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No. 02--01--1458

JUSTICE McLAREN delivered the opinion of the court:

Defendant and counterplaintiff, Huntley Development LimitedPartnership (HDLP), appeals from the order of the trial courtallowing plaintiff and counterdefendant, Huntley Fire ProtectionDistrict (District), to retain possession of the parcel of propertyat 12605 Route 47 in Huntley, Illinois. The District cross-appealsfrom the portion of the same order that prohibits the District fromunrestricted sale of the property. We affirm the court's order inboth appeals.

On March 31, 1998, HDLP and the District entered into anagreement whereby HDLP agreed to donate the parcel of land locatedat 12605 Route 47 to the District, which then agreed to use theproperty "only for fire station purposes and uses necessarilyincident thereto." The parties also contemporaneously entered intoan assignment and assumption of a lease whereby the Districtassumed responsibility for the lease of a house located on theproperty. A quitclaim deed transferring title of the property tothe District and a copy of the March 31 agreement were recordedsimultaneously on December 17, 1998.

The District hired architects to study the feasibility ofusing the property for a fire station. The existence of aneasement in favor of HDLP on the property made the building of afire station infeasible. In June 1999, HDLP learned that theDistrict desired to sell or trade the property. HDLP notified theDistrict of its objection to any sale or trade of the property anddeclined to amend the agreement to allow, in addition to firestation uses and those necessarily incident to them, "other useswhich the Huntley Fire Protection District deems necessary topromote the Huntley Fire Protection District."

On June 7, 2000, the District filed a complaint fordeclaratory judgment, requesting the court to:

"A. Determine whether the sale or trade of the propertyby the District and the use of the proceeds or considerationfrom the sale or trade by the District to purchase or exchangeproperty and/or construct a fire station is a use 'necessarilyincident thereto' under the terms of the agreement; and

B. Determine whether the restrictive covenant can beenforced against the District or any other purchaser of theproperty."

HDLP filed a counterclaim, seeking a declaration that, since theDistrict alleged that the property was not suitable for purposes ofa fire station, the District must deed the property back to HDLP. After a bench trial, which included the testimony of two witnessesand a joint stipulated statement of undisputed facts, the courtdeclared that the use of the subject property was "restricted tofire station purposes and uses necessarily incident thereto." Thecourt further declared that, while construction of a fire stationwas not required by the agreement, "unrestricted sale of theproperty is not permitted thereunder." This appeal and cross-appeal followed.

We will first address the District's motion to strike exhibitA of HDLP's reply brief. Exhibit A included copies of a Districtresolution, a vacant land sales contract, and a warranty deed, noneof which were contained in the record. Attachments to briefs thatare not contained in the record are not properly before a reviewingcourt and cannot be used to supplement the record. Carroll v.Faust, 311 Ill. App. 3d 679, 683 (2000). As the documentscontained in the exhibit are not part of the record, we grant theDistrict's motion to strike.

HDLP first contends that the trial court erred in not orderingthe District to reconvey the property. The construction of acontract and the determination of the rights and obligations of theparties pursuant to the contract are questions of law. Commonwealth Edison Co. v. Illinois Commerce Comm'n, 332 Ill. App.3d 1038, 1051 (2002).

The trial court concluded that the agreement "unambiguously"stated that the property was to be used only for fire stationpurposes and uses incident thereto and that this was an enforceablerestriction on the use of the property. In addition, neither theagreement nor the deed contained any language providing for areverter. HDLP does not argue that this construction of theagreement and the deed is wrong as a matter of law. Instead, HDLPargues that, even in the absence of language regarding reversion ofthe property, the court should have ordered the reconveyance of theproperty to HDLP. We disagree.

HDLP relies on Trustees of Schools Town 16 N., R. 11 W., inMorgan County v. Braner, 71 Ill. 546 (1874), for its argument. InBraner, property was conveyed to the trustees of the schooldistrict. Although the actual language of the conveyance is notquoted, we are told that the deed specified that the property wasto be used "for school purposes." Braner, 71 Ill. at 546. Thedeed did not provide that the property would revert to the originalowner if the land was used for any purpose other than a "legitimateschool purpose." Braner, 71 Ill. at 547. The schoolhouse that waslocated on the property was eventually moved, and the trusteesadvertised the property for sale. The conveyor of the propertybrought suit, requesting that the sale be enjoined and the propertybe reconveyed to him. The trustees failed to file an answer aftertheir demurrer was overruled, and the trial court, taking the billas confessed, granted the relief sought by the plaintiff. Braner,71 Ill. at 547.

Our supreme court reversed. According to the court, the deedallowed for many uses of the property under the restriction ofschool purposes, including rental of the property and subsequentusage of the rental proceeds for school purposes. However, sale ofthe property, with subsequent usage of the funds for schoolpurposes, was not allowable, as use of the property would then be"perverted" to another use. Braner, 71 Ill. at 547-48. The courtfound that the trustees admitted that they intended to sell theproperty. However, the court held:

"[U]ntil the officers attempt to pervert [the property] toother than school purposes, or until they abandon theproperty, defendant has no right to become reinvested with thetitle." Braner, 71 Ill. at 547.

The supreme court concluded that the trial court erred in decreeingthe reconveyance of the property and reversed the trial court'sdecree. Braner, 71 Ill. at 548.

We conclude that, far from demonstrating the error of the trial court in this case, Braner supports the trial court'sconstruction of the agreement and deed. Just as the property inBraner could be used for something other than a schoolhouse, theproperty in this case can be used for something other than afirehouse. The agreement clearly allows for "uses necessarilyincident" to fire station purposes. We need not list herein whatuses are "necessarily incident" to fire station purposes. However,Braner does not hold that donated property shall revert to thedonor if the donee even considers a perverted use of the property;an actual attempt at perversion of use or abandonment of theproperty must be proved. Braner, 71 Ill. at 547. While Branerdoes allow for the reversion of property even in the absence of areversion clause in an agreement or deed, it does not authorizeautomatic reversion upon the donor's request.

HDLP then contends that the trial court erred in finding thatthere was not an "imminent attempt" by the District to pervert theuse of the property "to other than for fire station purposes" or toabandon the property. In reviewing a bench trial, we defer to thetrial court's findings of fact unless they are against the manifestweight of the evidence. Lowe Excavating Co. v. International Unionof Operating Engineers Local No. 150, 327 Ill. App. 3d 711, 720(2002). We will not substitute our judgment for that of the trialcourt regarding conflicts in testimony and the credibility ofwitnesses. Lowe Excavating Co., 327 Ill. App. 3d at 720.

Jeff Homuth testified that he had been a District trustee for10 years and a firefighter/paramedic for 14 years. In 1992, HDLPoffered the District a piece of property on Freeman Road,approximately one quarter of a mile from the subject property. However, the property had to be replatted, and the land was neverconveyed to the District. HDLP eventually approached the Districtabout donating the subject property. The District approved theagreement with HDLP in May 1998, but the agreement was not recordeduntil December 17, 1998. The District was not aware of an easementon the property in favor of HDLP until after the deed was recorded. At the time of the deed, the property contained a single-familyhome that was on a month-to-month lease to a family. After thedeed was recorded, the District hired an architectural firm todetermine the feasibility of building on the subject property. TheDistrict determined that it could not build on the property becauseof the easement in favor of HDLP, so it purchased propertyapproximately a quarter mile away and built a fire station on thepurchased property. According to Homuth, the District had notabandoned the subject property. Homuth described the subjectproperty as "a vacant piece of property that we may use for astorage facility or other training facility." The District hadthree fire stations, and the District began building the second andthird stations in August 2000.

HDLP presented the testimony of Bohdan Hirniak, a civilengineer employed by HDLP. In early 1998, he had discussions withDistrict personnel regarding the subject property. He told Maynard Williams, who was then the president of the District, that thesubject property was available for donation to the District andasked if the District would prefer the subject property to theproperty on Freeman Road that had originally been offered. TheDistrict wanted the subject property. HDLP wanted a fire stationon the subject property. Hirniak stated that the "underlyingpremise" of the contribution of the property was that it be usedfor "fire station purposes" and that Maynard understood thatpremise. Prior to the execution of the agreement, no one from theDistrict indicated that there could be a necessity to sell orotherwise exchange the property; if someone had made such anindication, HDLP "would not have given them the property."

Included in the joint stipulated statement of undisputed factsare copies of letters sent between the parties' attorneys,including a letter dated June 25, 1999, that referenced "publishedreports" that the District was considering a sale or trade of thesubject property.

We cannot conclude that the trial court's finding that therewas no imminent attempt to sell or abandon the property was againstthe manifest weight of the evidence. The District, in itscomplaint, stated that it was "desirous of selling or trading" theproperty and that it thought that such a sale or trade "wouldconstitute a use 'necessarily incident' to fire station purposes." The letter of June 25, 1999, referenced noncited "publishedreports" that the District was considering a sale or trade of theproperty. However, these pleadings and this evidence are a far cryfrom evidence of an imminent intent to sell, trade, or abandon theproperty. Indeed, the only evidence regarding the status of theproperty came from Homuth, who described the property as "a vacantpiece of property that we may use for a storage facility or othertraining facility." (Emphasis added.) This is evidence that theDistrict had options for the use of the property that did notentail abandonment or perversion of use. While the District mayhave desired to sell or trade the property and sought a declarationfrom the court that such a disposition would be allowed, there isno evidence that any attempt at perversion of use was imminent orthat the District had abandoned the property. Therefore, weconclude that the trial court did not err in finding no imminentattempt to abandon the property or to pervert its use.

In its cross-appeal, the District contends that the trialcourt should have allowed the District to sell or transfer theproperty without limitation. According to the District, HDLP actedin bad faith by reserving an easement for itself on the subjectproperty after the District had agreed to the conveyance of theproperty and without the District's knowledge; this easement madethe building of a fire station on the property infeasible. Becausethe District could not build the desired fire station on thesubject property, the District was forced to buy a nearby parcel ofproperty for $160,000 and build a fire station there. Thus, thecourt should have exercised its discretion to declare that any userestriction contained in the agreement was unenforceable against asubsequent owner so that the District could sell the subjectproperty to help defray the costs of the purchase of the otherproperty. We disagree.

The intent of the parties to a contract is not a matter ofjudicial discretion. Having determined, from the unambiguouslanguage of the agreement, that the parties intended that theproperty be used for fire station purposes or uses necessarilyincident thereto, the court did not have discretion to nullify thatintent. Furthermore, the District is not entitled to a windfall inthis case, even if the property was rendered unsuitable for a firestation by HDLP's easement. If HDLP had not donated the property,the District would have had to purchase property upon which tobuild a fire station. The District has its fire station, and itstill has the subject property to use for some purpose necessarilyincident to a fire station. The District makes no valid argumentand cites no case law that would allow it to violate the terms ofthe agreement. If the District no longer wants the property, itcan give the land back to HDLP and be in a position no worse thanif the property had never been conveyed in the first place. Wefind no error here.

For these reasons, the judgment of the circuit court of KaneCounty is affirmed.

Affirmed.

HUTCHINSON, P.J., and CALLUM, J., concur.