Court of Appeals of Illinois, First District, Third Division
POM 1250 N. MILWAUKEE, LLC, Plaintiff-Appellee,
F.C.S.C., INC., Defendant-Appellant
Appeal from the Circuit Court of Cook County. No. 06 CH 23543. The Honorable Thomas R. Allen, Judge, presiding.
Where plaintiff appealed the award of attorney fees to defendant in plaintiff's action for breach of a real estate contract, but did not seek a stay of enforcement or post an appeal bond, and defendant proceeded to collect the award by garnishing the title company holding the earnest money plaintiff deposited while the appellate court reversed the award of attorney fees without a remand and then plaintiff returned to the trial court and obtained an order requiring defendant to return the garnished funds, the appellate court, pursuant to defendant's appeal, affirmed the trial court's order requiring defendant to return the earnest money to plaintiff, notwithstanding defendant's contentions that the reversal of the fee award without a remand deprived the trial court of jurisdiction and that the doctrine of res judicata barred plaintiff's action contesting the award, since the trial court, pursuant to Supreme Court Rule 369(b), was revested with jurisdiction when the fee award was reversed as part of the appellate court's decision affirming in part and reversing in part the trial court's judgment, and res judicata did not apply because the garnishment order was nullified by the reversal of the underlying fee award.
For Defendant-Appellant: Edward P. Freud, Brandon R. Freud, Ruff, Weidenaar & Reidy, Ltd., Chicago, IL.
For Plaintiff-Appellee: David A. Epstein, Brown Udell Pomerantz & Delrahim, Ltd., Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment, and opinion.
HYMAN, PRESIDING JUSTICE
Plaintiff appealed an award of attorney fees entered against it, but decided to neither seek a stay of enforcement nor post a bond. While the appeal proceeded, defendant engaged in postjudgment remedies and collected the entire judgment. (This saved plaintiff from possibly having to pay postjudgment interest.) Plaintiff succeeded in its appeal, and this court reversed the judgment. Plaintiff, of course, wanted defendant to return its money so went back to the trial court, which ordered defendant to pay up. Defendant, however, contends plaintiff put itself in a win-lose predicament, that is, plaintiff won the appeal, but the trial court exceeded its authority in ordering defendant to give back the money.
Defendant raises two issues for us to consider: (i) the trial court did not have jurisdiction over plaintiff's motion because the appellate court reversed the award of attorney fees without remand; and (ii) the doctrine of res judicata bars plaintiff from seeking return of the money. We reject both arguments. Remand was unnecessary because under Supreme Court Rule 369(b), after a reviewing court affirms all or part of a judgment, jurisdiction revests in the trial court to enforce the judgment and for other proceedings to go on as if no appeal had been taken. Ill. S.Ct. R. 369(b) (eff. July 1, 1982). As to the doctrine of res judicata, enforcement of a judgment merely continues or supplements the original case and does not constitute a separate or subsequent action. The trial court appropriately and properly handled the case after the appeal, and so we affirm.
To understand this appeal, we need to review the earlier appeal.
In June 2006, F.C.S.C., Inc. (FCSC) entered a $1.9 million contract to sell a building in Chicago to POM 1250 N. Milwaukee, LLC (POM). In the contract, FCSC agreed to send POM plans, engineering reports, and environmental surveys by July 7, 2006. In November 2006, POM sued FCSC for failing to send the promised documents and complete the sale. In response to FCSC's motion to dismiss, the trial court dismissed three counts with prejudice and struck another with leave to replead. The trial court allowed an immediate appeal from the dismissal of the first three counts under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). POM filed a notice of appeal but never filed briefs, and the appellate court dismissed the ...