                   ILLINOIS OFFICIAL REPORTS
                                Appellate Court




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




Appellate Court    ROBERT CROSS, Plaintiff-Appellee, v. SANDRA M. O’HEIR, as
Caption            Executor of the Estate of Estate of Richard J. O’Heir, THE ESTATE OF
                   RICHARD J. O’HEIR, LOCATION FINDERS INTERNATIONAL,
                   INC., as president of Location Finders International, Inc., THE
                   RICHARD J. O’HEIR FAMILY TRUST UAD JULY 21, 2003, THE
                   RICHARD J. O’HEIR REVOCABLE TRUST UAD JULY 26, 1989,
                   GEORGE S. SARRIS, DAN REGAN, MICHELLE CASTELLARIN,
                   KATHLEEN LEHNERER, JULIE QUINN, MARGARET MARY
                   ZEGLEY, RICHARD J. O’HEIR, and UNKNOWN OWNERS,
                   Defendants-Appellants (Sandra M. O’Heir, as Executor of the Estate of
                   Richard J. O’Heir, The Estate of Richard J. O’Heir, The Richard J.
                   O’Heir Family Trust UAD July 21, 2003, The Richard J. O’Heir
                   Revocable Trust UAD July 26, 1989, Sandra M. O’Heir and Gary L.
                   Penrith, as Co-Trustees of the Marital Trust created by Richard J. O’Heir
                   Revocable Trust under Agreement Dated July 26, 1989, as amended,
                   Counterplaintiffs and Counterdefendants-Appellants; George S. Sarris,
                   Counterdefendant and Counterplaintiff-Appellee).



District & No.     Third District
                   Docket No. 3-12-0760



Filed              August 2, 2013
Rehearing denied   August 30, 3013
Held                       In an action arising from the dissolution of a partnership between
(Note: This syllabus       counterplaintiff’s deceased husband and counterdefendant created for the
constitutes no part of     development of a certain real estate, the trial court properly entered
the opinion of the court   summary judgment for counterdefendant on counterplaintiff’s claim that
but has been prepared      counterdefendant had created an easement that included property owned
by the Reporter of         by decedent and benefitted the property she inherited, since
Decisions for the          counterdefendant had neither the power nor the intention to create an
convenience of the         easement over property he did not own; however, summary judgment was
reader.)
                           properly entered on his claim for certain fees and expenses he was owed
                           under the partnership agreement.


Decision Under             Appeal from the Circuit Court of Will County, No. 07-CH-2347; the
Review                     Hon. Rick Mason, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Raymond E. Stachnik (argued), of Raymond E. Stachnik & Associates,
Appeal                     Ltd., of Chicago, for appellants.

                           Gary S. Mueller (argued), of Gary S. Mueller & Associates, Ltd., of
                           Joliet, for appellees.


Panel                      JUSTICE LYTTON delivered the judgment of the court, with opinion.
                           Presiding Justice Wright and Justice Carter concurred in the judgment
                           and opinion.



                                            OPINION

¶1          In 1987, George Sarris and Richard O’Heir became business partners. Richard O’Heir
        died in 2006, and his wife, Sandra, was appointed executor of his estate. In 2008, Sandra
        O’Heir filed an action against Sarris, seeking a declaration that a cross-access easement
        created by Sarris and adjoining property owners included O’Heir property. Sarris filed a
        counterclaim for dissolution of the partnership and an accounting. The parties filed motions
        for summary judgment, and the trial court granted Sarris’s motion with respect to Sandra
        O’Heir’s easement claim and Sarris’s dissolution and accounting claim. The trial court later
        granted judgment in favor of Sarris and against O’Heir for $34,461.47. We affirm.

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¶2        In 1987, George Sarris and Richard O’Heir entered into a partnership named Georgetown
     Estates. The purpose of the partnership was to develop 77 acres of real property located on
     Route 30 in Frankfort. The partnership agreement provided that the partnership would
     continue for 40 years unless terminated sooner by operation of law or agreement of the
     partners. The agreement provided that the death of a partner would have no effect upon the
     continuation of the partnership business.
¶3        According to the partnership agreement, Sarris would be managing partner. Upon
     termination of the partnership, Sarris was to perform an accounting and liquidate the assets
     of the partnership. The agreement further provided that Sarris, as managing partner, could
     employ or engage individuals to “render services, including, but not limited to, ***
     accounting and legal services, and he or they shall be entitled to be compensated for such
     services as partnership expenses.”
¶4        In 1996, after Georgetown Estates had developed most of the 77 acres in Frankfort, Sarris
     and O’Heir agreed to divide the remaining partnership property into two parcels. O’Heir
     became the equitable owner of the western 540 feet of the parcel. Sarris became the equitable
     owner of the remainder of the property. Legal title to the property was held in a trust known
     as Trust No. 7-1580, with First Star Bank Illinois acting as the trustee.
¶5        In August 2000, Sarris filed a complaint, seeking dissolution of the Georgetown Estates
     partnership and an accounting and alleging breach of contract against O’Heir. Sarris
     voluntarily dismissed his partnership dissolution and accounting claim. A bench trial was
     held on Sarris’s breach of contract claim, and the trial court entered judgment in favor of
     Sarris for $135,889.50, plus $16,365.14 in attorney fees and $2,600 in appraiser’s fees.
     O’Heir appealed. We reversed the trial court’s decision and granted judgment to O’Heir.
     Sarris v. O’Heir, No. 3-02-0512 (2003) (unpublished order under Supreme Court Rule 23).
¶6        In June 2001, a cross-access easement was recorded between three entities: Trust No.
     6351, Trust No. 7-1580, and System Capital Real Property Corporation (SCC). The property
     owned by SCC is referred to as “Parcel 1” in the easement agreement. The property held in
     Trust No. 6351 is referred to as “Parcel 2” in the easement agreement. The property held in
     Trust No. 7-1580 is referred to as “Parcel 3.” The legal description of “Parcel 3” includes the
     partnership property awarded solely to Sarris in 1996 and excludes “the West 540 feet
     thereof, taken as a Tract.” The western 540 feet of the property held in Trust No. 7-1580 is
     owned by O’Heir, pursuant to the 1996 agreement between Sarris and Richard O’Heir to
     divide the remaining partnership property.
¶7        The purpose of the easement agreement was for the owners of the respective properties
     “to grant and to receive certain easements over, under and across Parcel 1, Parcel 2 and
     Parcel 3.” The agreement provided that Trusts 6351 and 7-1580 “grant and convey to SCC,
     a perpetual non-exclusive easement appurtenant to Parcel 1, for the use and benefit of SCC,
     its successors, assigns, licensees, tenants, suppliers and customers, for a full access road and
     driveway to permit vehicular and pedestrian ingress and egress, to and from Parcel 1, over,
     upon and across that part of Parcels 1, 2 and 3 described in Exhibit D.” The legal description
     of the easement contained in exhibit D states that the east to west dimension of the easement
     is 543.39 feet.


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¶8          The agreement further provided that “Each Trust reserves and SCC grants a perpetual,
       non-exclusive easement, appurtenant to Parcel 2 and Parcel 3 *** for the purpose of
       vehicular and pedestrian ingress and egress, to and from Parcel 2 and Parcel 3 *** over, upon
       and across that portion of Parcel 1 as described on Exhibit D, attached.” Finally, the
       agreement stated that the trusts reserved an “access easement across the West line of the
       premises at a location within 50’ North of the Southwest corner thereof, for the benefit of
       adjoining property to the West.”
¶9          In April 2004, Sarris filed an action for declaratory relief and a temporary restraining
       order against O’Heir, the successor trustee of the partnership’s real property, and Georgetown
       Estates, to prevent O’Heir from selling his property to anyone except Sarris. The trial court
       entered judgment in favor of Sarris. This court reversed and entered judgment in favor of
       O’Heir, finding that the 1996 agreement between the parties removed any partnership interest
       in the property, making it separately owned by each partner. Sarris v. O’Heir, No. 3-04-0968
       (2005) (unpublished order under Supreme Court Rule 23).
¶ 10        Richard O’Heir died in July 2006. His wife, Sandra O’Heir, was appointed executor of
       his estate. At the time of Richard’s death, the only remaining assets of the partnership were
       two outlots that had not yet been sold or given away.
¶ 11        In March 2008, Sandra O’Heir filed a claim against Sarris, seeking a declaratory
       judgment on the interpretation of the cross-access easement. She alleged that the easement
       benefits and includes the estate’s property. Attached to the counterclaim was a plat of survey
       prepared by Rogina & Associates in 2002 that shows the easement crosses the western line
       dividing Sarris’s property and O’Heir’s property.
¶ 12        In 2008, a new plat of easement was recorded. The new east-west dimension of the cross-
       access easement was 542.39 feet. David Tyson, who prepared the revised easement,
       explained that he recorded the new plat at the direction of Sarris to make clear that the
       easement created in 2001 was not intended to benefit O’Heir’s property.
¶ 13        In May 2008, Sarris filed a counterclaim against Sandra O’Heir. Count I requested an
       order allowing Sarris to purchase any remaining assets of the partnership and award him
       damages for breach of the partnership agreement. Count II requested an accounting and
       dissolution of the partnership. Count III alleged fraud against Sandra O’Heir.
¶ 14        Sarris filed a motion for summary judgment with respect to O’Heir’s easement
       counterclaim. Attached to the motion were deposition transcripts from various individuals.
       Sarris testified at his deposition that he entered into an easement agreement with the owners
       of Parcels 1 and 2 identified in the easement agreement. It was his intention that the easement
       benefit his property, not O’Heir’s property. O’Heir was not a party to the easement
       agreement.
¶ 15        David Tyson, a registered professional engineer and land surveyor retained by Sarris,
       testified at his deposition that he created and recorded an easement for Sarris and the
       property owners identified in the easement agreement at Sarris’s direction. He testified that
       the easement on Sarris’s property was outside the west 540 feet of the north property line and
       was contained entirely within Sarris’s property. He further testified that it was Sarris’s intent
       that the easement would go just to the line of O’Heir’s property, but not over it, and that the

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       easement would cover only Sarris’s property. Tyson also testified that the owner of property
       cannot grant an easement over property he does not own.
¶ 16        John Kella, a land surveyor retained by O’Heir, testified that the company he works for,
       Rogina & Associates, created a survey in 2002 to determine the scope of the 2001 easement,
       at O’Heir’s request. According to Rogina’s plat of survey, the easement extends
       approximately two inches onto O’Heir’s property.
¶ 17        Timothy Atchinson, a title attorney and law professor who was retained by Sarris,
       testified at his deposition that he reviewed the easement grant recorded in 2001, as well as
       the surveys completed by Tyson and Rogina. He testified that before a land owner can be a
       third-party beneficiary to an easement, two requirements must be met: (1) the legal
       description of the easement must extend onto the land of the third party, and (2) there must
       be granting language extending the easement onto the third party’s property. He opined that
       the easement agreement at issue was not intended to benefit O’Heir’s land because it
       specifically states that the easement is over Parcels 1, 2 and 3, which does not include
       O’Heir’s property.
¶ 18        O’Heir filed a cross-motion for summary judgment on the easement counterclaim. In
       March 2011, O’Heir and Sarris agreed that O’Heir would execute a quitclaim deed to Sarris
       for the two outlots still owned by the partnership in exchange for Sarris dismissing count I
       of his complaint against Sandra O’Heir.
¶ 19        In May 2011, the trial court granted Sarris’s motion for summary judgment with respect
       to O’Heir’s easement claim, finding that it was not Sarris’s intent for the easement to benefit
       O’Heir’s property. The trial court also granted summary judgment to Sarris on his
       partnership dissolution and accounting claim, finding that the partnership would be dissolved
       only when all partnership property was developed, sold or divided, which would not occur
       until O’Heir delivered quitclaim deeds to Sarris for the outlots still owned by the partnership.
       The trial court granted O’Heir’s motion for summary judgment with respect to Sarris’s fraud
       counterclaim against O’Heir.
¶ 20        Thereafter, the trial court held a bench trial on Sarris’s accounting claim. At the trial,
       Sarris argued that he was entitled to $210,000 from O’Heir for serving as general contractor
       for the partnership project. Sarris also asserted that he was entitled to reimbursement of
       $21,875 for excavation, $21,872.25 for real estate taxes, and $33,198.01 in legal fees. The
       trial court rejected Sarris’s claim for general contractor fees but found that Sarris was entitled
       to $17,500 for excavation, $10,731.47 for real estate taxes, and $7,230 for legal fees. The
       trial court entered judgment in favor of Sarris for $35,461.47. O’Heir filed a motion to
       modify the judgment. The court ruled that O’Heir owed Sarris $16,500 for excavation and
       modified the judgment to $34,461.47.

¶ 21                                           ANALYSIS
¶ 22        Summary judgment is appropriate when the pleadings, depositions and admissions on
       file, together with the affidavits, if any, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-
       1005(c) (West 2012). The purpose of summary judgment is not to try a question of fact, but

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       to determine whether a genuine issue of triable fact exists. In re Marriage of Maurice B.H.,
       2012 IL App (1st) 121105, ¶ 17. In determining whether a question of fact exists, “a court
       must construe the pleadings, depositions, admissions and affidavits strictly against the
       movant and liberally in favor of the opponent.” Williams v. Manchester, 228 Ill. 2d 404, 417
       (2008). We review a grant of summary judgment de novo. Id.

¶ 23                                I. O’Heir’s Easement Claim
¶ 24        An easement provides a privilege or a right in the use of another’s property. Hahn v.
       County of Kane, 2012 IL App (2d) 110060, ¶ 10. An easement provides use rights; it does
       not provide ownership rights or an ownership interest in land. Id. “No one but an owner of
       land can create an easement over it.” Id. ¶ 11.
¶ 25        An instrument creating an easement is construed in accordance with the parties’
       intention, which is ascertained from the words of the instrument and the circumstances
       contemporaneous to the transaction, including the state of the thing conveyed and the
       objective to be obtained. Id. ¶ 12. Interpretation of an easement is a question of law that we
       review de novo. Smith v. Heissinger, 319 Ill. App. 3d 150, 153 (2001).
¶ 26        Where the language of an agreement is facially unambiguous, the trial court interprets
       the contract as a matter of law, without the use of extrinsic evidence. Hahn, 2012 IL App
       (2d) 110060, ¶ 12. However, where the documents creating the easement are ambiguous, a
       trial court may admit and consider extrinsic evidence. Smith, 319 Ill. App. 3d at 153.
¶ 27        We find the language of the cross-access easement in this case to be ambiguous. While
       the legal description of “Parcel 3” contained in the easement agreement specifically excludes
       the western 540 feet owned by O’Heir, another provision of the agreement states that there
       is an access easement “across the west line of the premises of a location within 50 feet north
       of the southwest corner thereof, for the benefit of adjoining property to the west.” The
       property described in that provision seems to be O’Heir’s property.
¶ 28        Since the easement is ambiguous, the trial court properly looked to extrinsic evidence to
       determine the intent of the parties in creating the easement. The evidence introduced by
       Sarris showed that the easement was created to benefit Sarris’s property and not O’Heir’s.
       Sarris was the one who directed Tyson to record the easement. O’Heir was not involved in
       the creation of the easement or the easement agreement. Sarris intended for the easement to
       be over only his property.
¶ 29        O’Heir’s evidence showed that the original easement possibly encroached on her property
       by a couple of inches. However, O’Heir provided no evidence that Sarris intended for the
       easement to be over O’Heir’s property. Moreover, Sarris had no power to create an easement
       over O’Heir’s property. See Hahn, 2012 IL App (2d) 110060, ¶ 11. Thus, the trial court
       properly granted summary judgment on O’Heir’s easement claim.

¶ 30               II. Sarris’s Partnership Dissolution and Accounting Claim
¶ 31       O’Heir argues that the trial court erred in granting summary judgment to Sarris on his
       partnership dissolution and accounting claim because it was untimely. She contends that


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       Georgetown Estates was constructively dissolved in 1996, when the remaining parcel of
       partnership property was divided between the partners.
¶ 32        Dissolution of a partnership is defined as “the change in the relation of the partners
       caused by any part[y] ceasing to be associated in the carrying on *** of the business.”
       (Internal quotation marks omitted.) Schlossberg v. Corrington, 80 Ill. App. 3d 860, 863
       (1980). “[A]n obvious prerequisite to a dissolution of a partnership is its actual existence at
       the time dissolution is sought.” Id. at 864.
¶ 33        A partnership may be dissolved either by judicial order or by operation of law. Id. at 863.
       As a general rule, the death of a partner dissolves a partnership unless there is an express
       agreement that the partnership will continue thereafter. Oneida State Bank v. Peterson, 226
       Ill. App. 381, 383 (1922). A judicial order of dissolution may be granted upon application
       by a partner if the court finds that the partnership business cannot be carried on as set forth
       in the partnership agreement. 805 ILCS 206/801(5) (West 2012).
¶ 34        Each partner is entitled to a settlement of all partnership accounts upon the dissolution
       of a partnership. 805 ILCS 206/807(b) (West 2012). A partner’s right to an accounting
       accrues at the date of dissolution. Couri v. Couri, 95 Ill. 2d 91, 100 (1983); In re Estate of
       Krevchena, 244 Ill. App. 3d 160, 164 (1993). An accounting action may be brought after or
       at the same time as a partnership dissolution action. Hildebrand v. Topping, 240 Ill. App. 3d
       104, 109 (1992).
¶ 35        Here, the partnership agreement for Georgetown Estates provided that the partnership
       would continue for 40 years unless terminated sooner by operation of law or agreement of
       the partners. While the death of a partner normally dissolves a partnership, that did not
       happen here because the partnership agreement stated that the partnership would continue
       thereafter. See Peterson, 226 Ill. App. at 383. Nevertheless, O’Heir contends that the
       partnership was dissolved even before her husband’s death in 2006, because the partnership
       stopped conducting partnership business in 1996, when nearly all of the partnership property
       had been sold. We disagree.
¶ 36        While the majority of the partnership property was sold or transferred by 1996, the
       partnership still had possession of certain outlots at that time. It was not until 2011 that those
       outlots were transferred. Because the partnership retained property until 2011, the trial court
       did not err in finding that the partnership was not dissolved until then.
¶ 37        Additionally, the trial court did not err in allowing Sarris’s accounting action in spite of
       O’Heir’s claim that it was untimely. A partner’s right to an accounting accrues when the
       partnership is dissolved. Couri, 95 Ill. 2d at 100; Krevchena, 244 Ill. App. 3d at 164. Since
       the partnership was not dissolved until 2011, Sarris’s accounting claim, which was filed with
       his dissolution action in 2008, was not untimely.

¶ 38                                   III. Judgment Amount
¶ 39       Finally, O’Heir argues that the trial court erred in ordering her to pay Sarris $34,461.47
       for partnership debts.
¶ 40       In settling the accounts and contributions among partners following the dissolution of a


                                                  -7-
       partnership, each partner shall contribute to the partnership an amount equal to any excess
       of the charges over the credits in the partnership’s account. 805 ILCS 206/807(b) (West
       2012). The estate of a deceased partner is liable for the partner’s obligation to contribute to
       the partnership. 805 ILCS 206/807(e) (West 2012).
¶ 41        The amount of partnership debt is generally a question of fact for the trial court. See
       Seymour v. Williams, 249 Ill. App. 3d 264, 274 (1993). A reviewing court will not disturb
       a trial court’s determination of partnership debt unless it is against the manifest weight of the
       evidence. Id. An award is contrary to the manifest weight of the evidence where the trial
       court ignored the evidence or its measure of damages was erroneous as a matter of law.
       Meade v. Kubinski, 277 Ill. App. 3d 1014, 1017 (1996).
¶ 42        At trial, Sarris claimed that he was entitled to reimbursement from O’Heir for nearly
       $300,000, including $210,000 in general contractor fees, $21,875 for excavating fees,
       $21,872.25 in real estate taxes, and $33,198.01 in attorney fees. The trial court considered
       each of these claims and determined that (1) Sarris was not entitled to reimbursement for
       general contractor fees because the partnership agreement did not provide for such fees; (2)
       Sarris was entitled to $16,500 in excavating fees; (3) Sarris was entitled to $10,731.47 (less
       than half of the amount claimed by Sarris) as reimbursement for partnership real estate taxes
       paid from 1990 through 2010; and (4) Sarris was entitled to $7,230 in attorney fees,
       representing half of the legal fees Sarris incurred in the partnership dissolution and
       accounting action. The trial court entered judgment against O’Heir for $34,461.47, which
       was 11% of the amount Sarris claimed O’Heir owed him under the partnership agreement.
       Based on the court’s thorough review and reduction of Sarris’s monetary claims, the damage
       award was not against the manifest weight of the evidence.
¶ 43        For the foregoing reasons, the judgment of the trial court of Will County is affirmed.

¶ 44       Affirmed.




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