Johannesen v. Eddins , 2011 IL App (2d) 110108 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Johannesen v. Eddins, 2011 IL App (2d) 110108
Appellate Court JAMES L. JOHANNESEN AND BARBARA R. JOHANNESEN,
Caption Plaintiffs-Appellants, v. SAMUEL EDDINS, Defendant-Appellee.
District & No. Second District
Docket No. 2-11-0108
Filed December 28, 2011
Held In an action arising from plaintiffs’ attempt to construct a new house next
(Note: This syllabus to defendant’s residence, the trial court erred in dismissing plaintiffs’
constitutes no part of action alleging that defendant breached the agreement he allegedly made
the opinion of the court with plaintiffs to support plaintiffs’ application for a variance and forgo
but has been prepared any challenge to the calculation of the setback requirements by the city
by the Reporter of building department, notwithstanding defendant’s reliance on the Illinois
Decisions for the Citizen Participation Act, since defendant’s actions in challenging
convenience of the plaintiffs’ efforts to construct the house were not immunized from
reader.)
liability by the Act where issues of material fact existed as to whether
defendant did enter into the alleged agreement.
Decision Under Appeal from the Circuit Court of Du Page County, No. 10-L-219; the
Review Hon. John T. Elsner, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James R. Figliulo and Joseph A. Donado, both of Figliulo & Silverman,
Appeal P.C., of Chicago, for appellants.
Robert T. O’Donnell and Adam M. Kingsley, both of O’Donnell Law
Firm, Ltd., of Libertyville, for appellee.
Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Hutchinson and Burke concurred in the judgment and opinion.
OPINION
¶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.
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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 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
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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 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 (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 (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
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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 rights “are immune from liability, regardless of intent or purpose,
except when not genuinely aimed at procuring favorable government action, result, or
outcome.” 735 ILCS 110/15 (West 2008). Upon the filing of such a motion, a court shall
grant the motion and dismiss the judicial claim “unless the court finds that the responding
party has produced clear and convincing evidence that the acts of the moving party are not
immunized from, or are not in furtherance of acts immunized from, liability by this Act.” 735
ILCS 110/20(c) (West 2008).
¶ 15 This court has found a motion brought pursuant to the Act to be similar to a motion to
dismiss under section 2-619, since it does not attack the legal sufficiency of the claim but
instead provides another method to defeat the plaintiff’s claim. See Sandholm, 405 Ill. App.
3d at 846. A section 2-619 motion admits the legal sufficiency of the complaint but asserts
some affirmative matter that avoids or defeats the plaintiff’s claim. Sandholm, 405 Ill. App.
3d at 846. Likewise, when considering a motion to dismiss under the Act, we consider the
facts of the plaintiff’s claim to be legally sufficient. Sandholm, 405 Ill. App. 3d at 846.
¶ 16 Further applying the section 2-619 analysis, a court must construe the pleadings and
supporting documents in the light most favorable to the nonmoving party. Sandholm, 405 Ill.
App. 3d at 847. A section 2-619 motion admits the legal sufficiency of the complaint along
with all well-pleaded facts and reasonable inferences drawn from those facts. Mutual
Management Services, Inc. v. Swalve, 2011 IL App (2d) 100778, ¶ 4. In ruling on such a
motion, the court may consider pleadings, depositions, and affidavits on record. Sandholm,
405 Ill. App. 3d at 847. The purpose of a section 2-619 motion is to dispose of issues of law
and easily proved issues of fact early in the litigation. Sandholm, 405 Ill. App. 3d at 847. On
appeal from a decision regarding a section 2-619 motion, the reviewing court must consider
whether the existence of a genuine issue of material fact should have precluded the dismissal
or, absent such an issue of fact, whether dismissal was proper as a matter of law. Sandholm,
405 Ill. App. 3d at 847. Our review is de novo. Sandholm, 405 Ill. App. 3d at 847.
¶ 17 Although we have used section 2-619 as a guideline for motion-to-dismiss proceedings
under the Act, section 20(c) of the Act shifts the burden in such proceedings. While a
defendant has the burden of proving an affirmative defense in a section 2-619 motion to
dismiss, section 20(c) provides that a court shall grant the motion and dismiss “unless the
court finds that the responding party has produced clear and convincing evidence that the acts
of the moving party are not immunized from, or are not in furtherance of acts immunized
from, liability by this Act.” 735 ILCS 110/20(c) (West 2008). The Sandholm court did note
that, even in a section 2-619 proceeding, where the burden is on the defendant to prove that
an affirmative defense applies, the burden “shifts to the plaintiff to show that the defense is
unfounded or requires the resolution of an issue of material fact before it is proven.”
Sandholm, 405 Ill. App. 3d at 849.
¶ 18 Plaintiffs first argue that the trial court erred in dismissing their first amended complaint
because defendant had waived whatever first amendment rights that he might have had to
participate in the government’s consideration of the zoning applied to their property and
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should have been precluded from asserting a defense under the Act. Plaintiffs alleged that
on June 11, 2006, they and defendant “reached a mutual agreement” that plaintiffs would
accommodate defendant’s request to move the house farther east and, in exchange, defendant
would support plaintiffs’ application for a variance and would forgo any challenge to the
building department’s calculation of the front setback requirement. Defendant and his wife
were also listed on the variance application as “amicus curiae ‘Nominal Applicants,’ ” and
defendant signed the application as “Nominal Applicant.” According to plaintiffs, by
agreeing to forgo any challenge to the setback calculations and to support plaintiffs’ variance
application, defendant waived his first amendment rights regarding those issues; thus, the Act
does not provide defendant with a defense such that dismissal was appropriate.
¶ 19 We first note that the trial court failed to address this argument although it was clearly
raised in plaintiffs’ brief in opposition to the motion to dismiss. Instead, the trial court ruled
only that defendant’s participation in the zoning process was “not frivolous” under the Act
and granted the motion to dismiss.
¶ 20 We conclude that the trial court erred in granting the motion to dismiss. As we have
stated, the purpose of a section 2-619 motion to dismiss is to dispose of issues of law and
easily proved issues of fact early in the litigation; we must consider whether the existence
of a genuine issue of material fact should have precluded the dismissal or, absent such an
issue of fact, whether dismissal was proper as a matter of law. See Sandholm, 405 Ill. App.
3d at 847. As brought and decided under the Act in this case, defendant’s motion seeks to
dispose of the issue of whether “the acts of the moving party[, i.e., defendant’s challenge of
the setback calculation,] are not immunized from, or are not in furtherance of acts immunized
from, liability by this Act.” 735 ILCS 110/20(c) (West 2008).
¶ 21 Defendant’s position is that his contacts with government officials regarding the setback
calculation on plaintiffs’ property were in furtherance of his rights of petition, speech,
association, or to otherwise participate in government and are thus immune from liability
under the Act. See 735 ILCS 110/5 (West 2008). Plaintiffs’ position in opposition to this is
that defendant, by entering into the agreement not to challenge the setback calculation and
instead to endorse the variance application, waived his rights of petition, speech, association,
or to otherwise participate in government as they related to the setback calculation. This issue
is neither an easily proved issue of fact nor an issue of law that is suitable to a section 2-619-
type analysis.
¶ 22 Plaintiffs’ underlying causes of action and their defense to the motion to dismiss are both
based on the alleged existence of an oral contract under which defendant agreed not to
contest the setback calculation. The existence of an oral contract, its terms, and the intent of
the parties are questions of fact. Laughlin v. France, 241 Ill. App. 3d 185, 195 (1993).
Material issues of fact exist regarding the alleged oral contract. The existence of an alleged
oral contract requires the presentation of testimony, not mere argument by attorneys. The
complaint and plaintiffs’ defense to the Act are too intertwined for the complaint to be
amenable to dismissal under the Act or section 2-619. Only by resolving issues of fact
underlying plaintiffs’ complaint can the court determine if defendant did or did not waive his
rights such that his actions are immunized from liability; only after such a determination is
made is the issue of whether defendant’s actions were genuinely aimed at procuring
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favorable government action, under section 15 of the Act, even relevant. We cannot
conclude, as a matter of law, that defendant’s actions were immunized from liability by the
Act, because issues of material fact exist as to whether defendant actually entered into an
agreement and, if so, what he actually agreed to do.
¶ 23 Further, the case law of this state does not support defendant’s position such that, as a
matter of law, his motion to dismiss should have been granted. It is generally accepted that
parties may contract away rights, even those of constitutional or statutory dimension. See
Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543, 549 (2006). Defendant notes in his brief
that “no Illinois court has addressed whether an individual can contract away his or her rights
under the Act and, if so, what type of contract or agreement is required to demonstrate
knowing waiver.” However, he “acknowledges” that other states with comparable statutes
“have recognized that, under some circumstances, a defendant can waive his or her right to
immunity under the Act [sic] by entering into a contract prior to his communication with the
governmental entity.” For example, in Middle-Snake-Tamarac Rivers Watershed District v.
Stengrim, 784 N.W.2d 834 (Minn. 2010), after years of litigation, the district and various
landowners, including Stengrim, entered into a settlement agreement, one provision of which
was that the landowners agreed that they would “ ‘address no further challenges in litigation
or otherwise’ ” to the establishment of a district project. Stengrim, 784 N.W.2d at 837. The
district subsequently sought an order disgorging Stengrim of his share of the settlement
proceeds because he breached the agreement by, among other things, attempting to interfere
with funding for the project and making statements with the intent of harming the project.
Stengrim, 784 N.W.2d at 837. Stengrim filed a motion to dismiss that lawsuit (an anti-
SLAPP motion) under the Minnesota version of the Act, arguing that the suit targeted him
for public participation and speech that was immune from liability under the statute and not
prohibited by the settlement agreement. The trial court denied both Stengrin’s anti-SLAPP
motion and the district’s motion for summary judgment, finding that issues of material fact
still existed. Stengrim, 784 N.W.2d at 838.
¶ 24 The Minnesota Supreme Court noted that preexisting legal relationships, such as those
based on a settlement agreement in which a party waives certain rights, may legitimately
limit a party’s public participation. Stengrim, 784 N.W.2d at 842. The court concluded that
a trial court:
“has the authority to deny a defendant’s anti-SLAPP motion where a defendant has
entered into a settlement agreement and contractually agreed not to hinder the
establishment of a project, thereby waiving certain rights to public participation, but
retaining others, and the court determines that there are genuine issues of material fact
about the settlement agreement’s effect on the defendant’s public participation rights.”
Stengrim, 784 N.W.2d at 842.
¶ 25 Stengrim is remarkably similar to the case before us, and we find it persuasive.
Defendant’s signature on the application for the variance is evidence of a settlement
agreement as in Stengrim. We can see no reason why a party cannot waive rights under the
Act based on a preexisting legal relationship. We are not persuaded by defendant’s argument
that the fact that the alleged contract in our case is oral, rather than written, in any way affects
the ability to waive such rights. If anything, the allegation of an oral contract raises more
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issues of fact and makes this case even less amenable to dismissal under the Act. We
conclude that genuine issues of material fact remained such that, as a matter of law, the trial
court erred in granting defendant’s motion to dismiss.
¶ 26 Both parties also address the issue of whether plaintiffs stated causes of action in their
first amended complaint so as to survive defendant’s motion to dismiss pursuant to section
2-615. This case is an exemplar of the potential dangers of bringing combined motions to
dismiss. While such motions are authorized by statute, this “is not a legislative authorization
for hybrid motion practice.” Storm & Associates, 298 Ill. App. 3d at 1046.
¶ 27 A motion under section 2-615 attacks the sufficiency of the complaint and questions
whether it states a cause of action upon which relief can be granted. Storm & Associates, 298
Ill. App. 3d at 1046. For purposes of appeal, all well-pleaded facts within the four corners
of the complaint are regarded as admitted and true, along with all reasonable inferences
drawn in the light most favorable to the plaintiff. Bank of Northern Illinois v. Nugent, 223
Ill. App. 3d 1, 9 (1991). The ultimate facts to be proved must be alleged, and no evidentiary
support or conclusions drawn from the allegations should be considered. Bank of Northern
Illinois, 223 Ill. App. 3d at 9.
¶ 28 A section 2-619 motion admits the legal sufficiency of the complaint along with all well-
pleaded facts and reasonable inferences drawn from those facts; it assumes that a cause of
action has been stated but asserts that the claim is defeated by other affirmative matter.
Mutual Management Services, 2011 IL App (2d) 100778, ¶¶ 4-5. In deciding a section 2-619
motion, a court is to interpret all pleadings in the light most favorable to the nonmoving
party. Mutual Management Services, 2011 IL App (2d) 100778, ¶ 4. In addition to the
pleadings, the court may consider depositions and affidavits. Doe v. University of Chicago,
404 Ill. App. 3d 1006, 1009 (2010).
¶ 29 While appellate review of decisions regarding motions brought under either section is de
novo, these motions differ significantly. Mutual Management Services, 2011 IL App (2d)
100778, ¶ 5. All well-pleaded facts of the complaint are admitted and taken as true in both
motions; however, the legal sufficiency of the complaint is disputed in a section 2-615
motion but admitted in a section 2-619 motion. Bank of Northern Illinois, 223 Ill. App. 3d
at 7. The better practice is for a court to entertain the section 2-615 motion first, and then,
only after a legally sufficient cause of action has been found, entertain the section 2-619
motion with affidavits filed in support. Janes v. First Federal Savings & Loan Ass’n, 57 Ill.
2d 398, 406 (1974) (regarding a motion for summary judgment).
¶ 30 The inclusion of a motion to dismiss under the Act along with the section 2-615 and
section 2-619 motions to dismiss further muddies the waters of motion practice. The Act
seeks “to establish an efficient process for identification and adjudication of SLAPPs.” 735
ILCS 110/5 (West 2008). However, by attempting to efficiently adjudicate these actions, the
Act necessarily encourages trial courts to handle motions out of order, dealing with motions
that admit the sufficiency of the complaint and contain depositions and affidavits before, if
necessary, addressing a section 2-615 motion that disputes the legal sufficiency of the claim
and does not allow for consideration of anything outside of the complaint.
¶ 31 Here, the trial court clearly ruled only on the motion to dismiss brought under the Act.
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It never considered whether plaintiffs stated causes of action in any of the six counts of the
first amended complaint. We decline to address these arguments that were raised but not
considered in the trial court.
¶ 32 III. CONCLUSION
¶ 33 For these reasons, the judgment of the circuit court of Du Page County is reversed, and
the cause is remanded for further proceedings consistent with this opinion.
¶ 34 Reversed and remanded.
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