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06/30/87 the People Ex Rel. the v. the City of North Chicago

June 30, 1987

TRUSTEE, ET AL., PLAINTIFFS-APPELLEES

v.

THE CITY OF NORTH CHICAGO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THE PEOPLE ex rel. THE FIRST NATIONAL BANK OF CHICAGO, as

510 N.E.2d 577, 158 Ill. App. 3d 85, 109 Ill. Dec. 709 1987.IL.940

Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Defendant, the city of North Chicago, appeals from the judgment of the circuit court of Lake County denying its motions to strike and dismiss the plaintiff trusts' amended complaint in quo warrantor and granting the plaintiff trusts' motion for summary judgment.

This cause comes to us for the second time. In the first appeal, we considered whether the circuit court of Lake County had erred in denying a "Petition for Leave to File Complaint in Quo Warrantor " presented to the court by seven plaintiffs, six trusts (two of them presently plaintiffs here), and a corporation. The plaintiffs sought to have declared invalid two annexations by North Chicago, one of a strip of land which occurred in 1977 and one of a triangular piece of property in 1982. The circuit court of Lake County denied plaintiffs leave to file the complaint in quo warranto. By order pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23; People ex rel. First National Bank v. City of North Chicago (1984), 120 Ill. App. 3d 1168 (unpublished Rule 23 order)), we found the owners of two of the tracts identified as B-1 and B-2 on the sketch appended hereto should not have been denied leave to file a complaint in quo warrantor since portions of those owners' tracts comprised the triangular parcel annexed by North Chicago. Accordingly, we reversed the judgment of the trial court as to those plaintiffs, affirmed its judgment as to the remaining plaintiffs, and remanded the cause for further proceedings.

Plaintiffs here then filed the detailed amended complaint in quo warranto which is at issue here. It is alleged that the strip of land which cuts across tracts B-1 and B-2 (shown on the sketch as Pulaski Drive) was condemned by Lake County in 1976 for a road right-of-way. Further, in 1977, North Chicago annexed this strip in addition to a portion of Fourteenth Street, which essentially was the extension to the east of this strip of land. As was also alleged in their initial complaint filed on February 16, 1983, plaintiffs' amended complaint alleged this 1977 annexation was not of contiguous property and was an unlawful strip annexation. It is further alleged that in February 1982, the plaintiffs filed a "Petition to Annex" their property to Waukegan, and, on June 4, 1982, Waukegan passed an ordinance annexing those tracts. An error was discovered in the legal description in the ordinance, and, on October 18, 1982, Waukegan enacted an amended ordinance to correct the error. Prior to that amendment, however, on July 30, 1982, North Chicago instituted a quo warrantor proceeding to challenge the annexation by Waukegan which was alleged to be "still pending" in the circuit court of Lake County under general number 82-MR-210.

We note here that a judgment of ouster was entered against Waukegan by the circuit court of Lake County upon North Chicago's complaint in quo warrantor concerning that annexation. North Chicago's complaint alleged generally that the annexation of the approximately 600-acre area by Waukegan unlawfully included portions of the city of North Chicago. Prior to the hearing on the merits, however, the error in the legal description in the annexation ordinance was discovered which created an 82-foot gap between Waukegan and the area to be annexed. North Chicago objected to Waukegan's attempted amendment to the legal description, and its motion for judgment on the pleadings was granted on the ground that the subject property was not contiguous to Waukegan.

On appeal, this court in an opinion filed July 5, 1983 (People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill. App. 3d 88), reversed and remanded, finding it was error to refuse to permit Waukegan to amend the legal description and that the trial court should have considered the legal description as correctly set forth in the petition for annexation, rather than as shown erroneously in the annexation ordinance. This court held that North Chicago had standing to bring the quo warrantor action and remanded the cause for further proceedings. Consequently, the validity of Waukegan's annexation of the property was still at issue at the time plaintiffs here filed their amended complaint.

It is further alleged herein that on August 27, 1982, North Chicago gave notice that it would annex a triangular parcel of property consisting of 32.6 acres encompassing portions of the two tracts owned by the plaintiffs and that North Chicago passed its ordinance annexing the triangular parcel on September 7, 1982. It is alleged that this annexation was illegal because the triangular parcel was not wholly bounded by one or more municipalities and that it purported to annex some of the same property already annexed by Waukegan which was then at issue in the quo warrantor action filed by North Chicago.

The amended complaint details the injuries caused by these unlawful annexations to the plaintiffs as owners of a portion of the total 600-acre tract which was the subject of the petition for annexation to Waukegan. Plaintiffs prayed that the court direct North Chicago to show by what warrant it purported to have annexed the property in question and, if no warrant was found, that the court declare the annexations void and enter an order ousting North Chicago.

Thereafter, North Chicago filed a motion to dismiss on the basis the amended complaint "repeats many of the errors which were specifically rejected by the affirmants [ sic ] of the trial court in the appellate court decision [our order pursuant to Supreme Court Rule 23 (People ex rel. First National Bank v. City of North Chicago (1984), 120 Ill. App. 3d 1168)]." Plaintiffs responded that since North Chicago's motion did not go to the merits of the complaint or their right to bring the action, it properly should be regarded as a motion to strike portions of the complaint as opposed to a motion to dismiss and, for the reasons set forth in their response, should be denied.

The court heard argument on the motion to dismiss and several days later denied it. On that same date, November 11, 1984, the Judge reassigned the matter to another Judge, who, in turn, assigned it to the Judge who heard the remainder of the cause and who also was then hearing North Chicago's quo warrantor challenge to Waukegan's annexation of the entire 600-acre tract.

Plaintiffs herein filed a motion for summary judgment on November 30 alleging, inter alia, that North Chicago's 1977 annexation of the strip of land was, in fact, the annexation of a roadway strip which only met perpendicularly with the boundary of North Chicago and was, therefore, void as a matter of law. A certified copy of the ordinance annexing this roadway strip was filed with the amended complaint. Attached to the motion for summary judgment was a certified copy of a judgment order entered November 24, 1976, in the eminent domain proceeding by Lake County to obtain title to the land for the construction of a roadway (County Highway 78 a/k/a Pulaski Drive). The land described therein was alleged to be the same as the land described in North Chicago's assertedly void roadway strip annexation save for two exceptions detailed in plaintiff's motion. It was alleged that the subsequent annexation by North Chicago of the triangular parcel on September 7, 1982, pursuant to section 7-1-13 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7-1-13) was void since, as a matter of law, a strip annexation of a roadway cannot be used to support the annexation of other territory not able to be annexed except by virtue of such strip annexation. It was further alleged the annexation of the triangular parcel also was void for the reason that the same territory was included within the territory already annexed by Waukegan on June 4, 1982, which annexation was challenged by North Chicago in a quo warrantor proceeding filed by it on July 30, 1982, and which was still then pending. It was alleged that, as a matter of law, it is improper for one municipality to annex territory while a proceeding is pending for the annexation of the same territory.

Thereafter, on December 7, 1984, North Chicago filed a motion for reconsideration of the denial of its motion to strike or dismiss in view of the reassignment of Judges. It also filed a "Motion Pursuant to Section 2-619" (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) alleging that the plaintiffs' attack on its 1977 annexation of the roadway strip was barred by the relevant statute of limitations (Ill. Rev. Stat. 1983, ch. 24, par. 7-1-46) since no challenge to the annexation had been made within the one-year time period and, further, that the one exception to the statute was not applicable because the territory annexed in 1977 had since become contiguous by virtue of the subsequent annexation of the triangular parcel.

Plaintiffs responded to North Chicago's motions, and the court agreed to reconsider the motion to dismiss. It set North Chicago's additional "Motion to Dismiss Pursuant to Section 2 -- 619" and the plaintiffs' motion for summary judgment for hearing. After hearing, the motions to dismiss were taken under advisement, and North Chicago was granted time to respond to the plaintiffs' motion for summary judgment.

North Chicago later objected to this procedure, arguing it was improper for the court to consider a motion to dismiss and a motion for summary judgment at the same time, and it asked the court to vacate that portion of its order. North Chicago also supplemented its "Motion to Dismiss Pursuant to Section 2 -- 619," pointing out that the plaintiffs' motion for summary judgment made it clear that the plaintiffs are not owners of the roadway strip annexed by North Chicago in 1977; rather, the strip had been condemned in 1976 by Lake County. Consequently, North Chicago alleged that the plaintiffs, as nonowners of the property annexed in 1977, had no standing to bring a quo warrantor action.

Plaintiffs filed their response to the motions, and the court denied North Chicago's motion to vacate its order. It allowed the supplement to North Chicago's motion to dismiss and took it and the plaintiffs' response under advisement. North Chicago then filed its response to the plaintiffs' motion for summary judgment, disputing the allegation that the property annexed in 1977 was a road. It attached a plat of survey for the road alleging that the May 1978 certification date thereon showed the dedication of the property as a highway did not occur until six months after it was annexed. It also disputed the allegations that the 1977 annexation involved a strip of land which only met perpendicularly with the boundaries of North Chicago. It alleged that the legal description and the map established that more than 1,000 feet of the property annexed physically touched the northern boundary of the city of North Chicago as that boundary then existed. North Chicago also alleged that it could not file its answer to the complaint in quo warranto until the court ruled on the motions to dismiss.

Plaintiffs replied to North Chicago's response to the motion for summary judgment, pointing out that the roadway strip annexation was comprised of two separate parcels. The one to the east of Route 41 is the one North Chicago alleges has 1,000 feet of contiguity with its boundary, but the one to the west of Route 41 is contiguous with North Chicago only for the width of the roadway at the point where it touches North Chicago perpendicularly and then extends northwesterly some 3,562 feet away from the city.

The court did not rule on the outstanding motions until April 30, 1986. Although North Chicago provides record references to it, and the court ordered it to be incorporated with its order, no report of proceedings of the court's oral decision has been filed with the record. Its written order found North Chicago's 1977 annexation was void as an annexation of a roadway and a strip. It found no genuine issue of material fact, denied both of North Chicago's motions to dismiss, entered summary judgment in favor of the plaintiffs, and ousted North Chicago from asserting its jurisdiction over any of the realty which was the subject of the action. This appeal followed.

At the outset, we address the plaintiffs' motion to dismiss the appeal which was taken with the case. A previous motion of theirs to dismiss the appeal which was filed prior to the filing of briefs herein was denied. That motion alleged that on June 16, 1986, the city of Waukegan annexed all of the property which was the subject of this litigation (tracts B-1 and B-2) together with additional property (tracts B, C-1, C-2, D, D-1) and Pulaski Drive from the western border of Route 41 to its junction with Route 43. At the time of the annexation, no stay order had been entered by, or applied for in, the trial court staying the enforcement of the judgment in this cause during the pendency of the appeal. A motion for stay filed by North Chicago in this court concurrently with the plaintiffs' first motion to dismiss was denied. Accordingly, the plaintiffs assert that because the annexation took place more than 30 days after the judgment of the trial court and at a time when no stay of judgment had been applied for or obtained, the annexation by Waukegan cannot be affected by a reversal in this action and, thus, the appeal has been rendered moot by virtue of the provision of the Supreme Court Rule 305(i) (87 Ill. 2d R. 305(i)).

In their second motion to dismiss which was taken with the case, the plaintiffs additionally allege that a sale of tracts D and D-1 has occurred and that title has been transferred to the La Salle National Bank as trustee under trust agreement dated January 1, 1982, and known as trust No. 104600. It is alleged that the interest acquired by that trustee "includes the fact that the property is annexed to the city of Waukegan and zoned within the city of Waukegan." A reversal, it is posited, would disconnect the new owners from the city of Waukegan and, thus, would affect the interest which this nonparty has acquired during the pendency of this appeal. The motion also alleged that La Salle National Bank additionally is the grantee of two easements, a permanent 10-foot wide easement and a temporary construction easement 50 feet wide, for the purpose of obtaining water from the city of Waukegan and construction of a water line down to an area adjoining the purchased real estate. It is alleged that neither said trust nor the city of Waukegan is a party to the instant litigation. Accordingly, they assert, any relief granted by this court would abrogate the protection afforded by Supreme Court Rule 305(i) as to nonparties acquiring an interest when no stay has been perfected, and, for these reasons, the plaintiffs again assert the appeal has been rendered moot.

North Chicago objects to the motion to dismiss the appeal, noting that the owners of tracts D and D-1 and the prospective purchaser of those tracts were found in our previous order entered pursuant to Supreme Court Rule 23 (People ex rel. First National Bank v. City of North Chicago (1984), 120 Ill. App. 3d 1168) not to have sufficient interest to bring a quo warrantor suit contesting the 1977 Pulaski Drive and 1982 triangular parcel annexations because parcels D and D-1 were not part of the area annexed. North Chicago further notes that it appears the easements as described are not located upon or involved in the property annexed by it in 1977 and 1982, nor do the plaintiffs so claim. North Chicago asserts that the issue in this cause is the validity of ...


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