Egidi v. Town of Libertyville

• Decision Date: 06 September 1991
• Docket Number: No. 2-90-1283,2-90-1283
• Citation: 161 Ill.Dec. 654,218 Ill.App.3d 596,578 N.E.2d 1300
• Parties: , 161 Ill.Dec. 654 Mario R. EGIDI, Plaintiff-Appellee, v. The TOWN OF LIBERTYVILLE, Defendant-Appellant (Bank of Highland Park, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 1300

578 N.E.2d 1300

218 Ill.App.3d 596, 161 Ill.Dec. 654

Mario R. EGIDI, Plaintiff-Appellee, v. The TOWN OF LIBERTYVILLE, Defendant-Appellant (Bank of Highland Park, Defendant-Appellee).

No. 2-90-1283.

Appellate Court of Illinois,

Second District.

Sept. 6, 1991.

Siemon, Larsen, & Purdy, Gerald P. Callaghan (argued), James N. Azim, III, Chicago, for The Town of Libertyville.

James T. Magee (argued), Magee, Negele & Associates, Round Lake, for Mario R. Egidi.

Neal, Gerber, Eisenberg & Lurie, Robert Radasevich (argued), Martin B. Carroll, Chicago, for Bank of Highland Park.

Mayer, Brown & Platt, Chicago, Michele Odorizzi, George A. Ranney, Jr., for Open

Lands Project, Nature Conservancy, Gaylord and Dorothy Donnelley, Marshall Field.

Justice BOWMAN delivered the opinion of the court:

This is the second time this matter has come before us. Plaintiff, Egidi, brought the action as a taxpayer's suit against defendants, Town of Libertyville (Libertyville or Township) and Bank of Highland Park (Bank), challenging the Township's acquisition of land from the Bank. The Township appeals from an order which granted summary judgment in favor of Egidi and ordered rescission of the sale, conveyance of the land back to the Bank, and refund of the purchase price to Libertyville. The Bank did not appeal the order but submitted a brief as a defendant-appellee. Accordingly, throughout this disposition reference will be made to only one defendant, i.e., Town of Libertyville. Also, we have allowed the filing of an amicus curiae brief in support of the Township. The amici are the Open Lands Project, Nature Conservancy, and other parties interested in open space and environmental issues.

The factual background of this dispute is set forth in detail in the earlier case, Egidi v. Town of Libertyville (1989), 181 Ill.App.3d 542, 130 Ill.Dec. 302, 537 N.E.2d 369 (Egidi I ), and will be repeated here only to the extent necessary to resolve the issues.

Libertyville purchased the vacant land at issue pursuant to the Township Open Space Act (Act) (Ill.Rev.Stat.1987, ch. 139, par. 321 et seq.). In both Egidi I and this case plaintiff challenged the authority of the Township to purchase the property. In both instances plaintiff argued that the amount of acreage involved did not meet the requirements of the Act. Specifically, the Act authorizes the purchase of open land by a township but, in section 2(b), defines open land as "any space or area of land or water of an area of 50 acres or more, the preservation or the restriction of development or use of which would" preserve or foster various specified goals (Ill.Rev.Stat.1987, ch. 139, par. 322(b)). While Libertyville purchased a total of 50.6771 acres from the Bank, the property is bisected, across its far southeast corner, by a 270-foot-wide Commonwealth Edison right-of-way. Accordingly, the land purchased by Libertyville actually lies on either side of the right-of-way, and neither side contains 50 acres. There are approximately 49.5 acres to the north of the Commonwealth Edison property and approximately 1.25 acres to the south.

In Egidi I, based on what appeared to be a total lack of connection between them, we found that the two parcels did not adjoin or abut each other. Since we were considering the status of the parcels under the Township Open Space Act we also found it irrelevant that, under Illinois law, they might be considered contiguous for annexation purposes, as urged by Libertyville. (See Ill.Rev.Stat.1987, ch. 24, par. 7-1-1.) We noted that the Act defines open land as " 'an area of land or water of an area of 50 acres or more' " (emphasis in original) (Egidi, 181 Ill.App.3d at 545, 130 Ill.Dec. 302, 537 N.E.2d 369) and held that the two parcels, physically separated and separately owned, did not constitute "an area of land" as the phrase is used in the Act. Consequently, Libertyville had not complied with the Act's acreage requirement.

In this case the parties again dispute whether the land meets the statutory acreage requirement. However, this time Libertyville contended in the trial court that when it purchased the property from the Bank it acquired not only the acreage in fee simple but also two easements over the Commonwealth Edison right-of-way. Defendant argued that these combined interests constituted a purchase of "open land" consistent with the Act. The lower court rejected Libertyville's argument and found that the two parcels were separate areas of land which did not abut or adjoin each other and that the easements did not provide ownership or control over an area of at least 50 acres. Essentially, the court concluded that the property sought by the Township was not "open land" as defined in section 2(b) of the Act. The Township claims that the trial court erred in its findings and, therefore, improperly granted Egidi's motion for summary judgment.

Summary judgment is proper when there remain no genuine issues of fact and the movant is entitled to judgment as a matter of law. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill.2d 229, 233-34, 151 Ill.Dec. 323, 564 N.E.2d 778.) However, summary judgment is a drastic means of ending litigation and should be granted only when the right of the moving party is clear and free from doubt. (Logan, 139 Ill.2d at 233, 151 Ill.Dec. 323, 564 N.E.2d 778.) These principles guide our inquiry.

The Township initially attacks the sufficiency of plaintiff's complaint, asserting that the complaint does not state a taxpayer's cause of action because it does not allege that plaintiff is a taxpayer in Libertyville Township. It is beyond dispute that the plaintiff in a taxpayer's action must allege that he is a taxpayer of the public body on whose behalf the suit is brought. (Lynch v. Devine (1977), 45 Ill.App.3d 743, 749, 4 Ill.Dec. 185, 359 N.E.2d 1137.) Egidi's complaint does not specifically state that he is a taxpayer in Libertyville Township. But it does allege that he resides in the Township and owns real estate situated in the Township. The real estate is identified by both its street address and its permanent real estate index number. As the owner of real property, Egidi was obligated to pay the real estate taxes on that property. Plaintiff also alleged that he brought this action "on behalf of all taxpayers and residents" of the Township, clearly including himself as both a taxpayer and a resident. In our view the allegations of plaintiff's complaint sufficiently assert his status as a taxpayer.

Defendant further insists that plaintiff's complaint is inadequate because it fails to allege that harm has occurred to the public as a result of defendant's conduct. It is well established that a taxpayer's suit requires an allegation that the public has suffered injury. (Village of Leland ex rel. Brouwer v. Leland Community School District No. 1 (1989), 183 Ill.App.3d 876, 879, 132 Ill.Dec. 187, 539 N.E.2d 750; Western Lion Limited v. City of Mattoon (1984), 123 Ill.App.3d 381, 386, 78 Ill.Dec. 772, 462 N.E.2d 891.) The complaint claims that the Township spent $480,000 in Township funds for the purchase of the land; that the Township did not have the authority to acquire the property; that the Township purchase was an illegal and void act; and that the Township's conduct resulted in misappropriation and wrongful expenditure of Township funds.

Taxpayers have an equitable right to sue to protect their interests in public funds. (Feen v. Ray (1985), 109 Ill.2d 339, 344, 93 Ill.Dec. 794, 487 N.E.2d 619.) The right of a taxpayer to bring suit is based upon misappropriation of general public funds and flows from the proposition that the taxpayer has equitable ownership of the funds and is liable to replenish the treasury in the event of misappropriation. (Price v. City of Mattoon (1936), 364 Ill. 512, 514, 4 N.E.2d 850; Lynch, 45 Ill.App.3d at 749, 4 Ill.Dec. 185, 359 N.E.2d 1137.) Viewed in light of these principles, we think Egidi's allegation of injury is sufficient to withstand defendant's attack. Specifically, plaintiff identified the injury as the wrongful expenditure of plaintiff's funds to acquire real estate. Since it is tax revenue that is of concern here (see Ill.Rev.Stat.1987, ch. 139, pars. 323, 325), misappropriation and wrongful expenditure of that revenue are direct and blatant assaults on the taxpayers. Under the Act tax liability is created and attaches to township funds. The taxpayers furnish the money in the first place and must replace it if necessary. The taxpayers' injury is the misuse and potential loss of their tax money. We find the complaint sustainable.

The Township next launches several attacks on Egidi's standing to sue, all of which, according to Egidi, have been waived by defendant's failure to raise them properly in the trial court or during the first appeal of this case. Our review of the record persuades us that the standing issues were sufficiently set forth below to preserve them for this appeal. Furthermore, it was not necessary for defendant to raise standing the first time the case came before this court because plaintiff there appealed from an order granting the Township's section 2-619 (Ill.Rev.Stat.1987, ch. 110, par. 2-619) motion to dismiss. In relevant part the motion, which was intended to defeat plaintiff's claim at the outset, asserted only Libertyville's compliance with the Act. At the time the motion was filed there had been no discovery, and no answer had been filed. In the absence of adequate supporting information, defendant was not required to put forth its standing challenge. Consequently, Libertyville's silence on the issue in the first appeal has no effect on its right to question plaintiff's standing in this appeal.

Libertyville's first standing argument is that, once an acquisition of land by a municipal corporation is completed, an individual, even though he is a taxpayer, does not have a sufficient interest in the matter to allow him to...