Ad-Ex, Inc. v. City of Chicago

• Decision Date: 26 May 1993
• Docket Number: AD-E,No. 1-91-3847,INC,1-91-3847
• Citation: 247 Ill.App.3d 97,617 N.E.2d 333
• Parties: , 187 Ill.Dec. 125 and Universal Outdoor, Inc., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 333

617 N.E.2d 333

247 Ill.App.3d 97, 187 Ill.Dec. 125

AD-EX, INC. and Universal Outdoor, Inc., Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 1-91-3847.

Appellate Court of Illinois First District, Third Division.

May 26, 1993.

Paul G. Simon, Thomas P. Sullivan, William A. Von Hoene, Jr., Robert R. Stauffer, Jenner & Block, Chicago, for plaintiffs-appellants.

Kelly R. Welsh, Corp. Counsel of City of Chicago, Chicago (Lawrence Rosenthal Brian Trubitt, of counsel), for defendant-appellee.

Justice GREIMAN delivered the opinion of the court:

Plaintiffs Ad-Ex and Universal Outdoor ("Ad-Ex") appeal an order entered nunc pro tunc consolidating 34 suits in the circuit court after we heard consolidated appeals on five of the cases. Since the parties, the original trial court and this court in its prior appeal at all times treated the cases as consolidated, as evidenced by orders, pleadings and notices of appeals, and no prejudice attaches to any party, we affirm the nunc pro tunc order of consolidation and additionally note that Ad-Ex is estopped to deny the consolidation of these cases.

Ad-Ex brought 34 separate actions against defendant City of Chicago ("City"), challenging the constitutionality of defendant's ordinances regarding the location of outdoor advertising signs. Those suits were settled by a Stipulation and Agreement executed by the parties and a single Agreed Order listing each of the 34 cases.

Several months thereafter, the City sought to set aside the Agreement and filed motions in that regard in certain cases, while Ad-Ex filed motions to compel the issuance of building permits. The trial court declined to set aside the settlement and ordered the City to issue the permits. Each order prepared and submitted by Ad-Ex bore the caption "No. 86 CH 4823 and other cases consolidated for settlement." Most of Ad-Ex's pleadings bore the caption "No. 86 CH 4823 and consolidated cases." Each notice of appeal, including Ad-Ex's notice, also bore a caption noting consolidation. Both parties' briefs filed in the appellate court bore this caption as well.

Plaintiff's actions were filed in 1985 and 1986, and assigned to various judges in the chancery division of the circuit court of Cook County. In August, 1986 Ad-Ex moved to consolidate the cases for the limited purpose of ruling on motions for summary judgment on one count of the 34 complaints, but the motion was never ruled upon.

In February 1989 Ad-Ex and the City appeared before the presiding judge of the chancery division with a Stipulation and Agreement and an Agreed Order, both of which were captioned with the numbers of each of the 34 cases. The presiding judge signed the original Agreed Order and initialed 33 photocopies, which were filed in each of the 34 cases. The agreement prohibited signs at certain locations but allowed them at other locations, provided that Ad-Ex comply with all other requirements.

On October 4, 1989, City filed a motion to set aside the settlement agreement in "No. 86 CH 4821 (and consolidated cases)" and on November 2, 1989, the presiding judge entered an order, bearing the same caption, denying the motion. The judge also entered a separate order directing that three particular permits be issued if Ad-Ex complied with applicable laws, and that order also referred to "consolidated cases" in its caption. The City appealed the order denying its motion to set aside the settlement agreement.

This court later found the settlement agreement to be void ab initio, (Ad-Ex, Inc. v. Chicago (1991), 207 Ill.App.3d 163, 152 Ill.Dec. 136, 565 N.E.2d 669, which we shall refer to as "Ad-Ex I") finding that the circuit court had erred in denying the City's motion to vacate the settlement agreement. We found the agreement void because it went beyond the power of the City to grant a waiver to Ad-Ex of express requirements of the zoning ordinance without notice and a public hearing.

Additionally, when the City refused to issue permits for certain signs, Ad-Ex filed a motion to compel their issuance. Ad-Ex was granted the relief it sought and the order drafted by Ad-Ex's counsel referred to "No. 86 CH 4823 and other cases consolidated for settlement."

Upon Ad-Ex's violation of square footage requirements, the City instituted administrative proceedings where Ad-Ex was found guilty at an ex parte hearing and its right to receive permits suspended. Ad-Ex filed a motion to stay the administrative proceedings which was captioned "No. 86 CH 4821 and consolidated cases." The trial court reversed the administrative hearing and entered an order with the same caption.

Ad-Ex later returned with a petition for rule to show cause when the City failed to issue the three permits involved in the November 2, 1989, order. Relief was granted by an order, captioned only "No. 86 CH 4821," although the substance of this order referred to three cases, 86 CH 4785, 86 CH 4794, and 86 CH 4773, each concerning a different location. We shall later discuss these events in greater detail.

When the City appealed each of these adverse orders, at least one of its notices of appeal was captioned "No. 86 CH 4823 and other cases consolidated for settlement."

Subsequently, Ad-Ex petitioned for rehearing on the interpretation of the settlement agreement relating to the issue of double-faced signs, which was denied in an order captioned "No. 86 CH 4821, et al.," and marked final and appealable. When Ad-Ex appealed these orders on January 30, 1990, its notice of appeal was captioned "No. 86 CH 4821 (and Consolidated Cases)."

The five appeals described above were consolidated before us and the briefs of both parties were captioned "86 CH 4821 and Consolidated Cases."

In its Petition for Rehearing (also captioned No. 86 CH 4821 and consolidated cases"), Ad-Ex argued that this court lacked jurisdiction over the appeal because the orders appealed from were entered after the circuit court had already lost jurisdiction over the case. Ad-Ex argued the circuit court had no jurisdiction because the entry of the Agreed Order and the Stipulation and Agreement constituted entry of a final order from which no timely appeal had been taken.

In a Supplemental Opinion Upon Denial of Rehearing, Justice Freeman, then a member of this court, stated that the parties, through their actions, had revested the circuit court with jurisdiction, and therefore, the trial court's November 2, 1989, order which denied 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. Ad-Ex, 207 Ill.App.3d at 178, 152 Ill.Dec. 136, 565 N.E.2d 669.

The Supplemental Opinion noted that Ad-Ex argued that the "Stipulation and Agreement in the 34 consolidated suits" (emphasis supplied) was more than merely a contractual arrangement between the parties. (Ad-Ex I, 207 Ill.App.3d at 176, 152 Ill.Dec. 136, 565 N.E.2d 669.) Again Ad-Ex expressly refers to the prior consolidation of these cases and the Ad-Ex I opinion acknowledges that statement.

Ad-Ex then returned to the circuit court seeking reinstatement of 86 CH 4768, to which the City responded with a motion before the presiding judge to formally consolidate the 34 cases. The presiding judge of the chancery division entered an order memorializing nunc pro tunc that the judge presiding over the division at the time when the Agreed Order was entered had in fact consolidated the cases on February 24, 1989.

In entering the order of consolidation nunc pro tunc, the court observed:

"The process followed by Judge Shields was the functional equivalent of consolidation. All parties have consistently viewed it as such.

No party has been disadvantaged by it and no party will be prejudice[d] by a [nunc] pro tunc order which confirms and conforms the record, I should say, to the events which took place before Judge Shields.

This action does not supply omitted judicial action, it merely corrects the written record by correcting a clerical error. Once that clerical error is corrected, the record is then made to reflect the reality of what was happening." It is that order which Ad-Ex now appeals.

Ad-Ex contends that the nunc pro tunc order was invalidly entered because there were no actual orders to correct or memorialize.

We find the nunc pro tunc order properly memorialized the fact that the 34 suits were consolidated on February 24, 1989, when then-Presiding Judge Shields signed the single Agreed Order and initialed 33 copies, which were then entered in each of the 34 cases.

The purpose of a nunc pro tunc order is to correct the record of judgment, not to alter the actual judgment of the trial court; thus it may not be used to supply omitted judicial action, to correct judicial errors, or cure a jurisdictional defect. Beck v. Stepp (1991), 144 Ill.2d 232, 238, 162 Ill.Dec. 10, 579 N.E.2d 824; Pagano v. Rand Materials Handling Equipment Co., Inc. (First Dist. March 31, 1993), No. 1-92-1803, slip op. at 3-4; Maywood Proviso State Bank v. Lisle (1992), 234 Ill.App.3d 206, 214, 174 Ill.Dec. 697, 599 N.E.2d 481.

Judgments may be modified nunc pro tunc when the correcting order is based upon evidence such as a "note, memorandum or memorial paper remaining in the files or upon the records of the court," but the evidence must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court. Beck, 144 Ill.2d at 238, 162 Ill.Dec. 10, 579 N.E.2d 824; Boughton Trucking & Materials, Inc. v. County of Will (1992), 229 Ill.App.3d 576, 578, 171 Ill.Dec. 299, 593 N.E.2d 1119.

In the present case, we find that the Stipulation and Agreement and Agreed Order of February 24, 1989, and the voluminous documents filed thereafter are the memorial documents upon which we conclude that the presiding judge predicated his consolidation of the 34 cases sua sponte. He signed a single order on that date...