                                                                         Digitally signed by
                                                                         Reporter of Decisions
                                                                         Reason: I attest to the
                         Illinois Official Reports                       accuracy and
                                                                         integrity of this
                                                                         document
                                 Appellate Court                         Date: 2017.05.25
                                                                         16:36:13 -05'00'




                  In re Estate of Cargola, 2017 IL App (1st) 151823



Appellate Court     In re ESTATE OF ANNE M. CARGOLA, Deceased (Donna Lynn A.
Caption             Knorrek, f/k/a Donna Lynn A. Cargola Knorrek, Petitioner-Appellant,
                    v. Kristen Hoeksema, as Special Administrator of the Estate of Anne
                    M. Cargola, and Diane Briese, Respondents-Appellees).



District & No.      First District, Sixth Division
                    Docket No. 1-15-1823



Filed               February 17, 2017



Decision Under      Appeal from the Circuit Court of Cook County, No. 12-P-5580; the
Review              Hon. James G. Riley, Judge, presiding.



Judgment            Affirmed.


Counsel on          McBride Law Offices, P.C., of Arlington Heights (Matthew L.
Appeal              McBride III, of counsel), for appellant.

                    Kristen E. Hoeksema, appellee pro se.

                    Kelley, Kelley & Kelley, of Schaumburg (William F. Kelley, Matthew
                    X. Kelley, and Schott C. Zambo, of counsel), for appellee Diane
                    Briese.
     Panel                    JUSTICE CUNNINGHAM delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hoffmann and Justice Delort concurred in the
                              judgment and opinion.


                                               OPINION

¶1         Following the circuit court of Cook County’s dismissal of her complaint to quiet title,
       petitioner, Donna Lynn A. Knorrek appeals from that dismissal of her claim for adverse
       possession. For the following reasons, we affirm the judgment of the circuit court of Cook
       County.

¶2                                             BACKGROUND
¶3         This matter appears before us following a probate proceeding for the estate of Anne M.
       Cargola. Cargola died intestate on August 29, 2007. Cargola had only two heirs: her two
       daughters, Knorrek and respondent, Diane Briese.
¶4         On September 27, 2012 Briese filed a complaint, seeking appointment as the administrator
       of Cargola’s estate. On November 1, 2012, Knorrek filed an objection to Briese’s complaint
       and sought appointment of an independent third party as the administrator of the estate. On
       November 19, 2012, the circuit court appointed respondent-appellee Kristin Hoeksema as
       special administrator for Cargola’s estate.
¶5         At issue in this appeal is Cargola’s real property, located at 1 North Braintree Avenue in
       Schaumburg, Illinois (the property). Cargola purchased the property in 1991. The title and
       mortgage for the property were both solely in Cargola’s name.
¶6         On July 10, 2013, Knorrek filed a three-count complaint in the circuit court of Cook
       County for declaratory judgment and to quiet title. Knorrek sought to remove title to the
       property from the estate of Cargola and to vest title in Knorrek. Count II of the complaint
       sought to quiet title to the property through adverse possession. On September 10, 2013, Briese
       filed a motion to dismiss Knorrek’s complaint pursuant to section 2-615 of the Code of Civil
       Procedure (735 ILCS 5/2-615 (West 2014)). On January 22, 2014, a hearing was held on
       Briese’s motion. The circuit court granted the motion without prejudice, allowing Knorrek to
       amend her complaint.
¶7         On February 20, 2014, Knorrek filed a four-count amended complaint to quiet title for the
       property. Count II of the amended complaint again sought to quiet title to the property through
       adverse possession.
¶8         In that complaint, Knorrek alleged the following. In 1991, she was involved in lengthy and
       acrimonious divorce proceedings. She sought to purchase the property, but was concerned that
       her then-husband would attempt to claim an interest in the property. In an effort to prevent
       further litigation in her divorce proceedings, Knorrek and Cargola made an arrangement
       regarding the property. They agreed that Cargola would purchase and hold title to the property,
       but that Knorrek would be the true owner and possessor of the property. Knorrek transferred
       the down payment funds to Cargola, who then made the necessary down payment to obtain the
       mortgage, which was in Cargola’s name as the sole borrower. Knorrek has resided at the

                                                  -2-
       property since 1991. Cargola never resided at the property at any time. After the purchase of
       the property, Knorrek exclusively paid the mortgage, utilities, taxes, and other debts and
       liabilities associated with ownership of the property. Knorrek reimbursed Cargola for any
       payments she made in relation to the property. In 2001 and 2003, the mortgage for the property
       was refinanced. During both refinances, both Knorrek and Cargola were listed as borrowers on
       the note. Knorrek alleged that she and Cargola both mistakenly believed this arrangement
       allowed Knorrek to be the legal owner of the property.
¶9          In count II of her amended complaint, Knorrek requested that the circuit court find that she
       is the legal owner of the property through adverse possession. Knorrek argued that for a period
       in excess of 20 years, 1991 through 2014, she had actual possession of the property openly,
       continuously, adversely, and under a claim of title which is inconsistent with that of Cargola,
       satisfying the elements of adverse possession pursuant to section 13-101 of the Limitations Act
       (735 ILCS 5/13-101 (West 2014)). Knorrek claimed she met the hostility element of adverse
       possession because Cargola never provided her with permission to reside at the property.
¶ 10        On March 5, 2014, Briese filed a motion to dismiss Knorrek’s amended complaint pursuant
       to section 2-615 and alleged that Knorrek failed to state a cause of action. In her motion, Briese
       argued that Count II of Knorrek’s amended complaint should be dismissed because Knorrek
       pled permissive use of the property when she described the agreement with Cargola. Briese
       argued that this negated the hostility element required for an adverse possession claim.
¶ 11        On May 27, 2014, a hearing was held on Briese’s motion. The circuit court granted the
       motion with respect to counts I and II of Knorrek’s complaint, which were dismissed with
       prejudice for failure to state a cause of action upon which relief can be granted. The circuit
       court denied the motion for counts III and IV, allowing Knorrek to amend those counts.
¶ 12        On May 27, 2015, the circuit court dismissed counts III and IV of Knorrek’s complaint,
       which dismissed the complaint in its entirety.
¶ 13        On June 23, 2015, Knorrek filed a notice of appeal, challenging the circuit court’s
       dismissal of her amended complaint only as to count II. She argues before us that the circuit
       court erred in dismissing her amended complaint because she adequately alleged a claim of
       adverse possession.

¶ 14                                             ANALYSIS
¶ 15       We note that we do have jurisdiction to review the circuit court’s dismissal of count II from
       Knorrek’s amended complaint on May 27, 2014, because she filed a timely notice of appeal
       following entry of a final order on May 27, 2015, dismissing the amended complaint in its
       entirety. See Ill. S. Ct. R. 301 (eff. Feb. 1, 1994).
¶ 16       A section 2-615 motion to dismiss challenges the legal sufficiency of the complaint based
       upon defects apparent on its face. 735 ILCS 5/2-615 (West 2014); Khan v. Deutsche Bank AG,
       2012 IL 112219, ¶ 47 (citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006)).
       Accordingly, we review the circuit court’s order granting a motion to dismiss, de novo. Id. In
       reviewing the sufficiency of a complaint, we accept all well-pleaded facts as true, and we
       construe the allegations of the complaint in the light most favorable to the plaintiff. Id.
       Dismissing a cause of action pursuant to section 2-615 is proper when it is clearly apparent that
       no set of facts can be proved that would entitle a plaintiff to recover. Id.



                                                   -3-
¶ 17       We note that there are no transcripts in the record for the May 27, 2014, hearing, at which
       count II was dismissed. Ordinarily, in the absence of transcripts, it is presumed that the circuit
       court acted in conformity with the law. Watkins v. Office of State Appellate Defender, 2012 IL
       App (1st) 111756, ¶ 19. However, we are free under our de novo standard of review to make
       our own determinations of law regardless of the presence or absence of transcripts. Id. The sole
       issue before us is whether Knorrek adequately pled a claim of adverse possession in count II of
       her amended complaint.
¶ 18       To establish title by adverse possession, the party must possess the disputed property for 20
       years pursuant to section 13-101 of the Limitations Act (735 ILCS 5/13-101 (West 2014)).
       Miller v. Metropolitan Water Reclamation District of Greater Chicago, 374 Ill. App. 3d 188,
       190 (2007). The party must prove that the possession was: “ ‘(1) continuous; (2) hostile or
       adverse; (3) actual; (4) open, notorious and exclusive; and (5) under a claim of title
       inconsistent with that of the true owner.’ ” Id. (quoting General Iron Industries, Inc. v. A. Finkl
       & Sons Co., 292 Ill. App. 3d 439, 441 (1997)).
¶ 19       Briese’s motion to dismiss argued that Knorrek failed to state a cause of action for adverse
       possession because she pled facts alleging permissive, not hostile or adverse, use of the
       property. To satisfy the hostile or adverse element of acquiring title by adverse possession, a
       claimant need not demonstrate any actual ill will between herself and the true property owner
       but merely an assertion of ownership incompatible with any other claim of right. Mann v.
       La Salle National Bank, 205 Ill. App. 3d 304, 309 (1990). “Although evidence of the use and
       control over land is the typical manner by which any claimant establishes title by adverse
       possession, it must be clearly shown that the use of the land was adverse and not merely
       permissive ***.” Id. (citing Thorman v. Cross, 185 Ill. App. 3d 590, 595 (1989)). Where the
       property is used with the permission of the owner, possession is not hostile or adverse. 527
       S. Clinton, LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42, 49 (2010).
¶ 20       In her brief, Knorrek argues that Cargola never gave her permission to reside at the
       property. She claims that by residing there openly and acting as the property’s owner, her
       actions were inconsistent with Cargola’s title so as to satisfy the hostile or adverse element.
       Knorrek directs us to a recent case of the Fourth District of this court, Brandhorst v. Johnson,
       2014 IL App (4th) 130923. In Brandhorst, the Fourth District stated “[i]t is inconsistent with a
       private party’s ownership of a piece of land for a non-owner to maintain and assert dominion
       over the land without any agreement to do so. *** What matters is that plaintiff’s actions were
       incompatible with [the owner’s] ownership of the land at issue.” (Emphasis added.) Id. ¶ 46.
¶ 21       Knorrek’s reliance on this case is misplaced. Unlike Brandhorst, Knorrek pled facts in her
       amended complaint that clearly express an agreement between herself and Cargola. The
       amended complaint greatly details the arrangement where Cargola agreed to actually purchase
       the property for Knorrek while she was involved in divorce proceedings. Even if the agreement
       was initially intended to only be temporary, permission to use land can never ripen into a claim
       for adverse possession. Morris v. Humphrey, 146 Ill. App. 3d 612, 615 (1986). Further, in the
       many years since the property was purchased there was ample time to change title from
       Cargola to Knorrek, if the divorce proceeding was the reason for vesting title in Cargola.
¶ 22       Despite Knorrek stating in both her amended complaint and her brief that Cargola never
       gave her permission to reside at the property, the facts that she pled tell a different story. The
       facts show that Cargola consented to Knorrek’s occupancy and possession of the property. It
       cannot be said that Cargola would accept reimbursements from Knorrek for expenses related to

                                                    -4-
       the property while not permitting Knorrek to possess the property. The allegations in
       Knorrek’s amended complaint are wholly inconsistent with her claim that Cargola did not
       consent to her possession of the property.
¶ 23       Additionally, Knorrek pled that the mortgage for the property was refinanced in 2001 and
       2003, and that both her and Cargola’s name were on the note each time. While Knorrek argues
       that this act led her and Cargola to believe that title had passed to her, we find that argument
       perplexing. On the other hand, both Briese and Hoeksema argue that this act of jointly
       refinancing demonstrates Knorrek’s acknowledgment of Cargola’s superior title to the
       property, and therefore she cannot be an adverse possessor. We agree. The adverse possessor
       must act without recognition of the true owner’s superior title to the property. Mann, 205 Ill.
       App. 3d at 310.
¶ 24       As pled by Knorrek on the face of her amended complaint, Cargola permitted Knorrek to
       reside at the property. Even if Knorrek’s actions satisfied all of the other elements of adverse
       possession, her use of the property would still be permissive and therefore, not hostile or
       adverse.1 Her failure to plead this element is fatal to her adverse possession claim.
¶ 25       While we find that Knorrek has failed to meet the strict standards of adverse possession of
       the property, we do not opine on whether or not she may be able to proceed through some other
       legal means or cause of action.
¶ 26       Accordingly, accepting the facts pled in Knorrek’s amended complaint as true, she has
       failed to state a cause of action for adverse possession. Thus, the circuit court did not err in
       dismissing count II of the amended complaint.

¶ 27                                        CONCLUSION
¶ 28       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 29       Affirmed.




           1
            After establishing that Knorrek pled facts negating the required element of being hostile or adverse
       for a claim of adverse possession, there is no need for us to review the other elements of adverse
       possession as related to this case.

                                                       -5-
