CBS Outdoor, Inc. v. Village of Itasca

• Decision Date: 09 November 2011
• Docket Number: No. 2–10–1117.,2–10–1117.
• Citation: 2011 IL App (2d) 101117,356 Ill.Dec. 89,960 N.E.2d 1212
• Parties: CBS OUTDOOR, INC., Plaintiff–Appellant, v. The VILLAGE OF ITASCA and Wayne Hummer Trust Company, N.A., as Trustee Under a Trust Agreement Dated April 16, 2007, and Known as Trust BEV 2384, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 101117
356 Ill.Dec. 89
960 N.E.2d 1212

CBS OUTDOOR, INC., Plaintiff–Appellant,
v.
The VILLAGE OF ITASCA and Wayne Hummer Trust Company, N.A., as Trustee Under a Trust Agreement Dated April 16, 2007, and Known as Trust BEV 2384, Defendants–Appellees.

No. 2–10–1117.

Appellate Court of Illinois, Second District.

Nov. 9, 2011.

[960 N.E.2d 1213]

Robert J. Weber, Law Offices of Robert J. Weber, Chicago, for CBS Outdoor, Inc.

David J. Letvin, Letvin & Stein, Chicago, for Wayne Hummer Trust Company, N.A.

Charles E. Hervas, Rebecca J. Ketchie, Hervas, Condon & Bersani, P.C., Itasca, for Village of Itasca.OPINION Justice McLAREN delivered the judgment of the court, with opinion.

[356 Ill.Dec. 90] ¶ 1 Plaintiff, CBS Outdoor, Inc., appeals from the trial court's dismissal of its second amended complaint. We affirm and remand.

¶ 2 I. BACKGROUND

¶ 3 Since 1982, CBS (or its predecessors) has leased a portion of the property at 865 W. Irving Park Road in Itasca for a billboard. Defendant Wayne Hummer Trust Company (the Trust) is the current owner of the property. In 1983, defendant the Village of Itasca enacted an ordinance rezoning the property from B–3 to B–3 with a special use as a planned development. As conditions of the enactment of that ordinance, Itasca required the then-owner of the property to cancel its lease with the then-owner of the billboard and remove the billboard by June 12, 1992. Neither condition was met.

¶ 4 On April 30, 1998, a 10–year lease was signed allowing maintenance of the billboard on the property until May 31, 2008. The tenant billboard owner was given the right to continue in possession after May 31, 2008, for one-year terms, provided that the property owner did not serve a notice of termination at least 90 days before the end of a term. Shortly thereafter, [356 Ill.Dec. 91]

[960 N.E.2d 1214]

by a series of mergers, CBS became owner of the billboard.

¶ 5 In 2003, a new property owner, TST/Impreso (TST), requested that Itasca amend the planned development to add an addition to the existing building on the property. TST agreed to terminate the billboard lease on May 31, 2008 (the end of its term), and agreed to refrain from entering into any other lease concerning the use or maintenance of a billboard on the property. TST was also to cause the existing billboard to be removed by June 30, 2008. For each month after that date that the billboard remained on the property, TST was to pay damages to Itasca in the amount of 90% of the monthly rental that it received for the billboard or, if no lease existed, $2,250 per month.

¶ 6 The Trust contracted to buy the property from TST in June 2007, contingent on Itasca's grant of a special use allowing the Trust's anticipated tenant to use the building on the property for an office, warehouse, and sales area for floor and wall coverings. On July 24, 2007, Itasca enacted ordinance No. 1395–07 (Itasca Zoning Ordinance No. 1395–07 (approved July 24, 2007)) amending the planned development, including a provision requiring removal of the billboard by June 30, 2008. The Trust acquired the property on August 30, 2007, and entered into a lease of the property with Mr. David's Carpet Service, subject to CBS's rights under the 1998 lease. In September 2007, the Trust served CBS with notice of termination of that lease; the lease then expired on its own terms on May 31, 2008. While the Trust has asked that CBS remove the billboard, the sign remains standing on the property.

¶ 7 CBS filed a complaint for declaratory judgment and injunctive relief in the circuit court of Cook County on July 9, 2008. The case was removed to the United States District Court for the Northern District of Illinois, where CBS filed an amended complaint. The federal court remanded to Cook County the state issues and stayed proceedings on the federal issues, pending resolution of the state claims.

¶ 8 CBS then filed a five-count second amended complaint in Cook County; count I sought declaratory judgment that the removal provisions of the ordinance were invalid and unenforceable. Counts II and III alleged violations of its rights to substantive due process (II) and equal protection (III) under the Illinois Constitution. Count IV alleged violation of its federal civil rights, and count V alleged violation of the Eminent Domain Act (Act) 735 ILCS 30/1–1–1 et seq. (West 2006). The cause was then transferred to the circuit court of Du Page County.

¶ 9 Itasca filed a combined motion to dismiss pursuant to section 2–619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619.1 (West 2006)). Itasca argued that the trial court should dismiss under section 2–615 of the Code: (1) counts I through III, because they were “time-barred”; (2) counts I through III and V, because CBS lacked standing; (3) in the alternative, counts I and II, because CBS failed to allege sufficient facts “to overcome the presumptive validity of the challenged ordinances”; and (4) count III, because CBS failed to allege a cause of action for an equal protection violation under the Illinois Constitution. Itasca also argued that CBS's federal claims in count IV should be dismissed pursuant to section 2–619 of the Code.

¶ 10 CBS then filed a response to the motion to dismiss and included requests to strike various exhibits attached to the motion to dismiss. On May 17, 2010, during argument on the motion to strike, the trial court explained to Itasca:

[960 N.E.2d 1215]

[356 Ill.Dec. 92] “[Y]ou've got a 2–615 motion to dismiss under the first four counts of the complaint and you've attached a whole bunch of other documents. And I say in regard to all of this, I kept saying why is this not 2–619. Why is this not 2–619? I'm going on and on and on, and I'm looking at the cases and your cases don't give me any reason why it isn't. You have maybe an appropriate 2–619 motion to dismiss on a [ sic ] affirmative matters, and you're welcome to file a 2–619 motion to dismiss if you deem that appropriate. But a 2–615, I'm going to grant unless you've got something, some wizardry thing you're going to hit to me in the next minute here, I'm going to grant their [ sic ] motion to strike the various exhibits that you have attached to it, because I don't have any basis looking at those on a 2–615.

* * *

So I'm going to grant the motion to strike the exhibits that was prepared in regard to same. With the striking of those exhibits, I am striking without prejudice the 2–615 aspects of your motion to dismiss Counts 1 through 4 [ sic ] for you to replead and amend a motion to dismiss as you deem appropriate on a 2–619.1 which combines 15 and 19 or separately or however you want to do it in regard to same.”

The court's written order of that date states, “The motion to strike exhibits of CBS Outdoor is granted. The Village of Itasca shall file an amended motion to dismiss and memo of law on or before June 18, 2010.” While Itasca filed a “Revised Memorandum of Law in Support of Combined Motion to Dismiss” on June 17, adding an argument regarding section 2–619 and CBS's lack of standing on counts I through III and V, the record does not contain a new motion to dismiss or even a notice of filing an amended motion.

¶ 11 Nevertheless, on October 6, 2010, the trial court ruled on a motion to dismiss. The court dismissed counts I through III and V with prejudice, finding that counts I through III were time-barred pursuant to section 11–13–25(a) of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11–13–25(a) (West 2006)) and that CBS lacked standing to bring a claim under the Act (735 ILCS 30/1–1–1 et seq. (West 2006)) in count V. Count IV was “removed back” to federal court. This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 We must first address the muddled procedural aspect of this case. The trial court clearly struck “the 2–615 aspects” of Itasca's combined motion to dismiss and ordered Itasca to “file an amended motion to dismiss and memo of law.” While Itasca filed a revised memorandum of law, the record does not contain an amended motion to dismiss....