                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




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




Appellate Court             ROSS E. McNEIL and LESLIE K. McNEIL, Plaintiffs-Appellees, v.
Caption                     MILORAD P. KETCHENS and UNKNOWN OWNERS AND
                            NONRECORD CLAIMANTS, Defendants-Appellants.



District & No.              Fourth District
                            Docket No. 4-11-0253


Rule 23 Order filed         November 30, 2011
Rule 23 Order
withdrawn                   January 6, 2012
Opinion filed               November 30, 2011
Held                        The trial court’s order declaring that defendant was not the owner of the
(Note: This syllabus        disputed part of the driveway at plaintiffs’ residence, that plaintiffs did
constitutes no part of      not acquire the tract by deed, but that they had acquired it by adverse
the opinion of the court    possession was upheld by the appellate court, which rejected defendant’s
but has been prepared       contention, inter alia, that the trial court lacked jurisdiction to enter the
by the Reporter of          order in the absence of a remand from the appellate court in an earlier
Decisions for the           action involving the same matter.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Champaign County, No. 98-CH-235;
Review                      the Hon. Harry E. Clem, Judge, presiding.



Judgment                    Affirmed.
Counsel on                  Richard J. Whitney (argued), of Speir & Whitney, of Carbondale, for
Appeal                      appellants.

                            Frederic M. Grosser (argued), of Champaign, for appellees.


Panel                       JUSTICE APPLETON delivered the judgment of the court, with opinion.
                            Justice Pope concurred in the judgment and opinion.
                            Justice Turner specially concurred, with opinion.




                                              OPINION

¶1          Plaintiffs, Ross E. McNeil and Leslie K. McNeil, and one of the defendants, Milorad P.
        Ketchens, had a dispute over who owned a narrow triangle-shaped piece of the driveway at
        609 West Stoughton Street in Urbana. In McNeil v. Ketchens, 397 Ill. App. 3d 375, 395
        (2010), we resolved the dispute by holding that although the McNeils had not acquired this
        sliver of land by deed, they had acquired it by adverse possession. Accordingly, we affirmed
        the trial court’s judgment in part and reversed it in part, without remanding the case.
¶2          After we issued our mandate, the trial court entered two orders on February 25, 2011,
        with the intent of implementing our mandate. One of the orders, entitled “Judgment Order,”
        pertained to Ketchens. The other order, entitled “Default Judgment Order,” pertained to the
        “unknown owners and nonrecord claimants.” Ketchens appeals from both orders–which we
        affirm, not only because the orders caused him no prejudice, considering that they merely
        echoed our holdings in McNeil, but also because res judicata bars him from relitigating the
        ownership of the land. Therefore, we affirm the trial court’s judgment.

¶3                                         I. BACKGROUND
¶4           As we said, the McNeils and Ketchens were in a dispute over who owned a narrow
        wedge-shaped piece of the driveway at 609 West Stoughton Street in Urbana. McNeil, 397
        Ill. App. 3d at 377. As in McNeil, we will call this sliver of land “Tract A.” Id. at 379. It had
        the following legal description:
             “ ‘Commencing at the North East corner of Lot Two (2) Block Ten (10) of J.W. Sim’s
             Jr. addition to Urbana, running thence in a Northerly direction parallel with the East line
             of Lot Five (5) of a subdivision of lot Thirty-five (35) of a subdivision of the South West
             Quarter of the south West Quarter of Section Eight (8) Township Nineteen (19) North
             Range Nine (9) East 3rd P.M. thence North 84.7 feet to the North East corner of Lot Five
             (5) of said subdivision thence running in a Westerly direction 13.11 feet parallel with the
             North line of Lot Five (5) of said subdivision thence South to the point of beginning.’ ”

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         Id. at 380.
¶5       Tract A, legally described above, had always been part of the driveway that skirted the
     west side of the house at 609 West Stoughton Street, Urbana, where the McNeils lived.
     McNeil, 397 Ill. App. 3d at 379. The driveway went in a straight line from the street to the
     McNeils’ garage, and the McNeils were under the impression that 100% of the driveway
     belonged to them. Id. at 385. On January 4, 1998, however, Ketchens parked his car on the
     portion of the driveway corresponding to Tract A, and he refused to move his car, claiming
     that Tract A belonged to him. Id. at 377. Apparently, he intended to acquire ownership of
     Tract A through adverse possession, together with payment of taxes, for seven years (see 735
     ILCS 5/13-109 (West 1998)). Id. at 381.
¶6       On December 22, 1998, to head off this gambit, the McNeils filed a civil complaint
     against Ketchens, and they also named all “unknown owners and nonrecord claimants.”
     Count I of the complaint sought a declaratory judgment that Ketchens was not the owner of
     Tract A. McNeil, 397 Ill. App. 3d at 377. Count II sought a judgment quieting title in the
     McNeils on the theory that they had acquired Tract A by their purchase of 609 West
     Stoughton Street. Id. Count III (added to the complaint by amendment) sought a declaratory
     judgment that the McNeils had acquired Tract A by adverse possession for 20 years. Id.
¶7       In a bench trial, the trial court found that the McNeils had not acquired the title to Tract
     A by their purchase of 609 West Stoughton Street (McNeil, 397 Ill. App. 3d at 385) and that
     they had not carried their burden of proving adverse possession for 20 years (id. at 386).
     Because the court found that the McNeils lacked an ownership interest in Tract A, it
     concluded that they lacked standing to seek a declaratory judgment that Ketchens was not
     the owner of Tract A. Id. In short, the court found against the McNeils on all three counts of
     their amended complaint.
¶8       The McNeils appealed, and on January 6, 2010, we affirmed the trial court’s judgment
     in part and reversed it in part. McNeil, 397 Ill. App. 3d at 403. We affirmed the judgment
     with respect to count II, reasoning that because the legal description in the deed to the
     McNeils did not include Tract A, the McNeils could not have acquired Tract A by virtue of
     that deed–as the trial court had correctly observed. Id. at 377.
¶9       Nevertheless, we reversed the trial court’s judgment with respect to counts I and III. Id.
     at 378. We concluded that the court was incorrect, as a matter of law, in holding that the
     McNeils’ predecessors in title, Gilbert P. Haight, Jr., and Shirley Haight, had abandoned
     Tract 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 temporary vacation of the premises was not an
     abandonment. Id. Absent the supposed abandonment, the McNeils and their predecessors did
     adversely possess Tract A for 20 years, because Tract A was part of the driveway, which, for
     decades, had visibly led from the street to the garage. Id. at 378. Thus, as the owners of Tract
     A by adverse possession, the McNeils had standing to contest Ketchens’s ownership of Tract
     A. And he had no ownership interest in Tract A because he had not possessed it, without
     interruption, for seven years while paying the taxes thereon, as section 13-109 of the Code
     of Civil Procedure (735 ILCS 5/13-109 (West 1998)) required. McNeil, 397 Ill. App. 3d at
     401.


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¶ 10        Our reversal of counts I and III and our affirmance of count II resulted in the following:
                (1) Milorad P. Ketchens has no ownership interest in Tract A, by adverse possession
            or otherwise;
                (2) Ross E. McNeil and Leslie K. McNeil acquired no ownership interest in Tract A
            by deed; and
                (3) Ross E. McNeil and Leslie K. McNeil nevertheless are the legal owners of Tract
            A, in fee simple absolute, by adverse possession.
¶ 11        On May 26, 2010, the supreme court denied leave to appeal (McNeil v. Ketchens, 236 Ill.
       2d 556 (2010)), and on July 8, 2010, we issued our mandate.
¶ 12        On February 25, 2011, on the basis of our decision in McNeil, the trial court entered two
       orders. The first order was entitled “Judgment Order,” and it declared that (1) Ketchens was
       not the owner of Tract A; (2) the McNeils had not acquired Tract A by deed; and (3) the
       McNeils had acquired Tract A, however, by adverse possession–precisely our holdings in
       McNeil.
¶ 13        The second order was entitled “Default Judgment Order,” and therein the trial court
       entered judgment against the McNeils and in favor of unknown owners and nonrecord
       claimants on count II of the amended complaint, and the court entered a default judgment in
       the McNeils’ favor and against unknown owners and nonrecord claimants on counts I and
       III of the amended complaint. In other words, the “Default Judgment Order” applied the three
       holdings in the “Judgment Order” to the unknown owners and nonrecord claimants.
¶ 14        Ketchens appeals from both the “Judgment Order” and the “Default Judgment Order.”

¶ 15                                      II. ANALYSIS
¶ 16         A. The McNeils’ Motion To Strike Issue No. 1 From Ketchens’s Brief
¶ 17       The McNeils have filed a motion to strike issue No. 1 from Ketchens’s brief because that
       issue seeks a reconsideration of our decision in McNeil. Issue No. 1 is whether we should
       “amend” our holding in McNeil, 397 Ill. App. 3d at 395, that Ketchens lacks any ownership
       interest in Tract A. Ketchens claims he can prove, by “new evidence,” that he acquired Tract
       A by adverse possession pursuant to section 13-109 of the Code of Civil Procedure (735
       ILCS 5/13-109 (West 1998)), and he argues that an exception to the doctrine of the law of
       the case allows us to correct what he calls a “palpable error” in McNeil, namely, the holding
       therein that he has no ownership interest in Tract A.
¶ 18       We grant the McNeils’s motion to strike issue No. 1 from Ketchens’s brief. We held, in
       McNeil, 397 Ill. App. 3d at 401, that Ketchens had no ownership interest in Tract A, by
       adverse possession or otherwise, and that holding is res judicata as to Ketchens. See
       Dalan/Jupiter, Inc. v. Draper & Kramer, Inc., 372 Ill. App. 3d 362, 366-67 (2007). Because
       McNeil is no longer subject to the appellate process, the discretionary doctrine of the law of
       the case (People v. McDonald, 366 Ill. App. 3d 243, 248 (2006)) has been superseded by the
       nondiscretionary doctrine of res judicata (Newberry Library v. Board of Education of the
       City of Chicago, 390 Ill. 48, 52 (1945)). See In re Marriage of Lehr, 317 Ill. App. 3d 853,
       860 (2000); Robertson v. Winnebago County Forest Preserve District, 301 Ill. App. 3d 520,

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       528 (1998).

¶ 19                             B. Issue No. 2 in Ketchens’s Brief:
                    Conducting Further Proceedings in the Absence of a Remand
¶ 20        On the authority of Watkins v. Dunbar, 318 Ill. 174, 177 (1925), and Dalan/Jupiter, 372
       Ill. App. 3d at 367, Ketchens argues that because we did not remand the case in McNeil, the
       trial court lacked jurisdiction to enter any further orders in this case: specifically, the
       “Judgment Order” and “Default Judgment Order” that the court entered on February 25,
       2011.
¶ 21        On the contrary, the trial court had jurisdiction after the issuance of our opinion in
       McNeil, because McNeil was more than a reversal: it was an affirmance in part and a reversal
       in part. Illinois Supreme Court Rule 369(b) (eff. July 1, 1982) presupposes that after an
       affirmance, the trial court has jurisdiction over the subject matter and the parties–even absent
       a remand–because without such jurisdiction, the court would be precluded from entering any
       order at all, including an order relating to the affirmance, and Rule 369(b) contemplates
       further proceedings relating to the affirmance.
¶ 22        Having rejected the jurisdictional argument, we need not decide whether the trial court
       erred by including, in its orders, provisions relating to the partial reversal, because these
       provisions caused Ketchens no harm. Error is reversible only if it is “substantially
       prejudicial.” Wodziak v. Kash, 278 Ill. App. 3d 901, 914 (1996). “[W]here the court can see
       from the entire record that no injury has been done, the judgment or decree will not be
       disturbed.” (Internal quotation marks omitted.) Lawson v. G.D. Searle & Co., 64 Ill. 2d 543,
       559 (1976) (quoting Both v. Nelson, 31 Ill. 2d 511, 514 (1964)). All the “Judgment Order”
       and “Default Judgment Order” did was restate, in a nutshell, our holdings in McNeil. The
       orders did not change Ketchens’s legal status one iota from McNeil. Basically, Ketchens is
       asking us to reverse these orders for a purely academic reason. We decline to do so.

¶ 23           C. Issue No. 3 in Ketchens’s Brief: Failure To Join the Beneficiaries
                   of the Residuary Clause of Mary Somers Richards’s Codicil
¶ 24       We remarked in McNeil that in order for the trial court to have “decide[d] the controversy
       completely,” the McNeils would have had to join, as defendants, the beneficiaries of
       Richards’s codicil. McNeil, 397 Ill. App. 3d at 392. Ketchens appears to argue that because
       the controversy was, as we said in McNeil, not “completely decided,” our decision in McNeil
       does not bind him.
¶ 25       The resolution in McNeil was “incomplete,” however, only in the sense that other
       interested persons, i.e., the known beneficiaries of Richards’s codicil, would not be bound
       by it–because they were not named and served as parties (see Mullane v. Central Hanover
       Bank & Trust Co., 339 U.S. 306, 310 (1950); Callner v. Greenberg, 376 Ill. 212, 215 (1941);
       Anna National Bank v. Prater, 154 Ill. App. 3d 6, 14 (1987)). Ketchens, by contrast, was
       named and served as a party, and we are unaware of any authority for his suggestion that
       McNeil is nonbinding on him by reason of its being nonbinding on Richards’s beneficiaries.


                                                 -5-
¶ 26       It does not appear that Ketchens ever objected to the nonjoinder of the beneficiaries of
       Richards’s will; he certainly did not object in the previous appeal; consequently, he is in no
       position to object now. See Tomaso v. Plum Grove Bank, 130 Ill. App. 3d 18, 27 (1985)
       (“[O]bjections to nonjoinder of necessary parties after judgment are disfavored ***.”).
       Because the judgment in McNeil–as far as the beneficiaries of Richards’s codicil are
       concerned–does not affect any interest they might have in Tract A (since they were not
       joined), the judgment does not violate their right to due process and hence is not void. See
       id. Thus, it is a valid judgment and, as such, res judicata to Ketchens.

¶ 27                                D. Issue No. 4 in Ketchens’s Brief:
           The Default Judgment Against Unknown Owners and Nonrecord Claimants
¶ 28        Ketchens points out that the beneficiaries of the residuary clause of Mary Somers
       Richards’s codicil, e.g., the United Presbyterian Church of Urbana and Kemmerer Village,
       Inc., were not “unknown owners”; they were known at the time the McNeils published a
       notice to unknown owners and nonrecord claimants in the newspaper on December 24, 2007.
       Also, Ketchens points out that the McNeils submitted no affidavit that they had made
       diligent efforts to identify and locate any unknown owners, as required by section 2-206 (735
       ILCS 5/2-206 (West 2006)) and case law (Callner v. Greenberg, 376 Ill. 212, 215 (1941)).
       Thus, he concludes, the “Default Judgment Order” of February 25, 2011, binds neither the
       known beneficiaries of the residuary clause of Richards’s codicil nor any unknown owners.
¶ 29        That is true, but it is a truth that does not help Ketchens. He is a named party. As we have
       explained, the nonjoinder of Richards’s beneficiaries does not make the judgment against
       Ketchens void. See Tomaso, 130 Ill. App. 3d at 27. The “Default Judgment Order” has
       nothing to do with him, and he is challenging it for a purely academic reason, not because
       it caused him any substantial prejudice. See Wodziak, 278 Ill. App. 3d at 914.

¶ 30                                   III. CONCLUSION
¶ 31       For the foregoing reasons, we affirm the trial court’s judgment.

¶ 32       Affirmed.

¶ 33       JUSTICE TURNER, specially concurring:
¶ 34       While I concur with the majority’s affirmation of the trial court’s judgment, I write
       separately to note I express no opinion on whether the controversy in McNeil was completely
       decided. Supra ¶ 24. I also express no opinion on whether the default judgment of February
       25, 2011, binds the known beneficiaries of the residuary clause of Richards’s codicil or the
       unknown owners. Supra ¶¶ 28, 29. In all other respects, I agree with the majority’s analysis.




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