Illinois Official Reports

Appellate Court

Frederick v. Gaca, 2020 IL App (3d) 200154

Appellate Court 

Caption

THOMAS J. FREDERICK, Plaintiff-Appellee, v. TERRY L. GACA 

and JANET L. WAYMAN, Individually and as Trustee of the Janet L.

Wayman Trust, Defendants-Appellants.

District & No. Third District 

No. 3-20-0154

Filed October 23, 2020

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 19-CH-1237; the 

Hon. Theodore J. Jarz, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Ronald J. Broida and Joseph K. Nichele, of Broida & Nichele, Ltd., of 

Naperville, for appellants.

Thomas J. Frederick, of Winston & Strawn LLP, of Chicago, Bryan 

W. Kopman and Jeffrey M. Archambeault, of Kavanagh Grumley & 

Gorbold, LLC, of Joliet, and Brian A. Bosch, of Western Springs, for 

appellee.
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Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

Presiding Justice Lytton and Justice Schmidt concurred in the 

judgment and opinion.

OPINION

¶ 1 Plaintiff Thomas Frederick brought a multicount complaint alleging that defendants Terry 

L. Gaca and Janet L. Wayman, individually and as trustee of the Janet L. Wayman Trust, 

violated local zoning ordinances by operating a boarding house and a vehicle parking and 

storage facility on residential property they owned next door to Frederick’s property. The trial 

court granted partial summary judgment in favor of Frederick and entered a permanent 

injunction enjoining the defendants from operating a boarding house and vehicle parking and 

storage facility on the property. Gaca and Wayman appealed. We affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff Thomas Frederick filed a multicount complaint against defendants Terry Gaca and 

Janet Wayman, individually and as trustee of the Janet L. Wayman Trust. The counts alleged 

public nuisance (count I); conspiracy to create a public nuisance (count II); and violations of 

the City of Naperville Zoning Ordinance, including operating a boarding house (counts III, 

IV); operating a parking and storage facility (counts V, VI); storing trucks in excess of the 

allowable weight and at unlawful times (counts VII, VIII); parking a trailer (count IX); not 

using required hard surface for the standing, loading, and unloading motor vehicles (count X); 

and parking unlicensed vehicles on the property (count XI). All the counts concerned 

residential property owned by the trust on Lisson Road in Naperville and located next door to 

Frederick’s house.

¶ 4 In September 2019, Frederick submitted requests to admit and interrogatories to both Gaca 

and Wayman. On November 11, 2019, a quit claim deed was recorded, transferring ownership 

of the Lisson property from the Janet L. Wayman Trust to the Terry L. Gaca Trust. Also in 

November 2019, Frederick sought a preliminary injunction to enjoin the defendants from using 

the property for vehicle parking and storage. A hearing took place on the motion for injunctive 

relief on November 19, 2019.

¶ 5 Michael Menichini testified. He was a special process server who unsuccessfully attempted 

to serve various documents at the property four times. He observed approximately 20 vehicles 

parked on the property, including cars, pickup trucks, delivery trucks, and a heavy-duty work 

truck. On two visits, he counted 23 vehicles. The surface on which the vehicles were parked 

looked like packed dirt and crushed materials.

¶ 6 Janet Wayman testified. She lived on the property at issue with Gaca, her husband, from 

1996 to late October 2018. The house had six bedrooms, six people were currently living in 

the house, and two others had lived there previously. Each tenant had a vehicle. She 

acknowledged there were more than 15 vehicles parked and stored on the property, and there 

were box trucks parked there for several months. The property was not used for storage, but 

people did pay to park there. She was aware people were paying to park. She did not formally 

authorize Gaca to use the property as a parking facility and would not have authorized the use 

if she had known it was in violation of the zoning ordinance. The Terry L. Gaca Trust now 
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owned the property, which was transferred from her trust the week prior to the hearing. The 

transfer was made to balance the value of their trusts. She was not involved in her husband’s 

business.

¶ 7 Gaca testified. He lived at the Lisson house until December 2018. He had paying tenants 

beginning in January 2019. In total, six people lived in the house and two other people had 

previously lived there. There was one vehicle per tenant. He accepted payment for parking and 

storage of nontenant-owned vehicles on the property beginning in February 2019. There were 

approximately 24 to 26 vehicles there in November 2019 and other vehicles had been parked 

there but were no longer on the property. The driveway was crushed asphalt, and the vehicles 

were at all times parked on the asphalt. He denied he placed an ad on Craigslist that counsel 

downloaded on November 11, 2019, regarding renting parking space at the property. To his 

recollection, he did not authorize an ad on Spacer, also downloaded on November 11, 2019. 

Gaca explained he placed ads on Craigslist many times for parking and did not know when he 

stopped. On cross-examination, Gaca stated that the property was a shared home with six 

tenants and an oral lease. The rent included parking and utilities. He did not believe the use 

was in violation of any local ordinances.

¶ 8 Thomas Frederick testified. He offered his interpretation of the Naperville zoning 

ordinances and opined that the defendants violated the ordinances by housing individuals who 

were not a family in a single-family dwelling and by operating a parking facility, which was 

also not a permitted use under the local ordinances.

¶ 9 The trial court found that parking for hire was not a permitted use for the property and 

allowable parking was only by the tenants as accessory to their living in the house. The court 

described the zoning violations as “willful” and “crafty.” The trial court rejected an 

interpretation that a single-family dwelling meant only a single family could live on the 

property. The court also rejected Frederick’s claim that the defendants were running the 

parking operation as a home business. It granted Frederick’s motion for a preliminary 

injunction and ordered the defendants to remove the vehicles on the property except those 

belonging to Gaca, Wayman, the trust, or the tenants.

¶ 10 On November 15, 2020, Frederick received Gaca’s unverified responses but did not receive 

anything from Wayman. On December 5, 2019, defense counsel agreed to the briefing 

schedule, including due dates of December 30, 2019, to answer the complaint, and of January 

31, 2020, to respond to the motion for partial summary judgment. On December 13, 2019, 

defense counsel moved to withdraw. On December 20, 2019, Frederick filed his second motion 

for partial summary judgment and submitted a statement of material facts with numerous 

exhibits, including affidavits and photographs. On January 2, 2020, the trial court allowed 

substitution of defense counsel. On January 6, 2020, defense counsel moved to extend the time 

to file the defendants’ summary judgment response and answer the complaint and to vacate 

Gaca and Wayman’s admissions. Frederick filed a motion for preliminary injunction to prevent 

additional tenants on the property. A hearing took place on January 13, 2020, and the trial court 

issued a preliminary injunction. At the same hearing, defense counsel sought an extension of 

time to respond to discovery and/or the pleadings, asserting good cause to extend existed as he 

was substitute counsel and new to the case. The trial court found that substitution of counsel 

was not good cause to extend the time to respond to the requests to admit. On Frederick’s 

suggestion, the trial court allowed the defendants until January 31, 2020, to respond and to 

conclude discovery.
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¶ 11 On January 27, 2020, defense counsel filed an emergency motion to withdraw. At a January 

28, 2020, hearing, the trial court granted the motion to withdraw but ordered that the due dates 

set would remain and the defendants would be bound by them. The court instructed the defense 

to file an answer when it was ready but rejected the defendants’ request to change any 

discovery dates regarding the motion for summary judgment. The court also informed the 

defendants that if they did not respond to the requests to admit, the facts would be deemed 

admitted. On January 29, 2020, the defendants obtained new counsel. Defense counsel moved 

on January 30 to extend the due date of the answer, noticing a hearing on February 4, 2020, 

and then on February 10, 2020. On February 7, 2020, the defendants moved to extend the time 

to respond to Frederick’s partial summary judgment motion. On February 10, 2020, the court 

denied both motions to extend, stating that it had already admonished Gaca and Wayman that 

new counsel would “take the situation in the circumstances that it is.” The court reiterated that 

the retention of new counsel in and of itself was not grounds to extend due dates. The court 

further stated that the information defense counsel needed was available from its clients, who 

knew whether they were complying with zoning ordinances.

¶ 12 On February 24, 2020, the defendants filed a motion to dismiss the complaint and to 

dissolve the preliminary injunction as moot. Attached to the motion were Gaca’s affidavit 

attesting he moved back into the Lisson property on January 16, 2020, and affidavits from two 

other individuals averring that they rented “boarding rooms” at the property. A hearing took 

place on February 26, 2020. The court considered the defendants’ motion to dismiss, which 

argued that Frederick’s claims were moot because the house was now lawfully used by Gaca 

and two people who rented boarding rooms. The court concluded that the motion to dismiss 

resolved a lot of fact issues regarding the yet-unanswered requests to admit and interrogatories. 

The court denied the defendants’ motion to dismiss the complaint, to dissolve the injunction, 

and to file a counterclaim.

¶ 13 The trial court granted Frederick’s motion for partial summary judgment (counts III-VI, 

VIII, XI, home occupations violations) and entered a permanent injunction enjoining the 

defendants from operating a boarding house or a parking or storage facility or engaging in 

unlawful home occupations. The court granted Frederick’s request to conform the pleadings to 

the proofs to allow him to add the home occupations counts to the complaint. The court found 

issues of fact remained regarding the public nuisance and conspiracy to commit public 

nuisance counts (counts I, II). The trial court denied a motion for default filed by Frederick 

and granted the defendants leave to file an answer to the complaint on the remaining counts. 

Gaca and Wayman timely filed an interlocutory appeal. Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 

2017). On defense counsel’s motion, we allowed the defendants’ attorney to withdraw, and 

substitute counsel filed an appearance on July 28, 2020.

¶ 14 ANALYSIS 

¶ 15 Gaca and Wayman raise three issues on appeal: whether the trial court erred when it denied 

their motion to extend and when it granted partial summary judgment in favor of Frederick and 

whether the defendants were denied due process.

¶ 16 We begin with the defendants’ challenge to the trial court’s denial of their motions to 

extend. They sought additional time to answer discovery and the complaint and to respond to 

the motion for partial summary judgment. The defendants argue that good cause existed to 

extend the deadlines, they did not instruct nor consent to the withdrawal of counsel, the partial 
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summary judgment motion was excessive, and they were prejudiced by the entry of the 

dispositive partial summary judgment order, which prevents them from using the property as 

they claim is permitted. In addition, they argue that the partial summary judgment ruling 

prevents them from advancing their arguments, thus prejudicing them. The defendants submit 

that were they allowed to respond and answer, they would demonstrate that material issues of 

fact exist regarding whether the property was operated as a boarding house.

¶ 17 The court may extend deadlines prior to judgment on good cause shown. See Ill. S. Ct. R. 

183 (eff. Feb. 16, 2011); 735 ILCS 5/2-1007 (West 2018). The trial court has discretion to 

consider “all objective, relevant evidence *** why there is good cause for [a party’s] failure to 

comply with the original deadline and why an extension of time should now be granted.” Vision 

Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353 (2007). Good cause may include mistake, 

inadvertence, or attorney neglect. Id. Whether good cause exists is a fact-dependent 

determination. Schacht v. Lome, 2016 IL App (1st) 141931, ¶ 29. It is within the trial court’s 

discretion whether good cause exists to grant a motion to extend. Id.

¶ 18 The defendants argue that they did not receive proper service of the emergency motion to 

withdraw filed January 27, 2019, in that although Gaca received electronic service, there was 

no record of electronic service to Wayman, no record of personal service on Gaca or Wayman, 

and no evidence Gaca acknowledged receipt of service. We find this issue is waived. The two 

motions to extend did not mention improper service, and the defendants cannot raise the issue 

for the first time on appeal. See Gausselin v. Commonwealth Edison Co., 260 Ill. App. 3d 1068, 

1079 (1994) (finding waiver where issue not included in motion for mistrial but raised for first 

time in posttrial motion).

¶ 19 We next address Gaca and Wayman’s challenge to the trial court’s denial of their motions 

to extend. They argue that their counsel’s withdrawal a couple days prior to the due date for 

their response to the partial summary judgment motion constituted good cause to extend. They 

rely on Illinois Supreme Court Rule 13 (eff. July 1, 2017) as support that the denial of the 

motions to extend was improper.

¶ 20 When counsel moves to withdraw, he must obtain leave of court and give notice to all the 

parties of record. Ill. S. Ct. R. 13(c)(2) (eff. July 1, 2017). Notice may be electronically given 

if the party acknowledges receipt. Id. The notice should inform the party that he should retain 

counsel or file a supplementary appearance within 21 days of entry of the withdrawal order “to 

insure notice of any action in said cause.” Id. Substitution of counsel immediately prior to a 

scheduled date is not good cause to grant a continuance. In re Marriage of Yakin, 107 Ill. App. 

3d 1103, 1113 (1982).

¶ 21 At the hearing on counsel’s motion to withdraw, the trial court admonished that the 

defendants would suffer the consequences if they did not comply with the deadlines. The court 

stated it would allow Gaca and Wayman 21 days to obtain new counsel but reiterated that 

substitute counsel would not affect the prior deadlines. At the hearing on the motion to extend, 

the court reminded the parties that it had already stated that new counsel would receive the 

case as it was and “take the situation in the circumstances that it is.” The court expressly stated 

that substitution of counsel “in and of itself” did not constitute good cause. In the trial court’s 

view, all the information necessary to respond to Frederick’s pleadings was available from the 

defendants, and there was no need to extend discovery to respond to the partial summary 

judgment motion. The court found that the defendants failed to establish good cause to merit 

an extension of the due dates for their responses to Frederick’s pleadings. The court considered 
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that if Gaca would not get along with his attorneys, he could appear pro se but the deadlines 

would remain in place. We find that the court did not abuse its discretion when it denied the 

defendants’ motions to extend.

¶ 22 Contrary to Gaca and Wayman’s claim, Illinois Supreme Court Rule 13 does not dictate a 

different result. “Courts have interpreted [Rule 13’s] provisions as requiring a continuance of 

at least 21 days after the entry of the order granting withdrawal to allow the party to retain 

counsel or enter his own supplementary appearance.” In re Marriage of Pavlovich, 2019 IL 

App (1st) 172859, ¶ 17. The defendants immediately retained new counsel, who entered an 

appearance the day after the motion to withdraw was granted and two days before the filing 

deadlines. New counsel sought an extension the following day. Because the defendants 

retained counsel within 21 days of entry of the order to withdraw, the concern attached to an 

unrepresented party as acknowledged in Rule 13 does not apply. See Ali v. Jones, 239 Ill. App. 

3d 844, 849 (1993) (noting Rule 13’s concern for continued representation). Although counsel 

complained he could not properly prepare in order to meet the deadlines, the trial court’s denial 

of the defendants’ motions to extend did not implicate their right to representation. We find 

the trial court did not err in denying Gaca and Wayman’s motions to extend.

¶ 23 The second issue on appeal is whether the trial court erred when it entered partial summary 

judgment in favor of Frederick and a permanent injunction against the defendants. Although 

Gaca and Wayman appeal from the order granting relief to Frederick, they make no specific 

arguments regarding either summary judgment or the permanent injunction, except that the 

trial court’s denial of their motion to extend prevented them from responding to the motions 

for partial summary judgment and a permanent injunction. They also argue the court’s ruling 

prevents them from using the property for what they claim is a permitted use and subjects them 

to liability for Frederick’s attorney fees.

¶ 24 An owner or tenant of real property located within 1200 feet of a structure or building in 

violation of local zoning ordinances may file an action to correct the violation where “his 

property or person will be substantially affected by the alleged violation.” 65 ILCS 5/11-13-

15 (West 2018); Bockweg v. Konopiots, 2013 IL App (1st) 121122, ¶ 7. Section 11-13-15 

permits private landowners to bring an action against ordinance violators and affords them 

relief where “ ‘municipal officials are slow or reluctant to act, or where their actions do not 

protect the landowners’ interests.’ ” Ryan v. City of Chicago, 2019 IL App (1st) 181777, ¶ 11 

(quoting Dunlap v. Village of Schaumburg, 394 Ill. App. 3d 629, 638 (2009)).

¶ 25 Summary judgment should be granted only when the pleadings, depositions, admissions 

on file, and affidavits demonstrate there is no genuine issue of material fact and the movant is 

entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). The purpose of 

summary judgment is to determine whether any questions of fact exist. Robertson v. Sky Chefs, 

Inc., 344 Ill. App. 3d 196, 199 (2003). We review a trial court’s grant of summary judgment 

de novo. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004).

¶ 26 The defendants submit that were they allowed to file responses; they would demonstrate 

material issues of fact exist regarding whether the property was being unlawfully operated as 

a boarding house. Gaca maintains that he had lived at the house since January 2020 with two 

others who rented boarding rooms as allowed under section 6-2-15(2) of the Naperville zoning 

ordinance. Naperville Zoning Ordinance § 6-2-15(2) (amended Nov. 7, 2018). The defendants 

further maintain that, prior to January 2020, they rented the house as a shared home as 

permitted under section 6-2-15(1) of the ordinance. Naperville Zoning Ordinance § 6-2-15(1) 
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(amended Nov. 7, 2018). The defendants’ proposed response to the allegations that they 

operated vehicle parking and storage is that the vehicles were ancillary to the use of the house 

and in compliance with section 6-2-20 of the ordinance. Naperville Zoning Ordinance § 6-2-

20 (adopted Jan. 16, 2007).

¶ 27 Gaca and Wayman’s response to Frederick’s motion for partial summary judgment would 

not have prevented entry of the summary judgment order. At the hearing on Frederick’s motion 

for a preliminary injunction, Gaca admitted that he accepted payment from tenants beginning 

in January 2019; six tenants were living there at the time of the hearing and two others had 

previously rented rooms; and each tenant had one vehicle. Gaca further testified that he 

accepted payment for vehicle parking from nontenants. In November 2019, he accepted 

payment for 24 to 26 vehicles that were parked on the property, and there had been other 

vehicles that had been parked and stored there. He acknowledged that he placed ads on 

Craigslist for parking and storage on the property. Wayman acknowledged that six people lived 

in the house and that two others had previously lived there. She admitted there were more than 

15 vehicles on the property, including box trucks that were stored there for several months. 

She was aware that people were paying to park vehicles there. Menichini, the special process 

server, observed between 20 and 23 vehicles on the property, including cars, pickup trucks, 

delivery trucks, and a heavy-duty work truck.

¶ 28 Gaca answered Frederick’s request to admit late, and Wayman never answered; thus, their 

failures to respond constitute judicial admissions. See Ill. S. Ct. R. 216(c) (eff. July 1, 2014) 

(requests to admit that are not timely denied or objected to are deemed admitted); Robertson, 

344 Ill. App. 3d at 199 (when a party fails to respond to a request to admit, the “factual matters 

in the request are deemed judicial admissions which cannot later be controverted by any 

contradictory evidence”). The requests to admit established that Gaca and Wayman operated a 

boarding house, that tenants individually leased rooms on a month-to-month basis with oral 

leases, and that vehicles were parked on the property for payment, including trucks weighing 

over 8000 pounds of curb weight that remained parked during prohibited hours.

¶ 29 The above testimony and admissions demonstrate that no genuine issues of material fact 

exist about whether the defendants were operating a boarding house in violation of the 

Naperville zoning ordinance (counts III, IV). See Naperville Zoning Ordinance §§ 6-2-15(1) 

(amended Nov. 7, 2018), 6-6I-2 (adopted Jan. 21, 1980), 6-6I-3 (adopted Jan. 21, 1980). The 

ordinance defines a boarding house as a building wherein individuals live in separate spaces 

under individual rental agreements with varying lease terms and prohibits their use. Naperville 

Zoning Ordinance §§ 6-1-6 (amended Aug. 20, 2019), 6-2-15 (amended Nov. 7, 2018). In 

addition to Gaca’s and Wayman’s admissions, the exhibits attached to Frederick’s statement 

of material facts included excerpts from a sworn statement of Samantha Flores, a former tenant, 

who stated she lived at the Lisson property on a month-to-month oral lease. An affidavit from 

Ross Quick established that he was a tenant at the property from August 24 to October 4, 2019. 

At that time, six other tenants resided in the house. He slept in the basement, where Gaca was 

in the process of adding a second bedroom. An affidavit from the Naperville code enforcement 

officer offered his opinion that substantial evidence supported that the property was used as a 

boarding house.

¶ 30 Evidence that the defendants operated the property as a parking and storage facility for 

vehicles includes Flores’s sworn statement that while living there, she observed vehicles stored 

on the property, as well as a sign on the mailbox indicating vehicle parking and storage space 
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for rent. Edi Dalazi attested in an affidavit that he sold cars via Facebook, saw and answered 

an advertisement on Craigslist for vehicle storage, and used the Lisson property to store 12 to 

15 cars for which he paid Gaca. Dalazi would meet his customers at the property to allow them 

to test drive the vehicles stored there. Jose Garcia attested in an affidavit that he also answered 

Gaca’s Craigslist ad for vehicle storage and used the property to store two large box trucks and 

one other truck. The box trucks remained stored on the property from April 4, 2019, to October 

29, 2019. He paid between $156 and $225 per month to park and store his vehicles. Attached 

to Garcia’s affidavit were text messages between him and Gaca regarding the parking and 

storage offerings. The messages included photographs of the available space and showed other 

vehicles stored there. Attached to the affidavit of tenant Quick were photographs he took of 

the vehicles parked and stored on the property. The code officer opined in his affidavit that the 

evidence supports a conclusion that Gaca and Wayman used the property for vehicle parking 

and storage. We find this evidence is sufficient to establish that the defendants violated the 

Naperville zoning ordinance by operating a vehicle parking and storage facility (counts V, VI).

¶ 31 Attached to Garcia’s affidavit were vehicle registrations for the two box trucks he stored 

continuously from April to November 2019. The registrations indicate that the trucks weighed 

26,000 pounds each. Also attached were the text messages between Garcia and Gaca that 

demonstrate the vehicles were on the property and remained parked and stored there between 

the hours of 2 and 5 a.m. from April to November 2019 in violation of the Naperville zoning 

ordinance (count VIII). See Naperville Zoning Ordinance, § 6-2-20(2), (2-2.1) (adopted Jan. 

16, 2007) (prohibits the storage of trucks in excess of the allowable weight and at unlawful 

times). The affidavit of Dalazi, the car salesman, established that the defendants violated the 

zoning ordinance by allowing unlicensed vehicles to be parked on the property (count XI). 

Dalazi attested that although all the vehicles he stored on the property were registered, not all 

the vehicles had license plates. See Naperville Zoning Ordinance § 6-2-20(1) (adopted Jan. 16, 

2007) (parking accessory to residential use “shall be used for the parking of properly licensed 

motor vehicles only”). The affidavit of Steve LaPino, a private investigator who surveilled the 

property, attested that he documented cars without license plates leaving and returning to the 

property on several occasions.

¶ 32 The evidence also supports Frederick’s claims that the defendants violated the home 

occupations provisions of the ordinance. Section 6-2-8 of the Naperville zoning ordinance 

prohibits the use of residential property to operate a home-based business with certain 

enumerated exceptions not relevant here. Operation of a vehicle parking and storage facility 

and car sales are not permitted as home occupation uses or exceptions. See Naperville Zoning 

Ordinance § 6-2-8 (adopted Jan. 16, 2007). Dalazi and Garcia attested that they paid to park 

and store vehicles on the property. Dalazi averred that he operated his car sales business from 

the property by meeting potential buyers for test drives. Also contrary to the dictates of the 

ordinance, the parking and storage facility and car sales were not conducted within the dwelling 

unit, no employees lived in the house, and the parking and storage facility and car sales 

business were not subordinate and incidental uses of the residential building.

¶ 33 The pleadings, admissions, and affidavits submitted with Frederick’s motion for partial 

summary judgment and the statement of material fact and accompanying exhibits in support 

of the motion show that there is no genuine issue as to any material fact that Gaca and Wayman 

operated a boarding house and vehicle parking and storage facility on the property in violation 

of the Naperville zoning ordinances. Frederick also established that he lived within 1200 feet 
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of the defendants’ property and was substantially affected by the ordinance violations. See 

Greer v. Illinois Housing Development Authority, 150 Ill. App. 3d 357, 390 (1986), aff’d, 122 

Ill. 2d 462 (1988) (“it is [the] nature of the zoning violation itself that establishes the 

‘substantial effect’ sufficient to *** maintain [the] action”). Accordingly, Frederick was 

entitled to relief. See 65 ILCS 5/11-13-15 (West 2018). We thus find that the trial court did not 

err when it granted partial summary judgment in favor of Frederick on counts III-VI, VIII, and 

XI of his complaint.

¶ 34 We next review the trial court’s grant of a permanent injunction prohibiting the defendants 

from using the property as a boarding house or for the storage and parking of vehicles. Gaca 

and Wayman argue that the improper grant of partial summary judgment against them due to 

the court’s refusal to extend the deadline for their response resulted in entry of the permanent 

injunction against them. In their view, the trial court’s rulings are contrary to principles of 

fairness and justice.

¶ 35 To be entitled to a permanent injunction, the movant must establish (1) he has a clear and 

ascertainable right in need of protection, (2) he will suffer irreparable harm if the injunction 

does not issue, and (3) there exists no adequate remedy at law. New Light Cemetery Ass’n v. 

Baumhardt, 373 Ill. App. 3d 1013, 1018 (2007). This court will not reverse a trial court’s order 

granting a permanent injunction unless it is against the manifest weight of the evidence. 

Vaughn v. City of Carbondale, 2016 IL 119181, ¶ 22.

¶ 36 Frederick demonstrated that he has a clear and ascertainable right in need of protection. 

Per Gaca’s and Wayman’s admissions, prior to January 2020, six or seven unrelated 

individuals rented rooms from the defendants with individual, oral, month-to-month leases, 

and Gaca accepted payment from one online car dealer and several truck owners allowing them 

to park vehicles of various kinds on the property. Gaca advertised for rooms at the house and 

for parking and storage space on the property. Frederick was statutorily authorized to bring an 

action for the defendants’ ordinance violations to protect his property. See 65 ILCS 5/11-13-

15 (West 2018).

¶ 37 Frederick established that he will suffer harm if the injunction does not issue. Gaca and 

Wayman continued to operate the property as a boarding house and vehicle parking and storage 

facility after admitting to the ordinance violations. They attempted to claim the house was now 

occupied by Gaca as owner and two individuals to whom he rented boarding rooms, which 

they claim was a lawful use under the zoning ordinance. This conduct suggests that the 

defendants will continue to use the property, including renting rooms, based on an incorrect 

interpretation of the zoning ordinances. Additionally, Gaca and Wayman have complained that 

the injunction prevents them from using the property as they deem appropriate, again based on 

their interpretation of the zoning ordinance, which also suggests that they plan to continue to 

unlawfully use the property.

¶ 38 Lastly, there exists no adequate remedy at law. The statute itself does not provide monetary 

relief but rather allows for injunctive relief. As evidenced by the defendants’ transformation of 

the boarding or “shared” house to an owner/occupied residence with merely two boarders 

renting rooms, it seems likely the defendants will continue to operate the property based on an 

incorrect interpretation of the zoning ordinances. The harm of likely repeated violations makes 

damages “difficult or impossible” to measure. No available remedy would relieve Frederick of 

the defendants’ wrongful use of the property neighboring his property. The trial court did not 
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err when it granted Frederick’s request for a permanent injunction prohibiting the defendants 

from operating a boarding house or vehicle parking and storage facility.

¶ 39 The last issue is whether the defendants were denied due process. Gaca and Wayman argue 

they were denied notice and opportunities to respond and be heard when the court failed to 

extend the deadlines. According to the defendants, they were unable to timely respond to 

Frederick’s partial summary judgment motion, the court ruled against them, and the ruling 

prevents them from using the property as they wish and in accordance with the zoning 

ordinance.

¶ 40 Procedural due process affords a party notice and an opportunity to respond and to be heard. 

Gold Realty Group Corp. v. Kismet Café, Inc., 358 Ill. App. 3d 675, 681 (2005). “The parties 

have a right to be heard when their rights are affected, and in order to enjoy that right they 

must first be notified.” In re Estate of Gustafson, 268 Ill. App. 3d 404, 409 (1994). We review 

a claim of a due process violation de novo. Sudzus v. Department of Employment Security, 393 

Ill. App. 3d 814, 824 (2009).

¶ 41 We reject the defendants’ assertion that they were denied due process. The court entered 

an agreed scheduling order on December 5, 2019, which provided that Frederick would file his 

second motion for partial summary judgment by December 20, 2019, the defendants would 

respond by January 31, 2020, and the motion would be heard on February 26, 2020. Frederick 

filed his second motion for partial summary judgment on December 20, 2019, and provided 

notice of the motion via e-mail and regular mail to defense counsel and substitute counsel. The 

defendants, however, did not comply with the deadlines but rather sought unsuccessfully to 

extend them. This court does not equate Gaca and Wayman’s failure to timely respond with a 

lack of opportunity to respond. We find there was no due process violation.

¶ 42 CONCLUSION

¶ 43 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 44 Affirmed.