Heider v. Leewards Creative Crafts, Inc.

• Citation: 245 Ill.App.3d 258,613 N.E.2d 805,184 Ill.Dec. 488
• Decision Date: 14 May 1993
• Docket Number: Nos. 2-92-0812,2-92-1002,s. 2-92-0812
• Parties: , 184 Ill.Dec. 488 Ronald HEIDER, Plaintiff-Appellant and Cross-Appellee, v. LEEWARDS CREATIVE CRAFTS, INC., Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 805

613 N.E.2d 805

245 Ill.App.3d 258, 184 Ill.Dec. 488

Ronald HEIDER, Plaintiff-Appellant and Cross-Appellee, v. LEEWARDS CREATIVE CRAFTS, INC., Defendant-Appellee and Cross-Appellant.

Nos. 2-92-0812, 2-92-1002.

Appellate Court of Illinois,

Second District.

May 14, 1993.

Cooney & Conway, William R. Fahey, Chicago, Ness, Motley, Loadhold, Richardson & Poole, J. Anderson Berly, Edward J. Westbrook and Robert M. Turkewitz (argued), Charleston, SC, for Ronald L. Heider.

Skadden, Arps, Slater, Meagher & Flom, John P. Buckley (argued), Deborah G. Lava and Lawrence Oliver, Chicago, for Lee Wards Creative Crafts Inc.

Justice BOWMAN delivered the opinion of the court:

Both parties appeal from the trial court's rulings on the sufficiency of the third amended complaint of plaintiff, Ronald Heider (Heider). Counts I, II, and III purport to allege common-law fraud, a Restatement (Second) of Torts § 353 (1965) violation, and tortious interference, respectively, arising from plaintiff's purchase of a warehouse that contains asbestos insulation from defendant, Leewards Creative Crafts, Inc. (Leewards). On June 16, 1992, the trial court dismissed counts I and III with prejudice and denied defendant's motion to dismiss count II. This court consolidated defendant's cross-appeal with respect to count II with plaintiff's appeal of the dismissal of counts I and III. At issue is the sufficiency of all three counts of plaintiff's third amended complaint. We affirm in part and reverse in part.

FACTS ALLEGING FRAUDULENT MISREPRESENTATION AND CONCEALMENT

We will first address the issues raised in this appeal. According to the record, defendant offered the warehouse at 840 North State Street, Elgin, for sale in 1984. Defendant maintained a store with parking In July 1985, a second meeting was held between plaintiff, Mura, and the defendant's agents. At this meeting, one of defendant's agents informed plaintiff and Mura that they had checked with defendant and that the material on the columns and beams was "not a problem."

[184 Ill.Dec. 492] near the warehouse on the same property. In December 1984, plaintiff and his real estate agent, Romeo E. Mura, toured the warehouse with Leewards' real estate agents. Mura inquired about the condition of the building, including the overall condition of the roof, the age and condition of the boiler, and the amount of electrical power. Mura also inquired about the nature of the material on the columns and beams in the warehouse, because the material was somewhat unusual in appearance and appeared to be in a deteriorated condition. Defendant's real estate agent told Mura that they would have to ask defendant for some of the information, including the nature of the material on the columns. During his inspection, plaintiff also asked defendant's agents whether there was anything else about the condition of the building that he should know before deciding whether [245 Ill.App.3d 262] to make an offer. The real estate agents told him that they were not aware of anything. On March 6, 1985, plaintiff sent a letter of intent to purchase the warehouse to Mura.

In August 1985, defendant was sold by General Mills, Inc., to Munford, Inc. (Munford). Munford's administrative vice-president, Mr. Jay Rubel, took over the negotiations on behalf of defendant for the sale of the building. Rubel toured the warehouse. He asked if the material on the columns contained asbestos and was informed that it did. Rubel was then informed by defendant about an October 6, 1980, asbestos report, and shown a copy of the report. The report was an intracompany memo from General Mills to defendant which was based on an analysis by General Mills of the material on the columns and beams. The analysis of the material showed a content of 8%-10% chrysotile asbestos. Additionally, air-monitoring analyses had been done inside the warehouse and the report revealed that the levels of airborne asbestos were very low compared to the Occupational Health and Safety Administration (OSHA) standard. According to the report, no significant adverse health effects would be expected among employees working in the warehouse. In that correspondence General Mills specifically recommended, in order to ensure that the airborne asbestos concentrations remained low, that all columns covered with asbestos-containing material be enclosed. In addition, General Mills recommended that employees working in the warehouse should be trained to prevent accidental dislodging of the insulation.

Upon learning of the existence of the asbestos report, Rubel inquired of an in-house lawyer whether defendant had a legal obligation to disclose the fact that asbestos was on the columns. He was told it had no such legal obligation. In addition, in his third amended complaint, plaintiff alleged that Rubel inquired of senior corporate officials whether the existence of the report should be revealed to plaintiff. Plaintiff alleged that Rubel was advised that neither the report nor the presence of asbestos should be made known to plaintiff.

The contract of sale was signed December 11, 1985. Before closing, plaintiff met with Rubel and asked if there was anything about the condition of the building that he should know before continuing with the process of the purchase of the building. Rubel did not inform plaintiff about the presence of asbestos on the columns and beams or about the existence of the General Mills report. He failed also to mention the recommendation of remedial measures and education of employees as to the treatment of the asbestos insulation. The closing was conducted on June 16, 1986.

Plaintiff first learned of the presence of asbestos in April 1988, after scientific analysis was performed on the material. Shortly thereafter, plaintiff contacted Rubel and inquired about the problem. Rubel acknowledged the existence of the asbestos, informed plaintiff of the report, and indicated his impression that the asbestos, if left undisturbed, would cause no problem.

FACTS ALLEGING TORTIOUS INTERFERENCE

On September 11, 1985, in conjunction with plaintiff's negotiations to buy the warehouse, Rubel wrote plaintiff affirming that defendant would "have no objection to additional retail space being developed within the property as long as it [was] non-competitive."

In May 1990, plaintiff entered into a contract with Thornton Oil Corporation (Thornton) to sell it a parcel of the property on which plaintiff's warehouse and the defendant's store are located. After defendant sold the property to plaintiff, defendant continued to maintain its store by leasing the space back from plaintiff. The contract plaintiff and Thornton entered into was contingent on several conditions, one of which was that the buyer had to receive governmental authorization, permits, and/or approvals required for the buyer's intended uses.

On November 5, 1990, the land use committee of the Planning and Land Use Commission of the City of Elgin unanimously approved a proposal presented by plaintiff and Thornton for plaintiff to sell the southern part of plaintiff's property to Thornton for use as a gas station/convenience store. A zoning variance was necessary to permit the use of the land for this purpose. The matter then proceeded to the Elgin city council.

Defendant was not notified or consulted by plaintiff regarding the planned development. Defendant became aware of the petition for a zoning variance only after the land use committee had met. Defendant voiced its opposition to the variance in a letter from its president and chief executive officer, John Popple, to the City of Elgin. Defendant opposed the variance because the proposed use would (1) interfere with defendant's store's parking which was located on the property; (2) restrict visibility of defendant's store; and (3) aggravate traffic patterns and make the entrance and exit to the parking lot more hazardous. Plaintiff alleges that defendant, through Popple, "wilfully and maliciously interfered with plaintiff's contemplated transaction with Thornton Oil Company by utilizing the input and influence of Mr. Popple's wife, Mrs. Cheryl Popple, an Elgin City Council member, to generate opposition to plaintiff's zoning request."

After listening to argument in opposition, the Elgin city council denied the proposed variance. By the terms of plaintiff's contract, the deal with Thornton fell through.

Plaintiff filed his third amended complaint. Defendant filed motions to dismiss counts I, II, and III of the plaintiff's third amended complaint, pursuant to section 2-615 of the Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-615.) On June 16, 1992, the trial court granted defendant's motions to dismiss counts I and III with prejudice and denied defendant's motion to dismiss count II but certified the question under Illinois Supreme Court Rule 308 (134 Ill.2d R. 308). Plaintiff timely filed a notice of appeal regarding the trial court's dismissal of counts I and III. This court granted defendant's application for leave to appeal the ruling on count II and consolidated the appeal and the cross-appeal.

A complaint must be sufficient legally in order to state a cause of action. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill.App.3d 154, 160, 109 Ill.Dec. 541, 510 N.E.2d 409.) Upon a motion to dismiss, all facts properly pleaded in the complaint are taken as true and all reasonable inferences are drawn in favor of the nonmovant. (Board of Education v. A, C & S, Inc. (1989), 131 Ill.2d 428, 438, 137 Ill.Dec. 635, 546 N.E.2d 580.) A pleading need not show a certainty of recovery, only a possibility of recovery, and it should not be dismissed unless it appears that the pleader in no event would be permitted to recover. Zimmerman, 156 Ill.App.3d at 160-61, 109 Ill.Dec. 541, 510 N.E.2d 409.

COMMON-LAW FRAUD

Plaintiff's first contention is that the trial court erred in dismissing count I, which purported to allege...