Lappin v. Costello, 4-92-0009

• Decision Date: 06 August 1992
• Docket Number: No. 4-92-0009,4-92-0009
• Citation: 174 Ill.Dec. 114,598 N.E.2d 311,232 Ill.App.3d 1033
• Parties: , 174 Ill.Dec. 114 Robert LAPPIN and AAA Promotions, Inc., An Illinois Corporation, Plaintiffs-Appellants, v. Dennis COSTELLO, the City of Champaign, A Municipal Corporation, and Rochelle A. Funderburg, as the Assistant City Attorney of the City of Champaign, Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 311

598 N.E.2d 311

232 Ill.App.3d 1033, 174 Ill.Dec. 114

Robert LAPPIN and AAA Promotions, Inc., An Illinois Corporation, Plaintiffs-Appellants, v. Dennis COSTELLO, the City of Champaign, A Municipal Corporation, and Rochelle A. Funderburg, as the Assistant City Attorney of the City of Champaign, Illinois Defendants-Appellees.

No. 4-92-0009.

Appellate Court of Illinois Fourth District.

Aug. 6, 1992.

Charles L. McNeil, McNeil & McNeil, Mason City, for plaintiffs-appellants.

Richard R. Harden, Thomas, Mamer & Haughey, Champaign, for defendants-appellees.

Justice McCULLOUGH delivered the opinion of the court:

In this appeal, plaintiffs Robert Lappin and AAA Promotions, Inc., seek review of the orders of the circuit court of Champaign County dismissing counts II and V of the second-amended complaint against defendants City of Champaign (City) and Frederick Stavins, as city attorney of the City, and further granting summary judgment as to defendants Dennis Costello and the City on the remaining counts. Costello was a charging police officer at the time of the incident which is the subject of plaintiffs' lawsuit. Counts I and IV alleged a civil rights action pursuant to sections 1983 and 1988 of the Civil Rights Act of 1871 (Civil Rights Act) (see 42 U.S.C. §§ 1983, 1988 (1988)) for the wilful and wanton misconduct of defendants in violating rights, privileges, and immunities accorded to plaintiffs to hold a gun show in the City. Count III is an action for false arrest. Counts II and V against Stavins and the City attempted to allege wilful and wanton misconduct on the part of defendants in violating the rights, privileges and immunities of the respective plaintiffs under sections 1983 and 1988 of the Civil Rights Act.

The issues presented in this case are whether the trial court properly dismissed counts I and V of plaintiffs' second-amended complaint on the ground that those counts were not timely filed under the appropriate statute of limitations pursuant to section 2-619 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-619), and whether any genuine issue of material fact exists which would preclude the granting of summary judgment as to defendants Costello and the City. We affirm.

On February 24, 1989, plaintiffs filed a complaint against Costello and the City for damages arising out of an incident which was alleged to have occurred on February 27, 1988. Throughout the original complaint, the liability of the City is alleged to be predicated on the actions of Costello.

On January 4, 1990, a first-amended complaint was filed by plaintiffs. In the first-amended complaint counts I and III were directed at defendants Costello and the City. Count IV was directed at Costello alone. Counts II, V, and VI named as defendants Rochelle A. Funderburg, an assistant city attorney for the City, and the City. Counts II and V of the first-amended complaint attempted to allege actions pursuant to the Civil Rights Act against Funderburg and the City. Count VI attempted to allege a cause of action against Funderburg and the City for the allegedly unlawful arrest and prosecution of Lappin. On May 10, 1990, all counts of the first-amended complaint were dismissed on defendants' motion. On reconsideration, the dismissals of counts I and IV were vacated, and plaintiffs were given 30 days to file an amended complaint as to counts II, III, V, and VI.

On July 19, 1990, the five-count second-amended complaint was filed. Count I was directed against defendant Costello alone and alleged a violation of Lappin's rights by Costello, who was acting under color and authority of, and within the course and scope of his employment as a police officer for, the City. It is further alleged that at approximately 3 or 3:30 p.m. on February 27, 1988, Lappin was representing AAA Promotions, Inc., which was sponsoring and holding a gun show at 322 North Neil Street, Champaign, Illinois. At that time, it is alleged, Costello willfully, wantonly, and illegally:

"(a) Ordered and demanded the Plaintiff to cease the operation of Plaintiff's gun show, by use of threats of great force and violence without lawful warrant or probable cause.

(b) Ordered and demanded the public and all persons present to vacate the premises at 322 North Neil Street, Champaign, Illinois.

(c) Inflicted severe, grievous, and permanent emotional injury upon the person of the Plaintiff.

(d) Willfully and maliciously violated the Plaintiff's Constitutional rights as enumerated hereinafter."

The rights, privileges, and immunities secured by the United States Constitution alleged to have been violated by Costello and the City were as follows:

"(a) The right of the Plaintiff to be secure in his person, and in his own premises, against unreasonable searches and seizures, under the Fourth and Fourteenth Amendments of the Constitution.

(b) The right of the Plaintiff to be free from any abridgment [sic ] of his privileges and immunities, and Plaintiff's right not to be deprived of life, liberty, or property without due process of law, and Plaintiff's right to the equal protection of the laws, all secured to Plaintiff by the Fifth and Fourteenth Amendments of the Constitution.

(c) The right of Plaintiff to be informed of the nature and cause of accusations against him, and the right to freedom from summary punishment, secured to him by the Sixth and Fourteenth Amendments of the Constitution.

(d) The right of the Plaintiff to peaceably assemble as secured to him by the First Amendment of the Constitution."

As damages, Lappin alleged extreme physical and mental pain and suffering; degradation and humiliation to mind, body, personal reputation, and business reputation; refunds of admission to the public and exhibitors; lost wages and profits; extreme emotional distress, mental suffering, and humiliation; legal expenses and costs of suit; and an inability to continue his business due to impairment of his business reputation.

Count IV, also directed against Costello alone, alleged a civil rights action on behalf of AAA Promotions, Inc. Count IV is essentially a repleading of count II with a few exceptions. One exception is that count IV does not allege Costello willfully, wantonly and illegally inflicted severe, grievous, and permanent emotional injury on the person of plaintiff on February 27, 1988. A second exception is that count IV does not allege a violation of a right to peaceably assemble under the first amendment. The third exception is that count IV does not allege as damages "extreme physical and mental pain and suffering" and "extreme emotional distress, mental suffering and humiliation."

Count III is a cause of action by Lappin against Costello and the City for false arrest. The alleged wilful, wanton, and illegal acts of Costello were the following: (1) closing the gun show without a warrant or probable cause; (2) ordering all persons present to vacate the premises; (3) detaining plaintiff "for a long period of time" against his will; and (4) arresting plaintiff for violation of Champaign Municipal Code section 25-88 (Champaign Municipal Code § 25-88 (1980)) and requiring him to appear in court to answer alleged charges without a warrant or probable cause to believe the plaintiff was guilty of a criminal offense.

Counts II and V were civil rights actions by Lappin and AAA Promotions, Inc., respectively, against Stavins and the City. It is alleged in these counts that Costello was acting under the direction of an assistant city attorney in willfully, wantonly, and illegally performing those acts in the respective civil rights actions against Costello and in arresting Lappin. In both counts, the plaintiffs complained that defendants systematically and on a continuing basis adopted an unconstitutional policy of depriving citizens, the public, and the plaintiffs of constitutional rights, and that the allegedly unlawful arrest of Lappin and closing of the gun show resulted from this policy.

On August 24, 1990, a combined motion to dismiss was filed as to counts II, III and V, pursuant to sections 2-615 and 2-619 of the Code (Ill.Rev.Stat.1989, ch. 110, pars. 2-615, 2-619). The motion was denied. The trial court specifically found a five-year statute of limitations applicable. (See Ill.Rev.Stat.1989, ch. 110, par. 13-205.) This order was entered on October 18, 1990. On November 7, 1990, defendants also moved for a reconsideration of the ruling as to the statute of limitations. On December 28, 1990, the motion to reconsider was denied. A second motion to reconsider with new authority was filed on January 17, 1991. On June 13, 1991, finding counts II and V time-barred, those counts of the second-amended complaint were dismissed with prejudice by the trial court. Plaintiffs' subsequent motion to reconsider was denied.

On October 8, 1991, Costello and the City moved for summary judgment as to the remaining counts. Among the attached exhibits were (1) the discovery depositions of Champaign fire inspector Jerry Lance, assistant city attorney Mary Ann Midden, Champaign police sergeant Maurice Wileaver, Officer Dennis Costello, Officer Brian Hockings, Officer Christopher Wagner, and plaintiff; and (2) a copy of the article of the Champaign Municipal Code dealing with itinerant merchants. In response to the motion for summary judgment, plaintiffs filed no additional exhibits or affidavits. On November 4, 1991, summary judgment was granted in favor of Costello and the City. Plaintiffs' motion to vacate the summary judgment was denied on December 11, 1991.

The article relating to itinerant merchants in the Champaign Municipal Code includes the following definitions:

"ARTICLE IV. ITINERANT MERCHANTS

DIVISION 1. GENERALLY

* * * * * *

Goods, wares and merchandise shall mean any and all items of tangible personal property, except perishable, agricultural commodities.

Itinerant merchant shall mean any person engaging or intending to...