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Lakemoor v. First Bank of Oak Park

OPINION FILED JULY 23, 1985.

THE VILLAGE OF LAKEMOOR, PLAINTIFF-APPELLEE,

v.

FIRST BANK OF OAK PARK, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS. — FRITZSCHE INDUSTRIAL PARK, INC., ET AL., PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

THE VILLAGE OF LAKEMOOR ET AL., DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.



Appeal from the Circuit Court of McHenry County; the Hon. Leonard Brody, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 4, 1985.

This is an appeal from two unrelated contempt orders issued by the circuit court of McHenry County against Fritzsche Industrial Park, Inc. (Fritzsche). In appeal No. 84-0470, Fritzsche was ordered to hook up nine of its industrial buildings to the village of Lakemoor's (village's) sewage disposal system. In appeal No. 84-0469, Fritzsche was ordered to remove two of its own sewer disposal tanks from its property. Fritzsche was found in contempt as to both orders and fined. On appeal, Fritzsche questions the validity of both orders.

We begin by setting forth the facts in appeal No. 84-0470. Fritzsche is an Illinois corporation and the owner of Fritzsche Industrial Park, which consists of a large tract of land and nine multiple-use buildings. Lakemoor is a municipal corporation which operates a sewer disposal system pursuant to section 11-141-1 et seq. of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11-141-1 et seq.).

On August 30, 1979, Fritzsche filed a complaint for declaratory judgment asking that several of the village's sewer ordinances be declared to be arbitrary, unreasonable and void. The village counterclaimed for breach of contract based on Fritzsche's written agreement to hook up to the village's sewer system within 90 days of the date that the system became available to it. The village asked for $44,000 in sewer usage and connection fees and for a mandatory injunction ordering Fritzsche to hook up to its system. The matter was set for trial on July 13, 1982.

On July 15, 1982, after three days of testimony, the trial was continued to August 24, 1982. At this point Fritzsche had not finished presenting its case in chief, although it is disputed how many witnesses remained to be called. On July 19, 1982, without prior motion of either party, the court issued a mandatory injunction ordering Fritzsche to hook up to the village's sewer system by September 1, 1982, and to pay all remaining hook-up and inspection fees. This order specifically reserved the question of the sewer usage fees claimed by the village in its counterclaim.

Before the case could continue on August 24, 1982, Herbert Fritzsche, the president of Fritzsche, sent an affidavit to the trial judge, Judge Roland A. Herrmann, alleging that the judge was biased and prejudiced against Fritzsche. The affidavit also contained numerous and repeated derogatory statements equating the judge to a communist and questioning his loyalty to the United States Constitution. On August 31, 1982, Judge Herrmann recused himself and declared a mistrial.

The case was reassigned to Judge Leonard Brody, who, on October 8, 1982, ordered Fritzsche to comply with Judge Herrman's prior mandatory injunction. Judge Brody refused to hear Fritzsche's arguments that the prior order was improper and void. On October 29, 1982, Judge Brody found Fritzsche in contempt of the court's prior orders and fined it $50 per day until it complied. On November 12, 1982, Judge Brody stayed the fine until November 22, 1982.

On December 10, 1982, before the $50-a-day fine was reinstated, Fritzsche appealed. The appeal was dismissed by this court on November 7, 1983, for lack of a final judgment. On April 16, 1984, Judge Brody again held Fritzsche in contempt and fined it $15,000. This fine was figured at $50 per day from November 22, 1982, the date the fine should have been reinstated, to March 30, 1984, the date the court found that Fritzsche had hooked up its last building to the village's sewer system. (The fine actually totaled $24,600, but was reduced by the court to $15,000.) On May 4, 1984, the court further awarded the village $4,500 in attorney fees. This appeal followed.

• 1 On appeal Fritzsche argues that Judge Brody erred in holding it in contempt of Judge Herrmann's July 19, 1982, mandatory injunction order in that, (1) the order was vitiated by Judge Herrmann's later declaration of a mistrial, and (2) the order was entered before Fritzsche had completed its case in chief and, therefore, violated its due process rights.

A mistrial vitiates all prior proceedings and, in legal effect, is equivalent to no trial at all. (Papgeorgiou v. F.W. Woolworth Co. (1978), 66 Ill. App.3d 873; Haywood v. Swift & Co. (1964), 53 Ill. App.2d 179.) The previous trial proceedings are completely erased as if they had never taken place, and both the parties and the case are returned to the pretrial stage. (Merklin v. Philadelphia Suburban Water Co. (1976), 239 Pa. Super. 229, 361 A.2d 754. Accord, People v. Henderson (1976), 36 Ill. App.3d 355.) Judge Herrmann's mandatory injunction, which was entered after three days of trial, was, therefore, vitiated by his declaration of a mistrial.

The village contends that its counterclaim was litigated as a separate claim and that the court entered a separate judgment on it based on the village's pretrial summary judgment motion. The village argues, therefore, that the mandatory injunction was a pretrial order and was not nullified by the mistrial.

It is clear from the record, however, that the injunction was not a pretrial order. As the village readily admits, the injunction was entered only after three days of trial and was, in fact, based upon testimony presented at trial. Therefore, regardless of whether the injunction was in response to a pretrial motion, it was entered after the trial began and was voided when the trial upon which it was based was terminated.

• 2 The village also argues that Fritzsche is estopped from denying the validity of the contempt order because it executed an appeal bond securing payment of the judgment. However, the general rule upon which the village relies, that when a judgment is recited in an appeal bond the parties are estopped from questioning the existence or validity of the judgment (18 Ill. L. & Prac. Estoppel sec. 6 (1956)), is applicable only to collateral attacks on a judgment. Thus, in an action to recover on the appeal bond, the principal and sureties are estopped from questioning the ...


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