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Laws-info.com » Cases » Illinois » 2nd District Appellate » 2005 » Bradford v. Wynstone Property Owners' Assoc.
Bradford v. Wynstone Property Owners' Assoc.
State: Illinois
Court: 2nd District Appellate
Docket No: 2-05-0014 Rel
Case Date: 02/18/2005

No. 2--05--0014

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
BARBARA J. BRADFORD and ) Appeal from the Circuit Court
ROBERT L. SHERMAN, ) of Lake County.
  )  
                  Plaintiffs-Appellants, )  
  )  
v. ) No. 04--CH--1896
  )  
WYNSTONE PROPERTY OWNERS' )  
ASSOCIATION, RICHARD H. SCOBEE, )  
as President of the Wynstone Property )  
Owners' Association Board of Directors, )  
STEVE J. WILKINS, as Manager of the )  
Wynstone Property Owners' Association )  
Board of Directors, CRAIG PARKER, as )  
Acting President of the Village of North )  
Barrington Board of Trustees, SIDNEY R. )  
BARLETT, DAVID PETERSON, and )  
BRUCE J. SAUER, Each in Their Capacities )  
as Trustees of the Village of North Barrington, ) Honorable
  ) David M. Hall,
               Defendants-Appellees. ) Judge, Presiding.
 


JUSTICE BYRNE delivered the opinion of the court:

From December 17, 2004, to January 4, 2005, plaintiffs filed three motions for a temporaryrestraining order (TRO). Each motion sought identical relief: an order prohibiting the culling of aherd 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 interlocutoryappeal under Supreme Court Rule 307(d) (188 Ill. 2d R. 307(d)) by filing successive motions thatseek the same relief.

FACTS

On December 17, 2004, plaintiffs filed a complaint for declaratory judgment and injunctiverelief and a motion for a temporary restraining order and a preliminary injunction. Plaintiffs aremarried and live together in North Barrington, in the gated residential community managed by theWynstone Property Owners' Association (the Association). Plaintiffs alleged that the community ishome to a small population of white-tailed deer, which are deemed a protected species under theWildlife Code (see 520 ILCS 5/2.2 (West 2002)). Plaintiffs enjoy the presence of the deer as wellas the "peaceful, non-violent" nature of the community.

On August 25, 2003, the Board of Trustees (Village Board) of the Village of NorthBarrington (the Village) heard and rejected a request by the Association to cull deer living in thecommunity. On September 22, 2003, the Village Board amended the Village's code to specificallyprohibit 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 theVillage Board was required. The Association told the Village Board that approximately 40 deerresided in the community, the deer were not free to roam because the community is gated, and thedeer had caused thousands of dollars of property damage and posed a threat to motorists. TheAssociation also stated that a survey conducted in the fall of 2002 indicated that most residentssupported a "deer abatement" program, which called for the killing of approximately half of the deerpopulation in the community. Furthermore, the Illinois Department of Natural Resources hadauthorized the Association to supervise volunteers from a local law enforcement agency who wouldhunt by bow and arrow. The Village Board granted the Association a variance and permitted thepartial culling of the herd.

In the original complaint and motion for a TRO, plaintiffs alleged that defendants deliberatelymisled the Village Board to obtain the variance. Plaintiffs alleged that (1) the Associationintentionally over-reported 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 permitthem to leave easily; (3) the Association presented no evidence of property damage caused by thedeer; (4) the Association admitted in a December 7, 2004, letter to residents that the deer had notcaused any car accidents; (5) a survey conducted in the spring of 2003 indicated that only 52 of 439residents complained about the deer and that only 73 residents responded to the survey at all; (6) theAssociation rejected plaintiffs' offer to donate $100,000 to fund a deer sterilization program; (7) theAssociation did not investigate less drastic measures or inform residents that "abatement" meantkilling 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 thevariance; 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 withinWynstone."

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, plaintiffsfiled an amended complaint and a "Motion for Temporary Restraining Order and Memorandum ofLaw Based Upon First Amended Complaint." The first and second motions for a TRO presentedslightly different arguments but sought identical relief. The trial court determined that plaintiffs hadnot provided sufficient notice of the second motion and that there was no emergency that wouldexcuse the failure to provide such notice.

The trial court continued the matter to January 4, 2005, at which time plaintiffs filed a thirdmotion, entitled "Emergency Motion for Temporary Restraining Order and Memorandum of LawBased 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 thesame 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 motionfor a TRO. Among other arguments, defendants respond that the appeal is untimely under Rule307(d). A TRO is an emergency remedy issued to maintain the status quo until the case is disposedof 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 theevidence, 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 theTRO, 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 orderor an order modifying, dissolving, or refusing to dissolve or modify a temporary restraining order asauthorized in paragraph (a) [of Rule 307] shall be by petition filed in the Appellate Court, but noticeof interlocutory appeal as provided in paragraph (a) shall also be filed, within the same time for filingthe petition. The petition shall be in writing, state the relief requested and the grounds for the reliefrequested, and shall be filed in the Appellate Court, with proof of personal service or facsimile serviceas provided in Rule 11, within two days of the entry or denial of the order from which review is beingsought." (Emphasis added.) 188 Ill. 2d R. 307(d). A party's motion to reconsider the denial of aTRO does not toll the period for filing an interlocutory appeal. Cf. Ben Kozloff, Inc. v. Leahy, 149Ill. App. 3d 504, 507-08 (1986) (a posttrial motion that attacks an order denying a request to dissolvea preliminary injunction does not toll the period for filing an interlocutory appeal).

The failure to timely appeal from a trial court's order disposing of a motion to grant, deny,modify, dissolve, or refuse to dissolve a TRO renders that order the law of the case from which a laterappeal cannot be taken. Battaglia v. Battaglia, 231 Ill. App. 3d 607, 615 (1992); see also Hwang v.Tyler, 253 Ill. App. 3d 43, 46 (1993) (generally, the failure to timely appeal from an interlocutoryorder that is appealable renders that order the law of the case). "Further[more], an order or decreefrom which an appeal might have been taken may not be reviewed on appeal from a subsequent orderentered in the same cause." Battaglia, 231 Ill. App. 3d at 615.

The goal of avoiding protracted litigation is achieved by the use of a TRO, which is inherentlybrief due to expiration by its own terms, cessation by law, or supersedence by an order entered in theproceeding for a preliminary injunction. Harper v. Missouri Pacific R.R. Co., 264 Ill. App. 3d 238,243 (1994). All matters pertaining to a TRO should comport with the intent and the purpose of Rule307(d), which are to provide a process for a quick review of the granting or denial of a TRO. Harper,264 Ill. App. 3d at 244.

In this case, plaintiffs filed a "Motion for a Temporary Restraining Order and MemorandumOf Law In Support Of Plaintiffs' Motion," on December 17, 2004, and the trial court denied themotion on that date. The denial of the motion was final and appealable under Rule 307(d), but plaintiffs chose not to appeal. Therefore, the denial of the motion became the law of the case. SeeBattaglia, 231 Ill. App. 3d at 615. Plaintiffs apparently attempted to extend the period for appealingby filing successive motions seeking identical relief: a TRO prohibiting the culling of the deer herd. This tactic not only undermines plaintiffs' claim that the deer abatement program presented anemergency, but it also contravenes the purpose of a TRO. See Harper, 264 Ill. App. 3d at 243-44. Therefore, plaintiffs may not challenge the December 17, 2004, denial of their original motion for aTRO.

For the preceding reasons, we affirm the order of the circuit court of Lake County.

Affirmed.

BOWMAN and CALLUM, JJ., concur.

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