Village of Glenview v. Buschelman

1-96-1667
SECOND DIVISION
APRIL 14, 1998

THE VILLAGE OF GLENVIEW, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 93-CH-1412
)
GLENN A. BUSCHELMAN and )
CHRISTINE A. BUSCHELMAN, ) THE HONORABLE
) STEVEN SCHILLER,
Defendants-Appellants. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
This action was brought by the Village of Glenview
(Glenview) against defendants, Glenn and Christine Buschelman,
residents of Glenview. Plaintiff claimed that, for a number of
years, defendants maintained their real property in violation of
a Glenview zoning ordinance. Plaintiff sought injunctive relief
and the imposition of a fine. The circuit court of Cook County
entered summary judgment in favor of plaintiff and imposed a fine
of $15,000 against defendants, despite the absence of defendants
and their counsel during the summary judgment proceedings.
Thereafter, defendants filed a section 2-1401 (735 ILCS 5/2-1401
(West 1992)) petition to vacate the judgment, which the circuit
court denied. The trial judge also denied defendants' later
supplemental section 2-1401 petition, from which this appeal was
taken. On appeal, defendants argue that they engaged in a
permitted use of their land, which precluded summary judgment in
favor of plaintiff, that the court's award of a fine of $15,000
was unjust and unconstitutional, and that the use of rules of
civil procedure instead of criminal procedure deprived defendants
of their full due process rights.
We dismiss the appeal.
BACKGROUND
Defendants have owned a parcel of residential real property
in Glenview since 1971. When they purchased the property, it was
located in unincorporated Cook County. In 1989, Glenview annexed
that portion of Cook County that included defendants' property.
While living in Glenview, defendants have stored trailers,
boats, and various recreational vehicles on their property.
Defendants assert that the vehicles were always stored legally in
the buildable area of their lot behind their house and that the
area was covered in conformity with applicable Cook County zoning
regulations until annexation by Glenview. In addition, Mr.
Buschelman, who works as a mechanic for the federal government,
occasionally repaired vehicles for compensation. He also
operated a snow plowing business from his house, using his own
pickup truck.
On December 11, 1991, plaintiff conducted an inspection of
defendants' property and noted a zoning violation involving the
prohibited storage of vehicles on the property. The following
day, plaintiff initiated this action by issuing a citation
against defendants for their violation of the Glenview ordinance.
On February 16, 1993, plaintiff refiled its complaint in the
chancery division of the circuit court of Cook County.
Defendants filed an answer in which they admitted storing
vehicles on their property but denied that such activity was
violative of Glenview's zoning ordinance.
In 1994, pursuant to a court order, Mr. Buschelman was
deposed by plaintiff. Based on defendant's deposition testimony,
plaintiff filed an amended complaint on August 9, 1994, which
added violations arising out of defendant's operation of an
automobile repair business and a snow plowing business on the
property. In November of 1994, plaintiff filed a motion for
summary judgment, and defendants responded with a section 2-615
motion to dismiss. 735 ILCS 5/2-615 (West 1992). In support of
their motion, defendants argued that their continuing use of the
land was proper under Glenview's ordinance as a legal
nonconforming use, since vehicle storage, auto repair, and snow
plowing businesses were permitted land uses under the previous
Cook County zoning regulations. Defendants asserted that these
facts created an issue of material fact precluding summary
judgment in plaintiff's favor.
On April 7, 1995, the case came before the trial judge for
hearing on defendants' motion to dismiss and for status on
plaintiff's motion for summary judgment. Both parties were
represented by counsel in open court at that hearing. The trial
judge denied the motion to dismiss, ordered defendants to respond
to plaintiff's motion for summary judgment by April 21, 1995, and
set the motion for summary judgment for hearing on May 15, 1995.
Defendants failed to file a response and failed to appear in
court for the summary judgment hearing. The trial court then
entered an order for summary judgment in plaintiff's favor,
enjoining defendants from continuing to violate the ordinance and
imposing a fine of $15,000 for defendants' continued ordinance
violations.
Thereafter, defendants failed to file either a motion for
rehearing or a notice of appeal within 30 days after the entry of
summary judgment. More than 30 days after the entry of summary
judgment, defendants filed a motion in the appellate court
seeking leave to file a late notice of appeal. Defendants'
motion was denied on July 26, 1995. On August 14, 1995, three
months after the entry of summary judgment, defendants filed a
section 2-1401 petition to vacate or modify the summary judgment
order. The trial court denied defendants' petition on October
16, 1995. On November 28, 1995, the trial court granted
defendants leave to file a supplemental section 2-1401 petition.
During that November 28 hearing, the trial court also modified
its prior injunctive order, removing the injunction against
defendants vis- -vis the snow plowing business, but maintaining
the injunction against vehicle storage and repair operations.
Defendants' supplemental petition (labelled a "Supplemental
Petition in Equity to Vacate or Modify Judgment") was denied on
April 4, 1996, and defendants appeal from that order.

ANALYSIS
Plaintiff contends that this court lacks jurisdiction to
take this appeal. We agree.
First, it is undisputed that defendants failed to make a
timely appeal from the entry of summary judgment in plaintiff's
favor on May 15, 1995. Defendants filed a late notice of appeal
from the summary judgment order, and this court denied that
appeal on July 26, 1995. We find no reason to review the
propriety of that denial, as defendants failed to file their
notice of appeal within 30 days of entry of summary judgment as
mandated by Supreme Court Rule 303(a)(1). 155 Ill. 2d R.
303(a)(1); see Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150
(1994) (reaffirming mandate for strict compliance with Supreme
Court Rule 303); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984) (the timely filing of an appeal is not only
mandatory but also jurisdictional); Clark v. Han, 272 Ill. App.
3d 981, 984, 651 N.E.2d 549, 551 (1995).
Defendants, nevertheless, contend that jurisdiction has been
conferred upon this court to hear their appeal from the trial
court's denial of their section 2-1401 petitions. Plaintiff, on
the other hand, disputes this, arguing that the denial of
defendants' initial section 2-1401 petition constituted a final
judgment from which defendants failed to file a timely notice of
appeal. Additionally, plaintiff argues that the trial court
lacked jurisdiction to entertain defendants' supplemental petition.
Generally, section 2-1401 of the Illinois Code of Civil
Procedure provides a broad statutory procedure by which final
judgments and orders may be vacated or modified after 30 days
following such judgments or orders. 735 ILCS 5/2-1401(a) (West
1992). Unlike a postjudgment motion for a new trial, however, a
section 2-1401 petition is a separate action from the original
case at trial and is, therefore, appealable on grounds
independent from those used as a basis for appeal from the
original judgment. Mitchell, 158 Ill. 2d at 149; Burnicka v.
Marquette National Bank, 88 Ill. 2d 527, 530 (1982) (section 2-
1401 petition is a new cause of action and not a continuation of
the proceeding in which the prior judgment was entered); Northern
Illinois Gas Co. v. Midwest Mole, Inc., 199 Ill. App. 3d 109,
117, 556 N.E.2d 1276, 1282 (1990). This rule is consistent with
Illinois Supreme Court Rule 304(b)(3), which declares that
certain trial court judgments and orders, including those
granting or denying relief sought in a section 2-1401 petition,
are final and, thus, immediately appealable. 155 Ill. 2d R.
304(b)(3). It is undisputed, therefore, that an appeal from a
section 2-1401 petition order must be made within 30 days of that
order in compliance with Supreme Court Rule 303(a)(1). Barth, 103 Ill. 2d at 538; cf. State Farm Illinois Federal Credit Union v.
Hayes, 92 Ill. App. 3d 1127, 1128, 416 N.E.2d 703, 705 (1981)
(trial court's denial of first section 2-1401 petition
constituted final judgment appealable under Supreme Court Rule 304(b)(3)).
The issue of properly appealing section 2-1401 petitions is
of particular importance where a petitioner has filed successive
section 2-1401 petitions for relief instead of making timely
appeals to attack prior judgments or orders. The supreme court's
decisions in Deckard v. Joiner, 44 Ill. 2d 412, 418-19 (1970),
and its progeny have steadily held that repeated postjudgment
motions of this nature are prohibited, as they unnecessarily
frustrate the policy of bringing finality to court proceedings.
See, e.g., Sears v. Sears, 85 Ill. 2d 253, 259 (1981) ("we
reaffirm the rule of Deckard that successive post-judgment
motions are impermissible when the second motion is filed more
than 30 days after the judgment"); B-G Associates, Inc. v. Giron,
194 Ill. App. 3d 52, 58-60, 550 N.E.2d 1080, 1084-85 (1990);
Benet Realty Corp. v. Lisle Savings & Loan Ass'n, 175 Ill. App.
3d 227, 231-32, 529 N.E.2d 718, 720-21 (1988); City Auto Paint &
Supply, Inc. v. Brandis, 73 Ill. App. 3d 863, 866-67, 392 N.E.2d 703, 706 (1979); Federal Sign & Signal Corp. v. Czubak, 57 Ill.
App. 3d 176, 181, 372 N.E.2d 965, 969 (1978). In accord with
this rule, Illinois courts have repeatedly held that the filing
of multiple postjudgment petitions does not extend the time for
appealing earlier judgments from which the supplemental
postjudgment petitions seek relief. Mitchell, 158 Ill. 2d at 149;
Sears, 85 Ill. 2d at 259, citing Deckard, 44 Ill. 2d at 418-19
(second postjudgment petition, filed more than 30 days after
original judgment but within 30 days of denial of first motion,
that raises points that could have been raised earlier does not
extend time for appeal); Village of Island Lake v. Parkway Bank &
Trust Co., 212 Ill. App. 3d 115, 122-23, 569 N.E.2d 1362, 1366
(1991); Bell Federal Savings & Loan Ass'n v. Bank of Ravenswood,
203 Ill. App. 3d 219, 224, 560 N.E.2d 1156, 1159-60 (1990);
Brandis, 73 Ill. App. 3d at 865-67, 392 N.E.2d at 705-06; Martin
v. Masini, 90 Ill. App. 2d 348, 355, 232 N.E.2d 770, 774 (1967).
The courts' aversion to allowing additional section 2-1401
petitions is heightened where those petitions call on courts to
entertain matters that were previously adjudicated or that could
have been raised earlier in the proceedings. Sears, 85 Ill. 2d at
258; Deckard, 44 Ill. 2d at 418; In re Marriage of Ohlson, 126
Ill. App. 3d 374, 381, 466 N.E.2d 1280, 1285 (1984); Peoples Gas
Light & Coke Co. v. Rubin, 89 Ill. App. 3d 244, 246, 411 N.E.2d 886, 888 (1980); In re Marriage of Kirk, 85 Ill. App. 3d 805,
808-09, 407 N.E.2d 562, 565 (1980) (permitting petitioner to file
additional section 2-1401 petition alleging same grounds and
seeking same relief after 30 days had expired would render policy
of Rule 303(a) a nullity).
Nevertheless, Illinois courts do recognize a narrow
exception to the foregoing rule for cases where the trial court
has granted leave to amend a section 2-1401 petition. That is,
despite the general prohibition against allowing successive
postjudgment motions and petitions, trial courts are deemed to
have proper jurisdiction to hear additional section 2-1401
petitions sanctioned by the trial courts for purposes of amending
earlier such petitions. Critical to the applicability of this
exception is that the supplemental section 2-1401 petition: (1)
be authorized by an order that grants petitioner leave to amend
the earlier petition; (2) be submitted for the purpose of curing
defects in the earlier petition or for alleging grounds that have
not and could not have been previously adjudicated; and (3) be
filed within 30 days after the order granting leave to amend. See
Smith v. Cole, 256 Ill. App. 3d 806, 809-10, 632 N.E.2d 31, 34
(1993); Picardi v. Edwards, 228 Ill. App. 3d 905, 909-10, 593 N.E.2d 852, 854-55 (1992) (trial court retained jurisdiction over
second section 2-1401 petition where it dismissed first petition
for being defective and suggested that petitioner refile); Romo
v. Allin Express Service, Inc., 219 Ill. App. 3d 418, 419, 579 N.E.2d 924, 925-26 (1991), appeal denied, 143 Ill. 2d 648 (1992)
(trial court's order denying section 2-1401 relief "without
prejudice" was construed to mean that trial court granted
petitioner leave to amend and refile petition).
In the case sub judice, defendants filed their first section
2-1401 petition for relief on August 14, 1995--three months after
the entry of summary judgment. The trial court denied
defendants' petition on October 16, 1995. Nothing in the record
indicates that the trial court intended anything other than a
flat denial of that first section 2-1401 petition. Although the
trial court did not use the words "with prejudice" or "final
order," we deem its order final under Supreme Court Rule
304(b)(3) (155 Ill. 2d R. 304(b)(3) (judgments or orders granting
or denying section 2-1401 petition relief are deemed final and
immediately appealable without special findings)), as it did not
grant leave for defendants to amend the first petition, nor did
it suggest that they refile the petition. It was defendants who
later requested the court to grant leave to file a supplemental
petition following the denial of the first petition.
In addition, after careful review of defendants' petitions,
we believe that defendants' initial section 2-1401 petition
contained no defects that could justify the granting of leave to
amend. Indeed, defendants cannot properly claim that their
supplemental petition, filed 81 days after the denial of their
first petition, was designed to cure defects found in the earlier
petition. On the contrary, the second petition filed by
defendants alleged certain grounds for relief that were different
from those rejected by the trial court in the first petition.
Nevertheless, the grounds asserted in the second petition were
either already of record and previously considered by the trial
court or comprised issues that defendants could have raised in
earlier proceedings. See Ohlson, 126 Ill. App. 3d at 381, 466 N.E.2d at 1285; Davis v. Chicago Transit Authority, 82 Ill. App.
3d 987, 989, 403 N.E.2d 615, 616-17 (1980) (petition brought
under section 2-1401 cannot be used to relitigate questions
previously ruled upon); Czubak, 57 Ill. App. 3d at 181, 372 N.E.2d at 969 (purpose of section 2-1401 petition is to present
to the trial court new issues of fact not in the record, which,
if known to the court when judgment was entered, would have
prevented its entry); Werth Industries, Inc. v. Mid-America
Management Co., 16 Ill. App. 3d 688, 690, 306 N.E.2d 510, 512
(1973).
It should also be noted that defendants waited 43 days after
the denial of their first section 2-1401 petition before
indicating to the trial court that they would again seek relief
via a second petition--long after their deadline for filing a
postjudgment motion against or appeal from that denial had
expired. This court has previously stated that the purpose of a
section 2-1401 petition is not to provide for review of an order
from which the petitioner could have taken a timely appeal, and
that such a petition may not be invoked as a substitute for the
petitioner's right to appeal. Anest v. Bailey, 265 Ill. App. 3d
58, 68, 637 N.E.2d 1209, 1216 (1994); Universal Outdoor, Inc. v.
City of Des Plaines, 236 Ill. App. 3d 75, 80-81, 603 N.E.2d 585,
588 (1992).
Based on the foregoing facts, we conclude that defendants'
proper recourse following the denial of their first section 2-
1401 petition was to make a timely appeal from that denial, as it
was a final judgment. Defendants failed to make such an appeal.
We hold that, since the trial court denied defendants' properly
filed section 2-1401 petition and did so without leave to amend,
the trial court lacked jurisdiction to entertain a second
petition. And, since defendants' only basis for appellate
jurisdiction was their timely notice of appeal from the trial
court's denial of the second petition, this court also lacks
jurisdiction to consider the merits of defendants' appellate
arguments.
Accordingly, we dismiss the appeal.
Appeal dismissed.
RAKOWSKI and TULLY, JJ., concur.