Stone v. Omnicom Cable Television of Illinois, Inc., 84-102

• Citation: 86 Ill.Dec. 226,131 Ill.App.3d 210,475 N.E.2d 223
• Decision Date: 21 February 1985
• Docket Number: No. 84-102,84-102
• Parties: , 86 Ill.Dec. 226 Steven STONE, on behalf of himself and all other persons similarly situated, Plaintiffs-Appellants, v. OMNICOM CABLE TELEVISION OF ILLINOIS, INC., an Illinois corporation; and City of Highland Park, a municipal corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 223

475 N.E.2d 223 131 Ill.App.3d 210, 86 Ill.Dec. 226 Steven STONE, on behalf of himself and all other persons
similarly situated, Plaintiffs-Appellants,
v.
OMNICOM CABLE TELEVISION OF ILLINOIS, INC., an Illinois
corporation; and City of Highland Park, a
municipal corporation, Defendants-Appellees. No. 84-102. Appellate Court of Illinois,
Second District. Feb. 21, 1985.

[131 Ill.App.3d 211]

Page 225

[86 Ill.Dec. 228] Berle L. Schwartz, Highland Park, Larry D. Drury, Chicago, Andi C. Goldfine, Highland Park, for plaintiffs-appellants.

Bradtke & Zimmerman, Erwin W. Jentsch, Mount Prospect, Freeman, Atkins & Coleman, Arnold Kanter, Susan B. Padove, Chicago, for defendants-appellees.

HOPP, Justice:

The plaintiff, Steven Stone, brings this interlocutory appeal (87 Ill.2d R. 304(a)) from an order of the trial court that dismissed with prejudice count IV of his fourth amended complaint. The plaintiff's sole contention in this court is that the trial court abused its discretion when it determined that the allegations of count IV, which sought a declaratory judgment, did not present an "actual controversy" and dismissed the count with prejudice.

The facts surrounding this action, as alleged in plaintiff's complaint and as gleaned from the record, are as follows. The plaintiff is a resident of and homeowner in Highland Park, Illinois. Omnicom Cable Television of Illinois (Omnicom) is a cable television company that has a franchise agreement with the City of Highland Park, Illinois (city). On February 4, 1982, the plaintiff received a letter from Omnicom stating that Omnicom was going to enter upon the plaintiff's property, pursuant to the franchise agreement, and install a television cable upon or under the land and attach it to or run it parallel to existing public utility easements. During the week of February 21, 1982, Omnicom entered [131 Ill.App.3d 212] the plaintiff's property, dug a hole in his land, and permanently installed a television cable under his property or made the cable ready. On or about the last week in May 1982, and the first week of June 1982, the plaintiff lost all his electric power, which loss plaintiff attributes to the installation of the cable apparatus.

On December 1, 1983, the plaintiff filed a petition, on behalf of himself and all other persons similarly situated, seeking declaratory judgment and injunctive relief against the defendants. The petition essentially alleged a continuing trespass by Omnicom on the property of plaintiff and the other members of the purported class. Additionally, the petition sought a construction of three amendments to State statutes purporting to give certain community antenna television companies the right to enter upon public and private properties for the purpose of constructing a cable television system within a designated franchise area. (See Ill.Rev.Stat.1983, ch. 24, par. 11-42-11, as amended by Pub. Act 83-635, effective January 1, 1984; Ill.Rev.Stat.1983, ch. 24, par. 11-42-11.1., added by Pub. Act 83-634, effective January 1, 1984; Ill.Rev.Stat.1983, ch. 34, par. 429.24.1, as amended by Pub. Act 83-636, effective January 1, 1984; Ill.Rev.Stat.1983, ch. 34, par. 429.24.1, as amended by Pub. Act 83-634, effective January 1, 1984; (hereinafter referred to as Public Acts 83-634, 83-635 and 83-636).) Both the city and Omnicom filed motions to strike and dismiss the plaintiff's petition. In its motion to strike and dismiss, the city admitted that it granted Omnicom a franchise license in May 1981 that was conditioned upon the terms of a franchise agreement with Omnicom. However, the city alleged that the granting of the franchise license was accomplished pursuant to a city ordinance under the city's home rule power, and not pursuant to the public acts in question. Omnicom's motion also essentially alleged this same fact, stating that plaintiff failed to show that Omnicom and the city had claimed or threatened to claim any rights pursuant to these public acts. Accordingly, the motions sought to have plaintiff's petition dismissed on the grounds that no cause of action was stated and that no "actual controversy" was presented which would permit review of the current declaratory judgment matter.

On January 3, 1984, the plaintiff filed a fourth amended complaint against the defendants in the form of a class action suit. Count IV of that complaint essentially realleged plaintiff's petition for declaratory judgment and injunctive relief, and stated that the city licensed and franchised Omnicom as a "community antenna television system" pursuant to each of the public acts

Page 226

[86 Ill.Dec. 229] in question. In addition, the complaint challenged Public Acts 83-634, 83-635, and 83-636 as constituting [131 Ill.App.3d 213] "special legislation" and as being violative of the equal protection, due process, and eminent domain clauses of the Federal and State constitutions. The remaining counts of the complaint essentially sought a permanent injunction against the actions of Omnicom and removal of all cables and apparatus from the property of the plaintiff and the rest of the class....