                                  Illinois Official Reports

                                          Appellate Court



            527 S. Clinton, LLC v. Westloop Equities, LLC, 2014 IL App (1st) 131401



Appellate Court              527 S. CLINTON, LLC, Plaintiff-Appellee, v. WESTLOOP
Caption                      EQUITIES, LLC, Defendant-Appellant.

District & No.               First District, First Division
                             Docket No. 1-13-1401

Filed                        March 10, 2014
Rehearing denied             April 7, 2014

Held                         The trial court properly entered summary judgment for plaintiff,
(Note: This syllabus         finding that the defendant’s easement for the use of parking spaces on
constitutes no part of the   plaintiff’s adjoining property terminated when the hotel on
opinion of the court but     defendant’s property filed for bankruptcy and ceased operations for
has been prepared by the     several years, since the record showed that both properties were
Reporter of Decisions        owned by the same person until that person sold the hotel property to
for the convenience of       defendant’s predecessor in title and granted the purchaser the parking
the reader.)                 easement on the adjacent parcel, he included the condition that the
                             easement would terminate immediately and without further notice if
                             there was any lapse in the operation of the hotel business, except for a
                             temporary interruption due to a fire or other casualty, and in plaintiff’s
                             case, the cessation of operations did not constitute a mere temporary
                             interruption, but rather it terminated the easement and absolved
                             plaintiff of any liability for violating defendant’s right to use the
                             easement when plaintiff decided to build a multistory commercial and
                             residential building on that parcel.

Decision Under               Appeal from the Circuit Court of Cook County, No. 07-CH-12339; the
Review                       Hon. Peter Flynn, Judge, presiding.



Judgment                     Affirmed in part and reversed in part.
     Counsel on               Robert A. Egan, of Robert A. Egan, P.C., of Chicago, for appellant.
     Appeal
                              Kevin M. Forde and Joanne R. Driscoll, both of Forde Law Offices,
                              LLP, of Chicago, for appellee.




     Panel                    JUSTICE HOFFMAN delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Connors and Justice Cunningham concurred in the
                              judgment and opinion.




                                                OPINION

¶1         The defendant, Westloop Equities, LLC, appeals the circuit court order granting summary
       judgment in favor of the plaintiff, 527 S. Clinton, LLC, on both counts of the plaintiff’s second
       amended complaint which sought judicial declarations that its proposed development of a
       multistory commercial and residential building would not violate an easement held by the
       defendant. The defendant also argues the circuit court erred in refusing to modify a discovery
       order entered in the matter. For the reasons that follow, we affirm in part and reverse in part.
¶2         This is the second time the parties’ easement dispute has been before us, and we summarize
       the basic facts and procedural background of the case from our previous opinion. See 527 S.
       Clinton, LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42 (2010). The plaintiff is the owner
       of a parcel of real estate commonly known as 519-527 South Clinton Street in Chicago, Illinois
       (hereinafter, the Clinton Property); the Clinton Property is used as an open-air parking lot. Id.
       at 44. The defendant owns and operates a hotel upon a parcel of real estate adjacent to the
       plaintiff’s property and is commonly known as 506 West Harrison Street (hereinafter, the
       Hotel Property). Id.
¶3         Both properties were under common ownership until October 1984, when the Hotel
       Property was sold to the defendant’s predecessor-in-interest. Id. As part of the transaction, the
       defendant’s predecessor-in-interest was granted an easement for (1) ingress and egress to or
       from the Hotel Property (the dominant estate) through or across the Clinton Property (the
       servient estate), and (2) for free parking. Id. 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 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.

                                                   -2-
                 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.
                                                  ***
                     (d) The easement will remain in force and effect so long as the subject hotel is
                 continuously and uninterruptedly operated as a hotel. Any lapse in the operation of
                 the subject hotel property as a hotel business shall cause said easement to terminate
                 immediately and without further notice; provided however, that temporary
                 interruption in the operation of the subject hotel as a hotel due to fire or other
                 casualty or damage or due to any comparable temporary interruption shall not be
                 deemed a discontinuation or interruption under this subparagraph and shall not
                 cause said easement to terminate. Termination of said easement under this
                 subparagraph shall not solely apply to the period of inoperation, but shall be a
                 definite and final termination of said easement.
                 5. In the event the above easement terminates in accordance with Paragraph 4
             above, Grantee shall nevertheless have the ability to use such parking facilities on the
             same terms and conditions as applicable to any general public user thereof or as
             otherwise agreed upon in writing by Grantee and Grantor; including, but not limited to,
             Grantee’s right to purchase from Grantor or its lessee the use of such number of parking
             spaces as Grantee, in its sole discretion, desires.”
¶4       Over time, the hotel fell into disuse and closed. Id. at 45. In June of 1998, the defendant
     purchased the Hotel Property, refurbished the hotel, and reopened it in 1999. Id.
¶5       In October of 2006, the plaintiff purchased the Clinton Property and, thereafter, sought to
     develop the property and build a multistory commercial and residential building consisting of
     276 residential units, as well as ground-floor retail shops and parking. Id.
¶6       On March 6, 2007, the plaintiff’s representatives met with the manager of the hotel to
     discuss the proposed development. Id. In a letter dated March 23, 2007, the defendant’s
     attorney expressed his opinion that the erection of a building on the plaintiff’s Clinton Property
     would interfere with the defendant’s easement and threatened immediate litigation. Id. On
     May 8, 2007, the plaintiff filed a three-count complaint against the defendant, seeking judicial
     declarations that the defendant’s “free parking” easement ended in 1986 (count I) and that the
     proposed property development would not violate the defendant’s “ingress-egress” easement
     (count II), and seeking a mandatory injunction compelling the removal of a parking ramp
     allegedly encroaching on its property by approximately 50 feet (count III). Id. at 45-46.
¶7       The circuit court dismissed count III, finding it was time barred under section 13-101 of the
     Code of Civil Procedure (Code) (735 ILCS 5/13-101 (West 2006)), and count I, finding it was
     time barred under both section 13-101 and section 13-102 of the Code (735 ILCS 5/13-102
     (West 2006)). 527 S. Clinton, 403 Ill. App. 3d at 46-47. Count II proceeded to a bench trial and
     ended in the defendant’s favor when the circuit court granted its motion for a directed finding.
     Id. at 48. The plaintiff appealed to this court, and we reversed and remanded the matter to the
     circuit court for further proceedings. Id. at 55.


                                                 -3-
¶8         In our decision, we determined that: (1) section 13-101 of the Code, which contains a
       limitations period for adverse possession, did not apply to count I or III because there was no
       evidence that the defendant’s use of the plaintiff’s property was hostile or adverse (id. at 49,
       52); (2) section 13-102 of the Code, which contains a limitations period for the recovery of
       land based upon the breach of a condition subsequent, did not apply to count I where the
       easement did not contain a condition subsequent (id. at 51); and (3) the circuit court erred in
       granting the defendant’s motion for a directed finding where the plaintiff presented a prima
       facie case that it had the legal right to modify the ingress-egress easement (id. at 55).
¶9         On July 6, 2011, after the case was reinstated, the plaintiff filed its second amended
       complaint, which alleged additional facts and sought judicial declarations in two counts. The
       plaintiff alleged that, while its appeal was pending in 2010, its architect redesigned the
       proposed development. The new plan (hereinafter, the 2010 plan) still consisted of a 33-story,
       276-unit residential apartment building, but it retained the ground-level parking lot contained
       on the Clinton Property. The plan included a paved driveway which, according to the plaintiff,
       provided “nearly identical rights of ingress and egress and access as those presently utilized by
       the Defendant, including identical access to Defendant’s garage door to its underground
       garage.” The plaintiff further alleged that a ramp connecting the Clinton Property and the Hotel
       Property at their northern borders would be maintained for use by the defendant.
¶ 10       The plaintiff attached to its complaint the following documents: the plat of survey
       describing the Clinton Property; the easement agreement containing the language quoted
       herein; the 2007 proposed development plan; and the 2010 plan.
¶ 11       Count I sought a declaratory judgment, pursuant to section 2-701 of the Code (735 ILCS
       5/2-701 (West 2010)), that the defendant’s free parking rights under the easement terminated
       when the hotel ceased operating as a hotel in 1988.
¶ 12       Count II sought another judicial declaration, pursuant to section 2-701, that the 2010 plan
       did not violate the defendant’s reasonable ingress-egress easement rights.
¶ 13       On December 29, 2011, as to count I of the second amended complaint, the plaintiff filed a
       motion for summary judgment pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005
       (West 2010)). The plaintiff argued that it was entitled to judgment in its favor, as a matter of
       law, because there was no genuine issue of material fact regarding (1) the uninterrupted
       cessation of hotel operations on the Hotel Property between 1988 and 1999, and (2) the
       unambiguous easement language providing for termination of the free parking easement in the
       event the Hotel Property ceases to operate as a hotel.
¶ 14       In support of its argument, the plaintiff attached the affidavit of Lewis Spector, who
       attested to the fact the hotel closed in the late 1980s and did not reopen until 1999. Spector,
       whose father owned both the Hotel and Clinton Properties until 1984, managed the parking lot
       on the Clinton Property from 1992 until 2006 and was familiar with the relationship between
       the owners of the two properties. According to Spector, after the hotel reopened in 1999, the
       parking lot operators “had a handshake agreement with Leslie Barnard [managing member of
       the defendant] regarding parking,” which provided that the defendant could use 16 spaces on
       the Clinton Property at no charge and the plaintiff’s parking lot operators could park cars along
       the lower-level western wall of the hotel. He stated that the “agreement was terminated after
       approximately one year,” and thereafter, hotel guests and patrons had to pay to park on the
       Clinton Property.


                                                   -4-
¶ 15       The plaintiff also attached the affidavit of Anthony Christopher, who managed the Hotel
       Property from 1986 until the hotel closed in 1988. Christopher stated the hotel closed because
       revenues were insufficient to sustain the business and not because of any casualty or
       mechanical failures. He confirmed that the pipes had burst at one point in time, but that
       occurred only after the hotel closed and the heat had been turned off. Additionally, Leslie
       Barnard, the managing member of the defendant, admitted in his deposition that the hotel was
       not operating when the defendant purchased the property in 1997 or 1998. He testified that he
       had been told the hotel had been closed for 8 to 10 years before the defendant’s purchase of the
       Hotel Property.
¶ 16       In response, the defendant argued that the plaintiff was barred from claiming the free
       parking easement terminated because the automatic stay provision of the Bankruptcy Code (11
       U.S.C. § 362 (2006)) applied to the defendant’s predecessor-in-interest’s 1988 bankruptcy.
       According to the defendant, when its predecessor-in-interest (Equity Hotel) filed bankruptcy in
       1988, the automatic stay provision applied, barring the reversion of the easement to the
       plaintiff, and the plaintiff failed to apply for a modification of the automatic stay in the
       bankruptcy court. The defendant further argued that the plaintiff’s claims were barred by the
       doctrines of waiver, equitable estoppel and laches.
¶ 17       On February 15, 2012, the defendant filed a motion to compel the plaintiff to produce an
       unredacted real estate contract. According to the defendant, the plaintiff had recently entered
       into a contract to sell the Clinton Property, but produced a redacted version of the contract
       concealing the closing date and sale price. The plaintiff claimed such information was
       irrelevant to the proceedings at bar. On March 2, the circuit court ordered the plaintiff to
       produce a copy of the unredacted contract to the court and to defense counsel, but it prohibited
       counsel from disclosing the sale price or closing date to his client or any third party.
¶ 18       On March 20, 2012, the circuit court granted the plaintiff summary judgment as to count I
       (free parking claim) of the second amended complaint. In rejecting the defendant’s argument
       under the automatic stay provision of the Bankruptcy Code, the court noted that, under the
       plain language of the easement and this court’s prior decision, the plaintiff was not required to
       perform any subsequent action in order for the easement to terminate. The court specifically
       relied on this court’s statement that the “easement does not contain a condition subsequent”
       (527 S. Clinton, 403 Ill. App. 3d at 51) in its determination that the plaintiff was not required to
       seek a modification of the automatic stay provision in the bankruptcy court to cause the
       easement to terminate. The circuit court further stated that, even in absence of our earlier
       decision, the language of the easement unambiguously provided that it would terminate,
       without any action by the plaintiff, when the Hotel Property ceased to operate as a hotel.
       Regardless, the court noted that Equity Hotel’s bankruptcy had ended by the time the
       defendant purchased the property and therefore the automatic stay provision was no longer in
       force.
¶ 19       The circuit court further rejected the defendant’s remaining arguments. Regarding waiver,
       the circuit court determined that, based on Spector’s affidavit, the parties conducted
       themselves in a manner which indicated the easement had terminated. The court found that
       Spector and the defendant would not have needed a “handshake agreement” regarding parking
       had the easement still been in force. Accordingly, the court rejected the defendant’s argument
       that the plaintiff waived its right to assert the termination of the easement when it agreed to
       provide free parking on the Clinton Property in 1999. The court further rejected the

                                                    -5-
       defendant’s equitable estoppel and laches arguments, stating that each depended upon the
       argument that neither the plaintiff nor its predecessor gave any notice of the termination of the
       easement and notice was not required under the terms of the easement.
¶ 20       On April 17, 2012, the defendant sought a modification of the court’s previous order
       prohibiting counsel from disclosing the sale price and closing date of the plaintiff’s pending
       real estate contract. The defendant claimed that the information was necessary to develop a
       mootness defense. The court denied this motion in an order dated October 10, 2012, stating
       that the publication of the confidential terms was unnecessary to raise a mootness defense.
       Further, the court stated that the pending sale of the Clinton Property did not render the
       easement issue moot because the sales contract provided that the plaintiff convey title free and
       clear of the current litigation, meaning the issues in the case had to be decided regardless of the
       pending sale.
¶ 21       On June 8, 2012, the plaintiff moved for summary judgment as to count II (ingress-egress
       claim) of the second amended complaint, arguing that the undisputed facts demonstrated that
       the 2010 plan would not interfere with the defendant’s ingress-egress rights under the
       easement. In support, the plaintiff attached the affidavit of James Plunkard, the architect who
       created the 2010 plan. According to Plunkard, the 2010 plan allowed for continued ingress and
       egress from the Hotel Property to the Clinton Property in substantially the same manner as
       currently exists. He further stated in his affidavit that the 2010 plan continued to provide access
       from the Hotel Property’s upper driveway to its underground parking and service entrance and
       access to the Hotel’s nine-foot strip of property to the west of its western wall, where its
       electrical room is located.
¶ 22       In response, the defendant submitted the affidavit of James Ricci, an employee of the
       company which manages the hotel on the Hotel Property. Ricci stated that there is a nine-foot
       strip of alley space adjacent to the west of the hotel containing parking spaces used by the
       hotel. He stated that “if a building is built next door, on or close to the property line, we would
       be unable to park vehicles in that area” and “ingress and egress would be blocked by the light
       stanchions that are placed in that area.” Ricci further stated that if a building was built close to
       the property line of the Clinton Property, the garbage disposal service trucks would be unable
       to access the dumpsters in that area. Adrienne Davis, an employee of the hotel, stated in her
       affidavit that “if a building is built on the [Clinton Property], we would not be able to park
       vehicles in those areas [the nine-foot alley] because we need to traverse the parking lot of the
       adjacent property to get to those parking spaces.”
¶ 23       The defendant also included the affidavit of Sherwin Braun, an architect who reviewed the
       2010 plan. Braun concluded that, based upon the proposed plan documents, the existing ramp
       that the hotel uses would have to be removed and temporarily relocated, possibly requiring
       reconfiguration of the current traffic used by the hotel and parking lot properties. He opined
       that the ramp could eventually be rebuilt in its present location. Braun further stated that “[i]t
       [was] [his] opinion that the high rise residential building could be built without significant
       disturbance to the use of the easement,” but significant disruption to the hotel’s ingress and
       egress would occur during the construction of the new complex, which would likely take two
       years to complete. According to Braun, “with the present condition of the 9[-foot strip]
       adjacent to the western elevation of the hotel, the hotel would lose substantial parking and
       parking revenue.”


                                                    -6-
¶ 24        On January 10, 2013, the circuit court granted the plaintiff summary judgment as to count
       II of the second amended complaint. The court determined that the evidence established that
       the 2010 plan did not interfere with the defendant’s ingress-egress rights and that the
       defendant’s evidence was merely speculative.
¶ 25        On March 5, 2013, the circuit court denied the defendant’s motion to reconsider its ruling
       as to count II. This appeal followed.
¶ 26        Summary judgment is a drastic means of disposing litigation and therefore should be
       granted only 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 a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010); Happel
       v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 185-86 (2002). “The purpose of a summary judgment
       proceeding is not to try an issue of fact, but to determine whether any genuine issue of material
       fact exists.” Id. at 186. When considering a motion for summary judgment, we construe the
       facts strictly against the moving party and in the light most favorable to the nonmoving party.
       Id. Our review of a circuit court order granting summary judgment is de novo. Id. at 185.
¶ 27        On appeal, the defendant first argues that the court erred in granting summary judgment in
       favor of the plaintiff as to the free parking claim in count I, because the court improperly
       concluded that the automatic stay provision of the Bankruptcy Code and the doctrines of
       waiver, laches, and estoppel did not apply in this case. The defendant further argues the
       plaintiff lacks standing to argue that the easement terminated and that the court erred when it
       determined that the cessation of hotel operations was not temporary. In construing the plain
       language of the easement, we agree with the circuit court that the free parking easement
       terminated when the Hotel Property ceased operating as a hotel between 1988 and 1999.
¶ 28        A grant of an easement is construed using the same rules applied to deeds and other written
       instruments or agreements. Duresa v. Commonwealth Edison Co., 348 Ill. App. 3d 90, 101
       (2004). “Generally, an instrument creating an easement is construed in accordance with the
       intention of the parties, 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.” River’s Edge Homeowners’ Ass’n v. City of Naperville, 353
       Ill. App. 3d 874, 878 (2004). “Courts tend to strictly construe easement agreements so as to
       permit the greatest possible use of property by its owner.” Duresa, 348 Ill. App. 3d at 101. If
       the language of the agreement is facially unambiguous, then the circuit court interprets the
       contract as a matter of law without the use of extrinsic evidence. River’s Edge, 353 Ill. App. 3d
       at 878. Whether an agreement is ambiguous and requires parol evidence is a question of law,
       subject to de novo review. Id.
¶ 29        Here, the language of the agreement granting the easement is unambiguous. The agreement
       unequivocally provided that the “easement will remain in force and effect so long as the
       property is operated as a hotel,” and that “[c]easing to operate the subject hotel as a hotel
       business shall cause this easement to terminate immediately and without notice.” Section 4(d)
       of the easement further stated that the easement would remain in force so long as the hotel
       “continuously and uninterruptedly operated as a hotel” and that “[a]ny lapse in the operation
       *** as a hotel business shall cause [the] easement to terminate immediately and without further
       notice,” except in instances of a temporary interruption, such as one due to a fire or a similar
       casualty. Moreover, the agreement provided that the termination of the easement due to a
       nontemporary business interruption would be “a definite and final termination of [the]

                                                    -7-
       easement.” Thus, the language of the agreement unambiguously provided that the easement
       terminates upon the nontemporary interruption of hotel operations and no action by any party
       is required to effectuate the termination. As the circuit court duly noted in its decision, we so
       determined in our earlier decision that no action by any party was required to effectuate the
       termination. See 527 S. Clinton, 403 Ill. App. 3d at 50-51 (finding that the instrument provided
       that the easement would automatically terminate without any action by the plaintiff).
¶ 30        It is undisputed in this case that the Hotel Property ceased operating as a hotel between
       1988 and 1999 and, contrary to the defendant’s argument, the cessation of hotel operations for
       more than a decade due to a bankruptcy does not constitute a “temporary” interruption as
       contemplated by the agreement. While the defendant argues the question of a “temporary”
       interruption is one of fact, “the mere allegation that a material fact exists does not create such
       an issue or avoid the imposition of summary judgment” (Douglas Theater Corp. v. Chicago
       Title & Trust Co., 210 Ill. App. 3d 301, 309 (1991)). As stated, the interpretation of the
       instrument granting the easement is a question of law when the terms are clear and
       unambiguous, and an ambiguity is not created simply because the two parties cannot agree. Id.
       Rather, “[a]n ambiguity occurs only when the language is reasonably susceptible to more than
       one meaning.” Id. The language of section 4(d), which likens a “temporary interruption” as one
       “due to a fire or other casualty or damage or due to any comparable temporary interruption,”
       cannot reasonably be construed to include a decade-long interruption due to an owner’s
       bankruptcy, as such a closure is not comparable to a temporary one caused by a fire or similar
       casualty. Accordingly, we affirm the judgment of the circuit court, which granted summary
       judgment as to count I of the second amended complaint in favor of the plaintiff.
¶ 31        We also reject the defendant’s remaining arguments. First, the automatic stay provision of
       the Bankruptcy Code did not apply to the termination of the easement provision for two
       reasons: (1) the plaintiff’s action did not involve any property owned by the debtor (see 11
       U.S.C. § 362(a) (no section applies to easement rights)); and (2) the bankruptcy of the
       defendant’s predecessor-in-interest had ended by the time the defendant purchased the
       property and, therefore, the property was no longer part of any bankruptcy estate (see 11
       U.S.C. § 362(c) (2006)).
¶ 32        Second, we reject the defendant’s argument that the plaintiff waived its right to raise the
       termination provision of the free parking easement agreement when it continued to provide
       free parking under the “handshake agreement.” The undisputed evidence showed that the
       parties conducted themselves as if the easement had terminated; namely, Spector testified that
       he and the hotel parking operators had a short-lived “handshake” agreement when the hotel
       first reopened in 1999 in which the hotel could use 16 parking spaces for free in exchange for
       the plaintiff’s use of the spaces along the hotel’s western wall. As the circuit court noted, there
       was no evidence that the defendant demanded free parking from the plaintiff by virtue of the
       easement. Had the defendant exercised its right under the easement and the plaintiff granted its
       request, thereby exhibiting a voluntary relinquishment of a known right, there may have been a
       question of fact regarding whether the plaintiff waived its right to assert that the easement had
       terminated. See Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 66
       (defining “waiver” as the voluntary relinquishment of a known right and stating it arises from
       an affirmative, consensual act consisting of an intentional relinquishment of a known right).
       However, there is no evidence in the record that the defendant ever demanded free parking
       under the easement after it purchased the Hotel Property.

                                                    -8-
¶ 33        Third, the defendant argues that the doctrine of laches applies where it knew of and relied
       upon the easement agreement when it purchased the hotel and expended $10 million
       renovating it and where the plaintiff neglected to assert its right in a timely fashion. The
       evidence does not support the defendant’s argument as the plaintiff filed suit in May 2007,
       shortly after its purchase of the Clinton Property in October 2006. Further, there is no evidence
       contained in the record demonstrating that the defendant purchased the Hotel Property in 1999
       in reliance upon the easement agreement. See McDunn v. Williams, 156 Ill. 2d 288, 330-31
       (1993) (noting that two elements are necessary to a finding of laches: “(1) lack of diligence by
       the party asserting the claim and (2) prejudice to the opposing party resulting from the delay”
       (internal quotation marks omitted)). In fact, despite Barnard’s testimony that he relied upon the
       easement terms when he purchased the Hotel Property, he admitted that he knew no hotel had
       operated on the property for 8 to 10 years before his purchase. Barnard also never testified as to
       demanding free parking from the plaintiff under the easement, and Spector testified that, in
       fact, there was a handshake agreement regarding free parking with Barnard for approximately
       one year. Thus, the defendant could not have relied upon the easement when, based on its plain
       language, the free parking easement terminated before the purchase of the Hotel Property and
       where it never demanded free parking under the easement after its purchase.
¶ 34        Fourth, we reject the defendant’s argument that the plaintiff, because it knew of the
       easement agreement’s existence when it purchased the Clinton Property in 2007, was estopped
       from raising the termination provision. The plaintiff attached to its motions for summary
       judgment the opinion letters, predating the closing on the Clinton Property, of two attorneys,
       who opined that the free parking easement had terminated long before 2007. Thus, the record
       establishes that the plaintiff purchased the property knowing that it was subject only to the
       terms of the easement agreement that were still in force. The plaintiff in this case is not denying
       the existence of the easement (see Curt Bullock Builders, Inc. v. H.S.S. Development, Inc., 225
       Ill. App. 3d 9, 15 (1992) (finding party estopped from denying existence of easement where
       party knew of its existence, its use by the other party, and benefitted therefrom)), but only the
       seeking a judicial declaration as to its terms. Thus, the doctrine of estoppel does not apply to
       the facts presented here.
¶ 35        The defendant’s argument that the plaintiff lacks standing to assert the automatic
       termination provision in the agreement also fails because easement rights pass to and are
       binding upon all subsequent grantees of the land, such as the plaintiff in this case. See Flower
       v. Valentine, 135 Ill. App. 3d 1034, 1039 (1985) (“The right created by such easement will pass
       respectively to and be binding on all subsequent grantees of the respective tracts of land.”).
       Thus, after purchasing the Clinton Property, the plaintiff had standing to seek a judicial
       declaration that the free parking easement had terminated and was not binding upon it.
¶ 36        Next, the defendant argues that the court erred in granting summary judgment as to count II
       (ingress-egress claim) because there was a genuine issue of material fact as to whether the
       plaintiff’s 2010 plan interfered with its ingress-egress rights under the easement agreement. On
       this point, we agree with the defendant.
¶ 37        Whether a party should be allowed to proceed with a proposed change to an easement
       requires a consideration of the substantiality of the change. McGoey v. Brace, 395 Ill. App. 3d
       847, 853 (2009). The substantiality of a proposed change is “measured in terms of the effect
       that the change will have upon the rights of the other parties to the easement” (id. at 856-57),
       meaning the “court does not look to whether the change is substantial in its own right, but

                                                    -9-
       rather to the way in which the correlative estate is burdened by that change” (id. at 858). Stated
       otherwise, substantiality in which the servient estate (the plaintiff in this case) wishes to
       modify an easement upon its property is properly measured in terms of the harm to the owners
       of the dominant estate (the defendant) in light of policy concerns such as the desire to
       encourage valuable improvements to servient estates without harming easement holders. Id. at
       859. Whether a proposed change is substantial and whether the change has a negative impact
       on the dominant estate or other parties to the easements are generally questions of fact for the
       fact finder. Id. at 860.
¶ 38        Here, the plaintiff submitted evidence that the 2010 plan would not negatively impact the
       defendant’s ingress-egress rights. Plunkard stated in his affidavit that the 2010 plan would not
       affect the defendant’s current ability to ingress and egress over the properties. In response, the
       defendant submitted Ricci’s affidavit in which he countered that the defendant’s ability to
       access the nine-foot strip along the west edge of the hotel would be negatively affected by the
       2010 plan. He further stated that the 2010 plan would impede the defendant’s ability to access
       its dumpsters located within that strip. The defendant also submitted affidavits from Davis and
       Braun, who both indicated the 2010 plan would impede the defendant’s ability to ingress and
       egress the properties and would impede its access to the nine-foot strip along the west side of
       the hotel. While Braun stated that the overall 2010 plan would not significantly impact the
       defendant’s ingress-egress easement rights when completed, he opined that during the
       two-year-long construction project, construction equipment and other disruptions necessary to
       the project would significantly and negatively impact the defendant by interfering with its
       ability to ingress-egress the properties and would cause a loss to the defendant’s available
       parking and parking revenue. We disagree with the circuit court that the defendant’s evidence
       was merely speculative as the evidence presented raises factual issues regarding whether the
       2010 plan was a substantial change and whether it would harm the defendant such that the
       proposed change should not be allowed. Such factual questions should not be determined as a
       matter of law in a summary judgment motion. See Moore v. Everett Snodgrass, Inc., 87 Ill.
       App. 3d 388, 393 (1980) (summary judgment is inappropriate where a genuine dispute on any
       material fact exists). Accordingly, we reverse the judgment of the circuit court which granted
       the plaintiff summary judgment as to count II of the second amended complaint.
¶ 39        Finally, the defendant argues that the circuit court erred in refusing to modify its discovery
       order prohibiting counsel from disclosing the purchase price and closing date from the
       plaintiff’s pending real estate contract for the sale of the Clinton Property. We disagree.
¶ 40        Supreme Court Rule 201(c) provides that a court may enter a protective order, either at the
       request of any party or even on its own motion, as justice requires, denying, limiting,
       conditioning, or regulating discovery to prevent unreasonable annoyance, expense,
       embarrassment, disadvantage, or oppression. Ill. S. Ct. R. 201(c) (eff. Jan. 1, 2013); Payne v.
       Hall, 2013 IL App (1st) 113519, ¶ 12. The circuit court has discretion to determine whether
       justice requires a protective order, and if so, what the parameters of the order should be. Id. We
       will not disturb the circuit court’s decision unless the court has abused its discretion. Id. “A
       court abuses its discretion only if it acts arbitrarily, without the employment of conscientious
       judgment, exceeds the bounds of reason and ignores recognized principals of law; or if no
       reasonable person would take the position adopted by the court.” Id.
¶ 41        The circuit court in this case determined that it was unnecessary for the defendant to
       publish the confidential terms in order to raise its mootness. The defendant has also not

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       established how the confidential nature of the purchase price and closing date has impeded it
       from investigating and raising a mootness defense. Rather, the defendant has simply made a
       conclusory allegation that the court’s order denied it from “the opportunity to develop any
       theory of mootness and to investigate, thus, being unable to determine as to whether or not a
       declaratory judgment action was ‘ripe.’ ” Further, it is undisputed that the real estate contract
       required the plaintiff to convey title free and clear of the pending litigation, and thus, the circuit
       court was correct in finding that, regardless of the confidential terms, the issues in the case at
       bar were not moot. Under these facts, we cannot find the circuit court abused its discretion in
       refusing to modify its protective order.
¶ 42       For the reasons stated, we affirm the judgment of the circuit court of Cook County as to
       count I of the second amended complaint and its denial to modify the discovery order
       pertaining to the plaintiff’s real estate contract, and we reverse the judgment of the circuit court
       as to count II of the second amended complaint.

¶ 43       Affirmed in part and reversed in part.




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