Trustees of the Marital Trust created by Richard J. O'Heir Revocable Trust under Agreement Dated July 26, 1989, as amended, Counterplaintiffs and Counterdefendants-Appellants; George S. Sarris, Counterdefendant and Counterplaintiff-Appellee).

Rehearing denied August 30, 3013

Held [*]

In an action arising from the dissolution of a partnership between counterplaintiff’s deceased husband and counterdefendant created for the development of a certain real estate, the trial court properly entered summary judgment for counterdefendant on counterplaintiff’s claim that counterdefendant had created an easement that included property owned by decedent and benefitted the property she inherited, since counterdefendant had neither the power nor the intention to create an easement over property he did not own; however, summary judgment was properly entered on his claim for certain fees and expenses he was owed under the partnership agreement.

Appeal from the Circuit Court of Will County, No. 07-CH-2347; the Hon. Rick Mason, Judge, presiding.

Raymond E. Stachnik (argued), of Raymond E. Stachnik & Associates, Ltd., of Chicago, for appellants.

Gary S. Mueller (argued), of Gary S. Mueller & Associates, Ltd., of Joliet, for appellees.

Presiding Justice Wright and Justice Carter concurred in the judgment and opinion.

OPINION

LYTTON, JUSTICE.

¶ 1 In 1987, George Sarris and Richard O'Heir became business partners. Richard O'Heir died in 2006, and his wife, Sandra, was appointed executor of his estate. In 2008, Sandra O'Heir filed an action against Sarris, seeking a declaration that a cross-access easement created by Sarris and adjoining property owners included O'Heir property. Sarris filed a counterclaim for dissolution of the partnership and an accounting. The parties filed motions for summary judgment, and the trial court granted Sarris's motion with respect to Sandra O'Heir's easement claim and Sarris's dissolution and accounting claim. The trial court later granted judgment in favor of Sarris and against O'Heir for $34, 461.47. We affirm.

¶ 2 In 1987, George Sarris and Richard O'Heir entered into a partnership named Georgetown Estates. The purpose of the partnership was to develop 77 acres of real property located on Route 30 in Frankfort. The partnership agreement provided that the partnership would continue for 40 years unless terminated sooner by operation of law or agreement of the partners. The agreement provided that the death of a partner would have no effect upon the continuation of the partnership business.

¶ 3 According to the partnership agreement, Sarris would be managing partner. Upon termination of the partnership, Sarris was to perform an accounting and liquidate the assets of the partnership. The agreement further provided that Sarris, as managing partner, could employ or engage individuals to "render services, including, but not limited to, accounting and legal services, and he or they shall be entitled to be compensated for such services as partnership expenses."

¶ 4 In 1996, after Georgetown Estates had developed most of the 77 acres in Frankfort, Sarris and O'Heir agreed to divide the remaining partnership property into two parcels. O'Heir became the equitable owner of the western 540 feet of the parcel. Sarris became the equitable owner of the remainder of the property. Legal title to the property was held in a trust known as Trust No. 7-1580, with First Star Bank Illinois acting as the trustee.

¶ 5 In August 2000, Sarris filed a complaint, seeking dissolution of the Georgetown Estates partnership and an accounting and alleging breach of contract against O'Heir. Sarris voluntarily dismissed his partnership dissolution and accounting claim. A bench trial was held on Sarris's breach of contract claim, and the trial court entered judgment in favor of Sarris for $135, 889.50, plus $16, 365.14 in attorney fees and $2, 600 in appraiser's fees. O'Heir appealed. We reversed the trial court's decision and granted judgment to O'Heir. Sarris v. O'Heir, No. 3-02-0512 (2003) (unpublished order under Supreme Court Rule 23).

¶ 6 In June 2001, a cross-access easement was recorded between three entities: Trust No. 6351, Trust No. 7-1580, and System Capital Real Property Corporation (SCC). The property owned by SCC is referred to as "Parcel 1" in the easement agreement. The property held in Trust No. 6351 is referred to as "Parcel 2" in the easement agreement. The property held in Trust No. 7-1580 is referred to as "Parcel 3." The legal description of "Parcel 3" includes the partnership property awarded solely to Sarris in 1996 and excludes "the West 540 feet thereof, taken as a Tract." The western 540 feet of the property held in Trust No. 7-1580 is owned by O'Heir, pursuant to the 1996 agreement between Sarris and Richard O'Heir to divide the remaining partnership property.

ΒΆ 7 The purpose of the easement agreement was for the owners of the respective properties "to grant and to receive certain easements over, under and across Parcel 1, Parcel 2 and Parcel 3." The agreement provided that Trusts 6351 and 7-1580 "grant and convey to SCC, a perpetual non-exclusive easement appurtenant to Parcel 1, for the use and benefit of SCC, its successors, assigns, licensees, tenants, suppliers and customers, for a full access road and driveway to permit vehicular and pedestrian ingress and egress, to and from Parcel 1, over, upon and across that part of Parcels 1, 2 and 3 described in ...


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