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Bojangles, Inc. v. City of Elmhurst

OPINION FILED JUNE 9, 1976.

BOJANGLES, INC., PLAINTIFF-APPELLEE,

v.

THE CITY OF ELMHURST, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. EDWIN L. DOUGLAS, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal by the defendant, City of Elmhurst, from several orders of the trial court culminating in, and including a temporary injunction enjoining the defendant from enforcing an ordinance, as applied to plaintiff, which prohibits the charging of an admission fee by certain classes of liquor licensees. The basic issue presented is whether the trial court erred in entering the orders appealed from.

The plaintiff, Bojangles, Inc., operates a business establishment which is commonly known as a discotheque in the City of Elmhurst. The establishment sells alcoholic beverages under a Class A-2 liquor license and charges its patrons an admission fee for the use of a portion of the premises where music and dancing facilities are provided. On March 1, 1975, shortly before plaintiff commenced its business operations, a certain ordinance of the City of Elmhurst became effective which prohibited Class A and E licensees from charging an admission fee, minimum or cover charge. On March 25, 1975, one day prior to the date plaintiff commenced its operations, plaintiff filed a petition for a temporary restraining order (TRO) and an ex parte emergency matter, alleging that the subject ordinance was unconstitutional and praying for an order to be effective for 10 days enjoining the defendant from enforcing the ordinance against plaintiff. On the same date the trial court entered a TRO as prayed for in plaintiff's petition. The next day, March 26, plaintiff filed a second petition for a TRO as an ex parte emergency matter, alleging that when a certified copy of the March 25 order was served on the defendant, defendant advised plaintiff of its intent to suspend or confiscate plaintiff's liquor license and/or other business licenses to prevent plaintiff from commencing business. Plaintiff then prayed for an order to be effective for 10 days enjoining defendant from revoking, suspending, withdrawing or removing plaintiff's liquor license and/or other business licenses or permits. On the same date the trial court entered a TRO as prayed for in plaintiff's petition. Also, on March 26, plaintiff filed a third petition for a TRO, also as an ex parte emergency matter alleging that when a certified copy of the second TRO was served upon the defendant, defendant advised plaintiff of its intent to use "any means whatsoever" to prevent plaintiff from operating its business. Plaintiff then prayed for an order to be effective for 10 days enjoining defendant from interferring with plaintiff's business operations. A hearing was held on March 26 in which testimony was given by two attorneys for the plaintiff and by the attorney for the defendant. The trial court then entered a TRO on March 26, which was not filed until March 27, as prayed for in plaintiff's petition. The next day, March 27, the defendant filed answers to plaintiff's first two petitions and a motion to vacate the two previously entered TROs. Following a hearing the trial court denied the motion to vacate.

Thereafter, plaintiff filed a petition for temporary injunction and, following entry of an order on April 3 extending the previously entered TROs for an additional 10 days, a hearing was held on plaintiff's petition for temporary injunction on April 9. The testimony of several witnesses was presented at the hearing on plaintiff's petition for temporary injunction and on April 17 the trial court entered a temporary injunction, nunc pro tunc as of April 14. Thereafter, defendant filed a motion to dismiss plaintiff's four-count complaint and, on May 9, filed its notice of interlocutory appeal. In the notice of appeal defendant specified that it was appealing the three TROs, the order denying its motion to vacate the TROs, the order extending the TROs and from the temporary injunction order of April 17.

Prior to considering the merits of this appeal, we shall first consider a motion which we have ordered taken with the case. By this motion plaintiff seeks to strike defendant's appeal from the orders of March 25, 26, 27 and April 3 on the ground that defendant's appeal from these orders was not properly perfected under Supreme Court Rule 307 (Ill. Rev. Stat. 1975, ch. 110A, par. 307).

We first observe that this motion has not heretofore been disposed of by this court as defendant contends; rather, this court has, by order, denied a separate motion to dismiss, filed by plaintiff subsequent to the filing of the motion which we presently decide. The denial of this separate motion to dismiss in no way affects the instant motion.

Supreme Court Rule 307 provides for an interlocutory appeal as of right from an order of the trial court "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." With respect to perfecting an interlocutory appeal as of right, the rule states, in pertinent part, that:

"(a) * * * The appeal must be perfected within 30 days from the entry of the interlocutory order * * *.

(b) Motion to Vacate. If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order. An appeal may be taken if the motion is denied, or if the court does not act thereon within 7 days after its presentation. The 30 days allowed for taking an appeal and filing the record begins to run from the day the motion is denied or from the last day for action thereon."

• 1 Since the notice of appeal was filed in this case on May 9, it is immediately apparent that defendant has failed to perfect its appeal under Supreme Court Rule 307(a) from the four orders which are the subject of the motion to dismiss. Further, since the April 3 order was not entered on an ex parte application, Rule 307(b) has no application to it and, as the appeal was not perfected within 30 days of the entry thereof, the motion to dismiss the appeal from the April 3 order is therefore granted.

• 2 The orders of March 25 and 26 were entered ex parte and defendant moved to vacate and dismiss these orders on March 27. On March 27 the trial court denied defendant's motion. Under Supreme Court Rule 307(b) the 30-day period allowed for taking an appeal from the orders of March 25, 26 and 27 began to run on March 27. In addition, the third TRO, which was entered on March 26 but not filed until March 27, was entered on ex parte application although a hearing was held thereon. Defendant neither moved to vacate this TRO nor perfected its appeal therefrom within the applicable time limits therefor. The notice of appeal filed May 9 was, therefore, filed too late to perfect the interlocutory appeal from these several orders. Plaintiff's motion to dismiss the appeal from the orders of March 25, 26 and 27 and April 3 is therefore granted.

Our disposition of plaintiff's motion to dismiss renders unnecessary a determination of the issues of whether the petitions in support of the TROs were properly verified and whether defendant was entitled to notice of the filing thereof. It is clear that the appeal from the temporary injunction order of April 17 was properly perfected. Defendant's basic contention with respect to this order is that plaintiff has failed to establish several of the requirements applicable to the granting of injunctive relief.

Analysis of defendant's contentions requires a brief recitation of the evidence adduced at the hearing on the petition for temporary injunction. The witnesses at this hearing included the president of the plaintiff corporation; the mayor of Elmhurst, who was also its liquor control commissioner; the fire chief of Elmhurst; and the superintendent of building construction, who was also the chief of the Bureau of Fire Prevention. From the testimony it appears that in August, 1974, one Thomas DuBois, now president of the plaintiff corporation, contacted various officials of Elmhurst regarding his intent to establish a dram shop within Elmhurst to be operated as a discotheque. In a meeting with Mayor Fick in September, 1974, DuBois was advised that, due to the considerable problems which the City had with dram shops which had entertainment in the form of music and dancing, city officials were considering several proposals to regulate and restrict such activities. DuBois was advised that if he were to open a dram shop in Elmhurst that there would possibly be some restrictions placed upon the form of operation. Thereafter plaintiff executed a lease for its premises and began remodeling. In September or early October, 1974, plaintiff received its ...


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