River Park, Inc. v. City of Highland Park
State: Illinois
Court: 2nd District Appellate
Docket No: 2-97-0284
Case Date: 03/06/1998
No. 2--97--0284
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
RIVER PARK, INC.; SPATZ ) Appeal from the Circuit Court
AND COMPANY; and COUNTRY CLUB ) of Lake County.
ESTATES, LTD., )
)
Plaintiffs-Appellants, ) No. 94--L--1637
)
v. )
)
THE CITY OF HIGHLAND PARK, ) Honorable
) Bernard E. Drew,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
Modified Upon Denial of Rehearing
JUSTICE INGLIS delivered the opinion of the court:
Plaintiffs, River Park, Inc. (River Park), Spatz & Company
(Spatz), and Country Club Estates, Ltd. (CCE), appeal the trial
court's order dismissing their amended complaint against defendant,
the City of Highland Park, because their claims were barred by a
prior judgment and were not filed within the period of limitations.
We affirm in part, reverse in part, and remand.
This is the second time this case has been before this court.
In plaintiffs' first appeal, River Park, Inc. v. City of Highland
Park, 281 Ill. App. 3d 154 (1996), we affirmed in part and reversed
in part the trial court's order dismissing plaintiffs' complaint
for failure to state a cause of action. As a result, plaintiffs'
claims for tortious interference with business expectancy (count
I), breach of implied contract (count II), and abuse of
governmental power (count IV) were reinstated. On remand, the
trial court granted defendant's motion to dismiss pursuant to
section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
-619 (West 1996)) on the grounds that plaintiffs' claims were
barred by res judicata and were untimely.
The facts giving rise to this appeal are adequately set forth
in River Park, 281 Ill. App. 3d 154. We summarize the salient
points, once again taking all well-pleaded facts in the amended
complaint as true. See, e.g., Harris Bank v. Village of Mettawa,
243 Ill. App. 3d 103, 109 (1993).
Spatz, a builder and developer, purchased River Park, which
owned the 162-acre property of the Highland Park Country Club. CCE
later purchased a portion of the 162 acres for development. As
part of his financing package for the River Park purchase, Spatz
was required to obtain approval on the final plats of development
within one year or face foreclosure. Defendant's planning
commission and city council approved Spatz' petition for rezoning
the parcel. While the matter was pending, however, Raymond Geraci,
a member of the city council, formed a "citizen's committee" called
"Save our Open Spaces," dedicated to preventing plaintiffs from
developing the parcel and to making defendant buy the parcel if
possible.
As part of the rezoning process, the city engineer was
required to give approval to plaintiffs' engineering plans. The
engineer refused, however, to give final approval to plaintiffs'
engineering plans, and the city council refused to approve the
plans without the engineer's approval.
Spatz' one-year deadline passed and River Park was forced to
file for bankruptcy. As part of its reorganization, it sold 34
acres to CCE and again filed a petition to rezone the parcel.
Several months after the second rezoning petition was filed, the
lender foreclosed on the property. Plaintiffs negotiated with the
lender a right of repurchase contingent upon obtaining approval of
their second rezoning petition.
After conducting a number of hearings, defendant demanded
proof that plaintiffs still owned the parcel. Defendant's demand
was on short notice, however, and plaintiffs could not satisfy the
demand in time, nor would defendant give plaintiffs an extension of
time. Even though plaintiffs eventually presented proof of
ownership, defendant refused to consider it and deemed plaintiffs'
second petition withdrawn.
While plaintiffs' second petition was pending, defendant began
negotiating with plaintiffs' lender to buy the parcel for itself.
Defendant was aware of plaintiffs' rights to redeem and repurchase
the parcel upon its rezoning. Defendant purchased the parcel on
May 3, 1993, for $10 million, which, according to plaintiffs, was
"far less than its market value." In December 1995, defendant sold
portions of the parcel, which were later developed similarly to
plaintiffs' plans.
Plaintiffs filed a federal civil rights suit against
defendant, which was dismissed. River Park, Inc. v. City of
Highland Park, 23 F.3d 164 (7th Cir. 1994). On November 21, 1994,
plaintiffs filed their complaint in the Lake County circuit court.
Upon remand of plaintiffs' first appeal, defendant filed a motion
to dismiss the amended complaint. The trial court granted
defendant's motion and plaintiffs timely appealed.
Plaintiffs initially argue that defendant has waived
consideration of its section 2--619 motion to dismiss because
defendant could have and should have filed it with the earlier
section 2--615 motion to dismiss but did not. While considerations
of judicial and client economy might favor this argument, neither
the Code nor case law requires a party to file all dispositive
motions together. Section 2--619.1 of the Code states "[m]otions
with respect to pleadings under Section 2--615, motions for
involuntary dismissal or other relief under Section 2--619, and
motions for summary judgment under Section 2--1005 may be filed
together as a single motion in any combination." 735 ILCS
5/2 619.1 (West 1996). Thus, section 2--619.1 of the Code permits,
but does not require, a party to file all of its motions to dismiss
at once. Additionally, defendant's motion practice in this case is
clearly proper under McGinnis v. A.R. Abrams, Inc., 141 Ill. App.
3d 417, 420 (1986), which rejected plaintiffs' waiver argument on
similar procedural facts.
Next, plaintiffs argue that the trial court erred by finding
that their claims were barred by res judicata. Plaintiffs contend
that the dismissal of their previous federal suit was not a final
judgment on the merits and that, in any event, the cause of action
in federal court was different from the cause of action here.
Where there is a final judgment on the merits, the doctrine of
res judicata bars subsequent actions on the same claims between the
same parties or their privies. The doctrine bars not only what was
actually litigated but also what could have been litigated in the
previous lawsuit. The elements of res judicata are (1) a final
judgment on the merits rendered by a court of competent
jurisdiction; (2) an identity of cause of action; and (3) an
identity of parties or their privies. People ex rel. Burris v.
Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992).
Defendant contends that plaintiffs have waived this argument
because they failed to raise it in the trial court. We have
reviewed the record and conclude that plaintiffs properly preserved
this issue for review. Accordingly, we reject defendant's waiver
argument.
Defendant next argues that the dismissal was an adjudication
of the merits of both the state and federal claims because
plaintiffs could have filed their pendant state claims along with
the federal claim but did not. We disagree.
Dismissal for lack of subject matter jurisdiction is not an
adjudication on the merits. 134 Ill. 2d R. 273. The federal
district court dismissed plaintiffs' federal complaint for failure
to state a claim and for lack of subject matter jurisdiction. Fed.
R. Civ. P. 12(b)(1),(6). Accordingly, this dismissal was not an
adjudication on the merits.
We also determine that there was no identity between the
federal and state causes of action.
"A cause of action is defined by the facts which give the
plaintiff a right to relief. While one group of facts may
give rise to a number of different theories of recovery,
there remains only a single cause of action. 'If the same
facts are essential to the maintenance of both proceedings
or the same evidence is needed to sustain both, then there
is identity between the allegedly different causes of action
asserted and res judicata bars the latter action.'
[Citations.]" Progressive Land Developers, Inc., 151 Ill.
2d at 295.
Here, the identity-of-action element of res judicata is not
present. While it is true, as defendant asserts, that plaintiffs'
federal and state complaints are very similar, the facts necessary
to prove each complaint are not. In the federal action, plaintiffs
were required to prove that, under color of law, defendant had
deprived them of a right, privilege, or immunity guaranteed by the
Constitution or laws of the United States. Polenz v. Parrott, 883
F.2d 551, 555 (7th Cir. 1989). In the present case, by contrast,
plaintiffs must prove the existence of a duty and its breach or
actions giving rise to an implied contract and its breach. We
therefore determine that the identity-of-cause element is lacking.
Because the federal judgment is not a final adjudication on the
merits and there is no identity between the federal and state
causes, we hold that the trial court erred by granting defendant's
motion to dismiss on the grounds of res judicata.
Plaintiffs next argue that the trial court erroneously
determined that their claims were barred by the running of the
statute of limitations. The trial court applied the one-year
statute of limitations contained in section 8--101 of the Local
Governmental and Governmental Employees Tort Immunity Act (Immunity
Act) (745 ILCS 10/8--101 (West 1994)) in determining that
plaintiffs' amended complaint was time-barred. Plaintiffs argue
that the Immunity Act applies only to tort claims and is therefore
inapplicable to their contract and constitutional claims.
Defendant responds that section 8--101 extends to any action
brought against a local public entity.
When construing a statute, the court must give the language
its plain and ordinary meaning. The court must also read the
statute as a whole and consider all its parts together. Mid-
American Elevator Co., Inc. v. Norcon, Inc., 287 Ill. App. 3d 582,
588 (1996).
Section 2--101 of the Immunity Act specifically excepts
contract actions. 745 ILCS 10/2 101 (West 1994). Section 8--101
provides a one-year period of limitations for civil actions against
local entities. 745 ILCS 10/8 101 (West 1994). When viewed
together, the plain and ordinary meaning of the language of these
two sections does not support defendant's construction that section
8--101 applies to any and all civil actions filed against a local
public entity. Rather, section 2--101 limits the scope of actions
to which section 8--101 can be applied. As contract actions are
specifically outside the operation of the Immunity Act, the trial
court erred by applying section 8--101 to bar count II ( breach of
implied contract) of plaintiffs' amended complaint.
In addition to the explicit exceptions enumerated in section
2--101 of the Immunity Act, case law has narrowed the application
of the limitations provisions of the Immunity Act (745 ILCS 10/8--
101 through 10/8--103 (West 1994). For example, the limitations
provisions of the Immunity Act have been held to be inapplicable to
violations of constitutional rights (Firestone v. Fritz, 119 Ill.
App. 3d 685 (1983)), section 1983 actions, contributions actions,
nontortious actions, counterclaims, and injunctive actions (see
Anderson v. Sutter, 119 Ill. App. 3d 1070 (1983) (citing cases)).
Thus, because the limitations provisions of the Immunity Act should
be construed only in the context of its operation, the trial court
also erred by applying section 8--101 to count IV of plaintiffs'
amended complaint, abuse of governmental power (a violation of
constitutional rights).
Defendant contends that section 2--101 of the Immunity Act
deals with liability, while section 8--101 deals only with the
period of limitations. Defendant argues that there are no
constraints on the language of section 8--101 even when it is read
in conjunction with section 2--101 and, thus, section 8--101 should
apply to any civil action filed against a local public entity. We
disagree. Defendant has produced no case in which such a
construction of the Immunity Act has been adopted. Moreover,
Anderson, 119 Ill. App. 3d 1070, and Firestone, 119 Ill. App. 3d
685, explicitly rejected the application of the Immunity Act's
limitations provisions to a number of nontortious civil actions.
Defendant's argument is without merit.
Section 13--205 of the Code provides that actions on unwritten
contracts and "all civil actions not otherwise provided for []
shall be commenced within 5 years next after the cause of action
accrued." 735 ILCS 5/13 205 (West 1996). Plaintiffs filed their
complaint on November 21, 1994. Defendant gave preliminary
approval to plaintiffs' petition on December 29, 1989. It is clear
that plaintiffs' complaint was filed within the five-year period of
limitations under section 13--205 of the Code. Accordingly, we
hold that the trial court erred in dismissing counts II and IV of
plaintiffs' amended complaint as untimely.
Plaintiffs' final contention is that the trial court erred by
dismissing count I, tortious interference with business expectancy,
as time-barred under the Immunity Act. Plaintiffs do not dispute
the applicability of the Immunity Act to count I, which sounds in
tort. Instead, plaintiffs argue that the continuing tort rule
should be applied to defendant's continuing wrongful acts to toll
the operation of section 8--101. We disagree.
The continuing tort rule is triggered by continuing unlawful
acts and conduct, and it differentiates between these continuing
acts and the continual ill effects arising from a single violation.
Hyon Waste Management Services, Inc. v. City of Chicago, 214 Ill.
App. 3d 757, 763 (1991). We note that the rule has been applied
only to cases of trespass and nuisance, and not to other types of
torts. See Hertel v. Sullivan, 261 Ill. App. 3d 156, 161-62 (1994)
(refusing to extend continuing rule beyond trespass and nuisance
cases to personal injury tort case). We need not and do not
decide, however, whether the continuing tort rule applies to this
case, because even under the continuing tort rule we conclude that
plaintiffs' claim under count I was untimely.
We conclude that, under any theory of accrual, the period of
limitations began to run no later than May 3, 1993, when defendant
obtained title to the parcel. At that point, plaintiffs' hopes of
a profitable outcome in this venture were finally extinguished.
They could suffer no further injury in connection with the parcel.
As plaintiffs filed their complaint on November 21, 1994, more than
one year after defendant obtained title to the property, count I is
time-barred under section 8 101 of the Immunity Act.
Plaintiffs assert that the defendant's subsequent sale of the
property in December 1995 was an integral part of their injury. We
disagree. When defendant obtained title to the property on May 3,
1993, plaintiffs' injuries were complete: they had been denied
rezoning for the property and now were deprived of the property
that they wished to rezone. Plaintiffs could suffer no further
injury in connection with the property. Defendant's realization of
a profit in December 1995 for its purchase of the property was of
no moment to plaintiffs' injury but was merely an added insult. At
most, then, the sale represents a continued ill effect resulting
from the final wrongful act of purchasing the property, not a wrong
in itself. See Hyon, 214 Ill. App. 3d at 763. Accordingly, the
trial court did not err when it dismissed count I.
To summarize, the trial court properly dismissed count I of
plaintiffs' complaint as untimely but erroneously dismissed counts
II and IV. For the foregoing reasons, the judgment of the circuit
court of Lake County is affirmed in part and reversed in part, and
the cause is remanded for further proceedings consistent with this
opinion.
Affirmed in part and reversed in part; cause remanded.
McLAREN and DOYLE, JJ., concur.
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