## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

McNe il v. Ketchens , 2011 IL App (4th) 110253

Appellate Court Caption ROSS E. McNEI L and L ESL I E K. McNEI L , Plaintiffs- Ap p ell ees, v. MI L ORAD P. KETCHENS and UNKNO WN OWNERS AND NONRECORD CLAI MANTS, Def endants-A

ppellants.

District & N o. Four th District Docke t No. 4-11-0253

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed November 30, 2011

J anuar y 6, 2012 November

30, 2011

Held (Note : This syl lab us

con st it ut e s no par t of the opi nio n of the cour t but has bee n pre

par ed by th e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s order decla ring that defe ndant was not the owner of the dis p u t ed part of the drivewa y at plaintiffs’ residenc e, that plaintiffs did not acquir e the trac t by deed, but that they had acquir ed it by adver se possession was upheld by the appellate court, which reje cted defe ndant’s contention, inter alia , that the trial cour t lacked jurisdiction to enter the order in the absenc e of a rema nd from the appellate court in an ea rlier action involving the same matter

.

Dec ision Under Review Appea l from the Circuit Court of C h am p ai gn County
, No. 98-CH-235; the Hon. Ha

rry E. Clem, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Richard J

. Whit ney (argued), of Speir & Whitney , o f C arbonda le, for appellants.

Fr ederic M. Grosser

(argued), of

Champaign, for a

ppellees.

Panel J USTI CE APPL ETON delivere d the judgme nt of the court, with opinion. J ustice Pope conc urre d in the judgme nt and opinion. J ustice Turne r spec ially

concur red, w ith opinion.

OP INION

¶ 1 Plaintiffs, Ross E. McNe il and L eslie K. McNe il, and one of the defe ndants, Milorad P. Ketche ns, had a dispute over who owned a narrow triang le-shape d piece of the drivewa y at 609 West Stoughton Street in Urb an a. In McNeil v. Ketchens
, 397 I ll. App. 3d 375, 395 (2010), we resolved the dispute by holding that although the McNe ils had not acquir ed this sliver of land by deed, they had acquir ed it by adver se possession. Acc ording ly
, we aff irmed the trial cour

t’s judgme nt in part and re verse d it in part, without remandingthe ca se. ¶ 2 After we i s s ued our mandate, the trial court enter ed two order s on Fe bruar y 25, 2011, with the intent of implementing our mandate. One of the order s, entitled “Judgment Orde r,” perta ined to Ketche ns. The other order
, entitled “De fault J udgment Orde r,” perta ined to the “unknown owner s and nonrec ord claimants.” Ketche ns appea ls from both order s–which we aff irm, not only beca

u s e t he order s cause d him no prejudice
, considering that they mere ly echoe d our holdings in McNeil
, but also beca use res judicata bars him from relitig ating the

owner ship of the land. The ref ore, w e af firm the trial c ourt’s judg ment.

¶ 3 I . BA CKGROUND ¶ 4 As we said, the McNe ils and Ketche ns wer e i n a d i s p ute over who owned a nar row wedg e-sha

ped piece of the drivewa

y at 609 West Stoughton Stre et in Urbana

. McNeil
, 397 I ll. App. 3d at 377. As in McNeil
, we will call this sliver of land “Tra ct A.” Id. at 379. It had the followingleg al desc ription: “ ‘Commencingat the Nor th East corne r of L ot Two (2) Block Ten (10) of J .W. S im’s J r. addition to Urba

na, running thence in a Northerly direc tion para llel with the East line of L ot Five (5) of a subdivision of lot Thirty -five (35) of a subdivision of the South West Quar ter o f t he sout h West Quar ter of Section Eight (8) Township Ninetee n (19) North Rang e Nine (9) East 3rd P.M. thence North 84.7 fee t to the North East corne r of L ot Five (5) of said subdivision thence running in a Westerly direc tion 13.11 fee t para llel with the North line of L ot Five (5) of said subdivision thence South to the point of beg inning.’ ”

-2-Id. at 380.

¶ 5 Trac t A, leg ally described above , had alwa y s been part of the driveway that skirted the west side of the house at 609 West Stoughton Street, Urba na, wher e th e M cN eil s lived. McNeil , 397 I ll. App. 3d at 379. The drive way went in a straight line from the stre et to the M cNe ils’ g ara g e, and the McNe ils wer e under the impression that 100% of th e dri v ew ay belong ed to them. Id. at 385. On J anuar y 4, 1998, howeve r, Ketche ns parke d his c ar on the portion of the drivewa

y corr esponding to Trac t A, and he ref used to move his car , claiming that Trac t A belong ed to him. Id. at 377. Ap p are ntly
, he intended to acquir e owner ship of Trac t A through adver se possession, toge ther with pay ment of taxes, for seven year s (see 735 I L CS 5/ 13-109 (West 1998)). Id. at 381. ¶ 6 On Dec ember 22, 1998, to head o ff t h i s gam b i t , the McNe ils filed a civil complaint ag ainst Ketche ns, and they also name d all “unknown owner s and nonrec ord claimants.” Count I of the complaint soug ht a decla ratory judgme nt that Ketche ns was not the owner of Trac t A. McNeil
, 397 I ll. Ap p

. 3 d at 3 7 7

. Count I I soug ht a judgme nt quieting title in the McNe ils on the t h eo ry that they had acquir ed Trac t A by their purcha se of 609 West Stoughton Street. Id. Count I I I (adde d to the complaint by amendment) sought a decla ratory judgme nt that the McNe ils had acquire d Trac t A by adver se possession for 20 year s. Id. ¶ 7 In a bench trial, the trial court found that the McNe ils had not acquir ed the title to Trac t A by their purcha se of 609 West Stoughton Street ( McNeil
, 397 I ll. App. 3d at 385) and that they had not car

ried their burden of p ro v i n g adver se possession for 20 year s ( id. at 386). Be cause the court found that the McNe ils lacke d an owner ship interest in Trac t A, it conclude d t h at t hey lacke d standing to seek a decla ratory judgme nt that Ketche ns was not the owner of Trac t A. Id. In short, the court found ag ainst the McNe ils on all three counts of their ame nded complaint. ¶ 8 The McN eils appea led, and on January 6, 2010, we aff

irmed the trial c ourt’s judg ment in part and reve rsed it in part. McNeil
, 397 I ll. Ap p

. 3d at 403. We aff irmed the judgme nt with respe ct to count I I , rea soning that b ec au s e t h e leg al description in the deed to the McNe ils did not include Trac t A, the McNe ils could not have acquir ed Trac t A by virtue of that deed–a s the trial cour t had cor rec tly observe d. Id. at 377. ¶ 9 Neve rtheless, we reve rsed the trial court’s judgme nt with respe ct to counts I and I I I

. Id. at 378. We conclude d that the cou rt wa s i n corr ect, as a matter of law, in holding that the McNe ils’ prede cessor s in title
, Gi l b er t P. Haight, J r., and Shirley Haight, had abandone d Trac t A by moving out of 609 West Stoughton Street in order that a buyer of the house could

move in. Id. at 396. As a matter of law, this tempora ry vaca tion of the premises was not a n aban d o nment. Id. Absent the supposed abandonme nt, the McNe ils and their prede cessor s did adver sely possess Trac t A for 20 year s, beca use Trac t A was part of the drivewa y , which, for deca des, had visibly led from the street to the g ara g e. Id. at 378. Thus, as the owner s of Trac t A by adver se possession, the McNe ils had standing to contest Ketche ns’s owner ship of Trac t A. And he had no own er s h i p i n t erest in Trac t A beca use he had not possessed it, without interruption, for seven year s while pay ing the taxes thereon, as se ction 13-109 of the Code of Civil P roce dure ( 735 I L CS 5/ 13-109 (West 1998) ) require d. McNeil
, 397 I ll. App. 3d at 401.

-3-¶ 10 Our reve rsal of counts I and I I I and our aff irmance of count I I resulted in the following : (1) Milorad P. Ketche ns has no owner ship interest in Trac t A, by adver se possession or otherw ise; (2) Ross E. McNe il and L eslie K. McNe il acquir ed no owner ship interest in Trac t A by deed; a nd (3) Ross E. McNe il and L eslie K. McNe il never theless are the leg al owner s of Trac t A, in fee simple absolute, by adver se possession. ¶ 11 On May 26, 2010, the supreme court denied leave to appea l ( McNeil v. Ketchens
, 236 I ll. 2d 556 (2010)) , and on Jul y 8, 2010, we issued our

mandate. ¶ 12 On Fe bruar

y 25, 2011, on the basis of our decision in McNeil
, the trial court enter ed two order s. The first order was entitled “Judgment Orde r,” and it decla red that (1) Ketche ns was not the owner of Trac t A; (2) the McNe ils had not acqu i re d T ra ct A by deed; and (3) the McNe ils had acquir ed Trac t A, ho we v er , by adver se possession–prec isely our holdings in McNeil

. ¶ 13 The second order was entitled “De fault J udg ment Orde r,” and ther ei n t h e t ri al cour t enter ed judgme nt ag ains t the McNe ils and in favor of unknown owner s and nonrec ord claimants on count I I of the amende d complaint, and the court enter ed a defa ult judgme nt in the M cNe ils’ favor and aga inst unknown owners and nonrecord claimants on counts I and I I I of the amende d complaint. In other words, the “De fault J udg ment Orde r” applied the three holdings in the “ J udg ment Orde r” to the unknown owner s and nonre cord c laimants. ¶ 14 Ketche ns appea ls from both the “Judgment Or der” and the “ Def ault J udg ment Orde r.”

¶ 15 I I . ANALYSI S ¶ 16 A. The McNeils’ Motion To Strike I ssue No. 1 F rom Ketc hens’s B rief ¶ 17 The McNe ils have filed a motion to strike issue No. 1 from Ketche ns’s brief beca use that issue seeks a rec onsideration of our decision in McNeil

. I ssue No. 1 is whether we sho u l d “ame nd” our holding in McNeil
, 397 I ll. App. 3d at 395, that Ketche ns lacks any owner ship interest in Trac t A. Ketche ns claims he can prove, by “new evidenc e,” that he acquir ed Trac t A by adver se possession pursuant to section 13-109 of the Code of Civil Procedur e (7 3 5 I L CS 5/13-109 (West 1998)), a nd he argues that an e x ception to t he doctrine of the law of the case allows us to corr ect what he calls a “palpa ble err or” in McNeil
, namely
, the holding there in that he has no owne rship interest in Tra ct A. ¶ 18 We g rant the McNe ils’s motion to strike issue No. 1 from Ketche ns’s brief. We held, in McNeil
, 397 I ll. App. 3d at 4 0 1
, t hat Ketche ns had no owner ship interest in Trac t A, by adver se possession or ot h erwi s e, and that holding is res judicata as to Ketche ns. See Dalan/Jupiter, Inc. v. Draper & Kramer, Inc. , 372 I ll. App. 3d 362, 366-67 (2007). Be cause McNeil is no longe r subject to the appellate proce ss, the discretionar y doctrine of the law of the case ( People v. McD onald
, 366 I ll. App. 3d 243, 248 (2006)) has been superse ded by the nondiscretionar

y doctrine o f r es judicata ( Newberry Library v. Board of Education of the City of Chicago
, 390 I ll. 48, 52 (1945))

. See In re M arriage of Lehr , 317 I ll. App. 3d 853, 860 (2000); Robertson v. W innebago County Forest Preserv e District , 301 I ll. App. 3d 520,

-4-528 (1998).

¶ 19 B. I ssue No. 2 in Ketc hens’s B rief:

Conducting F urther Proc eeding s in the Absence of a Rema nd ¶ 20 On the authority of W atkins v. Dunbar
, 318 I ll. 174, 177 (1925), and Dalan/Jupiter
, 372 I ll. App. 3d at 367, Ketche ns argues that beca use we did not rema

nd the case in McNeil
, the trial court lacke d jurisdiction t o en t er any further order s in this case : specific ally
, the “Judgment Orde r” and “De fault J udg ment Orde r” that the court enter ed on Fe bruary 2 5, 2011. ¶ 21 On the contra ry , the trial court had j u r is di ct i o n af t er th e issuance of our opinion in McNeil
, beca

use McNeil was more than a reve rsal: it was an aff irmance in part and a reve rsal in part. I llinois Supreme Court Rule 369(b) (ef f. J uly 1, 1982) presuppose s t hat afte r an aff irmance
, the trial court has jurisdiction over the subject matter and the parties–e ven absent

a rema nd–beca use without such jurisdiction, the court would be prec luded from entering any order at all, including an order rela ting to the aff

irmance
, and Rule 3 6 9 (b ) co n templates further proce eding s relatingto the aff irmance

. ¶ 22 Having reje cted the jurisdictional a rgument, we need not de cide whether the trial court

err ed by including, in i t s o rd er s, provisions relating to the partial reve rsal, beca use these p ro v i s i ons cause d Ketche ns no harm. Error is reve rsible only if it is “substanti al l y prejudicia l.” W

odziak v. Kash
, 278 I ll. App. 3d 901, 914 (1996). “[W ]here the court can see from th e en t i re re co rd that no injury has been done, the judgme nt or decr ee will not be disturbed.” (Interna l quotation marks omitted.) Lawson v. G.D. Searle & Co.
, 64 I ll. 2d 543, 559 (1976) (quoting Both v. Nelson
, 31 I ll. 2d 511, 514 (1964)). All the “Judgment Orde r” and “De fault J udg ment Orde r” did was restate , in a n u t s h el l, our holdings in McNeil

. The order s did not chang e Ketche ns’s leg al status one iota from McNeil

. Ba sically
, Ketche ns is askingus to rever se these or ders f or a pur ely

aca demic re ason. We dec line to do so.

¶ 23 C. I ssue No. 3 in Ketc hens’s B rief: F ailure To Join the Bene ficiaries

of the Residuar

y Clause of Mar

y Somers Richards’s Codicil ¶ 24 We rema

rked in McNeil that in order for the trial court to have “dec ide[d] the controve rsy completely ,” the McNe ils would have had to join, as defe ndants, the benef iciaries of Richards’s codicil. McNeil
, 397 I ll. App. 3d at 392. Ketche ns appea rs to argue that beca

use the controve rsy was, as we said in McNeil
, not “complete ly decide d,” our decision in McNeil does not bind him. ¶ 25 The resolution in McNeil was “incomplete,” howeve r, only i n t h e s en s e t h at o ther interested pe rsons, i.e. , the known bene ficiaries of R ichar ds’s codicil, would notbe bound by it–because they

wer e not named a

nd serve d as par

ties (see Mullane v. Central Hanove r Bank & Trust Co.
, 339 U.S. 306, 310 (1950); Callner v. Gree nberg
, 376 I ll. 212, 215 (1941); A n n a N a t i o n al Bank v. Prater , 154 I ll. App. 3d 6, 14 (1987))

. Ketche ns, by contra st, was named and serve d as a party , and we are unawa re of any authority for his sug g estion that McNeil is nonbinding on him by rea son of its being nonbinding on Richards’s benef iciarie s.

-5-¶ 26 It does not appea r that Ke tchens e ver objected to the nonj oinder of the benef iciarie s of Richards’s will; he cer

tainly did not object in the previous appea l; conseque ntly
, he is in no position to object now. See Tomaso v. Plum Gro ve B a n k
, 130 I ll. App. 3d 18, 27 (1985) (“[O]bjections to nonjoinder of nece ssary parties afte r judgme nt are disfavore d ***.”). Be cause the judgme nt in McNeil –as far as the benef

i ci ar i es o f Richards’s codicil are
conce rned–doe s not aff

ect any interest they might have in Trac t A (since they wer e not joined), the judgment does not violate their right to due pr ocess a nd hence is not void. S ee id. Thus, it is a valid judgment a nd, as such, res judicata to Ketche ns.

¶ 27 D. I ssue No. 4 in Ketc hens’s B rief:

The De fault Judgment Ag ainst Unknown Owne rs and Nonr ecor d Claimants ¶ 28 Ketche ns points out that the benef iciarie s of the residuar

y cla u s e o f M ary S o m er s Richards’s codicil, e.g. , the United Presby terian Church of Urba

na and Kemmer er Villag e, Inc., wer e not “unknown owner s”; they wer e known at the time the McNe ils published a notice to unknown owner s and nonrec ord claimants in the newspa per on Dec ember 24, 2007. Also, Ketche ns p o i n t s out that the McNe ils submitt ed no aff idavit that they had made diligent eff

orts to identify and locate any unknown owner s, as require d by section 2-206 (735 I L CS 5/2-206 (West 2006) ) and case law ( Callner v. Gree nberg
, 376 I ll. 212, 215 (1941))

. Thus, he conc ludes, the “De fault J udg ment Orde r” of Fe bruar y 25, 2011, binds neither the known benef

iciarie s of the residuar

y clause of Richards’s codicil nor any unknown owner s. ¶ 29 That is true, but it is a truth that does not help Ketche ns. He is a named party

. As we have explained, the nonjoinder of Richards’s benef iciarie s d o es n ot make the judgme nt ag ainst Ke t chens void. See Tomaso , 130 I ll. App. 3d at 27. The “De fault J udg ment Ord er ” h as nothing to do wi th him, and he is challeng ing it for a purely aca demic reason, not beca use it caused him any

substantial prejudice . See W odziak, 278 I ll. App. 3d at 914.

¶ 30 I I I . CONCLUSI ON ¶ 31 For

the fore g oing r easons, we aff irm the trial cour

t’s judgme nt.

¶ 32 Affir

med.

¶ 33 J USTI CE TURNER, specially concur ring : ¶ 34 Whil e I concur with the majority ’s aff irmat i o n o f t h e t ri al co urt’s judgme nt, Iwrite separ ately to note I express no opinion on whether the controve rsy in McNeil was completely decide d. Supra ¶ 24. I also express no opinion on whether the defa ult judgme nt of Fe bruar

y 25, 2011, binds the known benef iciarie s of the residuar

y clause of Richards’s codicil or the unknown owner s. Supra ¶¶ 28, 29. In all other respe cts, I agree with the majority ’s analy sis.

-6-