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07/14/94 PETER ANEST AND THALIA ANEST v. RICHARD

July 14, 1994

PETER ANEST AND THALIA ANEST, PLAINTIFFS-APPELLEES,
v.
RICHARD BAILEY, EUNICE BAILEY, RONALD CUNNINGHAM, AND UNKNOWN OWNERS, DEFENDANTS-APPELLEES (M. MICHAEL IVANS AND STATE BANK OF ANTIOCH, AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 21, 1987, AND KNOWN AS TRUST NO. 87-117, DEFENDANTS-APPELLANTS). M. MICHAEL IVANS AND STATE BANK OF ANTIOCH, AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 21, 1987, AND KNOWN AS TRUST NO. 87-117, PLAINTIFFS-APPELLANTS, V. RICHARD BAILEY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. Nos. 89-CH-21, 90-LM-1331, cons. Honorable William D. Block, Judge, Presiding.

As Corrected July 27, 1994. Rehearing Denied August 17, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Quetsch, Colwell, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

This case concerns the respective rights of Peter and Thalia Anest, Richard Bailey and M. Michael Ivans to approximately 208 acres of land in Lake County. On March 3, 1993, the trial court entered an order granting a motion by Bailey to enforce the court'sprior judgment awarding the Anests specific performance of a contract to purchase the property from Bailey and ordering Ivans to convey the property to the Anests. In its March 3 order, the trial court also denied three motions filed by Ivans respectively seeking: (1) to vacate the judgment awarding specific performance; (2) to strike Bailey's motion to enforce the judgment; and (3) to dismiss the action. On April 13, 1993, the trial court entered an order imposing sanctions on Ivans pursuant to Supreme Court Rule 137. Ivans separately appealed from the orders of March 3, 1993, and April 13, 1993, and we consolidated the appeals.

The history of the dispute among the Anests, Bailey and Ivans is as follows. Ivans owns the property in question as beneficiary of a land trust pursuant to a trust agreement with the State Bank of Antioch, as trustee. In May, 1986, Ivans leased the property to Bailey for a term of approximately five years expiring on April 30, 1991. A rider to the lease provided Bailey with the option, during the term of the lease, to purchase the property from Ivans pursuant to the terms of a separate written contract purportedly attached to the lease. That written contract does not appear in the record. The lease rider specified that the price for the property was to be $5,000 per acre if the sale closed before May 1, 1990, and $5,250 per acre if the sale closed on or after May 1, 1990. In November 1988, Bailey entered into a written contract to sell the property to the Anests for $5,400 per acre. In January 1989, the Anests brought suit against Bailey for specific performance of the contract. While Bailey initially obtained a summary judgment in his favor on the basis of his argument that the Anests had failed to tender the earnest money required under the contract in a timely manner, we reversed and remanded the case for further proceedings. Anest v. Bailey (1990), 198 Ill. App. 3d 740, 144 Ill. Dec. 813, 556 N.E.2d 280 (hereinafter Anest I).

During the pendency of Anest I, Ivans initiated a forcible entry and detainer action against Bailey, alleging that Bailey breached certain covenants and conditions of the lease agreement. On remand following our decision in Anest I, the trial court granted the Anests leave to file an amended complaint joining Ivans as an additional defendant in their specific performance action. Subsequently, Ivans' forcible entry and detainer action was consolidated with the Anests' specific performance action. The Anests moved for summary judgment on their claim for specific performance. The trial court granted the Anests' motion and entered summary judgment in their favor against Bailey and Ivans on February 27, 1991. The trial court also dismissed Ivans' forcible entry and detainer action against Bailey as moot. Among other things, the order directed Bailey to obtaina current survey of the property and to secure a commitment for title insurance. The order further directed that when those tasks were accomplished, the parties were to close the transaction, or establish an escrow for that purpose. Upon closing, possession of the property was to be delivered to the Anests.

Ivans thereafter filed a motion to reconsider and clarify the February 27 summary judgment order. On April 15, 1991, the trial court denied Ivans motion to reconsider, but entered an order providing that Ivans was entitled to receive $5,250 per acre for the property. On May 14, 1991, Ivans filed a notice of appeal from the February 27 summary judgment order and the April 15 order denying his motion for reconsideration. On May 15, Bailey filed a "post-trial motion" seeking reconsideration of the April 15 order, and requesting that the trial court to reduce the amount payable to Ivans to $5,000 per acre. The court granted Bailey's motion on June 5, 1991. On June 25, 1991, Ivans filed a notice of appeal from the trial court's June 5 order.

On appeal Ivans argued that the trial court erred in entering summary judgment against him and further erred in concluding that he was only entitled to $5,000 per acre upon sale of the property. We determined that pursuant to Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)), Ivans' May 14 notice of appeal was rendered premature when Bailey filed his motion for reconsideration the next day. (Anest v. Bailey (2d Dist. 1992), Nos. 2-91-0530, 2-91-0712, cons. (unpublished order under Supreme Court Rule 23) (hereinafter Anest II).) We concluded that the June 25 notice of appeal was timely, but since that notice of appeal only sought review of the June 5 order reducing the amount payable to Ivans to $5,000, our review was limited to the issue of the price to be paid to Ivans, and we could not consider Ivans' broader challenge to the propriety of the summary judgment. We agreed with Ivans that he was entitled to $5,250 per acre, and we reversed the June 5 order and remanded to the trial court for further proceedings.

Following remand, on February 17, 1993, Bailey filed a motion to enforce the judgment. Bailey represented that in accordance with the summary judgment order, a survey of the property had been completed, a title commitment had been obtained and an escrow had been established, but Ivans and the State Bank of Antioch, as trustee, had failed to place a deed to the property into escrow. Thereafter, Ivans filed separate motions to vacate the judgment of February 27, 1991, to strike Bailey's motion to enforce the judgment and to dismiss the action. All three motions advanced essentially the same argument: that Bailey had never exercised his option to purchase theproperty, and that the option had expired on April 30, 1991, such that Ivans was not contractually obligated to convey the property. Ivans observed that in Anest II this court premised its decision that Ivans' was entitled to $5,250 per acre in part on the fact that Bailey had not exercised his option before May 1, 1990. In an order dated March 3, 1993, the trial court denied all three of Ivans' motions and granted Bailey's motion to enforce. The order directed the State Bank of Antioch to execute a trustee's warranty deed to Peter and Thalia Anest as joint tenants and deliver the deed to Chicago Title and Trust Company as escrowee. On March 11, Ivans filed a notice of appeal from the March 3 order. Thereafter, on March 29, Bailey filed a motion seeking attorney fees pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137.) On April 14, the trial court granted Bailey's motion, awarding the sum of $1,500 to be paid by Ivans' attorney, James Magee. On April 16, Ivans and Magee filed a notice of appeal from the April 14 order. We consolidated the appeals.

I. THE MARCH 3, 1993, ORDER

We first consider Ivans' appeal from the order of March 3, 1993. Ivans argues that the trial court erred in ordering him to convey the property to the Anests because the option in the Ivans/Bailey lease was never properly exercised. Ivans does not appear to dispute the proposition that if he was obligated to convey the property to Bailey, and Bailey, in turn, was obligated to convey to the Anests, the trial court, in the interest of efficiency, could properly order Ivans to convey directly to the Anests and then allocate the sale proceeds between Ivans and Bailey as if the two transactions had occurred separately. Ivans maintains, however, that because the purchase option in his lease to Bailey was never formally exercised, Ivans was under no legal obligation to sell the property to anyone. Ivans also argues that because the summary judgment order did not adjudicate the "ultimate rights of the parties" under the Ivans/Bailey option agreement, it was not a final judgment. Consequently, Ivans argues, the summary judgment order was not subject to enforcement.

The procedural posture of this case raises the threshold question of the scope of our review in light of Ivans' opportunity to raise various issues in his appeal from the February 27, 1991, summary judgment in Anest II. We note that it is well settled that no question which was raised or could have been raised in a prior appeal on the merits can be urged on subsequent appeal and those questions not raised are waived. ( McDunn v. Williams (1993), 156 Ill. 2d 288, 334, 189 Ill. Dec. 417, 620 N.E.2d 385; Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 413, 259 N.E.2d 282; Lee v. Egan (1989), 184 Ill. App. 3d 852, 854, 133 Ill. Dec. 89, 540 N.E.2d 955.) The Anests and Bailey contend thatthe present appeal is in substance a challenge to the summary judgment order, and as such, is untimely. Ivans' response is twofold. First, as noted above, Ivans maintains that the February 27, 1991, summary judgment order was not a final judgment. Thus, according to Ivans, not only was the summary judgment order unenforceable, but it also was subject to modification by the trial court prior to entry of a final judgment. (See Rowe v. State Bank of Lombard (1988), 125 Ill. 2d 203, 213, 126 Ill. Dec. 519, 531 N.E.2d 1358; Charter Bank v. Eckert (1992), 223 Ill. App. 3d 918, 924, 166 Ill. Dec. 282, 585 N.E.2d 1304.) Second, Ivans argues that by its terms the February 27 judgment did not dispense with the contractual requirement that the Ivans/Bailey option be properly exercised, and his obligation to proceed with the transaction remained contingent upon exercise of the option. Accordingly, Ivans contends that in the proceedings to enforce the February 27, 1991, summary judgment he was entitled to raise the failure to exercise the option.

At this point we note that the unusual circumstances of this appeal raise questions about our jurisdiction. An appellate court is under a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. ( Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 96 Ill. Dec. 47, 490 N.E.2d 1252.) Ivans advances no clear theory of our jurisdiction. Indeed, he contends that if he is correct that the February 27, 1991, summary judgment order was not a final judgment, the March 3, 1993, enforcement order would be similarly nonfinal and this appeal would be premature. While the jurisdictional question would ordinarily be our first concern, in this case the issue of jurisdiction is not easily extricated from the merits of the appeal, and an orderly ...


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