## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Cross v. O’Heir , 2013 IL App (3d) 120760

Appellate Court Caption ROBERT CROSS
, Plaintiff-Appellee, v. SANDRA M. O’HEIR, as Ex ecutor of the Estate of Estate of Richard J

. O’He ir, THE ESTATE OF RI CHARD J

. O’HEIR, L OCATI ON FI NDERS I

NTERNATI ONAL
, I NC., as president of L ocation Finder s Interna tional, Inc., THE RI CHARD J

. O’HEIR FAMILY TRU S T UA D J ULY 21, 2003, THE RI CHARD J

. O’HEIR R E VO C ABL E TRUST UAD J ULY 26, 1989, GEORGE S. SARRI S, DAN REGAN, MI CHEL L E CASTEL LARI N, KATHL EEN L EHNERER, J UL I E QUI NN, MARGARET MARY Z EGL EY, R I C HARD J

. O’HEIR, and UNKNO WN OWNERS, Def endants-A

ppellants (Sandra

M. O’He ir, as Executor of the Estate of Richard J

. O’H ei r, The Estate of Richard J

. O’He ir, The Richard J

. O’He ir Family Trust UAD J uly 21, 2003, The Rich ar d J

. O’He ir Revoca ble Trust UAD July 26, 1989, S an dra M. O’He ir and Gar y L

. Penrith, as Co-Trustee s of the Marital Trust cre ated by Richard J

. O’He ir R evoca ble Trust under Agree ment Dated J uly 26, 1989, as amende d
, Counterplaintiffs and Counterde fe ndants-Appe llants; Georg e S. Sarris, Counterdef

endant a nd Counterplaintiff-A

ppellee)

.

District & N o. Third District Docke t No. 3-12-0760

Filed Rehea ringdenied August 2, 2013

August 30, 3013Held

(Note : This syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by t he Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising fr o m the dissoluti on of a partne rship betwee n counter plaintiff’s dece ased husband and counter defe ndant cre ated f or the development of a cer

tain rea l estate, the t ri al court properly enter ed summary judgme nt for counter defe ndant on counter plaintiff’s claim that
counter defe ndant had cre ated an ease ment that included proper ty owned by dece dent and benef itted the proper

ty she i nherited, since

co u n terde fenda

nt had neither the power nor the intention to cre ate an

ease ment over proper

ty he d id not own; howeve r, summary judgme nt was properly enter ed on his claim for cer tain fee s and expenses he was owed under the partne rship agree ment.

Dec ision Under Review Appea l from the Circu i t C o u rt of Wil l County
, No. 07-CH-2347; the Hon. Rick Mason, Judge, pr esiding

.

J udg ment Affir med.

Counsel on Appea l Ray mond E. Stachnik (argued), of Ray mond E. Stachnik & A ssociates, Ltd., of Chicag o, for a

ppellants.

Gar y S. Mueller (argued), o f Gar y S. Mueller & Associates, Ltd., of J oliet, for appe llees.

Panel J USTI CE LYTTON de livered thejudgme nt of the cour t, with opinion. Presiding J ustice Wright and J ustice Carter concur red i n t he judgme nt and opinion.

OP INION

¶ 1 In 1987, Geor g e S arris and R icha rd O’He ir beca me bus iness partne rs. R ichar d O’He ir died in 2006, and his wife, Sandra, was appointed execu t o r o f h i s estate. In 2008, Sandra O’He ir filed an action ag ainst Sarris, seeking a decla ration that a cross-a cce ss easement

cre at ed b y S arris and adjoining proper ty owner s included O’He ir proper ty

. Sarris filed a counter claim for dissoluti on of the partne rship and an acc ounting. The parties filed motions for summary judgme nt, and the trial court grante d Sarris’s motio n with respe ct to Sandra O’He ir’s ease ment claim and Sarris’s dissoluti on and acc ounting claim. The trial court later grante d judgme nt in favor of Sarris and a g ainst O’He ir for $34,461.47. We a ffirm.

-2-¶ 2 In 1 9 8 7, Geor g e Sarris and Richard O’He ir enter ed into a partne rship named Ge org etown

Estates. The purpose of the partne rship was to de velop 77 acr es of rea l property located on Route 30 in Fr ankfor

t. The partne rship agree ment provided that the p ar t n er s hip would continue for 40 year s unless terminated sooner by operati o n o f l aw or agree ment of the partne rs. The agree ment provided that the death of a partne r would have no eff ect upon the continuation of the pa

rtnership business. ¶ 3 Acc ording to the partne rship agree ment, Sarris woul d b e m an agi n g p ar t n er . Upon termination of the partne rship, Sarris was to perf orm an acc ounting and liquidate the assets of the partnership. The agree ment further p rovided that Sarris, as manag ing partner
, could employ or eng ag e individuals to “re nder service s, including, but not limit ed to, ***

acc ounti n g an d l egal service s, and he or they shall be entitled to be compensated for such service s as par

tnership expenses.” ¶ 4 In 1996, afte r Georg etown Estates had develope d most of the 77 acr es in Fr ankfor t, Sar ris and O’He ir agree d to divide the rema ining par t n ership proper ty into two parc els. O’He ir beca me the equitable owner of the wester n 540 fee t of the parc el. Sarris beca me the equitable

owner of the rema inder of the proper ty

. L eg al title to the proper ty was held in a trust known as Trust No. 7- 1580, with First Star B ank I llinois actingas the trustee

. ¶ 5 In August 2000, Sarris filed a complaint, seeking dissoluti on of the Georg etown Estates partne rshi p and an acc ounting and alleg ing brea ch of contra ct ag ainst O’He ir. Sarris voluntarily dismiss ed his partne rship dissoluti on and acc ounting claim. A bench trial was held on Sarris’s breach o f co n t ra ct claim, and the trial court enter ed judgme nt in favor of Sarris fo r $ 1 3 5,889.50, plus $16,365.14 in attorney fee s and $2,600 in appra iser’s fee s. O’ He ir appea led. We reve rsed the trial court’s decision and grante d judgme nt to O’He i r. Sarris v. O’He ir , No. 3-02-0512 (2003) (unpublished order under Supreme Court Rule 23). ¶ 6 In June 2001, a cross-a cce ss ease ment was rec orded betwe en t h re e entities: Trust No. 6351, Trust No. 7-1580, and Sy stem Capital Real Property Corporation (SCC). The proper ty owned by SCC is ref

err ed to as “Parc el 1” in the ease ment agree ment. The proper ty held in Trust No. 6351 is ref

err ed to as “Parc el 2” in the ease ment agree ment. The proper ty held in Trust No. 7-1580 is ref

err ed to as “Parc el 3.” The leg al description of “Parc el 3” includes the partne rship p ro p er ty awa rded solely to Sarris in 1996 and excludes “the West 540 fee t there of, taken as a Trac t.” The wester n 540 fee t of the proper

ty held in T rust No. 7-1580 is owned by O’He ir, pursuant to the 1996 agree ment betwee n S arri s and Richard O’He ir to divide the re maining pa

rtnership prope rty

. ¶ 7 The purpose of the ease ment agree ment was for the owner s of the respe ctive proper ties “to grant and to rec eive cer tain ease ments over, under and acr oss Parce l 1, Parce l 2 and Parce l 3.” The agree ment provided that Trusts 6351 and 7-1580 “grant and convey to SCC
, a perpe tual non-exclusive ease ment appurte nant to Parce l 1, for the use and benef it of SCC
, its succe ssors, assig ns, licensee s, tenants, suppliers and customers, for a full acc ess road and drivewa y to permit vehicular and pedestria n ingr ess and egress, to and from Parce l 1, over, upon and acr oss that part of Parce ls 1, 2 and 3 described in Ex hibit D.” The leg al description of the ease ment contained in exhibi t D states that the east to west dimension of the ease ment is 543.39 feet.

-3-¶ 8 The ag ree ment further provided that “Ea ch Trust reserve s and SCC gra nts a perpetual, non-exclusive ease ment, appurte nant to Parce l 2 and P ar ce l 3 *** for the purpose of vehicular and pedestria

n ingr ess and egress, to and from Parce l 2 and Parce l 3 *** over, upon and acr oss that portion of Parce l 1 as described on Ex hib i t D, at t ac hed.” Finally
, the agree ment stated that t h e tru s t s rese rved an “ac cess ease ment across the West line of the p re m i s es at a location wit hin 50’ North of the S outhwest corne r there of, for the benefit of adjoining pr operty

to the West.” ¶ 9 In April 2 0 0 4
, S arri s filed an action for decla ratory relief and a temporar y restra ining order ag ainst O’He ir, the s u c c e s s o r tr u s te e o f the partne rship’s rea l proper ty , and Geor g etown Estates, to preve nt O’He ir from selling his proper ty to anyone except Sarris. The trial court enter ed judgme nt in favor of Sarris. Th i s court reve rsed and enter ed judgme nt in favor of O’He ir, finding that the 1996 agree ment betwee n the parties remo v e d a n y p a r tn e r ship interest in the proper

ty , making it separ ately owned by eac h partne r. Sarris v. O’He ir , No. 3-04-0968 (2005) (unpublished order under Supre me Court Rule 23). ¶ 10 Richard O’He ir died in J uly 2006. His wife, Sandra O’He ir, was appointed executor of his estate. At the time of Richard’ s death, the only rema ining assets of the partne rship wer e two outlots t hat had not yet bee n sold or g iven awa y

. ¶ 11 In Marc h 2008, Sandra O’He ir filed a claim ag ains t S arri s , s ee k i n g a d eclaratory judgme nt on the interpre tation of the cross-a cce ss ease ment. She alleg ed that the ease ment benef its and includes the estate’ s proper ty

. Attache d to the counter claim was a plat of survey prepa red by Rogina & Associates in 2002 that shows the ease ment crosse s the wester n line dividing Sarris’s proper

ty and O’ Heir’ s proper

ty

. ¶ 12 In 2008, a new plat of ease ment was rec orded. The new east-w est dimension of the cr ossaccess ease ment was 542.39 fee t. David Ty son, who prepa red the revised ease ment, explained that he rec orded the new plat at the direc tion of Sarris to m ak e cl ea r t h at the

ease ment cre ated in 2001 wa s not intended to benef it O’Heir’ s proper

ty

. ¶ 13 In May 2008, Sarris filed a counter claim ag ainst Sandra O’He i r. Count I reque sted an order allowing Sarris to p u rc h as e an y rema ining assets of the partne rship and awa rd him d am age s for brea ch of the partne rship agree ment. Count I I reque sted an acc ounting and dissoluti on of the pa

rtnership. Count I I Ialleg ed fr aud ag ainst Sandra O’ Heir. ¶ 14 S arri s filed a motion for summary judgme nt with re s p ec t t o O’ He i r’ s ea s em en t counter claim. Attache d to the motion wer e deposition transcripts from various individuals. Sarris testified at his deposition that he enter ed into an ease ment agree ment with the owner s of Parce ls 1 and 2 identified in the ease ment agree ment. It was his intention that the ease ment benef it his proper

ty , n o t O’ He i r’s proper

ty

. O’He ir was not a party to the ease ment agree ment. ¶ 15 David Ty son, a reg istered profe s s i onal eng ineer and land surveyor reta ined by Sarris, testified at his deposition that he cr ea t ed and rec orded an ease ment for Sarris and the proper ty owner s identified in the ease ment agree ment at Sarris’s direc tion. He testified that the ease ment on Sarris’s proper ty was outside the west 540 fee t of the north proper ty line and

was contained entirely within Sarris’s proper ty

. He further testified that it was Sarris’s intent that the ease ment would g o just to the line of O’He ir’s proper ty , but not over it, and that the

-4-ease ment would cover only Sarris’s proper ty

. Ty son also testified that the owner of proper ty cannot grant a

n ease ment over pr operty he does not own. ¶ 16 J ohn Kella, a land surveyor reta ined by O’He ir, testified that the company he works for, Rogina & Associates, cre ated a survey in 2002 to deter mine the scope of the 2001 ease ment, at O’He ir’s reque st. Acc ording to Ro g ina’s plat of survey , the ease ment extends approximately

two inches onto O’H eir’s pr operty

. ¶ 17 T i m o th y At ch i n s o n , a title attorney and law profe ssor who was reta ined by Sarris, testified at his deposition that he re viewed the ease ment grant re corde d in 2001, as well as the survey s completed by Ty son and Rogina

. He testified that befor e a land owner can be a third-par ty benef iciary to an ease ment, two requi re m ents must be met: (1) the leg al description of the ease ment must e x tend onto the land of the third party , and (2) there must be granting languag e extending the ease ment onto the third party ’s proper ty

. He opined that the ease ment agree ment at issue was n o t i n tended to benef it O’He ir’s land beca

use it specifical l y s t at es that the ease ment is over Parce ls 1, 2 and 3, which does not include O’He ir’s prope rty

. ¶ 18 O’He ir filed a cros s -m o t i o n for summary judgme nt on the ease ment counter claim. In Marc h 2011, O’He ir and Sarris agree d that O’He ir would execute a quitclaim deed to Sarris for the two outlots still owned by the par tnership in exchang e for Sarris dismiss ing count I of his complaint ag ainst Sandra O’ Heir. ¶ 19 In May 2011, the trial court grante d Sarris’s motion for summary judgme nt with respec t to O’He ir’s ease ment claim, finding that it was not Sarris’s intent for the ease ment to benef it O’He ir’s proper

ty

. The trial court al s o gra nted summary judgme nt to Sarris on his partne r s h ip d is s o lu

tion and acc ounting claim, finding that the partne rship would be dissolved only when all partne rship proper ty was de veloped, sold or divided, which would not oc cur until O’He ir delivere d quitclaim deeds to Sarris for the outlots still owned by the partne rship. The trial court g rante d O’He ir’s motion for summary judgme nt with respe ct to Sarris’s fra ud
counter claim ag ainst O’He ir. ¶ 20 There afte r, the trial court held a bench trial o n S arri s’s acc ounting claim. At the trial, Sarris argued that he was entitled to $210,000 from O’He ir for serving as g ener al contra ctor for t h e p ar tnership projec t. Sarris also asser ted that he was entitled to reimburse ment of $21,875 for e x cava

tion, $21,872.25 for re al estatetaxes, and $33,198.01 in leg al fe es. The trial court reje cted Sarris’s claim for g ener al contra ctor fee s but found that Sarris was entitled
to $17,500 for excavation, $ 1 0
, 731.47 for rea l estate taxes, and $7,230 for leg al fee s. The trial court enter ed judgme nt in favor of Sarris for $35,461.47

. O’ He i r filed a motion to modify the judg ment. The court ruled that O’ Heir ow ed Sarris $16,500 for excavation and modified the judg ment to $34,461.47.

¶ 21 ANALYSI S ¶ 22 Summary judgme nt is appropriate when the pleading s, deposition s an d admi ssions on file, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to judgme nt as a matter of law. 735 I L C S 5/2- 1005(c) (West 2012). The purpose of summary judgme nt is not to try a question of fac t, but

-5-to deter mine whether a g enuine issue of triable fac t exis ts. In re Marriage of Maurice B.H.
, 2012 I L App (1st) 121105, ¶ 17. In deter mining whether a question of fact ex ists, “a cour t must construe the pleading s, depositions, admissions and aff idavits str i ctly ag ainst the
movant and liberally in favor of the opponent.” W illiams v. Manche

ster , 228 I ll. 2d 404, 417 (2008). We re view a grant of summar y judgme nt de novo

. Id.

¶ 23 I . O’He ir’s Ease ment Claim ¶ 24 An ease ment provides a privileg e or a ri gh t i n t h e u s e o f another ’s proper ty

. Hahn v. County of Kane
, 2012 I L App (2d) 110060, ¶ 10. An ea sement provides use rights; itdoes not provide owne rship rights or an owne rship interest in la nd. Id. “No one but a

n owner of land ca n cre ate a n ease ment over it.” Id. ¶ 11. ¶ 25 An instrument cre ating an ease ment is construed i n ac co rd an ce wi th t h e p ar t i es’ intention
, whi ch is asce rtained from the words of the instrument and the circ umstances contempora

neous to the transac tion, including the state of the thing conveyed an d the objective to be obtained. Id. ¶ 12. Interpre tation of an ease ment is a question of law that we revie w de novo

. Smith v. Heissinger , 319 I ll. App. 3d 150, 153 (2001). ¶ 26 W h er e the languag e of an agr eeme nt is fac ially unambiguous, the t rial court inte rp re t s the contra ct as a matter of law, without the use of extrinsi c evidence. Ha h n , 2 0 1 2 I L App (2d) 110060, ¶ 12. Howeve r, wher e the documents cre ating the ease ment are ambiguous, a trial court may

admit and consider

extrinsi c evide nce. Smith , 319 I ll. App. 3d at 153. ¶ 27 We f

ind the languag e of the cross-a cce ss ease ment in this c ase to be ambiguous. Whi le the leg al description of “Parc el 3” contained in the ease ment agree ment specific ally excludes the wester

n 540 fee t owned by O’He ir, another provision of the agree ment states that there is an acc ess ease ment “ac ross the west line of the premises of a location within 50 fee t north

o f t h e southwest corne r there of, for the benef it of adjoining proper

ty to the wes t

. ” T h e proper ty described in that provision seems to be O’ Heir’ s proper ty

. ¶ 28 Since the ease ment is ambiguous, the trial court properly looked to extrinsi c evidenc e to deter mine the int ent of the parties in cre ating the ease ment. The evidenc e introduced by Sarris showed that the ease ment was created t o benef it Sarris’s property and not O’H eir’s. Sarris was the one who dir ecte d Ty son to r ecor d the ease ment. O’He ir was not involved in the cre ation of the ease ment or the ease ment agree ment. Sarris intended for the ease ment to be over only his property

. ¶ 29 O ’ H e ir ’ s e vidence showed that the orig inal ease ment possibly encr o a c h e d o n h e r p r o p e r ty by a couple of inches. Howeve r, O’He ir provid ed n o evidenc e that Sarris intended for the

ease ment to be over O’He ir’s proper ty

. Moreove r, Sarris had no power to cre ate an ease ment

over O’He ir’s proper

ty

. See Hahn
, 2012 I L App (2d) 110060, ¶ 11. T hus, the trial court properly g rante d summary

judgme nt on O’He ir’s ea sement cla im.

¶ 30 I I . Sarris’s Partne rship Dissolution and AccountingClaim ¶ 31 O’He ir argues that the trial court err ed in granting summary jud gm en t t o Sarris on his partne rship dissoluti on and acc ounting claim becau s e i t was untimely

. She contends that

-6-Geor g etown Estates was constructively dissolved in 1996, when the re m aini ng parc el of

partne rship proper

ty was divided be tween the partne rs. ¶ 32 Di s s o lution of a partne rship is define d as “the chang e in the relation of t h e p ar t n er s

cause d by any part[y ] cea sing to be associate d in the car ry i n g o n * ** of the business.” (In t erna l quotation marks omitted.) Schlossberg v. Corringt on , 80 I ll. App. 3d 860, 863 (1980). “[A]n obvious prer equisite to a dissoluti on of a partne rship is its actua l exis tence at the time dissoluti on is sought.” Id. at 864. ¶ 33 A partne rship may be dissolved either by judicial order or by operation of law. Id. at 863. As a g eneral ru l e, the death of a partne r dissolves a partne rship unless there is an express agree ment that the partne rship will continue there afte r. Oneida State Bank v. Peterson
, 226 I ll. App. 381, 383 (1922). A jud icial order of dissoluti on may be gra nted upon application by a partne r if the court finds that the partne rship business cannot be car ried on as set forth in the partne rship agree ment. 805 I L CS 206/ 801(5) ( West 2012). ¶ 34 Eac h partne r is entitled to a settlement of a ll partnership a ccounts upon the dissol ution of a partne rship. 805 I L CS 206/807(b) (West 2012). A partne r’s right to an acc ounting

acc rues at the date of dissoluti on. Couri v. Couri , 95 I ll. 2d 91, 100 (1983); In re Estate of Krevche na , 244 I ll. App. 3d 160, 164 (1993). An acc ounting action may be brought afte r or at the same time as a partne rship dissoluti on action. Hildebrand v. Topping
, 240 I ll. App. 3d 104, 109 (1992). ¶ 35 Her e, the partne rship agree ment for Geor g etown Estates provi d ed that the par tnership would continue for 40 year s unless terminated sooner by opera tion of l aw or

agree ment of the partne rs. Whil e the death of a partne r normally dissolves a partne rshi p, that did not happen here beca

use t he partnership agr eeme nt stated that t he p ar tn ership would continue there afte r. See P et er

s o n , 2 26 I ll. App. at 383. Neve rtheless, O’He ir contends that the partne rship was dissolved even befor e her husband’s death in 2006, beca use the partne rship stopped conducting partne rship business in 1996, when nearly all of the partne rship proper ty had bee n sold. W e disagree

. ¶ 36 Whil e the majority of the partne rship proper ty was sold or tr an s fe rr ed b y 1 9 9 6
, t he partne rship still had possession of cer tain outlots at that time. It was not until 2011 that those outlots wer e transfe rre d. Be cause the partne rship reta ined proper ty until 2011, the trial court did not err in findingthat the par tnership was not dissolved until then. ¶ 37 Additionally
, the trial court did not err in allowing Sarris’s acc ounting action in spite of O’He ir’s claim that it was untimely

. A partne r’s right t o an acc ounting acc rues when the partne rship is dissolved. Couri
, 95 I ll. 2d at 100; Krevche na , 244 I ll. App. 3d at 164. Since the partne rship was not dissolved until 2011, Sarris’s acc ounting claim, which was filed with his dissol ution action in 2008, was not untimely

.

¶ 38 I I I . J udg ment Amount ¶ 39 Finally
, O’He ir argues that the trial court err ed in ordering her to pay Sarris $34,461.47 for pa rtnership de bts. ¶ 40 In settling the acc ounts and contributions among partne rs following the dissoluti on of a

-7-partne rship, eac h partne r shall contribute to the pa rtnership a

n amount equal to any

excess of the charg es over the cre dits in the partne rship’s acc ount

. 8 0 5 I L CS 206/807(b) (West 2012). The estate of a dece ased partne r is liable for the partne r’s obligation to contribute to the par tnership. 805 I L CS 206/ 807(e) (West 2012). ¶ 41 The amount of partne rship debt i s gen erally a question of fac t for the trial court. See Seym our v. W

illiams
, 249 I ll. App. 3d 264, 274 (1993). A revie wing court will not disturb

a trial court’s deter

mination of partne rship debt unless it is ag ainst the manifest weight of the evidenc e. Id. An awa

rd is contra

ry to the manifest weight of the evidenc e wher e the trial
court ignor ed the evidenc e or its measure of damag es was err oneous as a m at t er of law. Meadev. Kubinski , 277 I ll. App. 3d 1014, 1017 (1996). ¶ 42 At trial, Sarris claimed th at h e wa s en t i t led to reimburse ment from O’He ir for ne arly $300,000, including $210,000 in g ener al contra ctor fee s, $21,875 for excavating fee s, $21,872.25 in rea l estate tax es, and $33,198.01 in attorney fee s. The trial c ourt consider ed

eac h of these claims and deter mined that (1) Sarris was not en t i t l ed to reimburse ment for g ener al contra ctor fee s beca use the partne rship agree ment did not provide for such fee s; (2) Sarris was entitled to $16,500 in excavating fee s; (3) Sarris was entitled to $10,731.47 (less than half of the amount claimed by Sarris) as reimburse ment for partne rship rea l estate taxes paid from 1990 through 2010; and (4) S arri s was entitled to $7,230 in attorney fee s, repr esenting half of the leg al fee s Sarris incurre d in the partne rshi p d i s s o lution and

acc ounting ac t i o n

. The trial court enter ed judgme nt ag ainst O’He ir for $34,461.47, which

was 11% of the amount Sarris cla imed O’He ir owed him under the partne rship agree ment. Ba sed on the court’s thorough revie w and reduc tion of Sarris’s monetary claims, the damag e

awa rd wa s not ag ainst the manifest we ight of the evidenc e. ¶ 43 For

the fore g oing r easons, the judgment of the trial c ourt of Will C ounty is affirme d.

¶ 44 Affir

med.

-8-