Town of Libertyville v. Moran, 2-88-0479

• Decision Date: 28 February 1989
• Docket Number: No. 2-88-0479,2-88-0479
• Citation: 128 Ill.Dec. 868,535 N.E.2d 82,179 Ill.App.3d 880
• Parties: , 128 Ill.Dec. 868 The TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. Lynne M. MORAN, Joyce H. Diserio, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 82

535 N.E.2d 82

179 Ill.App.3d 880, 128 Ill.Dec. 868

The TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. Lynne M. MORAN, Joyce H. Diserio, et al., Defendants-Appellees.

No. 2-88-0479.

Appellate Court of Illinois Second District.

Feb. 28, 1989.

Rehearing Denied March 31, 1989.

Siemon, Larsen, & Purdy, Charles L. Siemon (argued), Gerald P. Callaghan (argued), William D. McElyea, Chicago, for Town of Libertyville.

Snyder, Clarke, Dalziel & Johnson, Clayton P. Voegtle, Waukegan, for Lynne Moran and Joyce Diserio.

Justice REINHARD delivered the opinion of the court:

Plaintiff, the Town of Libertyville, appeals from a judgment of the circuit court of Lake County entered on a jury award of $713,528 as just compensation for a 52.3-acre parcel of real property owned by defendants, Lynne M. Moran and Joyce H. Diserio, as trustee under a trust agreement, which plaintiff sought to acquire by condemnation pursuant to the Township Open Space Act (Ill.Rev.Stat.1985, ch. 139, par. 321 et seq.).

Plaintiff raises numerous trial errors and the amount of the jury award as issues on appeal. Defendants have filed a motion to dismiss the appeal for mootness, which we have taken with the case.

Defendants are the owners of approximately 52 acres of unimproved property in Libertyville Township in Lake County, Illinois. On May 29, 1986, plaintiff filed this condemnation action to acquire the property under the Township Open Space Act. Following a jury trial, the jury returned an award of just compensation of $713,528. On January 27, 1988, the circuit court entered judgment on the verdict and ordered payment within 30 days to the treasurer of Lake County for the benefit of defendants. The court further ordered that upon payment plaintiff would be vested with fee simple title to the property.

On January 30, 1989, following the filing of the parties' appellate briefs, defendants filed a motion to dismiss this appeal as moot. In the motion, and in an accompanying affidavit, defendants stated that the plaintiff had not deposited the funds representing the jury award with the treasurer of Lake County, that plaintiff had appealed and had not requested a stay of the judgment, and that the subject property had subsequently been sold for $832,000 on January 27, 1989, to Regency Woods Limited Partnership (Regency Woods), a nonparty to the litigation in which defendants had no ownership interest. The general manager of Regency Woods filed an affidavit representing that defendants had no interest in the limited partnership and that Regency Woods was not acting as a nominee for defendants.

In their motion, defendants have cited Supreme Court Rule 305(i) (107 Ill.2d R. 305(i)), which provides, in pertinent part, that "the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed." Defendants further argue that the appeal is now rendered moot because the relief being sought on appeal necessarily involves possession or ownership of specific property which has been conveyed to a third party, not a party or nominee of a party to this action, where no stay of the judgment has been obtained by plaintiff, citing Illinois Housing Development Authority v. La Salle National Bank (1985), 139 Ill.App.3d 985, 94 Ill.Dec. 15, 487 N.E.2d 772, Arnold v. Leahy Home Building Co., Inc. (1981), 95 Ill.App.3d 501, 51 Ill.Dec. 285, 420 N.E.2d 699, Jones v. Matthis (1980), 89 Ill.App.3d 929, 45 Ill.Dec. 298, 412 N.E.2d 649, Horvath v. Loesch (1980), 87 Ill.App.3d 615, 43 Ill.Dec. 154, 410 N.E.2d 154, and Schwind v. Mattson (1974), 17 Ill.App.3d 182, 307 N.E.2d 673.

Plaintiff filed an objection and response to the motion to dismiss in which it contends that the judgment below was automatically stayed by its filing of a notice of appeal and, further, that the third- party purchasers take subject to the condemnation action because plaintiff's rights in the property are protected by the lis pendens notice it filed with the Lake County recorder of deeds on May 29, 1986, and because title, which passes to plaintiff upon payment of the judgment, relates back by operation of law to the date of the filing of the complaint for condemnation. The affidavits submitted with defendants' motion which state, in pertinent part, that the third-party purchaser is not a party or a nominee of defendants are not controverted by plaintiff.

The motion to dismiss and the response were taken with the case, and the parties were permitted to present arguments thereon at oral argument. We find this issue dispositive of the appeal.

In support of its argument that its filing of an appeal in this case automatically stayed the judgment of the trial court entered on the just compensation award, plaintiff cites County Board of School Trustees v. Boram (1962), 26 Ill.2d 167, 186 N.E.2d 275, City of Winchester v. Ring (1925), 315 Ill. 358, 146 N.E. 541, and City of Chicago v. Schorsch Realty Co. (1972), 6 Ill.App.3d 1074, 287 N.E.2d 93. None of these cases, however, stand for the proposition suggested by plaintiff, that an appeal in a condemnation case automatically stays the judgment. Rather, those cases stand for the narrower proposition that when the property owner appeals the amount of a condemnation award, the amount of the award is not finally determined until the appeal is disposed of, and, therefore, the time allowed in the judgment for payment is stayed and does not begin to run until the mandate is issued. Schorsch Realty Co., 6 Ill.App.3d at 1078, 287 N.E.2d at 95.

Plaintiff argues, alternatively, that its rights in the subject property are protected because it filed a lis pendens notice pursuant to section 2-101 of the Civil Practice Law (Ill.Rev.Stat.1987, ch. 110, par. 2-101) on May 29, 1986, the day it filed the condemnation action, and that the lis pendens notice remains effective during the pendency of this appeal. Such an argument, however, ignores Supreme Court Rule 305 (107 Ill.2d R. 305), which establishes the procedures to be followed by a party to obtain a stay of a judgment and thereby protect its interest in real or personal property pending an appeal. (See 107 Ill.2d R. 305, Committee Comments, at 406.) Rule 305(b)(1) provides that, upon notice and motion, the trial court or the reviewing court may stay, pending appeal the enforcement of a judgment for money not stayed pursuant to Rule 305(a) or the enforcement, force and effect of any other final or interlocutory judgment or order. (107 Ill.2d R. 305(b)(1).) The stay shall be conditioned upon such terms as are just, including a bond in the case of a judgment for money or a stay for the protection of interests in property. (107 Ill.2d R. 305(b)(3).) In the case of an appeal by a public or governmental body, the court may stay the judgment pending appeal without requiring any bond. (107 Ill.2d R. 305(g).) Finally, Rule 305(i) states:

"(i) Effect on Interests in Property of Failure to Obtain Stay. If a stay is not perfected within 30 days of the entry of the judgment appealed from, or within any extension of time granted under subparagraph (a)(2) of this rule, the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed; nor shall the reversal or modification affect any right of any person who is not a party to the action under or by virtue of any certificate of sale issued pursuant to a sale based on the judgment and before the judgment is stayed. This paragraph applies even if the appellant is a minor or a person under legal disability or under duress at the time the judgment becomes final." (107 Ill.2d R. 305(i).)

Rule 305 clearly establishes procedures which must be followed in obtaining a stay of judgment pending appeal and the resulting effect on an appellant's interest in property by failing to so obtain a stay when the property is acquired by a third person after the judgment becomes final.

The section of the Civil Practice Law providing for lis pendens notice applicable hereto, on the other hand, does not address the applicability of lis pendens to an appeal. (See Ill.Rev.Stat.1987, ch. 110, par. 2-1901; see also Ill.Rev.Stat.1985, ch. 30, par. 121.) The historical and practice notes to this section, however, do refer the reader to Supreme Court Rule 305(i), concerning the effect of an unstayed judgment on interests in real or personal property. (Ill.Ann.Stat., ch. 110, par. 2-1901, Historical and Practice Notes, at 68 (Smith-Hurd 1988 Supp.); see also Carlson & Tillery, Lis Pendens, in Illinois Civil Practice Before Trial ch. 7, § 7.16 (Ill.Inst. for Cont. Legal Educ.1978) (appeal does not act as lis pendens as to third parties).) Moreover, Supreme Court Rule 1 provides, in part, that "[t]he rules on appeals shall govern all appeals." (107 Ill.2d R. 1.) Thus, supreme court rules as to appeals supersede all statutory provisions. (In re Marriage of Lentz (1980), 79 Ill.2d 400, 405, 38 Ill.Dec. 582, 403 N.E.2d 1036; People ex rel. Stamos v....