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05/25/88 Equity Associates, Inc., v. the Village of Northbrook

May 25, 1988

EQUITY ASSOCIATES, INC., ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF NORTHBROOK ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

524 N.E.2d 1119, 171 Ill. App. 3d 115, 121 Ill. Dec. 71 1988.IL.818

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiffs, Equity Associates, Inc., Edward Schwartz, and La Salle National Bank, not personally but as trustee under trust No. 53082, appeal the dismissal by the circuit court of Cook County of their complaint against defendants, the Village of Northbrook and several individual officers or members of its board of trustees, pursuant to section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-615).

Plaintiffs' complaint, alleging various State and Federal causes of action, stemmed from defendants' prosecution of a lawsuit against plaintiffs and the County of Cook wherein defendants sought to enjoin the issuance of a county building permit to plaintiffs for construction of two 10-story office buildings on real estate adjacent to the village. Defendants alleged that the county zoning ordinance applicable to the property was invalid insofar as it permitted the construction of any building taller than 65 feet on the property and the construction of the two buildings proposed by plaintiffs, which were to exceed that height.

This court previously ruled, inter alia, that defendants' complaint adequately alleged injury to the village in its corporate capacity due to the proposed construction of plaintiffs' buildings based on the test for standing established in Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, 410 N.E.2d 37, cert. denied (1981), 449 U.S. 1126, 67 L. Ed. 2d 112, 101 S. Ct. 943. (Village of Northbrook v. County of Cook (1984), 126 Ill. App. 3d 145, 147, 466 N.E.2d 1215.) In Barrington Hills, our supreme court conditioned a municipality's standing to challenge the zoning laws of any governmental unit "upon a clear demonstration that it would be substantially, directly and adversely affected in its corporate capacity." (Barrington Hills, 81 Ill. 2d at 398.) After a bench trial upon remand, the circuit court granted the defendants, i.e., plaintiffs here, a directed judgment.

Thereafter plaintiffs filed the subject six-count complaint. Count I alleged a claim for malicious prosecution. Count II alleged a claim for a taking and damaging of plaintiff's property for public use without just compensation as provided by law in violation of article I, section 15, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, 15). Count III alleged a claim for a taking of plaintiffs' property without compensation in violation of the fifth and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV). Count IV alleged a claim for violation of the Civil Rights Act (42 U.S.C.

Specifically, they assert that count I adequately alleged each of the five elements of a claim for malicious prosecution. Those elements are: (1) the institution of civil proceedings by the defendant; (2) termination thereof in the plaintiff's favor; (3) lack of probable cause for the proceeding; (4) malice on the defendant's part in bringing the action; (5) the plaintiff's arrest, the seizure of his property, or some other special injury exceeding the usual expense, annoyance and inconvenience of defending a lawsuit. (See Bank of Lyons v. Schultz (1980), 78 Ill. 2d 235, 239, 399 N.E.2d 1286.) After a review of the complaint, we conclude that plaintiffs failed to adequately allege any special injury inflicted upon them by defendants' prosecution of the prior lawsuit against them. As a result, we affirm the dismissal of count I of the complaint.

Paragraph 37 of count I of plaintiffs' complaint alleges the following special damages:

"Loss of potential tenants . . .,

Loss of potential institutional lending commitments . . .,

Defense of an absurd and/or frivolous piece of litigation, . . ., including . . . ...


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