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06/30/89 Joseph A. Waitcus Et Al., v. the Village of Gilberts Et

June 30, 1989





541 N.E.2d 213, 185 Ill. App. 3d 248, 133 Ill. Dec. 376 1989.IL.1068

Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. NASH and DUNN, JJ., concur.


Defendants, the Village of Gilberts, its president and acting trustees, appeal from an order granting plaintiffs', certain property owners in the Gilberts Industrial District, motion for summary judgment as to count I of their complaint. On appeal, defendants contend that the complaint failed to state a cause of action, that the Village board acted properly, and that the trial court erred in granting plaintiffs' motion for summary judgment.

In September 1986 the Village of Gilberts passed an ordinance proposing the creation of a special service area for an old industrial park where plaintiffs owned several lots. Pursuant to the procedures of "An Act to provide the manner of levying or imposing taxes for the provision of special services to areas . . ." (Special Service Areas Act) (Ill. Rev. Stat. 1985, ch. 120, par. 1301 et seq.), a public meeting was held on October 15, 1986, for the purpose of hearing comments and objections to the establishment of this special service area. The October 15, 1986, hearing was adjourned to October 22, 1986, pursuant to statutory authority. (Ill. Rev. Stat. 1985, ch. 120, par. 1306.) On October 22, 1986, the hearing was again adjourned, this time to November 4, 1986 (the next scheduled meeting of the Village board).

On November 4, 1986, plaintiffs attended the board meeting and requested that their properties be deleted from the special service area. The board considered petitions and heard oral arguments in support of the petitions. The board consisted of a president and six trustees. However, the president and one trustee were absent at this meeting. As shown by the minutes of this meeting, the first motion was addressed to lot numbers 1, 2 and 3. After considering the petitions, the board voted five to zero to exclude the parcels from the special service area. A second motion for deletion of lots 15, 16, 17, 18, 19 and 20 received three affirmative and two negative votes. The meeting was then adjourned.

On November 18, 1986, the next regular meeting of the Village board, the board unanimously approved the minutes of the November 4, 1986, meeting. Later in the meeting of November 18, 1986, the Village president gave his veto of the two exemption motions in question. The Village president's written veto dated November 18, 1986, was attached to the minutes of the November 18, 1986, meeting. The veto was not called for override or reconsideration at the November 18, 1986, meeting. However, at the regular board meeting on December 2, 1986, a motion to override the veto was made and was defeated. Furthermore, the Village board passed an ordinance at the December 2 meeting establishing the special service area and again included the property of the plaintiffs in the special service area.

On July 29, 1987, plaintiffs filed a two-count complaint in the circuit court of Kane County. In count I, plaintiffs sought a declaratory judgment excluding plaintiffs' properties from the special service area pursuant to the Village board's resolution of November 4, 1986. In count II, plaintiffs sought a permanent injunction. The Village made a motion

The Village first contends that the complaint is not sufficient to support a judgment for the plaintiffs. The Village argues the complaint failed to allege any of the necessary elements for a declaratory judgment action, including the failure to plead the existence of an actual case or controversy or the lack of other adequate remedies. The Village contends that plaintiffs did have other adequate remedies, all of which were contained in the Special Service Areas Act.

Although neither party has questioned this court's jurisdiction, we have a duty to raise it sua sponte and dismiss the appeal if we determine that we do not have jurisdiction. (Ferguson v. Riverside Medical Center (1986), 111 Ill. 2d 436, 440; Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 662.) We find that we lack jurisdiction in this case because the order from which the appeal was taken was not final and appealable.

An appellate court may only hear appeals from final judgments or where an exception specified by the supreme court rules is applicable. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112; Village of Cary v. Pavis (1988), 171 Ill. App. 3d 1072, 1073.) The order appealed in the case at bar is not a final order, and it does not fall within any exception authorized by the supreme court rules. In order to have a final and appealable order, the judgment must terminate the litigation between the parties on the merits so that if affirmed, the trial court need only execute judgment. (In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 492; Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 1007.) A reviewing court must decide in each case whether the judgment fully and finally disposes of the rights of the parties so that no material controverted issue remains to be determined. Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249-50.

In this case, the trial court has not ruled on count II, and therefore it is still pending. Supreme ...

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