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11/09/89 Ralph F. Madonna Et Al., v. Michael J. Giacobbe Et Al.

November 9, 1989

RALPH F. MADONNA ET AL., PLAINTIFFS

v.

MICHAEL J. GIACOBBE ET AL., DEFENDANTS (MICHAEL J. GIACOBBE ET AL., THIRD-PARTY COUNTERPLAINTIFFS-APPELLANTS; THE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

City of Wood Dale et al.,

Counterdefendants-Appellees)

546 N.E.2d 1145, 190 Ill. App. 3d 859, 138 Ill. Dec. 90 1989.IL.1775

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Counterplaintiffs, Michael Giacobbe and Woodside Builders, Inc., appeal from an order of the circuit court of Du Page County, dismissing their fourth amended counterclaim against counterdefendants, City of Wood Dale, Jerry Greer, the mayor of Wood Dale, and seven members of the Wood Dale city council. On appeal, counterplaintiffs assert that their fourth amended counterclaim stated a cause of action for breach of contract, tortious interference with contract, and tortious interference with a business expectancy. Counterplaintiffs contend in the alternative that if their fourth amended counterclaim was insufficient, they should have been granted leave to amend. We affirm.

This seemingly endless litigation was commenced on October 18, 1976, when plaintiffs, Ralph and Dorothy Madonna, filed a complaint against Giacobbe, Woodside, the City of Wood Dale (the City), and a land trust which held legal title to a subdivision just north of property owned by the Madonnas. The complaint alleged that Giacobbe and Woodside were constructing single-family residences in the subdivision, diverting the natural flow of drainage as a result, and causing surface water from the subdivision to flow onto the Madonnas' land. The Madonnas sought monetary damages and injunctive relief in their complaint.

On October 27, 1976, the City filed a complaint for indemnity against Giacobbe, Woodside, and the land trust. The City asserted that any active acts of negligence relating to the Madonna complaint were committed by Giacobbe, Woodside, and the land trust, and that any acts of negligence committed by the City were passive acts. In the event of a judgment against the City on the Madonna complaint, the City sought judgment in a like amount against Giacobbe and the other defendants.

Giacobbe and Woodside made the following allegations in the fourth amended counterclaim. Woodside was an Illinois corporation engaged in the business of developing and selling real estate, and Giacobbe was the beneficiary of a land trust which held title to certain real property in Du Page County. On May 6, 1976, Giacobbe, the land trust, and the City entered into a written agreement which provided that the City would annex the subject property. The agreement stated that the City would approve a plat which would subdivide the property into 33 lots for the purpose of allowing Giacobbe to construct a single-family home on each lot.

Paragraph 3D of the agreement stated that Giacobbe would build a water detention basin on lots 6, 7, and 8 of the subdivision. No homes would be constructed on these lots. Subparagraph 2 of paragraph 3D stated as follows:

"It is understood, however, that at such time as the OWNER enters into an agreement with the owner of other property located immediately to the South of and contiguous to the SUBJECT PROPERTY, the CITY will permit storm water detention in the amount required hereinabove to be located upon such other property to the South and contiguous to the SUBJECT PROPERTY, provided the OWNER has obtained prior approval by the County of Du Page and the City Council of the CITY of the Engineering Plans of the aforesaid detention basin and the said detention basin agreement. In the event of such approval by the County and the CITY, the OWNER may submit and apply for building permits for Lots No. 6, 7, and 8 in the manner set forth in the Ordinances of the CITY and this Agreement."

Paragraph 5 of the agreement prohibited the City from issuing stop orders directing cessation of work on the project without detailing the necessary corrective action and specifying the section of the City code violated by Giacobbe. Paragraph 6 stated that, in order to guaranty his obligation to construct certain public improvements, Giacobbe would be required to post a subdivision bond, provide a straight-line letter of credit or letter of ...


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