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Kevin's Towing, Inc. v. Thomas

August 18, 2004


Appeal from the Circuit Court of Lake County. No. 01-L-747. Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer


Plaintiff, Kevin's Towing, Inc., filed a complaint against defendants, Bette Thomas and the City of North Chicago, alleging that defendants interfered with a towing contract between plaintiff and Edward Hines Lumber Company (Hines). The trial court granted summary judgment in defendants' favor on the basis that defendants were entitled to discretionary immunity under section 2--201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/2--201 (West 2000)). We affirm.

The present dispute began on Saturday, June 30, 2001, when plaintiff towed a number of unauthorized cars from Hines' parking lot in the City of North Chicago (City) and took them to plaintiff's storage lot in Waukegan. Plaintiff originally had a written towing contract with North Chicago Lumber, the predecessor to Hines, and Hines had continued the relationship under the same terms. The Hines lot is located near the entrance to the Great Lakes Naval Base, which was holding a Fourth of July celebration. When the celebration ended and the vehicle owners returned to the lot, they discovered that their cars had been towed. The vehicle owners were informed that their automobiles had been transported to plaintiff's facility in Waukegan but that they could not retrieve them that night. Eventually, the North Chicago police department and Bette Thomas, the City's mayor, were notified. Mayor Thomas went to Hines' lot to see if she could resolve the situation.

Mayor Thomas testified in her deposition that when she arrived at the lot, she encountered about 15 people, including angry adults and crying children. It was chaotic, with people cursing and screaming. At that time, Mayor Thomas did not know anything about the lot, including whether the lot was public or private, who owned the lot, or who had towed the cars.

Kelly Breneisen, plaintiff's employee, testified in her deposition that she was instructed by plaintiff's dispatch service to contact the police. The North Chicago police department, in turn, advised Breneisen to call the mayor. Mayor Thomas asked Breneisen to allow a pastor to retrieve church keys from his car because he needed them to open the church the next day. Breneisen refused, saying that it was dangerous to release cars at night. The mayor seemed to understand. However, in a subsequent conversation, the mayor angrily demanded that plaintiff release all the vehicles but then calmed down and again asked for just the pastor's keys. Breneisen told Mayor Thomas that she could bring the pastor to plaintiff's facility but that a police officer should be present for everyone's safety. Breneisen dispatched driver Fred Schultz to the office to release the pastor's keys.

Mayor Thomas had all of the vehicle owners and passengers transported in City vehicles to plaintiff's office in Waukegan. She testified that she did so because she felt bad for the families and did not want them to feel that the City was at fault. Mayor Thomas was also concerned that the incident would generate bad publicity for the City. Mayor Thomas felt that she should get the families out of the City and take them to where their cars were.

Schultz testified in his deposition that when he arrived at plaintiff's office, he saw between 25 and 30 people standing around the office lot. People demanded their cars, and Schultz felt threatened. Mayor Thomas introduced herself to Schultz and became "belligerent and demandatory [sic] and very aggressive and outspoken." She demanded that plaintiff release all of the vehicles, saying that "Kevin has got a real racket going here" and should not be towing in the City because plaintiff did not have a facility there. She also said that she would do everything in her power, including contacting her attorneys, to ensure that plaintiff did not tow from the Hines lot again. Waukegan police officers arrived, and they negotiated the release of all of the towed vehicles.

Mayor Thomas testified that she felt that plaintiff's employees treated her without respect. She was not angry at plaintiff but was angry and "a little annoyed" with one of plaintiff's employees because the employee was not contacting someone with authority to release the cars.

According to Kevin DePerte, plaintiff's owner, he learned of the June 30 incident on July 2, 2001. He called Mayor Thomas that day. Mayor Thomas "promised" that plaintiff would lose its towing contract with Hines, and she said that she would attack plaintiff in a City newsletter. Mayor Thomas said that she was "not done with Kevin's yet," and when DePerte began to respond to her statements, she hung up.

The mayor approved an editorial in the City newsletter, criticizing plaintiff. The editorial asked citizens to call city hall if they had any complaints about plaintiff, but no one called to complain. Mayor Thomas asked City officials to check if the Hines lot was in compliance with the City code, and the City issued a citation to Hines due to the lot's condition. Mayor Thomas also arranged to have a meeting with Hines' representatives.

According to Robert Long, a City attorney, the mayor asked if she had the right to force Hines to get a different towing company. Long told Mayor Thomas that she could not force Hines to do so but that, at the meeting, the City would try to negotiate with Hines to obtain a towing company whose owner the City could contact in the middle of the night.

The meeting took place on August 14, 2001. In attendance were the mayor, Long, three other City officials, two Hines employees, and Hy Addison, Hines' corporate attorney. Mayor Thomas testified that the purpose of the meeting was to see if the lot was in compliance with City ordinances. Addison believed that the purpose of the meeting was to have Hines terminate its relationship with plaintiff.

At the meeting, City officials discussed zoning, licensing, and other matters related to the parking lot, including the June 30 incident. According to Addison, the meeting was cordial and all of the issues mentioned were legitimate City concerns that were within the City's authority to look into and discuss. Addison also felt that City officials were explicit about their desire to have Hines end their relationship with Kevin's, in part because the City was raising many issues that Hines could be forced to resolve. Mayor Thomas testified that she did not request that Hines end its relationship with plaintiff, but she did say that it would be a good idea if Hines considered a local towing company so that if another incident occurred, the City would be able to contact the company's owner and resolve the situation. The City provided Hines with the names of three local towing companies. Hines had previously been satisfied with plaintiff's work and had no intention of ending the relationship. However, as a direct result of ...

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