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12/29/88 the City of Chicago, v. First Bank of Oak Park

December 29, 1988

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE

v.

FIRST BANK OF OAK PARK, AS TRUSTEE, ET AL., DEFENDANTS (ZAYRE CORPORATION, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

533 N.E.2d 424, 178 Ill. App. 3d 321, 127 Ill. Dec. 552 1988.IL.1904

Appeal from the Circuit Court of Cook County; the Hon. Mary Conrad, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This is an interlocutory appeal (107 Ill. 2d R. 307) by defendant, Zayre Corporation. The appeal is taken from an order of the circuit court of Cook County denying Zayre's motion to dismiss and traverse the motion for immediate vesting of title and complaint for condemnation filed by plaintiff, the City of Chicago. Zayre raises the following issues on appeal: (1) whether the trial court applied the proper standard for a "quick-take" proceeding; and (2) whether the evidence demonstrates that plaintiff has the authority to exercise "quick-take" power over the entire property at issue.

We affirm.

By amendment dated February 9, 1987, the Illinois legislature added to the list of designated "quick-take" circumstances authority for "[any] municipality with a population of over 500,000 [to] utilize the quick-take procedures . . . for the purpose of constructing or extending rapid transit lines." (Ill. Rev. Stat. 1987, ch. 24, par. 11-61-1a.) Pursuant to this amendment, on April 1, 1987, the city council of the City of Chicago adopted an ordinance authorizing the department of public works to acquire property located at 5601-35 South Cicero Avenue, Chicago, Illinois.

On January 15, 1988, plaintiff filed a complaint in the circuit court of Cook County for condemnation of the property for the purpose of constructing a "Southwest Rapid Transit Line" (hereinafter Southwest Transit project). The object of the Southwest Transit project is to provide transit to the southwest side of Chicago, the only section of the city not served by rapid transit.

On January 21, 1988, plaintiff filed a motion for "Immediate Vesting of Title" (i.e., quick-take motion) of the property at issue. The motion stated that plaintiff needed to acquire the property by eminent domain and quick-take for the Southwest Transit project. Zayre is a tenant and the holder of a long-term leasehold interest in the property. On February 26, 1988, Zayre filed a motion to dismiss (or traverse) plaintiff's motion and complaint. A supporting memorandum was attached to the motion. On February 26, 1988, an evidentiary hearing was held on Zayre's motion to dismiss. During the hearing, Zayre placed in evidence the deposition testimony of Henry Hanson. Hanson is the "right of way" engineer of plaintiff and is responsible for the acquisition of property for the department of public works and other city agencies. Hanson testified that two other projects were being conducted in the same area: expansion of Midway Airport and modifications to Cicero Avenue.

On February 29, 1988, the trial court denied defendant's motion to dismiss. This appeal followed.

Initially we must address plaintiff's contention that this appeal should be dismissed because Zayre failed to indicate in its notice of appeal that the order appealed from is interlocutory pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307). The purpose of the notice of appeal is to inform the prevailing party of the litigation that the losing party is seeking review by a higher court. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433.) It is the briefs of the litigants and not the notice of appeal that outline the issues which will determine whether a reversal is warranted. (Burtell, 76 Ill. 2d at 433.) For these reasons the notice of appeal is liberally construed. (Burtell, 76 Ill. 2d at 433.) Thus, the law is well settled "that a notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. [Citations.] Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal . . .." Burtell, 76 Ill. 2d at 433-34.

Although the notice of appeal does not state that the order appealed from is interlocutory, the notice of appeal clearly states that Zayre is appealing from the order of the circuit court of Cook County denying its motion to dismiss and traverse plaintiff's motion for quick-take and complaint for condemnation. Furthermore, as evidenced by its brief, plaintiff was advised of the nature of this appeal. Therefore, we find that the notice of appeal fairly and adequately sets forth the order complained of and the relief sought so as to apprise plaintiff of the nature of the appeal. Burtell, 76 Ill. 2d at 433-34.

Zayre's first contention is that the trial court failed to apply a more stringent standard in analyzing a quick-take proceeding. It argues that the burden of demonstrating necessity and excessiveness is higher in a quick-take proceeding ...


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