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07/14/88 Robert C. Mcgann Et Al., v. Hospital Association

July 14, 1988

ROBERT C. MCGANN ET AL., PLAINTIFFS-APPELLANTS

v.

ILLINOIS HOSPITAL ASSOCIATION, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

526 N.E.2d 902, 172 Ill. App. 3d 560, 122 Ill. Dec. 509 1988.IL.1100

Appeal from the Circuit Court of Sangamon County; the Hon. C. Joseph Cavanagh, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

The plaintiffs, Robert McGann and Bill Schulenburg, filed a complaint and amended complaint pro se against the defendant, Illinois Hospital Association, Inc., to halt defendant's construction of an office building. Plaintiffs' complaint and amended complaint were both dismissed. The circuit court of Sangamon County refused to vacate the dismissal. Plaintiffs both appealed and filed a new complaint under a new case number in the circuit court. The court again dismissed. Plaintiffs appeal from both dismissals.

The defendant owns the property at 700 South Second Street, Springfield, Illinois. One plaintiff, Robert McGann, owns the adjacent property to the south, 710 South Second Street. The other plaintiff, Bill Schulenburg, owns the property adjacent to McGann's property on the south, 712 South Second Street.

The defendant filed a request for variances from several zoning requirements in order to construct an office building on its property to serve as its Springfield headquarters. On April 15, 1987, a public hearing concerning the requested zoning variances was held, and the Springfield city council granted the variances on May 12, 1987.

On May 12, 1987, the plaintiffs filed their first complaint pro se and a motion for preliminary injunction. The complaint (1) set out the ownership of the respective properties, (2) recited the application for and granting of the zoning variances and set them out in detail, (3) stated Conclusions as to why the granting of the variances was "illegal," (4) recited that plaintiffs have no available legal remedy and will suffer irreparable damage, and (5) asked for temporary and permanent injunctions against construction.

Defendant filed a motion to dismiss. Defendant claimed plaintiffs failed to state a cause of action, failed to allege an injury, and failed to apprise the defendant of specific allegations charged. After a hearing before the circuit court, the motion was granted on June 18, 1987. The court granted the plaintiffs 14 days to refile.

On June 24, 1987, plaintiffs filed a first-amended complaint pro se. This complaint was identical to the first in regard to items (1) through (3) set out above. In place of items (4) and (5) plaintiffs asserted their rights were threatened by defendant's plans for construction and asked the court for a "cease and desist" order to prevent construction from starting. As with the first complaint, the defendant moved to dismiss for inadequacy of the pleadings. After oral argument on the motion, it was granted with prejudice on July 14, 1987.

On August 6, 1987, plaintiffs, now represented by counsel, filed a motion to vacate the order of dismissal and to amend their complaint a second time. The motion to vacate stated the plaintiffs had not received a hearing on the merits of their case and an adequate pleading could be presented. The plaintiffs attached a proposed second-amended complaint to their motion. The trial court denied the motion to vacate and for leave to file a second-amended complaint. The plaintiffs then filed an appeal in this matter.

Plaintiffs argue these dismissals denied them their right to have their claims heard on the merits and the refusal of the trial court to vacate its dismissal was an abuse of discretion. We disagree.

The second case, which has been consolidated for the purposes of this appeal, began when plaintiffs filed a complaint in the circuit court on September 1, 1987. This complaint was identical to the second-amended complaint which plaintiffs attached to their motion ...


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