*1 AD-EX, INC., Plaintiff-Appellee Cross-Appellant, v. THE OF CITY
CHICAGO, Defendant-Appellant Cross-Appellee. (3rd 1—89—1657, 1—89—2737, Division) First District Nos. 1— 8 9—3 0 1-89-3290, cons. 1-90-0348 Opinion September opinion filed on Supplemental 1990.— 9, 1991. rehearing denial January *2 Welsh, Counsel, Kelly Corporation Chicago (Ruth R. M. Moscovitch Dobrer, Counsel, and Jean Corporation counsel), appellant. Assistant *3 Fioretti, Jardins, Ltd., Simon, Robert of W. Fioretti & Des Paul G. and Block, Jenner & all Chicago (Thomas of P. Sullivan and William A. Von Hoene, Jr., counsel), appellee. of for
JUSTICE FREEMAN the opinion delivered of the court: Defendant, City Chicago (City), brought this action to reverse certain orders circuit court and to declare a settlement agree- ment void and unenforceable. Ad-Ex,
In plaintiff, Inc., lawsuits, filed 34 for each one proposed its advertising signs, against The lawsuits chal- City. lenged the constitutionality ordinance. The ordi- City’s sign nance a 500-foot requires (Chicago setback from Munici- expressways. 194A, pal Code ch. In §8.9(5) (1988).) February 1989 City Ad-Ex entered into a settlement which purported vary agreed setback The variance was without first requirement. upon giving holding notice and as is ordinance. public required by 194A, (Chicago Municipal (1988).) Code ch. The circuit court §11.7—2 lawsuits, an The agreed dismissing prejudice. entered order with settlement in the agreement order. incorporated
Essentially, City provided permits for the requirement sign the setback issue vary would lawsuits, as had in the and for signs, they erection of 21 been defined negotiated. additional for which the had Pursuant signs, seven would issued for the erection agreement, permits be comply with permits “the issuance of such signs provided [would] *** and all Federal and City Chicago all laws of the applicable erecting from prohibited any State laws.” Ad-Ex was Additionally, sign the City’s not be or- signs compliance other which would with dinance. 16 of the permits
In March Ad-Ex April applied for failure to applications rejected locations. In were sign May, Ad-Ex requirement. Subsequently, with the 500-foot setback comply The opposed issuance compel permits. City filed a motion to all complied ap- motion that Ad-Ex had not with grounds from the laws, viz., city council. plicable obtaining prior approval council orders Ad-Ex had submitted According City, The listed permit applications. sign heights 1987 with its in the heights listed sign council orders were inconsistent The submitted also re- permit council orders Ad-Ex application. ordinance, the zoning includ- quired compliance provisions with all those which the settlement waived. ing motion, the court ordered the response June to Ad-Ex’s On 23, 1989. pending applications by to issue on 16 On City permits June 23, the motion to the court’s June emergency stay June an City filed, court, then in this City motion was denied. 14 order. The for a stay pend- and an motion appeal emergency notice of emergency no City permits. The motion denied. The issued ing appeal. had constructed City learned Ad-Ex July On 2,400 square sign’s face area exceeded Flournoy. at 5000 W. sign its feet, permit had been no issued for construction. and there (F-5 proceedings proceedings) then commenced administrative ordinance City’s with the compel compliance sign Ad-Ex to against (1990)),1 Code permits regarding (Chicago Municipal §14—40—090 appear with the settlement did its conformance the fact that hearing, July despite for the 26 administrative Ad-Ex, for the wrote to counsel for notice. Counsel given been modify it to sign would have to remove advising that Ad-Ex *4 1,200 feet, with the compliance sign square the face area to reduce responded for Ad-Ex agreement. settlement Counsel terms of the City sus- in conformance with sign was (1983). 1Prior code §86.1-8 to any permits. and declined issue
pended permit privileges Ad-Ex’s for rule to July an on emergency petition Ad-Ex filed petition, City agreed on the to July hearing show cause. At prosecuting the other while processing permit applications continue violation. Flournoy 17, 1989, On an August emergency stay Ad-Ex filed motion permits. permit processing administrative proceedings trial court denied the motion to but ordered the stay proceedings City to the is- process applications independently Ad-Ex’s permit sues on the proceedings Flournoy sign. involved in administrative permits No were issued. 25, 1989,
On September filed a second motion ad- stay ministrative proceedings, compel issuing processing ap- proved motion, On permits. September response City argued that the order August provided City that the would con- tinue to process permit during the applications pendency of the F- 5, not that any permits. it would issue argued City issue permits existing while there was an violation would effectively waive the City’s penalty provisions.
On October an evidentiary September mo- Cullerton, tion Timothy held. chief electrical for inspector the de- partment services, testified that a inspectional ordinance man- City dates the suspension sign permit a contractor’s privileges if the a sign contractor erects without a permit. According Cullerton, usual practice during F-5 is to return pending permit applications reviewing without them until F-5 is resolved. in compli- orders, ance with the court’s the City did not any return of Ad- rather, Ex’s pending applications, but continued to review them. Chester Figlerlowicz, an electrical inspector City, testified that the Flournoy sign was flag double-faced and mounted. According City, although Ad-Ex submitted several applications a sign at none of them Flournoy, were consistent with the 2,400-square-foot, double-faced, flag-mounted sign that Ad-Ex actually erected there. The court to issue, unimpeded directed F-5 proceed- ing, any pending permits sign for other approved locations.
Also at hearing, the October filed a motion set aside agreement, that Ad-Ex claiming had materially breached it that it against was void as public policy.
At motion, on the subsequent hearing argued the City that the void purported because to waive enforcement a zoning ordinance, mandatory without notice or a public hearing. Re- garding alleged breach, City presented testimony that *5 in its The states City leaning plumb. and out sign was Flournoy sign that the testimony there was hearing that at an earlier brief Walsh, Thomas agreement. the terms of the not in conformance with Universal, testified company, parent an executive with Ad-Ex’s in reli- to clients and made commitments Ad-Ex had funds expended ance on the settlement had motion, that the City stated court,
The in denying City’s settlement, in a which would way February acted since the repeatedly, it conduct, ratifying that was indicate, remarks and its its by both The into the settlement. entering counsel corporation actions of the resolution dis- no passed council city court also noted that it persuaded that was settlement.2 The court stated avowing the the ap- because agreement motion to set aside city’s deny Ad-Ex. by incurred reliance and parent expenditure directing entered an order 2, 1989, again the court On November all appli- with compliance Ad-Ex’s upon the permits to issue City on Ad- 15, 1989, the court held laws. On November cable that it City argued cause. The for rule to show Ex’s second petition had been bond because Ad-Ex’s permits the pending had not issued applications with its submitted drawings revoked because held The court signs. double-faced, single-faced rather than showed not be used sign, should bond, Flournoy on Ad-Ex’s based then ordered The court at other sites. permits the issuance of block were in they on the condition permits, three City to issue all other agreement with the terms in the compliance laws. applicable issued for to have permits a motion 28 Ad-Ex filed
On November Ad-Ex’s motion denied The court two-sign capability. structures agreement that the settlement finding double-sign permits, to issue one-sign only. structures contemplated orders, these ap- the court’s several City appeals on ap- two contentions City urges consolidated. have been
peals enforced; (2) cannot be agreement the settlement peal: (1) penalty mandatory to enforce a it not directing trial court erred by set ordinance. by chapter 6.01 of that section contending cross-appeals 506.01) must par. ch. (Ill. Rev. Stat. bridges
on roads and agreement in the settlement contemplated have been disavowing the settlement passed an city council ordinance 2On June copy was filed Chicago. of the ordinance A agreement and the between Ad-Ex 21,1990. court, prior argument, on June to oral in this in and, implied word therein must be therefore, the definitions than Thus, sign it on the statute more one terpretation. argues, based and the trial court erred find per permitted face location should be ing otherwise. we need not argument
Since we first City’s dispositive, find raised in this appeal. reach other issues first contends that the settlement cannot be enforced. It that the is void and unenforceable be- argues the agreement ordinance. Since duly cause violates a enacted advertising signs waives the 500-foot required (Chicago setback 194A, ch. notice and Municipal §8.9(5) (1988)), proper Code absent 194A, Code ch. public hearing (Chicago Municipal waiver (1988)), is void. §11.7—2 *6 are to those
Municipalities only limited are powers statute, to given them constitution a by municipality and and cannot bound by be a contract the comply prescribed does not with con ditions for the of (Wacker- Corp. exercise its v. power. City Wabash of Chicago (1953), Ill. 112 App. 903.) 350 N.E.2d A municipal must ity Further, follow its own valid person dealing ordinances. “[a] with a municipal corporation charged is with knowledge the of the limitations of the of the for power corporation any contract attempted to be entered into of by any its officials.” (May City Chicago v. of (1906), 595, 222 599-600, Ill. 78 N.E. with a Compliance charter or statutory requirements which are or do merely directory, not in volve the right contract, or to power city make the or which relate of merely questions procedure, to is not to the validity essential aof contract. municipal Municipal (1950). 63 C.J.S. Corporations §979 view,
In our the requirements of notice and a prior public cases, hearing zoning the imposed upon City by Municipal Code, are not are simply directory, mandatory but instead prerequi sites to the city’s to power vary zoning ordinances. These require are, therefore, ments conditions of precedent validity the set tlement in issue agreement here. Service,
Ad-Ex argues Mahoney that under Grease Inc. v. City of Joliet (1980), 85 Ill. 3d App. 406 N.E.2d and Chicago Title Trust Village Prospect & Co. v. Mt. Ill. 160 lack a hearing merely irregu notice and were Therefore, lar exercises of the City’s since the was not authority. City absolutely to the setback power vary requirement, without settle voidable, void, ment merely is and be should enforced. In Mahoney, Joliet contended that settlement agree- a entered, land, ment into which it had rezoning for the providing 170 law, hearing, by
was failed to a city required void because the hold as enacting zoning acknowledged to The court change. or municipal legally power contract which is prohibited beyond void cannot be ratified later mu municipality absolutely and However, the city action. court reasoned since nicipal land, to re legal without the authority rezoning, statutorily zone se. quired hearing, an act The court held absolutely per was not void merely irregularity that the failure hold the was an in the Branigar v. authority exercise and likened case city’s Riverdale Village of N.E.2d 201. court then concluded that the was within class of municipal consequently contracts which was not void absolutely that a type ratify estopped deny. could be Mahoney city’s
Since court reached decision to bar Branigar, defense on its we were estoppel naturally based analysis Branigar. factually led to consider We the cases be distin find Mahoney guishable. gave note that the no consideration also Martin Greenville N.E.2d 543 (discussed opinion). later in this Branigar, Village In of Riverdale plaintiffs applied main without funds to village pay water extension. into such an extension and entered subsequently construct would finance and plaintiffs, whereby plaintiffs would president extension and reimburse them. village the first separate regarding of trustees two ordinances passed board an agree and a further The ordinances were adopted extension. in con village plaintiffs ment entered into between Branigar, formance with the at 537. ordinances. *7 that the no in the record either of ordi
There was indication news ap ever several items published posted. nances was village in the reciting the peared only newspaper in issues of ordinance and discussing board of trustees and activities A 537.) third ordinance was (396 contracts involved therein. Ill. at enactment of which set forth the passed president and board by full, in in This was published, earlier ordinances. ordinance two 396 Ill. at in the village. circulation only newspaper general 537-38. the cost of the extensions pay
The refused to village subsequently that should argued plaintiffs The village and the sued. plaintiffs alia, inter because, on the agreement to recover permitted be by stat were ultra vires in that were not authorized they contracts void, therefore ute, were published the ordinances had been had no the extension. 396 Ill. there been appropriation at 539. court, defense, supreme village’s
The in addressing publication stated nothing that the failure of the was more than village publish an irregularity power. in the exercise of its The noted that the court actions of the board of given newspaper trustees were in publicity in village circulated and that there no that question people was knew of the action. The court further the third proposed noted debt, ordinance, acknowledged which been village’s properly published as was required by (396 statute. at The court stated legal residents of had full notice of the rati village fication prior ordinances, could entire objected have transaction at that time. then (396 546-47.) Ill. at court concluded that “the failure to publish irregularity, only, now in estopped asserting defense of 396 Ill. at cause.” [the] 547.
It is not clear from Branigar whether court considered that publication failure make in general would constitute an irregu- larity, or whether the method of there publication was what consti- tuted the irregularity. The Mahoney apparently interpreted has Branigar stand the former For Mahoney, proposition. there are no like in Branigar, reported indicate, facts which would that the public in any way put on of the City’s notice actions and thereby given the opportunity be heard. in the Similarly, case the present due process rights interested third were abro- completely gated the settlement that in the believe absence of any form of publication Branigar might have been decided differently. Chicago Title & Trust v. Village Co. Mt. Prospect, 160 Ill. followed the reasoning Mahoney. There, Village Prospect Mt. into entered a consent decree to annex certain property without the requisite prior hearing. notice and defendant-intervenor, Martin v. Greenville relying challenged validity of decrees for the vil lage’s lack of compliance with the notice and hearing requirements. court, Mahoney rejecting the defendant’s relied on argument, classified the as voidable. The court distinguished then Martin, stating that the there did not involve a collateral attack and therefore the not presented court was with and did not address the question whether was void from its inception as opposed merely Chicago Additionally, voidable. Title court noted the defendant-intervenor’s on the con attack sent decrees occurred 10 after the decrees had years been entered. *8 Martin,
Here, validity there is a direct attack on as in equal Further, eight-month delay begin does agreement. Title. 10-year delay Chicago Martin, amend the seeking plaintiffs petition In by plain a tract of land owned City’s whereby ordinance zoning R-3. The petition R-l would be rezoned tiffs in a district zoned and the entered plaintiffs Greenville Subsequently, denied. R- remain zoned into the land would agreement whereby a settlement units on apartment would able to construct but the be plaintiffs council 43-44.) day, city repudi it. 3d (54 following Ill. at App. the agreement. ated no amendment to an ordinance city
Pursuant ordinance and pub council without notice by city prior public could be made 45.) city comply lic 3d at did hearing. (54 App. stated that the The court requirements. notice existing zoning require by modifying would amend the ordinance the notice and foregoing that by court further stated ments. The city beyond had acted the ordinance the hearing requirements null and court held that the settlement authority. The 46. App. void. 54 3d at Mahoney Grease. both Martin
The court here considered specific language the “seemingly that was troubled by court stated it Martin,” it troubled existence “equally by that was but that “even Martin case,” doesn’t address Mahoney and the fact contract.” The court then stated whether is void or a voidable this indicated a ratification continued conduct and acts City’s Further, there had court stated the cor- upon agreement by been an absence of direct attack any Consequently, it. or counsel disavow by council poration to set aside the settlement the motion deny court was persuaded expenditure incurred reliance and apparent because of Ad-Ex. by beyond legally prohibited which is municipal
A contract by be ratified and cannot absolutely is void municipality power Drainage Lake Spring ex rel. Stead (People later action. municipal 1042.) N.E. & Levee District 253 Ill. but defec merely the corporate powers, is within where contract not avoid it on the made, the municipality may or irregularly tively ratified it be later may grounds irregularly, that it exercised Lines, Inc. v. Safeway (South Suburban municipality. action of 166 Ill. Transportation Authority Regional Services, Inc. v. Town York Computer 1005; 519 N.E.2d Diversified Thus, whether City’s the contract is of no moment where ratify conduct served void ab initio. *9 contract Martin on the there, the settle- distinguishes basis ment set in agreement any change was aside the immediately before While, months, a positions parties. here, period of several Feb- ruary October, to the its passed brought had before motion to set aside the agreement.
The to City points intervening several factors which to contributed eight-month its delay agreement, the such as the attacking appoint- ment of a new counsel in 1989 and corporation May by a lawsuit filed an Ad-Ex competitor, validity agreement. challenging eight
WThile months be timely, cannot considered as still it does in Chi- not to the 10 with compare years, issue, court took cago &Title Trust. We also note, and plaintiff conceded at oral argu- ment, that while the June council ordinance disavowing moment, agreement is of no it the facts of this places case more of Martin. squarely parameters within the Further, if it is determined void, the contract is of time will passage not serve to validate it. v. In Ligenza Village Lake Round Beach 133 Ill. App. of 286, the plaintiffs a entered into collective bar
gaining village. The agreement contained various provisions to relating wages, salaries and benefits for certain police officers. The was executed in 1982. In the plaintiffs filed a grievance, village’s failure protesting pay wage in which, crease, pursuant to the agreement, had become due May on 1983. The were plaintiffs notified subsequently that the did village consider agreement. itself bound App. 3d at 288.
The then plaintiffs action arbitration and to en compel force provisions During the course of the pro ceedings, village argued that any contract for which appropria tions had not been previously made null and void. As of the 1982 contract, execution of the there therefore, had been no appropriation; ultra vires (133 3d at void. court agreed that the contract was ultra vires and held that the vil defense, was not lage asserting estopped though even did the terms of the dispute May contract until when the first wage increase became due. 133 Ill. 3d at 292. Metropolitan Hous on passing note that Ad-Ex’s reliance
ing Development Corp. Village Arlington Heights (N.D. 1979), (7th F. a Supp. 1980), Cir. F.2d as case affd Metropolitan, In point” housing on is “directly misplaced. Village Arlington
development brought against an action discriminatory zoning. village, Heights allegedly racially settling zoning did not follow its normal annexation dispute, instead, negotiations housing with the entered into procedures, but village, Mount Pros- development neighboring consent decree. A intervene, village challenging authority moved to pect, Prospect into Mount moved inter- enter the consent decree. After vene, open held an meet- Arlington Heights board trustees Repre- on consent decree. ing proposed to receive comment public meeting at Prospect present sentative's from Mount were The consent subsequently approved. were heard. decree was decree, Mount Pros- hearing validity At a on the consent zoning normal village’s proceed by claimed that failure pect process. due district procedures abridged right procedural decree, as finding Prospect, consent that Mount well upheld interveners, merits of given been a full as other rezoning. their annexation and objections proposed *10 in opinion court language appellate Ad-Ex has extracted case, Metropolitan which, read the facts of when in isolation of its the settlement here argument appears support is to the effect language should be enforced. The and district encouraged approved by are when agreements (616 unless there is an abuse of discretion. will not be reversed they context, upon It is taken out of 1014-15.) language, F.2d at this that the district court Met- in relied. We also note erroneously to Martin as it related to due ropolitan gave consideration process concerns. v. Vil Wells (See process. must due
Zoning measures observe 740.) 361, 3d 505 N.E.2d lage Libertyville (1987), 153 Ill. App. of that Martin process these concerns. No due premised believe to zone is hearing property and place tice forth time setting in the con passed amendment any mandatory jurisdictional, State, Astor, Drive As Lake Shore void. North travention thereof 2d 266 City Chicago (1970), sociation v. App. of City Chicago (1963), National Bank v. Cosmopolitan 742; N.E.2d of v. Treadway City 352; (1962), Ill. 2d 190 N.E.2d 27 of Rockford 219. 488,182 24 Ill. 2d N.E.2d in pertinent part: ordinance here provides, city An Hearing. applica- and Notice of for Variation
“Application Appeals. filed with the Board of tion shall be variation *** a hear- filing application, such days more than 90 after No
175 hearing held on of shall ing application. shall be Notice such once, at than nor than be least not more 30 less 15 published before the days hearing, newspapers one or more published Chicago.” 194A, in the of Chicago Municipal Code ch. (1988). §11.7-2
In our mandatory, view the use of the term “shall” is merely The notice directory. requirements contained the ordinance here are jurisdictional prerequisites which must be followed order to vest with power (See ordinance. vary zoning Martin, 54 Ill. 42; 3d Kirk 15 Village (1973), v. Hillcrest of 452; Village N.E.2d v. County Riverwoods Lake 94 App. give The failure requisite notice to conduct a change renders zoning invalid for lack of Riverwoods, See jurisdiction. Village 94 Ill. App. (and 2d at 327 cases cited see therein); also Scanlon v. Faitz 75 Ill. 2d (issuance N.E.2d 571 of building permits pursuant to variance did not estop village from preventing construction where village failed comply requirements notice for variance hear ings).
Here, this was not simply irregular exercise of the City’s power; the had no power absent compliance with the notice and hearing requirements. The City’s attempt to do by agreement which could be done only by following the appropriate procedure is zoning valid. If the change would otherwise been illegal have void for lack notice and a in a hearing, having incorporated set “ ” tlement ‘will not breathe life legal into it.’ Suski Mayor & Commissioners Borough Beach Haven (1975), 132 158, 164, N.J. Super. 25, 29, 333 A.2d Midtown quoting Properties, Inc. v. Township Madison N.J. Super. A.2d 40, 45. Martin,
Like in parties’ agreement the setback re- vary would amend quirement the ordinance by modifying existing set- requirement. back Since the City jurisdiction vary was without *11 zoning ordinance, the provision providing variance void It follows, then, is and unenforceable. necessarily City estopped asserting is from its ultra vires defense. Fi- nally, since we have determined that the void from agreement was its inception, it could not be ratified conduct. City’s subsequent
In reaching this conclusion we are mindful the financial loss to Ad-Ex in reliance on the settlement we agreement. as have earlier, stated a a is party conducting corporation pre- business with sumed to have of the knowledge powers limitations cor- is provision notice
poration. Significantly, obligatory whims of their fathers. city the citizens designed protect loss to Ad- outweighs any It is both financial this consideration government agreement. Ex avoid desire of of the circuit court. we reverse orders Accordingly, WHITE, JJ., concur. RIZZI and DENIAL OF REHEARING ON
SUPPLEMENTAL OPINION of the court: opinion FREEMAN* delivered the JUSTICE Ad-Ex, rehearing in above- Petitioner, petition has a its to reconsider reversal this court captioned requesting cause sup- ab initio. In the settlement void which held judgment For the arguments. three reasons its Ad-Ex advances port petition, below, we deny petition. stated the trial court that neither this court nor
Ad-Ex first contends to set aside settle- City’s motion to consider jurisdiction agreement. disagree. ment than contractual was more a
Ad-Ex maintains that Stipulation Agree- a parties; “it was arrangement between against city, Ad-Ex brought by ment in the 34 consolidated suits a February at the same time as entered in with and conjunction enforcing Agree- approving order embodying, 1989 Court such, the As order dismissing prejudice. the suits ment,” and was a final judgment. otherwise, asserts, that the then and we do not find
Ad-Ex than until more seven February order did not seek vacate to set it filed its motion aside (October 1989) when months later to file either notice failed argues It that since 24 order February motion to vacate the appeal post-trial 303(a)(1)), R. neither period (107 III. 2d 30-day within the limitation to consider whether jurisdiction nor this court had the trial court be set aside. agreement should has a to consider duty this court maintains that correctly
Ad-Ex jurisdic- if it determined that appeal and dismiss jurisdiction its it not raise concedes that did petition, lacking. tion is In note, any and, has cited this court we it this appeal, issue on That notwith- was raised below. to show that in the record place * to the Illinois Su- opinion prior to his election this Freeman authored Justice preme Court.
177 urges it court to consider issue. standing, now this in agreement that and the court’s order which We believe A of a consent decree. corporated equivalent of the of the judicial rights par consent decree is a determination ties, is nor it of the court. It purport represent judgment does of the merely par the court’s recordation the private (People Sleepy ex rel. Thomas v. Hollow Village of (1981), ties. 94 Ill. 466; Kandalepas v. Economou 492, 495, (1989), 3d 418 N.E.2d App. 51, While, 191 Ill. 547 it App. 496.) generally, 3d N.E.2d has been Pierce (see held consent decrees are not final orders appealable v. MacNeal Memorial Association 42, Ill. Hospital (1977), App. 46 3d 48, 551; Machinery Des Plaines v. Mov 360 N.E.2d Scientific ers, Inc. v. 438, 154; 9 Ill. Jackson (1972), 442-43, 3d 292 App. N.E.2d Ferolo 1011, 1014, Ill. 283 a (1972), App. 247), 4 3d N.E.2d dismissal order, order entered to a settlement pursuant is a final re lief from Gar requires timely (see which of a motion to filing vacate v. cia Lozada Jackson v. 875, 1078; 58 Ill. 374 (1978), App. 3d N.E.2d Schencker & Schencker (1986), 232, 669; 145 Ill. 3d 494 N.E.2d App. Sales, Diamond, see also Prairie Material Inc. v. White Inc. (1987), 779, 157 Ill. 3d 510 App. 1236). N.E.2d a
Generally, power court lacks set modify, aside vacate (Comet v. final decree Casualty Co. days 30 after rendition. Schneider (1981), 786, 98 Ill. 3d 424 790, 911.) N.E.2d App.
even where jurisdiction has been lost after the passage days 30 following dismissal, deemed have parties may be revested v. personal the court with jurisdiction. (People matter subject Kaeding 237, 240, Ridgely v. Central 11; 98 Ill. 2d (1983), 456 N.E.2d Line Pipe Co. 46, 49, (1951), 409 Ill. 97 N.E.2d 817.) juris “Loss through diction of time passage [merely] technical objection, which be waived may voluntary participation parties.” Comet, Faust v. Michael & 792; 98 Ill. 3d Hospital Reese App. at Medical Center 72, (1979), 69, 79 287. App. Ill. 3d 398 N.E.2d
The factors essential to
revesting
jurisdiction
(1)
are
ac
participation
tive
without
parties
objection (2)
pro
further
(Stevens
v.
ceedings
inconsistent with the
order of dismissal.
City Chicago
(1970),
366, 372,
119 Ill.
2d
256 N.E.2d
App.
cit
ing Ridgely, 409
Cruz Columbus-Cuneo-Ca
817;
Ill.
97 N.E.2d
brini Medical
Center
194
3d
(1990),
Ill.
551 N.E.2d
App.
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any
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the dismissal order is
can be
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do
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App.
Liberty
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69,
Ad-Ex, relying argues 103 Ill. 2d the doctrine revest proceedings ment when to further applies party objects neither neither “both” judgment. seek to set aside the Since Ad-Ex was will aside, further, ing, sought to set since judgment nor have *13 have the agree the motion to vigorously City’s delinquent contested aside, disagree. the inapplicable. ment set doctrine Archer. Archer misapprehends we note that Ad-Ex Initially case, the in court, in the doctrine determining inapplicability 11, People Kaeding 456 N.E.2d distinguished Kaeding proceedings that in “neither to further stating party objected (Archer, in to the sought that court and both set aside judgment.” Kaeding Archer the reading 103 Ill. 2d at reveals that 539.)A Kaeding parties’ agreement the to set court’s characterization of failing in aside the refers to the nonmovant’s conduct to ob judgment exercise ject actively participat to the of the court’s and jurisdiction ing in the proceedings. jurisdiction. never the trial court’s basis of
Ad-Ex contested theory centered on the detrimental reliance. argument below motion, 4 of the October both Subsequent filing City’s parties in hearing. and a participated ap- submitted briefs the issue concerning the fact that ex- testimony peared presented and argued the pended vigorously funds in reliance on were enforceable. terms valid and court, appeal, and here on neither re party In trial conduct, to its contrary as final. Ad-Ex’s garded the dismissal order prior inconsistent order dismissal as present -with position, Products, Inc. v. Schultz binding. (See Vulcan Metals final to failed to (where party object 180 N.E.2d 933 Ill. 535 in further participated discov jurisdiction prior actively appeal, trial court with trial, a conduct served revest ery and in two-day order, de Therefore, the trial November jurisdiction).) court’s final true agreement, to set aside the nying City’s motion prop taken therefrom was appeal order dismissing the action 817 (plain Ridgely, See also erly reviewable. in generally oppo and appearing failure to object jurisdiction tiff’s rendering defect jurisdictional sition to defendant’s motion waived order). final order the true court’s latter v. Sears 85 Ill. 2d
Ad-Ex, quoting Sears motion does not revest post-trial further argues N.E.2d judgment whether the jurisdiction where the motion “was about Sears, be set aside.” In one of the moved to reopen should not of a hear- ground justifiably on the that he had known judgment been other alone and had ing proceeded which on the evidence party’s of the next A second motion was day’s judgment. basis greater same detail and party argument wherein made the court heard evidence about who had said what whom and what party hearing. should have known about On moving appeal of his motion, supreme denial court held that the motion did judgment; ignore concern merits of the did not participants case, the judgment retry thereby and start to their implying by conduct their consent set having judgment Contrarily, aside. the hearing was about whether the set judgment should be aside. argument opposition,
Ad-Ex’s specifically addressed of the validity terms of the settlement did in fact agreement, concern Sears, here, In judgment. merits unlike the moving party’s attack, as well as the addressed opponent’s response, only the proce defects, dural Moreover, judgment. substance as court stated all further Ridgely, proceedings upon the merits “[a]s of a previously dismissed action are inconsistent with a order dismissing action, it follows that any proceeding further upon of a merits cause operates nullify order dismissal.” at 50.
Finally, Ad-Ex circumstances, concedes that under certain failure to contest jurisdiction of jurisdictional can constitute waiver defects. argues That it notwithstanding, that waiver should not be in applied because, this instance exception, objected City’s “without [it] motion to set aside Agreement.”
Our review the record has revealed no instance where Ad-Ex are not objected jurisdiction. inclined, because of det merely rimental reliance it argument, exempt from waiver of the jurisdic Further, defect. tional research cases, our has revealed two though antiquated, rather which have question addressed the of whether a raise, petitioner may for the first time in a petition rehearing, question jurisdiction. In both cases the issue deemed waived. See 2 767; Tree v. DeMar Ill. 2d 119 Zinser (1954), N.E.2d Sanitary 175 (1912), 9, District 24-25. App. next that we applied
Ad-Ex contends the Martin case improperly appeal this because certain facts therein made the case inapplica- ble. first argues It Martin is because the inapplicable holding there was on predicated procedural considerations of due process.
180 Further, reasoning have relied on the that this court should argues it, case, this a home rule municipality in since like involved Mahoney did not. while Martin non-home-rule municipality. that Martin involved a
We are aware and procedural do not believe that notions of fairness we we, decision, Martin, our de- upon premised due like process, of munici- designation for their on pend, validity application, as non-home rule. palities here, Martin, there had been argues
Ad-Ex next unlike city pro- this council copies It has court presented notice. signs 15 of the Ad-Ex con- ceedings approved the council wherein gave It that these interested proceedings structed to date. maintains oppor- signs of the construction of the proposed notice As evidence that the proceedings to contest that construction. tunity 1989, notice, July to the fact that points constituted proper this construction. prevent against Patrick Media suit now council offered as city procedures, record notice, of the record on nor was it appeal, was neither proof part 367(b) Ill. 2d argument. (107 or at oral Rule Ad-Ex’s brief argued in pertinent part: 367(b))provides, briefly points Contents. shall state
“(b) petition by been overlooked or misapprehended claimed have ***.” (Emphasis added.) court Ad-Ex, court, evidence, by this does fall by overlooked
New to have been rehearing “claimed permitting points within rule original opinion. in its or overlooked court” misapprehended [this] 714, 3d App. 69 Catalano v. Pechous (See cert, L. Ed. 2d 101 S. Ct. 451 U.S. denied granted correcting is only purposes A of an rehearing appeal made, cannot party has inadvertently errors which been raised on or which could have points arguments as error assign Realty argument appeal. Corp. Mid-Continental or before oral 133, 143-44, (supple 40 Ill. N.E.2d v. Korzen mental opinion). Ad-Ex, on American National notwithstanding, relying
That
Chicago (1971),
& Trust Co. v.
Bank
these proce
notice
may judicially
that this court
argues
N.E.2d
ordinance,
rule
as either an
decision
qualify
since they
dures
See Ill. Rev. Stat.
are matters of
record.
public
council and
*15
1001, 8—1002.
pars.
ch.
8—
National,
in American
noticed facts
judicially
We note
had not been
proceedings,
trial
court
part
had not been a
so
time of
included because
events had not occurred at the
trial.
Contrarily, here
in the trial court
in time
proceedings
spanned
24, 1989,
through
1989. The
council
February
November
procedures
23, 1987,
now offered
on September
occurred
March
unlike the facts in Ameri
1989.
May
procedures,
These
Bank,
can National
having
prior
during
occurred
to and
the trial
court proceedings, could have
People
See
presented
been
below.
also
Theatre,
ex rel.
v.
Carey
Starview Drive-In
Inc.
100 Ill. App.
3d
annexation ordinance where the ordinance was enacted subsequent filing appeal and defendants moved to dismiss the appeal on grounds of mootness). assuming even that we may notice judicially these we
proceedings, conclude that did they not serve to give the requisite prior First, notice of the variance. these were for the proceedings purpose ordering that permits be issued for construction of 15 Uni versal (Ad-Ex) signs, and included orders for other outdoor advertis ing companies as well. In each order the council required signs be constructed in compliance with “applicable provisions of Chapter 194A of the Chicago Zoning Ordinance and all other applica ble provisions of the Municipal Code of the City Chicago governing the construction and maintenance of signs, outdoor signboards and structures.” No mention is made in the orders of the variance of the setback requirement. Approval of permits to construct compliance with the existing ordinances is not notice of intent to vary those ordi nances.
Secondarily, given the language report of the council pro- ceedings, we reject Ad-Ex’s argument filing Patrick Further, Media lawsuit evidenced prior notice. to Ad-Ex’s contrary ar- gument, suit, Patrick Media’s which was filed three months after the last council proceeding, did not contest the council’s orders in these proceedings, but rather the City’s to enter authority into settle- ment agreement.
Ad-Ex’s third and final contention is that opinion our has failed to provide to the adequate direction trial court. Generally, effect of a reversal is to abrogate judgment leave the case as it stood ex rel. (People Krych Birnbaum judgment. *16 Therefore, having initio, here was void ab the consent determined order, agreement, nullity on that was a premised which was of the order. they entry stand in the were parties position rule, no further as to the Having express opinion thus stated the we That determination we to have the case reinstated. parties’ rights leave, instance, and the court in the first below. reasons, the trial foregoing reversing
For the this court’s decision court’s will stand. judgment
Reversed. WHITE, JJ., concur.
RIZZI and ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE OF STATE OF EATON, Defendant-Appellant. CLIFFORD 3—89—0662,— 0663 cons. Third District Nos. 3—90 28, 1990. Opinion filed December Office, Ottawa, Carusona, Defender’s Appellate of State Peter A. appellant.