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03/17/98 RIVER PARK v. CITY HIGHLAND PARK

RIVER PARK, INC.; SPATZ AND COMPANY; AND COUNTRY CLUB ESTATES, LTD., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF HIGHLAND PARK, DEFENDANT-APPELLEE.



Modified Upon Denial of Rehearing Appeal from the Circuit Court of Lake County. No. 94--L--1637 Honorable Bernard E. Drew, Judge, Presiding.

The opinion of the court was delivered by: Justice Inglis

Plaintiffs, River Park, Inc. (River Park), Spatz & Company (Spatz), and Country Club Estates, Ltd. (CCE), appeal the trial court's order dismissing their amended complaint against defendant, the City of Highland Park, because their claims were barred by a prior Judgement and were not filed within the period of limitations. We affirm in part, reverse in part, and remand.

This is the second time this case has been before this court. In plaintiffs' first appeal, River Park, Inc. v. City of Highland Park, 281 Ill. App. 3d 154 (1996), we affirmed in part and reversed in part the trial court's order dismissing plaintiffs' complaint for failure to state a cause of action. As a result, plaintiffs' claims for tortious interference with business expectancy (count I), breach of implied contract (count II), and abuse of governmental power (count IV) were reinstated. On remand, the trial court granted defendant's motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 1996)) on the grounds that plaintiffs' claims were barred by res judicata and were untimely.

The facts giving rise to this appeal are adequately set forth in River Park, 281 Ill. App. 3d 154. We summarize the salient points, once again taking all well-pleaded facts in the amended complaint as true. See, e.g., Harris Bank v. Village of Mettawa, 243 Ill. App. 3d 103, 109 (1993).

Spatz, a builder and developer, purchased River Park, which owned the 162-acre property of the Highland Park Country Club. CCE later purchased a portion of the 162 acres for development. As part of his financing package for the River Park purchase, Spatz was required to obtain approval on the final plats of development within one year or face foreclosure. Defendant's planning commission and city council approved Spatz' petition for rezoning the parcel. While the matter was pending, however, Raymond Geraci, a member of the city council, formed a "citizen's committee" called "Save our Open Spaces," dedicated to preventing plaintiffs from developing the parcel and to making defendant buy the parcel if possible.

As part of the rezoning process, the city engineer was required to give approval to plaintiffs' engineering plans. The engineer refused, however, to give final approval to plaintiffs' engineering plans, and the city council refused to approve the plans without the engineer's approval.

Spatz' one-year deadline passed and River Park was forced to file for bankruptcy. As part of its reorganization, it sold 34 acres to CCE and again filed a petition to rezone the parcel. Several months after the second rezoning petition was filed, the lender foreclosed on the property. Plaintiffs negotiated with the lender a right of repurchase contingent upon obtaining approval of their second rezoning petition.

After conducting a number of hearings, defendant demanded proof that plaintiffs still owned the parcel. Defendant's demand was on short notice, however, and plaintiffs could not satisfy the demand in time, nor would defendant give plaintiffs an extension of time. Even though plaintiffs eventually presented proof of ownership, defendant refused to consider it and deemed plaintiffs' second petition withdrawn.

While plaintiffs' second petition was pending, defendant began negotiating with plaintiffs' lender to buy the parcel for itself. Defendant was aware of plaintiffs' rights to redeem and repurchase the parcel upon its rezoning. Defendant purchased the parcel on May 3, 1993, for $10 million, which, according to plaintiffs, was "far less than its market value." In December 1995, defendant sold portions of the parcel, which were later developed similarly to plaintiffs' plans.

Plaintiffs filed a federal civil rights suit against defendant, which was dismissed. River Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir. 1994). On November 21, 1994, plaintiffs filed their complaint in the Lake County circuit court. Upon remand of plaintiffs' first appeal, defendant filed a motion to dismiss the amended complaint. The trial court granted defendant's motion and plaintiffs timely appealed.

Plaintiffs initially argue that defendant has waived consideration of its section 2--619 motion to dismiss because defendant could have and should have filed it with the earlier section 2--615 motion to dismiss but did not. While considerations of judicial and client economy might favor this argument, neither the Code nor case law requires a party to file all dispositive motions together. Section 2--619.1 of the Code states "otions with respect to pleadings under Section 2--615, motions for involuntary dismissal or other relief under Section 2--619, and motions for summary Judgement under Section 2--1005 may be filed together as a single motion in any combination." 735 ILCS 5/2-619.1 (West 1996). Thus, section 2--619.1 of the Code permits, but does not require, a party to file all of its motions to dismiss at once. Additionally, defendant's motion practice in this case is clearly proper under McGinnis v. A.R. Abrams, Inc., 141 Ill. App. 3d 417, 420 (1986), which rejected plaintiffs' waiver argument on similar procedural facts.

Next, plaintiffs argue that the trial court erred by finding that their claims were barred by res judicata. Plaintiffs contend that the dismissal of their previous federal suit was not a final Judgement on the merits and that, in any event, the cause of action in federal court was different from the cause of action here.

Where there is a final Judgement on the merits, the doctrine of res judicata bars subsequent actions on the same claims between the same parties or their privies. The doctrine bars not only what was actually litigated but also what could have been litigated in the previous lawsuit. The elements of res judicata are (1) a final Judgement on the merits rendered by a court of competent jurisdiction; (2) an identity of cause of action; and (3) an identity of parties or their privies. People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992).

Defendant contends that plaintiffs have waived this argument because they failed to raise it in the trial court. We have reviewed the record and conclude that plaintiffs properly preserved this issue for ...


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