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No. 2--98--1038

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

__________________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The instant controversy stems from a dispute between the mayor of the Village of Westmont, Edwin Burke, and four members of the village's board of trustees, James Lenihan, Mark Forzley, William Rahn, and Wendy Wilson (collectively, trustees), concerning the employment of an attorney to provide legal services to the Village of Westmont (the village). On May 18, 1998, the trustees enacted a resolution approving a contract for legal services with the law firm of Kubiesa, Spiroff, Gosselar & Pieper, P.C. (the Kubiesa firm) and terminating any express or implied agreements with the law firm of Rathje, Woodward, Dyer & Burt (the Rathje firm). Prior to the enactment of the resolution, Mayor Burke had assigned all of the village's legal work to the Rathje firm. Mayor Burke subsequently filed a suit on behalf of the village and against the trustees and the Kubiesa firm, seeking a declaration that the resolution and contract were invalid and requesting other injunctive relief. On July 10, 1998, the circuit court of Du Page County entered an order preliminarily enjoining enforcement of the resolution and preserving the status quo. The trustees and the Kubiesa firm have filed an interlocutory appeal from this order.

The parties do not dispute the underlying facts of the case. In 1993, James Addington became mayor of the village. On June 21, 1993, he appointed Kenneth Kubiesa of the Kubiesa firm to the office of village attorney. Mayor Addington also designated Ron Civinelli as police attorney and Peter Zamis of the Rathje firm as attorney for litigation. The board of trustees unanimously approved these appointments.

In 1997, plaintiff Edwin Burke became mayor. In July 1997, Mayor Burke removed Kenneth Kubiesa from the office of village attorney. Mayor Burke never consulted with the board of trustees prior to removing Kubiesa from office. Mayor Burke also has never presented the board of trustees with a new permanent appointment for the office of village attorney. Rather, Mayor Burke has delegated all of the village's legal work to the Rathje firm. Once again, Mayor Burke did not consult with the board of trustees prior to delegating these responsibilities to the Rathje firm.

On May 18, 1998, the defendant trustees approved a resolution and contract to retain the Kubiesa firm to perform duties as "Village Attorneys." The resolution also terminated any appointment, designation, or contract for legal services, whether express or implied, with Zamis, Mark Daniel, or the Rathje firm. The contract with the Kubiesa firm provided that the agreement would be terminated upon the appointment and confirmation of a new village attorney. Although Mayor Burke vetoed this resolution, on June 15, 1998, the trustees overrode the veto.

On June 16, 1998, Mayor Burke filed the instant complaint on behalf of the village. The complaint named the trustees and the Kubiesa firm as defendants. In the complaint, the plaintiffs sought (1) a declaration that the trustees' resolution and the contract with the Kubiesa firm were invalid; (2) an injunction preventing the trustees and the Kubiesa firm from operating under the contract; and (3) a writ of mandamus requiring the Kubiesa firm to turn over all of the village's files in its possession. The plaintiffs subsequently filed a motion for a temporary restraining order and the entry of a preliminary injunction.

On June 22, 1998, following a hearing, the trial court issued a temporary restraining order preserving the status quo between the parties. Specifically, the order provided that both the Rathje firm and the Kubiesa firm would continue to handle those legal matters already referred to them by the village; additionally, the Rathje firm was to take any new legal matters that arose following the issuance of the temporary restraining order.

The trustees and the Kubiesa firm subsequently filed motions to dismiss the complaint pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (West 1996)). In their motions, the defendants argued, inter alia, that the board of trustees was authorized to enact the subject resolution and to enter into the contract with the Kubiesa firm pursuant to section 8--1--7(b) of the Illinois Municipal Code (the Code) (65 ILCS 5/8--1--7(b) (West 1996)). The defendants also argued that the resolution did not impermissibly interfere with Mayor Burke's statutory authority to appoint and remove village officials. For these reasons, the defendants argued that the trial court was without legal authority to enjoin enforcement of this official act.

On July 10, 1998, the trial court conducted a hearing on the motion for a preliminary injunction. At the hearing, the parties stipulated to the underlying facts and agreed to forego an evidentiary hearing. Following oral argument, the trial court granted the motion and entered a preliminary injunction barring the trustees and the Kubiesa firm from operating under the terms of the resolution. The trial court also ordered both the Rathje firm and Kubiesa firm to continue to handle those matters that they had already been assigned. Additionally, the trial court made an express finding that the office of village attorney was vacant and ordered Mayor Burke to bring forward an appointment for the office for the consent of the board of trustees. The trial court explained its ruling as follows:

"Mr. Kubiesa was removed a year ago by the action of Mayor Burke. There was no objection on the part of the trustees within a reasonable time. A year has now passed. There is an implied acquiescence by the Board in that vacancy.

However, the existence of a vacancy and the lack of an appointment by the Mayor does not allow the trustees to step in and exercise purported powers, which have no foundation in the statute or in the ordinance.

***

Obviously, in our system of balance of powers, checks and balances, the statutes require that the executive make the appointment and the trustees advise and consent and approve this appointment."

By separate order, the trial court also denied the defendants' motions to dismiss the complaint. Following the denial of their motions to reconsider, the defendants filed this timely interlocutory appeal pursuant to Supreme Court Rule 307(a)(1). 166 Ill. 2d R. 307(a)(1).

On appeal, the defendants argue that the trial court erred in entering the preliminary injunction. Specifically, the defendants argue that the plaintiffs failed to present sufficient evidence demonstrating that they were entitled to a preliminary injunction. Additionally, the defendants contend that the trial court was without authority to enjoin the legislative actions of public officials. For these same reasons, the defendants contend that the trial court erred in denying their motions to dismiss the complaint.

Initially, the plaintiffs assert that the defendants have not properly preserved their contentions of error relating to the trial court's entry of the preliminary injunction. Specifically, the plaintiffs contend that the defendants' agreement to forego an evidentiary hearing prior to the entry of the injunction was tantamount to waiver. We disagree. A review of the record demonstrates that the facts herein were uncontested and that the defendants agreed that a formal evidentiary hearing was unnecessary. However, the defendants did not stipulate to the resolution of the underlying legal questions at issue. Rather, the defendants advanced the precise legal arguments in opposition to the injunction that are raised in the instant appeal. For these reasons, we believe that the defendants have properly preserved their contentions of error relating to the entry of the preliminary injunction.

However, we do agree with the plaintiffs that the trial court's order denying the defendants' motions to dismiss was not appealable. It is well settled that the denial of a motion to dismiss is not a final and appealable order. Pizzato's Inc. v. City of Berwyn, 168 Ill. App. 3d 796, 798 (1988). Such orders are not final adjudications as to the rights of the parties but are interlocutory in nature. Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 540 (1996). We will therefore limit the scope of our review to the propriety of the preliminary injunction.

In order to grant preliminary injunctive relief, the trial court must find that (1) the plaintiff has demonstrated a clearly ascertained right in need of protection; (2) irreparable injury will occur without the injunction; (3) no adequate remedy at law exists; and (4) there is a probability that the plaintiff will succeed on the merits of the case. Lindholm v. Holtz, 221 Ill. App. 3d 330, 333 (1991). It is not the purpose of a preliminary injunction to determine any controverted rights or to decide the merits of the case. Lake in the Hills Aviation Group, Inc. v. Village of Lake in the Hills, 298 Ill. App. 3d 175, 182 (1998). Rather, a preliminary injunction is granted prior to trial on the merits for the purpose of preventing a threatened wrong and to preserve the status quo with the least injury to the parties concerned. Lake in the Hills, 298 Ill. App. 3d at 182.

The issuance of a preliminary injunction is within the sound discretion of the trial court upon a prima facie demonstration that there is a fair question as to the existence of the right claimed and that the circumstances lead to a reasonable belief that the moving party will be entitled to the relief sought. Lake in the Hills, 298 Ill. App. 3d at 182-83. The reviewing court will not set aside the trial court's determination unless there has been an abuse of discretion. Russell v. Howe, 293 Ill. App. 3d 293, 295 (1997).

In order to determine whether the plaintiffs have raised a fair question as to their right to the relief sought in their complaint, we must examine the governing provisions of the Code. Section 3.1--30--5(a) of the Code grants the mayor the sole power to appoint municipal officers, such as a village attorney or corporate counsel. 65 ILCS 5/3.1--30--5(a)(5) (West 1996). Such an appointment must be made with the "advice and consent" of the board of trustees. 65 ILCS 5/3.1--30--5(a) (West 1996). Additionally, section 3.1--35--10 of the Code grants the mayor the power to remove any appointed officer whenever the mayor is of the opinion that the interests of the municipality demand removal. 65 ILCS 5/3.1--35--10 (West 1996). The board of trustees may restore a removed officer by a two-thirds vote. 65 ILCS 5/3.1--35--10 (West 1996). If the officer is not restored, section 3.1--30--5(d) of the Code permits the mayor to appoint a temporary successor. 65 ILCS 5/3.1--30--5(d) (West 1996).

Although the Code provides that the board of trustees may, by two-thirds vote, discontinue any appointed office at the end of the fiscal year and devolve the duties of that office on another municipal officer (65 ILCS 3.1--30--5(b) (West 1996)), the Code does not affirmatively grant the board of trustees the power to remove appointed municipal officers. Moreover, although the board of trustees must consent to the appointment of a municipal officer (65 ILCS 5/3.1--30--5(a) (West 1996)) and may fix the term of office (65 ILCS 5/3.1--30--5(c) (West 1996)), the Code conveys no independent appointment power to the board of trustees.

In accordance with these provisions, the village has enacted an ordinance creating the municipal office of village attorney. This ordinance provides as follows:

"There is hereby created the office of village attorney, an executive office of the village. The attorney shall be appointed by the [mayor] and the board of trustees and shall serve until his successor is appointed." Westmont Code of Ordinances