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JCRE Holdings, LLC v. GLK Land Trust

Court of Appeals of Illinois, Third District

August 30, 2019

JCRE HOLDINGS, LLC, an Illinois Limited Liability Company, Plaintiff-Appellee,
v.
GLK LAND TRUST and GARY L. KEMPF, Individually and as Trustee of the GLK Land Trust, Defendants-Appellants.

          Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, No. 14-CH-283 Illinois The Honorable Katherine S. Gorman Hubler, Judge, Presiding.

          Attorneys for Appellant: Jo T. Wetherill, of Quinn, Johnston, Henderson, Pretorius & Cerulo, of Peoria, for appellants.

          Attorneys for Appellee: Timothy J. Cassidy, of Cassidy & Mueller P.C., of Peoria, for appellee.

          JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices O'Brien and Wright concurred in the judgment and opinion.

          OPINION

          LYTTON JUSTICE.

         ¶ 1 Plaintiff, JCRE Holdings, LLC, filed a complaint against defendants, GLK Land Trust and Gary L. Kempf, the owners of an adjoining property. The complaint sought injunctive relief or, alternatively, money damages for an alleged nuisance and/or trespass. Both parties filed motions for summary judgment. The trial court initially denied both motions but upon reconsideration granted plaintiff's motion and ordered defendants to remove the portion of their roof that extended over plaintiff's property. Defendants appeal, arguing that the trial court erred in granting summary judgment to plaintiff because (1) their roof did not constitute a trespass and (2) plaintiff was not entitled to injunctive relief. We reverse and remand.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff owns property located at 4612 North Prospect Avenue in Peoria Heights. Defendant GLK Land Trust owns the neighboring property located at 4610 North Prospect Avenue. Defendant Gary L. Kempf is the trustee of defendant GLK Land Trust. The two properties share a common wall, which is located on the south side of plaintiff's property and the north side of defendants' property.

         ¶ 4 In 1982, the prior owners of parties' properties entered into and recorded a "Party Wall Agreement." The agreement designates the shared wall as a common support wall. In 1996, James Stewart owned defendants' property, and Douglas and Cynthia Hall owned plaintiff's property. Stewart asked the Halls for permission to use the party wall to construct a sloped metal roof that would hang over a portion of the Halls' roof. The Halls orally agreed, and Stewart constructed the roof. The roof hangs approximately 32 inches off of the common wall onto the neighboring property.

         ¶ 5 Defendants purchased their property from Stewart in March 2001. The roof Stewart constructed was still in place at that time and was in place when Gregory Comfort purchased the Halls' property in April 2002. The deed from the Halls to Comfort states that title to the property is "[s]ubject to covenants, conditions, restrictions, reservations and to easements apparent or of record." J.D. Comfort, Gregory's brother and owner of plaintiff, has been involved with the property since Gregory purchased it. In 2013, Gregory transferred the property to plaintiff JCRE Holdings, LLC, soon after it was formed.

         ¶ 6 In 2014, plaintiff filed a three-count complaint against defendants for injunctive and other relief. Count I alleged trespass and sought a mandatory injunction ordering defendants to remove all parts of their roof "overhanging any part of the common wall between the properties." Count II alleged nuisance and/or trespass and sought a mandatory injunction ordering defendants to remove or redesign and reinstall their roof. Count III alleged nuisance and/or trespass and sought money damages.

         ¶ 7 The parties filed cross motions for summary judgment. Following a hearing, the trial court denied both motions. Both parties then filed motions to reconsider. In response to plaintiff's motion to reconsider, defendants provided the court with an estimate it received for the removal and replacement of their roof at a cost of $12, 760.00.

         ¶ 8 The trial court granted plaintiff's motion to reconsider, granting summary judgment in favor of plaintiff on count I of its complaint. The court ruled that the agreement between Stewart and the Halls constituted a revocable license that plaintiff revoked. The court ordered defendants to remove the portion of their roof that extended over "one-half of the width of the adjoining wall and extending further over the roof of the Plaintiff."

         ¶ 9 Plaintiff filed a motion for clarification and/or reconsideration, which defendants opposed. The trial court granted the motion and ordered defendants to remove "that part of the encroaching roof, guttering systems and components extending from ...


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