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12/27/94 ROY T. JOHNSON v. DU PAGE AIRPORT

December 27, 1994

ROY T. JOHNSON, KENNETH C. DOENGES, GAIL A. DUNHAM, AND ROBERT P. GAYNES, PLAINTIFFS-APPELLANTS,
v.
DU PAGE AIRPORT AUTHORITY, GEORGE A. VARNEY, AND PLANEMASTER SERVICES, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. Nos. 93-CH-677, 93-CH-917. Honorable S. Keith Lewis, Judge, Presiding.

The Honorable Justice McLAREN delivered the opinion of the court: Geiger and Bowman, JJ., concur.

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

This consolidated appeal is based upon two suits brought by the plaintiffs, Du Page County taxpayers, against the defendants, Du Page Airport Authority (the Authority), its chairman, George A. Varney, and its wholly owned subsidiary, Planemaster Services, Inc. Specifically, the plaintiffs appeal from the trial court's decision to grant the defendants' motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) as to the plaintiffs' claim seeking an injunction, the trial court's refusal to permit the plaintiffs to amend their complaint in that suit to includean action for an accounting and collection of sums due, and, subsequently, the trial court's decision to dismiss a second suit brought by the plaintiffs seeking an accounting and collection of sums due. We affirm in part, reverse in part and remand.

On August 9, 1993, the plaintiffs filed a complaint for an injunction (Airport I) against the defendants, alleging that on numerous occasions the defendants provided free air transportation to the public and certain public officials; that the defendants admitted providing free air transportation to elected officials which had no connection to the business run by the defendants; and that the defendants publicly stated that they intended to continue providing free air transportation services in the future unless restrained. The plaintiffs sought an injunction to prohibit the defendants from providing such free service.

On September 15, 1993, after the defendants were granted more time to answer the complaint, the Authority's board of commissioners met and adopted a resolution prohibiting free transportation of non-Authority personnel and requiring the making and maintenance of records for all flights undertaken by Authority employees.

On September 22, 1993, the defendants filed a section 2-619 motion to dismiss Airport I as moot, citing to the resolution passed by the Authority's board of commissioners.

Five days later, Airport I was transferred to Judge S. Keith Lewis, who held a hearing on the motion to dismiss. At that hearing, the plaintiffs asked for leave to file a first amended complaint. Copies of the first amended complaint were tendered to the trial court and to the defendants' counsel. Furthermore, the plaintiffs asked for additional time to respond to the defendants' section 2-619 motion to dismiss. The trial court then granted the plaintiffs motion for additional time, but refused to allow the plaintiffs to file the first amended complaint, stating, "After the motion to dismiss the complaint for injunction is considered and ruled upon, then you [plaintiffs' counsel] will have to decide what you wish to do after that."

On October 28, 1993, the trial court heard oral argument on the defendants' section 2-619 motion to dismiss. At the hearing, the trial court granted the defendants' section 2-619 motion and dismissed Airport I with prejudice, instead of without prejudice. The trial court refused to consider allowing the plaintiffs leave to file their first amended complaint.

Later that day, the plaintiffs filed a new complaint against the defendants. Similar to what would have been the first amended complaint in Airport I, this complaint (Airport II) sought an accountingof those individuals who had received free air transportation and the collection of sums due and owing as a result of the defendants' provision of free air transportation.

On November 16, 1993, the defendants filed appearances in Airport II and also filed a section 2-619 motion to dismiss Airport II (735 ILCS 5/2-619 (West 1992)). After motions to change venue were made, briefing schedules were entered with respect to the section 2-619 motion on November 19, 1993, and November 23, 1993.

On November 24, 1993, the plaintiffs filed a motion to reconsider, to vacate the prior order and for leave to file a first amended complaint instanter, and their memorandum of law in support thereof, in Airport I. The plaintiffs claimed that the trial court erred in denying their earlier motion to file a first amended complaint.

On December 3, 1993, Airport II was transferred to Judge Lewis, who then set a briefing schedule on the defendants' motion to dismiss Airport II.

On that same day, in Airport I, the plaintiffs presented their motion to reconsider, to vacate the prior order, and for leave to file the first amended complaint instanter. The defendants did not want to set a briefing schedule, and the motion was then argued upon the defendants' request. The plaintiffs argued that the issue of dismissal with prejudice was not briefed and their request for leave to file an amended complaint was improperly denied. The defendants argued that the amended complaint contained no new facts, that the amended complaint "was a ruse to keep this matter pending," that Airport II was also pending, and that there was no merit to actions for an accounting or ...


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