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Parkway Bank & Trust v. City of Darien

OPINION FILED NOVEMBER 17, 1976.

PARKWAY BANK AND TRUST COMPANY, TRUSTEE, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF DARIEN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM V. HOPF, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 10, 1976.

Parkway Bank and Trust Company, as owner in trust of a 20-acre tract of real estate in the City of Darien, and Ceisel-McGuire Industries, as beneficiary of the trust, sued the defendant City, its mayor, aldermen and members of the Darien Plan Commission. They alleged defendants rezoned the 20-acre tract for a less intensive use without legal justification. Count I of plaintiffs' complaint seeks to declare the rezoning invalid and is presently pending in the trial court. Counts II, III, and IV, however, were dismissed. Plaintiffs appeal from the judgment which was made final.

Count II is entitled "A Common Law Tort Action for Damages" and is based upon the claim that the defendants knowingly and illegally interfered with plaintiffs' prospective business advantage by their conduct. The complaint includes the following allegations in substance. In 1971, when part of the real estate was located within the City of Darien and part within the unincorporated area of Du Page County, plaintiffs' predecessors obtained annexation of the unincorporated portion to the City of Darien. Upon annexation all of the subject property was zoned from the R-2 single-family dwelling district to the R-3 multiple-family dwelling district which allowed the development of 343 dwelling units on the property with a special use for a planned unit development. In good faith reliance upon the annexation and rezoning, plaintiffs' predecessors invested large sums of money for architectural and engineering fees, the purchase of adjoining property and incurred other expenses. They also contributed a large sum to the school district. In December of 1973 plaintiffs purchased the property at a price which reflected the new zoning classification and allege they would not have purchased the property if they were unable to construct the 343-unit development. In addition, plaintiffs expended further sums in reliance upon the zoning classification. Plaintiffs' actions notwithstanding, defendants individually and in their official capacity on about July 1, 1974, authorized the rezoning of the property from its present classification to a planned unit development with a special use for the density of not more than 4 units to an acre and further directed that of the 80 units permitted, 42 were to be single-family residences. Plaintiffs allege these acts were done without legal authority and with knowing and intentional disregard for the law. In the alternative, plaintiffs claim defendants failed to ascertain and apply the law before acting upon the zoning. In this Count plaintiffs seek $350,000 in damages.

• 1 In Herman v. Prudence Mutual Casualty Co., 41 Ill.2d 468 (1969), where the tort was defined in terms of section 766 of the Restatement of the Law of Torts, the court states at page 473:

"`Except as stated in Section 698 [which is not here relevant], one who, without a privilege to do so, induces or otherwise purposely causes a third person not to

(a) perform a contract with another, or

(b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.

Part (b) of the ensuing comments would lend support to plaintiffs' argument that there is a general duty not to purposely interfere with another's contractual expectancies from third persons. It also, however, is there indicated that a privilege to interfere, even in contractual relationships, may exist dependent upon the methods used (b), interest of the interferer (c), purpose (d), ill will (m), and other factors more specifically dealt with in section 767 * * *." *fn1

The prospective business relation with another need not be evidenced by an enforceable contract. In City of Rock Falls v. Chicago Title & Trust Co., 13 Ill. App.3d 359 (1973), the court stated at page 363:

"The elements which establish a prima facie tortious interference are the existence of a valid business relationship (not necessarily evidenced by an enforceable-contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted. The interest protected is the reasonable expectation of economic advantage."

Plaintiffs, however, in Count II do not allege an interference with either a business relation with specific third parties or with an identifiable prospective class of third persons.

• 2 In each of the cases cited by the plaintiffs (Doremus v. Hennessy, 176 Ill. 608 (1898), City of Rock Falls v. Chicago Title & Trust Co., 13 Ill. App.3d 359 (1973)) there are allegations that some specific third party was induced by a defendant to refrain from dealing with a plaintiff. Other cases which we have found are limited on their facts to situations in which a contractual arrangement with an identifiable third party is at least contemplated. (See, e.g., Leo Spear Construction Co. v. Fidelity & Casualty Co., 446 F.2d 439, 446 (2d Cir. 1971); American Hot Rod Association, Inc. v. Carrier, 500 F.2d 1269, 1275 (4th Cir. 1974); NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 (1965); Fitt v. Schneidewind Realty Corp., 81 N.J. Super. 497, 196 A.2d 26, 29 (1963); Colorado Insurance Group, Inc. v. United States, 216 F. Supp. 787, 792 (D. Colo. 1963).) The broadest scope of recovery for interference with the business relationship of a plaintiff with unspecified third parties appears to be found in Willis v. Santa Ana Community Hospital Association, 26 Cal.Rptr. 640, 376 P.2d 568, 570 (1962). In Willis, the court entertained an action for interference with a doctor's relationship with his prospective patients when the defendant governing association of the hospital refused to permit the plaintiff physician to use hospital facilities and it was alleged that the purpose of the refusal was to restrain competition for the benefit of the association membership. On the facts pleaded in the complaint before us no conspiracy to restrain competition in order to benefit the competing members of the conspiracy is alleged as in Willis. And the allegations contained in Count II fall far short of pleading a cause of action based on interference with a business relationship between the plaintiff and specific third parties or any clearly identifiable group of third parties contemplating prospective contractual arrangements with the plaintiff.

Moreover, the cause of action which plaintiffs seek to establish is a "purposely" caused tort. (See Herman v. Prudence Mutual Casualty Co., 41 Ill.2d 468, 473 (1969).) *fn2 Although the plaintiffs state in cursory language that the defendants "intentionally interfered with the plaintiffs' business affairs concerning the subject property without legal justification and against legal precedent" none of the particular acts stated allege that the defendants purposely caused a third person not to enter into or continue with prospective contractual relationship. There are no facts stated in the complaint to suggest that defendants had as their purpose the interference with plaintiffs real estate business as is required to support an allegation that defendants interfered with prospective contractual relations of the plaintiffs. Thus, because Count II omits the basic ...


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