that we have the opportunity to talk about the duty to cooperate at such a great extent but that's going to be at least one of my main focuses here this morning so if i may let me direct your attention to the recapture agreement that i know you this district has seen before and you see it again in this appeal and let me focus your attention there and talk about the purpose for a minute or a bit recapture green i think in your prior opinion in this case and in the agreement itself it's clear waiting purpose of that agreement is to reimburse the road's defendants for something they'd already done by building the improvements and you know to do it to be area that would enable somebody else to come in another developer to come in and use those improvement that you're correct there is no specific and explicit provision that says village you must cooperate now the law implies that provision is being there unless it's explicitly taken out and i've seen agreements where they say you know there is no duty to cooperate that's not present here here the contract is silent on the duty to cooperate which means inherently it's there you can look at it starting from the waste management case from illinois supreme court and all the cases that we cited get ahead of myself here but i think we list them we've got a well regardless what come to it you know over and over and over and over again we see that the implicit duty to cooperate is there in illinois law is part of the duty of good faith and fair deal with contractual discretion to exercise it reasonably may not be exercised arbitrarily capriciously or in a manner inconsistent with the reasonable expectation of the pardons that's key here because they also set for the trial court bought into that the trial court never made any factual findings that the village cooperated with the rose defendants at any time she also said yes you're right doesn't apply that's an error of law right there so let's turn to the to the facts let's turn to the agreement itself and if it's on their page nineteen of the opening brief and specifically i'm looking at paragraph nine and there's two paragraphs of paragraph nine i guess portions all refer to them the first person says the developer know this case that's roads for the agrees to indemnify the whole harmless and defend the village of western springs and then it goes on for quite a bit i won't read it all that's where the duty defending duty to a gun fight kicks in the second paragraph which was inserted during the negotiations with respect to the language the recapture agreement says in the event of any such lawsuit i'll shorten it a little bit it the village shall have the right to determine the attorney of its has reversed choice to represent and defend their interests in any legal or administrative action all of developers expense interests again that's an important phrase here and it comes up over and over in the briefs and it will come up over and over again during my oral argument before you guys he order to  to use that provision we need to know what the villages interests here are not once anywhere down below when one girlie wanted to meet with the village at the trial court  on if you'll permit me i'll go through the facts that relate a little bit zoo how these common law duties apply in the situation we've got a period ron i've broken it down into three separate the end of two thousand and two after we get through agreement and prior to this lawsuit filed by hers now in that point there at that point you know we had a recapture agreement that had been hers was involved in negotiating with with roads with the villages attendance and with the villages cooperation with respect to what are we going to do about recapture amounts hurts way back when negotiation didn't lead to a full complete agreement but the negotiations between roads in the village continue and it was rove's understanding as we set forth in the briefing during his deposition that the village was communicating with the kurds during this period at a certain point they come to a negotiated amount of how much are we going to charge in this per unit methodology what's the dollar amount i forget the exact numbers but r rotted in excess of thirty thousand i believe it was and hearts had one of that number down in the sixteen thousand dollars range they came up with the village guy the village engineer says we're going to make it twenty four thousand and some change per ok fast forward a little bit now the good that's been entered into right new developer parts now comes to the village and says hey i want to develop my property which is you know adjoining the the property here at issue in the recapture and he says i would like to develop my property but i want to challenge as per unit methodology i don't think it should apply at their point and this is in september of two thousand four the villages here mr ziegler has at least the roads and says look if you don't want to give me actual cost of the actual prostate and not an estimated because that's what the village attorney but that's what village  the village mr ziegler passes along to develop hamilton report that the heart spokes head had prepared the challenge to recapture agreement in the formula and several days a year later is when hearts received village also into the december of two thousand five hundred we came up with the number the twenty four thousand dollars per unit number to begin with sends a letter saying unless you provide more backup data it would significantly limit the villages ability to assist in the recapture and the agreements already been executed passed by ordinance it's already out there the villages judy at this point was to enforce that agreement not to challenge what they're doing and  says right there paragraph nine and defend their interests so greece trying to figure out you know are you entitled to a separate attorney to come in to defend your interests i'd like to find out what those interests are like to find out if those interests conflict recall again to it and i know this is a common boilerplate language that you know sometimes we see briefs that we don't jump on but they are important and that is contracts of indemnity in parties receiving the duty to defend if you will those contracts are strictly construe against the party who is receiving it were not insured now shortly thereafter reveals flatly refuses to meet with rose refuses to meet with him in january refuses to meet with then during the summer i think there is some suit is initially filed by are going to seem as though the village in railroads would not have a duty which he would not have a conflict of interest at that point in time at that point in time it would seem as though there's no roles at that point that a conflict definitely exists now that conflict existed usually it was created by the village i would like to say we know what the villages interests are here but we don't because they've never told us  or villages attorney's fees in this instance because they continually from step one all the way through to the end violated the duty cooperate and i don't see i mean in these circumstances i don't see how you can more or violate the duty to cooperate than what they did here so even after house call for summary judgment at that point we went to the city what the village and said look it's fine to defend the agreement but we don't pay for everything i mean quoting the counter claims the file against us that makes no sense but doesn't comply with reasonable expectations the priorities and based on the here justice of the matter we would argue that we don't have to use done from our performance of actually built on this property the bill is passed as an ordinance that vacates the streets or at least the property i see streets i put it in quotes because again there is no street built by words nine hundred seventy three david kate that way and now after rise to questions of cyprus here i'm getting a little ahead of myself again acceptance acceptance mester occurred within a reasonable time now that's a reasonable time as set forth in the cases i've listed at least on page thirty nine of my reply brief you know in the corinne case the supreme court said thirty years municipality that's too long there's a case cited there jordan twenty nine years too long based their rules over twenty years too l attempted to accept this property for use the streets further the orders where they did that specifically stated they're not accepting it for public for use as a public street but to convey it to hearts this part of his develop i would argue that in the interest of justice you should because even though i think the record as you currently have it clearly indicates that there is a question of fact as to whether a lot hey you know what d three are running the sa feet but now we're saying that it's not the same thing you please elaborate on yeah and i may not have a full grasp of the facts in order to delineate them back to your honor i think the record is clear here and i think you touched on it there at different places this so called i wate that they seek is described differently square feet and location not just square feet of square footage square feet and also location  you know north of and i have a street name off the top of my adds to the street south of here and if you i mean there are different locations entirely and the record is screwy stands i think there's enough to show that there are genuine of material fact to show that at the very least we all know you know that we don't know whether it's three thousand or eight thousand i think the documents that i've asked you to take judicial notice of in my motion to supplement the record clearly show that there's a difference but i think the documents that are currently in the appellate record as it stands indicate well the very least we don't know there's a question of fact there such that summary judgment was inappropriate so what she gave us geography that there was a big difference there you know i i don't know i don't i would hate to misstate something so i'm going to have to defer to the record on that one because i i was not the personal attorney that was arguing in the response  i believe so but i don't know and i don't want to make that assertion before you are but i mean clearly don't believe we argued that out that way and not let d three were different and merely because what the trial court did hear was the vil some record references from my reply brief at this point the three thousand number thirty one fifty square feet the reference to that is the record is four fifteen to four sixteen the reference there and that's where the thousand number was located at least so that's i would rely on that in response to other without having looked at that particular issue i don't want to make any representations there are untrue here before you today roles participated in this back row that benefited from this or you know i looked at that issue bear with me a minute before and  to pay but there's a couple of things first off if we were hostile to each other there wouldn't be two sets of attorneys and we would be doubling the amount of attorney's fees right there yeah but not the right to control their own defense  to the point where they filed a lawsuit against us there's no conflict of interest there so we should be controlling that defense so until that point you know i that we're going to agree to any since the something with the village that says yes you can sue or some will defend it you know you can sue us and we'll pay for you to sue us that's absurd what we agreed to do in the head purpose of th yeah but not a conflict that's that's inherent i mean what we're dealing with here is the village when they decided to file a lawsuit against us then we can apply openly hostile to us and at that point it should be on their own tab and what we agreed to have the right to select counsel does not equate to the right to control their counsel unless there's a conflict of interest and here no conflict of interest existed inherently in the situation the conflict was created by the village you know they'd be fully acknowledge but they never would have they don't owe any financial obligation here at all that's contained in the agreement you know there's no way the villages up are going to have to pay anything as a result of this litigation  of the counts the two that are not related to the attorneys fees which they have taken no position may please the court this court should uphold the trial court's decision below on the three legal issues before it's a day for three reasons one the attorneys fees award was proper because there is no implied duty to cooperate in a non insurance or subrogation agreement situation the only thing at issue is rhodes obligation to defend  indemnified the village with its own choice council second the village may vacate an unimproved right of way pursuant to section eleven ninety one one of the illinois municipal code no matter how it came to be dedicated to the village or whether or not the asphalt or upon the street right of way and three the descriptions of the whole lot a and l lot the three show that rhodes is obligated to transfer title to the village i want to start before i get into the substance of these three arguments by just pointing out again for the court the arguments that have been waived by rhodes on this appeal and it's important because of we know that we've noted them many times in our brief i just want to make sure because a lot of the discussion was going towards those waves it's morning already and as your honour's know issues presented for the first time on appeal are deemed waived and that's something that started just recently is to the excuse me have already dedicated quote unquote a lot hey it was something not before the trial or non issue raised on summary judgment in the raising it for the first i want to feel it's waived number two that the village didn't invoke paragraph eleven a of the recapture agreement roads never mentioned that before in the trial court either number three that having the right to select counsel is not at the same as having the right to control one's defense never raised before the trial or that argument number four that the village may only vacate pursuant to section eleven ninety one one of the illinois municipal code if the original dedication was the purchaser condemnation an argument they made in their original brief they seem to have stepped off the bat a bit from that in their oral argument in the reply number five that the village encouraged the filing of the lawsuit certainly in the trial court below they point to this letter where that the village engineer wrote saying look hart's is questioning some of these figures please provide some documentation so they will tell understanding go away he's now arguing that that's encouragement of a filing of a lawsuit and nothing could be further from the truth trying to bring two parties together to reach an understanding before a lawsuits filed in any event that was not an argument made to the trial court the village should have filed a motion to dismiss their arguing in their briefs not something made for the trial court that rose should think control the entire defense the lawsuit not something raised before the trial or that property must be improved to be accepted by the public a straight streets you can drive on what i call pouring asphalt on the street that's page twelve of the reply race for the first time in lawsuit the difference of here to vacated and here to accept it on play it's a question that would preclude summary judgment again not raised before the trial court that the village told hearts that it would take all necessary measures to included whether or not there was acceptance of rights of way you heard him talk a lot about acceptance here this morning acceptance was in a different count and there are many counter claims that was dismissed on a motion to dismiss on the villages motion by judge berman february thirteenth two thousand and seven that order was not included in the issues on appeal that issue of acceptance was not properly appealed and this court cannot take jurisdictional jurisdiction over that issue because it was not included it was not included order in their docketing statement was not included issue properly in fact that was something that judge roachford specifically said ruling for the village look this was something that was argued in the motion to dismiss i'm not going to touch it what i'm the only thing i'm doing here with relation to count three which sneer we stated that the property the right of way was dedicated for the public cooperate i don't know what he means by cooperate what i do know is your honor is that there is no duty to cooperate all belt i'm glad you brought me to my first point and that  the only law i've seen that talks about the in duty to cooperate has been in insurance context as pointed to by the rhodes defendants and this is coming out of the waste management a line of cases  rhodes defendants have talked about and this was not only an insurance context it was a context where the insurance contract itself explicitly allowed for the duty to cooperate said the party shall cooperate and this makes any duty to cooperate with the roads in general outside of the recapture agreement is really not at issue there does the duty comes from the recapture agreement and the village perform its duties pursuant to the  that you did the rules and maintain that you didn't cooperate they're not the effect that's not accurate that's a sound sounds to me like a legal conclusion that comes from a body of case although it's not applicable in this case i don't know how to answer that other than saying it's not an applicable issue i want to say that it is a little bit like going down the rabbit hole way that's from alice in wonderland the queen queen of hearts  why sometimes before breakfast i believe six impossible things this is an impossible thing it somehow looking at the village is actually in successfully defending every portion of the recapturing all five legal arguments of the other opposition of hearts a summary judgment we depend on that to the hilt and were successful and to say somehow abet did not perform our duty under the recapture agreement is is is a reversal of reality but when you sit with your letter there the whole textual argument hears seems to stem from what the interest is and the interest as i think this court has noted in the earlier argument mentions roads not once and roads the roads pend in the lips is that made it seem like the world vigor referred to the village in roads where it is and if you take out the lips is read the whole thing their choice to represent and defend their interests refer to the village along with its former current future officials employ servants agents attorneys ensure endor successes test successors an interest suit there under it refers to the village and all those successors not to the village and roads the village determines its interests and the duty to indemnify and defend and i want to make a another point on this issue that this duty to cooperate even if this court finds that there is a duty to cooperate in waste management and its line of cases say specifically that if a party that is supposed to indemnify or defend starts a lawsuit and error is involved in the lawsuit from the start and does not issue a reservation of rights letter none of that was done by roads here they're pointing to the sets as fact and saying oh by the way there's a letter that shows maybe the village didn't join us all the time the records clear the village did its duty under the recapture agreement and i want to point out another county that was sued that was dismissed by judge berman on feb thirteenth two thousand and seven was a count saying we breached our duty under the recapturing we we breach the recapture agreement judge said no dismissed it on the motion to dismiss again not an issue before or i want to turn to the second point now about the trial court was correct in finding that the village made vacate the disputed right of way again the acceptance issue is not before this court that was something that was determined on the motion to dismiss not properly appealed but even if this court finds that it is before it the case law is clear that improvements in the area on a play even if it's not in that specific right of way indicate acceptance and that's something we've cited in our brief time and time again not really talked about by the by the rose defense except to say no that's just ridiculous this is a huge play that was recorded in one nine hundred ninety one and lots of it was developed streets were put in sewers were put in street lights were put in that's all in the record in uncontested the courts have said that if that's the case the presumption is that all the rights of way on that play are accepted and that's that and even if even if that is not the case there's a common law continued dedication here that i want to point to r that's that goes to our stoppel argument goes to our common law look everybody was treating these as if they were rights of way owned by the village and he can now say oh well i paid my engineers and we did our research and we gave those to the village veterans of those but now oh look we found the seventy three ordinance that doesn't appear to have have had any effect for any of the parties involved he says to stop from from making that argument and is clear on that and really unanswered by the rose defendants i want to touch for a moment on this play act versus the municipal code again an argument waived by not being made in the trial court but in the instance this court wants to review it anyway if the village determines the public interest will be served by vacating we we don't need this road anymore we don't want we don't want to develop it whatever the reason that is presume to be enough to vacate the street there's no requirement that that rose defendants point to in any way players actual asphalt to be poured actual construction of any street before a vacation can take place that's just surely surely out of thin  air and and should not be considered by this court i want to turn to point three now and this is another literary reference it's more of those mornings whatever the law is called the world's most dedicated a rose by any other name will smell as ordinance that we're talking about here as the court has as referenced in the prior argument is ordinance oak zero four twenty three eleven that was the ordinance that switched around the way the road was going to work for the roads defendants and allowed for additional units of density in return for getting this what they called at the time outline a but they didn't just call l a they said a which is the three thousand one hundred fifty square feet in area and located north of and adjacent to fifty second street and east of commonwealth edison commonwealth avenue in the hearts parcel and it was depicted in ed as a map on that  court specifically said look it may have been some confusion over what this law was call but there was never any confusion about what the lot actually was the description of thirty one fifty square feet that was located on this corner and there's been description was there it was clear that the rose defendant answered give that title in return for what they're getting on the south end of the commonwealth properties so unless this court has any further or in its will see any questions will stand on  arguments in the briefs and ask the court affirm the trial court's decision on all three matters thank you with the expressed words duty to cooperate emitted from the insurance contract such a duty could reasonably be inferred based merely in principles of fairness and good faith that's where i quote it it's we also have this this concern about using insurance cases at all and when we talk about that briefly because in an insurance context i think the duty to cooperate is usually explicit you must cooperate with the insurer here we're dealing with the implicit duty to cooperate you know so how are the insurance cases a political well they're political when you're trying to apply what they do to us for example when my waist looks at me and says jeff do the dishes i know what i'm supposed to do i'm supposed to go to the sink do the dishes when my wife does me a look she looks all right the dishes in the sink and then she duty to cooperate what you're supposed to do next you can look at the insurance count cases and nick context now if i do interesting because the minute he says well and this is judge rochford bought into it too he can apply insurance cases here you hear we've heard you know that's usually an indication to me of the argument away but it's usually an indication to me that they don't have a fallback argument you know that well if he waived it and for every time i've seen a judge on appellate court judge say well it's waived you know i've also seen the court opinions that say well we can a far more make our decision basis present excuse me we can make our decision on any basis presently record i think based upon the record that you have i think it's clear here that the summary judgment was improperly a lot of the things that he mentioned were responding to his arguments that he raised in his response brief up here in appeal and i'm not going to go through each individually because i had a hard time reading them all down but i could direct your attention to something else here with respect to the the streets they he mentions that the streets were improved you know you mentioned the improvements well on page twenty eight of his brief they admit that the disputed unimproved what he's talking about are proven to be area and as the case law states that we set forth in our brief improvements to the area are not the same thing as putting in the street i mean here you are giving this disputed property for the sole explicit purpose of putting in a public way they didn't do that and they never did it so you know for them to say that they accepted it now that's just not that's just not correct  we're not dealing with continual dedication here the plants that were submitted by the rose to fund its first officers were done again one hundred years after the initial dedication first off and second off as we point out on page thirteen of vacated those the dedication so we're not dealing with a continual dedication situation building permits but the village no claims were issued as a result of that resolution by six months so clearly there was no will stop will it comes into play with respect to the