Creek v. Village of Westhaven, 95-1465

• Citation: 80 F.3d 186
• Decision Date: 26 April 1996
• Docket Number: No. 95-1465,95-1465
• Parties: J. Fred CREEK, Plaintiff-Appellant, v. VILLAGE OF WESTHAVEN, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 186

80 F.3d 186

J. Fred CREEK, Plaintiff-Appellant, v. VILLAGE OF WESTHAVEN, et al., Defendants-Appellees.

No. 95-1465.

United States Court of Appeals Seventh Circuit.

Argued Nov. 7, 1995.

Decided March 19, 1996.

Rehearing Denied April 26, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 1851--Ann Claire Williams, Judge.

Warren S. Radler, Steven R. Merican (argued), Rivkin, Radler & Kremer, Chicago, IL, for J. Fred Creek.

Charles E. Hervas (argued), James G. Sotos, Michael W. Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, Burton S. Odelson, Mark H. Sterk, Odelson & Sterk, Evergreen Park, IL, James J. Roche, Roche & Associates, Chicago, IL, for Village of Westhaven.

Charles E. Hervas, James G. Sotos, Michael W. Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, Burton S. Odelson, Mark H. Sterk, Odelson & Sterk, Evergreen Park, IL, for James P. O'Brien, Lorin Schab, James Graves, James Surdyk, William Rulien, Charles Kidd, Patrick Burke, Eric Conors, Daniel Majewski, Barry Jones, Charles Thompson.

Russell J. Hoover, Jenner & Block, Chicago, IL, Hugh C. Griffin, Richard F. Johnson, Daniel J. Zollner (argued), Leslie J. Rosen, Lord, Bissell & Brook, Chicago, IL, for Village of Orland Park.

Richard T. Wimmer, Dennis G. Walsh, (argued), Klein, Thorpe & Jenkins, Chicago, IL, Edward A. McCarthy, Matyas & Norris, Chicago, IL, for Orland Park School Dist. No. 135.

Hugh C. Griffin, Richard F. Johnson, Daniel J. Zollner, Leslie J. Rosen, Lord, Bissell & Brook, Chicago, IL, for Orland Fire Protection Dist.

Charles E. Hervas, James G. Sotos, Michael W. Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, Mark H. Sterk, Odelson & Sterk, Evergreen Park, IL, for John Arenz, Gregory Wachowiak, Joan Frisk, Merril Singleterry, Rod Ohlrogge.

Before POSNER, Chief Judge, COFFEY, Circuit Judge, and SKINNER, District Judge. ^*

POSNER, Chief Judge.

The plaintiff in this unfortunately protracted, thirteen-year-old civil rights suit appeals from the dismissal of the suit on summary judgment. The parties have showered us with 198 pages of briefs, but the essential facts, duly simplified, and the legal issues, can be stated briefly. Creek, the plaintiff, is a real estate developer who wanted to build a 216-unit apartment complex in the Village of Westhaven, Illinois. Westhaven, now known as "Orland Hills," is an all-white suburb of Chicago. Creek needed a permit from the Village in order to proceed. All was going swimmingly--the Village was eager for the development--until January 9, 1979, when the Village learned that Creek was asking the U.S. Department of Housing and Urban Development for federal rent support for 40 percent of the units. Creek contends--we must assume for purposes of this appeal correctly--that the Village, knowing that rent support would make the development attractive to black people and wishing to keep Westhaven white, determined to prevent Creek from going forward with the development. So it denied him the permit on pretextual grounds.

Creek sued in Illinois state court on August 29, 1979, for an injunction against the Village's withholding the permit. The court issued the injunction on April 14, 1980. This was a final judgment, terminating Creek's suit. The Village neither complied with the judgment nor appealed it. A month later the Westhaven Homeowners Association, acting in cahoots with the Village to block Creek's development, sued HUD in federal district court to invalidate HUD's approval of rent support for Creek's development. Creek returned to state court to seek enforcement of the injunction against the Village. On August 28, 1980, the court entered a consent order directing the Village to issue the permit and requiring the Homeowners Association, although it was not a party to the state court suit, to drop the federal suit. Which it did. But the Village defied the consent order by not issuing the permit. Shortly afterward, the defendants, who include not only the Village but also other municipal corporations and a variety of local officials, began what the parties describe as a "letter-writing campaign" but is better described as a far-reaching, concerted effort to enlist the efforts of state and federal officials to prevent Creek from building a rent-supported apartment complex in Westhaven. The motive, we assume for purposes of deciding this appeal, was racial.

On July 1, 1980, Creek had transferred his interest in the development to Pheasant Ridge Venture, a limited partnership in which he retained a 90 percent share as sole general partner, thus giving up 10 percent of his interest. He claims that he was forced to do this by the delays brought about by the defendants' unlawful behavior. A couple of months later Pheasant Ridge Venture transferred its interest to a joint venture with Shell Development Corporation. The joint venture, called PRV/Shell, reapplied for rent support, finally obtaining the necessary financial commitments in March 1983. Construction of the apartment complex was begun then and completed sometime before the end of 1993 (the record is unclear exactly when). PRV/Shell was permitted to intervene as a plaintiff in Creek's federal suit and eventually settled its claims for $1 million, out of which Creek, by virtue of his interest in the partnership, received some $136,000. The settlement agreement reserved "the individual claims not asserted or which later may be asserted by J. Fred Creek."

Creek contends that the complex as eventually built was smaller than it would have been but for the defendants' conduct (only 176 units) and less profitable. He seeks by way of damages the difference between the financial benefits that would have accrued to him had the defendants not delayed the project and the more modest though not negligible benefits that did accrue to him. He claims that the reduction in the size and profitability of the venture reflected, in part, changes in federal law. But he cannot recover damages for any lost profit that is due to those changes even if, as he also argues, he would have gotten the project under way before the changes went into effect had it not been for delay caused by the defendants' unlawful acts. Causation in the law is not to be equated to "but for" causation. E.g., Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir.1995); United States v. Marlatt, 24 F.3d 1005, 1007 (7th Cir.1994); Brackett v. Peters, 11 F.3d 78, 82 (7th Cir.1993). The delays did not make it more likely that federal law would change adversely to Creek. Therefore those changes cannot be deemed "caused" by the defendants, because, to count as a cause, an act must both be a necessary condition (but-for cause) of the result and make the result antecedently more likely to occur. Id. at 82; United States v.1990 Toyota 4Runner, 9 F.3d 651, 652 (7th Cir.1993). Creek's claim for damages caused by the changes in law would have merit, therefore, only if a delay in the project was itself a cause of legal changes adverse to him. For in that case the delay would have made it more likely that Creek would be harmed by changes in the law; it would not have been just a necessary condition, a but-for cause, of that harm.

The district judge, however, did not merely throw out part of Creek's damages claim; she threw out Creek's entire suit. The ground was res judicata. The district judge believed that Creek's only viable claim was the claim that he had asserted in the state court suit filed in 1979. That suit had been concluded by the entry of a final judgment on April 14 of the following year. Creek had actually requested damages in that suit, though he later abandoned that request. Neither the request for damages nor its abandonment has any significance to the issue of res judicata. You cannot split a claim into a request for damages and a request for injunction and litigate each in a separate suit. Torres v. Rebarchak, 814 F.2d 1219, 1224 (7th Cir.1987); Meyers v. Kissner, 217 Ill.App.3d 136, 160 Ill.Dec. 140, 146, 576 N.E.2d 1094, 1100 (1991), rev'd on other grounds, 149 Ill.2d 1, 171 Ill.Dec. 484, 594 N.E.2d 336 (1992); Restatement (Second) of Judgments § 24(1) and comment a (1982). To divide a claim in that way is precisely the vice against which the doctrine of res judicata, in its sense of claim preclusion (as distinct from issue preclusion, or in an older terminology collateral estoppel) is directed.

But that is provided that you can obtain both forms of relief in one suit. If, when the claim arises, the amount of damages cannot be quantified, then you can delay bringing your suit for damages until they can be quantified. E.g., Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 271 (7th Cir.1984); Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 669 F.2d 490, 494 (7th Cir.1982); Meekins v. United Transportation Union, 946 F.2d 1054, 1058 (4th Cir.1991). We cannot find an Illinois case that says this in so many words, and it is Illinois law that determines the preclusive effect, in this federal suit, of an Illinois judgment. 28 U.S.C. § 1738. There is even some old law in Illinois to the effect that the plaintiff in a suit for breach of an employment contract cannot sue more than once and therefore must wait until the term of the contract expires before he can sue if until then his full damages would be speculative. Doherty v. Schipper & Block, 250 Ill. 128, 95 N.E. 74, 76 (1911); Lewis v. Loyola University, 149 Ill.App.3d 88, 102 Ill.Dec. 425, 430, 500 N.E.2d 47, 52 (1986). The current validity of the rule is open to question, however, see Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119, 122 (7th Cir.1981), and there is no indication that the Illinois courts would extend it beyond the employment setting. We have even found an Illinois case in which res judicata is said not to apply in the case of a continuing or recurrent wrong, Airtite v....