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Fields v. Lake Hillcrest Corp.

November 19, 2002

ARTHUR P. FIELDS AND GLORIA FIELDS, PLAINTIFFS-APPELLEES,
v.
LAKE HILLCREST CORPORATION, DEFENDANT-APPELLANT, AND THE BOARD OF ZONING APPEALS OF THE VILLAGE OF GLEN CARBON, ILLINOIS, ELROY WELL, IN HIS CAPACITY AS THE CHAIRMAN AND A MEMBER OF THE BOARD OF ZONING APPEALS OF THE VILLAGE OF GLEN CARBON, ILLINOIS, AND MARGARET HAMPTON, LOWELL HAMPTON, ROY BURROUGHS, PAT NETEMEYER, ERIC FIELDS, LYLE F. SKAER, ROBERT BRADY, EDWARD HUDLIN, BRIAN COLEMAN, AND JOANNE WEYMEYER, DEFENDANTS.



Appeal from the Circuit Court of Madison County. No. 98-MR-442 Honorable Lewis E. Mallott, Judge, presiding.

The opinion of the court was delivered by: Justice Kuehn

UNPUBLISHED

Lake Hillcrest Corp. appeals from the trial court's May 7, 2001, order denying its motion to vacate all orders of the trial court entered after February 10, 1999. On that date, the trial judge allowed attorney Thomas Burkart's motion to withdraw as counsel for Lake Hillcrest Corp. (Lake Hillcrest). Pursuant to directions contained within that order, Lowell Hampton, president of Lake Hillcrest, entered his appearance on behalf of the corporation. Lowell Hampton is not an attorney. Lake Hillcrest contends that the trial court should have found that any order or judgment entered after the withdrawal of its attorney is void, because a corporation can only be represented by an attorney-not by a layperson. On August 17, 1999, the trial court granted a request for injunctive relief filed by Arthur P. Fields and Gloria Fields. Lake Hillcrest argues that the Fields' injunction is invalid. The Fields filed a motion in this court seeking to dismiss the appeal on the bases that it is untimely and frivolous. The Fields also ask us to impose sanctions pursuant to Supreme Court Rule 375 (155 Ill. 2d R. 375).

We will not delve into great specificity about who owned what land at what time. The underlying facts of this case involve a private neighborhood beach within the Lake Hillcrest subdivision in Glen Carbon. The lake was owned by Lake Hillcrest. Lake Hillcrest is a not-for- profit homeowners association. The beach was apparently created on a dam on the north end of the lake area in 1964. In 1992, the Fields purchased land north of the lake with the intent of developing an upscale single-family home subdivision. In 1996, the Village of Glen Carbon, Illinois, passed a zoning ordinance relative to parks being used on a recreational basis in an area specifically zoned for single-family residences. Prior to the filing of this complaint, the Fields had complained that the use of the specific land as a beach was not permissible pursuant to the ordinance. While we would like to be able to include the exact language of the ordinance, the ordinance was not included in the record. In any event, the Fields brought their dispute to the Board of Zoning Appeals for the Village of Glen Carbon (the Board). On September 3, 1998, the Board rendered its decision that because the beach area had been in use since 1964, its usage amounted to a "continuous and existing non[]conforming use." The Board found that the zoning ordinance was therefore inapplicable.

On October 1, 1998, the Fields filed suit against the Board, its chairman, and Lake Hillcrest. The Fields sought the review of that zoning decision. Attorney Thomas Burkart entered his appearance and filed a motion to dismiss on behalf of Lake Hillcrest. Attorney Gary Peel entered his appearance and filed a motion to dismiss on behalf of the Board and its chairman. On December 11, 1998, the trial court partially granted these motions to dismiss, granting leave to the Fields to file an amended complaint. On January 6, 1999, the Fields filed their amended complaint.

Apparently due to a dispute between attorney Thomas Burkart and his client, he filed a motion to withdraw as counsel for Lake Hillcrest. This motion was granted on February 10, 1999. The order entered by the court was the proposed order enclosed by attorney Thomas Burkart with his motion to withdraw. The relevant language drafted by attorney Thomas Burkart reads as follows:

"Unless another attorney enters his or her appearance as attorney of record for the defendant, LAKE HILLCREST CORPORATION, they are hereby ordered to file with the Clerk of the Court - within twenty-one (21) days of this Order, a supplementary appearance stating therein an address at which service of notices or other papers may be had upon them."

On that same date, non-attorney Lowell Hampton entered his appearance on behalf of Lake Hillcrest and filed his general answer denying the allegations of the Fields' amended complaint.

On March 31, 1999, the Fields filed a second amended complaint, with which all parties were served. The complaint against Lake Hillcrest was served upon Lowell Hampton.

On May 14, 1999, attorney David Harris, on behalf of Lake Hillcrest and several newly named defendants who reside in Lake Hillcrest, filed a motion to dismiss this second amended complaint. Attorney David Harris failed to file his entry of appearance or pay the requisite fee for filing an entry of appearance in Madison County circuit court. While in due course this motion to dismiss was set for a hearing, the notice of hearing was not sent to attorney David Harris, but to Lowell Hampton. The employees in the Madison County circuit clerk's office are instructed to change the names of attorneys and/or addresses, relevant to a party's representation, upon receipt of an entry of appearance. That document triggers the name/address change. A motion to dismiss without an entry of appearance announcing a change in representation would not necessarily result in a name/address change in the official records for that case.

On June 4, 1999, attorney Stephen M. Tillery filed his entry of appearance on behalf of the Fields. Because there had been no previously filed motion to withdraw as counsel for the Fields, we assume that Stephen M. Tillery was being added as counsel for the Fields, in addition to the attorney who had represented the Fields from the inception of this suit, Robert Bruegge.

At some point in early June 1999, Judge Ann Callis conducted a case management conference. Attorney David Harris did not receive notice of this conference. Presumably, Lowell Hampton did receive such notice. No one appeared at the conference on behalf of Lake Hillcrest. No one contacted attorney David Harris to find out why he did not attend the conference. On June 7, 1999, Judge Callis entered an order setting "oral argument" for August 17, 1999. The minute entry for June 7, 1999, reflects that "copies [were] sent" to the parties and counsel of record. Because the list of attorneys did not include David Harris, his copy of this notice of hearing was sent to Lowell Hampton.

Lake Hillcrest's motion to dismiss was set for a hearing on July 2, 1999. Attorney David Harris was not notified of the hearing. Additionally, it appears that neither attorney David Harris nor Lowell Hampton appeared on behalf of Lake Hillcrest. After hearing arguments on the motion, the trial judge denied the motion.

On August 2, 1999, attorney Stephen M. Tillery filed a lengthy memorandum with exhibits in support of the Fields' position in this suit. This memorandum set forth the bases for the Fields' argument that the trial court should reverse the Board's decision. The cover letter indicates that a copy of the memorandum had been sent on that same date to opposing counsel. However, the letter only referenced that copies had been sent to attorney Gary Peel, as the attorney for the Board and its chairman, and to attorney Robert Bruegge, as co-counsel for the Fields. The certificate of service attached to the memorandum also indicates that only those two attorneys were served with copies. Apparently, Lake Hillcrest was not served with the memorandum, because it was not sent to attorney David Harris or to Lowell Hampton. On August 17, 1999, the trial court held its hearing on the merits of the Fields case. The Fields and their attorneys appeared. Attorney Gary Peel appeared on behalf of the Board and its chairman. Attorney David Harris did not appear. Lowell Hampton did not appear. Therefore, Lake Hillcrest was unrepresented at this hearing. No briefs or memoranda of law were filed on behalf of the Board and its chairman or on behalf of Lake Hillcrest. After hearing evidence and after a consideration of the record, Judge Callis entered an order reversing the September 1998 order of the Board. The Fields' request for an injunction, forbidding further use of the area as a swimming, bathing, or beach area, was granted. In this order, she specifically found that the relevant zoning ordinance permits "parks" as a recreational use in an "RS-10, Single-Family Residential District." She concluded that the usual and ordinary ...


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