text:
    FRANCISCO MALDONADO, Plaintiff-Appellant, v. LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (3rd Division)
    No. 79-1494
    Opinion filed September 23,1981.
    Rehearing denied October 27,1981.
    Mitchell, Hall, Jones & Black, P. C., of Chicago (Richard N. Kaplan, of Rosenfield, Kaplan & Halperin, of counsel), for appellant.
    William R. Quinlan, Corporation Counsel, of Chicago (Robert R. Retke and Wayne T. Oesterlin, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Francisco Maldonado, filed a complaint for administrative review of defendant License Appeal Commission’s decision to sustain the local liquor control commissioner’s order revoking plaintiff’s liquor license. The trial court affirmed the decision of defendant. On appeal, plaintiff contends that there was insufficient evidence to support the finding of the local liquor control commissioner that an act of prostitution occurred on the premises. (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 14(a)(2).) He also contends that sections 5 and 8 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, pars. 149,153) violate the equal protection clauses of the Federal and State constitutions. We affirm.

We first address plaintiff’s contention that there was insufficient evidence to support the finding that an act of prostitution occurred on the licensed premises located in Chicago, Illinois. A Chicago police officer testified that on July 17,1977, he was on the licensed premises at about 11 p.m. He observed three women behind the bar. On three occasions, he saw the women speaking with male patrons. After a short conversation, the women entered a room at the rear of the tavern. They emerged 10-15 minutes later. One of the women behind the bar approached the officer and asked if he wanted a drink. When he replied that he did, she served him, took his money and put it in the cash register. She then asked the officer if he wanted to go in. the back room, and he asked, “How much?”. She told him it would cost $25. When he asked, “What for?” she pointed to plaintiff and said “$5 for the owner and $20 for me.” The officer then inquired what he would get for $20, and she replied, “Head,” a term recognized by the officer as meaning oral copulation. The woman, whose name the officer later determined was Mary Jackson, was then placed under arrest along with plaintiff.

Plaintiff denied knowing anyone named Mary Jackson or that a Mary Jackson worked for him. He testified that Brandy Hall was working the bar that night. Plaintiff’s wife testified that she lived with plaintiff and their five children in an apartment at the rear of the tavern. She did not work in the tavern and did not know a Mary Jackson. She stated that on the night of July 17, 1977, she was at home asleep with the children.

Since the officer’s testimony was contradicted by the testimony of plaintiff and his wife, the essential issue became one of credibility. Questions of credibility are to be resolved by the local liquor control commissioner. (Legones v. License Appeal Com. (1968), 100 Ill. App. 2d 394, 403, 241 N.E.2d 499, 503.) The findings of the commissioner will not be disturbed as long as they are supported by substantial evidence and are not arbitrary or contrary to the manifest weight of the evidence. Margaret’s Restaurant & Lounge, Inc. v. Daley (1978), 60 Ill. App. 3d 521, 524, 377 N.E.2d 155, 157; Childers v. Illinois Liquor Control Com. (1966), 67 Ill. App. 2d 107, 112, 213 N.E.2d 595, 597.

Here, the commissioner chose to believe the police officer’s testimony, and that testimony was sufficient to show that the prostitution statute was violated by one of plaintiff’s employees. (Compare Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 254 N.E.2d 814.) A liquor license may be revoked for cause based on the conduct or actions of the licensee or the conduct or actions of others for whom he is deemed responsible or chargeable. (See Childers, 67 Ill. App. 2d 107, 113, 213 N.E.2d 595, 598.) Pursuant to section 3 of article X of the Liquor Control Act (Ill. Rev. Stat. 1975, ch. 43, par. 185), a licensee is accountable for the actions of his employees. The performance of work for another is prima facie evidence of employment and supports a presumption that the party is an employee, in the absence of evidence to the contrary. (Margaret’s Restaurant ir Lounge, Inc. (1978), 60 Ill. App. 3d 521, 524, 377 N.E.2d 155, 158.) Therefore the police officer’s testimony that the woman who offered to perform the deviate sexual act was behind the bar at plaintiff’s tavern, and that she served him a drink and put his money in the cash register while plaintiff was also behind the bar was sufficient to establish that she was employed by plaintiff. The commissioner was not required to believe plaintiff’s testimony that plaintiff’s only employee was named Brandy Hall.

Accordingly, we conclude that there was sufficient evidence to support the finding of the commissioner that plaintiff “by and through his agent, MARY JACKSON, knowingly offered or agreed to perform an act of prostitution for money with 0 * * a patron, said offer or agreement being made on the licensed premises, contrary to Chapter 38, §11 — 14(a)(2), Illinois Revised Statutes 1975.”

We next address plaintiff’s other contention. Plaintiff appealed the commissioner’s order revoking his license to defendant License Appeal Commission and then presented a motion for a trial de novo. The City objected to the motion, arguing that the statutory provision allowing trial de novo before defendant applied only to municipalities of 500,000 inhabitants or less and that Chicago is a municipality with a population greater than 500,000. The motion was denied, and defendant entered an order sustaining the revocation of plaintiff’s liquor license.

Plaintiff contends that sections 5 and 8 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, pars. 149, 153) are violative of equal protection. According to plaintiff, these sections create an unconstitutional classification based on population. Pursuant to these provisions, review by defendant of an order issued by the local liquor control commissioner in a municipality of 500,000 or more inhabitants is limited to the record. However, when review of an order issued by the local liquor control commissioner in a municipality of less than 500,000 inhabitants is sought, the matter is tried de novo. Plaintiff asserts that this distinction is arbitrary and irrational, and that the purposes of the Liquor Control Act are not served by using population as a means of determining the type of review. Plaintiff states that he is not arguing that there should be trial de novo in all municipalities, but only that all reviews should be conducted in the same manner.

Our supreme court has recognized that the difference in the size of municipalities may raise special or unique problems in connection with many activities which justify classification. (Du Bois v. Gibbins (1954), 2 Ill. 2d 392, 402, 118 N.E.2d 295, 301; Shepard v. Illinois Liquor Control Com. (1969), 43 Ill. 2d 187, 190, 251 N.E.2d 206, 208.) The court has further observed that “perfect uniformity of treatment of all persons is neither practical nor desirable.” (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 193, 106 N.E.2d 124, 132; Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 497, 336 N.E.2d 881, 883.) A classification, however, cannot be arbitrary or unreasonable (Davis, 61 Ill. 2d 494,497, 336 N.E.2d 881; 883), but must be predicated on .some substantial difference in circumstances or conditions properly related to the classification. (Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 179, 290 N.E.2d 589, 591.) Legislative classifications are imbued with a presumption of constitutionality, and they will be upheld against attack on constitutional grounds as long as any state of facts reasonably may be conceived to justify them. Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 419, 367 N.E.2d 1325, 1327.

In Rincon v. License Appeal Com. (1978), 62 Ill. App. 3d 600, 605, 378 N.E.2d 1281, 1285, section 8 of article VII of the Liquor Control Act was attacked as unconstitutional because it violated the prohibition against special or local laws (Ill. Const. 1970, art. IV, §13). The court stated that a legislative classification based on population is valid as long as there is a reasonable basis for it. The Rincon court took judicial notice of the fact that Chicago is the only municipality with a population greater than 500,000, and it stated that a classification is not invalid merely because Chicago is differentiated from other municipalities as long as the distinction has a reasonable basis. 62 Ill. App. 3d 600, 605-06, 378 N.E.2d 1281, 1285-86.

In determining that section 8 of article VII did not violate the prohibition against special or local laws, the Rincon court recognized a rational basis for distinguishing the type of review available in municipalities with populations under 500,000 as compared with the type of review available in municipalities with populations of 500,000 or more. The court stated:

“Section 8 [of article VII] sets out procedures for reviewing decisions of local liquor control commissioners. Its objectives are (1) to ensure that local commissioners act within the scope of their authority and (2) to secure for licensees as well as for license applicants the effective administration of justice. The availability of review without undue delay is essential to the achievement of these objectives.
Densely populated municipalities present problems of complexity and volume not encountered in less populated municipalities. It was not unreasonable for the legislature to conclude that despite the desirability of a hearing de novo, such review in municipalities of over 500,000 was simply impractical and that a review limited to the record was necessary to ensure the timely and effective discharge of the License Appeal Commission’s duties.” 62 Ill. App. 3d 600, 605-06, 378 N.E.2d 1281, 1286.

We believe that this analysis is similarly applicable when analyzing sections 5 and 8 of article VII in terms of equal protection. Although the provision prohibiting special and local legislation is not identical to the equal-protection clause, it supplements the equal protection clause (Grasse v. Dealers Transport Co. (1952), 412 Ill. 179, 194, 106 N.E.2d 124, 132), and the two provisions are generally judged according to the same standards. Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 422, 367 N.E.2d 1325, 1329.

The reasoning employed by the Rincon court shows that the different methods of review based on population set forth in sections 5 and 8 of article VII are rational in light of the desirability of accommodating the efficient administration of justice in liquor licensing matters in large and small municipalities. We therefore conclude that sections 5 and 8 of article VII are not violative of equal protection.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McGILLICUDDY and WHITE, JJ., concur.

       The relevant portion of section 5 of article VII refers to section 8 of article VII. It provides that appeals to the local license appeal commission by a licensee in cases involving revocation or suspension of a liquor license where the licensed premises are located within a municipality with 500,000 or more inhabitants shall be upon certified record of proceedings of the local liquor commissioner in accordance with the provisions of section 8 of article VII.


source: Caselaw Access Project

author: Mr. JUSTICE LINN

license: Public Domain

text:
    MINDY D. SULLIVAN, Plaintiff-Appellant, v. LUIS RODRIQUEZ et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2409
    Opinion filed September 24,1981.
    Joseph L. Dombrowski, Joan Sorenson, and Christopher S. Carroll, all of Chicago, for appellant.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (William F. Mahoney and Mary F. Stafford, of counsel), for appellee Riddle Cartage, Inc.
   Mr. JUSTICE LINN

delivered the opinion of the court:

The defendant-corporation, Riddle Cartage, Inc., moved to dismiss a personal injury suit brought against it by plaintiff, Mindy D. Sullivan, since it had not been made a party-defendant within the 2-year statute of limitations period. After a hearing, this motion was granted by the trial court. Plaintiff appeals, contending that the trial court erred in striking her complaint on the sole ground that it was barred by the statute of limitations since the amended complaint, filed after the expiration of the limitations period and naming Riddle Cartage, Inc., as defendant, related back to the original complaint which was timely filed.

We affirm.

On February 16, 1979, plaintiff filed a suit for personal injury and other damages sustained in a collision on March 10,1977. That complaint named Luis Rodriquez and Riddle Cartage Cut Stone (hereinafter RCCS), Rodriquez’ alleged employer, as defendants. RCCS filed an answer on March 26, 1979, alleging that its proper name was Riddle Cartage Cut Stone Division, Inc., and denying that it ever employed Luis Rodriquez. On August 23, 1979, plaintiff took the deposition of G. E. Riddle, president of RCCS, and during that deposition it was established that no employee, agent or servant of RCCS had been involved in the accident. In addition, the deposition disclosed the existence of a separate corporation with a similar name, Riddle Cartage, Inc. On September 18, 1979, approximately 6 months after the 2-year statute of limitations had expired, plaintiff moved to dismiss RCCS and amend the complaint to add Riddle Cartage, Inc., as a defendant. Although Riddle Cartage, Inc., was not represented at the hearing, this motion was allowed by the trial court and an amended complaint was filed on the same date.

Thereafter, Riddle Cartage, Inc., filed its appearance and moved to strike the amended complaint as being barred by the statute of limitations. In response, plaintiff argued that section 26 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 26) permits joinder of a party at any time within the sound discretion of the trial court. .The defendant-corporation replied that section 46(4) of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 46(4)) governed the situation in that it permitted a new party to be added as a defendant after the expiration of the statute of limitations only when all conditions of that section were met, including section (c) which required that the defendant-corporation or its agent be served with summons. Riddle Cartage, Inc., then went on to deny that it was in any way connected with RCCS. After considering the pleadings and the arguments of counsel, the trial court granted defendant’s motion to strike the amended complaint and dismissed Riddle Cartage, Inc., with prejudice.

As stated above, plaintiff contends that the trial court erred in dismissing Riddle Cartage, Inc., as a party-defendant since the amended complaint filed after the expiration of the limitations period related back to the initial complaint which was timely filed. We are not in agreement with this contention.

Section 46(4) of the Civil Practice Act permits a plaintiff to amend a complaint after the statute of limitations has run to include a party not originally named as a defendant if all of the following conditions are met:

“(a) The period of limitations had not expired when the original action was commenced;
(b) failure to join the additional party was inadvertent;
(c) service of summons was in fact had upon the person, his agent or partner, even though he was served in the wrong capacity or as agent of another;
(d) the additional defendant, within the time that the action might have been brought or asserted against him, knew that the original action was pending and that it grew out of a transaction involving him;
(e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleadings grew out of the same transaction or occurrence.” (Spears v. Ferro Corp. (1980), 89 Ill. App. 3d 1036, 1038, 412 N.E.2d 690; see also Ill. Rev. Stat. 1979, ch. 110, par. 46(4).)

The aforementioned subsection was added to the Civil Practice Act in 1955 in order to cover the situation in which a plaintiff sues a wrong defendant but serves process upon the right defendant or his agent, and the statute of limitations expires on the claim before the mistake can be corrected. Murphy v. Giardina (1979), 78 Ill. App. 3d 896, 900, 397 N.E.2d 845.

In Spears v. Ferro Corp. (1980), 89 Ill. App. 3d 1036,1038,412 N.E.2d 690, the First District Appellate Court considered the same issue which we examine in this appeal. In that case, the plaintiff was injured while using a plastic mixing machine. His second amended complaint, which was filed within the 2-year statute of limitations, named Thyssen, Inc., as the defendant-manufacturer of the aforementioned machine. Thyssen in turn informed plaintiff that it had no commercial or other relationship to the plastic mixing machine but agreed to attempt to confirm for plaintiff the identity of the manufacturer of that instrument. After the 2-year statute of limitations had expired, Thyssen, Inc., notified plaintiff that Thyssen Henschel, A. G., a West German corporation, was the manufacturer of the defective mixing machine. Plaintiff then voluntarily moved to dismiss Thyssen, Inc., and filed a third amended complaint naming Thyssen Henschel, A. G., as an additional defendant. Thyssen Henschel then appeared and moved to strike the complaint as barred by the statute of limitations. This motion was granted by the trial court. This court affirmed and, in discussing plaintiff’s claim on appeal that Thyssen, Inc., was a wholly-owned subsidiary of Thyssen Henschel, A. G., and that, because of this relationship, knowledge of the pendency of the suit could be imputed to Thyssen Henschel, it stated:

“There is no evidence in the record, however, that the two companies are in any way related.
Since the record contains no evidence of such connection, we are unable to conclude that an agent of the right defendant was served, as required by section 46(4) (c). Plaintiff’s failure to show that Thyssen Henschel, A. G., was served either directly or through an agent before the expiration of the statute of limitations is fatal.” 89 Ill. App. 3d 1036,1039.

In the present matter, plaintiff presented no evidence of a corporate connection between Riddle Cartage, Inc., and RCCS, the company which was named as a defendant in the complaints filed within the 2-year statute of limitations. A careful examination of the record reveals nothing which would indicate that Riddle Cartage, Inc., was served either directly or indirectly through an agent before the expiration of the limitations period. Moreover, the motion and memorandum of law filed by Riddle Cartage, Inc., in its request that it be dismissed as a party-defendant denied specifically any connection between it and RCCS and stated that service upon it took place after the limitations period had expired.

Plaintiff does not contend that the two corporations are related, but attempts to shift the burden of disproving such connection to Riddle Cartage, Inc. However, the language of the Spears opinion indicates that such burden is plaintiff’s and not one that must be satisfied by defendant. Since the record on appeal contains no evidence of a corporate connection, we cannot conclude that an agent of the right defendant was served during the limitations period, as required by section 46(4) (c). For this reason, it is evident that the requirements of section 46(4) have not been met.

The order of the circuit court of Cook County, dismissing Riddle •. Cartage, Inc., as a party-defendant, is therefore affirmed.

Affirmed.

ROMITI, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE JOHNSON

text:
    BLUE CROSS ASSOCIATION et al., Plaintiffs-Appellants, v. 666 NORTH LAKE SHORE DRIVE ASSOCIATES, Defendant-Appellee.
    First District (4th Division)
    No. 81-1604
    Opinion filed September 24, 1981.

      Alan L. Unikel and Robert W. Biederman, both of Rosenberg, Savner and Unikel, and Elliott C. Bankendorf, of Blue Cross Association and Blue Shield Association, both of Chicago, for appellants.
    Edwin A. Rothschild, Richard L. Fenton, and Jeanne M. Hayes, all of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs bring an interlocutory appeal from the denial of a preliminary injunction. Plaintiffs filed the petition for a preliminary injunction seeking to preserve the ultimate issues in this case by enjoining defendant from making any penetrations into plaintiffs’ leasehold for the purpose of installing plumbing, ventilation and electrical system risers.

Plaintiffs raised several issues for review which we will not reach because the sole role of an appellate court in addressing the grant or refusal of an interlocutory judgment is restricted to a determination of whether the trial judge correctly exercised his broad discretionary powers.

We reverse and remand for entry of the preliminary injunction.

On August 22,1978, plaintiffs entered into a 5-year lease with a 5-year renewal option with American Mart Corporation for approximately 53,000 square feet of the 15th floor of the building located at 666 North Lake Shore Drive, Chicago. The lease stated that the premises were to be used for a computer installation and general office space.

Plaintiffs commenced to install the Plan-Net National Telecommunications System. The Plan-Net system was located in a computer envelope — a sealed environment with its own mechanical, electrical and telephone lines. Plaintiffs expended in excess of $2,000,000 in leasehold improvements and installed approximately $6,000,000 in computer equipment. Plan-Net was fully operational in August 1980.

In April 1979, defendant purchased the building from American Mart Corporation for the purpose of converting it to a mixed use residential, commercial and office facility. Defendant commenced interior demolition work in May 1979. In August 1979, defendant advised plaintiffs that the renovation program required alterations in plaintiffs’ leasehold in the form of physical penetrations for installation of plumbing, ventilation and electrical risers to service condominium and office areas on floors above and below plaintiffs. Plaintiffs declined to relinquish any of the leased space and declined to permit penetrations through the leased space.

The parties had several meetings during the fall of 1979 to explore the nature and extent of the required penetrations. Meanwhile, plaintiffs leveled complaints that the demolition work adjacent to their premises substantially disrupted plaintiffs’ personnel and computer operations. On December 7, 1979, plaintiffs filed a complaint seeking to enjoin defendant’s demolition work and defendant’s proposed penetrations into plaintiffs’ leased space. Numerous motions were filed and orders entered during the pretrial period.

On April 21, 1981, the parties met for a pretrial conference. At the conference, the parties agreed that one of the ultimate issues in the case was whether the lease barred defendant from entering plaintiffs’ premises to make repairs or alterations other than “any needful emergency repairs or alterations.” Another issue was whether or not the entries, if permitted by the lease, could be made without substantially interfering with plaintiffs’ right to quiet enjoyment of the leased premises.

After the conference, defendant notified plaintiffs that defendant intended to make plumbing and electrical penetrations within 30 days. Plaintiffs filed the instant motion for a preliminary injunction on April 29, 1981, claiming that the proposed penetrations violated paragraph 7 of the lease. Plaintiffs sought the order to have defendant cease work pending a trial on the merits.

The evidentiary hearing on the motion commenced on May 15,1981. On June 22, 1981, the trial court denied plaintiffs’ motion for a preliminary injunction. The court stated that plaintiffs had established the requisite irreparable injury, that plaintiffs’ remedy at law was inadequate, and that the preliminary injunction could be so drawn as to maintain the status quo pending a trial on the merits. The court denied the injunction because plaintiffs had not established a clear legal right to prevent the penetrations because paragraph 7 of the lease was ambiguous. The ambiguity undermined plaintiffs’ likelihood of success on the merits, and the harm to defendant from the grant of an injunction would exceed the benefit to plaintiffs. Plaintiffs appeal.

In S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 828, 377 N.E.2d 73, 76, we stated that for a preliminary injunction to issue, a plaintiff must establish that: (1) he possesses a certain and clearly ascertained right which needs protection (Bromberg v. Whitler (1977), 57 Ill. App. 3d 152, 372 N.E.2d 837); (2) plaintiff will suffer irreparable injury without the protection of the injunction (Knuppel v. Adams (1973), 12 Ill. App. 3d 708, 298 N.E.2d 767); (3) there is no adequate remedy at law for the injury (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252); and (4) plaintiff is likely to be successful on the merits (McErlean v. Harvey Area Community Organization (1972), 9 Ill. App. 3d 527, 292 N.E.2d 479).

There are exceptions to the necessity of establishing probable success on the merits, however. (See Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 368 N.E.2d 1010; Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 329 N.E.2d 414.) If the subject of the injunction is property which may be destroyed, or if, as here, the plaintiff seeks only to maintain the status quo until the ultimate issue is decided, the injunction is properly allowed or maintained even where there may be serious doubt as to the ultimate success of the complaint. Alexander, at 698; Wessel, at 690.

The trial court stated that plaintiffs had established the requisite elements for issuance of a preliminary injunction. Yet, in denying the injunction, the court looked to an issue in dispute. We have held that it is not the purpose of a preliminary injunction to determine controverted rights or to decide the merits of a case. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 682, 379 N.E.2d 1228, 1236.) The trial court further stated that a preliminary injunction could be drawn so as to preserve the status quo pending a trial on the merits. Nevertheless, the trial court balanced the equities and found that the harm to the defendant from granting the injunction would exceed the benefit to the plaintiffs. We have held that this doctrine is inapplicable where defendant’s actions were done with full knowledge of the plaintiff’s rights and with an understanding of the consequences which might ensue. ABC Trans National Transport, at 682; Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 165-66, 362 N.E.2d 382, 393.

Though this litigation has been protracted, defendant has been on notice since filing of the complaint in December 1979 that plaintiffs sought to protect the integrity of their leasehold interest. Plaintiffs have filed numerous motions seeking to halt interference with their computer operation. When the parties met at the pretrial conference, defendant did not indicate to the court that it intended to proceed despite the pending trial. Defendant served notice on plaintiffs after the conference, making it necessary that plaintiffs seek preliminary relief to maintain the status quo. Further, defendant proceeded to complete construction during the pendency of this appeal. And, prior to oral argument, defendant moved to dismiss this appeal on grounds of mootness because the penetrations into plaintiffs’ leasehold were completed. The petition sought to enjoin any penetrations. And, future penetrations may be contemplated. We have held that after a suit for injunction has been filed and the court has acquired jurisdiction, if the defendant does any act which the complaint seeks to enjoin, he acts at his peril and subject to the power of the court to compel a restoration of the status quo ante, or to grant such other relief as may be proper under the circumstances. Gribben v. Interstate Motor Freight System Co. (1958), 18 Ill. App. 2d 96, 102-03, 151 N.E.2d 443, 447.

Finally, we turn to defendant’s assertion that its acts did not breach the covenant of quiet enjoyment because plaintiffs were not actually or constructively evicted. We do not read the covenant of quiet enjoyment so narrowly. Defendant relies on Brown v. Lober (1979), 75 Ill. 2d 547, 553, 389 N.E.2d 1188, 1191, where the court stated that the covenant is breached only when there is an actual or constructive eviction of the covenantee by the paramount holder of title. Moreover, the court stated that there must be a union of acts of disturbance and lawful title to constitute a breach. This case, however, is distinguishable from the case at bar because it involved an action by a grantee who subsequently learned that he had not purchased the subsurface mineral rights in his property. The case at bar presents acts by a lessor which interfere with the lessees’ use and enjoyment of the premises.

Breach of the covenant of quiet enjoyment in a leasehold may be found without finding that the lessor intended to deprive the lessee of possession. (See Great Atlantic & Pacific Tea Co. v. La Salle National Bank (1979), 77 Ill. App. 3d 478, 395 N.E.2d 1193.) A covenant of quiet enjoyment is implied in all lease agreements. (64 East Walton, Inc. v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 635, 642,387 N.E.2d 751, 755, citing Berrington v. Casey (1875), 78 Ill. 317; Wade v. Halligan (1855), 16 Ill. 507; Russell v. Clark (1912), 173 Ill. App. 461.) In Great Atlantic & Pacific Tea Co. v. La Salle National Bank, at 485, we defined a private nuisance in a leasehold situation as “an individual wrong arising from an unreasonable, unwarranted or unlawful use of one’s property producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.”

Paragraph 42A of the lease expressly grants plaintiffs the right of quiet and peaceful possession and enjoyment. The meaning of this clause is not controverted. Plaintiffs had a right to seek injunctive relief for its breach when the conduct of defendant substantially interfered with plaintiffs’ use and enjoyment of the premises.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand for entry of the preliminary injunction.

Reversed and remanded.

ROMITI, P. J., and LINN, J., concur.

       Paragraph 7: “Access to Lessor: Lessee will allow lessor free access to the premises hereby leased for the purpose of exhibiting the same during the last 90 days of the term or to make any needful emergency repairs or alterations of said premises which said lessor may see fit to make, and there shall be no abatement of rent during such period of repairs or alterations.”
      Paragraph 42A: “Lessor covenants * ° ° that, upon paying the rent and keeping the agreements of this lease on its part to be kept and performed, BCA and all persons and entities claiming through or under it shall at all times have peaceful and quiet possession of the premises and full enjoyment of all the rights herein granted for the term of the lease.”


author: Mr. PRESIDING JUSTICE RIZZI

text:
      In re ESTATE OF LORETTA K. RETTIG, Deceased.—(THE NORTHERN TRUST COMPANY, Ex’r under the Last Will and Testament of Loretta K. Rettig, Petitioner-Appellee, v. PATRICIA G. DEMPSEY et al., Respondents-Appellants—(JUNE A. RETTIG, Respondent-Appellee).)
    First District (3rd Division)
    No. 79-2351
    Opinion filed September 23,1981.
    Edward V. Donovan, Jr. and James L. McManus, both of Henehan, Donovan & Isaacson, Ltd., of Chicago, for appellants.
    Joseph B. Crowley and Angelika Kuehn, both of Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

The Northern Trust Company, executor of the estate of Loretta K. Rettig, deceased, filed a petition for construction of Rettig’s will. In the petition, the executor asked the court to determine the recipient of certain jewelry under the will. The three daughters of the testatrix, June Adele Rettig, Colleen A. Campbell and Patricia G. Dempsey, were named as respondents. Respondents Campbell and Dempsey filed a counterclaim against the executor and June Rettig. The executor moved for judgment on the pleadings pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(5)). The trial court entered judgment on the pleadings, ordering that all jewelry of the testatrix subject to probate be transferred to respondent June Rettig. The court also dismissed the counterclaim of Campbell and Dempsey with prejudice. We affirm in part, reverse in part and remand.

The first sentence of article III of the testatrix’s will provides:

“I give and bequeath all my personal and household furnishings, automobiles and collections, and any insurance policies thereto to my daughter, JUNE ADELE RETTIG, provided she survives my death by a period of ninety (90) days.”

Article III further bequeathed one-half of the residuary estate to June Rettig. The remainder of the residuary estate, or all of the residuary estate in the event that June Rettig did not survive the testatrix for a period of 90 days, was bequeathed in equal shares to Campbell and Dempsey.

In the petition for construction of the will, the executor alleged that the testatrix informed the attorney who prepared her will that she intended to give all of her personal effects, including jewelry and household furnishings, automobiles and collections, and any insurance policies thereon to June Rettig provided that she survived the testatrix by 90 days. The executor further alleged that the testatrix’ attorney instructed his secretary to have the will provide that all personal effects and household furnishings, automobiles, and collections and insurance thereon were to be given to June Rettig, but that because of a typographical error, mistake or inadvertence, his secretary omitted the word “effects” following the word “personal” in article III. In the alternative, the executor stated that the adjectives “personal” and “household” both describe furnishings, and therefore, the absence of the word “effects” is of no legal significance. Thus, the executor requested that the court determine whether the testatrix’ jewelry should be transferred to June Rettig under the first sentence of article III or whether it should be distributed as part of the residuary estate. The executor asked the court to find that the testatrix intended to give all of her personal effects, including her jewelry, to June Rettig.

The three respondents filed answers to the petition. Respondents Campbell and Dempsey also filed a counterclaim in which they alleged that the estate of the testatrix contained more articles of jewelry than had been listed in the executor’s petition. They asked the court to find that all of the testatrix’ jewelry should be distributed as part of her residuary estate. Respondent June Rettig filed a motion to dismiss the counterclaim, stating that a counterclaim is not an appropriate pleading in a supplemental proceeding to construe a will. She also stated that some of the jewelry listed in the counterclaim was the subject of a citation,to discover assets which was pending at the time.

The trial court ruled that the first sentence of article III is unambiguous and interpreted it to mean that all jewlery of the testatrix which is subject to probate should pass to June Rettig and that respondents Campbell and Dempsey should have no interest in that jewelry. The trial court also dismissed the counterclaim filed by respondents Campbell and Dempsey with prejudice.

Campbell and Dempsey contend that in view of the fact that the trial court found the will to be unambiguous, the court lacked jurisdiction to construe the will. They also argue that the court improperly construed the will contrary to the plain meaning of the language used. The executor responds that the court properly construed the will to be unambiguous and properly found that the bequest of personal furnishings to June Rettig includes the testatrix’ jewelry.

The primary goal in construing a will is to determine the intention of the testatrix. (Weber v. Hawkins (1964), 30 Ill. 2d 278, 283, 196 N.E.2d 695, 698; Whitmore v. Starks (1959), 17 Ill. 2d 202, 206, 161 N.E.2d 254, 257; In re Estate of Hayden (1974), 23 Ill. App. 3d 242, 244, 318 N.E.2d 668, 670.) Generally, the court is to ascertain the intention of the testatrix from the will itself. (Weber, 30 Ill. 2d 278, 283, 196 N.E.2d 695, 698; Breckheimer v. Kraft (1971), 133 Ill. App. 2d 410, 413, 273 N.E.2d 468, 470.) However, if some ambiguity, uncertainty or doubt exists, extrinsic evidence may be introduced to aid the court in determining the intent of the testatrix at the time of the execution of the will. The court may consider the circumstances surrounding the testatrix when the will was made so that the court may place itself in the position of the testatrix. Weber, 30 Ill. 2d 278, 284, 196 N.E.2d 695, 698; Davidson v. Davidson (1954), 2 Ill. 2d 197, 200, 117 N.E.2d 769, 771-72; Wielert v. Larson (1980), 84 Ill. App. 3d 151, 156, 404 N.E.2d 1111, 1115.

In the present case, the will is ambiguous. Based on the language of the will, there is doubt as to whether the testatrix intended to include jewelry in her bequest to June or whether she intended to have her jewelry distributed under the residuary clause. Therefore, the court had jurisdiction to construe the will. A court has jurisdiction to hear and determine a petition to construe a will where there is doubt or uncertainty as to the rights and interests of the parties arising under the will. (Jusko v. Grigas (1962), 26 Ill. 2d 92, 96, 186 N.E.2d 34, 37; Peck v. Drennan (1951), 411 Ill. 31, 36, 103 N.E.2d 63, 66.) Here, we believe that the proper procedure would have been for the trial court to hear extrinsic evidence regarding the circumstances surrounding the testatrix at the time she executed the will. After hearing the evidence, the trial court could have properly determined to whom the testatrix intended to give her jewelry.

A motion for judgment on the pleadings may be allowed only when the trial court is able to determine the rights of the parties from the pleadings alone. (Johnson v. City of Evanston (1976), 39 Ill. App. 3d 419, 423, 350 N.E.2d 70,74; Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 887, 305 N.E.2d 389,393.) Since we conclude that the trial court could not have determined the rights of the parties as to the jewelry from the pleadings alone, entry of judgment on the pleadings was improper.

In the conclusion of the brief filed by Campbell and Dempsey, they request that the order of the trial court dismissing their counterclaim be reversed. However, Campbell and Dempsey did not make any argument in their brief as to why this order was improper, and therefore, the issue is waived. Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).

Accordingly, the order of the trial court entering judgment on the pleadings and directing that all jewelry of the testatrix subject to probate pass to June Rettig is reversed, and the case is remanded for a hearing in accordance with what is stated herein. The order of the trial court dismissing the counterclaim of Campbell and Dempsey is affirmed.

Affirmed in part, reversed in part and remanded.

McNAMARA and WHITE, JJ., concur.


author: Mr. JUSTICE WILSON

text:
      In re MARRIAGE OF DONNA D. BRAMSON, Respondent-Appellee, and DAVID J. BRAMSON, Petitioner-Appellant.
    First District (5th Division)
    No. 80-0344
    Opinion filed September 25,1981.
    Muller Davis and Roderick E. MacRae, both of Jones, Baer & Davis, of Chicago, for appellant.
    Grubman, Pritikin, Feldman and Sohn, of Chicago (James B. Pritikin, of counsel), for appellee.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

This appeal follows a supplementary judgment which disposed of the marital assets, provided for limited maintenance and child support, and ordered each party to pay their own court costs and attorneys’ fees. Respondent appeals from that portion of the order providing for limited maintenance and requiring her to pay her own attorneys’ fees and court costs.

Petitioner and respondent dissolved their 20-year union on December 27, 1978. A supplemental judgment on January 8, 1980, awarded respondent $750 in unallocated monthly maintenance and child support until the youngest of the two children reach majority; thereafter, respondent would receive 5 years of maintenance at $500 per month. Respondent was made responsible for her own attorneys’ fees in the sum of $5,205.

At the hearing, the evidence disclosed that petitioner is a CPA and had a projected 1979 income of $67,000 to $73,000. He owns a condominium and belongs to an exclusive country club where his employer pays 100% of the membership expenses. His 1978 income was $106,000 but a substantial sum of it was used to purchase partnership capital as required under the merger agreement with his present company. His actual gross income for 1978 was in the mid 60’s. He estimated his monthly expenses at $5,570, which includes the college expenses for his daughter.

Respondent has worked as a salesclerk for the past two years and in 1978 she earned $7,825. She was not employed during the first 18 years of their marriage. She estimated her monthly expenses at $3,210 in order to maintain the lifestyle the parties enjoyed during their marriage. She has also inherited $5,000 from her deceased aunt and is the sole surviving heir of her deceased father, whose will had not been probated at the time of this hearing.

Opinion

Respondent initially argues that she should receive permanent alimony. In support of her position, she cites their 20-year marriage, her unemployment for 18 of those 20 years, and that her earnings as a salesclerk are approximately $7,800 annually, with estimated monthly expenses at $3,200.00.

The alimony award rests within the sound discretion of the trial court and will not be disturbed on review unless it amounts to an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 426 N.E.2d 1066; Schuppe v. Schuppe (1979), 69 Ill. App. 3d 200, 387 N.E.2d 346.) Upon deciding that maintenance is warranted, the trial court will take into account what needs are reasonable, considering such factors as the standard of living during the marriage, the duration of the marriage, age, education, property and other resources available to each of the parties. (Ill. Rev. Stat. 1977, ch. 40, par. 504(b); In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 423 N.E.2d 1201.) Employment or potential employment of the spouse seeking alimony is only one factor to consider in determining whether alimony should be awarded, and its duration. (Bellow v. Bellow (1981), 94 Ill. App. 3d 361,419 N.E.2d 924.) The court is also permitted to consider factors not listed in the Act. See In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.

Petitioner, in this instance, has made significant advances in his career and financial status in the past 20 years. He has an income of approximately $67,000 annually, is a partner in an accounting firm, and owns a condominium. During their 20-year union, respondent and petitioner enjoyed a very comfortable lifestyle. We note at the outset that the alimony award is “an incentive to assist one in reclaiming employment skills outside the home which have atrophied during the marital relationship.” (Ill. Ann. Stat., ch. 40, par. 504(b) (2), Historical and Practice Notes, at 529 (Smith-Hurd 1980).) Further, its objective is also to enable a formerly dependent spouse to acquire financial independence for the future.

With this objective in mind and under the circumstances of this case, we believe that the trial court abused its discretion in limiting maintenance to a maximum period of five years after the youngest child attains majority (for a total period of approximately 7 or 8 years). It appears that this provision of the trial court’s order was based on speculation as to the future condition of the parties, specifically, that respondent’s employment income would be sufficient to support her needs. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868.) Should respondent’s income increase as a result of employment or other sources of support, or should there be a substantial change in the circumstances of the parties, either of them can petition for a modification of the maintenance award. (See Ill. Rev. Stat. 1977, ch. 40, par. 510; Schuppe v. Schuppe.) However, at this time, a limit on the duration of the alimony period is inappropriate.

Respondent next asserts that the monthly alimony amount is insufficient. In deciding on the amount of the maintenance award, the trial court applied the factors set out in the Act to the evidence adduced at trial. Respondent is necessarily encouraged to seek full employment and to “obviate marriage-conditioned needs”. (Ill. Ann. Stat., ch. 40, par. 504(b)(2), Historical and Practice Notes, at 529 (Smith-Hurd 1980).) We cannot conclude that the amount awarded is an abuse of discretion or is against the manifest weight of the evidence. As such we will not substitute our judgment for that of the trial court. Asch v. Asch.

Lastly, respondent contends that petitioner should be responsible for her attorneys’ fees. The award of attorney’s fees is based on a showing of the inability of one spouse to pay and the ability of the other spouse to do so. (Bellow v. Bellow.) The allowance of attorneys’ fees is within the sound discretion of the trial court and will not be reversed unless the court has clearly abused its discretion. (Bellow v. Bellow.) The trial court made no ruling on the fairness of the amount of fees involved. For this reason, we are reversing this portion of the court’s order with directions that the trial court hear the matter of fees and that it conclude its findings as to each party’s ability to pay fees, as we have determined that the court erred in awarding limited maintenance.

For the foregoing reasons, the order of the trial court is reversed as to the duration of the alimony award, reversed and remanded with directions as to the attorneys’ fees and affirmed as to the amount of the alimony award.

Reversed in part; reversed and remanded in part; and affirmed in part.

LORENZ and MEJDA, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEATRICE L. ROBINSON, Defendant-Appellant.
    First District (1st Division)
    No. 80-1328
    Opinion filed September 28,1981.
    Beatrice L. Robinson, of Chicago, for appellant, pro se.

    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Penny Nathan Kahan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Beatrice L. Robinson (defendant) was adjudged guilty of contempt of court. A fine of $100 was assessed against defendant. Defendant, pro se, appeals.

Defendant originally filed suit against a corporation and two individuals. Defendant claimed damages for an alleged assault and battery upon her person. On January 9, 1980, upon defendant’s verified petition, the trial judge allowed defendant a change of venue. (Ill. Rev. Stat. 1979, ch. 110, par. 501(2).) The cause was reassigned to another judge.

On May 2, 1980, defendant filed in open court another verified petition for change of venue from the newly assigned judge. This was patently contrary to the pertinent statute. Ill. Rev. Stat. 1979, ch. 110, par. 508.

Proper consideration of this appeal requires us to restate verbatim portions of the charges made against the trial judge in the second petition for change of venue. The verified petition charged that the trial judge, stating his name, without legal justification entered into “a criminal conspiracy against the person, property and Civil Rights of the Plaintiff’s [defendant’s] by reason of outside influences being the Chicago Police Department, and other criminal inhabitants of Cook County, Illinois, to obstruct and deny justice to the Plaintiff herein in this case” because “of the Plaintiff’s race, color, religion, religious devotion, malicious, heterosexual nature, sex organ structure and practice and not in prostitution nor sodomy, * *

The verified petition also alleged that the trial judge, stating his name, on April 26, 1980, “willfully, and compromisingly engaged in criminal sex with a known criminal, lesbian-prostitute for Chicago Police Officer WALSH, a/k/a MARVIN MANDELL, a known Pimp, who falsely imprisoned the plaintiff herein on a past occasion.”

The verified petition alleged that the trial judge, stating his name, “wilfully, and compromisingly engaged in criminal lesbian-sex on Saturday, April 26,1980” with a “Lesbian-Prostitute who wilfully, maliciously, conspiratorily and criminally destroyed the Plaintiff’s [defendant’s] legal documents and records 0 e

The verified petition further alleged that the “criminal misconduct with that Lesbian-prostitute in question” by the trial judge, stating his name, “seriously violated Ch. 110A, pars. 4 and 23, Supreme Court Rule 61, Illinois Revised Statutes, as amended; and further in serious violation of Ch. 38, Section 11 — 18, Smith-Hurd Illinois Annotated, as amended, being the Criminal Code of Illinois * *

On May 2, 1980, upon presentation of defendant’s petition, the trial judge entered an order which recited that he had been “fully advised in the premises.” The trial court accordingly found that the petition for change of venue filed in open court by defendant “contains scurrilous, libelous and defamatory statements directed at this court.” The trial court found these statements were “without any foundation” and “are insulting and repugnant to the dignity of the court.” The court found these statements “obstruct justice and normal and necessary administration of justice by this court.” It was accordingly ordered that defendant be held in direct contempt and fined $100 to be paid within 30 days. The motion for change of venue was denied.

The power of a court to punish for contempt is of ancient origin. It might well be stated that this power exists not so much to maintain the dignity of a court or of any individual judge but to make certain that the power of administration of justice vested in the court should be freely exercised and not impeded. It has been authoritatively held that contempt proceedings are not quite civil and not quite criminal. The accepted description of the power to punish for contempt is that it is sui generis and therefore has both civil and criminal characteristics. Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 208-09, 357 N.E.2d 477, quoting from People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409-10, 173 N.E.2d 417.

Reviewing courts have also had occasion to define the phrase “contempt of court.” The generally accepted definition has been stated in People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 59-60, 364 N.E.2d 50, cert, denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750, quoting from In re Estate of Melody (1969), 42 Ill. 2d 451, 452, 248 N.E.2d 104:

‘Contempt of court has been generally defined as conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.’ ”

The definition of “contempt” has been expanded by delimiting the meaning of the phrases “direct contempt” and “indirect contempt.” In People v. McNeil (1976), 42 Ill. App. 3d 1036, 1038, 356 N.E.2d 1073, this court stated:

“Direct contempt takes place in the presence of the court and all elements of the offense are matters within the court’s personal observation and knowledge [citation], while an indirect contempt is one which in whole or an essential part occurred out of the presence of the court and is dependent for its proof upon extrinsic evidence of some kind.”

Another distinction has been traditionally made between “civil” and “criminal” contempt. This court illuminated that distinction in 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 233, 371 N.E.2d 294:

“Proceedings in the nature of ‘civil’ contempts are defined as those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. [Citation.] Proceedings in the nature of criminal contempt are defined as those directed to the preservation of the dignity and authority of the court [citation], or a judge acting judicially [citation].”

Finally, it should be noted, as stated in 47th b State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 233, that the power to punish for contempt of court “is inherent in all courts as essential to proper and effective functioning of the courts and to the administration of justice” and, “is an essential auxiliary to the administration of the law.”

In the case before us the second petition for change of venue, submitted and filed in open court by defendant, is classified without difficulty. The very filing of the petition constituted contempt of the court. Filing of this document in open court is in itself sufficient to support a finding of direct contempt in the presence of the court so as to authorize summary punishment of the offender. (See People v. Graves (1979), 74 Ill. 2d 279, 284, 384 N.E.2d 1311.) Also, the contempt is direct rather than indirect. (People v. McNeil (1976), 42 Ill. App. 3d 1036,1038.) Therefore, extrinsic evidence is unnecessary. The contempt was criminal in its nature, so that these proceedings are directed to the preservation of the authority of the court. See 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 233.

It follows that the order appealed from was properly entered. Perhaps the closest case to the situation here at bar is People v. Baxter (1972), 50 Ill. 2d 286, 278 N.E.2d 777. There, the contemnor filed a petition for substitution of judges in a criminal case. The charges and language used in that document are comparable to the case before us. The supreme court affirmed a summary finding of contempt and a punishment of incarceration for one year. In the instant case, the able trial judge was apparently of a forgiving nature. The punishment of a fine of $100 is inconsequential.

The order appealed from is accordingly affirmed.

Order affirmed.

McGLOON and O’CONNOR, JJ„ concur.


author: Mr. JUSTICE McGLOON

text:
    JACK F. RILEY, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO COUGARS HOCKEY CLUB, INC., Defendant-Appellant.—(WORLD HOCKEY ASSOCIATION et al., Defendants and Cross-Appellees.)
    First District (1st Division)
    Nos. 80-1686, 80-1687 cons.
    Opinion filed September 28,1981.
    Robert M. Smith, Steven M. Pontikes, and Norman H. Burdick, all of Burdick & Smith, of Chicago, for appellant.
    John C. Erb and Paul B. Episcope, both of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This action was brought to recover damages occasioned by the alleged negligence of defendants in failing to provide protection for plaintiff, who was a spectator at a hockey game. The jury rendered a verdict for plaintiff and against defendant Chicago Cougars Hockey Club for $90,000. The trial court entered judgment on the verdict and Chicago Cougars Hockey Club appeals. The jury also returned verdicts in favor of defendants International Amphitheatre and World Hockey Association. The trial court entered judgment on these verdicts and plaintiff cross-appeals.

On appeal, defendant Chicago Cougars Hockey Club argues that the trial court should have found, as a matter of law, that it owed no legal duty to provide protection for spectators at its hockey games. On cross-appeal, plaintiff argues that the verdicts in favor of defendants International Amphitheatre and World Hockey Association were against the manifest weight of the evidence.

We affirm.

Defendant Chicago Cougars Hockey Club (Cougars) was a professional hockey team. Defendant International Amphitheatre (Amphitheatre) owns and operates a multi-purpose arena. Cougars leased the arena from Amphitheatre during hockey season. Defendant World Hockey Association (WHA) was a professional hockey league of which Cougars was a chartered member.

The lease between Cougars and Amphitheatre required Cougars to provide “plastic walls for crowd protection.” It did not specify how high the walls should be or what part of the stands should be protected. Around the edges of the rink at ice level, Cougars erected herculite glass panels to protect spectators and to keep the puck in the rink. The herculite glass panels were higher behind the goals because most shots are aimed in that general direction. No protection was provided for balcony spectators.

On March 12,1974, Jack Riley (plaintiff) was a spectator at a hockey game between the Cougars and the New England Whalers at the Amphitheatre. Plaintiff was seated in the first row of the balcony near one of the goals. During the third period, one of the New England Whalers took a slipshod slapshot toward the Cougars’ goal. The puck deflected off one of the Cougar players’ sticks and soared on an angle to the first row of the balcony. The puck struck plaintiff on the left side of his head and knocked him unconscious. Plaintiff immediately suffered a Jacksonian seizure which rendered him unable to speak and caused his hands, arms and legs to violently shake.

Mr. William Marsh, a penalty timekeeper employed by the Cougars, testified that he previously had seen pucks shot from the ice into the balcony. He believe that there had been injuries from pucks at Cougars’ games but did not know whether records of such injuries were kept.

As a result of the accident, plaintiff sustained a permanent brain lesion. To this day, he periodically experiences epileptic seizures. An expert testified that as plaintiff ages, the symptoms may increase.

The jury returned a verdict in favor of plaintiff and against Cougars in the amount of $90,000. Further, the jury returned a verdict in favor of defendants Amphitheatre and WHA and against plaintiff. Judgment was entered on these verdicts.

First, we must consider Cougars’ argument that the trial court should have found, as a matter of law, that Cougars owed no legal duty to provide protection for spectators at hockey games. Illinois courts have not previously contemplated the question of what, if any, duty is owed by a hockey club to a spectator. We have, however, defined the duty ow;ed by a baseball club to a spectator. (See Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 225 N.E.2d 83.) In Maytnier, the plaintiff was struck and injured by a ball thrown from the bullpen at a Chicago Cubs game. On appeal, the Chicago Cubs raised an issue similar to the issue in the case at bar. Cubs argued that it was under no duty to screen off its entire park and, as a matter of law, is not liable to spectators who are injured by baseballs. (80 Ill. App. 2d 336, 346.) The court agreed that a baseball club need not completely fence in the spectator area. It noted, however, that fencing in the most dangerous part of the grandstand does not necessarily exculpate the ball club from further liability. 80 Ill. App. 2d 336, 343.

Although Maytnier involved an injury at a baseball game, the court’s statement of the duty of care owed is relevant to the case at bar. The court said “[i]t is well established law in this State that the owner-occupier of lands is not an insurer of the safety of invitees on his premises, but he is under a duty to exercise reasonable care for their protection.” Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 342, 225 N.E.2d 83.

The court in Maytnier stated that general rule of nonliability of ballpark owners to spectators, but declined to apply the rule because plaintiff was struck by a ball thrown from the bullpen and not in play at the game. (Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 346-47, 225 N.E.2d 83.) We do not believe that the general nonliability rule that is usually applied in baseball cases is necessarily applicable in hockey cases, because there are fundamental differences in the way baseball and hockey are played and the dangers incident to the games. (See generally Uline Ice, Inc. v. Sullivan (D.C. Cir. 1950), 187 F.2d 82; Morris v. Cleveland Hockey Club, Inc. (1952), 157 Ohio St. 225, 105 N.E.2d 419; James v. Rhode Island Auditorium, Inc. (1938), 60 R.I. 405, 199 A. 293. But see Ingersoll v. Onondaga Hockey Club, Inc. (1935), 245 App. Div. 137, 281 N.Y. Supp. 505.) This is not to say, however, that we advocate the adoption of a general rule of liability in hockey cases. Here, the only question with which we are concerned is whether a duty of care is owed to spectators at hockey games.

Numerous jurisdictions outside of Illinois have considered the question of whether a duty of care is owed. The courts consistently have found that owners and occupiers of premises owe a duty to exercise ordinary care for the safety of spectators at hockey games. The vast majority of these courts have found a breach of that duty and allowed the plaintiffs to recover for injuries sustained. See Uline Ice, Inc. v. Sullivan (D.C. Cir. 1950), 187 F.2d 82; Parsons v. National Dairy Cattle Congress (la. 1979), 277 N.W.2d 620; Schwilm v. Pennsylvania Sports (1952), 84 Pa. D. & C. 603; Morris v. Cleveland Hockey Club, Inc. (1952), 157 Ohio St. 225,105 N.E.2d 419; Tite v. Omaha Coliseum Corp. (1943), 144 Neb. 22, 12 N.W.2d 90; Lemoine v. Springfield Hockey Ass’n, Inc. (1940), 307 Mass. 102, 29 N.E.2d 716; Thurman v. Ice Palace (1939), 36 Cal. App. 2d 364, 97 P.2d 999; James v. Rhode Island Auditorium, Inc. (1938), 60 R.I. 405, 199 A. 293.

New York and Minnesota courts consistently have denied recovery for injuries received by spectators at hockey games. (See Modec v. City of Eveleth (1947), 224 Minn. 556, 29 N.W.2d 453; Ingersoll v. Onondaga Hockey Club, Inc. (1935), 245 App. Div. 137, 281 N.Y. Supp. 505; Hammel v. Madison Square Garden Corp. (1935), 279 N.Y. Supp. 815, 156 Misc. 311; Rich v. Madison Square Garden Corp. (1933), 266 N.Y. Supp. 288,149 Misc. 123, affd (1934), 241 App. Div. 722,270 N.Y. Supp. 915.) In these cases, the denial of recovery was predicated on the principle that spectators, with knowledge of the dangers incident to the playing of the game, assume the risk of being injured.

We note that Cougars voluntarily withdrew the defense of assumption of risk before the case was submitted to the jury. As a result, the New York and Minnesota cases are relevant only insofar as they address the issue of duty owed. In each of these cases, the court agreed that an owner or proprietor of a hockey arena owed a duty of ordinary care to spectators at hockey games. See Modec v. City of Eveleth (1947), 224 Minn. 556, 29 N.W.2d 453; Ingersoll v. Onondaga Hockey Club, Inc. (1935), 245 App. Div. 137, 281 N.Y. Supp. 505; Hammel v. Madison Square Garden Corp. (1933), 279 N.Y. Supp. 815, 156 Misc. 311; Rich v. Madison Square Garden Corp. (1933), 266 N.Y. Supp. 288, 149 Misc. 123, affd (1934), 241 App. Div. 722, 270 N.Y. Supp. 915.

Cougars’ contention that since injuries occurred infrequently at Cougars’ games it owed no duty to its patrons is untenable. Cougars has cited no cases which support this proposition and we have found none. In our judgment, Cougars owed plaintiff a duty to exercise reasonable care for his protection.

Whether the requisite care was exercised is a question of fact for the jury. (See Sepesy v. Fuller (1978), 59 Ill. App. 3d 56, 375 N.E.2d 180; Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 225 N.E.2d 83.) The jury’s verdict in plaintiff’s favor and against Cougars is adequately supported by the evidence and should not be disturbed.

Next, we must consider whether the verdict in favor of defendant Amphitheatre was against the manifest weight of the evidence. Relying on Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 225 N.E.2d 83 and Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099, plaintiff argues that Amphitheatre, like Cougars, owed plaintiff a duty of ordinary care.

We do not believe that these two cases are comparable to the case at bar. Cougars leased the arena from Amphitheatre pursuant to a lease which required Cougars to provide a “plastic wall for crowd protection.” No such agreement was involved in either Maytnier or Duffy. Since Cougars, by the terms of the lease, expressly agreed to take on the responsibility of protecting the crowd, we do not believe that the jury verdict in Amphitheatre’s favor was against the manifest weight of the evidence. We believe that this provision effectively delegated to Cougars the responsibility for crowd protection. Therefore, we affirm the jury’s finding in favor of Amphitheatre and against plaintiff.

Lastly, plaintiff argues that the verdict in favor of WHA was against the manifest weight of the evidence. Having reviewed plaintiff’s argument, we find that there was no rational basis for imposing a legal duty upon WHA to protect spectators at hockey games between its member teams. Therefore, we believe that the question of WHA’s liability need not even have been submitted to the jury. We find no reason to disturb the jury’s finding in favor of WHA and against plaintiff.

For the foregoing reasons, we affirm the judgments of the circuit court of Cook County.

Judgments affirmed.

CAMPBELL, P. J„ and O’CONNOR, J„ concur.


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
      In re MARRIAGE OF CLARICE ROSSI, Petitioner-Appellee, and JOSEPH E. ROSSI, Respondent-Appellant.
    First District (1st Division)
    Nos. 80-1702, 80-3165 cons.
    Opinion filed September 28,1981.
    Margaret C. Benson, of Law Offices of Barbara B. Hirsch, of Chicago, for appellant.
    Barclay, Damisch & Sinson, Ltd., of Chicago (Junie L. Sinson and Robert A. McNees, of counsel), for appellee.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

On January 30,1979, pursuant to a bifurcated hearing, judgment was entered dissolving the marriage between petitioner Clarice Rossi and respondent Joseph Rossi, and continuing the matters of support, maintenance, attorney’s fees and property rights for further hearing. After a hearing, an order was entered on June 6, 1980, which provided that respondent pay $8,000 to petitioner “without prejudice as to the outcome of the trial” within 30 days. When respondent’s attorney asked the court what the award was for, and whether it was for allocated maintenance, child support, or to repay debts, the court responded, “It has nothing to do with that, it is the fact that she is hurting with the three children in his home and I think his lifestyle is quite good. We can straighten it all out at the end, if I am wrong.” On October 17, 1980, after additional hearings and after trial had begun, another order was entered which provided in pertinent part that respondent pay $1,958 to petitioner’s accountant for services rendered in connection with this cause, and which mutually enjoined both parties from transferring assets other than in the ordinary course of business. In this consolidated appeal respondent appeals from both orders. Petitioner has moved that both appeals be dismissed for lack of jurisdiction and for failure of respondent to comply with Supreme Court Rules 301, 304, 307, and 308, governing appeals (Ill. Rev. Stat. 1977, ch. 110A, pars. 301, 304, 307, and 308). Petitioner’s motions have been taken with the case.

For the reasons set forth herein both appeals are dismissed.

On April 10, 1978, petitioner Clarice Rossi filed a petition for dissolution of marriage, and on August 25, 1978, she filed a petition for temporary custody, support, and attorney’s fees. After a hearing an order was entered on September 12,1978, which provided that respondent pay petitioner each month the sum of $1,500 as temporary unallocated maintenance and child support during the pendency of the suit, and that respondent also pay all monthly mortgage payments on the parties’ real estate, all real estate taxes, all insurance and all family medical and dental bills. Upon appropriate billing by a certified public accountant, respondent was ordered to pay the accountant’s audit charges up to the sum of $1,000, and any sum in excess of $1,000 could only be approved by the court on appropriate petition by the petitioner. Pursuant to a bifurcated hearing the marriage was dissolved on January 30,1979. Thereafter, petitioner filed a motion on November 14, 1979, asking for compliance with the court’s order of September 12, 1978, with respect to the payment of accountant’s fees, and requesting also the payment of additional accountant’s fees, an increase in temporary maintenance and child support, and an injunction to enjoin respondent from transferring assets other than in the ordinary course of business. The matter was set for hearing on the same day as trial. On April 4, 1980, the court heard extensive testimony from respondent relative to his assets and his ability to pay; on April 22, 1980, the court heard testimony of respondent relative to the transfer of assets by him, his destruction of bank savings passbooks, and the purchase by him of tax-exempt bonds and stocks with funds from sources he could not identify; on June 4, 1980, the court heard petitioner’s testimony concerning her current source of income, her inability to pay family bills without borrowing money to sustain the family, and her debts. The court then found that the family was suffering in general and that the husband was able to pay because his “lifestyle is quite good,” and on June 6,1980, the court entered an order which directed respondent to pay petitioner $8,000 within 30 days. Respondent has appealed this order. On August 15, 1980, the court heard further testimony of respondent with regard to his debts and the marital assets. On October 17, 1980, after hearing arguments of counsel, the court entered an order which provided in pertinent part that the parties were mutually enjoined from transferring assets other than in the ordinary course of business, and which ordered respondent to pay petitioner’s accountant the sum of $1,958. Respondent has appealed from this order also, and the two appeals have been consolidated.

Petitioner has urged that respondent’s appeal from the order entered June 6,1980, ordering respondent to pay petitioner $8,000 within 30 days, and respondent’s appeal from the order entered October 17, 1980, ordering respondent to pay petitioner’s accountant $1,958 should be dismissed because the two orders do not appear to be final appealable orders as set forth in Supreme Court Rules 301 and 304 (Ill. Rev. Stat. 1977, ch. 110A, pars. 301 and 304; In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036; In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 410 N.E.2d 79; English v. English (1979), 72 Ill. App. 3d 736, 393 N.E.2d 18). Petitioner argues that the orders are not final judgments disposing of all claims of the parties pursuant to Supreme Court Rule 301 (Ill. Rev. Stat. 1977, ch. 110A, par. 301), nor are they final judgments as to one of several claims for relief pursuant to Supreme Court Rule 304 (Ill. Rev. Stat. 1977, ch. 110A, par. 304), because the questions of final property settlement, attorney’s fees and costs have yet to be determined, and the orders did not contain express written findings by the trial court that there is no just reason for delaying enforcement or appeal, the language required by Rule 304 to make such final judgments appealable. (Ill. Rev. Stat. 1977, ch. 110A, par. 304; In re Marriage of Lentz; In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617,402 N.E.2d 831.) Petitioner urges that in the absence of such findings the appeals must be dismissed. (In re Marriage of Lentz; In re Marriage of Atkinson.) Petitioner also urges that the two orders do not fall into one of the categories for interlocutory appeals as of right set forth in Supreme Court Rule 307 (Ill. Rev. Stat. 1977, ch. 110A, par. 307), nor has respondent requested leave to appeal from an interlocutory order pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308), and respondent has not classified his appeals as interlocutory appeals (Ill. Rev. Stat. 1977, ch. 110A, par. 307; Scudder v. Scudder (1979), 71 Ill. App. 3d 534, 390 N.E.2d 23).

In urging that the appeals should not be dismissed, respondent argues that an order for temporary support is immediately appealable because it is enforceable by contempt proceedings. Ill. Rev. Stat. 1979, ch. 40, par. 505(b); Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282; People v. Ealy (1977), 49 Ill. App. 3d 922, 365 N.E.2d 149; Hirsh v. Hirsh (1967), 81 Ill. App. 2d 354, 225 N.E.2d 42; In re Estate of Sherwood (1965), 56 Ill. App. 2d 334, 206 N.E.2d 304; Micelli v. Micelli (1963), 45 Ill. App. 2d 159, 195 N.E.2d 233.

Before considering an appeal on its merits, this court must determine whether an appeal has been properly taken so as to invoke the jurisdiction of the court. (In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145, 419 N.E.2d 487; In re Marriage of Lentz; English v. English.) In order for the appellate court to have subject matter jurisdiction an appeal must generally be taken from a final order which either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (In re Marriage of Zymali; In re Marriage of Meyer (1981), 92 Ill. App. 3d 679, 416 N.E.2d 91.) Only an order which terminates the litigation on the merits, so that, if affirmed, the trial court has only to proceed with execution is a final order. (In re Marriage of Zymali.) An order which leaves a cause still pending and undecided is not a final order. In re Marriage of Zymali.

In the instant case respondent is appealing an order entered June 6, 1980, which ordered him to pay petitioner $8,000 within 30 days, and an order entered October 17, 1980, which ordered him to pay petitioner’s accountant $1,958. The two orders appear to be temporary interlocutory orders intended to maintain the status quo between the parties pending a final judgment settling the questions of final property settlement, attorney’s fees, and costs, and terminating the litigation between the parties. Neither order appears to be a final appealable order pursuant to Supreme Court Rule 301 (Ill. Rev. Stat. 1977, ch. 110A, par. 301; In re Marriage of Zymali; In re Marriage of Meyer), and neither order contains express written findings by the trial court which would make either order appealable pursuant to Supreme Court Rule 304 (Ill. Rev. Stat. 1977, ch. 110A, par. 304; In re Marriage of Lentz; In re Marriage of Atkinson). Moreover, a review of the record indicates that the trial court entered the June 6 order because the family was “hurting in general” and “without prejudice as to the outcome of the trial.” The court clearly stated that the order was not for unallocated maintenance, child support, or the repayment of debts. The court also stated that “we can straighten it all out at the end, if I am wrong.” The language chosen by the court to characterize the order indicates that it is not a final order appealable pursuant to Supreme Court Rule 304. The orders do not fall into any of the categories for interlocutory appeals as of right pursuant to Supreme Court Rule 307 (Ill. Rev. Stat. 1977, ch. 110A, par. 307), nor has respondent requested leave to appeal from an interlocutory order pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308). The Illinois Supreme Court found in In re Marriage of Lentz that for an order to be appealable the Supreme Court Rules must be complied with, and we find that decision controlling of the instant issues and dispositive of this appeal. We therefore agree with petitioner that respondent has failed to perfect an appeal with respect to the instant orders, and the appeals are hereby dismissed. In re Marriage of Lentz. See In re Marriage of Zymali; In re Marriage of Brown; In re Marriage of Atkinson; English v. English.

Petitioner also urges that respondent’s appeal from the order entered October 17, 1980, mutually enjoining both parties from transferring assets other than in the ordinary course of business should be dismissed because respondent has failed to comply with Supreme Court Rule 307, governing interlocutory appeals as of right. (Ill. Rev. Stat. 1977, ch. 110A, par. 307; In re Marriage of Lentz; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) Supreme Court Rule 307 requires that the notice of appeal be designated “Notice of Interlocutory Appeal,” and that the record on appeal be filed within 30 days from the entry of the interlocutory order. Respondent has failed to comply with both these requirements.

Respondent does not address the arguments raised by petitioner, but urges instead that the instant appeal should not be dismissed, as the order is immediately appealable because it is enforceable by contempt proceedings. Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439,264 N.E.2d 18; Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 403 N.E.2d 266; People ex rel. Watson v. Spinka (1978), 58 Ill. App. 3d 729, 374 N.E.2d 787.

The appealability of that portion of the order entered October 17, 1980, which mutually enjoined the parties from transferring assets other than in the ordinary course of business is governed by Supreme Court Rule 307 (Ill. Rev. Stat. 1977, ch. 110A, par. 307). Supreme Court Rule 307 requires that the notice of appeal be designated “Notice of Interlocutory Appeal,” and we observe that respondent’s notice of appeal lacks the required designation. Supreme Court Rule 307 also requires that the record on appeal be filed within 30 days from the entry of the interlocutory order. We observe that respondent filed the record on January 16, 1981, some 91 days after the order was entered. We therefore agree with petitioner that the appeal must be dismissed for failure to comply with Supreme Court Rule 307. Ill. Rev. Stat. 1977, ch. 110A, par. 307; In re Marriage of Zymali; In re Marriage of Lentz; In re Marriage of Brown; English v. English.

Appeals dismissed.

GOLDBERG and O’CONNOR, JJ., concur.


text:
    OAK PARK TRUST & SAVINGS BANK, Trustee, et al., Plaintiffs-Appellants, v. THE TOWN OF PALATINE, Defendant-Appellee.
    First District (1st Division)
    No. 80-2443
    Opinion filed September 28, 1981.
    Ancel, Clink, Diamond, Murphy & Cope, P. C., of Chicago (Ronald M. Clink and Mary Denise Cahill, of counsel), for appellants.
    Schuyler, Ballard & Cowen, of Chicago (Richard A. Cowen and Marcia E. Doane, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This action for declaratory judgment was brought by the Oak Park Trust & Savings Bank, as trustee under Trust No. 7635, dated November 1,1976, and Di Mucci Home Builders, Inc. (plaintiffs) against the town of Palatine (defendant). Plaintiffs sought a declaration of the rights of the parties with respect to the conditions required of plaintiffs by defendant in order for defendant to execute a joint application for a sewer permit. The trial court granted defendant’s motion to dismiss on the grounds of mootness. Plaintiffs appeal.

Plaintiff Di Mucci Home Builders, Inc., is the beneficial owner of property held in a land trust by plaintiff Oak Park Trust & Savings Bank. This property lies in unincorporated Cook County in Palatine Township. In 1977, plaintiffs sought to build a planned unit residential and commercial complex on this site. They were therefore required to obtain sewer permits from the Metropolitan Sanitary District (District).

Pursuant to statutory authority (111. Rev. Stat. 1977, ch. 42, par. 326bb(7)), the District has adopted a sewer permit ordinance which provides for permits to be issued to governmental bodies and individuals jointly. The ordinance also provides for the issuance of permits to sole individuals or corporations if the property to be served lies in an unincorporated area and the township government declines to act as a joint permittee.

Plaintiffs requested defendant to execute a permit application as joint permittees with plaintiffs. On October 7,1977, counsel for defendant sent a letter to plaintiffs which outlined the conditions defendant would require of plaintiffs for defendant to execute this joint permit application.

Plaintiffs believed these conditions to be unreasonable and beyond the scope of defendant’s own regulations. Plaintiffs then filed an application with the District seeking to become a sole permittee. On February 15, 1978, this application was rejected by the chief engineer of the District. The District stated defendant had not technically “declined” to become a joint permittee as required for sole permittee status. Plaintiffs appealed from this denial to the board of commissioners of the District.

On April 5, 1978, plaintiffs filed this action for declaratory judgment seeking to declare the right to require defendant to impose only “reasonable” conditions as a prerequisite to becoming a joint permittee. In its answer, defendant admitted it sought to impose terms on plaintiffs, but denied those conditions were either unreasonable or beyond the scope of its authority.

On April 6, 1978, the board of commissioners of the District authorized the issuance of a sewer permit to plaintiffs subject to special conditions. This permit was issued on May 3,1978. Conditions 9 and 10 of this permit provide:

“9. This Permit is issued to [plaintiffs] (referred to as Permittees) individually, at this time only, as an accommodation pending the resolution of the lawsuit entitled Oak Park Trust and Savings Bank et al. vs. Town of Palatine being No. 78 L 6961 in the Circuit Court of Cook County, Illinois, and pursuant to order of April 6, 1978 of the Board of Commissioners of The Metropolitan Sanitary District of Greater Chicago. Permittees shall use all reasonable efforts to pursue the litigation to conclusion.
Permittees, upon the conclusion of the aforesaid litigation and as an additional consideration for the issuance of this Permit, covenant and agree to comply fully with the final order of the Court in said litigation determining which conditions as set forth in a certain letter from Richard Cowen to Salvatore DiMucci, dated October 7, 1977, are reasonable to be imposed as a condition of the Township of Palatine executing the permit application as a copermittee hereunder.
10. The issuance of this Permit shall not be construed’ as the issuance of a permit to Permittees as a sole permittee pursuant to Section 2(H)5 of the Sewer Permit Ordinance.”

In a supplement to their complaint, plaintiffs alleged the issuance of this permit. The supplement stated the permit was conditional and the District could revoke the permit and terminate service unless the above condition 9 was complied with. Plaintiffs also alleged the permit was issued only because plaintiffs would suffer severe financial losses unless sewer construction could commence. Further, plaintiffs alleged they would suffer severe financial losses should the permit be revoked.

On June 19, 1980, defendant moved to dismiss the complaint on the ground the issuance of the permit and subsequent sewer construction rendered the cause moot. On August 6, 1980, the trial court granted the motion to dismiss. The trial court noted that since the District had issued a sewer construction permit and substantial construction had been accomplished the District had waived its permit requirements.

In this court, plaintiffs contend their complaint stated a cause of action for declaratory judgment and was not mooted by the issuance of the allegedly conditional sewer permit.

Section 57.1(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par 57.1(1)) provides:

“The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy.”

In Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375-76, 362 N.E.2d 298, the supreme court stated:

“Essentially, there are two main, general requirements for standing to bring an action for declaratory relief. First, there must be an ‘actual controversy.’ (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1).) ‘Actual’ in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. [Citations.]
The second, and somewhat related requirement, is that the party seeking the declaration must be ‘interested in the controversy.’ (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1).) The word, ‘interested’ does not mean merely having a curiosity about or a concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right which is capable of being affected. [Citations.] The dispute must, therefore, touch the legal relations of parties who stand in a position adverse to one another.”

In commenting upon the pertinent statute, the supreme court stated (Miller v. County of Lake (1980), 79 Ill. 2d 481, 487, 404 N.E.2d 222):

“We have concluded, in other words, that the ‘actual controversy’ requirement is meant merely to distinguish justiciable issues from abstract or hypothetical disputes and is not intended to prevent resolution of concrete disputes admitting of a definitive and immediate determination of the rights of the parties.’ Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443,452, citing A. S. & W. Club v. Drobnick (1962), 26 Ill. 2d 521, 524.”

In addition, this court has held “[i]n searching for an ‘actual controversy’ we must liberally construe the declaratory judgment statute.” Northwestern University v. State of Illinois (1977), 56 Ill. App. 3d 305, 308, 371 N.E.2d 1046, appeal denied (1978), 71 Ill. 2d 603.

We must first decide if an actual controversy exists between the parties before us. Plaintiffs contend the controversy over the reasonableness of the terms proposed by defendant in its letter of October 7, 1977, still exists because their sewer permit is expressly conditioned on the outcome of the within litigation. Plaintiffs argue a dismissal of this suit without a resolution of this issue could lead to a revocation of their sewer service by the District. Thus, plaintiffs could be stranded with neither sewers nor a determination on the original dispute at issue. Therefore, argue plaintiffs, the suit was not mooted by the issuance of the permit.

Defendant, on the other hand, notes the finding by the trial judge that the District has waived its permit requirements by issuing a conditional permit unprovided for in its own ordinance. Defendant also points out the District has never indicated its intentions to revoke the sewer permit at any time throughout the three years since its issuance. Thus, argues defendant, any controversy over the permit is both speculative as to future conduct and an issue between plaintiffs and the District only. Therefore, argues defendant, no actual controversy exists between itself and plaintiffs.

It is clear an actual controversy did exist between the parties as to the reasonableness of the terms proposed by defendant at the time the suit was filed. We must therefore examine the effect of the permit issued to plaintiffs by the District.

Condition 9 of the permit expressly provides plaintiffs must accept the determination of the court on the reasonableness of the proposed conditions. Thus, the permit cannot be interpreted as a final permit. This factor distinguishes this case from Commonwealth Edison Co. v. Pollution Control Board (1977), 51 Ill. App. 3d 345, 367 N.E.2d 270, and La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 121 N.E.2d 486, cited by defendant. In those cases the permits in dispute were issued during the pendency of the suit, thus mooting the actions to procure the permits. Neither permit was, however, conditional.

It is significant that the District is not a party to this suit at the present time. Thus, the conclusion of the trial judge that the District waived its requirements by issuing this permit does not appear to be binding upon the District. This court has held a case is not moot where a party to the action has “the power * * 0 to recreate the condition as it existed at the time the litigation was commenced.” (Kern v. Chicago & Eastern Illinois R. R. Co. (1963), 44 Ill. App. 2d 468, 477, 195 N.E.2d 197, appeal denied (1964), 29 Ill. 2d 625, cert, denied (1964), 379 U.S. 825, 13 L. Ed. 2d 35, 85 S. Ct. 51.) The permit issued here requires plaintiffs to act as joint permittees under those conditions declared by the court to be reasonable. If this cause is dismissed, plaintiffs are, in effect, returned to their position without joint permittee status. Thus, we cannot agree with the contention of defendant that the possibility that the District would revoke plaintiffs’ permit is pure speculation. On the contrary, the fact that the District has refused to issue an unconditional permit to plaintiffs demonstrates the need for a declaratory ruling by the court.

Defendant contends that even if the District should revoke the permit such action would only support the contention that the dispute is solely between plaintiffs and the District. In this regard, we find Northwestern University v. State of Illinois (1977), 56 Ill. App. 3d 305, case to be instructive. In Northwestern, the plaintiff filed for declaratory judgment alleging that a provision in its charter prohibiting liquor sales on its premises had been repealed by implication by the State legislature. The trial court concurred and the State appealed. This court found an actual controversy between the parties existed without the prerequisite of the plaintiff attempting to sell liquor in possible violation of its charter. The court stated (56 Ill. App. 3d 305, 308):

“Plaintiff need not act at its peril prior to seeking declaratory relief. Although no wrong has yet been committed, such is not necessary to obtain declaratory relief. The mere existence of a claim, assertion or challenge to plaintiff’s legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff’s rights or status damages plaintiff’s pecuniary or material interests and establishes a condition of justiciability.”

In the instant case, it is manifest the threat of revocation of the sewer permit could definitely place plaintiff in an adverse economic position so as to necessitate additional litigation to avert the risk of termination of the sewer service. As one purpose of the Declaratory Judgment Act is to prevent a multiplicity of suits (Emcasco Insurance Co. v. Alvarez (1969), 110 Ill. App. 2d 307, 313-14, 249 N.E.2d 190, appeal denied (1969), 41 Ill. 2d 581), we believe it proper that the rights of the parties to this action should first be determined before the road is cleared for further litigation.

We find the instant case distinguishable from U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 410 N.E.2d 286. In U-Haul, the plaintiff was denied a special use permit to develop his property in a desired way. He sought a declaratory judgment that such denial by the defendant was unreasonable. During the pendency of the suit, the plaintiff leased the property to a third party in a seven-year lease with two five-year optional extensions. Both the trial court and this court found this lease rendered the controversy between the parties moot. This court stated it would not be “appropriate to make a declaration of legal rights that might be implemented 7,12 or 17 years from now ° ° due to the possibility of a wide change of circumstances during the interim. U-Haul, 87 Ill. App. 3d 915, 919.

Unlike the U-Haul plaintiff, the instant plaintiffs are not committed to the third party in a long-term agreement. Rather, plaintiffs now have merely a temporary permit which appears to exist solely until the issues in this action are resolved. Thus, a determination of these issues would not go into effect in some long-term future, but would immediately become part of the permit pursuant to condition 9. By acting under this permit, plaintiffs did not abandon their search for joint permittee status, but merely sought to alleviate economic hardship until their dispute with defendant could be resolved.

This case is also distinguishable from Gromer Supermarket, Inc. v. Pollution Control Board (1972), 6 Ill. App. 3d 1036, 287 N.E.2d 1, cited by defendant. In Gromer, the plaintiffs sought to prevent the defendant from adopting proposed regulations. Plaintiffs were granted a preliminary injunction preventing the defendant from conducting any public hearings in connection with this proposed ordinance. On appeal, this court reversed the issuance of the injunction. This court found the issue unripe for judicial determination, as it was unknown whether the defendant would ever act on the proposed regulation. (6 Ill. App. 3d 1036, 1043.) In the instant case, a controversy between plaintiffs and defendant over the terms proposed by defendant has existed ever since the parties failed to concur on the reasonableness of those terms. The permit issued by the District did not, in our opinion, alter the condition between those parties. The permit merely allowed plaintiffs to continue their development provided they agree to accept the judicial determination of the rights of the parties sought in the instant proceedings. Thus, the controversy remains ripe between plaintiffs and defendant.

We therefore conclude the controversy between these parties is not moot. Therefore the order appealed from is reversed and the cause is remanded for further proceedings.

Order reversed; cause remanded.

McGLOON and O’CONNOR, JJ., concur.