                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court



          Harris, N.A. v. Sauk Village Development, LLC, 2012 IL App (1st) 120817




Appellate Court            HARRIS, N.A., Plaintiff, v. SAUK VILLAGE DEVELOPMENT, LLC,
Caption                    GREGORY STEC, GS MANAGEMENT, LLC, SEAMUS MORIARTY,
                           KONSTANTINOS D. ANTONIOU, MARTINEZ FROGS, INC.,
                           RICARDO MARTINEZ, TEKNA CONSTRUCTION COMPANY, LLC,
                           JAMES B. PLANEY, G & D EXCAVATING, INC., UNKNOWN
                           OWNERS AND NONRECORD CLAIMANTS, Defendants (Chicago
                           Title Land Trust Company, as Trustee u/t No. 9173, Third-Party Plaintiff-
                           Appellant; Harris, N.A. and Sauk Village Development, LLC, Third-
                           Party Defendants-Appellees).


District & No.             First District, Second Division
                           Docket No. 1-12-0817


Filed                      December 24, 2012


Held                       In an action arising from third-party plaintiff’s erroneous conveyance of
(Note: This syllabus       a 46-acre parcel to defendants to satisfy a contract for the sale of only
constitutes no part of     17.48 acres, the trial court’s denial of third-party plaintiff’s motion to
the opinion of the court   reconsider the orders dismissing its complaint for slander of title and to
but has been prepared      quiet title and approving the judicial sale of the entire parcel to the
by the Reporter of         purchaser’s mortgagee was upheld, because third-party plaintiff no longer
Decisions for the          owned the property and lacked standing.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-49752; the
Review                     Hon. Daniel Patrick Brennan and the Hon. Margaret Ann Brennan,
                           Judges, presiding.


Judgment                   Affirmed.
Counsel on                  Schain, Burney, Banks & Kenny, Ltd., of Chicago (James R. Griffin and
Appeal                      Michael R. Burney, of counsel), for appellant.

                            Crowley & Lamb, P.C., of Chicago (James M. Crowley, of counsel), for
                            appellees.


Panel                       PRESIDING JUSTICE HARRIS delivered the judgment of the court,
                            with opinion.
                            Justices Quinn and Simon concurred in the judgment and opinion.



                                              OPINION

¶1          Third-party plaintiff, Chicago Title Land Trust Company (CTLT), appeals the judgment
        of the circuit court denying its motion filed pursuant to section 2-1203 of the Illinois Code
        of Civil Procedure (735 ILCS 5/2-1203 (West 2008)), to reconsider and vacate orders
        dismissing the amended third-party complaint and approving the judicial sale. On appeal,
        CTLT contends the trial court erred in denying its motion to reconsider when it made a
        mistake in law by ruling that CTLT has no standing to file its amended complaint. For the
        reasons that follow, we affirm.

¶2                                           JURISDICTION
¶3          The trial court entered a final judgment in the instant case on February 8, 2011, and
        plaintiff filed its notice of appeal on March 10, 2011. Accordingly, this court has jurisdiction
        pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final
        judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶4                                       BACKGROUND
¶5          On May 27, 2007, CTLT and Greg Stec (Stec) entered into a contract to purchase vacant
        land in Sauk Village, Illinois. CTLT owned approximately 46 acres of vacant land. The
        contract to purchase involved 16.64 acres of that land. At the same time, James Planey
        (Planey) and Stec entered into a contract with CTLT to purchase another parcel of
        approximately 0.8 acres. Stec subsequently assigned his interest in the contracts to Sauk
        Village Development (SVD).
¶6          The closing occurred on December 11, 2007. In connection with the closing, CTLT and
        SVD executed a closing statement which described the sale property as consisting of 16.64
        acres. The deed executed and delivered by CTLT at the closing listed the property address
        as “16.64 acres at NEC of Torrence Avenue & Sauk Trail Road, Sauk Village, IL 60411.”
        However, the legal description of the sale property contained in the deed described the entire

                                                  -2-
       46 acres owned by CTLT. The deed was recorded with the Cook County recorder of deeds.
¶7         At the time of the closing, SVD also secured a loan on the property in the amount of
       $1,849,700 with Harris, N.A. (Harris). The mortgage on the loan contained only the legal
       description from the deed describing the entire 46 acres. SVD also entered into a construction
       loan agreement with Harris. This agreement described the land as 17.48 acres (16.64 acres
       plus approximately 0.8 acres), although the legal description again described the entire 46-
       acre parcel.
¶8         Some time after the mortgages were recorded, CTLT discovered the error. They made
       a request to SVD to correct the error by executing and delivering a quitclaim deed. By
       quitclaim deed SVD reconveyed approximately 29.49 acres of property to Planey as nominee
       for Sauk Village Venture, a beneficiary of CTLT. The quitclaim deed was recorded on May
       14, 2009. The plat act affidavit filed by SVD in connection with the quitclaim deed stated
       that the conveyance was “made to correct descriptions in prior conveyances.” The
       reconveyed property, however, was still subject to the Harris mortgage.
¶9         SVD subsequently defaulted on its loans. On February 15, 2009, Harris, SVD, and Stec
       entered into a forbearance agreement in which SVD and Stec acknowledged the defaults and
       affirmed the validity of the mortgage and note. On July 15, 2010, CTLT filed its first third-
       party complaint for reformation due to the error in the description of the property contained
       in the mortgage. Harris filed a motion to dismiss the complaint. In support of its motion,
       Harris argued that CTLT was no longer owner of the disputed 30 acres and lacked standing
       to bring the complaint. It also alleged that CTLT received the relief it requested when SVD
       executed the quitclaim deed. The trial court granted the motion to dismiss.
¶ 10       On January 21, 2011, CTLT filed an amended two-count complaint to quiet title and for
       slander of title. The complaint requested that the court quiet title to approximately 30 acres
       by releasing Harris’ mortgage on that property, and sought compensatory and punitive
       damages for slander of title. Harris filed a motion to dismiss the amended complaint pursuant
       to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West
       2008)) on the quiet title count, alleging that CTLT does not have standing to bring the claim.
       Alternatively, Harris sought dismissal of the complaint pursuant to section 2-615 of the Code
       based on the slander of title count. The trial court granted Harris’ section 2-619 motion to
       dismiss on April 12, 2011.1
¶ 11       Meanwhile, Harris filed motions for summary judgment, default, judgment of foreclosure
       and sale, and to appoint a selling officer. On February 2, 2011, the trial court granted Harris’
       summary judgment motion for default. On May 24, 2011, the trial court entered judgment
       of foreclosure and sale in favor of Harris. The judgment involved the entire 46-acre property
       described in the mortgage. Harris was the successful bidder at a judicial sale on September


               1
                The record does not contain a report of the proceedings on the motion to dismiss, nor is
       there a bystander’s report or agreed statement concerning the proceedings. CTLT, as the appellant,
       has the burden to present a complete record on appeal to support its claims of error. Foutch v.
       O’Bryant, 99 Ill. 2d 389, 392 (1984). Without a complete record, this court presumes that the trial
       court entered its order in conformity with the law and it had a sufficient factual basis. Id.

                                                  -3-
       30, 2011, and the trial court confirmed the judicial sale on October 26, 2011.
¶ 12       On November 23, 2011, CTLT filed a motion to reconsider and vacate orders dismissing
       the amended third-party complaint and approving the judicial sale. In its motion, CTLT
       alleged that the trial court misapplied the law in dismissing its amended third-party complaint
       pursuant to section 2-619. The trial court denied the motion on February 28, 2012, finding
       no misapplication of the law in granting the motion to dismiss CTLT’s amended complaint
       since CTLT did not own the disputed property and therefore lacked standing to assert a claim
       to quiet title and for slander of title. CTLT filed this timely appeal.

¶ 13                                           ANALYSIS
¶ 14        CTLT contends that the trial court erred in denying its motion to reconsider because it
       misapplied the law in dismissing CTLT’s amended third-party complaint. This court reviews
       a denial of a motion to reconsider based on the trial court’s misapplication of the law de
       novo. Muhammad v. Muhammad-Rahmah, 363 Ill. App. 3d 407, 415 (2006). We also review
       dismissal of a complaint under either section 2-619 or 2-615 of the Code de novo. Kean v.
       Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009).
¶ 15        The trial court dismissed the complaint pursuant to section 2-619 because it determined
       that CTLT lacked standing to bring the claim. A section 2-619 motion for involuntary
       dismissal “admits the legal sufficiency of the plaintiff’s complaint, but asserts an affirmative
       defense or other matter that avoids or defeats the plaintiff’s claim.” Barber v. American
       Airlines, Inc., 241 Ill. 2d 450, 455 (2011). Lack of standing is an affirmative defense. Greer
       v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494 (1988). Therefore, lack of
       standing is properly raised as an affirmative defense in a section 2-619 motion to dismiss.
       Record-A-Hit, Inc. v. National Fire Insurance Co. of Hartford, 377 Ill. App. 3d 642, 648
       (2007). When a party moves to dismiss a complaint pursuant to section 2-619 based on lack
       of standing, all well-pled facts in the complaint are taken as true. DeWoskin v. Loew’s
       Chicago Cinema, Inc., 306 Ill. App. 3d 504, 513 (1999). Harris bears the burden to plead and
       prove CTLT’s lack of standing. Law Offices of Colleen M. McLaughlin v. First Star
       Financial Corp., 2011 IL App (1st) 101849, ¶ 16.
¶ 16        CTLT argues the trial court erred in dismissing its amended complaint because CTLT
       never intended to convey the approximately 30 acres of land at issue and is therefore still
       owner of that land. Furthermore, since CTLT never consented to the mortgage on the 30
       acres, the mortgage should be removed as an encumbrance on CTLT’s title. CTLT maintains
       that its action to quiet title is the appropriate remedy to remove a cloud on its title.
¶ 17        However, in order to maintain an action to quiet title one must hold title to the property.
       La Salle National Bank v. Kissane, 163 Ill. App. 3d 534, 540 (1987) (a party “cannot
       complain of a cloud of title absent proof of title in himself” (citing Klingel v. Kehrer, 81 Ill.
       App. 3d 431, 439 (1980))). CTLT argues that it still holds title to the 30 acres because the
       property was conveyed through an erroneous legal description contained in the deed.
       Although the deed described the entire 46 acres owned by CTLT, the front of the deed and
       the sales contract clearly showed an intent to transfer only approximately 17 acres. As
       support, CTLT cites David v. Schiltz, 415 Ill. 545 (1953), and Korsgaard v. Elliott, 17 Ill.

                                                 -4-
       App. 3d 1061 (1974), in which the court allowed reformation of the erroneous deeds to
       reflect the actual intention of the parties.
¶ 18        David and Korsgaard are distinguishable. The plaintiffs seeking deed reformation in
       David and Korsgaard remained owners of the property in question. Thus, the issues of
       ownership and title did not arise in those cases. In the case at bar, CTLT had title to the
       disputed 30 acres when it executed the erroneous deed to SVD. It subsequently discovered
       the error but it did not file an action to reform the deed as occurred in David and Korsgaard.
       Instead, CTLT made a request to SVD to correct the error by executing and delivering a
       quitclaim deed. In its amended complaint and response to Harris’ motion to dismiss, CTLT
       stated that SVD reconveyed by quitclaim deed approximately 29.49 acres of property to
       Planey as nominee for Sauk Village Venture, a beneficiary of CTLT. The plat act affidavit
       filed by SVD in connection with the quitclaim deed stated that the conveyance was “made
       to correct descriptions in prior conveyances.” It appears CTLT and SVD attempted to correct
       the error through reconveyance of the 30 acres by quitclaim deed to Planey. Without title to
       the property in question, CTLT lacks standing to file an action to quiet title. Bennett v.
       Chicago Title & Trust Co., 404 Ill. App. 3d 1088, 1100 (2010).
¶ 19        CTLT contends, however, that the trial court should not have dismissed its amended
       complaint because CTLT alleged sufficient facts to demonstrate standing, and on a section
       2-619 motion to dismiss, all well-pled facts in the complaint are taken as true. CTLT argues
       its allegation that it owns the 30 acres at issue sufficiently demonstrates standing because
       facts show it never intended to convey the property to SVD. As support, CTLT cites McVey
       v. Unknown Shareholders of Inland Coal & Washing Co., 100 Ill. App. 3d 584 (1981). In
       McVey, the plaintiff brought suit to quiet title alleging that he owned the property in question
       through title acquired by a 1958 deed. Id. at 585. The trial court held that the deed did not
       convey title or interest in the property to the plaintiff. Id. The appellate court, however,
       determined that the language of the deed could be construed to convey a fee simple title to
       the plaintiff subject to an easement held by a railroad company. Id. at 586-87. Therefore, the
       plaintiff’s allegation that he owned the property by way of the deed was sufficient to show
       standing to bring his suit. Id. at 588.
¶ 20        McVey is distinguishable. The plaintiff in McVey held a deed to the property in question
       and the issue was whether the deed conveyed title in that property. Here, CTLT concludes
       in its amended complaint that it still owns the property in question. However, CTLT alleged
       facts contradicting that conclusion. It stated that SVD executed and delivered a quitclaim
       deed for the 30 acres to Planey, at CTLT’s request, “to correct descriptions in prior
       conveyances.” There is no allegation that this conveyance was erroneous or fraudulent. In
       reviewing a motion to dismiss, this court does not consider conclusions unsupported by
       specific factual allegations. Management Ass’n of Illinois, Inc. v. Board of Regents of
       Northern Illinois University, 248 Ill. App. 3d 599, 606 (1993). We find that CTLT does not
       have title to the property in question, and the trial court properly dismissed its complaint to
       quiet title for lack of standing.
¶ 21        Due to our disposition of this issue, we need not consider CTLT’s alternative claim that
       the trial court erred in dismissing its amended complaint pursuant to section 2-615 because
       the complaint alleged the necessary facts to maintain an action for slander of title.

                                                 -5-
¶ 22   For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 23   Affirmed.




                                           -6-
