Village of Lisle v. Village of Woodridge

• Decision Date: 20 December 1989
• Docket Number: No. 2-88-1148,2-88-1148
• Citation: 548 N.E.2d 1337,139 Ill.Dec. 623,192 Ill.App.3d 568
• Parties: , 139 Ill.Dec. 623 The VILLAGE OF LISLE, Plaintiff-Appellant, v. The VILLAGE OF WOODRIDGE et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1337

548 N.E.2d 1337

192 Ill.App.3d 568, 139 Ill.Dec. 623

The VILLAGE OF LISLE, Plaintiff-Appellant, v. The VILLAGE OF WOODRIDGE et al., Defendants-Appellees.

No. 2-88-1148.

Appellate Court of Illinois Second District.

Dec. 20, 1989.

Thomas W. Fawell, John J. Curry, Jr. (argued), Katten, Muchin & Zavis, Oak Brook, Robert T.C. Kay, Asst. Village Atty., Village of Lisle, for Village of Lisle.

Thomas W. Good, Gerald M. Gorski (argued), Gorski & Good, Wheaton, for Village of Woodridge.

Jay A. Canel (argued), Peter M. King, Jay A. Canel, P.C., Chicago, for Forest City-Harris Group.

Justice REINHARD delivered the opinion of the court:

Plaintiff, the Village of Lisle (Lisle), filed an 11-count complaint in the circuit court of Du Page County naming as defendants the Village of Woodridge (Woodridge) and Forest City-Harris Group (Forest City). Counts I, II and IV sought specific performance, permanent injunction and damages for breach of contract, respectively. The remainder of the complaint sought: damages for civil conspiracy (count III), damages for tortious interference with economic expectation (count V), a constructive trust (count VI), declaratory judgment on four separate bases (counts VII through X), and damages for tortious interference with a contract (count XI). On September 6, 1988, the circuit court dismissed counts VI, VIII, IX, and X pursuant to sections 2-615 and 2-619 of the Civil Practice Law (Ill.Rev.Stat.1987, ch. 110, pars. 2-615, 2-619) and count III pursuant to section 2-615. Count V was dismissed without prejudice as to Forest City with leave to amend. On October 27, 1988, the circuit court granted defendants' motions for summary judgment as to counts I, II, IV, V, VII and XI. On November 22, 1988, Lisle appealed the October 27, 1988, order granting summary judgment in favor of Woodridge and Forest City.

Although Lisle raises numerous issues on appeal, the two issues dispositive of this appeal are: (1) whether this court has jurisdiction to consider the trial court's dismissal of counts III, VI, VIII, IX and X; and (2) whether the boundary-line agreement between Woodridge and Lisle prohibited Woodridge's subsequent agreement to purchase and annex property on Lisle's side of the boundary line.

Lisle and Woodridge are municipalities located in Du Page County. In 1979, they entered into a written boundary-line agreement which provides, in pertinent part:

"2. Neither Lisle nor Woodridge shall act to annex or exercise any zoning or subdivision control authority beyond the boundary line established by this Agreement."

On March 7, 1987, Woodridge's board of trustees authorized by ordinance the purchase of an approximately 140-acre parcel of land, part of which lies on the Lisle side of the boundary line established by the boundary-line agreement. This parcel was purchased from Forest City, the beneficial owner of a land trust which consisted in part of the 140-acre parcel. That purchase was conditioned on Woodridge and Forest City entering into an annexation agreement as well as Woodridge approving a zoning ordinance for the subject property.

On May 3, 1988, Lisle filed its 11-count, third amended complaint. Pursuant to Woodridge and Forest City's motions, the trial court dismissed with prejudice counts III, VI, VIII, IX and X on September 6, 1988. That order was not final and appealable as it did not contain the language required by Supreme Court Rule 304(a) (107 Ill.2d R. 304(a)), and Lisle did not appeal.

On October 27, 1988, the circuit court granted summary judgment as to the remaining six counts of Lisle's complaint. The court found that paragraph 2 of the boundary agreement prohibiting the parties from annexing beyond the boundary line was invalid as an unauthorized assumption of power, relying on Village of Long Grove v. Village of Kildeer (1986), 146 Ill.App.3d 979, 100 Ill.Dec. 341, 497 N.E.2d 319. On November 22, 1988, Lisle filed its notice of appeal. The notice of appeal states:

"PLAINTIFF-APPELLANT, Village of Lisle, an Illinois municipal corporation, by its attorneys KATTEN MUCHIN & ZAVIS, hereby appeals to the Appellate Court of Illinois, Second District, from the Judgment Order entered on October 27, 1988 by the Circuit Court of the Eighteenth Judicial Circuit, Du Page County, Illinois, Civil Division I, The Honorable Judge John W. Darrah presiding. A copy of said Judgment Order is marked Exhibit A, attached hereto and made a part hereof.

Plaintiff-Appellant prays that the Judgment Order entered against Plaintiff-Appellant and in favor of Defendants-Appellees upon Defendants-Appellees' Motions for Summary Judgment be reversed or, in the alternative, reversed and remanded for further proceedings consistent with the opinion of the Appellate Court.

Plaintiff-Appellant further prays that this cause be remanded to the Circuit Court of the Eighteenth Judicial District, Du Page County, Illinois, for entrance of an appropriate Judgment Order which grants Plaintiff-Appellant relief requested in its complaint and for other relief to which it is entitled."

Woodridge contends that this court lacks jurisdiction to consider the September 6, 1988, dismissal order because Lisle's notice of appeal refers only to the October 27, 1988, order granting summary judgment in favor of Woodridge and Forest City. Relying on Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 31 Ill.Dec. 178, 394 N.E.2d 380, Lisle responds that the omission of the September 6 order from the notice of appeal was a technical error which does not deprive this court of jurisdiction as the September 6 order was a procedural step which ultimately produced the final judgment of October 27, 1988.

Supreme Court Rule 303(c)(2) states:

"(c) Form and Contents of Notice of Appeal.

* * * * * *

(2) It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court." (107 Ill.2d R. 303(c)(2).)

This court held in Long v. Soderquist (1984), 126 Ill.App.3d 1059, 82 Ill.Dec. 80, 467 N.E.2d 1153, that, where a plaintiff's notice of appeal was from a summary judgment order as to certain counts and did not refer to an earlier order dismissing other counts, a reviewing court lacks jurisdiction to consider the earlier dismissal order that was not otherwise timely appealed. (126 Ill.App.3d at 1062, 82 Ill.Dec. 80, 467 N.E.2d 1153.) In a slightly different factual circumstance, our supreme court has held, citing Rule 303(c)(2), that a notice of appeal which referred to the dismissal order as to one defendant but not the earlier dismissal order as to another defendant did not bestow jurisdiction on the reviewing court to consider the separate, earlier dismissal order not mentioned in the notice of appeal. (Ferguson v. Riverside Medical Center (1985), 111 Ill.2d 436, 442, 96 Ill.Dec. 47, 490 N.E.2d 1252.) Similarly, in Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill.2d 56, 34 Ill.Dec 328, 398 N.E.2d 3, the supreme court held that the failure to mention an earlier order dismissing a counterclaim in the notice of appeal seeking review of a summary judgment order deprived the reviewing court of jurisdiction to consider the dismissal order. 78 Ill.2d at 61, 34 Ill.Dec. 328, 398 N.E.2d 3.

This court's decision in Long v. Soderquist is consistent with the supreme court's application of Rule 303(c)(2) to similar circumstances and is directly controlling in this case. Lisle's notice of appeal refers only to the October 27, 1988, summary-judgment order and requests relief from that order only. As such, this court lacks jurisdiction to consider any issues raised by the September 6, 1988, dismissal order. In so holding, we note that although Lisle could not appeal the September 6 order prior to entry of summary judgment on October 27, 1988, as the order lacked the requisite Rule 304(a) language regarding finality and appealability, Lisle could have appealed the order following the October 27 summary judgment as a final order had it included reference to the dismissal order in its notice of appeal.

Lisle's reliance on Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 31 Ill.Dec. 178, 394 N.E.2d 380, is misplaced. In Burtell, the court held that a notice of appeal need not specify a particular order to confer jurisdiction if the order specified in the notice of appeal directly relates back to the judgment or order sought to be reviewed. (76 Ill.2d at 434, 31 Ill.Dec. at 181, 394 N.E.2d at 383.) The unspecified judgment is reviewable if it is a " 'step in the procedural progression leading' " to the judgment specified in the notice of appeal. (76 Ill.2d at 435, 31 Ill.Dec. at 181, 394 N.E.2d at 383.) The earlier order sought to be reviewed but not mentioned in the notice of appeal was an order for an accounting, and the notice of appeal referred only to the judgment which was based on the accounting. 76 Ill.2d at 431, 31 Ill.Dec. at 181, 394 N.E.2d at 381.

The present case is distinguishable from Burtell in that the earlier order dismissing five counts of Lisle's complaint was not a step in the procedural progression leading to the summary-judgment order as to the other six counts. It was unnecessary for the circuit court to have entered the dismissal order in order for it to enter subsequently the summary judgment as to the other counts. Thus, the summary-judgment order as to the remaining counts does not directly relate back to the dismissal order, and, as such, Burtell is not controlling in this case.

As to the remaining counts at issue in this appeal, Lisle contends that the boundary-line agreement is valid and enforceable and that the trial court therefore erred in granting summary judgment in favor of Woodridge and Forest City based on the contract's invalidity. Specifically, Lisle first argues that the agreement is authorized by article VII, section 10, of the Illinois Constitution (Ill. Const.1970, art. VII, § 10) and section 5 of...