                                              SECOND DIVISION
                                              FILED: July 20, 2010




No. 1-09-2200



527 S. CLINTON, LLC, an Illinois         )    APPEAL FROM THE
limited liability company,               )    CIRCUIT COURT OF
                                         )    COOK COUNTY.
       Plaintiff-Appellant,              )
                                         )
v.                                       )    07 CH 12339
                                         )
WESTLOOP EQUITIES, LLC, an               )
Illinois limited liability               )
company,                                 )    THE HONORABLE
                                         )    MARTIN S. AGRAN
       Defendant-Appellee.               )    JUDGE PRESIDING


       JUSTICE HOFFMAN delivered the opinion of the court:

       The plaintiff, 527 S. Clinton, LLC, brought the instant

suit, seeking judicial declarations that its proposed development

of a multi-story commercial and residential building would not

violate an easement held by the defendant, Westloop Equities,

LLC.    In two separate orders, the circuit court dismissed two of

the three counts of the plaintiff's complaint, finding them to be

time barred.       As to the third count, the circuit court entered a

directed finding in favor of the defendant.           The plaintiff now

appeals, arguing that all three rulings were improper.             For the

reasons    which     follow,   we   reverse   and   remand   for   further

proceedings.
No. 1-09-2200

     The essential facts giving rise to this appeal are not in

dispute.    The plaintiff is the owner of a parcel of real estate

commonly    known    as    519-527     South    Clinton     Street      in   Chicago,

Illinois.    The plaintiff's property is currently used as an open-

air parking lot.           The defendant owns a parcel of real estate

adjacent to the plaintiff's property, commonly known as 506 West

Harrison    Street.        The    defendant     operates     a   hotel       upon   its

property.

     Prior to 1984, both properties were under common ownership.

In October of that year, the hotel, along with the property upon

which it was situated, was sold to the defendant's predecessor-

in-interest.         As    part   of   the     transaction,      the    defendant's

predecessor-in-interest was granted an easement for ingress and

egress and for free parking.            The easement provided, in relevant

part, as follows:

                    "1.     All persons, by motor vehicle or

            otherwise, shall have the rights to ingress

            and   egress     in    perpetuity     to   or   from       the

            property through and/or across the parking

            facility property, which rights shall not be

            terminable for any reason.

                    2.     Grantee's registered guests of the

            hotel    and    banquet    invitees    shall     have      the




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No. 1-09-2200

          right        to    park       on      the   parking          facility

          property at no cost.

                  3.        Patrons of the bar and restaurant

          inside the subject hotel property shall have

          the right to park at no cost for a maximum of

          three (3) hours.

                  4.        The    easement        for    parking       in   the

          above Paragraphs 2 and 3 shall be subject to

          the     following             terms      and     conditions,        a

          violation of which shall cause said easement

          to terminate immediately upon the violation:

                            (a) The easement will remain

                  in force so long as the property is

                  operated as a hotel.                    Ceasing to

                  operate         the    subject         hotel    as    a

                  hotel       business       shall        cause    this

                  easement        to     terminate        immediately

                  and without notice."

     Over time, the hotel fell into disuse and closed.                             In June

of 1998, the defendant purchased the property containing the

hotel.   The defendant refurbished the hotel and reopened it in

1999.




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No. 1-09-2200

      In October of 2006, the plaintiff purchased the adjacent

property       containing       the     open-air           parking     lot.      Shortly

thereafter, the plaintiff sought to develop the property and

build     a     multi-story         commercial        and      residential       building

consisting of 276 residential units, as well as ground floor

retail shops and parking.

      On March 6, 2007, representatives of the plaintiff met with

the manager of the hotel to discuss the proposed development.                            In

a letter dated March 23, 2007, the defendant's attorney expressed

his opinion that the erection of a building on the plaintiff's

property       would    interfere       with    the    defendant's         easement   and

threatened immediate litigation.                    In a subsequent letter dated

March 27, 2007, the defendant's attorney also threatened to sue

the architect hired by the plaintiff to design the development.

      On May 8, 2007, the plaintiff filed a three-count complaint

against       the   defendant.        In    count     I,    the     plaintiff   sought    a

judicial declaration that, under the terms of the easement, the

defendant's right to free parking ended in "approximately 1986,"

the year the original hotel ceased operations.                        Count II sought a

judicial declaration that the plaintiff's proposed development of

its property would not interrupt the hotel's ingress and egress

and   that     the     terms   of     the   easement        would    not   be   violated.

Finally,       in    count     III,     the     plaintiff         sought   a    mandatory




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No. 1-09-2200

injunction compelling the removal of a parking ramp allegedly

encroaching      on   its    property       by     approximately      50    feet.      The

complaint      alleged      that,        until     the   plaintiff     purchased       the

property    in    2006,     the     ramp     was    permitted    to     exist    on    the

plaintiff's property as an accommodation to the hotel.

       On August 3, 2007, the defendant filed a motion to dismiss

all    three     counts     of    the     plaintiff's       complaint       pursuant    to

sections 2-615 and 2-619 of the Code of Civil Procedure (Code)

(735    ILCS     5/2-615,        2-619    (West     2006)).      Attached       to     the

defendant's motion was an affidavit from Leslie Barnard, a member

of the defendant.           In his affidavit, Barnard attested that the

ramp   allegedly      encroaching          on    the     plaintiff's       property    was

constructed in the early 1960s and, since then, has been used by

the hotel for ingress and egress.

       Initially, the circuit court denied the defendant's motion

to dismiss in its entirety.                 Following a motion to reconsider,

however, the circuit court dismissed count III of the plaintiff's

complaint with prejudice.            In reaching this conclusion, the court

found that, because the ramp in question had been used since the

grant of the easement in 1984, count III was barred by the 20-

year statute of limitations set forth in section 13-101 of the

Code (735 ILCS 5/13-101 (West 2006)).




                                            -5-
No. 1-09-2200

     On March 12, 2009, the plaintiff filed an amended complaint.

In count I of the amended complaint, the plaintiff again sought a

judicial declaration that the defendant's right to free parking

had ended as no hotel business was conducted on the defendant's

property from "approximately 1986 until the hotel was reopened on

May 30, 1999."     As in the original complaint, count II sought a

judicial declaration that the plaintiff's proposed development

would not violate the terms of the easement.                The plaintiff also

re-pled count III in order to "preserve [its] rights on appeal."

     On April 3, 2009, the plaintiff moved for summary judgment

on count I of the amended complaint, arguing that there was no

dispute that     the   hotel    ceased    operations      in   the   late     1980s.

While   the   plaintiff's      motion    for    summary   judgment      was    still

pending, the defendant filed another motion to dismiss count I of

the amended complaint pursuant to section 2-619 of the Code (735

ILCS 5/2-619     (West   2006)).        In     relevant   part,   the   defendant

argued that the plaintiff's cause of action in count I accrued

when the hotel ceased operations in 1986 and, therefore, was time

barred by the 20-year statute of limitations contained in section

13-101 of the Code (735 ILCS 5/13-101 (West 2006)) and the 7-year

statute of limitations set forth in 13-102 of the Code (735 ILCS

5/13-102 (West 2006)).




                                        -6-
No. 1-09-2200

      Attached     to     the    plaintiff's     response        to    the   motion     to

dismiss count I was a portion of Leslie Barnard's deposition and

an   affidavit     from    Lewis     Spector,      the      former    manager   of     the

parking lot from 1992 to 2006.               When deposed, Barnard testified

that neither he nor anyone involved in the day-to-day management

of the hotel ever demanded that the hotel's patrons or guests be

provided with free parking.             In his affidavit, Spector, likewise,

attested that at no time after the hotel reopened in 1999 did

managers    of    the   hotel     demand    that      its    guests    or    patrons    be

permitted to park in the parking lot without charge.

      On May 29, 2009, the plaintiff filed a motion for leave to

amend   its      complaint      to   change      the     year    the    hotel    ceased

operations from 1986 to 1988.                 In support of its motion, the

plaintiff     attached     the    affidavit      of    Anthony       Christopher,      the

manager of the hotel from 1986 to 1988, who attested that the

hotel ceased operation in the spring of 1988.

      On June 3, 2009, the circuit court denied the plaintiff's

motion to amend its first amended complaint, finding that the

extent to which the proposed amendment would cure the defective

pleading was questionable, that the amendment would prejudice and

surprise the defendant, and that the amendment was untimely.                           The

court   further      found      that,    because       the      plaintiff's     amended




                                           -7-
No. 1-09-2200

complaint was verified, the allegation that the hotel closed "in

approximately 1986" constituted a judicial admission.

       On   August    5,   2009,    the    circuit    court    entered       a   written

memorandum opinion, in which it dismissed count I of the amended

complaint as time barred under sections 13-101 and 13-102 of the

Code (735 ILCS 5/13-101, 13-102 (West 2006)).                          In that same

order, the circuit court also denied the plaintiff's motion for

summary judgment on count I as moot.

       Thereafter, the parties proceeded to a bench trial on count

II.    At trial, the plaintiff presented several witness, including

James    Plunkard,      the    architect     hired    to   design      the       proposed

development, and Luay Aboona, a traffic engineer retained by the

plaintiff to evaluate the impact of the proposed development on

the hotel.

       Plunkard      testified     that,   under     the   proposed     development,

hotel patrons and guests would be able to drive down a ramp on

the plaintiff's property and then either exit onto Clinton Street

or    enter   the    hotel's     underground     parking      garage    and      storage

facility.      Plunkard opined that the hotel's ingress and egress

would be essentially the same as it is now.                     He also believed

that the development would enhance the hotel's accessibility by

providing a cover over the ramp, thereby eliminating the need for

snow removal and deterioration due to the elements.




                                           -8-
No. 1-09-2200

     According to Plunkard, the proposed development would be

constructed in two phases.               In phase I, the residential and

commercial building would be constructed.                      During phase II, a

four-story parking garage would be built.                Plunkard believed that

temporary canopies could be erected to protect hotel patrons and

guests seeking to gain ingress and egress during the construction

period     and    that    the    project       could     be     completed    without

significant interference to their ingress and egress.

     Aboona testified that he counted the amount of traffic that

used the driveways into the parking lot and the ramp from the

hotel into       the   parking   lot     for   two   days      in   2008.    He   also

analyzed the anticipated traffic that would be generated by the

proposed development.           In Aboona's opinion, the access drive to

Clinton Street was adequate to accommodate the traffic from the

proposed development as well as the traffic from the hotel.                         He

further believed that, both during the construction and when the

project is       completed,     access    to   the     hotel    property    would   be

maintained.

     At the conclusion of the plaintiff's case in chief, the

defendant moved for a directed finding.1                  The defendant argued,


     1
         We note that the motion filed by the defendant in the circuit

court was labeled as a motion for a "directed verdict."                     Normally,

a party moves for a directed verdict in a jury trial (735 ILCS 5/2-


                                         -9-
No. 1-09-2200

inter alia, that the easement specifically provided for ingress

and egress over the entirety of the plaintiff's property and that

the construction of a permanent structure on the property would

violate    its    rights    under   the    easement.      The   circuit      court

subsequently      granted    the    defendant's      motion   for    a   directed

finding and entered judgment for the defendant on count II of the

plaintiff's amended complaint.            This appeal followed.

     Initially, the plaintiff contends that the circuit court

erred in dismissing count III of its complaint, in which it

sought a mandatory injunction compelling the removal of a parking

ramp allegedly encroaching on its property.             The plaintiff argues

that the defendant's use of the ramp was neither hostile nor

adverse, and, thus, the circuit court improperly applied the

statute    of    limitations   for    adverse     possession    set      forth   in

section 13-101 of the Code (735 ILCS 5/13-101 (West 2006)).                      We

agree.




1202 (West 2006)) and a directed finding in a bench trial (735 ILCS

5/2-1110    (West    2006)).        Although    it   would    have    been    more

appropriate for the defendant to move for a directed finding as a

bench trial was held in this case, the content of a motion, not its

title or label, determines its character.             See Padilla v. Vazquez,

223 Ill. App. 3d 1018, 1023, 586 N.E.2d 309 (1991).


                                      -10-
No. 1-09-2200

     Count    III       of    the     plaintiff's       complaint       was    dismissed

pursuant to 2-619(a)(5) of the Code, which allows for involuntary

dismissal when "the action was not commenced within the time

limited by law."         735 ILCS 5/2-619(a)(5) (West 2006).                   A section

2-619 motion       to   dismiss       admits    the     legal    sufficiency      of   the

complaint    and    raises      defects,       defenses,    or    other       affirmative

matters that defeat the claim.                 Cohen v. McDonald's Corp., 347

Ill. App. 3d 627, 632, 808 N.E.2d 1 (2004).                     Such a motion should

be granted if, after construing the pleadings and supporting

documents in a light most favorable to the nonmoving party, the

court finds that no set of facts can be proved upon which relief

can be granted.          Webb v. Damisch, 362 Ill. App. 3d 1032, 1037,

842 N.E.2d 140 (2005).           This court does not give deference to the

circuit court's ruling on a motion to dismiss pursuant to section

2-619, but, rather, reviews the matter de novo.                         Fuller Family

Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613,

863 N.E.2d 743 (2007).

     Section 13-101 provides, in relevant part, that:

                    "No person shall commence an action for

            the    recovery      of    lands,     nor    make    an   entry

            thereon,         unless   within     20   years     after    the

            right to bring such an action or make such

            entry       first    accrued,       or    within     20   years




                                         -11-
No. 1-09-2200

            after, he, she or those from, by, or under

            whom he or she claims, have acquired title or

            possession of the premises."           735 ILCS 5/13-

            101 (West 2006).

This section of the Code incorporates the doctrine of adverse

possession.       Joiner v. Janssen, 85 Ill. 2d 74, 81, 421 N.E.2d 170

(1981); McNeil v. Ketchens, 397 Ill. App. 3d 375, 393, __ N.E.2d

__ (2010).      Accordingly, for an action to be barred under section

13-101, the disputed lands must be in the possession of another

for 20 years and that possession must be (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.    Joiner,   85    Ill.   2d   at   81;   Miller    v.

Metropolitan Water Reclamation District of Greater Chicago, 374

Ill. App. 3d 188, 189-90, 870 N.E.2d 1040 (2007).

      In seeking to uphold the circuit court's dismissal of count

III, the defendant asserts that the parking ramp in question was

in existence when the easement was created in October of 1984,

and was, therefore, used by the hotel for more than 20 years

before the plaintiff initiated this lawsuit in 2007.                According

to the plaintiff's complaint, however, the former owners of the

plaintiff's property permitted the existence of the parking ramp

as an accommodation to the hotel.            Where, as in this case, the




                                     -12-
No. 1-09-2200

property is used with the permission of the owners, possession is

not hostile or adverse.                See McNeil, 397 Ill. App. 3d at 393.

The   complaint       further       alleges    that   this    permission       was   not

withdrawn until the plaintiff purchased the property in 2006.

Because   the       filing   of     this   lawsuit    a   year    later   tolled     the

running of the adverse possession statute (see Baird & Warner,

Inc. v. Addison Industrial Park, Inc., 70 Ill. App. 3d 59, 75,

387 N.E.2d 831 (1979)), it cannot be said that the existence of

the ramp was adverse or hostile for a period of 20 years.                        Absent

20    years    of    hostile      or   adverse    possession,      the    statute     of

limitations contained in section 13-101 does not apply.                              See

Joiner,   85    Ill.    2d     at   81.       Consequently,      the   circuit    court

erroneously dismissed count III on that basis.

       Next, the plaintiff contends that the circuit court erred in

dismissing count I of its complaint, seeking a declaration that

the defendant's rights to free parking ended in "approximately

1986," the year the original hotel ceased operations.                                The

plaintiff argues that, contrary to the circuit court's findings,

count I is not time barred under either section 13-101 or section

13-102 of      the    Code     (735    ILCS    5/13-101,     13-102    (West   2006)).

Because this count was also dismissed pursuant to section 2-

619(a)(5) of the Code (735 ILCS 5/219(a)(5) (West 2006)), our




                                           -13-
No. 1-09-2200

review is de novo.     See Fuller Family Holdings, 371 Ill. App. 3d

at 613.

      With regard to the dismissal of count I under section 13-

102, the plaintiff argues that this section of the Code sets

forth the limitations period for the recovery of land premised

upon the breach of a condition subsequent.                    According to the

plaintiff,   section   13-102      is    inapplicable    to    count   I,   as   no

condition subsequent was created by the language in the easement

stating that the free parking rights would "terminate immediately

and without further notice" when the hotel ceased operation.

      In response, the defendant asserts that the plaintiff has

forfeited this issue by failing to raise it in the circuit court.

The plaintiff disagrees, maintaining that the argument that the

easement for free parking did not contain a condition subsequent

was raised in the lower court.           Although the record reveals that,

in response to the defendant's motion to dismiss the plaintiff's

amended complaint, the plaintiff did argue that "[c]ount I seeks

a declaratory judgement that the provisions in paragraphs 2 and 3

of the easement allowing free parking to guests of the hotel have

terminated pursuant to the express provisions of paragraph 4," we

do   not   believe   that   this    vague      and   general    allegation       was

sufficient to overcome forfeiture.             Nevertheless, forfeiture is a

limitation on the parties and not this court.                  Michigan Avenue




                                        -14-
No. 1-09-2200

National Bank v. County of Cook, 191 Ill. 2d 493, 518, 732 N.E.2d

528 (2000).            In the interests of achieving a just result and

maintaining       a    sound    and    uniform       body       of   precedent,    we   will

consider this issue.                Village of Lake Villa v. Stokovich, 211

Ill. 2d 106, 121, 810 N.E.2d 13 (2004).

     Pursuant to Section 13-102 of the Code, "[n]o person shall

commence an action for the recovery of lands, nor make an entry

thereon, by       reason       of    the    breach    of    a    condition      subsequent,

unless within 7 years after the time that condition is first

broken."      735 ILCS 5/13-102 (West 2006).                           In this case, the

easement granting free parking to the hotel's patrons and guests

was to continue "so long as" the hotel remained in operation.                            It

further provided that "[c]easing to operate the subject hotel as

a   hotel    business          shall       cause    this     easement      to     terminate

immediately and without notice."                     As the easement in question

provided that, when the hotel ceased operations, the right to

free parking would automatically terminate without any reentry or

other act on the part on the grantor, the easement does not

contain a condition subsequent.                      See Pure Oil Co. v. Miller-

McFarland Drilling Co., 376 Ill. 486, 495, 34 N.E.2d 854 (1941)

(upon the breach of a condition subsequent, the property does not

automatically return to the grantor, but he or she is entitled to

reenter     and       repossess     the     estate    when       the    stated    condition




                                             -15-
No. 1-09-2200

occurs).        Moreover,       an    easement    only    provides     a   right    or

privilege      in   the   use   of    another's    property.         Matanky   Realty

Group, Inc. v. Katris, 367 Ill. App. 3d 839, 842, 856 N.E.2d 579

(2006).       Because the ownership interest in the land remains with

the grantor (Matanky Realty Group, Inc., 367 Ill. App. 3d at

842),    it    follows    that       no   right   of   reentry   or    reverter     is

necessary to revest the grantor of an easement with absolute

ownership (Schnabel v. County of DuPage, 101 Ill. App. 3d 553,

562-63, 428 N.E.2d 671 (1981)).                For these reasons, we conclude

that count I is not barred by the statute of limitations for

breach of a condition subsequent contained in section 13-102 and,

therefore, should not have been dismissed on that ground.

     We reach a similar conclusion regarding the circuit court's

dismissal of count I pursuant to section 13-101 of the Code (735

ILCS 5/13-101 (West 2006)).               As previously discussed, section 13-

101 requires 20 years of possession that must be (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.          Joiner, 85 Ill. 2d at 81; Miller, 374 Ill.

App. 3d at 189-90.              The record before us, however, does not

establish      continuous,      adverse      possession    for   a    period   of   20

years.     To the contrary, the plaintiff alleged in its amended

complaint that the hotel was not in operation from approximately




                                           -16-
No. 1-09-2200

1986 until 1999.      As a consequence, vehicles from the hotel could

not have utilized the parking lot during that period.                Even when

the hotel reopened, there is no evidence that hotel patrons or

guests were ever allowed to park on the plaintiff's property

under the terms of the easement as originally written.                Instead,

Lewis Spector, the former manager of parking lot, attested in his

affidavit that at no time after the hotel reopened in 1999 did

its managers demand that hotel patrons or guests be permitted to

park in the parking lot without charge.                  Leslie Barnard, a

member of the defendant, also admitted in his deposition that

neither he nor anyone involved in the day-to-day management of

the hotel ever demanded that the hotel's patrons or guests be

provided with free parking.           Because the evidence fails to show

the   hotel's     continuous   and    adverse   use   of    the   plaintiff's

property for 20 years, section 13-101 has no application in this

case.      Accordingly, we conclude that the circuit court, likewise,

erred in dismissing count I on that basis.

      In    a   related   argument,    the   plaintiff     asserts   that   the

circuit court erroneously denied its motion for leave to amend

its complaint to change the year the hotel ceased operations from

1986 to 1988.       In its briefs before this court, the plaintiff

admits that it sought this amendment in order to avoid the 20-

year statute of limitation contained in section 13-101.                 Having




                                      -17-
No. 1-09-2200

previously found that section 13-101 is inapplicable to the facts

of this case, we need not address the plaintiff's arguments in

this regard.

     The plaintiff also contends that it is entitled to summary

judgment on count I of its complaint and asks this court to grant

its motion in this regard.     The record, however, reflects that

the circuit court never addressed the merits of the plaintiff's

motion for summary judgment, finding the motion moot because of

its ruling that count I was time barred by sections 13-101 and

13-102.   As a consequence, we decline to address this issue for

the first time on appeal.    See Universal Underwriters Insurance

Co. v. Judge & James, Ltd., 372 Ill. App. 3d 372, 387-88, 865

N.E.2d 531 (2007).

     Finally, the plaintiff argues that the circuit court erred

in granting the defendant's motion for a directed finding on

count II of its complaint.   Again, we agree.

     In a bench trial, section 2-1110 of the Code allows the

defendant, at the close of the plaintiff's case in chief, to move

for a directed finding in his or her favor.     735 ILCS 5/2-1110

(West 2006).    In ruling on such a motion, a court must engage in

a two-step analysis.    Kokinis v. Kotrich, 81 Ill. 2d 151, 155,

407 N.E.2d 43 (1980).      First, the court must determine as a

matter of law whether the plaintiff has presented a prima facie




                                -18-
No. 1-09-2200

case.    Zannini v. Reliance Insurance Co. of Illinois, 147 Ill. 2d

437, 449,      590   N.E.2d   457   (1992).     That    is   to    say,    did   the

plaintiff present some evidence on every element essential to the

cause of action?        Kokinis, 81 Ill. 2d at 154.               Second, if the

plaintiff has presented some evidence on each element, the court

then    must   consider     and   weigh   the   totality     of    the    evidence

presented,      including     evidence     which   is    favorable         to    the

defendant.      People ex rel. Sherman v. Cryns, 203 Ill. 2d 264,

275-76, 786 N.E.2d 139 (2003).            After weighing all the evidence,

the    court   should   determine,     applying    the   standard         of    proof

required for the underlying cause, whether sufficient evidence

remains to establish the plaintiff's prima facie case.                         People

ex. rel. Sherman, 203 Ill. 2d at 276.

       If the circuit court finds that the plaintiff has failed to

present a prima facie case as a matter of law, the standard of

review is de novo.        People ex rel. Sherman, 203 Ill. 2d at 275.

If, however, the circuit court considers the weight and quality

of the evidence and finds that no prima facie case remains, the

circuit court's decision will not be disturbed on appeal unless

it is against the manifest weight of the evidence.                  Zannini, 147

Ill. 2d at 449.




                                      -19-
No. 1-09-2200

       In granting the defendant's motion for a directed finding,

the    circuit    court   determined        that     the    plaintiff          failed   to

"sustain its burden."           Specifically, the court noted that:

                   "Although      ingress      and   egress    will       be

            maintained     in     the   manner       in    which    it    is

            presently used, the easement is very specific

            as to the boundaries and as to the use of the

            entire easement property for ingress, egress,

            and   parking.        Building      of    Phase    I        would

            violate [the] defendant's rights under the

            easement."

As the plaintiff correctly asserts, the circuit court did not

make any credibility findings in reaching this conclusion and,

instead, appears to have construed the easement as a matter of

law.    Consequently, we review the circuit court's ruling de novo.

See People ex rel. Sherman, 203 Ill. 2d at 277.

       In count II, the plaintiff sought a judicial declaration

that,    during    and    after     the     construction           of    the     proposed

development, the hotel's ingress and egress would be adequately

maintained, and, as a consequence, the terms of the easement

would not be violated.          The essential elements of a declaratory

judgment action are: (1) a plaintiff having a legal, tangible

interest; (2) a defendant having an opposing interest; and (3)




                                        -20-
No. 1-09-2200

the   existence    of   an    actual     controversy    between    the      parties

concerning such interests.          Beahringer v. Page, 204 Ill. 2d 363,

372, 789 N.E.2d 1216 (2003); Record-A-Hit, Inc. v. National Fire

Insurance Co., 377 Ill. App. 3d 642, 645, 880 N.E.2d 205 (2007).

In this case, the parties do not dispute that the defendant has

an interest in this matter or that an actual controversy exits

between the parties.         Accordingly, we focus our consideration on

whether the     plaintiff     presented       some   evidence   that   it    had   a

legal, tangible interest.

      As it did in the circuit court, the defendant maintains that

its easement for ingress and egress would be violated if the

plaintiff was allowed to build the proposed development.                     Noting

that the legal description contained in the easement refers to

parcels   one     through    four   of    the    plaintiff's    property,      the

defendant asserts that it has the right of ingress and egress

over these four parcels, an area 273.33 feet by 159 feet in size.

According to the defendant, a portion of the proposed development

would require permanent improvements to be built in parcels one

through four, thereby preventing its access to this area.

      Although the general boundaries of the easement are clearly

defined by the legal description contained therein, the easement

does not provide a specific width or location for the ingress and

egress.   Cf. Ogilby v. Donaldson's Floors, Inc., 13 Ill. 2d 305,




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No. 1-09-2200

306, 148 N.E.2d 758 (1958) (easement "for the maintenance of the

present alleyway from South Main Street to Wyman Street of the

Southernly 20.15 feet in width of said lot 5"); Seymour v. Harris

Trust & Savings Bank of Chicago, 264 Ill. App. 3d 583, 586 n.3,

636 N.E.2d 985 (1994) (easements over the "southeasterly twenty

(20) feet of each said Lots 2, 3, & 4" and "southeasterly three

(3) feet of said Lot 1").             Instead, the easement merely states

that "[a]ll persons, by motor vehicle or otherwise, shall have

the rights to ingress and egress in perpetuity to or from the

property through and/or across the parking facility property."

When unspecified, the dimensions of an easement will be construed

as those reasonably necessary and convenient for the purposes for

which the easement was created.           Koplin v. Hinsdale Hospital, 207

Ill. App. 3d 219, 231, 564 N.E.2d 1347 (1990); Vallas v. Johnson,

72 Ill. App. 3d 281, 282, 390 N.E.2d 939 (1979).               Contrary to the

defendant's     assertions, the easement only grants it an ingress

and egress     of   a   width   and    location   reasonably    necessary   and

convenient for its use, not the right to utilize the entire

portion of the plaintiff's property contained in parcels one

through four.2


     2
         The defendant also contends that the easement grants it the

right to free parking throughout parcels one through four of the

plaintiff's property, and that the proposed development would


                                       -22-
No. 1-09-2200

       Furthermore, the plaintiff, as the owner of the servient

estate, may modify or relocate the easement, so long as the

changes would not cause substantial harm to the dominant estate,

in this case the defendant.                McGoey v. Brace, 395 Ill. App. 3d

847, 859, 918 N.E.2d 559 (2009); see also Restatement (Third) of

Property      §    4.8(3)   (2000).        At    trial,   James    Plunkard,    the

architect hired to design the proposed development, testified

that    the       project   could     be    completed     without     significant

interference to the hotel's ingress and egress.               Plunkard further

testified that, upon completion of the development, the hotel's

ingress and egress would be essentially the same.                  Luay Aboona, a

traffic engineer retained by the plaintiff to evaluate the impact

of the proposed development, also opined that, both during the

construction and after the development is completed, access to

the hotel property would be maintained.                   Based on the record

before us, it cannot be said the plaintiff failed to present any

evidence      establishing      that       the    defendant       would   not    be



violate that right.         In light of our previous conclusion that the

circuit court erred in dismissing count I of the plaintiff's

amended complaint, the question of whether the defendant's right to

free parking ended after the original hotel ceased operation

remains unresolved.         Accordingly, it would be premature for us to

address this issue on appeal.


                                       -23-
No. 1-09-2200

substantially   harmed   by    the     proposed     modifications    to     the

easement for ingress and egress.             In fact, after hearing the

plaintiff's case in chief, the circuit court determined that

"ingress and egress will be maintained in the manner in which it

is presently used."

      Under the facts of this case, we find that the plaintiff

presented some evidence that it had the legal right to modify the

easement for ingress and egress.            We, therefore, conclude that

the plaintiff established a prima facie case for a declaratory

judgment   action.    Consequently,         the   circuit   court   erred    in

granting the defendant's motion for a directed finding on count

II.

      For the foregoing reasons, we reverse the circuit court's

dismissal of counts I and III, reverse the entry of a directed

finding on count II, and remand the matter to the circuit court

for further proceedings.

      Reversed and remanded.


      CUNNINGHAM, P.J., and THEIS, J., concur.




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        No. 1-09-2200

                       REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                              (Front Sheet to be attached to Each Opinion)

Please use the            527 S. CLINTON, LLC, an Illinois limited liability company,
following form:
                                         Plaintiff-Appellant,
Complete                         v.
TITLE
of Case.                  WESTLOOP EQUITIES, LLC, an Illinois limited liability company,

                                         Defendant-Appellee.




Docket No.
                                         No.             1-09-2200
Court
                                                  Appellate Court of Illinois
                                                  First District, Second Division
Opinion Filed
                                                         July 20           ,2010
                                                  (Give month, day and year)


                          JUSTICE THOMAS E. HOFFMAN, delivered the opinion of the Court.

                                      CUNNINGHAM, P.J. THEIS, J.             , concur[s].
JUSTICES
                                                                           , dissent.


Appeal from the                  Lower Court and trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the                      Appeal from the Circuit Court of Cook County.
Judge Presiding.
                          The Hon.         MARTIN S. AGRAN                  , Judge(s) Presiding.


For Appellants,           Indicate if attorney represents APPELLANTS or APPELLEES and include
John Doe, of              attorneys of counsel. Indicate the word NONE if not represented.
Chicago.
                     FOR APPELLANT(s):           Kevin M. Forde, Joanne R. Driscoll and Melissa
For Appellees,                                   G. Lafferty, of Chicago & of counsel.
Smith & Smith,
of Chicago.

Also add attorneys
for third party           FOR APPELLEE(s):               Robert A. Egan, P.C., of Chicago & of counsel.
appellants and/or


                                                 -25-
       No. 1-09-2200

appellees.




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