Forest Pres. Dist. of Cook Cnty. v. Chi. Title & Trust Co.

42 N.E.3d 440

The FOREST PRESERVE DISTRICT OF COOK COUNTY, Illinois, a Body Corporate and Politic of the State of Illinois, Plaintiff–Appellant

v.CHICAGO TITLE AND TRUST COMPANY, an Illinois Corporation, as Successor Trustee of America Trust Company, as Trustee Under Trust Agreement Dated December 18, 1992, and Known as Trust Number 36–4033; and Allen Hoger, Defendants–Appellees (Manufacturers Bank, an Illinois Banking Corporation; Illinois Bell Telephone Company, an Illinois Corporation; and Unknown Owners, Defendants).

No. 1–13–1925.

Appellate Court of Illinois, First District, First Division.

Filed Sept. 30, 2015.

Rehearing Denied Nov. 6, 2015.

Dennis White, of Forest Preserve District, Neal & Leroy, LLC (Michael D. Leroy, of counsel), and Simon & Griseta (Joseph J. Griseta, of counsel), Chicago, for appellant.

Morrison & Morrison, P.C., Waukegan (Margaret Morrison Borcia, of counsel), and Tressler, LLP, Chicago (James K. Borcia, of counsel), for appellees.

OPINION

Justice CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant The Forest Preserve District of Cook County, Illinois (the District) appeals from an order of the circuit court of Cook County granting the defendants-appellees' petition pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2000) ), which sought to vacate an agreed order and judgment entered in an eminent domain action. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 The District commenced this eminent domain proceeding in 2000 to acquire land in unincorporated Orland Park, Illinois that was owned by the defendants-appellees, Chicago Title and Trust Company and Allen Hoger (the defendants). The District sought to acquire the property by condemnation pursuant to an ordinance that was purportedly passed several years earlier by the District's board of commissioners on May 20, 1991 (the “May 1991 ordinance”), authorizing the acquisition of land to connect two preexisting parcels of forest preserve.

¶ 4 The instant action against the defendants was one of multiple condemnation proceedings initiated by the District against various property owners premised on the May 1991 ordinance. However, trial courts in other cases subsequently concluded (in decisions later affirmed by our court in 2008) that the procedural requirements for the passage of the ordinance at the May 1991 board meeting were not met, and thus the ordinance was never enacted. As explained by our appellate court in an unpublished decision (the Evergreen Park decision) that consolidated appeals from two separate cases concerning the May 1991 ordinance: “The original record of the proceedings of the May 20, 1991 meeting of the District board included an ordinance enabling the acquisition of land for the forest preserve connection project, but that record did not show that the ordinance was formally introduced, read, discussed or submitted to an approval vote. That record instead shows * * * that the acquisition ordinance was deferred.” Forest Preserve District v. First National Bank of Evergreen Park, Nos. 1–04–1536, 1–04–3777 cons., slip order at 6, 383 Ill.App.3d 1138, 360 Ill.Dec. 136, 968 N.E.2d 215 (2008), (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 5 The District initiated the instant case by filing a condemnation complaint against the defendants on July 19, 2000, which cited the May 1991 ordinance as the basis for the District's authority to condemn the defendants' property. During discovery in the underlying action, the defendants requested that the District produce records concerning its authority to bring the condemnation action. In response, the District produced an unsigned document purporting to be the May 1991 ordinance. According to the defendants, they relied on the District's statements and had no reason to doubt the validity of the May 1991 ordinance. Thus, the defendants did not file a traverse, motion to dismiss, or any other objection to the District's authority to bring the condemnation action.

¶ 6 The District and the defendants reached a settlement agreement under which the defendants agreed to accept $1.7 million as the total just compensation for their property. On March 6, 2003, the settlement was memorialized and approved by the trial court in an “Agreed Final Judgment Order” (the Agreed Order). The Agreed Order included a release provision stating that upon receipt of the specified compensation, the “owners of the property release the [District] * * * from any and all claims or causes of action of any kind or character made or which could have been made in this action or any state or federal court, including any claim for compensation for the property * * * and any and all known and unknown losses and damage relating to or arising from the taking of said property through eminent domain.”

¶ 7 Meanwhile, certain other property owners in separate condemnation actions brought by the District raised challenges to the validity of the May 1991 ordinance. After such challenges, the District in May 2003 passed a new ordinance purporting to cure any procedural defects in the May 1991 ordinance. As noted in our court's subsequent Evergreen Park decision, the District's May 2003 ordinance “stated that the acquisition ordinance was in fact passed by the District's board at the May 20, 1991 meeting” and “purported to amend retroactively the record of the proceedings of that meeting to indicate that the acquisition ordinance had been passed by a unanimous vote.” Id. ¶ 8 On November 19, 2003, the trial court presiding over separate condemnation cases brought by the District against other owners (consolidated cases Nos. 00 L 50990 and 00 L 50991) dismissed those cases due to the invalidity of the May 1991 ordinance. The trial court presiding over those cases found that the ordinance was “never adopted,” “not signed,” and had not been put to a vote, concluding that since the ordinance was “not valid, the [District] cannot, as a matter of law condemn Defendants' property.” After the defendants in this case became aware of that decision, they sought to challenge the Agreed Order in their case.

¶ 9 In February 2004, the defendants filed their first section 2–1401 petition seeking to vacate the March 2003 Agreed Order, which alleged that the District's condemnation complaint had falsely represented that a valid ordinance authorizing condemnation of the property had been passed when in fact “[n]o such condemnation ordinance was considered, voted upon, or adopted.” The defendants alleged that, without the District's claims of a valid ordinance, the Agreed Order would not have been consented to by the defendants or the trial court.

¶ 10 On March 10, 2004, the District filed a motion to dismiss the section 2–1401 petition, relying primarily on the release language in the Agreed Order as a bar to a section 2–1401 petition. The District otherwise argued that the defendants failed to allege sufficient facts to sustain a section 2–1401 petition, including a meritorious defense, due diligence in bringing the defense in the original action, and diligence in bringing the petition. Specifically, the District argued that the defendants had failed to assert a traverse or other objection to challenge the District's authority prior to agreeing to settle the case.

¶ 11 On July 7, 2004, the court granted the District's motion to dismiss the original petition, but granted the defendants leave to file an amended petition, which was filed on August 10, 2004.¹ On September 28, 2004, the District moved to dismiss the amended petition, again arguing that it was barred by the release language in the Agreed Order and that the defendants had failed to show due diligence because they had failed to file a traverse.

¶ 12 On February 10, 2005, the defendants filed a response to the motion to dismiss, contending that they should not be bound by the release contained in the Agreed Order since they had entered into that agreement under the mistaken belief that the District was empowered to condemn their property. With respect to due diligence, the defendants urged that “the non-existence of an ordinance was withheld from them,” that they had reasonably relied on the District's representations that a valid ordinance existed, and that they had filed their petition within a reasonable time after learning, through separate cases, that the ordinance was not valid.

¶ 13 On August 29, 2005, the court heard oral argument on the motion to dismiss the amended section 2–1401 petition, although no transcript of such argument appears in the record. On November 22, 2005, the court granted, without prejudice, the District's motion to dismiss the amended section 2–1401 petition. The trial court's written order noted that the court had “reviewed the briefs of the parties and the arguments of counsel,” although the defendants' counsel apparently was not present at the November 22, 2005 hearing. On December 12, 2005, the defendants moved to vacate the dismissal, claiming that their counsel had been unaware of the November 22, 2005 hearing. On February 14, 2006, the District responded by filing a motion to strike the defendants' motion to vacate the dismissal.

¶ 14 On February 23, 2006, the trial court denied both the District's motion to strike as well as the defendants' motion to vacate the dismissal of the amended section 2–1401 petition. However—apparently in recognition of the fact that a challenge to the May 1991 ordinance was pending before our appellate court in separate cases—the trial court stayed enforcement of the dismissal order. For the next several years, there were no substantial proceedings in this case.

¶ 15 In August 2008, while this action was stayed, our appellate court issued its Evergreen Park order affirming the dismissal of two separate cases brought by the District pursuant to the May 1991 ordinance. See Forest Preserve District...