Klose v. Mende

• Decision Date: 28 January 2008
• Docket Number: No. 3-06-0249.,3-06-0249.
• Citation: 882 N.E.2d 703
• Parties: Jerome B. KLOSE and Ruth C. Klose, Plaintiffs-Appellants, v. Frederick E. MENDE, Commissioner of Highways, Meriden Township, LaSalle County, Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

882 N.E.2d 703

Jerome B. KLOSE and Ruth C. Klose, Plaintiffs-Appellants, v. Frederick E. MENDE, Commissioner of Highways, Meriden Township, LaSalle County, Illinois, Defendant-Appellee.

No. 3-06-0249.

Appellate Court of Illinois, Third District.

January 28, 2008.

Jerome B. Klose (argued), Olympia Fields, for Jerome B. Klose.

Paul V. Martin (argued), Joseph Carey, Circuit Clerk, Ottawa, for Frederick E. Mende.

Justice O'BRIEN delivered the opinion of the court:

Defendant Frederick Mende, as commissioner of highways of Meriden Township (hereinafter township), brought this motion to reopen proofs pursuant to section 2-1401 of the Code of Civil Procedure in a declaratory action filed by plaintiffs Jerome and Ruth Klose. 735 ILCS 5/2-1401 (West 2002). The trial court granted Mende's motion and the Kloses appealed. We affirm.

FACTS

This action began in 2000 when the township sent notice to the Kloses that it intended to improve North 4550th Road by blacktopping it eastward from East 10th Road a distance of 3,000 feet, requiring the 66 feet of right-of-way to be available. The Kloses' land is bounded on the north and west sides, respectively, by the roads. According to commissioner Mende, the township had acquired aright to a 66-foot-wide right-of-way by statutory dedication in 1856. As proof of the right, Mende sent the Kloses certain pages of the township ledger kept by the Meriden township clerk which indicated a dedication by statute of the 66-foot-wide road in 1856. The township was unable to produce any other documents, including the survey that was prepared at the time the roads were constructed, the original order dedicating the road or the plat describing the road.

The Kloses objected to the township's plans, claiming that they owned by warranty deed the road right-of-ways at issue. The Kloses filed an action for declaratory relief, seeking an order by the court that they owned fee simple title to the road right-of-ways for North 4550th Road and East 10th Road in Meriden Township. On the township's motion, the trial court dismissed their complaint and denied their request to amend. The trial court found that the township had a valid dedication and that it did not matter in regard to the declaratory action whether the township had acquired fee simple title or an easement in the property at issue. The Kloses appealed.

On appeal, this court held that the township's claim to the roads failed because the township did not establish a valid dedication of the roads. Klose v. Mende, 329 Ill.App.3d 543, 547, 265 Ill.Dec. 1, 771 N.E.2d 960, 964 (2001). According to this court, the documents offered by the township were incomplete and thus insufficient to establish the dedication. Klose, 329 Ill. App.3d at 547, 265 Ill.Dec. 1, 771 N.E.2d at 964. Specifically, this court determined that the ledger entries presented by the township failed to satisfy the requirements for a valid dedication as the statutory requirements include the petition requesting permission to build the roads, a surveyor's report, survey and plat, as well as the road commission's order granting the dedication. Klose, 329 Ill.App.3d at 546-47, 265 Ill.Dec. 1, 771 N.E.2d at 963, quoting 1851 Ill. Laws 72(§ 4). This court also found that the township had acquired an easement by prescription for the portion of the roads in use at the time of the action. Klose, 329 Ill.App.3d at 548-49, 265 Ill. Dec. 1, 771 N.E.2d at 965. The court vacated the trial court's dismissal of the Kloses' complaint and ordered the trial court to enter an order establishing the Kloses' fee simple title and the township's prescriptive easement rights in the roads. Klose, 329 Ill.App.3d at 549, 265 Ill.Dec. 1, 771 N.E.2d at 965.

The record indicates that thereafter the Kloses filed a motion to reinstate, to enter a second amended complaint, to set a date for the township's answer, and to order the township to produce right-of-way maps. Various matters were continuously pending in the trial court until the township filed its petition to reopen proofs pursuant to section 2-1401 of the Code of Civil Procedure on April 10, 2003. 735 ILCS 5/2-1401 (West 2002). The township's section 2-1401 petition is based on documents discovered by township officials in March 2003, which included the original order dedicating the roads at issue, the original surveyor's report and plat, and receipts from adjoining landowners indicating the compensation that was paid for the taking of their land for the roads. Pursuant to a motion by the Kloses, the township's original section 2-1401 petition was dismissed in May 2003 based on the petition's failure to adequately assert due diligence by the township. An amended petition was filed on June 16, 2003, which set forth the township's diligence efforts and included affidavits from commissioner Mende and township clerk Ellen Atherton attesting to their efforts. A second amended petition was filed on June 15, 2005.

In response to the second amended petition, the Kloses filed an answer, defenses and counterclaims. As defenses, the Kloses raised, in applicable part, the following: that Mende was negligent and not diligent in searching for the original road dedication documents; that the township clerk was negligent in maintaining road dedication documents and failed to comply with the applicable record-keeping requirements; that newly discovered evidence generally cannot be used to vacate a final judgment; that Mende's error of law in relying on the ledger entry as sufficient evidence prohibits the final judgment from being vacated; and that the petition is barred by the two-year statute of limitations. The section 2-1401 action was transferred on the Kloses' motion to a different trial court judge, while the other pending matters were considered and disposed of by the original trial court judge.

A hearing ensued on the township's section 2-1401 petition. At the hearing, Mende testified as follows. He was appointed township road commissioner in 1989. In 2000, in response to the Kloses' lawsuit, he searched for the original road dedication documents but could not find them. He searched the road commission file cabinets, which were located in the town garage. He also searched a safe in the old town hall, which had been used as part of the Meriden Township offices until March 2003. On March 14, 2003, he and several other township officials were cleaning out the old town hall in preparation for its demolition when they discovered a box of "ancient" documents in a cupboard. He described the area where the cupboard was discovered as inaccessible, blocked by old chairs and voting booths. The box in which the documents were located was covered in heavy dust. He took the documents to the new town hall and went through them with the town clerk and the township assessor. On March 18, 2003, they discovered the original documents, including the order of the road commissioners and the surveyor's report and plats establishing the dedication of the roads at issue. He reported his findings to his attorney the same day and signed an affidavit outlining the circumstances of the discovery of the documents. According to Mende, his attorney had instructed him throughout the litigation to keep looking for additional information.

Ellen Atherton, the former town clerk, testified as follows. She became town clerk in 1992 and held the position when the current litigation was initiated. On March 18, 2003, she was working with Mende and others at the new town building when they identified the missing documents. She had never been in the cupboard in the old town hall where the documents were found and it was not a place where she would have expected to find township records. It was her understanding that the former town clerk had given her all the records she was supposed to have and that any other records would be in the safe or at town hall. She did not have an office in the old town hall. She kept an office in her basement. She kept the ledger in a safety deposit box at the bank. She had never examined it until the instant action was filed. According to Atherton, the ledger contained drawings and other information regarding roads. After they found the information in the ledger on the roads at issue, she did not look for any additional documents because it was her understanding that the ledger entries were sufficient. She did not initially know that as town clerk she was also clerk for the road commissioner but learned that information thereafter at a clerks' training seminar. According to Atherton, Mende kept his own records, which were maintained in the town garage to which she had access. She never filed anything with the LaSalle County recorder. In the 13 years that she was town clerk, no new roads were developed in the township.

Township trustees Larry Zimmerman and Dave Schlesinger testified that they were working with Mende at the old town hall when the records were discovered. According to Schlesinger, the cupboard in which the documents were found was inaccessible. He explained that it took several hours of cleaning to access the cupboard.

Following the hearing, the trial court granted the township's section 2-1401 petition to reopen proofs. In its order, the trial court stated that the newly discovered evidence presented by Mende constituted the records that the appellate court determined were necessary to establish a valid dedication. Accordingly, the trial court determined that the township satisfied the meritorious defense element necessary for a section 2-1401 petition. The court also determined that the township was not negligent and was not lacking in diligence in searching for the original records and that the evidence established that a reasonable search was conducted of all the logical places in which the records would be stored. The trial court further found that the town clerk's record-keeping was reasonable, not negligent; that the existence of the...