G&J Parking Co. v. City of Chicago

JUSTICE MANNING delivered the opinion of the court; The plaintiff, G&J Parking, Inc. (G&J), pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), appeals the dismissal of count I of its complaint which sought a preliminary injunction against the defendants. Defendants, the City of Chicago (city), a municipal corporation, and Judson Miner (Miner), acting corporation counsel of the City of Chicago, pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307), appeal the circuit court’s order granting a temporary restraining order (TRO) in favor of the plaintiff and the court’s subsequent refusal to vacate that order. For the following reasons we reverse the decision of the trial court in part and remand for further proceedings. The plaintiff had managed six city-owned parking lots located throughout the City of Chicago pursuant to an ordinance agreement dated January 5, 1970. The agreement was for a term of one year beginning on January .1 and ending on December 31 and had been renewed annually by the parties. On October 30, 1985, the city’s commissioner of streets and sanitation sent a notice to G&J informing it that its operator’s agreement would terminate on December 31, 1985, and that it was required to vacate the premises by that date. The city decided to suspend these termination orders, however, and G&J continued to manage and operate the six parking facilities. The city maintains that from that time, G&J managed the lots on a month-to-month basis. G&J contends that it was still managing the lots on a year-to-year basis and that the term expired on December 31,1986, pursuant to the agreement. On July 16, 1986, Judson Miner sent a letter to G&J stating that its agreement with the city for the management of the parking facilities was being terminated due to G&J’s violation of the terms of the ordinance agreement and requiring G&J to vacate the premises by August 31, 1986. After G&J received this letter, counsel for both parties met regarding the termination of the contract. At this meeting, which was held on August 27, 1986, G&J was informed by an assistant corporation counsel of the City of Chicago that August 31, 1986, was an absolute deadline and further advised G&J that the city intended to use any means available to it to remove G&J, its records and its personnel from the parking facilities. The next day, August 28, 1986, G&J filed a verified complaint in two counts against the City of Chicago and Judson Miner seeking: (1) a temporary restraining order or, in the alternative, a preliminary injunction enjoining the city from either terminating or shortening the term of the agreement and from removing G&J from the parking facilities it was managing (count I); and (2) an accounting (count II). An ex parte hearing was held on August 29, 1986, at the conclusion of which the circuit court entered a TRO enjoining the city from utilizing its police power or its police department to remove G&J from the parking facilities in question. On G&J’s representation that it did not possess sufficient funds to post bond, bond was waived. The defendants filed a motion on September 3, 1986, to dissolve the TRO. The court heard argument on the motion on September 8, 1986, denied the motion, and extended the TRO through September 15,1986. On September 10, 1986, the city filed a notice of interlocutory appeal pursuant to Supreme Court Rule 307, appealing the court’s order of August 29, 1986, granting the TRO and the order of September 8, 1986, denying the defendants’ motion to dissolve the TRO. On September 15, 1986, the court continued the plaintiff’s motion for a preliminary injunction to September 29, 1986. At that time the TRO dissolved by its terms, and the plaintiff filed an emergency motion in the appellate court to extend the TRO. On September 16, 1986, we denied that motion. On September 17, 1986, G&J brought another motion seeking a TRO. The motion was entered by the circuit court and continued for hearing to September 29,1986. In the interim, on September 19, 1986, G&J brought still another emergency motion for the entry of a TRO based on the city’s erection of two concrete poles with a chain stretched across them in front of the entrance of one of the parking garages. Based on the city’s representation that the chain would not obstruct ingress or egress from the garage, the court entered an order requiring the defendants to maintain the status quo and resetting the hearing on the preliminary injunction to September 26, 1986. On September 26, 1986, the court dismissed count I of G&J’s complaint. The defendants’ motion to dismiss the petition for a preliminary injunction was rendered moot by the court’s ruling. On October 3, 1986, the court made its order of September 26, 1986, final and appealable pursuant to Supreme Court Rule 304. On September 29, 1986, the defendants filed an amended notice of interlocutory appeal pursuant to Supreme Court Rule 307, appealing the court’s order of August 29, 1986, granting the TRO, the order of September 8, 1986, denying the defendants’ motion to dissolve the TRO and the order of September 15,1986, extending the TRO. On October 27, 1986, the city council of the City of Chicago passed an ordinance authorizing an agreement between the city and Ganser-Oguss Parking, Inc., for the management and operation of the six parking facilities in question. On October 28, 1986, G&J filed a notice of appeal regarding the court’s order of September 26, 1986, dismissing count I of its complaint. On October 30, 1986, the city locked G&J out of the six parking facilities it had been managing and impounded its business records. The issues presented on appeal are whether the TRO was improperly entered and whether count I of plaintiff’s complaint states a cause of action. We will address the plaintiff’s contentions first. Plaintiff argues that the trial court improperly dismissed count I of its complaint. The defendants maintain that we should not entertain the plaintiff’s appeal because it has been rendered moot. We agree. It is well established that when a reviewing court has notice of facts which show only moot questions or abstract propositions are involved, the court will dismiss the appeal. (People v. S.L.C. (1986), 115 Ill. 2d 33, 39, 503 N.E.2d 228.) A question is moot when no actual controversy exists or it is impossible for the court to grant effectual relief. (People v. Lynn (1984), 102 Ill. 2d 267, 272, 46 N.E.2d 1031.) Where a decision reached on the merits would render wholly ineffective relief to the prevailing party, the court, in effect, has rendered an advisory opinion. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76, 491 N.E.2d 1160.) The courts of Illinois generally do not issue advisory opinions to guide future litigation, the only exception to this rule being cases where the magnitude or immediacy of the interests involved warrant action by the court. (People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 277, 449 N.E.2d 856.) We do not believe that the instant factual matrix warrants action pursuant to the exception. Count I of plaintiff’s complaint seeks to have the defendants enjoined from terminating the lease agreement in question prior to December 31, 1986. Since this relief can no longer be granted, the plaintiff’s appeal has in fact been rendered moot. Next, we consider the defendants’ appeal. Initially we note that the defendants appear to be experiencing some difficulty in determining which orders they are actually appealing. The amended notice of interlocutory appeal filed by them indicates that they are appealing the court order of August 29, 1986, entering the TRO; the order of September 8, 1986, denying their motion to vacate the TRO and extending it to September 15; and the order of September 15, 1986, further extending the TRO. In their brief, however, they address their argument to the order of September 17, 1986, extending the TRO in question. Although there were orders entered on both September 15 and September 17, 1986, neither of these orders extended a TRO. In fact, the record shows that the TRO in question was never extended a third time. On September 15, the trial court specifically stated in its order that the TRO expiring that day was not extended by virtue of any interlocutory proceedings in the appellate court; on September 17 the court simply entered and continued for hearing the plaintiff’s second motion for a TRO. The record indicates that a second TRO was entered by the trial court on September 19, 1986, but this order was not included in the defendants’ notice of appeal. Since this court’s jurisdiction is limited to consideration of those matters which are raised in a notice of appeal (People ex rel. Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 522-23, 461 N.E.2d 505), the propriety of that order is not at issue and will not be considered. Defendants’ first argument is that they were entitled to notice of the hearing on August 29, 1986. We agree. The granting of injunctive relief without notice is an extraordinary remedy and is appropriate only under the most extreme and urgent circumstances. (Board of Education of Community Unit School District No. 101 v. Parlor (1981), 85 Ill. 2d 397, 401, 424 N.E.2d 1152.) To grant such relief without notice to the adverse party it must clearly appear from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. (Ill. Rev. Stat. 1985, ch. 110, par. 11 — 101.) The critical inquiry in all cases of this nature is whether, during the period it takes to give notice, the opponent will take such measures as to destroy the substance of the litigation or otherwise obstruct the court from dealing effectively with the issues. Board of Education of Community Unit School District No. 101 v. Parlor (1980), 81 Ill. App. 3d 667, 670, 81 N.E.2d 667, affd (1981), 85 Ill. 2d 397, 424 N.E.2d 1152. Applying these principles, we believe that the complaint did not contain sufficient factual allegations of immediate and irreparable harm to alleviate the need for notice. Although the complaint states that if the injunctive relief is not granted plaintiff will suffer irreparable injury and damages, the pleadings fail to indicate how the plaintiff would be irreparably injured by notifying the defendants of the hearing. Nothing appears in the record to indicate why at least a minimum of notice, such as a telephone call, could not have been afforded to the defendants. (See Board of Education of Community Unit School District No. 100 v. Parlor (1981), 85 Ill. 2d 397, 424 N.E.2d 1152; Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 98 N.E.2d 858.) Consequently, we find that the TRO of August 29, 1986, was improperly entered. On September 8, 1986, the court denied the defendants’ motion to vacate the TRO. Based on our finding that the TRO was improperly entered on August 29, we also hold that the trial court improperly denied the defendants’ motion to vacate that TRO. Having decided that the TRO was improperly entered without notice, we reverse without regard to the other questions raised by the defendants. See Bettendorf-Stanford Bakery Equipment Co. v. U.A.W.: Local Union No. 1906 (1977), 49 Ill. App. 3d 20, 363 N.E.2d 867. Accordingly, the order of the circuit court of Cook County denying the defendants’ motion to vacate the TRO is reversed and this cause is remanded to that court with directions that it grant the motion to vacate and hold a hearing on damages, if any, that may have been incurred by reason of the wrongful issuance of the TRO on August 29, 1986. Reversed in part and remanded, with directions. O’CONNOR, J., concurs.