Johannesen v. Eddins

• Decision Date: 28 December 2011
• Docket Number: No. 2–11–0108.,2–11–0108.
• Parties: James L. JOHANNESEN and Barbara R. Johannesen, Plaintiffs–Appellants, v. Samuel EDDINS, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 110108
357 Ill.Dec. 663
963 N.E.2d 1061

James L. JOHANNESEN and Barbara R. Johannesen, Plaintiffs–Appellants,
v.
Samuel EDDINS, Defendant–Appellee.

No. 2–11–0108.

Appellate Court of Illinois, Second District.

Dec. 28, 2011.

[963 N.E.2d 1062]

James R. Figliulo, Joseph A. Donado, Figliulo & Silverman, P.C., Chicago, for Barbara R. Johannesen, James L. Johannesen.

Robert T. O'Donnell, Adam M. Kingsley, O'Donnell Law Firm, Ltd., Libertyville, for Samuel Eddins.

OPINION Justice McLAREN delivered the judgment of the court, with opinion.

[357 Ill.Dec. 664] ¶ 1 Plaintiffs, James and Barbara Johannesen, appeal from the trial court's dismissal of their first amended complaint. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On February 18, 2010, plaintiffs filed their initial complaint, which they subsequently amended. Their first amended complaint alleged that on February 27, 2006, plaintiffs purchased the property located at 222 E. Fourth Street in Hinsdale. Defendant, Samuel Eddins, owned the property at 202 E. Fourth, immediately west of plaintiffs' property. Plaintiffs intended to replace the house located on the property with a larger house. They hired an architect, who requested a determination as to appropriate front setback and corner sideyard requirements from the Hinsdale building department. The building department calculated that a front setback of 85 feet and a corner sideyard of 54.78 feet were proper.

¶ 4 Defendant contacted plaintiffs and offered to assist them in obtaining any zoning variances they needed to build their new house. Plaintiffs told him that no variances were necessary, because the planned house fit into the building envelope that the building department had calculated. Defendant told them that he thought that the building department's calculations were incorrect and that the front setback should have been greater. Defendant also wanted plaintiffs to obtain a corner sideyard variance so that their house could be built farther to the east, away from his property, to enhance the sightlines from his house.

¶ 5 On June 11, 2006, plaintiffs, defendant, another neighbor, and a lawyer met to discuss plaintiffs' building plans. At that meeting, plaintiffs and defendant “reached a mutual agreement” that plaintiffs would accommodate defendant's request to move the house farther east; in exchange, defendant agreed that he would support plaintiffs' application for a variance and would forgo any challenge to the building department's calculation of the front setback requirement. Defendant confirmed this agreement in a telephone call the next day. Plaintiffs applied for a variance. Defendant signed the application as a “Nominal Applicant” and was also listed as an “amicus curiae ‘Nominal Applicant.’ ”

¶ 6 Plaintiffs alleged that, both prior to and after the Hinsdale Zoning Board's consideration of their application, defendant engaged in a series of ex parte communications with David Cook, the Hinsdale [357 Ill.Dec. 665]

[963 N.E.2d 1063]

village manager, with the goal of getting Cook to overturn the building department's front setback calculation. Cook did issue a determination letter in which he found that calculation to be incorrect; he recalculated the front setback to be 144 feet instead of 85 feet. Plaintiffs could not build the house that they had designed for the property.

¶ 7 Plaintiffs appealed to the Hinsdale Zoning Board of Appeals, which found that Cook's calculation was not an abuse of discretion. Defendant actively solicited opposition to this appeal, encouraging neighbors to challenge the appeal, hiring a lawyer to oppose the appeal, and attempting to remove the appeal from the board's agenda. During the pendency of the appeal, defendant twice offered to buy the property for “significantly less” than what plaintiffs paid for it and told them that he would leave the property vacant in order to expand the grounds of his property. Eventually, the board granted variations establishing an eastern sideyard setback of 32 feet and a front setback of 126 feet. Plaintiffs built a “significantly different, and smaller home than originally designed, and in a significantly different location” on the property. Plaintiffs alleged that they incurred extra costs for redesigning their house, additional costs of labor and materials because of the delay in construction, and diminished market value.

¶ 8 Plaintiffs filed an initial six-count complaint, alleging causes of action for: (I) breach of contract; (II) breach of implied contract; (III) promissory estoppel; (IV) equitable estoppel; (V) unjust enrichment; and (VI) fraudulent inducement. All counts referenced defendant's agreement to forgo any challenge to the building department's front setback calculation. Defendant 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 2008)). The motion was also brought pursuant to the Illinois Citizen Participation Act (Act) ( 735 ILCS 110/1 et seq. (West 2008)) and argued that the motion should be decided under the standards and procedures set forth in section 20 of the Act.

¶ 9 In arguing the motion, defendant noted that, while the motion was brought on several bases, it was “primarily * * * for the reason that the Citizen Participation Act precludes this sort of complaint.” The trial court concluded that “the mandate of Section 20 c [ sic ] of the [A]ct provides that a dismissal must be granted” and dismissed the complaint.

¶ 10 Plaintiffs filed an amended complaint alleging the same six causes of action. Plaintiffs attached several exhibits, including: (1) a copy of the variance application, signed by defendant as “Nominal Applicant”; and (2) a copy of a document from Cook, which stated in part:

“Specifically to your case, a resident (Sam Eddins) formally requested a Code interpretation per section 11–501 of the Hinsdale Zoning Code. After my review of the specifics on the matter and consultation with our Village Attorney, my determination was that the original front yard setback for 222 E. Fourth Street was incorrectly computed and that it be recalculated based upon the criteria in my June 27, 2006 memo to Rob McGinnis.”

¶ 11 Again, defendant filed a combined motion to dismiss under section 2–619.1 that also included argument regarding the Act. On September 30, 2010, the trial court granted defendant's motion to dismiss. The court “assumed to be true for the purpose of this case” plaintiffs' argument that defendant was deceitful and dishonest and that his conduct was hypocritical and not genuine. However, the court found that defendant's participation in the zoning [357 Ill.Dec. 666]

[963 N.E.2d 1064]

process regarding plaintiffs' property was “not frivolous” under the Act and granted the motion to dismiss. The trial court subsequently denied plaintiffs' motion to reconsider, and this appeal followed.

¶ 12 II. ANALYSIS

¶ 13 Plaintiffs contend that the trial court erred in dismissing their first amended complaint. Defendant brought a combined motion to dismiss under section 2–619.1 of the Code (735 ILCS 5/2–619.1 (West 2008)). Section 2–619.1 allows a litigant to combine motions to dismiss brought under sections 2–615 and 2–619. Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040, 1046, 233 Ill.Dec. 101, 700 N.E.2d 202 (1998). In addition, this court has found that such a combined motion may also include a motion to dismiss brought pursuant to the Act. See Sandholm v. Kuecker, 405 Ill.App.3d 835, 846, 347 Ill.Dec. 341, 942 N.E.2d 544 (2010). Although defendant brought his motion to dismiss under sections 2–615 and 2–619 along with the Act, the trial court clearly dismissed the first amended complaint pursuant to the Act.

¶ 14 The public policy behind the Act, quoted in relevant part, is as follows:

“Civil actions for money damages have been filed against citizens and organizations of this State as a result of their valid exercise of their constitutional rights to petition, speak freely, associate freely, and otherwise participate in and communicate with government. There has been a disturbing increase in lawsuits termed ‘Strategic Lawsuits Against Public Participation’ in government or ‘SLAPPs' as they are popularly called.

The threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights. This abuse of the judicial process can and has been used as a means of intimidating, harassing, or punishing citizens and organizations for involving themselves in public affairs.

It is in the public interest and it is the purpose of this Act to strike a balance between the rights of persons to file lawsuits for injuries and the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government; to protect and encourage public participation in government to the maximum extent permitted by law; to establish an efficient process for identification and adjudication of SLAPPs; and to provide for attorney's fees and costs to prevailing movants.” 735 ILCS 110/5 (West 2008).

The Act applies to:

“any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights of petition, speech, association, or to otherwise participate in government.” 735 ILCS 110/15 (West 2008).

Acts in furtherance of such...