APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
R. DORAN, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 12, 1977.
Because of the similarity in names between the various parties and their various positions in the numerous lawsuits involved, for the purpose of simplicity we will designate them as the owner, the developer and the Village. The term owner includes Roy C. Anderson and Astrid M. Anderson, his wife, and Long Grove Country Club, Inc., an Illinois corporation. At various times the owner is the defendant, the counterplaintiff and the plaintiff in two of the suits involved herein. The developer is the Long Grove Country Club Estates, Inc., also involving a man by the name of Robert J. Anderson. The developer at various times has been the plaintiff, counterdefendant and third-party defendant in two of the lawsuits involved herein. The Village of Long Grove, likewise, has been the defendant and third-party plaintiff in the two suits.
The owner and the developer were previously involved in a suit (Anderson v. Long Grove Country Club Estates, Inc. (1969), 111 Ill. App.2d 127, 249 N.E.2d 343), wherein the owner was the plaintiff and counterdefendant and the developer was the defendant and counterplaintiff. Reference is made to that case for the facts relating to the original contract to sell 337 acres of land. That case resulted in a judgment of $252,800 against the developer for breach of contract.
The issue involved herein is whether the developer is obligated to improve Schaefer Road, which is located in the property originally belonging to the owner, in a subdivision platted by and to be developed by the developer.
The cases revolve around the interpretation and the application of the pre-annexation agreement entered into in 1962 with specific reference to paragraph Fifth of that pre-annexation agreement signed by the developer, the owner, and the Village. Paragraph Fifth reads as follows:
"FIFTH: At such time that DEVELOPER files a Plat of Subdivision containing lots fronting on Shaeffer Road [sic] or being dependent on access to or from Shaeffer Road [sic], the DEVELOPER agrees to improve Shaeffer Road [sic] to the standards of a collector street as defined in the Long Grove Subdivision Control Ordinance, said improvement to run from Illinois State Route No. 53 on the North to Checker Road on the South."
On January 26, 1973, the original complaint for declaratory judgment in cause No. 73-MR-14 in the trial court was filed by the developer against the owner, the Village and the Board of Local Improvements for the Village of Long Grove, seeking to interpret the rights, duties and legal relations of the owner, the developer and the Village. The complaint alleged that the prior lawsuit (Anderson v. Long Grove Country Club Estates, Inc. (1969), 111 Ill. App.2d 127, 249 N.E.2d 343) terminated the developer's contract to purchase all but 584 lineal feet of the property fronting on Schaefer Road and ordered that the title to the balance of the property fronting on that road be transferred back to the owners. Developer stated that the owner, therefore, had property fronting on Schaefer Road of approximately 2654 lineal feet; and that together with the other frontage property acquired by the owner, the owner had property fronting on both sides of Schaefer Road totaling 6960 lineal feet. This complaint further stated that the developer filed a petition with the Village seeking to have Schaefer Road improved by special assessment. A hearing was had on this petition and the Village adopted a resolution abandoning the proposed special assessment improvement of Schaefer Road. The complaint sought to declare the pre-annexation agreement void, or, in the alternative, to determine the rights, duties and legal relations of the owner, the Village and the developer, as to the improvement of Schaefer Road.
The second count of the complaint sought to force the Board of Local Improvements to hold further proceedings for a special assessment for the improvement of Schaefer Road. On March 2, 1973, the owner filed a countercomplaint (properly termed a counterclaim, pursuant to Ill. Rev. Stat. 1973, ch. 110, par. 38) against the developer for specific performance of the pre-annexation agreement. Both the Village and the owner moved to dismiss the original complaint. Judge Henry Caldwell dismissed the original suit on July 5, 1973. After this complaint was dismissed leave was given the developer to file an amended complaint within 30 days. No amended complaint was filed, nor was the order of dismissal of the original complaint cross-appealed from by the developer. The developer then filed a motion to dismiss the counterclaim. The motion to dismiss the counterclaim was denied by Judge Caldwell after filing a memorandum opinion in which he stated,
"While the contract as between the counter-defendant [developer] and the Village is clearly an annexation agreement, it also incorporates substantial rights and duties not directly concerned with annexation."
On October 2, 1974, after a hearing before Judge Doran, judgment was entered without comment finding in favor of the developer and against the owner on the owner's counterclaim.
On November 1, 1974, the owner filed a complaint for specific performance against the Village in cause No. 74-CH-407. On November 21, 1974, the Village, in turn, filed a "third-party complaint" against the developer, seeking determination of whether the owner or the developer was to perform the contract involved, being the above-mentioned pre-annexation agreement. Upon motion by the developer after a hearing of cause No. 74-CH-407, the complaint and the "third-party complaint" of the Village were dismissed.
The appeal herein is by the owner in both cases. *fn1
In cause No. 73-MR-14 Judge Caldwell issued a memorandum opinion on August 31, 1973, wherein he distinguished between the provisions of the pre-annexation agreement relating to the Village and those ...