Frank v. Village of Barrington Hills

• Decision Date: 02 June 1982
• Docket Number: No. 81-385,81-385
• Citation: 62 Ill.Dec. 526,106 Ill.App.3d 747,436 N.E.2d 276
• Parties: , 62 Ill.Dec. 526 William E. FRANK and Evelyn C. Frank and William A. Frank and Patricia Frank, Plaintiffs-Appellees, v. The VILLAGE OF BARRINGTON HILLS, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 276

436 N.E.2d 276

106 Ill.App.3d 747, 62 Ill.Dec. 526

William E. FRANK and Evelyn C. Frank and William A. Frank and Patricia Frank, Plaintiffs-Appellees, v. The VILLAGE OF BARRINGTON HILLS, a municipal corporation,

Defendant-Appellant.

No. 81-385.

Appellate Court of Illinois, Second District.

June 2, 1982.

Rehearing Denied June 24, 1982.

Ross, Hardies, O'Keefe, Babcock & Parsons, R. Marlin Smith and Wendy U. Larsen, Chicago, for defendant-appellant.

Joseph C. Owens, Chicago, for plaintiffs-appellees.

HOPF, Justice:

Defendant, the village of Barrington Hills, appeals from an order of the McHenry County circuit court disconnecting plaintiffs' property from it. The village takes issue with the sufficiency of the evidence but also questions the procedure by which the Franks sought to correct the errors allegedly contained in the transcript of the trial.

Disconnection was sought pursuant to Ill.Rev.Stat.1965, ch. 24, par. 7-3-6, which provides that owners of land within a municipality may have such territory disconnected if it meets certain requirements. The parties' dispute arose over two of these: the territory may not be "contiguous in whole or in part to any other municipality;" and if the territory is disconnected, "the growth prospects and plan and zoning ordinances, if any, of such municipality will not be unreasonably disrupted." Ill.Rev.Stat.1965, ch. 24, par. 7-3-6(1), (6).

Before we turn our attention to the findings of the court's final order regarding these two requisites, we must first consider whether it was proper to permit the filing of what the village describes the Franks' "second post-trial motion" requesting amendment of the transcript.

The history of this action begins on October 19, 1966, when the Franks filed a petition seeking disconnection of 82.75 acres from the village. A hearing was held on the petition on April 28, 1972. On August 23, 1973, the court dismissed the petition and on February 8, 1974, the court entered judgment for the village. The order entering judgment stated that the Franks failed to prove that if the tract were disconnected the growth prospects and the planning and zoning ordinances of the village would not be unreasonably disrupted. The court added that it made no finding as to whether the tract was contiguous to another municipality.

On March 8, 1974, the Franks filed a post-trial motion. In it they argued that there was substantial evidence that disconnection would not unreasonably disrupt the growth prospects and zoning and planning ordinances of the village. The Franks also contended that there was sufficient evidence to show their property was not contiguous with another municipality.

On August 3, 1977, the trial court circulated to the parties a document entitled "Rulings" denying the Franks' post-trial motion. In this document the court noted that the statute requires that growth prospects and planning and zoning ordinances must not be "unreasonably disrupted." The court noted that an expert witness had testified on behalf of the Franks that disconnection would not "disturb " the growth of the village. The court suggested it found the evidence lacking because the witness stated growth would not be disturbed, instead of using the statutory word, disrupt. The court added, however, that the witness gave an opinion only on the effect disconnection would have on the village's growth and not on its planning and zoning ordinances. The court then stated that considering the growth and the planning and zoning ordinances separately it found the weight of the evidence is that growth prospects would not be disrupted. However, it found the Franks had presented no evidence that the planning and zoning ordinances would not be unreasonably disrupted. The court found that the Franks failed to prove that "if disconnected, the growth prospects and plan ordinances * * *, of such municipality will not be unreasonably disrupted." Ill.Rev.Stat.1965, ch. 24, par. 7-3-6(6).

The court then made a finding about contiguity of the property with another municipality. It found the boundary of the Franks' land joined the boundary of the village of Algonquin for 40 to 50 feet within the intersection of Algonquin and County Line (Lake-Cook) Roads. Aside from the common boundary in the roadway the only contact between the village of Algonquin and the Franks' property was at a corner. The court found that the property was not contiguous with the neighboring municipality.

The court concluded that it was not shown the growth prospects and zoning and planning ordinances would not be unreasonably disrupted and ruled "The post trial motion is denied and the evidence stands dismissed." The court added, "Counsel for the village is requested to furnish for entry by the Court, a final order."

In September 1979 the attorney for the village withdrew and the firm presently representing it was substituted. On October 10, 1979, the village moved that the court enter an order denying the Franks their 1974 post-trial motion. That same day the Franks filed without notice a document entitled "Answer to Motion to Enter Judgment and Petition." The petition requested reconsideration of the August 3, 1977, ruling, alleging that the court reporter had discovered an error in a transcript of the hearing: what had been transcribed as "disturb" in the witness's testimony should have been "disrupt." The testimony of plaintiffs' expert witness, therefore, should have read that "(disconnection) in no way would disrupt said growth." Submitted with the petition was an affidavit by the court reporter acknowledging the error.

On October 10, 1979, the court entered its "Final Judgment." Having considered the Franks' post-trial motion and having reviewed the record the court found that the growth prospects and planning and zoning ordinances of the village would not be unreasonably disrupted by disconnection of the property, and that the property was not contiguous with any other municipality. The court did not state whether it considered the transcript of testimony as originally transcribed or as "corrected" by the court reporter's affidavit. The court then ordered the Franks' property disconnected from the village.

The village filed a post-trial motion on November 9, 1979, contending that the court had no jurisdiction to consider the Franks' October 10, 1979, "Answer to Motion to Enter Judgment and Petition" and that even if the court had such authority and considered the record as "corrected" the manifest weight of the evidence still did not favor the Franks' position.

The court denied the village's motion and the village then appealed.

The village argues that the trial court erred by considering the Franks' "second post-trial motion" as the village calls it, of October 10, 1979, entitled "Answer to Motion to Enter Judgment and Petition"; that the court erred in considering the court reporter's affidavit regarding her error; that the court erred in reversing its prior ruling and finding that the village's planning and zoning ordinances would not be disrupted; and finally, that the court erred in finding the Franks' property was not contiguous with the village of Algonquin.

The village argues that the trial court's August 3, 1977, "Rulings" was a final judgment addressing the Franks' 1974 post-trial motion. It further argues that the October 1979 "Answer to Motion to Enter Judgment and Petition" was an impermissible second post-trial motion, which a court has no authority to consider.

Clearly, one may not file successive motions to reconsider a judgment, each filed after the denial of the previous one. Rose v. Centralia Township High School District No. 200, (1978), 59 Ill.App.3d 606, 16 Ill.Dec. 932, 375 N.E.2d 1039.

The "Rulings" of August 3, 1977, announcing the court's decision regarding the Franks' 1974 post-trial motion is not a final judgment, however. Supreme Court Rule 272 (36 Ill.2d R.272) provides that "If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed." Here the court in its "Rulings" stated its decision with the words, "The post trial motion (of March 1974), is denied and the evidence stands dismissed." The court added, however, that "(C)ounsel for the village is requested to furnish for entry by the Court, a final order." This last sentence shows that the "Rulings" was not a final order.

The announcement of a judgment, without that judgment being yet filed, does not lessen the trial court's jurisdiction to consider other motions or to enter other orders or judgments. (Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill.App.3d 381, 383-84, 39 Ill.Dec. 626, 405 N.E.2d 379.) A trial court is recognized to have the discretionary power to allow a party to amend or supplement its post-trial motion with additional issues. City of Chicago v. Greene (1970), 47 Ill.2d 30, 264 N.E.2d 163, cert. denied (1971), 402 U.S. 996, 91 S.Ct. 2180, 29 L.Ed.2d 162.

The village argues that nonetheless the Franks' "Answer * * * and Petition" should not have been considered because the village never received notice of it and there was no hearing on it.

In Chicago, Milwaukee and St. Paul Railway Co. v. Walsh (1894), 150 Ill. 607, 37 N.E. 1001, the supreme court stated that after the term in which the record was made had expired an amendment to a record can be made only by bringing the parties into court by the service of proper notice.

In People v. Flannigan (1947), 398 Ill. 55, 57-58, 74 N.E.2d 801, where a party sought amendment of the certified transcript of the record the supreme court stated the rule on obtaining amendments to court records:

"It has repeatedly been held that court records are so conclusive and final that the existence of the record or facts recited therein cannot be...