Baird & Warner, Inc. v. Gary-Wheaton Bank

Decision Date22 February 1984
Docket NumberNos. 83-385,GARY-WHEATON,s. 83-385
Citation122 Ill.App.3d 136,77 Ill.Dec. 536,460 N.E.2d 840
Parties, 77 Ill.Dec. 536 BAIRD & WARNER, INC., an Illinois Corporation, Plaintiff-Appellee, v.BANK, as Trustee, et al., Defendants-Appellees, Shorewood Condominium Association, Defendant-Appellant. to 83-387 and 83-435 to 83-442.
CourtUnited States Appellate Court of Illinois

Marshall N. Dickler, Catherine Valenti, Arlington Heights, for defendant-appellant.

Arnstein & Zeller, Skokie, Thomas M. Breen, Addison, for appellees.

LINDBERG, Justice.

A condominium association takes this consolidated appeal from 11 foreclosure suits in the circuit court of DuPage County, asserting that its right to possession of the mortgaged premises during the pendency of the suits was superior to that of the mortgagee. Because we lack jurisdiction, however, we must dismiss the appeal.

This case involves 11 units of the Shorewood Condominiums in Glendale Heights. Each of the units was owned by defendant Gary-Wheaton Bank as the trustee and defendant IRE Properties, Inc. as the beneficiary of the trusts. The units were mortgaged to plaintiff, Baird & Warner, Inc. (Baird & Warner). The owners defaulted both on the notes secured by the mortgages and on the monthly assessments due to defendant Shorewood Condominium Association (Shorewood). Shorewood began initiating forcible entry and detainer suits to obtain possession of the units and had obtained possession orders for some of the units when, on July 27, 1982, Baird & Warner filed the present 11 actions to foreclose the mortgages. On August 20, 1982, the trial court appointed a receiver to collect rents and payments on the units.

On February 4, 1983, in response to motions by both Baird & Warner and Shorewood for summary judgment, the trial court issued orders which, inter alia, declared that the mortgage lien of Baird & Warner was superior to the rights and interests of all of the defendants, including Shorewood, and which placed Baird & Warner as mortgagee in sole possession of the units during the pendency of the foreclosure action. On March 7, 1983, Shorewood filed a petition for rehearing in eight of the suits requesting the court to vacate its February 4 possession order. The trial court denied the petitions on March 28, 1983, and, on April 4, 1983, Shorewood filed notices of interlocutory appeal to this court challenging the February 4 and March 28 orders (Nos. 83-295 through 83-302). However, this court dismissed those appeals as untimely upon motion by Baird & Warner pointing out that a motion to reconsider or for rehearing does not toll the 30-day deadline for filing notice of appeal following an appealable interlocutory order. See Trophytime, Inc. v. Graham (1979), 73 Ill.App.3d 335, 29 Ill.Dec. 391, 391 N.E.2d 1074; Lake Shore Oil Co. v. Sovereign Oil Co. (1981), 98 Ill.App.3d 553, 54 Ill.Dec. 106, 424 N.E.2d 856. Final decrees of foreclosure were entered by the trial court on March 28, 1983, in the three suits not originally appealed and on April 4, 1983, in the remaining eight suits. New notices of appeal were filed by Shorewood on the following April 27 for the three suits not originally appealed and on May 4 for the remaining eight suits. This court subsequently consolidated the 11 appeals.

Baird & Warner raises the issue of this court's jurisdiction to consider this appeal. It argues that, because the issue raised by Shorewood on this appeal was the subject of the earlier appeals which were dismissed, that issue may not be raised on a second appeal.

Shorewood's earlier appeals from the orders of February 4, 1983, putting Baird & Warner in possession during the pendency of the foreclosure action, though dismissed by this court as untimely, were interlocutory appeals pursuant to subsection (a)(4) of Supreme Court Rule 307 (87 Ill.2d R. 307(a)(4)). Although generally only final judgments or orders are appealable, Rule 307 creates some very specific exceptions for certain interlocutory orders appealable as a matter of right, including orders placing or refusing to place a mortgagee in possession of mortgaged premises. (87 Ill.2d R. 307; Olympic Federal v. Witney Development Co., Inc. (1983), 113 Ill.App.3d 981, 69 Ill.Dec. 684, 447 N.E.2d 1371.) It has been held that a party's failure to timely appeal a trial court's order denying a motion to dissolve a temporary restraining order pursuant to Rule 307(a)(1) renders that order the law of the case from which a later appeal cannot be taken. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill.2d 535, 69 Ill.Dec. 71, 447 N.E.2d 288; Debowski v. Shred Pax Corp. (1977), 45 Ill.App.3d 891, 3 Ill.Dec. 794, 359 N.E.2d 204.) Similar rulings have been made with regard to an order vacating a default judgment appealable under Rule 304(b)(3) (Johnson v. Coleman (1977), 47 Ill.App.3d 671, 7 Ill.Dec. 817, 365 N.E.2d 102) and an order suppressing evidence in a criminal case appealable under Rule 604(a)(1) (People v. Taylor (1971), 50 Ill.2d 136, 277 N.E.2d 878). Debowski noted that the authorities support the general rule that a judgment is res judicata where an appeal has not been perfected. (45 Ill.App.3d 891, 897, 3 Ill.Dec. 794, 799, 359 N.E.2d 204, 209.) The Johnson court stated that a judgment, order or decree from which an appeal might have been taken may not be reviewed on appeal from a subsequent order entered in the same cause. (47 Ill.App.3d 671, 673-74, 7 Ill.Dec. 817, 819, 365 N.E.2d 102, 104.) We see no reason why these statements of the general rule should not be applicable to an interlocutory order appealable under Rule 307(a)(4). Thus, the trial court's appealable orders of February 4 are not reviewable on this appeal.

Shorewood does not contradict this rule, but asserts that this appeal is from the final judgments rather than from the February 4 "interlocutory, preliminary determination of the mortgagee's right to possession." It points out that the trial court's February 4 possession orders merely reflect a determination that there...

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