Victoria Rose, LLC v. The City of Alton

2023 IL App (5th) 220730-U

• Court: Appellate Court of Illinois
• Decided: August 10, 2023
• Docket: 5-22-0730
• Status: Unpublished

Opinion

2023 IL App (5th) 220730-U NOTICE NOTICE Decision filed 08/10/23. The This order was filed under text of this decision may be NO. 5-22-0730 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

VICTORIA ROSE, LLC., ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) ) No. 21-CH-214 THE CITY OF ALTON, an Illinois Municipal Corporation; ) SUNNYBROOK LP; KELLER CONSTRUCTION, INC.; ) and MORRISSEY CONSTRUCTION CO., an Illinois ) Corporation, ) Honorable ) Anthony R. Jumper, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Presiding Justice Boie and Justice Moore concurred in the judgment.

ORDER

¶1 Held: The circuit court’s order dismissing plaintiff’s complaint is affirmed where the elements of collateral estoppel are established, and general principles of equity do not bar application of the doctrine.

¶2 Plaintiff, Victoria Rose, LLC, appeals the circuit court’s order dismissing its complaint

based on the doctrine of collateral estoppel. On appeal, plaintiff argues that the elements of

collateral estoppel were not met and, even if they were, general principles of equity preclude

application of the doctrine. For the following reasons, we affirm.

1 ¶3 I. BACKGROUND

¶4 On November 12, 2021, plaintiff, Victoria Rose, LLC, filed a complaint challenging the

issuance of a building permit by defendant, the City of Alton, to defendant, Sunnybrook, LP. The

City of Alton and Sunnybrook were previously before this court following the trial court’s issuance

of mandamus requiring the City of Alton to issue a building permit to Sunnybrook. See

Sunnybrook, LP v. City of Alton, 2021 IL App (5th) 190314-U. Sunnybrook is the developer of the

Sunnybrook Project, which is a proposed affordable housing development in the City of Alton. Id.

¶ 4. Victoria Rose, LLC, owns real estate near the proposed development area.

¶5 Plaintiff’s complaint contended that the City of Alton previously determined that planned

development procedures (PDPs) were required for the Sunnybrook Project. The complaint set forth

the facts related to Sunnybrook’s first three applications, the ultimate disposal of those

applications, and selective portions of the previous litigation related thereto. The majority of facts

alleged in plaintiff’s complaint were similar to the facts set forth in Sunnybrook I and will not be

repeated herein except as necessary to address the issues presented in this matter. Id. ¶¶ 4-53. 1

¶6 The complaint further alleged that on September 14, 2021, following this court’s issuance

of the decision in Sunnybrook I, Carolyn MacAfee, an alderwoman for the second ward of the City

of Alton, submitted a Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020))

request to the City of Alton requesting a copy of any building permits issued for the Sunnybrook

housing development and copies of the building permit application for any permit issued. In

response to the FOIA request, Alderwoman MacAfee received Sunnybrook’s fourth application

for a building permit dated August 4, 2021, and approval of the application by Samuel Shaw on

1 No reference to the trial court’s April 24, 2019, hearing, or the trial court’s April 29, 2019, order granting partial summary judgment to Sunnybrook on the PDP issue was included, although both were addressed in the prior decision. Sunnybrook, 2021 IL App (5th) 190314-U, ¶¶ 45-46. 2 August 18, 2021. She also received a copy of the $118,020 invoice for building permit number

PB2109-0027, effective September 16, 2019, for the subject property. Plaintiff alleged that no plat,

building plan, or specifications were submitted with the fourth application, the fourth application

was subject to, but did not undergo, the PDPs, and no construction had started.

¶7 Count I of plaintiff’s complaint requested injunctive relief pursuant to section 11-13-15 of

the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 2020)), alleging that the City of Alton

previously determined that PDPs were required for the proposed development, citing Deanna

Barnes’ affidavit filed in Sunnybrook I in support of the claim. The complaint also alleged that if

defendants were permitted to proceed with the development it would “bring large numbers of

automobiles to the Subject Property [and] *** cause great congestion in public streets in the area

in question.” The complaint further alleged the use of the property for “residential purposes will

adversely affect the taxable value of residential and commercial properties in the area and will

impair the taxable value of lands and buildings of Plaintiff” who owns real estate adjacent to the

proposed development property. Count I requested a declaratory judgment declaring that

defendants Morrissey Construction Co. (Morrissey) and Sunnybrook did not acquire any vested

right under the building permit improperly issued to them on August 18, 2021, along with

preliminary and permanent injunctions enjoining defendants from proceeding with the proposed

development. The count also requested attorney fees.

¶8 Count II alleged that Sunnybrook’s fourth application was “similar to the prior three

applications that were rejected by Alton,” in that “ten, 4-plex townhomes comprised of 40

residential units and community center, would be built, and failed to undergo the PDPs required

for the proposed development.” Plaintiff alleged that Samuel Shaw “had no right or authority to

approve the Fourth Application and issue a building permit for the proposed development in

3 violation of the City Code requirements.” Plaintiff further alleged that the permit issued was

beyond the power of the officer to issue because said permit was prohibited by ordinance and the

permit had “no legal status” and extended “no legal rights to the Defendants.” The count again

alleged “great congestion” due to traffic and an adverse tax value of the surrounding properties.

Plaintiff requested the court declare the building permit void and/or invalid with no legal rights or

status afforded to defendants along with costs and attorneys’ fees.

¶9 On December 17, 2021, the City of Alton responded by filing a motion to dismiss. The

motion addressed the prior Sunnybrook litigation (Sunnybrook I) in which the City of Alton argued

that the PDPs were applicable, stating its previous argument was the same argument presented by

plaintiff herein. The City of Alton addressed the April 24, 2019, summary judgment hearing on

the PDP issue and the trial court’s April 29, 2019, order granting partial summary judgment to

Sunnybrook that found a PDP did not apply to Sunnybrook’s proposed project. A transcript of the

April 24, 2019, summary judgment hearing and the trial court’s order were attached to the motion.

The motion further addressed this court’s decision in Sunnybrook, 2021 IL App (5th) 190314-U,

explaining that our decision only vacated the mandamus, not the trial court’s summary judgment

order. A copy the Sunnybrook I decision was also attached. 2 The City of Alton motion argued that

collateral estoppel precluded further action in plaintiff’s case as the prior decisions addressed the

entirety of plaintiff’s complaint.

¶ 10 A motion to dismiss was also filed by defendants Sunnybrook, Keller Construction, Inc.

(Keller), and Morrissey, on December 17, 2021. The motion also addressed collateral estoppel,

and further argued that plaintiff was in privity with the City of Alton, based on the prior litigation

2 That decision noted that the City of Alton requested the appellate court “vacate the circuit court’s April 29, 2019, order granting Sunnybrook partial summary judgment on the issue concerning a planned development procedure.” However, the City failed to “include the April 29, 2019, order in its notices of appeal,” and this court declined to address the issue. Sunnybrook, 2021 IL App (5th) 190314-U, ¶ 2 n.1. 4 and the City’s same argument, citing Sarnow v. Classic Advertising, Inc., 256 Ill. App. 3d 307

(1994). This motion was supported by Sunnybrook’s second amended complaint filed February

11, 2019; the attachments thereto; its March 20, 2019, motion for summary judgment on the

mandamus request that addressed the issue of the PDPs; its March 26, 2019, memorandum of law

filed in support of its motion for summary judgment; the City of Alton’s cross-motion for summary

judgment which collaterally addressed the issue of PDPs; the transcript from the April 24, 2019,

hearing on the cross-motions for summary judgment; the trial court’s April 29, 2019, order

granting partial summary judgment on the PDP issue in favor of Sunnybrook; and this court’s

decision in Sunnybrook, 2021 IL App (5th) 190314-U, all of which was related to the prior

litigation. The motion was also supported by a memorandum of law.

¶ 11 On January 24, 2022, plaintiff filed its combined response to defendants’ motions to

dismiss. Plaintiff argued that defendants failed to meet the legal requirements for collateral

estoppel because its complaint dealt with Sunnybrook’s fourth application for a permit, and the

prior litigation was based on Sunnybrook’s second application. In support, plaintiff relied on the

increase in costs listed on second and fourth applications as well as the name change seen on the

applications. Plaintiff further argued that this issue was not addressed by the City of Alton in the

prior litigation because the City of Alton did not file any response to Sunnybrook’s motion for

summary judgment, failed to file any counteraffidavits, and attempted to argue the issue on appeal

but failed to properly notice the issue for appeal. The response further argued—citing Nowak v.

St. Rita High School, 197 Ill. 2d 381, 391 (2001)—that general principles of equity precluded

application of collateral estoppel. Citing Restatement (Second) of Judgments § 28 (1982), plaintiff

argued that equitable principles included circumstances when “[t]here is a clear and convincing

need for a new determination of the issue *** (c) because the party sought to be precluded, as a

5 result of the conduct of his adversary or other special circumstances, did not have an adequate

opportunity or incentive to obtain a full and fair adjudication in the initial action.” Plaintiff also

relied on the Restatement comments, which included an example involving a governmental agency

bringing “an action for the protection or relief of particular persons or of a broad segment of the

public.” Restatement (Second) of Judgments § 28 cmt. h. That comment stated, “In such cases,

when a second action is brought, due consideration of the interests of persons not themselves

before the court in the prior action may justify relitigation of an issue actually litigated and

determined in that action.” Id.

¶ 12 On January 28, 2022, the City of Alton filed a supplement to its motion to dismiss,

attaching Exhibit E that was inadvertently unattached to the initial motion. Exhibit E was the

declaration of Samuel Shaw, the City of Alton Code Inspector. Mr. Shaw stated he was aware of

the three previous applications filed by Sunnybrook and the third application was denied due to a

lack of a fire-suppression plan. After noting two other independent application reviews by John

Hale (an engineer) and B&F Construction Code Services, Inc (an independent company), Mr.

Shaw stated that Sunnybrook’s fourth application contained the fire suppression plan, along with

other documents previously submitted that met the Alton City Code requirements. Mr. Shaw stated

that he, as well as Ethan Hausman (the plumbing inspector) and Ed Frankford (the electrical

inspector), found the fourth application complied with the Alton City Code, noting that previous

comments from Hale and B&F were also remedied in that application. Mr. Shaw stated that based

on prior instructions from the Madison County circuit court in the previous litigation, “and full

compliance with the City Code for the City of Alton in its fourth building permit application,” he

approved Sunnybrook’s fourth building permit application.

6 ¶ 13 Sunnybrook, Keller, and Morrissey filed a reply to plaintiff’s response on February 11,

2022. The reply addressed the “4-year long effort to thwart” the development. The reply also

addressed the City of Alton’s “vigorous” litigation of the PDP issue held before Judge Dugan on

April 24, 2019. They argued that the issue in the current case was identical to the prior suit, and

the issue was fully and fairly litigated.

¶ 14 The parties argued the motion to dismiss before Judge Chapman on February 14, 2022.

Following the hearing, the trial court directed the parties to submit supplemental briefing by March

8, 2022. The supplemental briefs filed by defendants Sunnybrook, Keller, and Morrissey argued

that the same issue regarding PDPs was previously addressed. It further argued that the City’s

failure to properly appeal the decision did not preclude application of collateral estoppel. The City

of Alton’s supplemental brief argued that Sunnybrook’s fourth application did not preclude the

application of the prior decision rendered when the second application was pending because both

applications dealt with an R-4 zoned district involving 10 4-plex townhomes. It further averred

that the prior cross-motion for summary judgment argued that a PDP was required, so the issue

was fully litigated regardless of the failure to properly appeal the issue. Plaintiff’s supplemental

brief argued that the common law doctrine of estoppel in pais did not apply in the present dispute,

the court should look at the law of the case at the time the trial court’s judgment was entered, there

was no rule of law concerning the issue of subsequently submitted permits, and the City of Alton’s

failure to preserve its appellate rights should not be imputed to plaintiff.

¶ 15 On March 25, 2022, the trial court issued an order denying the motions to dismiss. The

court found that summary judgment was sufficient to find a prior judgment and plaintiff’s claim

that the City of Alton defaulted in arguing against the PDP before the trial court had no support in

the record. The court also addressed the fourth application but rendered no finding on that issue

7 because it stated the appellate court’s decision, Sunnybrook, 2021 IL App (5th) 190314-U,

reversed the trial court’s order and declined to address the applicability of PDP issue. After

adopting the “modern approach” delineated in the Restatement (Second) of Judgments §§ 16, 27,

comment o, the court found the trial court’s prior finding on the PDP issue did not preclude

Victoria Rose’s current complaint.

¶ 16 On May 5, 2022, Sunnybrook, Keller, and Morrissey filed a motion to reconsider stating

that all the parties agreed that Restatement (Second) of Judgments § 27, comment o, did not apply

in the current case because the trial court’s order was not appealed by Alton and that the section i

comment was equally inapplicable. The motion further argued that preclusion did not apply based

on this court’s reversal of the mandamus order because the PDP order remained intact. The motion

was supported by the declaration of Ryan Morrissey, the vice president of defendant Morrissey

Construction, which stated the proposed number, size, and layout of the buildings in the

Sunnybrook Project had not changed since November 2018, although the costs had increased

significantly due to the passage of time. More specifically, the cost for materials and labor

increased by more than 30% during the pandemic and last few years. The declaration asserted that

the increased costs were due to inflation which was the basis of the increased project costs from

$8.6 million in 2018 to $11.8 million currently.

¶ 17 On May 5, 2022, plaintiff was ordered to respond to the motion to reconsider in 30 days.

On May 9, 2022, the City of Alton joined and adopted Sunnybrook, Keller, and Morrissey’s motion

to reconsider. Plaintiff filed its response on June 6, 2022, stating that the City of Alton had “no

incentive to challenge the Appellate Court’s ruling on the effectiveness of the notice of appeal of

the April 29, 2019[,] order because the case was remanded *** for further proceedings.” Plaintiff

further argued that with the reversal, there was no final order entered in the previous litigation and

8 “there is still the potential for the April 29, 2019, summary judgment order on PDP to be merged

into a future final order and appealed.” Plaintiff claimed that because appellate review was not

exhausted the required elements of collateral estoppel failed to apply.

¶ 18 On June 29, 2022, Chief Judge Mudge issued an order reassigning the case to Judge Ruth.

Despite the reassignment, on July 6, 2022, Judge Chapman issued an order denying defendants’

reconsideration request. On July 14, 2022, plaintiff moved for substitution of judge as of right. On

July 15, 2022, Judge Ruth struck Judge Chapman’s order, finding Judge Chapman was without

authority due to the earlier reassignment. On July 26, 2022, Sunnybrook, Keller, and Morrissey

filed a reply in support of their motion to reconsider. The motion to reconsider was set for hearing

on July 27, 2022. On July 27, 2022, Judge Ruth issued an order granting plaintiff’s motion for

substitution of judge. The order further stated, “By agreement, order entered on 7-15 is valid.” On

August 4, 2022, the case was reassigned to Judge Jumper.

¶ 19 The motion for reconsideration was heard by Judge Jumper on September 22, 2022. The

City of Alton conceded that a decision was made, by prior counsel, to not appeal the portion of the

Sunnybrook decision regarding the PDP not being properly raised as an issue on appeal. Counsel

disagreed that the issue could be taken up a second time. Plaintiff argued that its lawsuit was not

based on the prior litigation that granted the permit; their litigation was based on the current

building permit. The City of Alton also advised the court that the current building permit was now

expired, and given the contempt finding in the prior case, expressed concerned that they were again

in the same scenario. It stated that once the new permit was issued, someone else would challenge

it and the litigation would begin again. Sunnybrook argued that the City of Alton previously

litigated against the issuance of a permit and in favor of a PDP but “ultimately lost that issue.”

Following the hearing, the court took the matter under advisement.

9 ¶ 20 On October 13, 2022, the trial court issued an order granting defendants’ motion to

reconsider and defendants’ motions to dismiss. After addressing both the prior and current

litigation, the trial court found that neither comment o of Restatement section 27 nor section 16

prevented the PDP order from having preclusive effect in this case. Thereafter, the court addressed

the elements of collateral estoppel and found plaintiff was in privity with the City of Alton as it

related to the PDP issue. The trial court further found the PDP order was a final judgment and no

longer subject to appeal in the prior litigation. The court found the PDP issue decided by Judge

Dugan in the prior litigation was identical to the issue plaintiff raised in the current suit. Finally,

the court found the PDP issue was “fully, fairly, and actually litigated in the Initial Litigation,”

noting that the City of Alton had the opportunity to appeal that decision but did not. It concluded

by stating, “While the Court is mindful of Plaintiff’s criticism of Alton’s then counsel’s failure to

appeal the PDP issue, the Court is not persuaded that is sufficient to require the Defendants and

the Court to again have to litigate an issue that was already fully and fairly litigated before Judge

Dugan.” Plaintiff timely appealed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, plaintiff argues that the trial court erred by finding the issue in the initial

litigation was identical to that presented by plaintiff. Plaintiff further argues that the trial court

erred in finding there was a final judgment on the merits in the initial litigation. Finally, plaintiff

argues, in the alternative, that even if the elements of collateral estoppel were met, general

principles of equity barred the application of the doctrine.

¶ 23 Defendants’ motions to dismiss were based on section 2-619 of the Code of Civil Procedure

and claimed the cause of action was barred by a prior judgment. 735 ILCS 5/2-619(a)(4) (West

2020). This motion “admits the legal sufficiency of the plaintiff’s claim but asserts ‘affirmative

10 matter’ outside of the pleading that defeats the claim.” Czarobski v. Lata, 227 Ill. 2d 364, 369

(2008). When ruling on such motion, “the court should construe the pleadings and supporting

documents in the light most favorable to the nonmoving party.” Sandholm v. Kuecker, 2012 IL

111443, ¶ 55. On review, we determine whether a genuine issue of material fact precludes the

dismissal, or if no material fact exists, “ ‘whether dismissal is proper as a matter of law.’ ” Id.

(quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). “Our

review is de novo.” Id.

¶ 24 Here, defendants’ section 2-619 claim is founded on the doctrine of collateral estoppel.

“When properly applied, collateral estoppel, also referred to as issue preclusion, promotes fairness

and judicial economy by preventing the relitigation of issues that have already been resolved in

earlier actions.” Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71,

77 (2001). “The doctrine of collateral estoppel applies when a party, or someone in privity with a

party, participates in two separate and consecutive cases arising on different causes of action and

some controlling fact or question material to the determination of both causes has been adjudicated

against that party in the former suit by a court of competent jurisdiction.” Nowak v. St. Rita High

School, 197 Ill. 2d 381, 389-90 (2001). “The adjudication of the fact or question in the first cause

will, if properly presented, be conclusive of the same question in the later suit, but the judgment

in the first suit operates as an estoppel only as to the point or question actually litigated and

determined and not as to other matters which might have been litigated and determined.”

(Emphasis in original.) Id. at 390 (citing Housing Authority for La Salle County v. Young Men’s

Christian Ass’n, 101 Ill. 2d 246, 252 (1984)).

¶ 25 Three requirements exist for application of collateral estoppel: “(1) the issue decided in the

prior adjudication is identical with the one presented in the suit in question, (2) there was a final

11 judgment on the merits in the prior adjudication, and (3) the party against whom estoppel is

asserted was a party or in privity with a party to the prior adjudication.”3 Gumma v. White, 216 Ill.

2d 23, 38 (2005). The applicability of the collateral estoppel doctrine is a question of law reviewed

de novo. In re A.W., 231 Ill. 2d 92, 99 (2008).

¶ 26 A. Identical Issue

¶ 27 Plaintiff first argues that the PDP issue decided in the initial litigation is not identical to the

one present here. In the initial litigation the trial court “granted Sunnybrook partial summary

judgment, finding that no PDP was required for the Sunnybrook Project, and, as agreed to by the

parties, no special use permits were required.” Sunnybrook, 2021 IL App (5th) 190314-U, ¶ 46.

“Specifically, the court determined that the ordinances of the Alton Code regarding the need for

the PDP had ‘no application in this particular setting based upon the materials I have in front of

me.’ ” Id. Here, plaintiff does not dispute that the same Sunnybrook Project is at issue. Instead,

plaintiff argues that the trial court’s finding in the initial litigation was based on Sunnybrook’s

second application for a building permit and the current lawsuit is based on Sunnybrook’s fourth

application. In support, plaintiff argues the applications are not the same because the costs

associated with the fourth application was over $3 million more than the prior application. Plaintiff

further argues that the owner listed on the second application was a “To-be formed Limited

Partnership” and the owner on the fourth application was listed as “Sunnybrook LP.”

¶ 28 As to the project costs, the increase was addressed in Ryan Morrissey’s declaration which

stated the values were the result of increases in the costs associated with materials and labor during

the pandemic and thereafter. No counteraffidavit or evidence to the contrary was presented. The

3 No argument regarding the third element was presented by plaintiff. As such, we affirm the trial court’s finding of privity and limit our review to the two remaining elements. 12 failure to challenge or contradict a supporting 2-619 motion affidavit results in an admission of

the facts stated therein. Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d

341, 353 (2010). The increased cost of materials and labor does nothing to undermine that the

applications addressed the same project, and the PDP issue remained the same.

¶ 29 Plaintiff also argues that the PDP issue decided in the initial litigation is not identical to the

one present here because there was a change in names from the second application for a building

permit to the fourth permit application. However, the lack of Sunnybrook’s name on the first and

second applications was deemed irrelevant when addressing whether Sunnybrook had standing to

bring the litigation because affidavits in the initial litigation revealed that Morrissey Construction

filed the permits “on Sunnybrook’s behalf, for the Sunnybrook Project.” Sunnybrook, 2021 IL App

(5th) 190314-U, ¶ 68. Again, no counteraffidavit was filed, and that fact was admitted. Id.

¶ 30 While plaintiff contends the change in names does not meet the narrowly tailored

application required by Nowak v. St. Rita High School, 197 Ill. 2d 381, 391 (2001), plaintiff’s

argument is rebutted by plaintiff’s own pleadings, which we consider in a light most favorable to

plaintiff. The complaint alleged that Sunnybrook’s second amended complaint concerned the third

application for a building permit, not the second as claimed on appeal. This is relevant because

Sunnybrook’s third application listed Sunnybrook as the owner of the Sunnybrook Project

(Sunnybrook, 2021 IL App (5th) 190314-U, ¶ 23), and the third application was the basis of the

second amended complaint filed in Sunnybrook I. Therefore, contrary to plaintiff’s argument on

appeal, there was no name change between the two relevant applications. However, even if the

names were different, plaintiff provided no argument or evidence regarding how a change in the

owner’s name on a building permit application affected the trial court’s decision on the PDP issue

13 for the same building project. Accordingly, we find no merit in plaintiff’s arguments claiming that

a decision regarding PDPs related to the second application is not relevant to the fourth application.

¶ 31 Further undermining plaintiff’s argument is the fact that plaintiff’s complaint alleged that

“[t]he [f]ourth [a]pplication is similar to the prior three applications that were rejected by Alton,

in that Morrissey proposes to build ten, 4-plex townhomes comprised of 40 residential units and

community center.” There is no dispute that the PDP issue, involved in both the prior and current

litigation, was related to Sunnybrook’s planned development of “ten 4-plex townhomes comprised

of 40 residential units and community center” at the same location in the City of Alton. Again,

plaintiff provides no argument or evidence why the trial court’s determination on the PDP issue in

the initial litigation would not be identical to the PDP issue in the current litigation when all four

building permit applications stemmed from the same project. Accordingly, we find the PDP issue

decided in the prior litigation is identical with the PDP issue raised in the current litigation for the

purpose of collateral estoppel.

¶ 32 B. Finality of the Initial Decision

¶ 33 Plaintiff next argues there was no final judgment on the merits with regard to the PDP issue

in the initial litigation. In support, plaintiff claims that the City of Alton did not have the incentive

or the opportunity to obtain a full and fair adjudication regarding the PDP issue. Plaintiff claims

that the City of Alton (1) failed to respond to Sunnybrook’s motion for summary judgment,

(2) failed to timely file its cross-motion for summary judgment with sufficient time to allow the

trial court in the prior proceeding the ability to review the City of Alton’s position prior to the

hearing, and (3) failed to submit any affidavits or counteraffidavits in its cross-motion for summary

judgment pleadings. None of these arguments have merit.

14 ¶ 34 Plaintiff is essentially requesting this court to speculate as to the City of Alton’s ability to

present evidence or argument during the prior litigation. However, no speculation is necessary, as

the transcript from the April 24, 2019, hearing is contained in the record. First, it is undisputed that

the City of Alton filed a cross-motion for summary judgment. “When parties file cross-motions

for summary judgment, they agree that only a question of law is involved and invite the court to

decide the issues based on the record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28. Thereafter, the court

decides if an issue of material fact precludes summary judgment; the trial court is not obligated to

render summary judgment. Id. Summary judgment is only granted where the pleadings,

depositions, admissions, and affidavits on file conclude there is no genuine issue as to any material

fact and the moving party is clearly entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)

(West 2020). “Summary judgment is the procedural equivalent of a trial and is an adjudication on

the merits” and is sufficient “for purposes of applying collateral estoppel.” Du Page Forklift

Service, Inc., 195 Ill. 2d at 84-85. See also American Freedom Insurance Co. v. Garcia, 2021 IL

App (1st) 200231, ¶ 52.

¶ 35 At the April 24, 2019, hearing, Sunnybrook argued that the City of Alton’s PDPs were

unnecessary, and the City of Alton argued to the contrary. Both parties agreed that the PDP issue

was a legal, not a factual, question for the court to decide, and the decision should be based on the

Alton City Code. Following lengthy argument by both parties, the court stated, “My interpretation

of that is the PDP has no application in this particular setting based upon the material I have in

front of me.” When questioned by the City of Alton’s counsel as to the particulars of the decision,

the court stated, “I think that they’ve met the burden of proof on the summary judgment as to

whether there’s any application of the PDP at all. And looking at the ordinances that you’ve

15 provided to me and that [opposing counsel] has provided to me, I just don’t see where this comes

even close to fitting a PDP.”

¶ 36 As to the argument made herein, while plaintiff contends the decision was not final because

the City of Alton failed to file a response, affidavit, or counteraffidavit, no argument as to what

other specific information would be necessary beyond the Alton City Code—which was provided

by both parties to the court and addressed at the hearing—for the court to issue its ruling

interpreting the city code. Here, both parties were provided the opportunity, and vigorously argued,

their interpretation of the Alton City Code and why that interpretation did or did not require a PDP.

On these facts, we find plaintiff’s argument that the decision was not final, based on the lack of

responsive or timely pleadings filed prior to the hearing, completely without merit.

¶ 37 Plaintiff also contends that the decision is not final because the City of Alton failed to

perfect the issue in its notice of appeal. Plaintiff does not argue that the April 29, 2019, order was

not final for purposes of appeal. Instead, plaintiff argues that this court should find the order was

not final for purposes of collateral estoppel citing Nowak v. St. Rita High School, 197 Ill. 2d 381,

391 (2001), and In re Juma, 530 B.R. 682, 689 (Bankr. N.D. Ill. 2015).

¶ 38 However, neither case supports plaintiff’s position. Juma specifically found “[t]he issue is

identical; there was a final judgment; and the parties are the same.” Juma, 530 B.R. at 688. Nowak

found the doctrine inapplicable because the issues were not identical—which removed the need to

discuss the finality of the judgment. Nowak, 197 Ill. 2d at 394. The only other case cited by plaintiff

on this issue was in the reply brief which cited Talarico v. Dunlap, 177 Ill. 2d 185 (1997).

However, Talarico specifically noted that the parties conceded “the elements for collateral

estoppel to apply have been satisfied.” Id. at 193.

16 ¶ 39 “For purposes of collateral estoppel, a judgment is not final until the potential for appellate

review has been exhausted.” Terry v. Watts Copy Systems, Inc., 329 Ill. App. 3d 382, 391 (2002)

(citing Ballweg v. City of Springfield, 114 Ill. 2d 107, 113 (1986)). Here, the City of Alton’s

potential for review was extinguished upon its failure to perfect its appeal regarding the trial court’s

April 29, 2019, order as well as its failure to appeal the appellate court’s finding on this issue.

¶ 40 Plaintiff’s displeasure with the prior ruling is irrelevant. We note the following from our

supreme court:

“A judgment rendered by a court having jurisdiction of the parties and the

subject matter, unless reversed or annulled in some proper proceeding, is not open

to contradiction or impeachment, in respect of its validity, verity, or binding effect

by parties or privies, in any collateral action or proceeding. *** As early as 1850,

this court stated that when jurisdiction is established a court’s judgment being thus

entered by authority of law, no matter how erroneous it may be, or even absurd—

though it be made in palpable violation of the law itself, and manifestly against the

evidence—is, nevertheless, binding upon all whom the law says shall be bound by

it, that is, upon all parties and privies to it, until it is reversed in a regular proceeding

for that purpose. While it remains a judgment, it cannot be inquired into, nor its

regularity questioned, in any collateral proceeding.” (Internal quotation marks

omitted.) Malone v. Cosentino, 99 Ill. 2d 29, 32 (1983).

¶ 41 Here, no argument was presented claiming the circuit court did not have jurisdiction in the

earlier claim. While this court’s decision vacated the circuit court’s order granting a writ of

mandamus, the decision did not affect the summary judgment order regarding the PDP. The fact

that the City failed to properly appeal the decision does not undermine the circuit court’s earlier

17 decision on the issue. Fried v. Rosario, 171 Ill. App. 3d 156, 162 (1988) (“The fact that he did not

appeal from that particular ruling *** is immaterial.”).

¶ 42 As there is no evidence to undermine our conclusion that the potential for appellate review

on the PDP issue has been exhausted, we hold that the circuit court’s April 29, 2019, order granting

partial summary judgment to Sunnybrook on the PDP issue is a final order for purposes of

collateral estoppel. Accordingly, the threshold elements of collateral estoppel have been satisfied.

¶ 43 C. General Principles of Equity

¶ 44 Finally, plaintiff argues that general principles of equity preclude application of collateral

estoppel in this matter. As such, we consider the instructive principles enunciated by our supreme

court:

“Even where the threshold elements of the doctrine are satisfied, collateral estoppel

must not be applied to preclude parties from presenting their claims or defenses

unless it is clear that no unfairness results to the party being estopped. In deciding

whether the doctrine of collateral estoppel is applicable in a particular situation, a

court must balance the need to limit litigation against the right of a fair adversary

proceeding in which a party may fully present his case. In determining whether a

party has had a full and fair opportunity to litigate an issue in a prior action, those

elements which comprise the practical realities of litigation must be examined.”

Nowak, 197 Ill. 2d at 391.

¶ 45 Here, plaintiff’s initial argument addresses the PDP requirements under the Alton City

Code. However, such argument has no relevancy when determining whether the circuit court’s

April 29, 2019, order should or should not preclude plaintiff’s claim based on general principles

of equity. Plaintiff also argues that the City of Alton had no incentive or opportunity to litigate the

18 prior issue. In support plaintiff argues that the City “failed to properly litigate and appeal the PDP

issue” and, as a result, plaintiff will be stripped of all the protections afforded by a PDP without

having a court “properly weigh in on whether PDP applies to Sunnybrook’s development.”

¶ 46 “[C]ourts generally hold the ‘full and fair opportunity to litigate’ requirement to be satisfied

if the parties to the original action disputed the issue and the trier of fact resolved it.” Raper v.

Hazelett & Erdal, 114 Ill. App. 3d 649, 653 (1983). Here, the record reveals that the City of Alton

vigorously argued in support of a PDP for the Sunnybrook Project at the hearing on April 24, 2019.

The evidence further reveals, upon consideration of the hearing transcript and plaintiff’s

complaint, that plaintiff’s argument is identical to the one presented by the City of Alton. The only

evidence plaintiff presents in support of its claim that the City of Alton failed to adequately address

the issue is the Alton City Code and Deanna Barnes’ affidavit, both of which were filed in the

initial Sunnybrook litigation. As such, plaintiff’s claim that the City of Alton failed to adequately

litigate the issue in the initial litigation has no merit. Further, for the reasons set forth above,

plaintiff’s claim related to City of Alton’s failure to appeal the April 29, 2019, order in either of

its notices of appeal is equally uncompelling.

¶ 47 Finally, plaintiff relies on comment h of section 28 in the Restatement (Second) of

Judgments, which states:

“There are many instances in which the nature of an action is such that the judgment

will have direct impact on those who are not themselves parties. For example, an

agency of government may bring an action for the protection or relief of particular

persons or of a broad segment of the public ***. In such cases, when a second action

is brought, due consideration of the interests of persons not themselves before the

19 court in the prior action may justify relitigation of an issue actually litigated and

determined in that action.” Restatement (Second) Judgments § 28 cmt. h (1982).

¶ 48 Here, providing due consideration to plaintiff’s argument, it is apparent that plaintiff bases

its claim of unfairness on its inability to participate in a public hearing if a PDP was required for

the Sunnybrook Project, increased traffic, and reduced tax values for adjacent properties. First,

plaintiff’s claim related to traffic in the area and/or a reduced tax value of property in the area was

previously advanced by the City of Alton. Sunnybrook, 2021 IL App (5th) 190314-U, ¶¶ 9, 12.

Further, plaintiff’s interest in a public hearing is speculative, at best, as such hearing is only

allowed for projects requiring PDPs. Accordingly, plaintiff presented no claim of unfairness that

was not previously presented by the City of Alton in the prior litigation, and we do find comment

h applicable to the matter at hand.

¶ 49 “Application of the doctrine of collateral estoppel must be narrowly tailored to fit the

precise facts and issues that were clearly determined in the prior judgment.” Nowak, 197 Ill. 2d at

390-91. Here, the facts, issues, interests, and arguments are the same as that presented in the prior

litigation. Permitting repeated litigation on the same issue when the previous matter was fully and

fairly litigated is contrary to the underlying principles ensconcing the doctrine of collateral

estoppel, especially when the interests of both parties are identical and no unfairness results to

plaintiff. Talarico, 177 Ill. 2d at 191-92. Accordingly, we hold that general principles of equity

fail to preclude application of the doctrine of collateral estoppel as to the circuit court’s April 29,

2019, order initially finding that a PDP was not required for the Sunnybrook Project.

¶ 50 III. CONCLUSION

¶ 51 For the foregoing reasons, we affirm the circuit court’s order granting defendants’ motions

to reconsider and defendants’ motions to dismiss.

20 ¶ 52 Affirmed.