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