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

• Court: United States Appellate Court of Illinois
• Citation: 122 Ill.App.3d 136,77 Ill.Dec. 536,460 N.E.2d 840
• Docket Number: Nos. 83-385,GARY-WHEATON,s. 83-385
• 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.
• Decision Date: 22 February 1984

Page 840

460 N.E.2d 840 122 Ill.App.3d 136, 77 Ill.Dec. 536 BAIRD & WARNER, INC., an Illinois Corporation, Plaintiff-Appellee,
v.
GARY-WHEATON BANK, as Trustee, et al., Defendants-Appellees,
Shorewood Condominium Association, Defendant-Appellant. Nos. 83-385 to 83-387 and 83-435 to 83-442. Appellate Court of Illinois,
Second District. Feb. 22, 1984.

[122 Ill.App.3d 137]

Page 841

[77 Ill.Dec. 537] 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[122 Ill.App.3d 138] 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.

Page 842

[77 Ill.Dec. 538] 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...