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Michigan Ave. Nat'l Bk. v. State Farm Ins.





APPEAL from the Circuit Court of Cook County; the Hon. ALLEN HARTMAN, Judge, presiding.


Rehearing denied May 15, 1980.

The plaintiff filed a complaint alleging that the defendants were guilty of certain actions which constituted interference with prospective business advantage. Certain of the defendants (the appellees here) filed a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48). In the reply brief (not the motion itself) they contended they could not be held liable as they were competitors of plaintiff. The trial court granted the motion, dismissed the appellees as defendants and ruled pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)), that there was no reason to delay appeal. We find defendants' motion to be insufficient and reverse for further proceedings.

The plaintiff is trustee of a trust holding title to real property operated as the Summit Plaza Shopping Center (Summit). In its amended complaint, it alleged that:

1. Defendant Percy Wilson Mortgage and Finance Company (Percy Wilson) was a mortgage banker and broker and serviced mortgage loans for lenders.

2. Percy Wilson on November 1, 1972, acting as plaintiff's mortgage banker, obtained on behalf of plaintiff a mortgage in the amount of $1,500,000 from defendant State Farm Insurance Companies (State Farm) which company as part of its ordinary course of business invested in first mortgages on real property. Percy Wilson was paid $7,500 by the plaintiff as its commission.

3. Thereafter Percy Wilson acted as loan servicing agent for State Farm and, as loan servicing agent and as mortgage banker for plaintiff, had access to plaintiff's books and records, and was privy to all information relevant to the operation of Summit, plaintiff's leases and all other contracts relating to the property.

4. In "December 1976 [sic — apparently December 1975 was intended]" Summit became distressed as a result of a loss of a major tenant, W.T. Grant & Co., which filed for bankruptcy.

5. Thereafter, Percy Wilson, State Farm, E.N. Maisel & Associates (Maisel) (one of the appellees), a corporation which plaintiff believed to be engaged in the business of real estate development and leasing with particular regard to leasing stores to major retail operators, and Marion August (August) (the other appellee) an individual believed by the plaintiff to be the agent of Maisel and the nexus between Maisel and the other defendants, acting individually and in concert with each other, embarked upon a course of conduct intended and calculated to deprive plaintiff of the property by use of economic duress and the utilization of confidential and private information made available to defendants through Percy Wilson and State Farm.

6. On or about "February 24, 1976 [sic — apparently February 1977 was intended]" plaintiff, having no knowledge of the scheme, advised Percy Wilson and State Farm that it had succeeded in negotiating a sale of Summit at a sale price of $2,531,000, which sale would result in an equity to plaintiff of about $1,000,000.

7. Thereafter, in furtherance of the conspiracy and the course of conduct of defendants to deprive plaintiff of the property, Percy Wilson and State Farm unreasonably withheld their approval of the sale; Percy Wilson, through an agent, informed August and Maisel of the contract to sell; Maisel, through August, purchased the mortgage lender's position to State Farm and in connection with this purchase caused State Farm to formally refuse its approval of the sale.

8. Maisel, although having no ownership interest whatever in the subject shopping center and at the time of its original negotiations having no interest of any kind in the said property, had negotiated a lease of the vacant space in Summit to S.S. Kresge Company (Kresge).

9. Upon discovery of this negotiation, plaintiff as owner of Summit, contacted Kresge to offer it the space.

10. In furtherance of the course of conduct to deprive plaintiff of the property, the defendants acting individually or in concert made representations to officers and agents of Kresge relating to plaintiff's solvency and general financial condition with the intent and purpose of interfering with and obstructing any negotiations of plaintiff with Kresge, such statements were in some respect false as defendants knew or should have known and constituted a slander of credit.

11. At all times complained of, Percy Wilson was in a fiduciary capacity with respect to plaintiff and had a duty not to disclose financial information and general information about plaintiff and its business and had a duty to inform plaintiff of any available lessees.

• 1 Maisel and August filed a section 48 motion to dismiss stating that the complaint was based on a claim of conspiracy to cause State Farm to refuse its approval of the sale, that State Farm had a legal right to reject the sale contract, and a conspiracy to do a lawful act is not a tort (this is not totally accurate, a conspiracy to accomplish a lawful act by unlawful means is a tort). (Bau v. Sobut (1977), 50 Ill. App.3d 732, 365 N.E.2d 724.) They also relied on section 7 of the mortgage act (Ill. Rev. Stat. 1975, ch. 95, par. 57), which gives a mortgagor 90 days within which to pay past due mortgage installments after service of summons in ...

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