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ESM Development Corp. v. Dawson
State: Illinois
Court: 5th District Appellate
Docket No: 5-02-0741 Rel
Case Date: 08/06/2003
                      NOTICE
Decision filed 08/06/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0741

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


ESM DEVELOPMENT CORPORATION
and REND LAKE DEVELOPMENT 
CORPORATION,

          Plaintiffs-Appellants,

v.

GALE DAWSON, in His Official Capacity as
the Enterprise Zone Administrator, THE CITY
OF BENTON, ILLINOIS, THE COUNTY
OF FRANKLIN, ILLINOIS, JUVA WYNN,
in Her Official Capacity as Franklin County
Treasurer, and DAVID DOBILL, in His
Official Capacity as Franklin County Clerk,

          Defendants-Appellees.

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Appeal from the
Circuit Court of
Franklin County.



No. 00-L-61







Honorable
E. Kyle Vantrease,
Judge, presiding.


JUSTICE KUEHN delivered the opinion of the court:

This case turns on one issue: Do the equitable claims of promissory and equitableestoppel allow for monetary damages? If not, and if the claims are therefore actually legalin nature, then the Local Governmental and Governmental Employees Tort Immunity Act(Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 1996)) applies to the facts of this caseand a summary judgment was appropriate because the lawsuit was not brought within therelevant one-year statute of limitations for legal actions.

FACTS

In 1989, an enterprise zone was legislatively created by Franklin County and Bentonfor the Rend Lake area of Franklin County. The two governmental entities entered into ajoint agreement establishing a joint enterprise zone. In this zone, businesses could receiveenterprise zone benefits from state and local entities for making property improvements thatexceeded $10,000. The benefits to businesses included the following:

1. An exemption from sales tax on all materials used in the construction ofimprovements within the enterprise zone.

2. A 100% property tax abatement on the value of the improvements for the firstfive years.

3. 50% property tax abatement on the value of the improvements for years 6through 10.

The terms of this enterprise zone set forth guidelines for the developer that, if followed,entitles the developer to the benefits of the enterprise zone. In an effort to encourage RendLake area development, Franklin County and Benton represented to the public that enterprisezone benefits were available for geographically qualifying development.

In 1996, the plaintiffs, ESM Development Corp. and Rend Lake Development Corp.,became interested in Rend Lake area development. The plaintiffs planned a multiphaseddevelopment around a golf course and around Rend Lake. Initially, the plaintiffs becameoperators and managers of the Rend Lake Golf Course. They built a hotel, Seasons at RendLake, right next to this golf course. This hotel was developed under the understanding thatit, and thus the plaintiffs, qualified for enterprise zone benefits. During and following thecompletion of construction, the plaintiffs received the full enterprise zone benefits. The nextphase of the development involved the construction of condominiums.

On the basis of past dealings with Benton and Franklin County, as well as thelanguage of the relevant enterprise zone ordinances, the plaintiffs began their condominiumdevelopment. They approached the zone administrator about the receipt of benefits andultimately received oral assurances of the benefit's application to this project from GaleDawson, who, at that time, dually served as zone administrator and Benton mayor. OnFebruary 18, 1998, the plaintiffs received a certificate of eligibility for a sales tax exemptionfor utilization in obtaining construction materials for this project. On February 17, 1998,Gale Dawson wrote to plaintiff ESM Development Corp. and indicated as follows:

"I have reviewed and approved the Enterprise Zone benefits available through theBenton/Franklin County Enterprise Zone for the Fairway Condominium at Rend Lake***. These benefits are available to the Rend Lake Development Corporation and theindividual owners of the 24 units completed in the first phase of your development. Also, benefits would include property tax abatement for the individual units."

The plaintiffs completed the development of the 24 condominium units. When attemptingto sell the first two units, the plaintiffs discovered that neither they nor the ultimate unitpurchasers were entitled to the promised tax abatements. This discovery occurred sometimein the fall of 1998. The tax abatements were unavailable because only half of the taxingbodies had passed resolutions agreeing to the tax abatement at issue. Without theseresolutions, the ordinances establishing the enterprise zone tax abatements are ineffective.

Thereafter, the plaintiffs made a decision to divest their interest in thesecondominiums. They allege that their sale of the property was at a loss.

On August 10, 2000, the plaintiffs filed their multicount complaint in Franklin Countycircuit court. Because of constitutional issues raised, the defendants removed the case tofederal court. On October 1, 2001, the federal court granted a summary judgment on thefederal causes of action and remanded the remaining state law claims to Franklin Countycircuit court. The plaintiffs filed a second amended complaint in the state court, to whichthe defendants responded with motions to dismiss or for a summary judgment. On May 10,2002, the circuit court granted a summary judgment in favor of defendants Gale Dawson, theCity of Benton, and Franklin County and granted motions to dismiss with prejudice on behalfof defendants Juva Wynn (Franklin County treasurer) and David Dobill (Franklin Countyclerk).

It is from this order that the plaintiffs appeal.

LAW AND ANALYSIS

Standing

Although little is made of this argument in the briefs on appeal, we must initiallyaddress the defendants' argument that this appeal should be dismissed on the basis that theplaintiffs lack standing to file suit because they were not the record owners of the propertyon the date that the suit was filed. The circuit court dismissed this theory.

All that standing to file suit requires is that the party has some injury to a legallyrecognized interest-a real interest in the action and its outcome. In re Estate of Wellman,174 Ill. 2d 335, 344, 673 N.E.2d 272, 276 (1996).

Without regard to whether the claims at issue are equitable or legal, the plaintiffsclaim monetary losses as a result of a diminution in property value due to the fact that theproperty in question was not eligible for enterprise zone tax abatements. If anything, the saleof the property provides more concrete evidence of damages because the loss is not merelyhypothetical, but actual. Despite the fact that the plaintiffs no longer own the property atissue, that sale does not alter its claimed loss. The plaintiffs maintain an interest in thismatter, and we conclude that the plaintiffs do have standing to sue the defendants.

Cases cited by the defendants are inapposite, dealing instead with a failure to perfecta stay, which precluded redress in the appellate court (Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 759 N.E.2d 509 (2001)), and the mootness of an appeal due to the party's withdrawalof a permit request, the denial of which was the subject matter of the appeal (City News &Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 148 L. Ed. 2d 757, 121 S. Ct. 743 (2001)).

Standard of Review

In determining the appropriateness of a summary judgment, the trial court strictlyconstrues all evidence in the record against the movant and liberally in favor of the opponent. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). The court must considerall pleadings, depositions, admissions, and affidavits on file to decide if there is any issue ofmaterial fact. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72, 587 N.E.2d 494,497 (1992). On appeal, courts review summary judgment orders de novo. Myers, 225 Ill.App. 3d at 72, 587 N.E.2d at 497.

On appeal from a trial court's involuntary dismissal of a complaint pursuant to section2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)), we must determine"whether the existence of a genuine issue of material fact should have precluded thedismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law."Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 109-10, 708 N.E.2d 1140, 1144 (1999). Inother words, our review is de novo. In re Estate of Mayfield, 288 Ill. App. 3d 534, 542, 680N.E.2d 784, 789 (1997).

Tort Immunity Act

Section 8-101 of the Tort Immunity Act states, "No civil action may be commencedin any court against a local entity or any of its employees for any injury unless it iscommenced within one year from the date that the injury was received or the cause of actionaccrued." 745 ILCS 10/8-101 (West 1996).

Equitable claims are not subject to the limitations requirements of the Tort ImmunityAct. People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 204-06, 758 N.E.2d 25,31-33 (2001).

Estoppel in General

We initially note that estoppel is an equitable remedy, meaning simply that a party isstopped "from claiming or saying something." D. Dobbs, Remedies

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