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Raphael J. Musicus v. First Equity Group

November 26, 2012


Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois Circuit No. 11-L-10 Honorable Ted J. Hamer, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Justices Lytton and McDade concurred in the judgment and opinion.


¶ 1 Plaintiff, Raphael J. Musicus, brought suit against First Equity Group, LLC (First Equity), CVS Pharmacy, Inc. (CVS), and the City of Kewanee (City) for damages and other relief relating to the City's grant of First Equity's application for rezoning of certain real property and a special use permit. Plaintiff's main allegation in the complaint was that notice of the public hearing on the application was deficient. All three defendants filed motions to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), alleging that notice was proper.

After a hearing, the trial court granted the motions to dismiss of First Equity and the City (collectively referred to as defendants) and denied the motion to dismiss of CVS. Plaintiff appeals. We affirm the trial court's grant of the City's motion to dismiss and reverse the trial court's grant of First Equity's motion to dismiss.


¶ 3 Plaintiff lived in Wilmette, Illinois, and owned certain commercial property on Main Street in Kewanee, Henry County, Illinois, that was leased to CVS. Kewanee was a municipality with a population of less than 500,000 people. On January 5, 2010, First Equity, the real estate developer for CVS, filed with the City an application for rezoning and a request for a special use permit as to certain real property (the subject property) located within 250 feet of plaintiff's property. In the application, First Equity sought, among other things, to rezone the subject property for commercial use and to obtain a special use permit that would allow for the sale of alcohol on the subject property so that First Equity could build a new CVS pharmacy at that location. As part of the requirements of the application package, First Equity provided the City with a list of the property owners of all of the properties within 300 feet of the subject property (the affected property owners), which was obtained from the county assessor's office. On the list, the owner of plaintiff's property was set forth as "Osco 18-825, % Raphael J. Misicus [sic] #8691-01," with an address of "CVS Pharmacy Inc; Store Acct Dept[,] One CVS Drive[,] Woonsocket[,] RI 02895."*fn1

¶ 4 After receiving the application, the City scheduled a public hearing for January 28, 2010, before the Kewanee plan commission regarding the rezoning application. The City published legal notice on January 9, 2010, in Henry County's Star Courier newspaper. Among other things, the notice indicated that a public hearing was going to be held on the rezoning application on January 28 and that any interested person could be present and would have an opportunity to be heard. On January 13, 2010, the City also sent notice to all of the affected property owners by mail, using the addresses that had been provided by First Equity from the property-tax records. The City's notice, however, omitted the percent sign and the words, "CVS Pharmacy, Inc." and "Store Acct Dept."

¶ 5 Plaintiff did not receive the notice that was mailed to the address listed in the tax records and did not attend the January 28 hearing. After the hearing, First Equity's application was approved by the Kewanee plan commission.

¶ 6 In December 2010, plaintiff filed suit in Cook County against First Equity, CVS, and the City, alleging that he did not receive the requisite notice of the rezoning application and that the grant of rezoning and special use was void. Plaintiff sought damages and other relief. The suit was transferred to Henry County, and the City and First Equity filed section 2-619 motions to dismiss, alleging that the notice that was given was proper.*fn2 After a hearing, the trial court granted the motions. Plaintiff appealed.


¶ 8 On appeal, plaintiff argues that the trial court erred in granting defendants' section 2-619 motions to dismiss the complaint. Plaintiff asserts that the motions should not have been granted because: (1) defendants' claim of proper notice was not a valid basis for a section 2-619 dismissal; (2) the method of notice used in the present case was deficient; and (3) defendants failed to satisfy the statutory and local standards for obtaining a special use permit. Defendants argue that the trial court's ruling was proper and should be affirmed.

ΒΆ 9 Section 2-619 of the Code allows a litigant to obtain an involuntary dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 (West 2010). The statute's purpose is to provide litigants with a method for disposing of issues of law and easily proven issues of fact early in a case, often before discovery has been conducted. See Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003); Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a section 2-619 proceeding, the moving party admits the legal sufficiency of the complaint, but asserts an affirmative defense or other matter to defeat the nonmoving party's claim. Van Meter, 207 Ill. 2d at 367. Section 2-619 lists several different grounds for which an involuntary dismissal may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2010). Under subsection (a)(9), the subsection that applies in this case, a litigant may obtain an involuntary dismissal of a claim asserted against him if the claim is barred by other affirmative matter, which avoids the legal effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2010).An "affirmative matter" is something in the nature of a defense which negates the cause of action completely. Van Meter, ...

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