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Varley v. Pickens





APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.


Plaintiffs Evelyn L. Varley, Carl J. Varley, and Peter F.M. Prillinger filed a complaint for declaratory judgment against defendants Kenneth E. Pickens; Jarvis, Deloach, and Jobst; and the city of Peoria alleging that a zoning ordinance and variance permit were arbitrary, unreasonable, and bore no relationship to the public health and welfare. Defendant Pickens, the only defendant involved on appeal, filed a motion for involuntary dismissal and the circuit court of Peoria County dismissed the action as barred by a prior judgment.

Prior to 1964, the subject property, a 3.385-acre tract surrounded by public park land, was zoned an "R-1, Low Density Residential District." In February 1964, the Peoria City Council rezoned the property to an "R-3, High Density Residential District." (Peoria, Ill., Ordinance 7789 (Feb. 25, 1964).) Two months later, the Zoning Board of Appeals granted a building-height variance permitting the erection of a 150-foot apartment building. In January 1973, the council again rezoned the property, returning it to an R-1 configuration. Peoria, Ill., Ordinance 9230 (Jan. 16, 1973).

The latter action of the council prompted the then owner land trust to challenge the rezoning of the property by means of a declaratory judgment action against the city of Peoria. The circuit court of Peoria County held that the council had exceeded its powers to regulate the use and development of land, as the land trust had incurred a substantial change in position. (Commercial National Bank of Peoria, Trustee, v. Peoria, No. 73-Z-289, Cir. Ct. Peoria County, filed Dec. 11, 1974.) The court's decision was never appealed, and the property's zoning configuration reverted to R-3.

On April 20, 1979, defendant Pickens (hereinafter defendant) purchased the premises and certain adjacent properties from the land trust and commenced work on the development of a condominium apartment building. Prior to the filing of this action, he had incurred developmental expenses of approximately $175,000 in addition to the premises' $230,000 purchase price.

After the filing of plaintiffs' complaint, defendant moved for involuntary dismissal pursuant to sections 48 (1)(d) and 48 (1)(i) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 48 (1)(d), 48 (1)(i)). The trial court held that the 1974 judgment was res judicata to the issues raised and barred the action. The court found the issue of detrimental reliance to be premature. On appeal, plaintiffs question the application of res judicata, and the defendant argues additionally that the doctrine of detrimental reliance offers additional support for the action of the trial court.

• 1, 2 Turning to the first issue, the doctrine of res judicata is divisible into the doctrines of estoppel by judgment and estoppel by verdict or collateral estoppel (e.g., C.I.S., Inc. v. Kann (1979), 76 Ill. App.3d 109, 394 N.E.2d 916; Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App.3d 972, 387 N.E.2d 785; Katz v. Berkos (1942), 316 Ill. App. 569, 45 N.E.2d 566, appeal denied; see also 23A Ill. L & Prac. Judgments § 281 (1979); 46 Am.Jur.2d Judgments § 397 (1969)). The term "res judicata" is sometimes used to refer exclusively to estoppel by judgment. (People v. Bone (1980), 82 Ill.2d 282, 412 N.E.2d 444.) For such estoppel by judgment to occur, there must be, as between the two actions, identity of parties, subject matter, and cause of action. (Ray Schools-Chicago-Inc. v. Cummins (1957), 12 Ill.2d 376, 146 N.E.2d 42.) Estoppel by verdict concludes only those matters in issue or points controverted upon the determination of which the finding or verdict was rendered (People v. Bone); however, identity of cause of action is not required (Healea v. Verne (1931), 343 Ill. 325, 175 N.E. 562).

As the presence of identical causes of action determines the doctrine to be applied, we begin with a consideration of this issue. While the term "cause of action" has no all-embracing definition (see 1 Am.Jur.2d Actions § 1 (1962)), the following has been used for our purposes herein:

"A cause of action consists of the right belonging to the plaintiff for some wrongful act or omission done by the defendant by which that right has been violated; the thing done or omitted to be done which confers the right upon the other to sue — that is, the act or wrong of the defendant against the plaintiff which caused a grievance for which the law gives a remedy. [Citations.] A cause of action includes every fact necessary for the plaintiff or the complainant to prove to entitle him to succeed and every fact which the defendant would have a right to traverse; the right to prosecute an action with effect. [Citations.]" City of Elmhurst v. Kegerreis (1945), 393 Ill. 195, 205-06, 64 N.E.2d 450, 454.

• 3 The right averred by the plaintiff land trust in the prior cause was that it was entitled to have the matter initially determined by the city zoning commission. The wrongful act or omission was the Council summarily rolling back the zoning configuration from R-3 to R-1 without this administrative determination. The right averred by plaintiffs in this cause is that they are entitled to have the subject zoning ordinance be unarbitrary, reasonable, and bear a relationship to the public health and welfare. The wrongful act or omission is that the R-3 configuration and the variance, insofar as they apply to plaintiffs' personal and property rights, fail to meet the above criteria and are constitutionally violative. The facts necessary to maintain the prior procedural attack on the roll back necessarily differ somewhat from those necessary to the instant substantive and constitutional challenge to the R-3 zoning and variance themselves. Under these circumstances, we cannot say the two causes of action are identical.

While the absence of identical causes precludes the application of the doctrine of estoppel by judgment, the doctrine of estoppel by verdict may be applicable if, as between the two actions, there is identity of subject matter and parties. As the subject matter of both actions is the zoning configuration of the same tract, we shall proceed to the question of whether the parties are identical.

Obviously, the parties are not nominally identical. In the prior action the plaintiff was Commercial National Bank of Peoria, as trustee, and the defendant was the city of Peoria. Two issues thus arise.

• 4 The first is whether defendant is in privity with Commercial National Bank of Peoria, as trustee. This issue arises as the doctrine of res judicata affects the rights of both the parties to a prior action and those of their privies as well. E.g., Towns v. Yellow Cab Co. (1978), 73 Ill.2d 113, 382 N.E.2d 1217

• 5 While there is no generally prevailing definition of privity which can automatically be applied to all cases (see 23A Ill. L. & Prac. Judgments § 390 (1979); 46 Am.Jur.2d Judgments § 532 (1969)), the concept contemplates a mutual and successive relationship to the same property rights which were the subject of the prior litigation (Sweeting v. Campbell (1954), 2 Ill.2d 491, 119 N.E.2d 237). One manner in which privity arises is by ...

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