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Clyde Sav. & Loan Ass'n v. May Dept. Stores

OPINION FILED SEPTEMBER 8, 1981.

CLYDE SAVINGS & LOAN ASSOCIATION, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

THE MAY DEPARTMENT STORES ET AL., DEFENDANTS. — (ERNEST OECHSLIN, JR., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

This appeal arises solely on the pleadings. Defendant, Ernest Oechslin, Jr. (Oechslin), contends that, after he had filed a counterclaim and without his consent, the trial court in violation of section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52) granted plaintiff, Clyde Savings & Loan Association (Clyde), leave to "withdraw its complaint." *fn1 Clyde maintains that it moved to withdraw its complaint because the action had become moot. *fn2 For the reasons set forth herein, we conclude that the action was moot and affirm the order of the trial court.

The relevant facts are undisputed. Oechslin owned a 12-acre undivided parcel of real estate in North Riverside, Illinois. In 1969 Oechslin sold approximately four of the 12 acres to Clyde Savings & Loan Association, retaining a "private driveway easement" over the Clyde property. The Clyde property was improved with a seven-story office building, parking lot and underground "drive-in teller station." Prior to the sale of the Clyde property and until the time of the instant litigation, Oechslin used the eight-acre parcel he retained as a wholesale nursery and greenhouse.

In 1978 Oechslin entered into a contract to sell his eight acre parcel to May Department Stores, Inc. (May). The May company proposed to develop the property as a Venture Department Store (Venture), and its contract with Oechslin was contingent upon May/Venture's ability to obtain from the Village of North Riverside rezoning of the tract for use as a retail shopping center. In its rezoning application May/Venture asserted its intention to use the easement as one of two major ingress and egress routes to the Venture site.

On August 3, 1978, before the zoning hearing began, Clyde filed a complaint seeking to enjoin Oechslin's and May/Venture's proposed use of the easement and also requesting a declaratory judgment that such use would constitute an unlawful overburdening of the easement. In its prayer for relief Clyde also asked the trial court to declare that use of the "private driveway easement" was restricted to traffic of a nature and volume which existed prior to the creation of the easement. Clyde asked further for a declaration that any change in usage could be only for traffic attendant a secondary entrance to the Oechslin property as improved with office buildings.

On September 8, 1978, Oechslin and May/Venture jointly filed an answer and two specifically designated counterclaims. *fn3 Oechslin and May/Venture maintained that the easement agreement did not contain the limitations alleged in Clyde's complaint and asked for judgment in their favor.

During pendency of the suit the zoning petition of Oechslin and May/Venture was denied. On January 24, 1980, the trial court granted the motion of May/Venture to dismiss them from the case, as their contract with Oechslin had been terminated. Oechslin filed a motion for summary judgment on March 3, 1980.

On June 9, 1980, Clyde filed a "motion to terminate litigation" pursuant to section 45(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(4)), alleging that the action had become moot. On the same day Clyde moved to amend its complaint by deleting that part of the prayer for relief in which it had asked the trial court to declare that use of the "private driveway easement" was restricted. On June 12 the trial court granted Clyde's motion to amend its complaint, whereupon Oechslin moved the court to strike Clyde's amendment. *fn4

On June 13, 1980, Clyde filed a motion to withdraw its complaint. In his memorandum of June 20 Oechslin opposed both Clyde's motion to "terminate litigation" and its motion to "withdraw its complaint." On June 23 the trial court granted Clyde's motion to withdraw its complaint, stating that such withdrawal would not affect the pendency of Oechslin's counterclaims. On June 30 Oechslin moved the court to reconsider its order permitting the withdrawal of Clyde's complaint. Oechslin's motion was denied "with no just reason to delay enforcement or appeal," and he appeals from that order.

Clyde's complaint was filed pursuant to the declaratory judgment act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1), which provides in part:

"(1) No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby. 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 * * * contract or other written instrument, and a declaration of the rights of the parties interested. * * * The courts> shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding." (Emphasis added.)

• 1 "Actual controversy" in the context of the statute requires a showing that the underlying issues of the case are not moot or premature. A court is not required to pass judgment on mere abstract propositions of law, to render an advisory opinion or to give legal advice as to future events. (Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App.3d 494, 499, 402 N.E.2d 709; Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 362 N.E.2d 298; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill.2d 443, 389 N.E.2d 529.) Moreover, the proviso that the court shall refuse entry of a declaratory judgment unless it will result in termination of "the controversy or some part thereof" emphasizes the fact that the declaratory judgment procedure is not intended to permit litigation of moot or hypothetical cases. *fn5 Ill. Ann. Stat., ch. 110, par. 57.1, Historical and Practice Notes, at 130 (Smith-Hurd 1968).

• 2 The issue in an action seeking declaratory relief is whether, considering all the circumstances, there is a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of declaratory judgment. If a complaint for declaratory judgment fails to show a controversy exists, or if the question involved is moot, the suit should be dismissed on motion. Wood v. School District No. 65 (1974), 18 Ill. App.3d 33, 36, 309 N.E.2d 408; Burgard v. Mascoutah Lumber Co. (1955), 6 Ill. App.2d 210, 127 N.E.2d 464.

In the instant case Clyde maintains that the dismissal of May/Venture as defendants rendered moot the controversy pleaded in Clyde's complaint. Clyde states that it challenged only the right of May/Venture to overburden the easement and that "when the ...


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