Ad-Ex, Inc. v. City of Chicago

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE FREEMAN*

delivered the opinion of the court:

Petitioner, Ad-Ex, has filed a petition for rehearing in the above-captioned cause requesting this court to reconsider its reversal of the judgment which held the settlement agreement void ab initio. In support of its petition, Ad-Ex advances three arguments. For the reasons stated below, we deny the petition.

Ad-Ex first contends that neither this court nor the trial court had jurisdiction to consider the City’s motion to set aside the settlement agreement. We disagree.

Ad-Ex maintains that the agreement was more than a contractual arrangement between the parties; “it was a Stipulation and Agreement in the 34 consolidated suits brought by Ad-Ex against the city, entered in conjunction with and at the same time as a February 24, 1989 Court order embodying, approving and enforcing the Agreement,” and dismissing the suits with prejudice. As such, the order was a final judgment.

Ad-Ex then asserts, and we do not find otherwise, that the City did not seek to vacate the February 24 order until more than seven months later (October 4, 1989) when it filed its motion to set aside the agreement. It argues that since the City failed to file either a notice of appeal or a post-trial motion to vacate the February 24 order within the 30-day limitation period (107 III. 2d R. 303(a)(1)), neither the trial court nor this court had jurisdiction to consider whether the agreement should be set aside.

Ad-Ex correctly maintains that this court has a duty to consider its jurisdiction and dismiss the appeal if it is determined that jurisdiction is lacking. In its petition, Ad-Ex concedes that it did not raise this issue on appeal, and, we note, it has not cited this court to any place in the record to show that it was raised below. That notwithstanding, it now urges this court to consider the issue.

We believe that the agreement and the court’s order which incorporated that agreement was the equivalent of a consent decree. A consent decree is not a judicial determination of the rights of the parties, nor does it purport to represent judgment of the court. It is merely the court’s recordation of the private agreement of the parties. (People ex rel. Thomas v. Village of Sleepy Hollow (1981), 94 Ill. App. 3d 492, 495, 418 N.E.2d 466; Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 547 N.E.2d 496.) While, generally, it has been held that consent decrees are not final appealable orders (see Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 48, 360 N.E.2d 551; City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 442-43, 292 N.E.2d 154; Jackson v. Ferolo (1972), 4 Ill. App. 3d 1011, 1014, 283 N.E.2d 247), a dismissal order entered pursuant to a settlement agreement is a final order, relief from which requires timely filing of a motion to vacate (see Garcia v. Lozada (1978), 58 Ill. App. 3d 875, 374 N.E.2d 1078; Jackson v. Schencker & Schencker (1986), 145 Ill. App. 3d 232, 494 N.E.2d 669; see also Prairie Material Sales, Inc. v. White Diamond, Inc. (1987), 157 Ill. App. 3d 779, 510 N.E.2d 1236).

Generally, a court lacks power to modify, set aside or vacate a final decree 30 days after its rendition. (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 790, 424 N.E.2d 911.) However, even where jurisdiction has been lost after the passage of the 30 days following the dismissal, the parties may be deemed to have revested the court with personal and subject matter jurisdiction. (People v. Kaeding (1983), 98 Ill. 2d 237, 240, 456 N.E.2d 11; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49, 97 N.E.2d 817.) “Loss of jurisdiction through the passage of time is [merely] a technical objection, which may be waived by voluntary participation of the parties.” Comet, 98 Ill. App. 3d at 792; Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 72, 398 N.E.2d 287.

The factors essential to revesting of jurisdiction are (1) active participation of the parties without objection (2) in further proceedings inconsistent with the prior order of dismissal. (Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 372, 256 N.E.2d 56, citing Ridgely, 409 Ill. 46, 97 N.E.2d 817; Cruz v. Columbus-Cuneo-Cabrini Medical Center (1990), 194 Ill. App. 3d 1037, 551 N.E.2d 1345.) Conduct which is inconsistent with the dismissal order is any which can be fairly construed as an indication that the parties do not view the order as final and binding. Gentile v. Hansen (1984), 131 Ill. App. 3d 250, 255, 475 N.E.2d 894. See Esin v. Liberty Mutual Insurance Co. (1981), 99 Ill. App. 3d 75, 424 N.E.2d 1307 (appearance, briefing, argument on motion for summary judgment); Faust, 79 Ill. App. 3d 69, 398 N.E.2d 287 (participation in appeals).

Ad-Ex, relying on Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290, argues that the doctrine of revestment applies when neither party objects to further proceedings and “both” seek to set aside the judgment. Since Ad-Ex was neither willing, nor sought to have the judgment set aside, and further, since it vigorously contested the City’s delinquent motion to have the agreement set aside, the doctrine is inapplicable. We disagree.

Initially we note that Ad-Ex misapprehends Archer. The Archer court, in determining the inapplicability of the doctrine in that case, distinguished People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11, stating that in Kaeding “neither party objected to further proceedings in that court and both sought to set aside the judgment.” (Archer, 103 Ill. 2d at 539.)A reading of Kaeding reveals that the Archer court’s characterization of the Kaeding parties’ agreement to set aside the judgment refers to the nonmovant’s conduct in failing to object to the exercise of the court’s jurisdiction and actively participating in the proceedings.

Ad-Ex never contested the trial court’s jurisdiction. The basis of its argument below centered on the theory of detrimental reliance. Subsequent to the filing of the City’s October 4 motion, both parties submitted briefs on the issue and participated in a hearing. Ad-Ex appeared and presented testimony concerning the fact that it had expended funds in reliance on the agreement and vigorously argued that the terms were valid and enforceable.

In the trial court, and here on appeal, neither party regarded the dismissal order as final. Ad-Ex’s conduct, contrary to its present position, was inconsistent -with the prior order of dismissal as final and binding. (See Vulcan Metals Products, Inc. v. Schultz (1989), 180 Ill. App. 3d 67, 535 N.E.2d 933 (where party failed to object to jurisdiction prior to appeal, and actively participated in further discovery and in a two-day trial, conduct served to revest trial court with jurisdiction).) Therefore, the trial court’s November 2, 1989, order, denying the City’s motion to set aside the agreement, was the true final order dismissing the action and the appeal taken therefrom was properly reviewable. See also Ridgely, 409 Ill. 46, 97 N.E.2d 817 (plaintiff’s failure to object to jurisdiction and appearing generally in opposition to defendant’s motion waived jurisdictional defect rendering court’s latter order the true final order).

Ad-Ex, quoting Sears v. Sears (1981), 85 Ill. 2d 253, 260, 422 N.E.2d 610, further argues that a post-trial motion does not revest jurisdiction where the motion “was about whether the judgment should be set aside.” In Sears, one of the parties moved to reopen a judgment on the ground that he had justifiably not known of a hearing which proceeded on the other party’s evidence alone and had been the basis of the next day’s judgment. A second motion was filed wherein the party made the same argument in greater detail and the court heard evidence about who had said what to whom and what the moving party should have known about the hearing. On appeal of the denial of his motion, the supreme court held that the motion did not concern the merits of the judgment; the participants did not ignore the judgment and start to retry the case, thereby implying by their conduct their consent to having the judgment set aside. Contrarily, the hearing was about whether the judgment should be set aside.

Ad-Ex’s argument in opposition, which specifically addressed the validity of the terms of the settlement agreement, did in fact concern the merits of the judgment. In Sears, unlike here, the moving party’s attack, as well as the opponent’s response, addressed only the procedural defects, not the substance of the judgment. Moreover, as the court stated in Ridgely, “[a]s all further proceedings upon the merits of a previously dismissed action are inconsistent with a prior order dismissing the action, it follows that any further proceeding upon the merits of a cause operates to nullify the order of dismissal.” 409 Ill. at 50.

Finally, Ad-Ex concedes that under certain circumstances, failure to contest jurisdiction can constitute waiver of jurisdictional defects. That notwithstanding, it argues that waiver should not be applied in this instance because, “without exception, [it] objected to the City’s motion to set aside the Agreement.”

Our review of the record has revealed no instance where Ad-Ex objected to jurisdiction. We are not inclined, merely because of its detrimental reliance argument, to exempt it from waiver of the jurisdictional defect. Further, our research has revealed two cases, though rather antiquated, which have addressed the question of whether a petitioner may raise, for the first time in a petition for rehearing, the question of jurisdiction. In both cases the issue was deemed waived. See Tree v. DeMar (1954), 2 Ill. 2d 547, 558, 119 N.E.2d 767; Zinser v. Sanitary District (1912), 175 Ill. App. 9, 24-25.

Ad-Ex next contends that we improperly applied the Martin case to this appeal because certain facts therein made the case inapplicable. It first argues that Martin is inapplicable because the holding there was predicated on considerations of procedural due process. Further, it argues that this court should have relied on the reasoning in Mahoney since it, like this case, involved a home rule municipality while Martin did not.

We are aware that Martin involved a non-home-rule municipality. However, we do not believe that notions of fairness and procedural due process, upon which we, like Martin, premised our decision, depend, for their validity and application, on the designation of municipalities as non-home rule.

Ad-Ex next argues that here, unlike in Martin, there had been prior notice. It has presented to this court copies of city council proceedings wherein the council approved 15 of the Ad-Ex signs constructed to date. It maintains that these proceedings gave interested parties notice of the proposed construction of the signs and an opportunity to contest that construction. As evidence that the proceedings constituted proper notice, Ad-Ex points to the fact that in July 1989, Patrick Media filed suit against the City to prevent this construction.

The record of city council procedures, offered now as proof of notice, was neither a part of the record on appeal, nor was it argued in Ad-Ex’s brief or at oral argument. Rule 367(b) (107 Ill. 2d 367(b)) provides, in pertinent part:

“(b) Contents. The petition shall state briefly the points claimed to have been overlooked or misapprehended by the court ***.” (Emphasis added.)

New evidence, overlooked by Ad-Ex, not by this court, does not fall within the rule permitting rehearing on points “claimed to have been misapprehended or overlooked by [this] court” in its original opinion. (See Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 387 N.E.2d 714, cert, denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.) A rehearing of an appeal is only granted for purposes of correcting errors which the court has inadvertently made, and the party cannot assign as error points or arguments which could have been raised on or before oral argument of the appeal. Mid-Continental Realty Corp. v. Korzen (1976), 40 Ill. App. 3d 133, 143-44, 351 N.E.2d 376 (supplemental opinion).

That notwithstanding, Ad-Ex, relying on American National Bank & Trust Co. v. City of Chicago (1971), 4 Ill. App. 3d 127, 280 N.E.2d 567, argues that this court may judicially notice these procedures since they qualify as either an ordinance, decision or rule of the city council and are matters of public record. See Ill. Rev. Stat. 1987, ch. 110, pars. 8 — 1001, 8 — 1002.

We note that the judicially noticed facts in American National, which had not been a part of the trial court proceedings, had not been so included because the events had not occurred at the time of trial. Contrarily, here the proceedings in the trial court spanned in time from February 24, 1989, through November 1989. The city council procedures now offered occurred on September 23, 1987, March 8, 1989, and May 24, 1989. These procedures, unlike the facts in American National Bank, having occurred prior to and during the trial court proceedings, could have been presented below. See also People ex rel. Carey v. Starview Drive-In Theatre, Inc. (1981), 100 Ill. App. 3d 624, 628, 427 N.E.2d 201 (reviewing court stated absent allegation of mootness, judicial notice could not be extended to permit the introduction of new factual evidence not presented to trial court); Ashland Savings & Loan Association v. Aetna Insurance Co. (1974), 18 Ill. App. 3d 70, 309 N.E.2d 293. Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 508 N.E.2d 1080 (reviewing court judicially noticed annexation ordinance where the ordinance was enacted subsequent to the filing of the appeal and defendants moved to dismiss the appeal on grounds of mootness).

However, even assuming that we may judicially notice these proceedings, we conclude that they did not serve to give the requisite prior notice of the variance. First, these proceedings were for the purpose of ordering that permits be issued for construction of 15 Universal (Ad-Ex) signs, and included orders for other outdoor advertising companies as well. In each order the council required that the signs be constructed in compliance with “applicable provisions of Chapter 194A of the Chicago Zoning Ordinance and all other applicable provisions of the Municipal Code of the City of Chicago governing the construction and maintenance of outdoor signs, signboards and structures.” No mention is made in the orders of the variance of the setback requirement. Approval of permits to construct in compliance with the existing ordinances is not notice of intent to vary those ordinances.

Secondarily, given the language in the report of the council proceedings, we reject Ad-Ex’s argument that the filing of the Patrick Media lawsuit evidenced prior notice. Further, contrary to Ad-Ex’s argument, Patrick Media’s suit, 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 authority to enter into the settlement agreement.

Ad-Ex’s third and final contention is that our opinion has failed to provide adequate direction to the trial court. Generally, the effect of a reversal is to abrogate the judgment and leave the case as it stood prior to the judgment. (People ex rel. Krych v. Birnbaum (1981), 101 Ill. App. 3d 785, 791, 428 N.E.2d 974.) Therefore, having determined that the agreement here was void ab initio, the consent order, which was premised on that agreement, was a nullity and the parties stand in the position they were in prior to entry of the order. Having thus stated the rule, we express no further opinion as to the parties’ rights to have the case reinstated. That determination we leave, in the first instance, to the parties and the court below.

For the foregoing reasons, this court’s decision reversing the trial court’s judgment will stand.

Reversed.

RIZZI and WHITE, JJ., concur.

Justice Freeman authored this opinion prior to his election to the Illinois Supreme Court.