Chicago Joe's Tea Room, LLC and Pervis Conway, Plaintiffs-Appellants,
Village of Broadview, et al., Defendants-Appellees.
September 8, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 07-CV-2680 - John
Z. Lee, Judge.
Manion, Kanne, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
last eleven years, the parties to this appeal have litigated
a land contract that never closed and a strip club that never
opened. Yet this appeal is still an interlocutory one. We
conclude that the claim for injunctive relief that gives us
appellate jurisdiction is actually moot, and we affirm its
dismissal. Along the way to that conclusion, we address a
tangled record of transactions that seem designed to conceal
the real parties in interest and their substantive deals, and
we decide issues of appellate jurisdiction, standing, and the
law of the case.
Factual and Procedural Background
Chicago Joe's Tea Room, LLC, was formed to operate not a
tea room but a strip club, in a small, near-west suburb of
Chicago that does not want one. The paper trail of legal
entities, abandoned transactions, and apparently illusory
obligations in this case makes for a dense record. We sketch
the essential facts at the outset and provide more detail in
discussing specific issues.
story begins in 2006 when plaintiff Pervis Conway contracted
to sell land in the Village of Broadview to David Donahue.
Donahue has never been a party to this lawsuit. Donahue
assigned the land contract to Chicago Joe's Tea Room,
LLC. Joseph Inovskis (who also has never been a party to this
lawsuit) was Chicago Joe's sole manager. He applied for
the special-use permit needed to operate a strip club on the
property. Broadview denied the application in 2007. The land
sale agreed to in the contract between Conway and Chicago
Joe's Tea Room, LLC, has never closed, and the planned
club, Chicago Joe's Tea Room, has never opened.
Joe's Tea Room, LLC and Conway (collectively,
"Chicago Joe's") filed this suit in 2007
alleging that Broadview violated the First Amendment. Chicago
Joe's sought: (1) a declaration that certain Broadview
ordinances are unconstitutional, (2) "such further
relief pursuant to 28 U.S.C. § 2202 as this Court may
deem appropriate, including requiring issuance of any
necessary licenses or permits for Plaintiff CHICAGO JOE'S
and CONWAY to use its property in the manner it seeks,"
(3) an injunction blocking Broadview from enforcing its
ordinances, and (4) damages and attorney fees.
Broadview's zoning ordinance, Chicago Joe's needed to
apply for and be granted a special-use permit to operate a
strip club there. Broadview also categorized strip clubs as
"adult businesses" and used a separate adult-use
zoning ordinance to regulate their placement. Broadview
amended its ordinances multiple times during the lawsuit, so
the district court has faced a moving target. One of those
amendments led the district judge presiding over the first
round of summary judgment, Judge Gottschall, to conclude that
Broadview's amendment to its adult-use setback ordinance
was "aimed solely at Chicago Joe's."
Chicago Joe's Tea Room, LLC v. Village of
Broadview (Chicago Joe's I), No. 07 C 2680,
2008 WL 4287002, at *6 (N.D. Ill. Sept. 11, 2008).
the case was transferred from Judge Gottschall to Judge Lee
in 2012, the parties litigated a third round of summary
judgment motions. Broadview also moved for reconsideration of
Judge Gottschall's ruling from the first round of summary
judgment and incorporated by reference its arguments on that
motion into its motion for summary judgment. Judge Lee
granted the motion to reconsider and granted Broadview's
motion for summary judgment on Chicago Joe's declaratory
judgment and injunction claims, but denied Broadview's
motion for summary judgment on the damages claim. Chicago
Joe's Tea Room, LLC v. Village of Broadview
(Chicago Joe's II), No. 07-cv-2680, 2016 WL
1270398, at *9 (N.D. Ill. Mar. 31, 2016). Chicago Joe's
has appealed that order but limited its arguments on appeal
to the denials of injunctive relief.
appeal presents a series of issues. We begin with appellate
jurisdiction, which we have. We then move to the district
court's subject-matter jurisdiction over the claims over
which we have appellate jurisdiction, and we examine both
standing and mootness. We conclude by considering the
application of the law-of-the-case doctrine.
decisive issue of mootness turns on the limits of the
vested-rights doctrine of Illinois law and a recently amended
state statute that prevents Chicago Joe's from operating
a strip club anywhere in Broadview. The Illinois
vested-rights doctrine can be used to recognize property
rights to use property in established or planned ways even
when state or local law changes to prohibit those uses. Under
the doctrine, though, a property owner's claims must be
based on a timely assertion of a right to use the property in
a way that is actually allowed by law. See City of Elgin
v. All Nations Worship Ctr., 860 N.E.2d 853, 856-57 (
Ill. App. 2006). The vested-rights doctrine cannot help
plaintiffs here because the undisputed facts show that at
every stage of the process through the district court's
decision, Chicago Joe's has proposed to use the property
in a way prohibited by then-current local law. And since
2007, Chicago Joe's has been proposing to use the
property in a way prohibited by an Illinois statute, yet
without challenging that statute.
jurisdiction over this interlocutory appeal because the
district court's order granted summary judgment for
Broadview on all of Chicago Joe's equitable claims. With
a few key exceptions, federal courts of appeal can review
only final judgments, but 28 U.S.C. § 1292(a)(1) permits
an interlocutory appeal of an order refusing an injunction.
We construe the statute narrowly, as a limited exception.
E.g., Albert v. TransUnion Corp., 346 F.3d 734, 737
(7th Cir. 2003) ("Therefore, we approach the §
1292(a)(1) exception 'somewhat gingerly lest a floodgate
be opened' that would deluge the appellate courts with
piecemeal litigation."), quoting Gardner v.
Westinghouse Broadcasting Co., 437 U.S. 478, 481-82
(1978). In Albert, we said that ...