Bradford v. Wynstone Property Owners' Ass'n

823 N.E.2d 1166, 355 Ill. App. 3d 736, 291 Ill. Dec. 580
CourtAppellate Court of Illinois
DecidedFebruary 18, 2005
Docket2-05-0014
StatusPublished
Cited by16 cases

This text of 823 N.E.2d 1166 (Bradford v. Wynstone Property Owners' Ass'n) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradford v. Wynstone Property Owners' Ass'n, 823 N.E.2d 1166, 355 Ill. App. 3d 736, 291 Ill. Dec. 580 (Ill. Ct. App. 2005).

Opinion

JUSTICE BYRNE

delivered the opinion of the court:

From December 17, 2004, to January 4, 2005, plaintiffs filed three motions for a temporary restraining order (TRO). Each motion sought identical relief: an order prohibiting the culling of a herd of deer living in plaintiffs’ gated residential community. The trial court denied the motions, but plaintiffs appealed only from the denial of the third motion. We affirm the denial of the TRO, concluding that plaintiffs have improperly attempted to extend the period for filing an interlocutory appeal under Supreme Court Rule 307(d) (188 Ill. 2d R. 307(d)) by filing successive motions that seek the same relief.

FACTS

On December 17, 2004, plaintiffs filed a complaint for declaratory judgment and injunctive relief and a motion for a temporary restraining order and a preliminary injunction. Plaintiffs are married and live together in North Barrington, in the gated residential community managed by the Wynstone Property Owners’ Association (the Association). Plaintiffs alleged that the community is home to a small population of white-tailed deer, which are deemed a protected species under the Wildlife Code (see 520 ILCS 5/2.2 (West 2002)). Plaintiffs enjoy the presence of the deer as well as the “peaceful, non-violent” nature of the community.

On August 25, 2003, the Board of Trustees (Village Board) of the Village of North Barrington (the Village) heard and rejected a request by the Association to cull deer living in the community. On September 22, 2003, the Village Board amended the Village’s code to specifically prohibit hunting anywhere in the Village, including within the Wynstone community.

The Association raised the issue again during a Village Board meeting on November 22, 2004. The agenda of the meeting identified the topic as “Deer (Wynstone)” and indicated that action by the Village Board was required. The Association told the Village Board that approximately 40 deer resided in the community, the deer were not free to roam because the community is gated, and the deer had caused thousands of dollars of property damage and posed a threat to motorists. The Association also stated that a survey conducted in the fall of 2002 indicated that most residents supported a “deer abatement” program, which called for the killing of approximately half of the deer population in the community. Furthermore, the Illinois Department of Natural Resources had authorized the Association to supervise volunteers from a local law enforcement agency who would hunt by bow and arrow. The Village Board granted the Association a variance and permitted the partial culling of the herd.

In the original complaint and motion for a TRO, plaintiffs alleged that defendants deliberately misled the Village Board to obtain the variance. Plaintiffs alleged that (1) the Association intentionally overreported the size of the herd, to obtain permission to remove nearly all of the deer; (2) the deer are not trapped, because several holes in the fence surrounding the community permit them to leave easily; (3) the Association presented no evidence of property damage caused by the deer; (4) the Association admitted in a December 7, 2004, letter to residents that the deer had not caused any car accidents; (5) a survey conducted in the spring of 2003 indicated that only 52 of 439 residents complained about the deer and that only 73 residents responded to the survey at all; (6) the Association rejected plaintiffs’ offer to donate $100,000 to fund a deer sterilization program; (7) the Association did not investigate less drastic measures or inform residents that “abatement” meant killing the deer; (8) the volunteer hunters posed a risk of injury to residents and their property; (9) the residents did not obtain adequate notice of the hearing at which the Village Board granted the variance; and (10) the Association revealed only that the hunt was to be completed by January 13, 2005, and has refused to disclose any other details about the hunt. In the original motion for a TRO, plaintiffs sought to prevent the “ ‘taking’ of any deer from Wynstone, as defined by the legislature, and/or from executing any deer on or adjacent to any privately held residential property within Wynstone.”

The trial court denied the original motion on December 17, 2004, the same date it was filed, but plaintiffs did not appeal from the denial of the motion. ■ Instead, on December 22, 2004, plaintiffs filed an amended complaint and a “Motion for Temporary Restraining Order and Memorandum of Law Based Upon First Amended Complaint.” The first and second motions for a TRO presented slightly different arguments but sought identical relief. The trial court determined that plaintiffs had not provided sufficient notice of the second motion and that there was no emergency that would excuse the failure to provide such notice.

The trial court continued the matter to January 4, 2005, at which time plaintiffs filed a third motion, entitled “Emergency Motion for Temporary Restraining Order and Memorandum of Law Based Upon Revised First Amended Complaint.” The third motion asked the trial court to “restrain [defendants] from executing a certain deer hunt.” The trial court denied the third motion, and, on the same date, plaintiffs filed a petition and notice of appeal from the denial of the third motion.

ANALYSIS

On appeal, plaintiffs contend that the trial court abused its discretion in denying their motion for a TRO. Among other arguments, defendants respond that the appeal is untimely under Rule 307(d). A TRO is an emergency remedy issued to maintain the status quo until the case is disposed of on the merits. Wilson v. Hinsdale Elementary School District 181, 349 Ill. App. 3d 243, 248 (2004). A trial court’s order granting or denying a TRO is reviewed for an abuse of discretion. Wilson, 349 Ill. App. 3d at 248. “A party seeking a TRO must establish, by a preponderance of the evidence, that (1) he or she possesses a certain and clearly ascertainable right needing protection, (2) he or she has no adequate remedy at law, (3) he or she would suffer irreparable harm without the TRO, and (4) he or she has a likelihood of success on the merits.” Wilson, 349 Ill. App. 3d at 248.

Rule 307(d) provides that “review of the granting or denial of a temporary restraining order or an order modifying, dissolving, or refusing to dissolve or modify a temporary restraining order as authorized in paragraph (a) [of Rule 307] shall be by petition filed in the Appellate Court, but notice of interlocutory appeal as provided in paragraph (a) shall also be filed, within the same time for filing the petition. The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service or facsimile service as provided in Rule 11, within two days of the entry or denial of the order from which review is being sought.” (Emphasis added.) 188 Ill. 2d R. 307(d). A party’s motion to reconsider the denial of a TRO does not toll the period for filing an interlocutory appeal. Cf. Ben Kozloff, Inc. v. Leahy, 149 Ill. App. 3d 504, 507-08 (1986) (a posttrial motion that attacks an order denying a request to dissolve a preliminary injunction does not toll the period for filing an interlocutory appeal).

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Bluebook (online)
823 N.E.2d 1166, 355 Ill. App. 3d 736, 291 Ill. Dec. 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradford-v-wynstone-property-owners-assn-illappct-2005.