MOUNT VERNON – Fifth District appellate judges ruled on Aug. 10 that a suit against Ed Hightower’s plan to build 40 affordable homes in Alton copied a suit the city lost in 2019.
They affirmed Madison County Associate Judge Anthony Jumper, who dismissed a complaint that local business Victoria Rose filed against Hightower’s Sunnybrook development.
The appellate court found Jumper correctly concluded that former Circuit Judge David Dugan resolved all the issues in 2019.
Justice Barry Vaughan wrote, “Plaintiff’s displeasure with the prior ruling is irrelevant.”
Alton Mayor David Goins said on Aug. 14 that he was pleased with the decision.
“Hopefully they can still move forward with this project,” he said.
Litigation raised Sunnybrook’s price tag from $8.6 million in 2018 to $11.8 million last year.
Former Alton Mayor Brant Walker supported Sunnybrook at first, and a state agency approved financing at low interest.
The plan provided that residents could buy units after 15 years.
Walker reversed himself in 2018 and claimed Sunnybrook couldn’t proceed because it didn’t submit planned development procedures.
Sunnybrook sued Alton, and Dugan ruled in 2019 that Alton city code didn’t require planned development procedures.
Alton appealed.
In 2021, Goins ran against Walker for mayor.
“Sunnybrook was definitely a touchy subject in email and at forums,” Goins said.
“I made a stand that I would clarify that it was not low income housing,” he added.
“I always emphasized that it was affordable housing that people could use as a stepping stone to buying houses,” he continued.
Goins won in March 2021, and in April the Fifth District affirmed Dugan.
In November 2021, Victoria Rose sued Alton, Sunnybrook, and Hightower’s contractors of the Keller and Morrison construction companies.
State business records identify Jonas Janek as owner of Victoria Rose and Andrea Janek as owner of four Victoria Rose companies with numbers after the name.
Victoria Rose claimed it owned real estate near the proposed development.
It claimed the city determined that planned development procedures were required.
It added that Sunnybrook submitted no plat, building plan, or specifications with its application for a building permit.
Victoria Rose claimed Sunnybrook would bring large numbers of automobiles to the property and cause great congestion in public streets.
It also claimed residential use of the property would adversely affect the taxable value of residential and commercial properties.
Defendants moved to dismiss, stating the doctrine of collateral estoppel precluded Victoria Rose’s claims.
The doctrine prevents litigation of issues that earlier actions resolved.
It applies where a controlling fact or question material to determination of consecutive cases was adjudicated in the first suit.
Victoria Rose claimed the doctrine didn’t apply because its suit dealt with Sunnybrook’s fourth application for a permit, and the prior litigation involved the second application.
Victoria Rose also claimed the doctrine didn’t apply because Sunnybrook’s cost increased.
Defendants responded by alleging four years of effort to thwart the development.
Madison County Associate Judge Thomas Chapman denied the motions to dismiss in 2022, and defendants moved for reconsideration.
Morrissey Construction Vice President Ryan Morrissey filed a declaration that materials and labor increased more than 30% since 2018.
Victoria Rose responded that no final order was entered in the previous litigation.
It claimed Dugan’s order could still be merged into a final order and appealed.
Then Chief Judge William Mudge transferred the case to Jumper last August.
He held a hearing in September; and in October, he granted reconsideration and dismissed Victoria Rose’s complaint.
Jumper found Dugan’s order was final judgment, and the issue of planned development procedures was identical to the current suit.
On appeal, Victoria Rose argued that Alton did not obtain full and fair adjudication on planned development procedures.
It claimed Alton failed to respond to the summary judgment motion, to file a timely cross motion, and to submit counter affidavits.
Vaughan wrote, “None of these arguments have merit.”
“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,” he added.
“Plaintiff provides no argument or evidence why the trial court’s determination on the planned development procedures issue in the initial litigation would not be identical to the issue in the current litigation when all four applications stemmed from the same project,” he continued.
Justices David Boie and Randy Moore concurred.
Gary Meadows of Edwardsville represented Sunnybrook and the construction companies.
Tonya Genovese of Edwardsville represented Alton.
Brian Kalb of Edwardsville represented Victoria Rose.