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Dept. of Conservation v. Lawless

OPINION FILED SEPTEMBER 3, 1981.

THE DEPARTMENT OF CONSERVATION, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

LAWRENCE LAWLESS, DEFENDANT-APPELLANT AND CROSS-APPELLEE. — LAWRENCE LAWLESS, PLAINTIFF-APPELLEE,

v.

DAVID KENNEY, DIRECTOR OF CONSERVATION, ILLINOIS DEPARTMENT OF CONSERVATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. EDWIN B. GRABIEC and the Hon. MICHAEL H. LYONS, Judges, presiding.

MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 14, 1981.

This consolidated appeal involves the Department of Conservation's (the Department) attempt to purchase the residence and surrounding four acres of Lawrence Lawless, which is located in Will County. Two lawsuits resulted. In the first, Lawless as plaintiff, sought a writ of mandamus ordering the Department's director to purchase the property by condemnation. The writ issued. In the second cause, the plaintiff, the Department, brought an eminent domain action against the defendant, Lawless. Although defendant received a favorable verdict, he complains about the trial court's denial of certain post-trial motions. The facts follow.

In 1972 the Department told Lawless of its intent to purchase his property as part of an overall plan to develop Thorn Creek Woods Nature Preserve in Park Forest, Illinois. The Lawless property abuts this area. Between January 1976 and March 1978, negotiations resulted in several offers which Lawless rejected as inadequate. On January 31, 1978, the Department notified Lawless of its intent to take his property by eminent domain. On June 4, 1978, a public dedication ceremony was held for the Thorn Creek Woods Nature Preserve. The Department acted as sponsor. The general public was invited. Lawless' home was designated, and publicly represented, as the Preserve's "Interpretive Center." The land encircling his home was earmarked as public picnic and parking areas.

On June 27, 1978, Lawless sought a writ of mandamus to compel the Department to proceed by condemnation to purchase his property. In response to this complaint the Department did nothing. Although personally served, it did not file an appearance nor an answer. On August 9, 1978, the plaintiff moved for a default judgment, which was granted. The order provided the Department to proceed by eminent domain in the Lawless purchase. Two years later, the Department sought to vacate this order. On October 1, 1980, such motion was denied. The Department now appeals.

The eminent domain proceeding was initiated by the Department filing a petition to condemn the Lawless real estate on July 28, 1978. Lawless was personally served in such action on August 17, 1978, eight days after the execution of the mandamus order. After some confusion about the legal ramifications of the latter order and the filing of tome-like briefs and memoranda, trial was set for June 23, 1980. It lasted four days. The jury returned an award of $180,000 as compensation for the Lawless property. Judgment was entered thereon. Lawless then filed motions for statutory interest on the award, and mortgage interest accruing from June 4, 1978, appraisal fees, costs, and attorney's fees for pro se and outside counsel. It is from the trial court's decisions on these motions that he now prosecutes his appeal.

The mandamus action

The Department alleges the trial court erred in granting the writ of mandamus. It argues the trial court lacked jurisdiction to consider the writ because no controversy existed between the parties. Since the eminent domain action had already been filed, it urges, the mandamus order requiring it to perform an act already done is useless and moot. It also complains that Lawless either lied, or concealed a material fact, when, in applying for mandamus, he stated the Department had not filed an eminent domain suit, had threatened condemnation, and invited the general public to his home. Finally, it contests the award of attorney's fees and costs, since, it claims, the Department undertook condemnation proceedings voluntarily, not by order of court. We affirm.

If the trial court lacked subject matter jurisdiction the Department correctly observes that its orders are void, can be contested at any time, and have no binding effect. In arguing the trial court was so disposed, the Department ignores the facts, as well as its own inertia, as a party in such litigation.

• 1 Lawless requested mandamus on June 27, 1978. The Department was personally served three days later. Instead of responding to the complaint, the Department, inexplicably, did nothing until August 8, 1980, when it sought to vacate the trial court's default order of August 9, 1978. The fact the Department filed an eminent domain action on July 28, 1978, does not alter the mandamus writ ordering it to file such a suit, although the latter was entered subsequently. The record makes clear that Lawless was not personally served with process in the eminent domain action until August 17, 1978. If Lawless was unaware of that suit, how could he inform the mandamus court of its existence on August 9, 1978? Such is impossible. The law imposed no duty on Lawless to search the records of the Will County Courthouse endlessly to ascertain whether the Department had filed a lawsuit against him.

• 2 Similarly, the record does not support the Department's contention that Lawless lied or concealed facts relevant to issuing the writ of mandamus. It is undisputed that on June 4, 1978, the Department held a public dedication ceremony for the Thorn Creek Woods Preserve. The entire 900-acre area, including the Lawless property, was dedicated. It matters not one whit, as the Department argues, that such ceremony was held on the edge of the preserve opposite the Lawless real estate. The point is the Lawless property was represented as being public land. Although we agree that literally "thousands" of persons did not descend upon the Lawless dwelling, such hyperbole does not amount to misrepresentation.

• 3, 4 We hold the issuance of the writ of mandamus was a valid, legal act, binding the parties to those terms which it specifically encompassed. The Department was duty-bound to adhere to its provisions. And, since the Department was ordered to proceed by condemnation, the subsequent award of attorneys' fees and costs was proper. The statute so provides. (Ill. Rev. Stat. 1979, ch. 47, par. 9.8.) Obviously, if the Department had taken the time to answer the mandamus complaint by showing proof of filing the eminent domain action, the time, effort, and expense this litigation spawned might have been reduced, if not eliminated. It cannot now seek to validate its position by its prior inaction. Although we recognize that Illinois courts> are liberal in setting aside default judgments (Diacou v. Palos State Bank (1976), 65 Ill.2d 304, 310-11), such a result is not warranted where, as here, the failure to appear is due to the Department's own negligence, mistake, or calculated indifference. No abuse of discretion occurred in denying the Department's motion to vacate the final mandamus judgment, or in awarding attorney's fees.

The eminent domain suit

As appellant, defendant Lawless raises three issues for our review: (1) whether statutory interest of 6 percent accrues from June 4, 1978 to June 26, 1980, the date of the eminent domain judgment; (2) whether mortgage interest owed on the condemned property during the same period should be awarded; (3) whether pro se attorney fees at trial, as well as pro se and outside attorney fees, appraisal fees, and costs ...


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