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CNB Bank & Trust v. Rosentreter

Court of Appeals of Illinois, Fourth District

December 22, 2014

CNB BANK & TRUST, N.A., f/k/a CARLINVILLE NATIONAL BANK, Plaintiff-Appellee,
v.
FRANCES A. ROSENTRETER, RICK ROSENTRETER, and DOUGLAS G. ROSENTRETER, as Cotrustees of the Gerald E. Rosentreter Trust B, Defendants-Appellants.

Appeal from Circuit Court of Macoupin County No. 11CH175 Honorable Patrick J. Londrigan, Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Harris concurred in the judgment and opinion.

OPINION

APPLETON, JUSTICE

¶ 1 Plaintiff, CNB Bank & Trust, N.A., formerly known as Carlinville National Bank, won a summary judgment on counts IV, XIII, XIV, and XV of its amended complaint. Count IV sought foreclosure, and counts XIII, XIV, and XV sought replevin of some grain bins. Defendants, Frances A. Rosentreter, Rick Rosentreter, and Douglas G. Rosentreter, in their capacities as cotrustees of the Gerald E. Rosentreter Trust B, appeal from the summary judgment in plaintiff's favor on those counts and also from the denial of their motion for a partial summary judgment on count IV and the denial of their motion for a summary judgment on counts XIII, XIV, and XV.

¶ 2 The cross-motions for summary judgment on count IV raised the question of whether the mortgagor, Frances A. Rosentreter, owned more than an undivided 50% of tracts 1, 2, 3, 5, and 6 so as to be able to mortgage those tracts in their entirety. (The tracts, located in Macoupin County, have the following permanent index numbers: 12-000-177-00 (tract 1), 12-000-179-00 (tract 2), 12-000-183-02 (tract 3), 12-000-186-00 (tract 3), 11-000-238-01 (tract 5), and 11-000-406-01 (tract 6).) Defendants claim that when Frances A. Rosentreter signed the mortgage in her individual capacity, they owned the other undivided 50% of tracts 1, 2, 3, 5, and 6 in their capacities as cotrustees and that Frances A. Rosentreter therefore succeeded in mortgaging only an undivided 50% of those tracts. Plaintiff, on the other hand, takes the position that Frances A. Rosentreter was the full owner of those tracts and hence mortgaged 100% of the ownership interest in them. In our de novo review, we do not find it to be clear and free from doubt that either plaintiff or defendants were entitled to a judgment as a matter of law on this question.

¶ 3 As for the replevin counts, counts XIII, XIV, and XV, it is a moot question whether the trial court erred by granting summary judgment in plaintiff's favor, considering that subsequently, in its comprehensive written judgment of July 26, 2013, the court held the grain bins were fixtures and that, as such, they were to be sold as components of the real estate. This was the very holding that defendants had sought in their motion for summary judgment on counts XIII, XIV, and XV.

¶ 4 Because of our disposition of count IV, we do not reach the remaining issues that defendants raise in this appeal, e.g., the apportionment of sales proceeds and the approval of the receiver's report.

¶ 5 Therefore, we reverse the summary judgment in plaintiff's favor to the effect that, by signing the mortgage referenced in count IV, Frances A. Rosentreter mortgaged 100% of the ownership interest in tracts 1, 2, 3, 5, and 6, as opposed to only 50% of the ownership interest in those tracts. By the same token, we affirm the denial of the motion for summary judgment in defendants' favor on count IV. We remand this case for further proceedings. ¶ 6 I. BACKGROUND

¶ 7 A. The Amended Complaint

¶ 8 1. Count IV: Foreclosure

¶ 9 In count IV of its amended complaint, plaintiff alleged that on October 28, 2010, Frances A. Rosentreter entered into a mortgage, in which she pledged tracts 1, 2, 3, 4, 5, and 6 to plaintiff's predecessor, Carlinville National Bank, to secure a loan of $13.5 million, over $11 million of which was overdue.

¶ 10 Paragraphs 3(A), (B), (C), (G), (I), and (K) of count IV alleged as follows:

"3. Information concerning Mortgage:
(A)Nature of instrument: Mortgage.
(B)Date of Mortgage: October 28, 2010.
(C) Names of Mortgagors: Frances Rosentreter.
(D) Name of Mortgagee: Carlinville National Bank.
(G) Interest subject to the Mortgage: Fee Simple.
(I) Both the legal description of the mortgaged real estate and the common address or other information sufficient to identify it with reasonable certainty:
Tract 1: [Legal description.]
Tract 2: [Legal description.]
Tract 3: [Legal description.]
Tract 4: [Legal description.]
Tract 5: [Legal description.]
Tract 6: [Legal description.]
(K) Names of present owners of said premises: Frances A. Rosentreter, Rick E. Rosentreter and Douglas G. Rosentreter, as Co-Trustees of the Gerald E. Rosentreter Trust B established under the Gerald E. Rosentreter Trust No. 1 dated August 4, 2008, as to an undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6); Frances A. Rosentreter, as Trustee under the Frances A. Rosentreter Trust dated August 4, 2008, as to an undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6) AND Frances A. Rosentreter, as Trustee under the Frances A. Rosentreter Trust dated August 4, 2008 (Tract 4)."

¶ 11 In their "Corrected Second Amended Answer, " defendants admitted paragraphs 3(A), (B), (C), (D), (G), (I), and (K) of count IV.

¶ 12 2. Counts XIII to XVI: Replevin

¶ 13 Defendants claim an ownership interest in tract 1 but not in tract 7 (Macoupin County permanent index No. 12-000-177-01). Nevertheless, a grain elevator facility, including 20 grain bins linked together by conveyor belts, straddles tracts 1 and 7, with the property line running through grain bin No. 19.

¶ 14 In counts XIII to XV of the amended complaint, plaintiffs sought to enforce a security interest in these grain bins. Count XIII requested possession of the grain bins on tract 1, and counts XIV and XV requested possession of the grain bins on tract 7.

¶ 15 Each of these three counts was entitled "Complaint for Replevin, " and each of these counts characterized itself as a "replevin action" and requested "possession of the collateral, " i.e., the grain bins.

¶ 16 B. The Cross-Motions for Summary Judgment

¶ 17 1. Count IV

¶ 18 Plaintiff filed a motion for a summary judgment on all counts.

¶ 19 Defendants filed a cross-motion for a partial summary judgment on count IV. They contended that, in the mortgage dated October 28, 2010, Frances A. Rosentreter could not have mortgaged more than an undivided half of tracts 1, 2, 3, 5, and 6, considering that, according to plaintiff's own admission in paragraph 3(K) of count IV, the Gerald E. Rosentreter Trust B owned the other undivided half of those tracts.

¶ 20 Plaintiff, on the other hand, relied on defendants' admission of paragraph 3(G) of count IV, which alleged: "Interest subject to the Mortgage: Fee Simple." Plaintiff argued that by admitting Frances A. Rosentreter had a "Fee Simple" interest in tracts 1, 2, 3, 4, 5, and 6, defendants admitted she was the full owner of those tracts.

¶ 21 The trial court granted plaintiff's motion for summary judgment on count IV and denied defendants' cross-motion for a partial summary judgment on that count.

¶ 22 Defendants moved for reconsideration. In their motion for reconsideration, they requested the trial court to take judicial notice of the inventory from In re Estate of Gerald E. Rosentreter, No. 2009-P-139 (Cir. Ct. Macoupin Co.) showing that, when Gerald E. Rosentreter died on September 10, 2008—the month before Frances A. Rosentreter entered into the mortgage in count IV—he owned an undivided half of tracts 1, 2, 3, 5, and 6. Defendants also submitted an executor's deed, recorded in Macoupin County on December 29, 2010, in which Frances A. Rosentreter, as the executor of Gerald E. Rosentreter's will, conveyed an undivided half of tracts 1, 2, 3, 5, and 6 to the Gerald E. Rosentreter Trust B.

¶ 23 The trial court declined to vacate the summary judgment in plaintiff's favor on count IV.

¶ 24 2. Counts XIII, XIV, and XV

¶ 25 Again, counts XIII, XIV, and XV were replevin counts. In those counts, plaintiff sought possession of the grain bins erected on tracts 1 and 7.

¶ 26 Because replevin was an action for the recovery of "goods or chattels" (735 ILCS 5/19-101 (West 2012)) and because defendants regarded the grain bins as fixtures rather than goods or chattels (but see Lindstrom v. Houzenga, 177 Ill.App.3d 1, 3 (1988) (question of fact whether grain bins were personal property or fixtures)), defendants contended they were entitled to a summary judgment on counts XIII to XV. The trial court denied defendants' motion for summary judgment and entered summary judgment in plaintiff's favor on those counts.

¶ 27 On July 26, 2013, however, after entering the summary judgment in plaintiff's favor, the trial court entered a more detailed written judgment, specifically finding that, for purposes of counts XIII to XV, the grain bins actually were "fixtures" and, as such, were "part".of the tracts on which they stood. Therefore, under the heading of "Judgment[:] Count XIII, " the court decreed that the grain bins on tract 1 would be "sold as part of said real estate pursuant to the terms of the Judgment of Foreclosure and Sale As to Counts I, II, III and IV." Likewise, under the headings of "Judgment[:] Count XIV" and "Judgment[:] Count XV, " the court decreed that the grain bins on tract 7 would be "sold as part of said real estate pursuant to the terms of the Judgment of Foreclosure And Sale As To Counts V, VI, VII and VIII of Plaintiff's Amended Complaint."

¶ 28 II. ANALYSIS

¶ 29 A. Our Nondeferential Standard of Review, Despite the Motion for Reconsideration

¶ 30 When parties file cross-motions for summary judgment, they agree that the case presents only questions of law, and they invite the trial court to decide these legal questions on the basis of the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. Obviously, the court need not agree with the parties' assessment. A court cannot legitimately conclude, from the mere filing of cross-motions for summary judgment, that there really is no issue of material fact or that one party or the other really is entitled to a judgment as a matter of law. Id. The trial court makes its own independent assessment—as do we. Our standard of review is de novo. Id. ¶ 30.

¶ 31 Just because a party requested the trial court to reconsider the summary judgment, it does not follow that what would otherwise be a de novo standard of review is transformed into a deferential standard of review. Granted, the cases say that when reviewing the ruling on a motion for reconsideration, we should ask whether the trial court abused its discretion, but abuse of discretion is "a versatile standard of review in that, depending on what the underlying issue is, it can lead to other standards of review." Shulte v. Flowers, 2013 IL App (4th) 120132, ¶ 22. Where, as in this case, the underlying issues are legal rather than factual, "we will proceed de novo." Id. ¶ 24. See also O'Shield v. Lakeside Bank, 335 Ill.App.3d 834, 838 (2002) (noting that a "party cannot convert the de novo standard applicable to the original motion into an abuse of discretion standard simply by asking the court to reconsider its previous ruling"). "A trial court order granting summary judgment presents a question of law, which we review de novo." Feliciano v. Geneva Terrace Estates Homeowners Ass'n, 2014 IL App (1st) 130269, ¶ 30. The nature of the question does not change simply because defendants filed a motion for reconsideration. See O'Shield, 335 Ill.App.3d at 838.

¶ 32 B. Count IV: Foreclosure

¶ 33 When a party files a motion for summary judgment, the question is whether "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." 735 ILCS 5/2-1005(c) (West 2012). That is the question in the trial court, and it also is the question on appeal. In answering that question, "[t]he court must construe the pleadings, depositions, admissions and affidavits strictly against the moving party and liberally in favor of the respondent." Feliciano, 2014 IL App (1st) 130269, ¶ 30.

¶ 34 As we said, plaintiff sought a summary judgment on count IV. In its motion for summary judgment, plaintiff took the position that Frances A. Rosentreter had succeeded in mortgaging 100% of tracts 1, 2, 3, 4, 5, and 6 when she signed the mortgage on October 28, 2010. (The parties are in agreement that she was the full owner of tract 4, Macoupin County permanent index No. 12-000-185-00, and that she therefore mortgaged 100% of that tract.)

¶ 35 Defendants filed a cross-motion for summary judgment on count IV. They sought a summary judgment that although Frances A. Rosentreter had succeeded in mortgaging 100% of tract 4, she had succeeded in mortgaging only her undivided 50% of tracts 1, 2, 3, 5, and 6, considering that, at the time she signed the mortgage, the Gerald E. Rosentreter Trust B owned the other undivided 50% of those tracts. See Cadle Co. II, Inc. v. Stauffenberg, 221 Ill.App.3d 267, 269 (1991); Miles Homes Inc. of Illinois v. Lyons, 8 Ill.App.3d 179, 181 (1972).

¶ 36 We first will scrutinize plaintiff's motion for summary judgment on count IV, and then we will scrutinize defendants' cross-motion for a partial summary judgment on count IV.

¶ 37 On appeal, plaintiff argues that because defendants admitted paragraph 3(G) of count IV of the amended complaint, there was no genuine issue as to whether Frances A. Rosentreter owned 100% of tracts 1, 2, 3, 5, and 6 when she signed the mortgage on October 28, 2010, and hence plaintiff was entitled to a judgment as a matter of law on count IV.

¶ 38 Paragraph 3(G) of count IV, which defendants admitted, alleged as follows:

"Interest subject to the Mortgage: Fee Simple." Plaintiff reasons that, under section 15-1504(a)(3)(G) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1504(a)(3)(G) (West 2012)), the term "fee simple" is alternative to and exclusive of the term "undivided interest." According to that section, the "foreclosure complaint" must set forth "[i]nformation concerning [the] mortgage, " including the "[i]nterest subject to the mortgage, " and then, in parentheses, the section instructs the pleader to "here insert whether fee simple, estate for years, undivided interest, etc." 735 ILCS 5/15-1504(a)(3)(G) (West 2012). Plaintiff argues that if the drafter of a foreclosure complaint chooses one of these parenthetical descriptive terms, "fee simple, " the drafter cannot also choose another term, "undivided interest."

¶ 39 In our de novo interpretation of this statute (Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 43 (2004); Country Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 339 Ill.App.3d 78, 81 (2003)), we see no reason to regard "fee simple" as exclusive of "undivided interest." The statute does not say those two terms are exclusive of one another, and in the common law of Illinois, there is no dichotomy between ownership in fee simple and ownership of an undivided share. See, e.g., Baker v. Forsuman, 15 Ill.2d 353, 362 (1958) ("[T]he defendants are the owners in fee simple of an undivided 1/10 of the property. The plaintiffs are each the owners in fee simple of an undivided 1/9 of the remaining 9/10."); Brod v. Brod, 390 Ill. 312, 326 (1945) ("The decrees appealed from are affirmed in so far as they declare that appellee and appellant are each vested with an undivided one-half interest in fee simple as joint tenants ."); Grubmeyer v. Mueller, 385 Ill. 529, 537 (1944) ("[U]pon her death the appellees became the owners in fee simple of an undivided one-half of the land in controversy .").

¶ 40 "[W]ords and phrases having well-defined meanings in the common law are interpreted to have the same meanings when used in statutes dealing with the same or similar subject matter as that with which they were associated at common law." Scott v. Dreis & Krump Manufacturing Co., 26 Ill.App.3d 971, 983 (1975). The supreme court has adopted the meaning of "fee simple" set forth in two classic treatises on the common law: Blackstone's Commentaries and Kent's Commentaries. The supreme court cited those two treatises in Woods v. Seymour, 350 Ill. 493, 497 (1932), when explaining why the deed in that case conveyed a lesser estate than fee simple:

"The language of the grant did not import an estate in fee simple, which is a pure inheritance, clear of any qualification or conditions, and must be given or granted generally, absolutely and simply. (2 Blackstone's Com. 104; 4 Kent's Com. 5.)" The cited page of Blackstone says, in part:
"I. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever; generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law." (Emphasis in original.) 2 William Blackstone, Commentaries 104 (John L. Wendell ed. 1857).

The cited page of Kent says, in part:

"1. Fee Simple is a pure inheritance, clear of any qualification or condition, and it gives a right of succession to all the heirs generally, under the restriction that they must be of the blood of the first purchaser, and of the blood of the person last seised. (a) It is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land. Every restraint upon alienation is inconsistent with the nature of a fee simple; and if a partial restraint be annexed to a fee, as a condition not to alien for a limited time, or not to a particular person, it ceases to be a fee simple, and becomes a fee subject to a condition." 4 James Kent, Commentaries on American Law 5 (John M. Gould, ed., 14th ed. 1896).

¶ 41 In sum, then, "[a] 'fee simple' is an estate of inheritance without condition, belonging to the owner, and alienable by him or her or transmissible to his or her heirs absolutely and simply." 18 Paul Coltoff, Ill. Law and Prac., Estates § 5, at 10 (2003) (citing Woods, 350 Ill. 493). Regardless of whether a person owns the north 50 acres of Blackacre or an undivided 50% of Blackacre, that person has a fee simple if his or her ownership is unconditional, in perpetuity, and with an absolute power to alienate and devise the property. That an undivided share of land can be owned in fee simple is evident from Blackstone's comment that "hereditaments" can be owned in fee simple. An undivided ownership interest in land can be a hereditament (it can be inherited); therefore, it can be owned in fee simple.

¶ 42 Thus, we disagree that by admitting the mortgagor, Frances A. Rosentreter, had a fee-simple interest in tracts 1, 2, 3, 5, and 6, defendant admitted she owned 100% of those tracts.

¶ 43 Granted, paragraph 3(I) of count IV—a paragraph which defendants likewise admitted—alleged that tracts 1, 2, 3, 4, 5, and 6 were "the mortgaged real estate, " but that allegation would be true even if Frances A. Rosentreter had mortgaged only an undivided percentage of those tracts. If indeed she owned an undivided percentage, something less than 100%, it would be impossible to say that any particular acreage or footage of those tracts was free of the mortgage. Assume a cotenant, owning an undivided 50% of Blackacre, pledges Blackacre as security for a loan. As a result, Blackacre would indeed become "mortgaged real estate"—but the mortgage would extend only to the cotenant's undivided percentage of ownership (Cadle, 221 Ill.App.3d at 269).

¶ 44 So, when we construe paragraphs 3(G) and (I) of count IV strictly against plaintiff and liberally in favor of defendants (see Feliciano, 2014 IL App (1st) 130269, ¶ 30), plaintiff's right to a summary judgment that Frances A. Rosentreter, individually, owned 100% of tracts 1, 2, 3, 5, and 6 is not "clear and free from doubt" (Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill.2d 294, 306 (2005)). Just because the "[i]nterest subject to the [m]ortgage" was "[f]ee [s]imple" and just because tracts 1, 2, 3, 5, and 6 were "the mortgaged real estate, " it does not necessarily follow that Frances A. Rosentreter succeeded in mortgaging the full ownership interest in those tracts as opposed to an undivided percentage of each of them.

¶ 45 Having determined, on the basis of the pleadings, that plaintiff was not entitled to a judgment as a matter of law that Frances A. Rosentreter owned 100% of tracts 1, 2, 3, 5, and 6 when she signed the mortgage referenced in count IV, we next address the question of whether defendants were entitled to a judgment as a matter of law that she owned only an undivided half of tracts 1, 2, 3, 5, and 6 when she signed the mortgage.

¶ 46 Defendants relied on paragraph 3(K) of count IV, which identified them, the trustees of the Gerald E. Rosentreter Trust B, as the "present owners" of "an undivided 1/2 interest (Tracts 1, 2, 3, 5, and 6)" and Frances A. Rosentreter, the trustee of the trust bearing her name, as the "present owner[]" of the other undivided half interest in those tracts. Thus, defendants argue, by plaintiff's own admission in paragraph 3(K) of count IV, Frances A. Rosentreter, in her individual capacity, owned no more than an undivided half of tracts 1, 2, 3, 5, and 6 and hence was incapable of mortgaging more than an undivided half of those tracts. (Frances A. Rosentreter was the executor of Gerald E. Rosentreter's will when she signed the mortgage of October 28, 2010, but the parties appear to agree that she signed the mortgage only in her individual capacity, not in her capacity as executor.)

¶ 47 Plaintiff counters that because paragraph 3(K) identifies only the "present owners" of tracts 1, 2, 3, 5, and 6—that is, the persons who owned those tracts on May 7, 2012, when plaintiff filed its amended complaint—paragraph 3(K) does not negate Frances A. Rosentreter's full ownership of those tracts at the time she signed the mortgage, on October 28, 2010. We agree. When we construe paragraph 3(K) strictly against defendants and liberally in favor of plaintiff (see Feliciano, 2014 IL App (1st) 130269, ¶ 30), defendants' right to a partial summary judgment on count IV is not "clear and free from doubt" (Northern Illinois Emergency Physicians, 216 Ill.2d at 306), because paragraph 3(K) identifies only the "present owners" of tracts 1, 2, 3, 5, and 6 and says nothing about who owned the tracts on October 28, 2010, when Frances A. Rosentreter signed the mortgage.

¶ 48 C. Counts XIII, XIV, and XV: Replevin

¶ 49 It is a moot question whether the trial court erred by granting summary judgment in plaintiff's favor on counts XIII, XIV, and XV, and by denying defendants' motion for summary judgment on those counts, because, subsequently, in its judgment of July 26, 2013, the court provided the relief that defendants sought in their motion for summary judgment on counts XIII, XIV, and XV: the court found that, for purposes of counts XIII to XV, the grain bins actually were "fixtures" and, as such, were "part" of the tracts on which they stood and that the grain bins therefore should be "sold as part of said real estate." We do not decide moot questions (with some exceptions, none of which are applicable here). See Doe No. 1 v. Northwestern Memorial Hospital, 2014 IL App (1st) 140212, ¶ 47.

¶ 50 III. CONCLUSION

¶ 51 For the foregoing reasons, we reverse the summary judgment in plaintiff's favor that, by signing the mortgage referenced in count IV, Frances A. Rosentreter mortgaged 100% of the ownership interest in tracts 1, 2, 3, 5, and 6, as opposed to only 50% of the ownership interest. By the same token, we affirm the denial of the motion for summary judgment in defendants' favor on count IV. We remand this case for further proceedings.

¶ 52 Affirmed in part and reversed in part; cause remanded.


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