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11/02/89 Timothy J. Towne, v. the Town of Libertyville

November 2, 1989

TIMOTHY J. TOWNE, PLAINTIFF-APPELLANT

v.

THE TOWN OF LIBERTYVILLE ET AL., DEFENDANTS-APPELLEES (THE LAW FIRM OF SIEMON, LARSEN AND PURDY, AS AGENT OF THE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Town of Libertyville et al., et al., Defendants)

546 N.E.2d 810, 190 Ill. App. 3d 563, 137 Ill. Dec. 865 1989.IL.1736

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. INGLIS and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

In December 1987, plaintiff, Timothy J. Towne, pursuant to sections 1983 and 1985(3) of the Civil Rights Act of 1871 (Civil Rights Act) (42 U.S.C.A. §§ 1983, 1985(3) (West 1981)), filed a complaint against the Town of Libertyville (township) and others, alleging that he was wrongfully deprived of his property without due process of law and without just compensation as guaranteed by the fourteenth amendment to the Federal Constitution (U.S. Const., amend. XIV).

The defendants filed a motion to dismiss pursuant to section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). The trial court ruled that plaintiffs could not state a cause of action and dismissed the complaint with prejudice in an order filed January 6, 1989. In the same order, the court denied plaintiff's motion to amend his complaint. Plaintiff appeals, contending that his complaint was sufficient to state a section 1983 action; alternatively, plaintiff argues that it was error for the trial court to deny his motion to amend the complaint. We affirm.

The original controversy stems from the township's institution of condemnation proceedings pursuant to the Township Open Space Act (Open Space Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.) against several parcels of land in which plaintiff had a legal or equitable interest. In December 1986, plaintiff agreed to sell certain parcels and to donate others to the township as part of an overall settlement of the case. The agreement shows that plaintiff was to be compensated $920,920. As part of the agreement, the township agreed to deliver at closing a release of the lis pendens recorded against a certain three-acre parcel and to withdraw its offer to purchase that parcel. The offer to acquire the parcel was withdrawn on December 24, 1986. According to the complaint, on September 16, 1987, the township subsequently reinstituted condemnation proceedings to acquire the three-acre parcel. The record is silent as to the Disposition of that suit.

On December 24, 1987, plaintiff filed his complaint at law requesting injunctive relief, compensation, and punitive damages for violations of his constitutional rights because he was wrongfully deprived of his property. In count I, plaintiff alleged that defendants conspired to deprive him of the use of his property and just compensation therefor by instituting eminent domain proceedings against property that was exempt under the Open Space Act, presumably because it was either property of less than 50 acres in size or it was farmland. Count II is generally repetitive of count I and concludes that the initiation and continuation of the eminent domain proceedings constitutes an abuse of process because the subject property was exempt under the Open Space Act.

Section 2-615 of the Civil Practice Law provides for a motion to dismiss a complaint for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), and an appeal from such a dismissal preserves for review only the question of the legal sufficiency of the complaint. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273.) While a motion to dismiss admits all well-pleaded facts as true, the motion does not admit Conclusions of law or Conclusions of fact which are not supported by allegations of specific facts which form the basis of such Conclusions. (Payne, 152 Ill. App. 3d at 273.) It is well established that Illinois is a fact-pleading State, and if, after deleting the Conclusions that are pleaded, there are not sufficient allegations of fact to state a cause of action, the motion to dismiss must be granted regardless of whether it informs the defendant in a general way of the nature of the claim against him. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 424, 426.) Although pleadings are to be construed liberally, factual deficiencies may not be cured by liberal construction or argument. (88 Ill. 2d at 427.) The granting of a motion to dismiss is within the sound discretion of the trial court. 88 Ill. 2d at 422.

On appeal, plaintiff argues only that it was error for the trial court to dismiss his action based on section 1983 of the Civil Rights Act (42 U.S.C.A. § 1983 (West 1981)). Under that section, plaintiff must allege sufficient facts to show two essential elements: (1) whether the conduct complained of was committed by a person acting under color of State law; and (2) whether this conduct deprived the person of rights, privileges, or immunities secured by the constitution or laws of the United States. Parratt v. Taylor (1981), 451 U.S. 527, 535, 68 L. Ed. 2d 420, 428, 101 S. Ct. 1908, 1913.

Plaintiff complains that he was deprived of his property and just compensation without procedural and substantive due process of law. The proper method of reaching the issue of the condemnor's right to condemn plaintiff's land was by filing a traverse or a motion to dismiss during the preliminary stage of the condemnation proceedings. (City of Chicago in Trust for the Use of Schools v. Albert J. Schorsch Realty Co. (1968), 95 Ill. App. 2d 258, 261.) Plaintiff failed to avail himself of the proper remedy to contest the propriety of the condemnation proceedings and instead elected to settle and compromise his claims with the defendants. Plaintiff's complaint shows that, as consideration for his settlement, he was to be compensated in the sum of $920,920 for the taking of his property. We consider plaintiff's objections to the condemnation proceedings waived, and he cannot now raise, in a collateral proceeding, issues which he could have properly raised in the eminent domain proceedings. Plaintiff's contentions are without merit. Our careful review of the record discloses that there was no deprivation of any kind.

Contrary to plaintiff's misstatement of the law, condemnation proceedings do not deal merely with just compensation. As a preliminary matter, when the complaint to condemn is traversed, the trial court may determine all questions raised regarding the right of the condemnor to condemn the property. (See F. Righeimer, Jr., Eminent Domain in Illinois ยง 4.05 at 54 (3d ed. 1986) (and cases cited therein).) The equitable principle of waiver will be recognized whenever a party intentionally relinquishes a known right, or, as in this case, when the party acts in such a manner as to warrant the inference of such a relinquishment. (In re Estate of Trahey (1975), 25 Ill. App. 3d 727, 731; National Bank v. Newberg (1972), 7 Ill. App. 3d 859, 868.) An objection to a condemnation proceeding is waived by the ...


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