The Vill. of Bellwood v. Am. Nat'l Bank

2011 IL App (1st) 093115

952 N.E.2d 148

351 Ill.Dec. 775

The VILLAGE OF BELLWOOD, a Municipal Corporation, Plaintiff–Appellant,

v.AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as trustee under trust agreement dated 12/29/1949 and known as Trust # 7973, Private Bank and Trust Company, Handschy Industries, Inc., a Delaware Corporation and Unknown Owners, Defendants–Appellees.

Nos. 1–09–3115

1–09–3116

1–09–3117

1–09–3118

1–09–3119

1–09–3120

1–09–3121.

Appellate Court of Illinois, First District, Second Division.

June 7, 2011.

Shefsky & Froelich Ltd., Chicago, (J. Timothy Eaton, Douglas M. Ramsey, of counsel), Rock Fusco LLC, Chicago (John J. Rock, of counsel), for Appellant.Foran, O'Toole & Burke, LLC (Mark T. O'Toole, of counsel), for Appellee.Krasnow Saunders Cornblath, LLP, Chicago (Charles A. Valente, of counsel), for Handschy Industries, Inc.

OPINION

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

¶ 1 Plaintiff, the Village of Bellwood, appeals from an order of the circuit court in favor of defendants, American National Bank and Trust Company of Chicago, as trustee under trust agreement dated December 29, 1949, and known as Trust # 7973; Private Bank and Trust Company; Handschy Industries, Inc., a Delaware corporation; and unknown owners, denying Bellwood's motion to abandon eminent domain proceedings. On appeal, Bellwood contends that section 7–110 of the Eminent Domain Act (735 ILCS 5/7–101 et seq. (West 2004)) provides a municipality with the absolute right to abandon eminent domain proceedings prior to the municipality taking possession of the property. For the following reasons, we reverse the circuit court's order denying Bellwood's motion to abandon and remand this cause to the circuit court for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 On December 29, 2006, Bellwood initiated seven eminent domain lawsuits against defendants to acquire certain parcels of property located in Bellwood, Illinois. Bellwood sought to redevelop the properties as part of a revitalization project that was to include a new Metra train station, retail shopping and residences. The properties Bellwood sought to acquire were: 120 S. 25th Avenue, 2601 Grant Street, 2615 Grant Street, 2701 Grant Street, 2715 Grant Street, 2801 Grant Street, and 2821 Grant Street. The seven lawsuits were consolidated by the circuit court.

¶ 4 Due to concerns about possible environmental contamination of two of the properties, Bellwood hired Pioneer Engineering & Environmental Services to evaluate the condition of the properties. Pioneer determined that two of the properties were contaminated and needed to be remediated. Pioneer provided Bellwood with an estimate to remediate the properties, which ranged from $1,314,000 to $2,050,000.

¶ 5 Subsequently, Bellwood negotiated and finalized an “Agreed Stipulation and Final Judgment Order” (collectively agreed orders) with each defendant that contained the purchase price of each property and the terms of the taking. Each of the agreed orders was substantially similar, and provided generally:

- on or before September 1, 2009, Bellwood shall deposit with the treasurer of Cook County, Illinois, the sum of (amount of compensation) for the benefit of the owners, as full and just compensation for the property taken;

- upon making the deposit with the treasurer of Cook County, Illinois, Bellwood shall be thereby vested with the fee simple title to the property;

- each party waives its rights of appeal in this cause;

- this order is final and disposes of all issues that have been raised or could have been raised in this action; there is no just cause to delay entry or enforcement of this order.

Each of the agreed orders was filed with the court between October and December of 2008.

¶ 6 On August 31, 2009, the day before Bellwood was to deposit just compensation with the treasurer and take title to the properties, Bellwood filed a motion entitled “Combined Motion to Vacate Agreed Stipulation and Final Judgment Order and for Leave to Voluntarily Dismiss Complaint.” Bellwood sought to vacate all seven of the agreed orders and sought to dismiss the cases without prejudice. In the motion, Bellwood noted several reasons why the revitalization project had subsequently become financially unfeasible, including depressed property values and increased costs for remediating the contaminated properties.

¶ 7 Shortly thereafter, on September 22, 2009, Bellwood withdrew its motion to vacate and filed a motion entitled “Motion to Confirm Abandonment of Eminent Domain Proceedings and to Voluntarily Dismiss.” Bellwood sought to confirm its abandonment of the eminent domain cases pursuant to sections 7–110 (735 ILCS 5/7–110 (West 2004)) and 7–123 (735 ILCS 5/7–123 (West 2004)) of the Eminent Domain Act and sought to dismiss the complaint pursuant to section 2–1009(a) of the Code of Civil Procedure (735 ILCS 5/2–1009(a) (West 2006)). After a hearing, the circuit court denied Bellwood's motion to abandon. The court stated that it was denying the motion because “you can't just go out and make agreements and then all of a sudden back out on them. I mean, and that's the long and the short of it right there. I realize that I'm treading on some very thin ice, primarily because as a matter of law, it makes it very clear that there can be a voluntary dismissal, abandonment.” In the court's written memorandum and order, the court found that although a party generally has the right to dismiss a suit initiated under the Eminent Domain Act, Bellwood was precluded from doing so because it had entered into the agreed orders with defendants. The court determined that the agreed orders were essentially contracts that could only be modified or rescinded by the parties or for certain other reasons not applicable here. Bellwood appeals from the court's denial of its motion to abandon.

¶ 8 ANALYSIS

¶ 9 The question presented on appeal is whether Bellwood's right to abandon the eminent domain cases is precluded by Bellwood entering into the agreed orders with defendants. We note that there is no Illinois case on point in which a condemning authority has sought to abandon condemnation proceedings after entry of a settlement agreement. As such, this case presents an issue of first impression.

¶ 10 Bellwood contends on appeal that section 7–110 of the Eminent Domain Act allows it to abandon an eminent domain proceeding at any time and for any reason prior to taking possession of the property. Bellwood further maintains that the agreed orders do not affect its right to abandon because the orders made no reference to the abandonment statute.

¶ 11 Defendants contend, on the other hand, that Bellwood waived its right to abandon the eminent domain proceedings by entering into the agreed orders with defendants. Defendants also maintain that if Bellwood had any right to abandon, the right should be lost by estoppel.

¶ 12 Jurisdiction

¶ 13 Initially, we note that defendants contest this court's jurisdiction. Defendants contend that this court does not have jurisdiction because the agreed orders provided that each party waived its right of appeal and that the orders were final and disposed of all issues that were raised or could have been raised. Defendant Handschy also argues that this court does not have jurisdiction because the circuit court's order denying the motion to abandon was not final and appealable because it did not terminate the proceedings on the merits or dispose of all the rights of the parties. Bellwood disagrees, arguing that this court has jurisdiction pursuant to both Illinois Supreme Court Rules 301 (eff.Feb.1, 1994) and 303(a) (eff.Feb.1, 1994).

¶ 14 Supreme Court Rule 301 provides, “[e]very final judgment of a circuit court in a civil case is appealable as of right.” Ill. S.Ct. R. 301. Supreme Court Rule 303(a) provides that an appellant must file a notice of appeal “within 30 days after the entry of the final judgment appealed from.” Ill. S.Ct. R. 303(a). An order is final if it “terminates the litigation between the parties on the merits or disposes of the rights of the parties either on the entire controversy or on a separate * * * part of it.” Bennett v. Chicago Title & Trust Co., 404 Ill.App.3d 1088, 1094, 344 Ill.Dec. 311, 936 N.E.2d 1068 (2010). Further, an order is final when, if affirmed, the only thing remaining is to execute the judgment. Argonaut Insurance Co. v. Safway Steel Products, Inc., 355 Ill.App.3d 1, 9, 290 Ill.Dec. 797, 822 N.E.2d 79 (2004).

¶ 15 Here, we find that the order denying Bellwood's motion to abandon is a final and appealable order because it disposed of the rights of the parties and terminated the litigation. The circuit court's order denied Bellwood's motion to abandon the eminent domain proceedings and set the parties' rights and obligations in accordance with the agreed orders. All that was left for the court to do was to execute the judgement on the agreed orders.

¶ 16 Further, we cannot construe the parties' waiver of the right to appeal in the agreed orders as a waiver of Bellwood's right to appeal from the denial of its motion to abandon. Bellwood is not attacking or contesting the agreed orders; rather, Bellwood is contesting only the denial of its motion to abandon, an order separate and distinct from the agreed orders. Therefore, the parties' waiver of the right to appeal as provided for in the agreed orders does not affect Bellwood's right to appeal the denial of its motion to abandon. Accordingly, we have jurisdiction over this appeal. We now turn to consider the merits of the question presented on appeal.

¶ 17 Eminent Domain

¶ 18 Condemnation, or eminent domain, is the process by which a sovereign exercises the power to “take” private property for public purposes subject to the constitutional requirement that just compensation be paid to the owner. Forest Preserve District of DuPage County v. Brookwood Land Venture, 229...