author: JUSTICE DOYLE

text:
    MAYWOOD-PROVISO STATE BANK, Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF LISLE et al., Defendants-Appellees.
    Second District
    No. 2—91—1005
    Opinion filed September 1, 1992.
    Rehearing denied October 7, 1992.

      Andrew B. Spiegel, of Wheaton, for appellants.

      Maloney & Craven, of Des Plaines (E. William Maloney, of counsel), and Robert V. Borla, of Borla, North & Associates, of Downers Grove, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs Maywood-Proviso State Bank, as trustee under trust No. 7938, Ed Cunningham, and Horst Adler filed a two-count amended complaint in the circuit court of Du Page County naming as defendants the Village of Lisle, Lee J. Herrera and Jeannette S. Devane. Count I sought a declaration that a valid easement existed over property owned by Herrera and Devane, a permanent injunction barring Herrera and Devane from interfering with or obstructing plaintiffs’ installation of water and sewer lines over the easement and an injunction against the Village of Lisle directing it to reinstate certain permits related to the development of property which the easement allegedly benefitted. Count II sought an injunction requiring Herrera and Devane to abate certain zoning violations and asked for reasonable attorney fees and costs. Count II was subsequently amended to request compensatory and punitive damages against Herrera and Devane for their refusal to allow plaintiffs to use the easement. At a bench trial, the trial court granted defendants’ motion for judgment at the close of plaintiffs’ case, and plaintiffs filed this appeal.

Plaintiffs raise the following issues on appeal: (1) whether the trial court’s decision to enter judgment in favor of defendants was against the manifest weight of the evidence because the evidence supported plaintiffs’ claim of a valid grant of a utility easement; (2) whether the easement was appurtenant, thereby binding the subsequent owners of the servient estate; and (3) whether Herrera and Devane had actual or constructive notice of the utility easement.

The following facts are relevant to our disposition of this appeal. Plaintiffs alleged in their amended complaint that they had easement rights over a parcel of property owned by Herrera and Devane based on either a grant of an easement by the previous owners of the parcel or an easement created by a plat of resubdivision. The complaint further alleged that Herrera and Devane had notice of “said easement as set forth in John B. Stern’s Subdivision” through either a land survey of the property or a title commitment, both of which were prepared for the sale. Plaintiffs eventually amended count II of their complaint to seek compensatory and punitive damages based on Herrera and Devane’s refusal to allow them to utilize the easement.

Plaintiffs filed a motion for summary judgment, arguing that an easement had been previously granted to John Stem and that a plat of subdivision had been recorded giving all subsequent title holders notice of the easement. Plaintiffs’ motion was denied.

Defendants Herrera and Devane filed a counterclaim seeking a declaration that the Stem resubdivision was invalid and void and an order barring plaintiffs from asserting any easement across the property. On August 27, 1990, the trial court entered an “order of default and declaratory judgment” on the counterclaim. The court found that the plat of subdivision executed on July 19, 1977, was “null, void and of no effect” because of a defective owner’s certificate. The court further ruled that any purported easements depicted in the plat of subdivision were null, void and of no effect. The order also contained an express finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) but was never appealed.

Herrera and Devane also filed a third-party complaint against George and Sondra Donatelli, the previous owners of the property. The third-party complaint sought money damages from the Donatellis should plaintiffs prevail on their claims against defendants. The third-party complaint was based upon a breach of certain covenants in connection with the execution of a warranty deed.

Defendant Village of Lisle moved for summary judgment, and an agreed order was entered granting the motion. The order contained Rule 304(a) (134 Ill. 2d R. 304(a)) language but was not appealed, and Village of Lisle is not a party to this appeal.

On April 9, 1991, Herrera and Devane (defendants) filed a motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) against plaintiffs. On that same date, the trial court ordered that defendants’ motion for sanctions be reserved for trial. The court further ordered that the complaint and third-party complaint be tried in sequence. Prior to commencement of the trial, the court also ruled that count I and count II of the complaint would also be tried in sequence as a ruling in favor of defendants on count I would necessitate a decision favorable to defendants as to count II.

The testimony and exhibits at trial established the following. The Stem subdivision consisted of a single-family residence and nine lots covering about three acres. Defendants’ property is adjacent to lot 8 in the subdivision. John Stem testified that as of July 8, 1977, the property comprising the subdivision was in a land trust of which he and his wife were the beneficiaries. There was no other land in the trust.

The subject property was sold to George and Sondra Donatelli on July 8, 1977. Plaintiffs’ exhibit 20 is a document entitled “UTILITY EASEMENT” which is dated July 8, 1977, and is signed by the Donatellis. This document purports to grant to John Stern and his wife a utility easement over the Donatellis’ property “for the purpose of providing the property and adjacent property” with certain utilities. While this document sets forth a description of the Donatelli property, it does not describe the property to which the easement will provide benefit. This document was not recorded until after this lawsuit was filed.

According to George Donatelli, he had no discussions with John Stem or his wife prior to the closing regarding the grant of an easement. On the date of the closing, the Sterns telephoned the Donatellis and asked them over to their home. Stem presented George Donatelli with the document granting the utility easement and told him that he wanted him to read it. Donatelli had nothing to do with the preparation of the document and did not know it existed prior to Stern handing it to him. Donatelli testified that he did not “really read” the document but “glanced at it.”

Stem testified to a different version of the events surrounding the execution of the grant of easement. He identified the document as a utility easement drawn up at his direction on July 8, 1977. He stated that the document was drafted because they needed a record of the easements before the plat of resubdivision was recorded. According to Stem, he had two or three conversations with the Donatellis prior to the closing concerning the need for an easement on the property. The first such conversation occurred at least a month prior to their purchasing the property. Stern told them that the easements were needed to access Elm Street for the water and sewer lines when they subdivide the remaining property. The Donatellis said, “okay, no problem.” He denied calling them to his house on the morning of the closing and giving them an ultimatum or giving them the document at his house. According to Stern, the Donatellis signed the grant of easement at the closing.

The document was present at the closing, and the Donatellis had a copy. The document was to be recorded but apparently was not. Sometime later, after Stem lost the subdivision at a foreclosure sale, he explained to Joseph Giampa, a real estate broker who was involved in the purchase of the property at the foreclosure sale, that “[he] [had] easements on those two lots that were sold.” He also told Giampa that the Donatellis were aware of the easements. He then gave Giampa the signed grant of easement which was in a file.

While he knew the property was in a land trust, Stem designated himself and his wife as grantees rather than the trustee. The purchase contract was silent as to any easement. He thought that because the Donatellis were pushing to buy the lot, he told them that they would have to sign an easement document at the closing and they said fine. On redirect examination he explained that it was not his intent that the grant of easement be personal to him and his wife. The document described an easement consisting of the north 10 feet of the property, the south 20 feet of the property and the east 10 feet of the property.

On July 19, 1977, the trustee executed a plat of subdivision which also set forth an easement of the same dimensions as that in the aforementioned document. This plat of subdivision was recorded on July 19, 1977.

Defendants subsequently purchased the property from the Donatellis. George Donatelli testified that he met defendants in 1985 when they came to look at the property. While he testified that he did not tell defendants that they would have to build an attached garage because the driveway was on an easement, plaintiffs introduced his deposition wherein he testified that the only way he could have put a garage on the property was if it were attached because he “didn’t have enough easement rights.” Donatelli also stated that he told Devane that he did not have enough easement rights but explained that what he meant was access for the Village of Lisle to get to telephone and electric lines at the back of the property. When asked whether he told Devane that any garage would have to be attached because of easements, Donatelli said he did not recall. Again, Donatelli’s deposition testimony was introduced in which he stated that he told Devane a garage would have to be attached because of the easements. He had no other conversations with defendants concerning easements on the property.

Donatelli also testified that at the closing, on August 28, 1985, there was a discussion about his having to pay $600 as a title indemnity bond because of an easement and that defendants were sitting in the same room when the discussion took place. There was no discussion as to whom the easement ran in favor of. Donatelli thought it was an easement for the Village to access the property to work on “telephone poles and stuff.”

Lee Herrera testified that at the closing he heard the word “easement” used in conjunction with the property he was purchasing. He denied that John Stern ever told him about an easement on his property or that he learned of the easement from the Donatellis. He also stated that when he and Devane conversed with George Donatelli prior to the sale, Donatelli did not mention the word “easement.”

Richard Kuhn, defendants’ attorney for the purchase of the property, testified that the title company’s commitment indicated there were easements of record. He denied having any knowledge of the grant of easement on the date of the closing. Neither the Donatellis nor their attorney made any reference to a grant of easement at the closing. The first time Kuhn became aware of the grant was during this litigation.

Jeannette Devane testified that she did not receive a copy of the grant of easement at the closing. She conceded that at her deposition she testified that there was “some discussion” of an easement at the closing. She also admitted seeing a plat of survey at the closing that depicted an easement on the property. Ms. Devane denied that John Stern told her there were easements on the property or that the swimming pool was built over one of the easements. She also denied that she and Herrera discussed a reduction in the purchase price because of the pool encroachment. The first time Devane had any knowledge of an easement was when Giampa discussed it with her in the spring of 1989. She never saw the grant of easement at or before the closing and had never heard about it from anyone.

Horst Adler, one of the plaintiffs in this case, testified that he and Giampa went to visit defendants in April 1989. They went to defendants to inform them of their intent to use the easements to install water and sewer lines. According to Adler, Herrera stated that he had the impression it was only a 10-foot rather than a 20-foot easement. Herrera testified that he said “don’t you believe the 20-foot easement you claim to have is actually 10 feet.” Herrera explained that 10 feet was an arbitrary number he chose because it was half of what Giampa claimed the easement to be.

Giampa testified that during the conversation with defendants Herrera asked where the easement was in relation to his property and said he thought it was a 10-foot easement and that he would have to look at his plat. Neither defendant denied the existence of an easement at that time. Herrera told Giampa that he wanted to discuss it with his lawyer to see whether it was a 10-foot or a 20-foot easement.

John Stem also testified that Herrera came to his home and said he was considering purchasing the Donatelli property. Herrera asked if there was anything he should know about the property, and Stern told him there was an easement on the property and that the Donatellis had built their swimming pool on it. According to Stem, he explained that there was an easement on three sides of the property. Later, at a village meeting, Stem asked Herrera how he was doing with the Donatellis, and Herrera thanked him for telling him about the pool and stated that he was able to get the cost reduced. He had no further conversations with defendants.

At the close of plaintiffs’ case, defendants moved for a judgment in their favor. In granting defendants’ motion, the court stated that defendants could not have constructive or actual notice based on the plat of subdivision as the plat was void ab initio. As to the grant of easement, the court ruled that the Stems were not titleholders to the property as beneficiaries of the land trust and as such the easement to them was in gross and did not run with the land. The court determined that none of the evidence established that defendants had actual or constructive notice of the grant of easement. The court did not reach the question of whether the easement had been abandoned.

The court found no liability as to count II due to its ruling on count I and further found the third-party complaint to be moot. The court did not rule on defendants’ prior motion for Rule 137 sanctions. The court added that it considered its order to be final. The court’s written order, entered on May 28, 1991, granted defendants’ motion as to count I and dismissed count II and the third-party claims as moot. This order contains no reference to the motion for sanctions.

On June 5, 1991, plaintiffs filed a post-trial motion to vacate the judgment. On June 10, 1991, pursuant to defendants’ motion to amend the order of May 28, 1991, the court entered a nunc pro tune order which added a finding, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the May 28 order. Also on June 10, the court granted defendants’ motion for summary judgment against Lange Construction based on the evidence adduced at trial. On August 2, 1991, the court denied plaintiffs’ post-trial motion, and on August 28, 1991, plaintiffs filed their notice of appeal.

The notice of appeal states that plaintiffs are appealing “the orders of [the court] entered on May 28, 1991, *** and from [its] order of August 2, 1991.” The notice makes no reference to the June 10, 1991, nunc pro tunc order.

As an initial matter, defendants have filed a motion to strike plaintiffs’ notice of appeal and to dismiss the appeal. They raise three arguments in that regard. First, they contend this court lacks jurisdiction to consider the appeal because the notice of appeal specifies only the May 28, 1991, and August 2, 1991, orders, neither of which contains language, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), necessary to render the orders appealable. Second, defendants maintain that the notice of appeal is defective because it fails to request any specific relief as required by Supreme Court Rule 303(c)(2) (134 Ill. 2d R. 303(c)(2)). Third, defendants assert that they have suffered prejudice due to plaintiffs’ failure to serve them with a docketing statement pursuant to Supreme Court Rule 303(g) (134 Ill. 2d R. 303(g)).

The May 28, 1991, order was not appealable at the time of its entry because it did not dispose of all the claims in the case and lacked the necessary language pursuant to Supreme Court Rule 304(a) to make it appealable. (Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 468; Berger v. Matthews (1991), 216 Ill. App. 3d 942, 944.) The claim for sanctions under Rule 137 was not disposed of at that time. On June 10, 1991, the court entered an “amended judgment order” which, among other things, purported to add the necessary Rule 304(a) language nunc pro tunc to the May 28, 1991, order. An order nunc pro tunc can only supply an omission in the record of an order which was actually made but not included in the record. (Phil Dressier & Associates, Inc. v. Old Oak Brook Investment Corp. (1989), 192 Ill. App. 3d 577, 581.) A court may not, by use of a nunc pro tunc order, attempt to cure a jurisdictional defect in a prior order. (Dressier & Associates, Inc., 192 Ill. App. 3d at 581; Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 805.) On the other hand, a court is generally empowered to modify or amend its own orders prior to a notice of appeal being filed.

Here, while the June 10, 1991, order purports to be a nunc pro tunc order as to the Rule 304(a) language, it merely amended the May 28, 1991, order to include such language pursuant to defendants’ motion. To the extent the June 10 order attempted to make the Rule 304(a) finding nunc pro tunc to May 28, such language lacked efficacy as an improper effort to alter the substance of the May 28 order as of May 28, 1991. However, prior to any notice of appeal being filed, either defendants or plaintiffs were free to request the addition of the Rule 304(a) language in the May 28, 1991, order. (134 Ill. 2d R. 304(a).) Thus, the May 28, 1991, order became appealable as of June 10, 1991, when the court amended the order to include the Rule 304(a) finding. See 134 Ill. 2d R. 304(a).

We are thus left with the question of whether plaintiffs’ notice of appeal was defective for failure to specify the June 10, 1991, order, notwithstanding its specification of the final and appealable order of May 28, 1991, and the order of August 2, 1991, denying plaintiffs’ motion to reconsider. While the filing of a notice of appeal is jurisdictional, such notice is to be liberally construed. (Lang v. Consumers In surance Service, Inc. (1991), 222 Ill. App. 3d 226, 229.) The purpose of the notice of appeal is to inform the appellee that the appellant seeks review by a higher court. (Lang, 222 Ill. App. 3d at 229.) A notice of appeal should be considered as a whole and will be deemed to confer jurisdiction on an appellate court if it fairly and adequately sets out the judgment complained of and the relief sought, thereby advising the successful litigant of the nature of the appeal. (Lang, 222 Ill. App. 3d at 229-30.) Where the deficiency in the notice is one of form, rather than substance, and the appellee is not prejudiced, the failure to comply strictly with the form of notice is not fatal. Lang, 222 Ill. App. 3d at 230.

The notice of appeal in this case, while not specifying the June 10, 1991, order, did specify the May 28, 1991, order. It is the substance of that latter order, of course, that plaintiffs desire to appeal along with the order denying their motion to reconsider. As of June 10, 1991, the May 28, 1991, order was appealable. While the June 10, 1991, order arguably should have been included in the notice of appeal, it was the intent of plaintiffs to appeal from the May 28, 1991, order. Consequently, the failure to specify the June 10, 1991, order, which did nothing more than render the May 28 order appealable, is not fatal and does not deprive us of jurisdiction to consider plaintiffs’ appeal. We also perceive no prejudice suffered by defendants under these circumstances (see March v. Miller-Jesser, Inc. (1990), 202 Ill. App. 3d 148, 157-58), especially in light of the fact that it was defendants who sought to amend the May 28 order to add the Rule 304(a) finding. Based on the foregoing, we need not consider plaintiffs’ motion to file an amended notice of appeal.

Defendants alternatively argue that the notice of appeal is defective because it fails to request specific relief as required by Supreme Court Rule 303(c)(2). Rule 303(c)(2) states that the notice of appeal “shall specify the *** relief sought from the reviewing court.” (134 Ill. 2d R. 303(c)(2).) Our supreme court has held, in interpreting the former version of Rule 303(c)(2), that the failure to include a prayer for relief in a notice of appeal is an error of form not substance and, absent prejudice to the appellee, does not deprive the appellate court of jurisdiction. (National Bank of the Republic v. Kaspar American State Bank (1938), 369 Ill. 34, 40.) The appellate court has interpreted Rule 303(c)(2) in the same fashion. Illinois Bell Telephone Co. v. Purex Corp., Ltd. (1980), 90 Ill. App. 3d 690, 693; Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 851.

In the present case, the notice of appeal fails to request any relief. It does state, however, that plaintiffs are appealing from the May 28 order granting defendants’ motion for a directed finding. It is evident that the relief they are seeking is a reversal of that order and an opportunity to continue the trial to its conclusion. Defendants have pointed to no prejudice they have suffered as a result of plaintiffs’ failure to include a request for relief in the notice of appeal, nor do we perceive any under these circumstances. We conclude that the lack of a prayer for relief in the notice does not deprive us of jurisdiction.

The last contention raised by defendants is that plaintiffs failed to serve defendants with a docketing statement as required by Rule 303(g) and that defendants have been prejudiced because the time to file a responsive docketing statement has expired. Rule 303(g) provides, in pertinent part, that an appellant “shall file with the clerk of the reviewing court a docketing statement, together with proof of service thereof.” (134 Ill. 2d R. 303(g).) Implicit in this rule is the requirement that the appellant serve a copy of the docketing statement on the appellee. Plaintiffs failed to file the proof of service with this court, and we must therefore necessarily conclude they failed to serve a copy of the docketing statement on defendants.

Defendants have cited no cases, nor has our research indicated any, addressing the significance of an appellant’s failure to serve a docketing statement on an appellee. Nevertheless, in our opinion, the requirement to serve the docketing statement cannot be viewed as jurisdictional. The only jurisdictional step is the filing of the notice of appeal. (Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 400.) Thus, the failure to comply with the requirement of serving the docketing statement on the appellee cannot be the basis for a dismissal of this appeal. Defendants have not asked us to take any other specific action in this regard, and we decline to speculate as to what other action, if any, would be appropriate.

While defendants claim they have suffered prejudice because the time to file a responsive statement has lapsed, they fail to point out the nature and extent of such prejudice. The rule provides for a responsive statement “if it is deemed necessary.” (134 Ill. 2d R. 303(g).) Defendants have not shown the necessity of such a response. Consequently, we perceive no prejudice suffered by defendants as a result of plaintiffs’ failure to serve them with a docketing statement.

Finally, while we have found no jurisdictional defect or any prejudice resulting from plaintiffs’ failure to comply with the foregoing rules of appellate procedure, we would be remiss not to comment on such noncompliance. The supreme court rules are to be diligently adhered to in prosecuting and defending an appeal in this court. The rules are readily available and, in our opinion, easily understandable. In very few instances will there be an excuse in failing to comport with their requirements.

In turning to the substantive issues presented in this appeal, we initially discuss the procedures controlling defendants’ motion for a judgment in their favor. Section 2 — 1110 of the Civil Practice Law provides, in part:

“Motion in non-jury case to find for defendant at close of plaintiff’s evidence. In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered.” (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1110.)

In interpreting the verbatim forerunner of section 2 — 1110 (see Heller v. Jonathan Investments, Inc. (1986), 113 Ill. 2d 60, 71), our supreme court established the procedure and standard to be followed in a non-jury case by the trial court in considering a motion for a finding or judgment in favor of a defendant at the close of a plaintiff’s case in chief. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154.) The court must consider all the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences from the testimony and generally consider the weight and quality of the evidence. (Kokinis, 81 Ill. 2d at 154.) The court is not to view the evidence in a light most favorable to the plaintiff. (Kokinis, 81 Ill. 2d at 154.) If the plaintiff has failed to make out a prima facie case, that is, to present at least some evidence on every essential element of his cause of action, the defendant is entitled to judgment as a matter of law. Heller, 113 Ill. 2d at 71.

If the plaintiff has made out a prima facie case, however, then the court, as the trier of fact, must weigh the plaintiff’s evidence. (Kokinis, 81 Ill. 2d at 155.) The weighing process may result in the negation of some of the evidence necessary to the plaintiff’s case, or, on the other hand, sufficient evidence necessary to establish the prima facie case may remain. (Kokinis, 81 Ill. 2d at 155.) The court must enter judgment in favor of the defendant as to the former situation and deny such motion in the latter circumstances. (Kokinis, 81 Ill. 2d at 155.) The trial court’s decision to allow such a motion should not be reversed by the appellate court unless it is contrary to the manifest weight of the evidence. In re Doyle (1991), 144 Ill. 2d 451, 470.

In this case, in ruling upon defendants’ motion pursuant to section 2 — 1110, the trial court found that the easement created by the grant from the Donatellis was an easement in gross rather than an easement appurtenant and, therefore, such easement did not “run with the land.” Thus, because the easement did not run with the land, it could not be enforced against defendants, and they were accordingly entitled to judgment in their favor as to plaintiffs’ claims premised upon an alleged valid and enforceable easement across defendants’ property. While we must review the trial court’s decision consistent with the standards enunciated in Kokinis, we are not bound to accept the reasons given by the trial court for its judgment, and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.

The only theory upon which plaintiffs premised their claim at trial was that an easement appurtenant was allegedly created by the document executed by the Donatellis. Agreements imposing burdens on one estate for the benefit of another must be strictly construed. (D.M. Goodwillie Co. v. Commonwealth Electric Co. (1909), 241 Ill. 42, 72.) An instrument creating an easement is construed in accordance with the intention of the parties. (D.M. Goodwillie Co., 241 Ill. at 72; Koplin v. Hinsdale Hospital (1990), 207 Ill. App. 3d 219, 230.) Such intent is ascertained from the words of the instrument and the circumstances contemporaneous to the transaction, including the state of the thing conveyed and the object to be obtained. (Koplin, 207 Ill. App. 3d at 230.) To acquire an easement by grant, although no particular words are necessary, they must clearly show an intention by the grantor to confer an easement, and such terms must be definite, certain and unequivocal. Friedman v. Gingiss (1989), 182 Ill. App. 3d 293, 295-96.

An easement is a right or privilege in real estate of another, and, when exercised in connection with the occupancy of other land, it is considered appurtenant thereto. (Koplin, 207 Ill. App. 3d at 230.) The land benefitted by the easement is the dominant estate, and the burdened land is the servient estate. (Koplin, 207 Ill. App. 3d at 230-31.) If there is no dominant estate, there can be no easement appurtenant. (Waller v. Hildebrecht (1920), 295 Ill. 116, 122.) An easement appurtenant may not be extended by the owner of the dominant estate to accommodate other lands which he may own and for which the easement was not originally intended (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 388) because no one but an owner of land can create an easement over it (Heritage Standard Bank & Trust Co. v. Trustees of Schools (1980), 84 Ill. App. 3d 653, 657).

In the present case, the plaintiffs claim an easement appurtenant inuring to the benefit of their property was created by the following document:

“UTILITY EASEMENT
INDENTURE made this 8th day of July, 1977 between Grantors, GEORGE R. DONATELLI and SONDRA DONATELLI, his wife, and Grantees, JOHN B. STERN and ANNE STERN, his wife, and their successors and assigns:
WITNESSETH, that in consideration of the sum of ($10.00) Ten Dollars and other good and valuable consideration, receipt whereof is hereby acknowledged, the said GEORGE R. DONATELLI and SONDRA DONATELLI grant to the said JOHN B. STERN and ANNE S. STERN, his wife, a utility easement over the following portion of the West half of Lot 4 in Walter P. Quinn’s Resubdivision, being a subdivision in Sections 2 and 11, Township 38 North, Range 10, East of the Third Principal Meridian, according to the Plat thereof recorded December 3, 1959 as Document 949395:
A non-exclusive access right to the North 10 feet of the West half of Lot 4; the South 20 feet of the West half of Lot 4; and the East 10 feet of the West half of Lot 4 as utility easements for the installation, maintenance, relocation, renewal and removal of manholes, inlets, catch basins, vaults, electrical and communications conduits, cables, wires, pedestals, transformers sanitary lines and appurtenances, storm sewer lines and appurtenances, watermains and appurtenances, cable antenna, and all other equipment and appurtenances necessary for the purposes of providing the property and adjacent property with telephone, electrical, sanitary, storm, water and television services, under and upon said areas.
IN WITNESS WHEREOF, we hereby set our hands and seals.
1st George R. Donatelli (Seal) George R. Donatelli
Isl Sondra Donatelli (Seal)
Sondra Donatelli”

This document does not create a valid easement appurtenant, however, because it fails to set forth, with definite, certain and unequivocal terms, the nature and extent of such easement. While it purports to create a utility easement “for the purpose of providing the property and adjacent property” with such utility services, it does not identify specifically the property (dominant estate) which the easement would benefit. There is no legal description, or any other description, of the dominant estate. It is impossible to discern from the document what is meant by “the property and adjacent property.” An owner of land cannot claim an easement over his land for his own benefit. (Beloit Foundry Co., 28 Ill. 2d at 389.) Thus, the only reasonable inference is that the word “property” must refer to property other than that acquired by the grantors, the Donatellis. That being the case, “adjacent,” which is defined as “[Ijying near or close to” (Black’s Law Dictionary 41 (6th ed. 1990)), takes on unlimited possibilities as to its location. Furthermore, even if we inferred that “property” referred to the Donatellis’ parcel, “adjacent property,” without more, is no less imprecise as to its location and description. While a parcel need not be adjacent to the servient estate to properly constitute a dominant estate, it must nevertheless be identifiable.

George Donatelli testified during plaintiffs’ case and denied having had any discussion with John Stern prior to July 8, 1977, pertaining to any easement. He also denied ever discussing with Stern whether Stern had plans to develop the property adjacent to his, nor did he know of any plans Stem had to develop the property. Donatelli had nothing to do with preparing the grant of the easement and merely glanced at it prior to signing it.

John Stem identified the document granting the easement as a “utility easement that we drew up for a piece of property that [he] sold to” the Donatellis. It was drafted at Stem’s direction on July 8, 1977, the date of the closing. According to Stem, the easement needed to be completed prior to filing the plat for the John B. Stern resubdivision. Stem testified that he had conversed with the Donatellis prior to their purchasing the property and told them that an easement was needed over their property so Stem could access Elm Street for the purpose of converting water and sewer lines when the remaining property was subdivided.

On cross-examination, Stern stated that the property was in a land trust on July 8, 1977, yet he did not designate the trastee as the grantee. Rather, he used his and his wife’s names but not intentionally. Significantly, there is no mention of an easement in the purchase contract between the Donatellis and the Sterns. He explained that he orally advised the Donatellis that they would have to sign an easement at closing. On redirect examination, Stem testified that he did not intend the easement to be personal to him and his wife.

Donatelli’s testimony fails to establish any intent on the part of himself and his wife to grant an easement benefitting any particular piece of property. While Stem testified that he told Donatelli that the easement was for the benefit of Stem’s subdivision, there was no indication to that effect in the written contract to purchase between the Stems and Donatellis. Furthermore, Stern did not testify that Donatelli had any knowledge of the nature and extent of Stem’s subdivision such that we can conclude that Donatelli intended to grant an easement for the benefit of the subdivision.

Plaintiffs failed to establish, prima facie, that the document allegedly granting an easement did in fact grant one inuring to the benefit of the subdivision. While Stem’s testimony arguably supports a finding that the Donatellis knew that the easement was to benefit the subdivision, there is no evidence that the Donatellis intended to grant such an easement in light of the document’s failure to specify the subdivision, the absence of any mention of an easement in the contract of purchase and George Donatelli’s testimony that no discussions of any easements occurred prior to Stern presenting him with the document on the day of the closing. The failure to establish the existence of a valid, enforceable easement compelled the entry of judgment in favor of defendants’ on plaintiffs’ claim. The trial court’s decision to enter judgment in favor of defendants, while based on slightly different reasoning from ours, was not against the manifest weight of the evidence. Due to our disposition of this appeal based on the foregoing, we need not address the remaining issues.

For the above reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE HENRY LEWIS

license: Public Domain

text:
    JESSE MURPHY, Special Adm’r of the Estate of David Murphy, Deceased, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—91—0204
    Opinion filed August 3, 1992.
    William Kent Brandon and Christy W. Solverson, both of Brandon & Schmidt, of Carbondale, for appellant.

      Gordon Lambert, of Harris & Lambert, of Marion, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

Plaintiff, Jesse Murphy, special administrator of the estate of David Murphy, his natural son, instituted a declaratory judgment action seeking an order by the trial court that the two automobile insurance policies purchased by the plaintiff from the defendant, State Farm Mutual Automobile Insurance Company, provided coverage under his uninsured motorist provisions for his son’s death on September 14, 1987. At issue is whether David was a “relative” of the plaintiff as that term was defined in the plaintiff’s insurance policies and, thus, an insured at the time of his death. The circuit court found that the insurance policies provided by the defendant to the plaintiff were ambiguous, and that the plaintiff was entitled to benefits under the uninsured motorist provisions in each policy. The court further determined that David was living with the plaintiff at the time of his death, and this fact also entitled the plaintiff to benefits under the policies. The defendant appeals from the circuit court’s judgment. We affirm.

The facts are not in dispute. On October 1, 1982, the defendant issued to the plaintiff an automobile insurance policy (policy No. 2115 — 077—A24—13B) covering a 1983 Cadillac Deville owned by the plaintiff. On May 17, 1984, the defendant also issued to the plaintiff a second automobile insurance policy (policy No. 6918 — 333—D24—13B) covering a 1983 CMC pickup truck owned by the plaintiff. Under both of these policies, the plaintiff had uninsured motorist coverage, and the pertinent language under the uninsured motorist provisions of each policy was identical. Both policies stated that an “insured” under the uninsured motorist provisions was the first person named in the declarations, his or her spouse, and their relatives. Similarly, both policies defined “relative” as follows:

“Relative — means a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school.” (Emphasis added.)

When the plaintiff’s two policies were issued, David lived with the plaintiff in a house owned by the plaintiff at 1002 West Broadway in Johnston City, Illinois. The evidence presented at the hearing on the complaint for the declaratory judgment also established that David had lived with the plaintiff continuously from the time the insurance policies were issued until June 20, 1987.

On June 20, 1987, the plaintiff remarried. His new wife, Mildred, lived in a house owned by her at 1006 Hobbs Street, also in Johnston City, Illinois. After his remarriage, the plaintiff and his new wife spent considerable time camping, but when in Johnston City, the plaintiff slept and ate his meals with his wife at her home. The only items the plaintiff removed from his home at 1002 West Broadway to his wife’s home following his marriage were some of his summer clothing, two or three long-sleeved shirts for cool weather, and a chest of drawers.

Although the plaintiff ate his meals and slept at his new wife’s home after their marriage, the plaintiff testified at the hearing on his complaint that he went to his home practically every day to see his son, who continued to reside in the plaintiff’s home. In fact, David had never married and had lived with the plaintiff in the plaintiff’s home since his birth in 1957. Additionally, the plaintiff explained that because David’s driver’s license was suspended, he drove David to and from his part-time job, drove David to see his probation officer, and shopped and paid for groceries for David whenever the plaintiff and his wife were in Johnston City. The plaintiff stated that David lived in the plaintiff’s home rent-free, but that David mowed the lawn and did the housekeeping for the plaintiff. David also would clean cars for other persons, and when he did so, David used the plaintiff’s garage and cleaning materials provided by the plaintiff. According to the plaintiff, he paid the utility bills and the taxes, and he also made the necessary repairs on the house. The plaintiff explained that he and his wife stayed at his wife’s home when they were in Johnston City, as his wife and David did not get along with each other.

On September 14, 1987, approximately three months after the plaintiff’s remarriage, David was a passenger in a car owned by Terry Gower when the car was struck by a vehicle owned and operated by Charles Hodges, an uninsured motorist. David died as a result of this accident. David was 28 or 29 years of age at the time of his death. The plaintiff made a claim for benefits for his son’s death under the uninsured motorist provisions of both of his insurance policies issued by the defendant, which provided for benefits in the amount of $50,000 per person per accident under each policy or a total of $100,000. The defendant refused to pay the plaintiff benefits, as it was the defendant’s position that, although David was related to the plaintiff by blood, he was not living with the plaintiff at the time of the accident which caused his death, and therefore, he was not a relative as that term was defined in the policies and thus not an insured. Subsequently, the plaintiff filed his complaint for declaratory judgment against the defendant to determine if David was an insured and whether the estate was entitled to uninsured motorist coverage under the plaintiff’s policies. As was noted previously, the court found that the definition of “relative” in the defendant’s insurance policies issued to the plaintiff was ambiguous because the definition failed to state when David had to be living with the plaintiff, at the time the policy was issued or when the accident occurred. The court further held that David was living with the plaintiff at the time of the accident and was an insured under the plaintiff’s insurance policies.

On appeal, the defendant contends (1) that the court erred in finding that the term “relative” defined in the insurance policies was ambiguous, and (2) that the court erred in finding that David Murphy was an insured under the plaintiff’s insurance policies because he lived with the plaintiff at the time of the accident. In the defendant’s first issue, the defendant argues that the term “relative” is not ambiguous when the phrase “live with” is given its plain, ordinary meaning. The defendant also asserts that it is not required to state when a relative must live with an insured to be covered under a policy, since the case law establishes that coverage under an insurance policy is determined at the time of the accident.

Construction of an insurance policy presents only a question of law. (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 492 N.E.2d 504; State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) When interpreting an automobile insurance policy, the rules governing interpretation require the court to effectuate the intent of the parties. (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 492 N.E.2d 504.) Where the terms of a policy are clear and unambiguous, the language used will be given its plain meaning; however, if a provision is subject to more than one reasonable interpretation, it is ambiguous and should be construed against the insurer and in favor of the insured. (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 492 N.E.2d 504.) Additionally, ambiguity is not limited to grammatical imprecision of the policy, for the particular factual setting of the insurance policy provides a framework for determining if the policy as executed is consistent with the intent of the parties. (Goss v. State Farm Mutual Automobile Insurance Co. (1986), 147 Ill. App. 3d 866, 498 N.E.2d 562.) Further, ambiguous provisions with which an insurer seeks to limit its liability are construed most strongly against the insurer. Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 492 N.E.2d 504.

The reasons behind the rules of interpreting an insurance policy are twofold: (1) an insured’s intent in obtaining insurance is to have coverage, and thus, any ambiguity jeopardizing coverage should be construed consistent with the insured’s intent, and (2) it is the insurer who is the drafter of the policy, and the insurer could have drafted the ambiguous provision clearly and specifically. (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 492 N.E.2d 504.) Here, we find that the phrase “live with” found in the definition of the term “relative” used in the insurance policies issued by the defendant was ambiguous under the factual circumstances presented in this case.

From the time the defendant issued the insurance policies to the plaintiff until June 20, 1987, the plaintiff was living continuously with his son David. The plaintiff had paid the defendant for coverage against uninsured motorists at all times relevant while living with David, so it must be inferred that it was the plaintiff’s intent to obtain coverage. Further, it is a reasonable inference that the insurer would be aware of who was living in the plaintiff’s home who presented potential liability, so that the defendant would have knowledge of the risk to which it was exposed at the time a policy was issued or renewed. Additionally, although the case law states that coverage under a policy is determined at the time of an accident (Coley v. State Farm Mutual Automobile Insurance Co. (1989), 178 Ill. App. 3d 1077, 534 N.E.2d 220), the defendant’s policies did not state this when it used the phrase “live with,” and a lay person should not have to resort to research in the case law to know what his coverage under a policy is. Moreover, as the drafter of the policies, it would have been a simple matter for the defendant to include language in the policies as to when a person must be living with the named insured in order to have coverage under the policy. Because the definition of the term “relative” is ambiguous under the facts in this case, the ambiguity must be resolved against the defendant and in favor of the plaintiff. Because of our resolution of the ambiguity issue, we need not consider the defendant’s argument that the court erred in determining that David lived with the plaintiff at the time of his accident.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed.

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE HARRISON

text:
    THE DEPARTMENT OF CONSERVATION, Plaintiff-Appellant, v. ELMER NEVOIS et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0566
    Opinion filed September 17, 1992.
    Kevin T. Hoerner, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, for appellant.
    Earl H. Sachtleben, of Nehrt, Sachtleben, Fisher, Smith & Kerkhover, of Red Bud, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

The Department of Conservation of the State of Illinois (the Department) appeals from a judgment of the circuit court of Randolph County which reformed certain quitclaim deeds on grounds of mutual mistake to reflect that a disputed parcel of land was not, in fact, owned by the Department’s predecessor in title and therefore could not have been validly conveyed to the Department. Two issues are presented for our review: (1) whether the circuit court’s finding of mutual mistake was contrary to the manifest weight of the evidence, and (2) if not, whether the circuit court should nevertheless have denied reformation on the grounds that the Department was a bona fide purchaser for value without notice of the mistake or of facts which should have put it on inquiry. For the reasons which follow, we reverse and remand.

The record before us established that a woman named Lucy Blow once owned a farm near Fort Chartres in Randolph County. The farm was divided into six tracts, which were referred to at trial as the Yellow, Green, Pink, Blue, Orange and Brown Parcels. The Yellow Parcel was on the north side of Illinois Route 155, while the Green, Pink, Blue, Orange and Brown Parcels were on the south side. All five southern parcels were contiguous and consisted primarily of farmland.

The Green Parcel, which contained a farmhouse and other improvements, was conveyed by Lucy Blow to her daughter, Augusta Nevois, in 1931. Augusta later acquired the Yellow Parcel as well, receiving it under a master’s deed executed after her mother’s death. In a separate master’s deed executed at the same time, the Orange, Brown, Blue and Pink Parcels were conveyed to both Augusta and her brother, Edgar Blow. Shortly thereafter, Edgar Blow quitclaimed to Augusta his interest in the Pink Parcel, which bordered the Green Parcel she already owned. Simultaneously, Augusta quitclaimed to Edgar Blow her interest in the Blue, Orange and Brown Parcels.

Following execution of the pertinent quitclaim deeds, which occurred on July 28, 1955, Augusta was thus left with title to the Yellow, Green and Pink Parcels, while Edgar Blow held title to the Blue, Orange and Brown Parcels. In 1971, Edgar Blow decided to sell his three parcels to the Department for $34,000. After the sale, the Department leased the parcels back to Blow so that he could continue farming them. The Department also petitioned for and obtained tax-exempt status from Randolph County for the property. We note, parenthetically, that a corrected deed later had to be executed by Blow to eliminate a scrivener’s error discovered by the Department, but the correction was purely technical in nature. No additional consideration was paid by the Department, and the revision did not affect the particular parcel which is the subject of this dispute.

In the mid- to late 1970’s, the Department initiated negotiations with the Nevois family to purchase the Green and Pink Parcels for inclusion in the Fort Chartres State Park. In the course of the negotiations the Nevois family suggested that the Department also buy the Blue Parcel from it. When the Department protested that it already owned this parcel by virtue of its 1971 purchase from Edgar Blow, negotiations broke off, and the Department commenced this litigation to acquire the Green and Pink Parcels by condemnation (Ill. Rev. Stat. 1979, ch. 47, par.l et seq.).

In the course of the condemnation proceeding, the Nevois family cross-petitioned for a determination by the court as to ownership of the Blue Parcel. Although its cross-petition did not so specify, the precise relief it requested was an order by the court reforming, on grounds of mutual mistake, the July 28, 1955, quitclaim deeds executed by and between Augusta Nevois and Edgar Blow in order to show that Augusta, and not Blow, had been the true owner of the Blue Parcel. The circuit court ultimately granted that relief following a bench trial. It subsequently made an express written finding that there was no just reason for delaying enforcement or appeal (134 Ill. 2d R.304(a)), and the Department now appeals.

As grounds for its appeal, the Department first contends that the circuit court’s determination that defendants were entitled to reformation of the deeds based on mutual mistake is contrary to the manifest weight of the evidence. We agree. The legal standard governing reformation of deeds is well established. A court of equity will reform a deed to correct a situation where the parties intended to say a certain thing and, by mistake, expressed another, provided that the mistake was mutual and common to the parties and was in existence at the time the deed was prepared and executed. The law presumes, however, that the parties’ mutual intention is what is expressed in the document itself. That presumption will not easily yield to any claim that the parties’ intention was different. (Tope v. Tope (1938), 370 Ill. 187, 191, 18 N.E.2d 229, 231.) Accordingly, the quantum of evidence required to reform a written instrument is substantial. A preponderance of the evidence will not suffice. Rather, the evidence must “leav[e] no reasonable doubt as to the mutual intention of the parties.” (Pulley v. Luttrell (1958), 13 Ill. 2d 355, 358, 148 N.E.2d 731, 733.) That standard was not met here.

The Nevois family claims that when Augusta and Edgar Blow issued quitclaim deeds to one another in 1955, their intention was for Augusta, and not Blow, to take the Blue Parcel. According to the Nevois family, neither Augusta nor Blow (nor their respective spouses, who were also signatories to the quitclaim deeds) realized that the deeds failed to effectuate this distribution of the property. By the time this dispute arose, however, the only surviving signatory to the deeds was Helisy Blow, Edgar’s widow. Helisy stated that after the quitclaim deeds were exchanged, her husband never claimed any interest in the Blue Parcel. She also admitted, however, that her husband handled the exchange of the quitclaim deeds with Augusta in 1955 and that she really knew nothing of the details of the transaction.

Lacking more definitive direct evidence, the Nevois family attempted to establish the existence of a mutual mistake circumstantially by adducing testimony which indicated that after 1955, the Blue Parcel was farmed by Augusta’s husband and his tenant, not by Edgar Blow. Most of those who gave this testimony, however, were members of the Nevois family itself, and their claim of exclusive possession was not unrefuted. To the contrary, documentary evidence established that Edgar Blow undeniably claimed an interest in the Blue Parcel when he sold it to the Department. Indeed, in an affidavit which he executed as a condition of the sale, Blow specifically recited that he was in exclusive possession of the property.

One might argue that in executing the sale documents to the Department, Edgar Blow once again simply did not appreciate what he was conveying. We note, however, that while the legal descriptions of the parcels might not have been intelligible to him (or to any layperson for that matter), the fact remains that the sales documents executed in favor of the Department specifically refer to three separate and distinct parcels, not just two. If Edgar Blow did not realize that the third tract was the Blue Parcel, which it was, what, then, did he believe he was selling? The Nevois family offers no alternatives, and the record gives no indication that Blow owned any other property in the immediate vicinity of Fort Chartres State Park. Under these circumstances, the only possible explanation for Blow’s conduct which can be squared with the Nevois family’s claim of mutual mistake is that he knowingly attempted to sell the Department property which he realized was not supposed to belong to him, i.e., that he was perpetrating a fraud. Not even the Nevois family is willing to levy such a serious charge here. The circuit court’s judgment granting reformation must therefore be reversed.

The Department argues, in the alternative, that even if the evidence here had been sufficient to establish mutual mistake of fact, the circuit court should nevertheless have denied reformation because the Department was a bona fide purchaser of the Blue Parcel. Again we agree. Equity will not reform a deed against subsequent bona fide purchasers for value who have no notice of the mistake or of facts which should put them “on inquiry.” (Pulley v. Luttrell (1958), 13 Ill. 2d 355, 358, 148 N.E.2d 731, 733.) Although the Nevois family does not dispute that the Department was, in fact, a bona fide purchaser for value, it asserts, as it did at trial, that the Department should have been placed on notice of its competing claim of ownership at the time the purchase was consummated. The Nevois family bases its argument on the proposition that if the Department had only made a physical inspection of the Blue Parcel, it would have readily discovered that land was actually being farmed by the Nevois family. The evidence does not support such a claim.

The Blue Parcel was contiguous to the Orange and Brown Parcels, and all three were under cultivation and unimproved. There was nothing obvious or observable to differentiate them. The Nevois family attempts to make much of the fact that the Blue Parcel is separated from the Orange and Brown Parcels by a road, but it is a township road. Standing alone, a township road is a purely neutral feature, like a rock, or a stream, or a tree. The only acts of dominion or control it reflects are those of the township in constructing it. It tells us nothing about the claims of ownership over the property which it borders. Accordingly, one cannot necessarily assume that property on one side of a township road has a different owner than property on the other side. That this is so is apparent when one considers that before any of this land was conveyed to Edgar Blow and Augusta by the master’s deeds in 1955, the property on both sides of the road unquestionably belonged to only one person, their mother, Lucy Blow.

The only other evidence of consequence the Nevois family can point to is the testimony of Mildred Steibel, who stated at trial that a Nevois family tenant who allegedly cultivated the Blue Parcel “raised a nice clean crop where the other one [i.e., the crop on the Orange Parcel] wasn’t too good a lot of times” in that it had “a lot of Johnson grass, weeds.” We are unwilling to hold, however, that occasional differences in weed infestation are sufficient to place a prudent person “on inquiry” that there might be a problem with ownership. In addition to being largely subjective, such a standard would require prospective purchasers of multiple contiguous tracts of farmland to systematically monitor the property prior to sale for evidence that the various parcels were being cultivated in a consistent fashion over time. We know of no precedent for imposing such an onerous burden. For purchasers such as the Department, which engages in substantial land acquisitions in far-flung comers of the State, meeting that burden could well prove to be prohibitively difficult and costly.

For the foregoing reasons, the deeds at issue here should not have been reformed. Accordingly, the judgment of the circuit court of Randolph County is reversed, and this cause is remanded for further proceedings with respect to the Department’s condemnation action.

Reversed and remanded.

H. LEWIS and WELCH, JJ., concur.


author: JUSTICE BOWMAN JUSTICE NICKELS,

text:
    CHRISTOPHER PATSIS, Plaintiff-Appellant, v. ZION-BENTON TOWNSHIP HIGH SCHOOL, No. 126, et al., Defendants-Appellees.
    Second District
    No. 2—91—0908
    Opinion filed September 3, 1992.

      NICKELS, J., specially concurring.
    Robert A. Clifford, Robert P. Sheridan, and Keith A. Hebeisen, all of Robert A. Clifford & Associates, of Chicago, for appellant.

      Wayne F. Plaza and Carolyn N. Offenbach, both of Rooks, Pitts & Poust, of Chicago, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Christopher Patsis, appeals the order of the Lake County circuit court which granted the motion of defendant, Zion-Benton Township High School District No. 126 (Zion-Benton), to dismiss the cause with prejudice. Plaintiff contends that defendant waived its statute of limitations defense when it filed a contribution action against him in another pending suit regarding a claim which arose from the same occurrence. Plaintiff also argues that the trial court abused its discretion by denying his motion to dismiss his complaint voluntarily when plaintiff sought to refile his action in the other pending suit.

This litigation involves an accident that occurred on April 6, 1989. Bobby Lane Taylor was a passenger in plaintiff’s car and sustained injuries when plaintiff’s car collided with defendant’s school bus, which was operated by Kay Marie Niemi. Taylor filed a lawsuit against defendant and Niemi in the circuit court of Lake County, case No. 90 — L—436 (hereinafter referred to as the Taylor proceeding), which is not included in the record before this court.

On October 9, 1990, plaintiff filed the action which is the subject of this appeal. He alleged that Zion-Benton and Niemi were negligent for failing, inter alia, to stop at a stop sign. Plaintiff sought damages for injuries that he himself suffered. On December 27, 1990, Zion-Benton filed a motion to vacate any defaults and a motion to dismiss the cause on the ground of the statute of limitations. The one-year period for filing suit against public entities specified in section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 8—101) had expired. In response, plaintiff filed a motion to dismiss voluntarily under section 2— 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—1009) for the reason that another action was pending concerning the same facts. Plaintiff attached an undated copy of Zion-Benton’s third-party complaint in cause No. 90 — L—436, in which it sought contribution against plaintiff for any liability it had for Taylor’s injuries. Zion-Benton alleged in its third-party complaint that plaintiff was negligent in failing, inter alia, to decrease his speed.

The trial court did not permit plaintiff to dismiss his complaint but instead granted Zion-Benton’s motion to dismiss it involuntarily with prejudice. After plaintiff obtained service of process on Niemi, she filed a motion to dismiss on the ground of the statute of limitations. The trial court granted her motion, and plaintiff filed his timely notice of appeal pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301) concerning both dismissal orders.

Plaintiff contends that the trial court abused its discretion by denying his motion for a voluntary dismissal. Plaintiff also contends that Zion-Benton waived the statute of limitations defense when Zion-Benton filed its third-party complaint against him in the Taylor proceeding. Plaintiff also attempts to argue that the trial court’s judgment was unjust based on events outside the record. Plaintiff asserts that Zion-Benton is attempting to dismiss his third-party counterclaim in cause No. 90 — L—436, the Taylor proceeding, on the ground of res judicata based on the judgment in the cause before this court. This fact is not in the record and cannot be considered by this court. If plaintiff suffers prejudice from an improper application of the doctrine of res judicata in cause No. 90 — L—436, he must move for a finding that there is no just cause to delay enforcement or appeal of the dismissal of his third-party counterclaim; he may then file an appeal under Rule 304(a) (134 Ill. 2d R. 304(a)) rather than wait until the end of the litigation. We have no jurisdiction over the Taylor proceeding (Lee v. Pavkovic (1983), 119 Ill. App. 3d 439, 444), and we have no record to support a review of the issues in that case (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92).

Plaintiff argues that Zion-Benton waived the application of the statute of limitations and cites section 13 — 207 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13—207), which provides that a defendant may plead a setoff or a counterclaim barred by the statute of limitations to any action raised by the plaintiff. One purpose of section 13 — 207 is to protect parties who have shorter limitations periods than their opponents. (See Wood Acceptance Co. v. King (1974), 18 Ill. App. 3d 149, 151.) Zion-Benton argues that section 13 — 207 does not apply because plaintiff filed as the first party in an original proceeding and not as a second party with a counterclaim.

Zion-Benton also argues that plaintiff waived the application of section 13 — 207 because he failed to raise it before the trial court. (See Cuerton v. American Hospital Supply Corp. (1985), 136 Ill. App. 3d 231, 238-39.) Instead, plaintiff had moved for an enlargement of time to respond to Zion-Benton’s motion to dismiss as an alternative to his motion to dismiss voluntarily. The doctrine of waiver acts as an admonition to the parties rather than a limitation on the court. (People v. Hoskins (1984), 101 Ill. 2d 209, 219.) Because the record is sufficient to support a discussion of the statute, and we cannot avoid discussing the equitable issues without reference to the statute, we may discuss the statute. See Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 142.

We agree that plaintiff could not take the benefit of the statute in the instant action. Section 13 — 207 is a remedy that was not available to him in the instant action but is available in an action where he is defending. (See Helle v. Brush (1973), 53 Ill. 2d 405, 409 (fundamental fairness requires allowance of counterclaim against a public entity in spite of the shorter period of section 8 — 101).) In addition, plaintiff did not file his complaint to seek contribution, as he was not being sued at the time, and he could not apply section 13 — 204 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13— 204), which provides for a two-year statute of limitations for contribution claims. His right to contribution against Zion-Benton, if any, did not accrue until Zion-Benton filed its third-party claim against him in the Taylor proceeding. (Highland v. Bracken (1990), 202 Ill. App. 3d 625, 633.) Zion-Benton was required to file its claim for contribution in the Taylor proceeding because that cause was already pending. (See Laue v. Leifheit (1984), 105 Ill. 2d 191, 195.) In that action, plaintiff has a right to file a third-party counterclaim and to raise section 13— 207, which was not available in the instant action.

We have found no direct authority to support plaintiff’s argument that his claim may survive in an original proceeding when the adverse party has filed a claim against him in another proceeding. With liberal joinder provisions and mandatory counterclaims, and with the reluctance of attorneys to file complaints which may fall prey to the statute of limitations, the issue seldom arises. Plaintiff cites Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, where one defendant, Coleman, contended a counterclaim for contribution filed by another defendant, Henrici, was barred by the statute of limitations. This defense of Coleman had been waived when he filed a claim for contribution against Henrici; it remained waived even after Coleman’s claim was later dismissed. (121 Ill. App. 3d at 33-34.) However, in Ogg, the counterclaim was raised within the pending suit and not as a new cause of action.

In essence, plaintiff does not rely upon section 13 — 207 itself but upon general rules of equity and estoppel in arguing that his claim should survive when his opponent has filed a claim against him. Plaintiff contends that once Zion-Benton filed its third-party claim for contribution, it waived the application of the statute of limitations for claims against itself; that the waiver was irrevocable (see Ogg, 121 Ill. App. 3d at 33); and that plaintiff’s claim is no longer barred. Plaintiff cites cases where the statute of limitations has been deemed waived based on the opponent’s actions outside the subject of the litigation. (E.g., Tri-City Jewish Center v. Blass Riddick Chilcote (1987), 159 Ill. App. 3d 436, 440.) Waiver is the relinquishment of a right by conduct inconsistent with an intent to enforce the right. (Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill. App. 3d 526, 531.) A public entity may waive some benefits of the Tort Immunity Act’s limitations of actions when it initiates an action against a party with an otherwise barred claim. (Helle, 53 Ill. 2d at 410.) While ultimately we do not need to decide whether Zion-Benton waived the statute of limitations because we resolve plaintiff’s other issue on appeal, we discussed it because it explains the equities involved in the other issue.

Plaintiff also contends that the trial court abused its discretion in not granting his statutory right to dismiss his complaint voluntarily. Section 2 — 1009 of the Code of Civil Procedure gives a plaintiff the unfettered right to dismiss his action without prejudice at any time prior to trial. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1009.) To avoid potential abuses arising from the use of this statute, the supreme court decided that a trial court may consider a previously filed dispositive motion before allowing the plaintiff’s motion to dismiss. (Gibellina v. Handley (1989), 127 Ill. 2d 122, 138.) The trial court is endowed with the discretion to consider the prior motion and must strike a balance between the legislative grant to plaintiffs of an unfettered right to dismiss voluntarily and the abuse which that unfettered right has engendered from some plaintiffs. (Mizell v. Passo (1992), 147 Ill. 2d 420, 425.) The court in Gibellina did not establish a set of guidelines but left the decision to the trial court’s discretion. (Mizell, 147 Ill. 2d at 425.) In Mizell, the trial court did not abuse its discretion when it allowed the plaintiff to withdraw his complaint when he cotdd not supply the medical affidavit required in his cause in a timely fashion. 147 Ill. 2d at 426-27; cf. McDaniel v. St. Elizabeth’s Hospital (1991), 213 Ill. App. 3d 103, 107 (motion to dismiss is not an abuse where proceedings were not advanced).

It is clear that plaintiff did not file his motion to dismiss for any abusive purpose. He noted that another action was pending which was a better, if not required, forum for the consideration of his claim and that the consideration of his claim in that action would serve judicial economy. In addition, the other proceeding would provide a decision on the merits of his action against Zion-Benton since Zion-Benton had filed a claim against him arising out of the same occurrence. In Gibellina, the supreme court permitted the consideration of potentially dis-positive motions when to do so would prevent plaintiffs from using the nonsuit statute to avoid an adverse ruling on the merits of the cause rather than using it to correct a procedural or technical defect. (Gibellina, 127 Ill. 2d at 137.) In the instant cause, if Zion-Benton has a valid statute of limitations defense, Zion-Benton can raise it just as well in the other action; thus, plaintiff was not abusively avoiding an adverse ruling by seeking a nonsuit. Rather, he was seeking to correct a procedural or technical defect, which underlies the very purpose of the common-law procedure of nonsuit codified in section 2 — 1009. The motion would not have increased the burden on the crowded docket. (See Gibellina, 127 Ill. 2d at 137.) This was not a case where the parties conducted extensive discovery, incurred substantial costs or suffered undue prejudice from the proceedings prior to the motion for a nonsuit. (McDaniel, 213 Ill. App. 3d at 107.) Therefore, we hold that the trial court abused its discretion in considering Zion-Benton’s motion to dismiss prior to plaintiff’s right to nonsuit his cause.

In contrast, not allowing the motion for a voluntary dismissal would result in an abuse of process. The statute of limitations is an affirmative defense to a proceeding and applies only when raised by a party; the party asserting it has the burden to show it applies. (C.S. Johnson Co. v. Champaign National Bank (1984), 126 Ill. App. 3d 508, 511. But see People ex rel. Foreman v. Village of Round Lake Park (1988), 171 Ill. App. 3d 443, 450 (failure to plead an affirmative defense does not constitute waiver if the defense is raised before trial).) Thus, a plaintiff may bring an action which may be later dismissed under the statute of limitations. It would then be inequitable to allow the former defendant to initiate a new suit and be free from a counterclaim and setoff arising from the same occurrence on the ground that the counterclaim was previously barred. This result would be egregious — especially when the defendant’s action was pending at the time of the dismissal of the plaintiff’s action. Thus, plaintiff’s non-suit in the cause before the court was an attempt to avoid an abuse of process rather than an abuse of process itself.

Here, plaintiff could have filed a motion to consolidate the causes under section 2 — 1006 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1006) or sought to join the Taylor proceeding under section 2 — 614 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 614). The Code provides that seeking the wrong remedy is not fatal (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 617) and that the Code is to be liberally construed (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 106). The purpose of the Code is to provide substantial justice and a resolution on the merits rather than to impose procedural hurdles to litigation. (Adams v. Klink (1991), 210 Ill. App. 3d 630, 637; Wolf v. Meister-Neiberg, Inc. (1990), 194 Ill. App. 3d 727, 730-31.) Plaintiff’s attempt to nonsuit his cause and refile it in the more appropriate proceeding would have accomplished the same goals as a consolidation or joinder. Thus, the trial court should have allowed the motion to dismiss voluntarily.

Finally, plaintiff acknowledges that his arguments concerning Zion-Benton’s waiver of the statute of limitations do not apply to Niemi as she did not initiate a proceeding against him; thus, plaintiff could not file a counterclaim against her other than one for contribution. When he moved to dismiss voluntarily, she had not filed a dispositive motion against him, and she had not appeared. However, when plaintiff moved to dismiss his cause voluntarily, the court would have dismissed the whole cause. Since the cause would have been dismissed prior to her appearance and her motion to dismiss involuntarily, the order of July 10,1991, granting her motion must be vacated.

For the above reasons, the order of the circuit court of Lake County is reversed, and the cause is remanded for entry of the proper orders consistent with this disposition.

Reversed and remanded.

INGLIS, P.J., concurs.

JUSTICE NICKELS,

specially concurring:

After expressly rejecting consideration of any matters outside the record, but nevertheless discussing the equities of this case in detail, the majority correctly concludes that the circuit court abused its discretion in failing to rule on plaintiff’s motion to dismiss voluntarily prior to granting defendant’s motion to dismiss with prejudice. However, in succumbing to the lure of equitable considerations, the majority overlooks the narrow parameters within which a circuit court may exercise such discretion.

Although a circuit court has the discretion to decide a previously filed dispositive motion prior to a motion to dismiss voluntarily, the exercise of such discretion is limited to only those instances necessary to prevent abuse of the voluntary dismissal process. (Gibellina, 127 Ill. 2d at 137-38.) Therefore, if the initial determination finding such abuse of the voluntary dismissal process is against the manifest weight of the evidence, the circuit court has exceeded the limits of its discretion. See Mizell, 147 Ill. 2d at 425-26.

In this instance, plaintiff sought voluntarily to dismiss his claim and, although not required to do so, expressly explained in his motion that the reason he was seeking voluntary dismissal was that another action was pending concerning the same facts. Thus, there is nothing in the record to support the conclusion that this was an instance of abuse of the voluntary dismissal process, and, in fact, the record belies such conclusion. Any finding that this was an abuse of the voluntary dismissal process is, therefore, necessarily against the manifest weight of the evidence, and it is unnecessary to delve into the equitable considerations presented to find that the circuit court abused its discretion in failing to rule on plaintiff’s motion for voluntary dismissal prior to defendant’s dispositive motion.


author: JUSTICE McLAREN

text:
    MID-NORTHERN MANAGEMENT, INC., Plaintiff-Appellee, v. LEZLEY HEINZEROTH, Defendant-Appellant.
    Second District
    No. 2—91—1338
    Opinion filed September 4, 1992.

      Kerry R. O’Brien, Catherine Ritts, and Bernard Shapiro, all of Prairie State Legal Services, Inc., of Rockford, for appellant.

      Marc C. Gravino and Stephen E. Balogh, both of Williams & McCarthy, P.C., of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Lezley Heinzeroth, appeals the judgment of the circuit court in favor of plaintiff, Mid-Northern Management, Inc., on its forcible entry and detainer complaint. The court held that plaintiff is entitled to possession of the subject apartment due to defendant’s material noncompliance with the lease. On appeal, defendant contends that her conduct did not constitute a material breach. We reverse.

Defendant and her seven-year-old son, Rorey, are tenants of plaintiff’s Wildberry Village apartment complex, occupying apartment 303 at 5717 Forest Hills Road. The unit is a section 8, federally subsidized rental unit.

The lease between the parties provided, in relevant part:

“The Tenant shall use the premises only as a private dwelling for himself/herself and the individuals listed on the Certification and Recertification of Tenant Eligibility. The Tenant agrees to permit other individuals to reside in the unit only after obtaining the prior written approval of the Owner.
* * *
The Tenant agrees *** not to make or permit noises or acts that will disturb the rights or comfort of neighbors. The Tenant agrees to keep the volume of any radio, phonograph, television or musical instrument at a level which will not disturb the neighbors.”

On June 19, 1991, defendant received a notice to terminate tenancy which alleged a number of violations of the above provisions. Specifically, the notice to terminate alleged the following conduct:

“June 7, 1991: Rorey Heinzeroth was observed squirting water through the patio screen hole of the apartment at 5717 Forest Hills Road, Apt. 203, Rockford, Illinois.
June 8, 1991: Lezley Heinzeroth was playing the TV loudly, and ignored a request by her neighbor, Sue Owens, to turn it down.
June 9, 1991: Lezley Heinzeroth was observed standing on her deck repeatedly hollering for her son.
June 9, 1991: Loud noises were heard coming from the apartment at 5717 Forest Hills Road, Apt. 303, Rockford, Illinois.
June 10, 1991: Lezley Heinzeroth was observed standing on her deck repeatedly yelling for her son.
June 10, 1991: Loud noises were heard coming from the apartment at 5717 Forest Hills Road, Apt. 303.
June 12, 1991: Lezley Heinzeroth’s son, Rorey, was shouting at Earl Peterson, the night manager.
June 12, 1991: Rorey Heinzeroth was observed urinating in the hall at 5719 Forest Hills Road, Rockford, Illinois.
June 13, 1991: Rorey Heinzeroth was observed repeatedly jumping from the second story at 5719 Forest Hills Road.
June 7-13, 1991: A woman who apparently goes by the name of ‘Mary’ has been observed living with Lezley Heinzeroth.”

Plaintiff filed a complaint in forcible entry and detainer based on the allegations contained in the notice to terminate. Before trial, the parties stipulated that defendant had received proper notice to quit and that plaintiff would not elicit testimony beyond the allegations of that notice. The parties also stipulated that the unit was a section 8 rental unit which was governed by the regulations set forth at 24 C.F.R. §880.607 (1992).

At trial, Sue Owens testified that she lives in the apartment directly below defendant. She testified that between June 7 and June 19 she observed Mary Dietrich “apparently residing” in defendant’s apartment. She observed Dietrich bringing shopping bags and clothes on hangers into the building where defendant resides. She observed her in the company of both defendant and Rorey. She also met Dietrich in the laundry room one day. Dietrich told Owens she was going to get “her” laundry.

Owens also testified that during this same time period she heard loud noises emanating from defendant’s apartment. She stated there was loud talking, as well as “party noise” and “T.V. noise.”

Owens described several specific incidents involving defendant or her son. On June 7, Rorey squirted Owens’ daughter with a water pistol through the screen door of Owens’ apartment as Owens and her daughter were preparing to attend Owens’ son’s graduation. The soaking caused rust stains on the daughter’s dress.

She described another incident in which she could hear defendant’s television in her apartment and her daughter asked defendant to turn it down.

On June 9, Owens was awakened by loud noises from the bedroom upstairs. She heard a man talking in a loud and profane manner. On June 10, she heard a loud party upstairs which continued until approximately 4 a.m.

Owens further stated that virtually every day defendant would stand on her porch and call for Rorey. Owens described it as “loud, obnoxious bellering [sic] from daylight ‘til dark.” She stated that this had been going on for about a year and a half, although the court sustained defendant’s objection to this testimony.

Lisa Tallent testified that she is a resident of Wildberry Village. On June 12 she observed Rorey urinating down the stairs of her building.

Victoria Cal is the resident manager of Wildberry Village. On June 13 she saw Rorey and several other children jumping from the balcony of Lisa Tallent’s second-floor apartment onto a mattress on the ground.

Earl Peterson stated that he is the evening security manager at the complex. On June 12 he saw Rorey using a skateboard ramp. He had previously told Rorey that he was not to build ramps for skateboarding. Peterson confiscated the ramp and put it in his truck. Rorey then began screaming at Peterson.

Peterson also witnessed the incident with the mattress. He warned the boys to stop, then went into the building. When he returned, they were still jumping onto the mattress. Peterson then summoned Cal.

Defendant testified that she did recall the evening when Owens complained about the television. She and Rorey were watching a scary movie on television. Owens’ daughter asked her to turn the volume down and she did so. The complex management never complained to her about the volume of her television. She did not have a party at her apartment on June 9 or 10. No one ever complained to her about a loud party. She admitted that she called for her son from the balcony “two or three times a day.” No one ever complained to her about this. She never saw her son urinate in the hallway. No one ever complained to her about this or sent her a bill for damage.

Defendant stated that Cal did tell her about Rorey jumping onto the mattress. She punished her son with grounding and corporal punishment.

According to defendant, Mary Dietrich is a friend of hers, but does not live with her. She visits defendant two to three times a week. She lives at 5380 Steward Road. She does not receive mail at defendant’s address. She did stay at defendant’s apartment for one weekend, watching Rorey while defendant was out of town at a funeral.

Dietrich also testified that she has never lived with defendant. She visits her often, helping her to do laundry and buy groceries, since defendant cannot drive. She does not do her own laundry at the complex. She spent a weekend watching Rorey while defendant went to a funeral. She also stayed overnight on other occasions.

Following closing arguments, the court took the matter under advisement. The court issued its ruling on October 2. The court found that defendant had committed repeated minor violations of the lease and that plaintiff was entitled to possession. However, the court stayed its order for 30 days and scheduled a status hearing “just to see how we are doing.” The court stated that, if defendant was able to remedy the complained-of conduct, it would vacate the order of possession.

During the interim period, plaintiff filed a “Notice of Continuing Lease Violations,” asserting that defendant had continued the pattern of conduct described in the original action. In response, defendant filed a “Motion for Entry of Order,” contending that the notice of continuing violations did not comport with the statutory notice requirements under applicable Federal regulations. On November 12 the court lifted the stay. The record on appeal does not contain a transcript of the proceedings on November 12. Defendant filed a notice of appeal on November 20,1991.

Plaintiff initially contends that this court lacks jurisdiction to entertain defendant’s appeal. Plaintiff contends that the October 2 order was a final order and that, since defendant’s notice of appeal was not filed within 30 days thereafter, it is untimely, citing Knox v. Keene Corp. (1991), 210 Ill. App. 3d 141.

Defendant responds that the October 2 order was not final and appealable and that she filed her notice of appeal within 30 days of the November 12 order.

We find that we have jurisdiction of this appeal. The October 2 order was clearly not final and appealable. The order provides only that plaintiff is entitled to possession. It does not state a date on which such possession is to begin. Moreover, the writ of restitution normally provided for in a forcible entry and detainer action was not issued on October 2. Rather, a separate order entered November 12 provided that the writ would issue on November 20.

In Wheeler Tractor & Equipment Co. v. Myers (1976), 39 Ill. App. 3d 735, the court stayed the order of possession pending defendant’s payment of arrearages. The order did not state that the writ of restitution would automatically issue at the end of the period of the stay. The order determined only that defendants were in arrears, but, until the end of the stay, the issue of who was entitled to possession was not finally determined. (Wheeler, 39 Ill. App. 3d at 738.) Similarly, in the instant case, the court found that defendant was in violation of the terms of her lease. However, the ultimate issue of who is entitled to possession was not to be determined until after the upcoming status date.

Moreover, the court during its oral ruling on October 2 clearly stated that a written order was. to be prepared and entered. Such an order was not entered until November 12. If at the time of announcing final judgment the judge requires the submission of a written judgment order to be signed by him the judgment becomes final only when the signed judgment is filed. (134 Ill. 2d R 272; In re Marriage of Vucic (1991), 216 Ill. App. 3d 692, 699.) In the instant case, no final judgment was possible until the written order was entered on November 12.

Knox (210 Ill. App. 3d 141), on which plaintiff relies, is factually distinguishable. In that case, the court dismissed plaintiffs’ complaint with prejudice on April 12. The court, however, set a “status date” for April 27. On May 2, the court issued an order stating that all orders and rulings were final as of that date. Plaintiffs filed their notice of appeal May 30, 28 days after the May 2 order, but 48 days after the April 12 order. This court determined that it lacked jurisdiction to review the dismissal. The April 12 order finally determined the rights of the parties and was thus final and appealable. The court’s attempt to retain jurisdiction could not change the nature of the April 12 order. In the instant case, the October 2 order did not finally determine the rights of the parties and was thus not final and appealable. The November 12 order finally terminated the controversy, and defendant’s notice of appeal filed eight days later was timely.

Proceeding to the merits of the controversy, defendant contends that the court erred in determining that she substantially breached her lease. She contends that the acts alleged amount to, at most, a series of isolated minor violations of the lease. Moreover, the court focused primarily on the conduct of her son. She contends that none of her son’s acts took place in her presence and, under these circumstances, she cannot be held accountable for her son’s conduct. Furthermore, all of these acts occurred within a short period of time, and, prior to receiving the notice of termination, she had no notice that the conduct was disturbing to her neighbors.

Initially, the parties agree that, since the apartment at issue is a federally rent-subsidized unit, eviction procedures are governed by applicable Federal regulations found at 24 C.F.R §880.607 (1992). Under the applicable regulations, a tenant can be evicted only for “material noncompliance” with the lease. Material noncompliance is defined as one or more substantial lease violations or repeated minor violations which disrupt the livability of the building, adversely affect the health or safety of any person or the right of any tenant to the quiet enjoyment of the leased premises, interfere with the management of the building or have an adverse financial impact on the building. 24 C.F.R. §880.607(bX3) (1992).

In this case, plaintiff concedes that it did not prove any major violations of the lease. Plaintiff maintains, however, that it established a pattern of minor violations which disrupted the livability of the building and interfered with other tenants’ right of quiet enjoyment of the buildings.

The only matter to be resolved in a forcible entry and detainer action is the right to possession. (S & D Service, Inc. v. 915-925 W. Schubert Condominium Association (1985), 132 Ill. App. 3d 1019, 1023.) Such a determination frequently, as here, requires construction of the lease. In general, the lease should be construed most strongly against the lessor and in favor of the lessee. (Chicago Housing Authority v. Rose (1990), 203 Ill. App. 3d 208, 216; O’Fallon Development Co. v. Reinbold (1966), 69 Ill. App. 2d 169, 177-78.) Forfeitures of leasehold interests are not favored. Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441.

In the instant case, the lease provides that the tenant agrees “not to make or permit noises or acts that will disturb the rights or comfort of neighbors.” Pursuant to Federal regulations, only a material violation of this, or any other, lease provision could result in eviction. Moreover, there must be some evidence that the tenant was aware of or acquiesced in the alleged violation. Rose, 203 Ill. App. 3d at 216; see also Hodess v. Bonefont (1988), 401 Mass. 693, 696, 519 N.E.2d 258, 260.

Defendant points out that in making its ruling, the trial court relied primarily on the conduct of her son. The court stated that “the main problem is controlling that boy of hers.” Defendant contends that, under the circumstances presented here, she cannot be held accountable for her son’s conduct. None of the alleged acts occurred in her presence, and she was not aware that her son was likely to commit such acts. With one exception, she was not informed of any of the alleged conduct until she received the notice of termination. The only incident reported to her was the mattress-jumping incident. When she learned of this activity by her son, she punished him.

In Chicago Housing Authority v. Rose (203 Ill. App. 3d at 216-17), pursuant to a search warrant, the police found guns in defendant’s apartment. Defendant’s brother told police that the guns belonged to him. Defendant testified without contradiction that she was unaware that her brother had brought the guns into the apartment. The court held that, once the Chicago Housing Authority showed that guns were in defendant’s apartment, a rebuttable presumption arose that defendant knew of their presence, and the burden then shifted to her to demonstrate a lack of knowledge. However, the court found that defendant’s testimony that she did not previously know of the guns’ presence was not contradicted, nor was it impeached or inherently improbable and therefore could not be disregarded. The court held that defendant met her burden of establishing lack of knowledge, and her brother’s conduct was not attributable to her.

Similarly, in Hodess, the court held that, although the conduct of defendant’s son in breaking into a neighboring apartment, stealing certain items and hiding them in defendant’s apartment was serious, there was no evidence that defendant could have foreseen this conduct or that she acquiesced in it. Hodess, 401 Mass, at 696, 519 N.E.2d at 260; see also Henry v. Wild Pines Apartments (1987), 183 Ga. App. 491, 359 S.E.2d 237 (uninvited guest shot defendant’s friend in her apartment while defendant was away).

We agree with defendant that she should not be held accountable for her son’s actions under these circumstances. The acts complained of appear to be isolated incidents. All took place within a short time span. There is no evidence that defendant was aware of any of these incidents or that she had reason to believe that her son might commit such acts. Except for the mattress incident, no one informed defendant of her son’s conduct. On the one occasion she was so informed, she stated that she punished her son.

We acknowledge plaintiff’s argument that Illinois law and public policy encourage parents to exercise control over their children, citing Robison v. First State Bank (1986), 144 Ill. App. 3d 991, 993. We note defendant’s own testimony that she was required to call for her son several times a day indicates that she did not know where he was much of the time. Nonetheless, under the above cases and Federal regulations, we hold that defendant was not accountable for her son’s conduct under the facts presented.

Plaintiff further contends, however, that even if defendant is not accountable for her son’s conduct, it proved conduct by the defendant herself sufficient to justify termination of her tenancy. Plaintiff points to evidence of an unauthorized person residing in her apartment and of repeated instances of loud noise, including yelling for her son from her balcony, loud parties, loud television and an apparent argument with an unidentified male.

The trial court apparently placed little weight on these incidents, as it focused primarily on the conduct of Rorey. The court stated specifically, “I believe that under the law the conduct of the defendant’s son, et cetera [sic], so forth, shows repeated minor violations.” (Emphasis added.) The court later stated, “The real problem is controlling that son of hers.” Nevertheless, the evidence regarding this additional conduct is contained in the record on appeal. We may affirm the judgment of the trial court on a basis not ruled upon by that court if the necessary factual basis for the determination is contained in the record. American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 21.

We agree, however, with the trial court’s apparent conclusion that the additional conduct which plaintiff cites does not support termination of defendant’s tenancy. We first note that plaintiff failed to prove that an unauthorized person, namely Mary Dietrich, resided with defendant. The sole evidence which plaintiff introduced on this issue was the speculation of Sue Owens, based on her observation of Dietrich carrying groceries and clothes into the building, and a single chance encounter in the laundry room. Conversely, both defendant and Dietrich categorically denied that Dietrich lived with defendant at any time. Dietrich did testify that she often helped defendant with chores such as laundry and grocery shopping. She often baby-sat for Rorey, even staying with him overnight on one occasion. This testimony is almost entirely consistent with Owens’ observations. Plaintiff failed to prove a lease violation on this ground.

Plaintiff did present evidence of several incidents of noise emanating from defendant’s apartment. Owens testified to two occasions of defendant yelling for her son, one instance of the television being too loud, one or two loud parties and apparently one argument between defendant and an unidentified male. While a long-standing pattern of such conduct might be grounds for termination, the incidents which Owens described are merely isolated instances. We note that, with one exception regarding the television, there was no evidence of any complaints about any of these incidents until defendant received the notice of termination. As defendant suggests, this fact supports an inference that the alleged conduct was not a very serious disruption of the livability of the building. More importantly, however, we note that, again, the complained-of conduct occurred within a very short time span and, as no one complained, defendant’s testimony that she was unaware that she was disturbing her neighbors is plausible.

“Material noncompliance” requires a pattern of repeated minor violations of the lease, not isolated incidents. (North Shore Plaza Associates v. Guida (1983), 117 Misc. 2d 778, _, 459 N.Y.S.2d 685,

686.) The handful of minor incidents described here, occurring over a short span of time and in the absence of prior notice to defendant that her conduct was disturbing to neighbors, does not establish a pattern of violations.

For the foregoing reasons, the judgment of the circuit court of Winnebago County is reversed.

Reversed.

INGLIS, P.J., and DUNN, J., concur.