Stone v. Omnicom Cable Television of Illinois, Inc., No. 84-102

CourtIllinois Appellate Court
Writing for the CourtHOPP; NASH, P.J., and REINHARD
Citation86 Ill.Dec. 226,131 Ill.App.3d 210,475 N.E.2d 223
Decision Date21 February 1985
Docket NumberNo. 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.

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. In addition, the complaint challenged the city ordinance under which the franchise was granted, and sought compensatory and punitive damages for the defendants' continuing trespass upon their land. Finally, the complaint alleged that an actual controversy existed between the parties, and sought a declaration of rights on the issues of trespass, encroachment, "taking" of property without just compensation, and the causes of action alleged in the complaint.

After hearing the arguments of counsel, the trial court determined that, with respect to the allegations of count IV of the plaintiff's fourth amended complaint, no "actual controversy" existed between the parties. Accordingly, the trial court struck the count and dismissed it with prejudice. After the court made the requisite written finding that Supreme Court Rule 304(a) mandates (87 Ill.2d R. 304(a)), the plaintiff brought this interlocutory appeal in timely fashion.

The plaintiff argues that the factual allegations of count IV of his fourth amended complaint sufficiently established that an "actual controversy" exists in this case; therefore, he concludes that the trial court abused its discretion in striking and dismissing the count with prejudice for failure to satisfy the actual controversy requirement of the declaratory judgment statute. (Ill.Rev.Stat.1983, ch. 110, par. 2-701.) The defendants respond that no actual controversy exists in this case because (1) the statutory legislation that the plaintiff challenges as unconstitutional was not enacted until after the defendants committed the acts of which the plaintiff complains; (2) that the defendants have not relied upon the statutes in question as a basis for entering upon the plaintiff's property and have not threatened to assert in the future any right under the challenged statutes; (3) that the subject statutes do not affect the rights of the parties to this proceeding; and (4) that a declaration that the statutes are unconstitutional would not settle the controversy or some part of it.

Initially, we observe that because this appeal arises from the granting of the defendants' motion to strike and dismiss the plaintiff's count for declaratory judgment, the well-pleaded facts of the plaintiff's complaint are...

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22 practice notes
  • Oak Grove Jubilee Center, Inc. v. City of Genoa, No. 2-01-0938.
    • United States
    • United States Appellate Court of Illinois
    • April 20, 2004
    ...and that his or her rights will be affected adversely by its enforcement." Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 214, 86 Ill.Dec. 226, 475 N.E.2d 223 (1985). Recalling that pleadings are to be construed liberally so as to do substantial justice betwee......
  • Archer Daniels Midland Co. v. Whitacre, No. 96-CV-2237.
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • August 5, 1999
    ...regarding future events. Greenberg, 150 Ill.Dec. 904, 563 N.E.2d at 1038 (citing Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 86 Ill.Dec. 226, 475 N.E.2d 223, 227 (1985) (in order to obtain declaratory judgment, a plaintiff must plead a demonstrable protected int......
  • OAK GROVE JUBILEE CENTER v. City of Genoa, No. 2-01-0938.
    • United States
    • United States Appellate Court of Illinois
    • May 5, 2003
    ...and that his or her rights will be affected adversely by its enforcement." Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 214, 86 Ill.Dec. 226, 475 N.E.2d 223 (1985). Recalling that pleadings are to be construed liberally so as to do substantial justice betwee......
  • Homeowners Organized to Protect the Environment, Inc. v. First Nat. Bank of Barrington, Nos. 2-87-0262
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1988
    ...not be disturbed in the appellate court absent an abuse of that discretion. Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill.App.3d 210, 86 Ill.Dec. 226, 475 N.E.2d The remaining question, then, is whether the judgment of the trial court in tolling the running of the ordi......
  • Request a trial to view additional results
22 cases
  • Oak Grove Jubilee Center, Inc. v. City of Genoa, 2-01-0938.
    • United States
    • United States Appellate Court of Illinois
    • April 20, 2004
    ...and that his or her rights will be affected adversely by its enforcement." Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 214, 86 Ill.Dec. 226, 475 N.E.2d 223 (1985). Recalling that pleadings are to be construed liberally so as to do substantial justice between the......
  • Archer Daniels Midland Co. v. Whitacre, 96-CV-2237.
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • August 5, 1999
    ...regarding future events. Greenberg, 150 Ill.Dec. 904, 563 N.E.2d at 1038 (citing Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 86 Ill.Dec. 226, 475 N.E.2d 223, 227 (1985) (in order to obtain declaratory judgment, a plaintiff must plead a demonstrable protected int......
  • OAK GROVE JUBILEE CENTER v. City of Genoa, 2-01-0938.
    • United States
    • United States Appellate Court of Illinois
    • May 5, 2003
    ...and that his or her rights will be affected adversely by its enforcement." Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 214, 86 Ill.Dec. 226, 475 N.E.2d 223 (1985). Recalling that pleadings are to be construed liberally so as to do substantial justice between the......
  • Mimica v. Area Interstate Trucking, Inc., 1-92-2508
    • United States
    • United States Appellate Court of Illinois
    • July 30, 1993
    ...to "the rights to nothing" belies the aggressiveness with which it contests this relief. Stone v. Omnicom Cable Television Inc. (1985), 131 Ill.App.3d 210, 86 Ill.Dec. 226, 475 N.E.2d 223, sheds further light on the proper application of the actual controversy requirement. There the court s......
  • Request a trial to view additional results

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