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Kassnel v. Village of Rosemont

OPINION FILED JULY 11, 1985.

MATTHEW KASSNEL ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF ROSEMONT ET AL., DEFENDANT-APPELLEES (THE VILLAGE OF ROSEMONT, PETITIONER-APPELLEE,

v.

EXCHANGE NATIONAL BANK, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS).



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 28, 1985.

In this appeal appellants Matthew Kassnel, Elizabeth Kassnel, Red Devil Manufacturing Company, and trust No. 3672 of the Exchange National Bank of Chicago (hereinafter collectively referred to as Kassnel) seek review of two orders of the circuit court of Cook County finding that the village of Rosemont's condemnation of Kassnel's property was a lawful taking under the Real Property Tax Increment Allocation Redevelopment Act (Ill. Rev. Stat. 1979, ch. 24, par. 11-74.4-1 et seq.) and that the fair market value of the property at issue was $495,000. These orders arose from two distinct actions, for condemnation and for declaratory judgment, that were consolidated for hearing below.

On appeal Kassnel contends: (1) the proposed condemnation of the subject property constituted an unconstitutional taking of private property for a private use; (2) Rosemont failed to establish a prima facie case for the validity of its condemnation because it did not comply with the statutory requirement of approval of the redevelopment plan and project prior to designating the project area; (3) the trial court's determination of just compensation was against the manifest weight of the evidence.

We affirm the judgment of the trial court in the condemnation action and dismiss Kassnel's appeal from the judgment in the declaratory judgment action.

BACKGROUND

The Real Property Tax Increment Allocation Redevelopment Act provides a mechanism for municipalities to finance redevelopment projects designed to eliminate or prevent urban blight. The Act specifically authorizes the acquisition of property by eminent domain. Ill. Rev. Stat. 1979, ch. 24, par. 11-74.4-4(c); People ex rel. City of Canton v. Crouch (1980), 79 Ill.2d 356, 403 N.E.2d 242.

Pursuant to this act, the board of trustees of the village of Rosemont in the summer of 1979 adopted a series of ordinances establishing a Tax Increment Redevelopment Plan and Project, designating the project area, and establishing financing procedures. After subsequently passing an ordinance authorizing the acquisition of the real property necessary to implement the plan, the village sent to Kassnel on September 11, 1979, a letter offering to purchase the subject property which was included in the plan.

On October 16, 1979, Kassnel filed a declaratory judgment action seeking a determination that the taking of their property proposed by Rosemont was unconstitutional (under article I, section 15, of the 1970 Illinois Constitution) in that the Kassnel property was not blighted and therefore the taking was only for the private purpose of enhancing the larger redevelopment area as a commercial venture for private investors. Kassnel also sought a declaration that if the Act permitted this taking then the Act itself was unconstitutional.

On October 22, 1979, Rosemont filed its petition to condemn the Kassnel property, the parties having failed to reach agreement on a purchase price. Kassnel filed a motion to dismiss and traverse, asserting the same grounds contained in its declaratory judgment action.

By agreement of the parties the declaratory judgment action and Kassnel's motion to dismiss and traverse the condemnation action were consolidated for hearing. Following an evidentiary hearing on those matters the trial court held that Rosemont's proposed taking was constitutional. Accordingly, on March 31, 1983, the court entered an order denying Kassnel's traverse and motion to dismiss in the condemnation action and also entered judgment on behalf of Rosemont in the declaratory judgment action.

Kassnel did not then appeal from the judgment in the declaratory judgment action. Instead the condemnation case proceeded to trial on the issue of just compensation. After all the evidence (summarized later in this opinion) was heard, the court found that just compensation would be $495,000. A judgment order to that effect was entered on July 25, 1983. Within 30 days of that order Kassnel filed its notice of appeal in the condemnation action. Kassnel also purported to appeal from the March 31, 1983, judgment order in the declaratory judgment action.

OPINION

I

It is Rosemont's contention that Kassnel is precluded from challenging the constitutionality of the taking of their property because that issue was finally determined in the declaratory judgment action, from which Kassnel failed to take a timely appeal. Kassnel urges that by virtue of the consolidation of the two suits for hearing no appeal was required until after all the issues in both suits had been resolved, at least in the absence of any Supreme Court Rule 304(a) finding supporting an interlocutory appeal. (87 Ill.2d R. 304(a).) Accordingly, we must determine the effect of the consolidation on the two suits.

Section 2-1006 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1006) permits a court to consolidate actions for its convenience when this can be done without prejudice to the parties. There are three types of consolidations: (1) if different actions are pending which involve substantially the same subject matter, the court may attempt to avoid multiple trials on the same issue by staying all proceedings but one to see if disposition of the one settles the other; (2) consolidation may be limited to a joint trial, with separate docket entries, verdicts and judgments, where several actions involve an inquiry into the same event in its general aspects; (3) where several actions might have been brought as a single action, the cases may actually be merged into one action, thereby losing their individual identity, and they are then disposed of as one suit. Shannon v. Stookey (1978), 59 Ill. App.3d 573, 375 N.E.2d 881; Vitale v. Dorgan (1975), 25 Ill. App.3d 941, 323 N.E.2d 616.

• 1 In this cause the two suits were consolidated for hearing on certain common issues, but separate case numbers were retained and separate judgments were entered in each case. The judgment order of March 31, 1983, specified that judgment was being entered in the declaratory judgment action for Rosemont. The judgment order of July 25, 1983, pertained only to the condemnation action. Clearly then, in this cause, the consolidation of the actions was only to permit a single hearing of evidence relating to common issues and did not result in the merging of the two matters into a single suit. Shannon v. Stookey (1978), 59 Ill. App.3d 573, 375 N.E.2d 881.

• 2 Because the declaratory judgment action remained a separate suit, when Kassnel was faced with a final order in that action, its failure to timely file a notice of appeal deprived this court of jurisdiction, requiring dismissal of Kassnel's subsequent untimely attempted appeal from that judgment order. (In re Estate of Schwarz (1965), 63 Ill. App.2d 456, 212 N.E.2d 329.) Furthermore, under principles of res judicata Kassnel is precluded from relitigating those issues that were the subject of the final order in that prior case. (General Parking Corp. v. Kimmel (1979), 79 Ill. App.3d 883, 398 N.E.2d 1104.) Therefore, because Kassnel's attack on the propriety ...


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