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SPECIALTY LAW - Illinois Property/Probate Law
Illinois Property/Probate law cases
Updated through September 10, 2005
The Main File, containing the full text of over 1,190 Illinois property/probate law cases dating back to 1987, is available on CD-ROM. Case coverage includes such toptics as real property, property taxation and zoning, leases, landlord tenant, eminent domain, mortgages and liens, guardianships, probate, wills and trust. The database features full word-phrase search capabilities, no on-line charges, monthly internet updates, retrieval of cases by title or citation, network capability, a separate file of recent cases and the ability to print individual cases or save them to a word processing file. Recent cases contained in the Supplemental File are available on this web site. See below for Case Summaries. Full-text of cases is available only to subscribers.
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Illinois Property/Probate Law Case Summaries
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Illinois Property/Probate Case Summaries
July 31 - September 10, 2005
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DReal property
Bauer v. Giannis, No. 2-04-1155 (Ill.App. Dist.2 08/16/2005)
Plaintiff, Marshall Bauer, purchased a home from defendants, Nick Giannis and Donna Giannis. Four years later, the basement flooded after a heavy rain. Alleging that defendants concealed that the basement had flooded once before the sale, plaintiff sued defendants for fraud. The trial court denied defendants' motion for summary judgment and, finding that an "as is" clause contained in the real estate sale contract was unenforceable, granted plaintiff partial summary judgment.
Zoning; Land Use
County of Du Page v. Gavrilos, No. 2-05-0817 (Ill.App. Dist.2 08/26/2005)
Plaintiff, the County of Du Page, filed a four-count complaint for injunctive relief alleging that the business operations of defendant, Picture Perfect, Inc., commonly known as "One In A Million," constitutes an "Adult Business Use" as defined by the Du Page County zoning ordinance, and that the operation of an adult business use on the subject property violates several location restrictions of the Du Page County zoning ordinances. The County subsequently petitioned the trial court for a temporary restraining order (TRO). Defendant responded with a motion to strike the petition; a motion to strike the affidavit of Paul Hoss, an employee of the County's zoning division; three counter affidavits; and an answer to the petition, filed in the alternative to the motion to strike. Following a hearing on the County's petition, the trial court issued a TRO. Defendant filed this interlocutory appeal . . . contesting the TRO. Defendants Theodore D. Gavrilos, Georgia B. Gavrilos, and Theodore D. Gavrilos and Georgia B. Gavrilos as Trustees under the terms and provisions of a certain Trust Agreement dated March 22, 1996, and known as the Theodore D. Gavrilos and Georgia B. Gavrilos Trust, are not parties to the appeal.
Real estate brokers
Swiatek v. Azran, No. 1-04-1462 (Ill.App. Dist.1 08/18/2005)
Plaintiff Kenneth A. Swiatek appeals from the circuit court's denial of his motion to reconsider its order reducing the amount due to plaintiff pursuant to a settlement agreement with defendant David Azran. For the reasons that follow, we affirm. [¶] At various times throughout the late 1990s, plaintiff, a real estate broker, agreed with defendant, a real estate investor, that plaintiff would locate, procure, sell, and manage several residential properties in and around Chicago on defendant's behalf in exchange for commissions and fees. In March 1999, plaintiff filed a complaint seeking payment for balances due for his services for a total amount of $43,235, plus costs.
Taxation
In re Application of the County Treasurer, No. 1-02-3493 (Ill.App. Dist.1 08/25/2005)
Petitioner Forus Mortgage Corporation filed a petition and application for a tax deed of a single-family residence owned by respondents Denis and Lillian Dwyer based on their failure to pay general taxes in 1996. Following an evidentiary hearing, the trial court granted the petition and issued a tax deed. Respondents appealed, contending that the trial court erred in ordering the issuance of a tax deed because petitioner violated various statutory provisions of the Property Tax Code . . . and that certain of the trial court's factual determinations were against the manifest weight of the evidence. We dismissed respondents' appeal as untimely. In re Application of the County Treasurer, 346 Ill. App. 3d 624 (2004) (hereinafter Forus I). The supreme court reversed our decision and remanded the case with directions that we consider its merits. In re Application of the County Treasurer, 214 Ill. 2d 253 (2005) (hereinafter Forus II).
Premises Liability
Morris v. Williams, No. 4-04-0974 (Ill.App. Dist.4 08/23/2005)
Plaintiffs, Tyler Morris, a minor, by Mark Morris and Cynthia Morris, his parents and next friends, and Mark and Cynthia Morris, individually, brought an action against defendants, John D. Williams, Sheri J. Williams, Kevin W. Williams, Kristle Williams, the Covered Bridge Acres Association, Inc. (Association), and Bart Wilson, to recover for personal injuries Tyler sustained as the result of an accident on his all-terrain vehicle (ATV). In October 2004, the trial court granted Wilson's motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure . . . and granted summary judgment in favor of all other defendants. [¶] Plaintiffs appeal, arguing the trial court erred in granting Wilson's section 2-619 motion to dismiss when he willfully or maliciously failed to guard or warn against a dangerous condition on his leased property. We affirm.
Trusts
In re Estate of Ahern, No. 1-04-3325 (Ill.App. Dist.1 08/04/2005)
Appellant Janna Dutton, counsel for the plenary guardian of the person and estate of Marie Ahern (deceased), was awarded attorney fees payable by the Marie Ahern Trust (Trust) and sought enforcement of the judgment against the Trust and decedent's son, appellee Robert Ahern, Jr. (Robert), as trustee. During enforcement proceedings, the circuit court struck Robert's emergency motion for change of judge, finding that the court lacked subject matter jurisdiction on the grounds that the estate had already closed. The court denied Dutton's subsequent motion to reconsider, and she now appeals, contending that the circuit court erred and in fact retains subject matter jurisdiction for purposes of enforcing the judgment. For the reasons that follow, we reverse and remand for further proceedings.
In re Estate of Muppavarapu, No. 3-04-0969 (Ill.App. Dist.3 08/31/2005)
1 This appeal arises from an order of the circuit court of Rock Island County granting summary judgment in favor of defendants on two counts of plaintiff's complaint. Plaintiff appeals. We reverse and remand. [¶] I. FACTS [¶] Prasad L. Muppavarapu (Decedent), died on April 19, 1999. Decedent's will created a testamentary trust naming his wife, Padmaja Raecharla, plaintiff herein, as a co-trustee, Srinivas Rao Kudaravalli (Sri), decedent's nephew, as executor of the will and as a co-trustee and, Chittaranjan Mallipeddi (CM), the husband of decedent's niece, as a co-trustee. The trust stated that it was established to provide for the medical care and education of plaintiff and decedent's nieces and nephews. The trustees were to serve without compensation according to the terms of the trust. In July 1999, plaintiff and CM signed an agreement to give Sri authority to make all investment and financial decisions for the testamentary trust. Two years later, on July 25, 2001, plaintiff withdrew this authority in a letter to Sri and CM. [¶] Plaintiff filed a three-count complaint against Sri and CM. Plaintiff was awarded summary judgment as to Count I and it is not the subject of this appeal. Count II was brought against Sri and CM alleging that they breached their fiduciary duties by failing to choose investments that would permit for payments for educational and medical needs of the beneficiaries, and by making investments that caused significant depreciation of the trust. It sought recovery of the loss of value of the corpus, an order for payment of plaintiff's medical and educational expenses, and removal of co-defendants as trustees. Count III alleged breach of fiduciary duty by defendants and self-dealing by Sri in that Sri, with the cooperation of CM, borrowed $400,000 from the trust and was guilty of self-dealing. Plaintiff sought recovery of the borrowed funds and removal of defendants as trustees.
Illinois Property/Probate Case Summaries
June 26 - July 30, 2005
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Zoning; Land Use
Victory Auto Wreckers, Inc. v. Village of Bensenville, No. 2-04-1040 (Ill.App. Dist.2 07/12/2005)
In this zoning ordinance case, defendants, Village of Bensenville et al. (Bensenville), appeal the trial court's order reversing a decision by the Bensenville Community Development Commission (CDC) in favor of Bensenville and against plaintiff Victory Auto Wreckers (Victory). Initially, we note that Victory has abandoned its cross-appeal. We affirm.
Landlord Tenant
Gold Realty Group Corp. v. Kismet Caf, Inc., No. 1-04-3317 (Ill.App. Dist.1 06/30/2005)
The defendants leased property from the plaintiff and operated a hamburger stand until the property was destroyed by a fire. After the fire, the defendants ceased paying rent. The plaintiff filed a complaint seeking unpaid rent and possession based on the failure to pay rent. The plaintiff later moved for summary judgment, seeking to terminate the lease based on two provisions in the lease, neither alleged in the complaint. The court entered summary judgment for the plaintiff, and defendants appealed. We reverse and remand.
Premises Liability
Dearing v. Baumgardner, No. 3-04-0465 (Ill.App. Dist.3 06/29/2005)
In this case from the circuit court of Will County, the court is presented with the following certified question on interlocutory appeal: "In a situation where Social Guests A & B criminally attack Social Guest C, can Social Guests A & B constitute a dangerous condition of the premises, imposing a duty to warn or a duty to otherwise protect, upon the Social Host/Premises Landowner where the Social Host/Premises Landowner knew or should have known one or more of the following: that Social Guests A & B, while on the premises, had consumed excessive amounts of alcoholic beverages; screamed, yelled and threatened each other and other guests; were requested to leave the premises by the Social Host/ Premises Landowner due to their behavior; and/or had a propensity of being violent when drinking alcohol?" [¶] We answer the question in the negative, finding that the described situation does not state a claim for premises liability.
Wills & Estates
Mikrut v. First Bank of Oak Park, No. 1-03-3394 (Ill.App. Dist.1 06/30/2005)
Plaintiffs-appellants, Michaline Mikrut and Theresa Mudjer, in their capacity as co-executors of the estate of their deceased brother, Theodore Kasprzycki, sued the defendant-appellee, First Bank of Oak Park (First Bank). The action sought to recover estate funds that were converted by plaintiffs' attorney, Anthony Capetta. Capetta, in his capacity as plaintiffs' fiduciary, received three checks which represented the proceeds of Kaspryczki's estate. Plaintiffs claimed that Capetta, without plaintiffs' authority, improperly endorsed these checks, deposited them into his client trust account (escrow account) with First Bank, and converted those funds for his own use. Count I of plaintiffs' amended complaint alleged conversion under section 3-420 of the Uniform Commercial Code (UCC) . . . Count II alleged a "claim of interest" under sections 3-306 and 3-307 of the UCC . . . . First Bank moved for summary judgment on each count arguing, among other things, that under the Fiduciary Obligations Act . . ., First Bank was relieved of liability because it did not act in bad faith or with knowledge that Capetta breached his fiduciary duties to plaintiffs. First Bank's summary judgment motion was ultimately granted by the trial court. Plaintiffs then filed a motion to reconsider which the trial court denied. Plaintiffs appeal from the orders entered by the trial court.
In re Estate of Phillips, No. 1-03-3685 (Ill.App. Dist.1 07/14/2005)
The appellant, John Klebba, appeals the trial court's order that granted summary judgment on behalf of Michael O'Connor, the administrator of John Phillips' estate. On appeal, Klebba argues that: (1) the trial court improperly applied the Dead-Man's Act . . . to bar his testimony and not admit a will to probate that Phillips had allegedly executed in 1987, and (2) section 8-501 of the Illinois Code of Civil Procedure . . . is unconstitutional. For the reasons that follow, we affirm.
Illinois Property/Probate Case Summaries
May 22 - June 15, 2005
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DReal property
Sklodowski v. Countrywide Home Loans, Inc., No. 1-04-1809 (Ill.App. Dist.1 06/16/2005)
Plaintiff Robert L. Sklodowski brought this lawsuit as a class action against defendant Countrywide Home Loans, Inc., an Illinois corporation (Countrywide), alleging breach of a mortgage note, breach of fiduciary duty, and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act . . . The trial court granted Countrywide's motion to dismiss the breach of fiduciary duty and Consumer Fraud Act counts and, later, granted Countrywide summary judgment on the breach of contract count. Plaintiff now appeals from the dismissals of all three counts, arguing (1) Countrywide breached the mortgage note, which provided that Countrywide "promptly" refund plaintiff's escrow monies by delaying refunds for 14 days; (2) Countrywide's adoption of the 14-day delay policy constituted consumer fraud; and (3) Countrywide breached a fiduciary duty to plaintiff by not paying him interest on his escrow funds during the 14-day period. For the following reasons, we affirm.
PHL, Inc. v. Pullman Bank, No. 96250 (Ill. 06/03/2005)
Section 8(b) of the Court of Claims Act provides that the Court of Claims shall have exclusive jurisdiction over "[a]ll claims against the State founded upon any contract entered into with the State of Illinois." . . . At issue in this case is whether plaintiffs' claim for breach of contract, which was brought against the Treasurer of the State of Illinois, constitutes an action "against the State" so as to come within this provision. The appellate court concluded that it did not. No. 5-00-0206 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse.
Construction
R and B Kapital Development, LLC v. North Shore Community Bank and Trust Co., No. 1-04-2818 (Ill.App. Dist.1 06/21/2005)
The plaintiff, R&B;Kapital Development LLC, appeals from orders of the circuit court of Cook County dismissing its amended complaint for negligent misrepresentation, breach of fiduciary duty and breach of contract against the defendants, North Shore Community Bank and Trust Company (North Shore) and Chicago Title and Trust Company (Chicago Title). On appeal, the plaintiff raises the following issues: (1) whether the Credit Agreements Act (the Act) . . . bars counts I and II of the amended complaint; (2) whether the amended complaint alleged sufficient facts to support causes of action for negligent misrepresentation and breach of fiduciary duty; and (3) whether waiver and estoppel defenses bar the plaintiff's cause of action for breach of the escrow agreement. The pertinent factual allegations of the amended complaint are set forth below.
Viking Construction Management, Inc. v. Liberty Mutual Insurance Co., No. 1-03-3152 (Ill.App. Dist.1 05/24/2005)
Defendant Liberty Mutual Insurance Company (Liberty Mutual) appeals from an order of the circuit court entering summary judgment in favor of Viking Construction Management, Inc. (Viking)*fn1 in Viking's declaratory judgment action, declaring that Liberty Mutual owed a duty to defend and indemnify Viking in an underlying lawsuit filed by the Woodland Community School District (Woodland). On appeal, Liberty Mutual contends that the trial court erred in granting summary judgment in favor of Viking because: (1) a breach of contract claim, such as Woodland's, is not covered by its insurance policy; (2) the Woodland complaint failed to allege an "occurrence" covered under the policy; (3) the "your work" policy exclusion bars coverage; (4) Liberty Mutual is not barred, under the estoppel doctrine, from asserting coverage and defense issues; and (5) Liberty Mutual had no duty to indemnify Viking because its policy limits had been exhausted. For the reasons set forth below, we reverse.
Landlord Tenant
Northeast Illinois Regional Commuter Railroad Corp. v. Chicago Union Station Co., No. 1-04-2862 (Ill.App. Dist.1 06/17/2005)
Defendant Chicago Union Station Company, an Illinois corporation, appeals from an order of the circuit court denying its motions to compel arbitration and to dismiss the expedited application for a stay of arbitration brought by plaintiff Northeast Illinois Regional Commuter Railroad Corporation, d/b/a METRA, a public corporation (plaintiff or Metra), and granting the stay of arbitration sought by Metra. On appeal, defendant contends that the court improperly found that it had waived its right to arbitration and that arbitration of a particular liability cost compensation issue was barred by the principle of res judicata. For the reasons that follow, we affirm the judgment of the circuit court.
Taxation
Du Page County Airport Authority v. Dep't of Revenue, No. 2-04-0769 (Ill.App. Dist.2 06/14/2005)
Defendants the Department of Revenue (Department), Brian A. Hamer (in his official capacity as director of the Department), Du Page County Board of Review, West Chicago Elementary School District No. 33, City of West Chicago, West Chicago High School District No. 94, West Chicago Park District, West Chicago Fire Protection District, and West Chicago Library District appeal the decision of the circuit court of Du Page County reversing the decision of the Department and ruling that certain property belonging to plaintiff, the Du Page County Airport Authority, fulfills an airport authority purpose and is thus tax exempt. For the reasons that follow, we reverse the decision of the circuit court of Du Page County and affirm the ruling of the Department.
Premises Liability
Lange v. Fisher Real Estate Development Corp., No. 1-04-0625 (Ill.App. Dist.1 06/25/2005)
Plaintiff, Richard Lange, appeals from the trial court's grant of summary judgment in favor of defendants Fisher Real Estate Development Corporation (Fisher) and Midwest Carpentry, Inc. (Midwest) (collectively defendants). We affirm.
Haupt v. Sharkey, No. 2-04-1146 (Ill.App. Dist.2 06/16/2005)
Plaintiff, Peter A. Haupt, brought a common-law premises liability cause of action in the circuit court of McHenry County to recover damages for personal injuries he sustained when he was attacked outside of Sharkey's Pub, which was owned and operated by defendant, Charles E. Sharkey. The trial court granted summary judgment in favor of defendant. We reverse and remand.
Wills & Estates
In re Estate of Mohr, No. 1-04-0130 (Ill.App. Dist.1 06/09/2005)
Wilma Thinschmidt filed a petition in the circuit court of Cook County pursuant to section 8-1 of the Illinois Probate Act of 1975 . . . to contest the validity of her brother's will. The executor of the brother's estate moved to dismiss Thinschmidt's petition under section 2-619(a)(5) of the Illinois Code of Civil Procedure . . . based on the fact that the petition was untimely. The motion to dismiss was granted because the trial court found it lacked jurisdiction due to the fact that the action was not timely filed. Thinschmidt now appeals that dismissal and contends that the trial court maintained jurisdiction to hear her petition to contest the validity of her brother's will. For the reasons that follow, we affirm the trial court's order dismissing Thinschmidt's petition.
Trusts
Holtz v. Crown, No. 1-03-3438 (Ill.App. Dist.1 06/02/2005)
The defendants, Bruce Crown, Bruce Alan Crown, trustee of the Bruce Alan Crown Restated Grantor's Trust dated as of August 13, 1992, Graystar Corporation, and American Demolition Corporation, appeal the trial court's order that granted the plaintiffs, Charlene Holtz and Chicago Title and Trust Company, as trustee under trust agreement dated March 3, 1978, and known as Trust Number 1071724, leave to file an amended complaint. [¶] On appeal, the certified question that we are faced with is whether a motion to amend pursuant to section 2-1005(g) . . . of the Illinois Code of Civil Procedure (Code) extends the trial court's subject matter jurisdiction beyond 30 days after the grant of summary judgment which disposed of all the parties and issues. For the following reasons, the certified question is answered "yes."
Illinois Property/Probate Case Summaries
April 17 - May 21, 2005
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DReal property
City of Chicago v. RN Realty, L.P., No. 1-03-2214 (Ill.App. Dist.1 04/21/2005)
Plaintiff City Of Chicago (City) filed suit against defendants RN Realty, L.P. (RN), and Plymouth Building, L.P. (Plymouth), alleging violations of the Chicago Building Code for failure to maintain several structures appurtenant to the building located at 417 South Dearborn Street (Building). Following a trial, the circuit court entered judgment in favor of defendants. The City now appeals, and for the reasons that follow, we affirm.
Landlord Tenant
Olmstead v. Nodland, No. 3-04-0413 (Ill.App. Dist.3 04/29/2005)
Plaintiff, Everett Olmstead, filed this declaratory judgment action asking the trial court of La Salle County to declare that defendant Merlin Nodland's tenancy on a piece of farmland was properly terminated. Following a review of the evidence submitted by both parties, the trial court found in favor of the plaintiff and held that the defendant's tenancy terminated on February 29, 2004. Defendant appeals.
Taxation
In re Application of the County Treasurer and Ex-Officio County Collector for Judgment and Order of Sale Against Real Estate Returned Delinquent for NonPayment of General Taxes and Special Assessments for the Year 2002 and Prior Years, No. 4-04-0733 (Ill.App. Dist.4 04/18/2005)
On May 19, 2004, the trial court ordered that a tax deed be issued to petitioner, Laurence D. Craig, for real property located at 512 N. Madison Street in Lincoln. The next day, respondent, Linda Brown, who resided at the subject property, filed a motion to vacate the tax deed. Following a June 2004 hearing, the court denied Brown's motion. [¶] In July 2004, Brown filed motions to (1) vacate the tax deed under section 2-1401 of the Code of Civil Procedure . . . and (2) declare section 22-45 of the Property Tax Code . . . unconstitutional under the equal-protection clause of the United States Constitution (U.S. Const., amend. XIV). Following a July 2004 hearing, the trial court denied both motions and ordered Brown to vacate and surrender the subject property. [¶] Brown appeals, arguing that the trial court erred by (1) denying her motion to vacate the tax deed under section 2-1401 of the Civil Code and (2) denying her motion to declare section 22-45 of the Property Tax Code unconstitutional. We affirm.
Church of Peace v. City of Rock Island, Illinois, No. 3-04-0480 (Ill.App. Dist.3 05/12/2005)
This action was brought by a group of churches to challenge the ordinance of the city of Rock Island (the City) which imposes a storm water service charge on property owners. The circuit court of Rock Island County granted the City's motion for summary judgment and denied the plaintiffs' summary judgment motion. The plaintiffs appeal, maintaining that the circuit court erred in finding that the City's storm water service charge was a fee and not a tax on real property, from which the plaintiffs are exempt by express provision of the Illinois Property Tax Code. 35 ILCS 200/15-40(a) (West 2002). We affirm.
Wills & Estates
Hines v. Dep't of Public Aid, No. 3-04-0162 (Ill.App. Dist.3 05/20/2005)
Petitioner, Betty J. Hines, appeals the trial court's order finding that the Illinois Department of Public Aid may recover the value of Medicaid payments from the estate of Beverly Tutinas as a surviving spouse of a Medicaid recipient. For the reasons that follow, we reverse.
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