                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Johannesen v. Eddins, 2011 IL App (2d) 110108




Appellate Court              JAMES L. JOHANNESEN AND BARBARA R. JOHANNESEN,
Caption                      Plaintiffs-Appellants, v. SAMUEL EDDINS, Defendant-Appellee.



District & No.               Second District
                             Docket No. 2-11-0108


Filed                        December 28, 2011


Held                         In an action arising from plaintiffs’ attempt to construct a new house next
(Note: This syllabus         to defendant’s residence, the trial court erred in dismissing plaintiffs’
constitutes no part of       action alleging that defendant breached the agreement he allegedly made
the opinion of the court     with plaintiffs to support plaintiffs’ application for a variance and forgo
but has been prepared        any challenge to the calculation of the setback requirements by the city
by the Reporter of           building department, notwithstanding defendant’s reliance on the Illinois
Decisions for the            Citizen Participation Act, since defendant’s actions in challenging
convenience of the           plaintiffs’ efforts to construct the house were not immunized from
reader.)
                             liability by the Act where issues of material fact existed as to whether
                             defendant did enter into the alleged agreement.


Decision Under               Appeal from the Circuit Court of Du Page County, No. 10-L-219; the
Review                       Hon. John T. Elsner, Judge, presiding.



Judgment                     Reversed and remanded.
Counsel on                 James R. Figliulo and Joseph A. Donado, both of Figliulo & Silverman,
Appeal                     P.C., of Chicago, for appellants.

                           Robert T. O’Donnell and Adam M. Kingsley, both of O’Donnell Law
                           Firm, Ltd., of Libertyville, for appellee.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Burke concurred in the judgment and opinion.




                                             OPINION

¶1           Plaintiffs, James and Barbara Johannesen, appeal from the trial court’s dismissal of their
        first amended complaint. We reverse and remand.

¶2                                        I. BACKGROUND
¶3          On February 18, 2010, plaintiffs filed their initial complaint, which they subsequently
        amended. Their first amended complaint alleged that on February 27, 2006, plaintiffs
        purchased the property located at 222 E. Fourth Street in Hinsdale. Defendant, Samuel
        Eddins, owned the property at 202 E. Fourth, immediately west of plaintiffs’ property.
        Plaintiffs intended to replace the house located on the property with a larger house. They
        hired an architect, who requested a determination as to appropriate front setback and corner
        sideyard requirements from the Hinsdale building department. The building department
        calculated that a front setback of 85 feet and a corner sideyard of 54.78 feet were proper.
¶4          Defendant contacted plaintiffs and offered to assist them in obtaining any zoning
        variances they needed to build their new house. Plaintiffs told him that no variances were
        necessary, because the planned house fit into the building envelope that the building
        department had calculated. Defendant told them that he thought that the building
        department’s calculations were incorrect and that the front setback should have been greater.
        Defendant also wanted plaintiffs to obtain a corner sideyard variance so that their house
        could be built farther to the east, away from his property, to enhance the sightlines from his
        house.
¶5          On June 11, 2006, plaintiffs, defendant, another neighbor, and a lawyer met to discuss
        plaintiffs’ building plans. At that meeting, plaintiffs and defendant “reached a mutual
        agreement” that plaintiffs would accommodate defendant’s request to move the house farther
        east; in exchange, defendant agreed that he would support plaintiffs’ application for a
        variance and would forgo any challenge to the building department’s calculation of the front
        setback requirement. Defendant confirmed this agreement in a telephone call the next day.

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       Plaintiffs applied for a variance. Defendant signed the application as a “Nominal Applicant”
       and was also listed as an “amicus curiae ‘Nominal Applicant.’ ”
¶6         Plaintiffs alleged that, both prior to and after the Hinsdale Zoning Board’s consideration
       of their application, defendant engaged in a series of ex parte communications with David
       Cook, the Hinsdale village manager, with the goal of getting Cook to overturn the building
       department’s front setback calculation. Cook did issue a determination letter in which he
       found that calculation to be incorrect; he recalculated the front setback to be 144 feet instead
       of 85 feet. Plaintiffs could not build the house that they had designed for the property.
¶7         Plaintiffs appealed to the Hinsdale Zoning Board of Appeals, which found that Cook’s
       calculation was not an abuse of discretion. Defendant actively solicited opposition to this
       appeal, encouraging neighbors to challenge the appeal, hiring a lawyer to oppose the appeal,
       and attempting to remove the appeal from the board’s agenda. During the pendency of the
       appeal, defendant twice offered to buy the property for “significantly less” than what
       plaintiffs paid for it and told them that he would leave the property vacant in order to expand
       the grounds of his property. Eventually, the board granted variations establishing an eastern
       sideyard setback of 32 feet and a front setback of 126 feet. Plaintiffs built a “significantly
       different, and smaller home than originally designed, and in a significantly different location”
       on the property. Plaintiffs alleged that they incurred extra costs for redesigning their house,
       additional costs of labor and materials because of the delay in construction, and diminished
       market value.
¶8         Plaintiffs filed an initial six-count complaint, alleging causes of action for: (I) breach of
       contract; (II) breach of implied contract; (III) promissory estoppel; (IV) equitable estoppel;
       (V) unjust enrichment; and (VI) fraudulent inducement. All counts referenced defendant’s
       agreement to forgo any challenge to the building department’s front setback calculation.
       Defendant filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of
       Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2008)). The motion was also brought
       pursuant to the Illinois Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2008))
       and argued that the motion should be decided under the standards and procedures set forth
       in section 20 of the Act.
¶9         In arguing the motion, defendant noted that, while the motion was brought on several
       bases, it was “primarily *** for the reason that the Citizen Participation Act precludes this
       sort of complaint.” The trial court concluded that “the mandate of Section 20 c [sic] of the
       [A]ct provides that a dismissal must be granted” and dismissed the complaint.
¶ 10       Plaintiffs filed an amended complaint alleging the same six causes of action. Plaintiffs
       attached several exhibits, including: (1) a copy of the variance application, signed by
       defendant as “Nominal Applicant”; and (2) a copy of a document from Cook, which stated
       in part:
           “Specifically to your case, a resident (Sam Eddins) formally requested a Code
           interpretation per section 11-501 of the Hinsdale Zoning Code. After my review of the
           specifics on the matter and consultation with our Village Attorney, my determination was
           that the original front yard setback for 222 E. Fourth Street was incorrectly computed and
           that it be recalculated based upon the criteria in my June 27, 2006 memo to Rob


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           McGinnis.”
¶ 11       Again, defendant filed a combined motion to dismiss under section 2-619.1 that also
       included argument regarding the Act. On September 30, 2010, the trial court granted
       defendant’s motion to dismiss. The court “assumed to be true for the purpose of this case”
       plaintiffs’ argument that defendant was deceitful and dishonest and that his conduct was
       hypocritical and not genuine. However, the court found that defendant’s participation in the
       zoning process regarding plaintiffs’ property was “not frivolous” under the Act and granted
       the motion to dismiss. The trial court subsequently denied plaintiffs’ motion to reconsider,
       and this appeal followed.

¶ 12                                          II. ANALYSIS
¶ 13        Plaintiffs contend that the trial court erred in dismissing their first amended complaint.
       Defendant brought a combined motion to dismiss under section 2-619.1 of the Code (735
       ILCS 5/2-619.1 (West 2008)). Section 2-619.1 allows a litigant to combine motions to
       dismiss brought under sections 2-615 and 2-619. Storm & Associates, Ltd. v. Cuculich, 298
       Ill. App. 3d 1040, 1046 (1998). In addition, this court has found that such a combined motion
       may also include a motion to dismiss brought pursuant to the Act. See Sandholm v. Kuecker,
       405 Ill. App. 3d 835, 846 (2010). Although defendant brought his motion to dismiss under
       sections 2-615 and 2-619 along with the Act, the trial court clearly dismissed the first
       amended complaint pursuant to the Act.
¶ 14        The public policy behind the Act, quoted in relevant part, is as follows:
                “Civil actions for money damages have been filed against citizens and organizations
            of this State as a result of their valid exercise of their constitutional rights to petition,
            speak freely, associate freely, and otherwise participate in and communicate with
            government. There has been a disturbing increase in lawsuits termed ‘Strategic Lawsuits
            Against Public Participation’ in government or ‘SLAPPs’ as they are popularly called.
                The threat of SLAPPs significantly chills and diminishes citizen participation in
            government, voluntary public service, and the exercise of these important constitutional
            rights. This abuse of the judicial process can and has been used as a means of
            intimidating, harassing, or punishing citizens and organizations for involving themselves
            in public affairs.
                It is in the public interest and it is the purpose of this Act to strike a balance between
            the rights of persons to file lawsuits for injuries and the constitutional rights of persons
            to petition, speak freely, associate freely, and otherwise participate in government; to
            protect and encourage public participation in government to the maximum extent
            permitted by law; to establish an efficient process for identification and adjudication of
            SLAPPs; and to provide for attorney’s fees and costs to prevailing movants.” 735 ILCS
            110/5 (West 2008).
       The Act applies to:
            “any motion to dispose of a claim in a judicial proceeding on the grounds that the claim
            is based on, relates to, or is in response to any act or acts of the moving party in


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           furtherance of the moving party’s rights of petition, speech, association, or to otherwise
           participate in government.” 735 ILCS 110/15 (West 2008).
       Acts in furtherance of such rights “are immune from liability, regardless of intent or purpose,
       except when not genuinely aimed at procuring favorable government action, result, or
       outcome.” 735 ILCS 110/15 (West 2008). Upon the filing of such a motion, a court shall
       grant the motion and dismiss the judicial claim “unless the court finds that the responding
       party has produced clear and convincing evidence that the acts of the moving party are not
       immunized from, or are not in furtherance of acts immunized from, liability by this Act.” 735
       ILCS 110/20(c) (West 2008).
¶ 15       This court has found a motion brought pursuant to the Act to be similar to a motion to
       dismiss under section 2-619, since it does not attack the legal sufficiency of the claim but
       instead provides another method to defeat the plaintiff’s claim. See Sandholm, 405 Ill. App.
       3d at 846. A section 2-619 motion admits the legal sufficiency of the complaint but asserts
       some affirmative matter that avoids or defeats the plaintiff’s claim. Sandholm, 405 Ill. App.
       3d at 846. Likewise, when considering a motion to dismiss under the Act, we consider the
       facts of the plaintiff’s claim to be legally sufficient. Sandholm, 405 Ill. App. 3d at 846.
¶ 16       Further applying the section 2-619 analysis, a court must construe the pleadings and
       supporting documents in the light most favorable to the nonmoving party. Sandholm, 405 Ill.
       App. 3d at 847. A section 2-619 motion admits the legal sufficiency of the complaint along
       with all well-pleaded facts and reasonable inferences drawn from those facts. Mutual
       Management Services, Inc. v. Swalve, 2011 IL App (2d) 100778, ¶ 4. In ruling on such a
       motion, the court may consider pleadings, depositions, and affidavits on record. Sandholm,
       405 Ill. App. 3d at 847. The purpose of a section 2-619 motion is to dispose of issues of law
       and easily proved issues of fact early in the litigation. Sandholm, 405 Ill. App. 3d at 847. On
       appeal from a decision regarding a section 2-619 motion, the reviewing court must consider
       whether the existence of a genuine issue of material fact should have precluded the dismissal
       or, absent such an issue of fact, whether dismissal was proper as a matter of law. Sandholm,
       405 Ill. App. 3d at 847. Our review is de novo. Sandholm, 405 Ill. App. 3d at 847.
¶ 17       Although we have used section 2-619 as a guideline for motion-to-dismiss proceedings
       under the Act, section 20(c) of the Act shifts the burden in such proceedings. While a
       defendant has the burden of proving an affirmative defense in a section 2-619 motion to
       dismiss, section 20(c) provides that a court shall grant the motion and dismiss “unless the
       court finds that the responding party has produced clear and convincing evidence that the acts
       of the moving party are not immunized from, or are not in furtherance of acts immunized
       from, liability by this Act.” 735 ILCS 110/20(c) (West 2008). The Sandholm court did note
       that, even in a section 2-619 proceeding, where the burden is on the defendant to prove that
       an affirmative defense applies, the burden “shifts to the plaintiff to show that the defense is
       unfounded or requires the resolution of an issue of material fact before it is proven.”
       Sandholm, 405 Ill. App. 3d at 849.
¶ 18       Plaintiffs first argue that the trial court erred in dismissing their first amended complaint
       because defendant had waived whatever first amendment rights that he might have had to
       participate in the government’s consideration of the zoning applied to their property and


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       should have been precluded from asserting a defense under the Act. Plaintiffs alleged that
       on June 11, 2006, they and defendant “reached a mutual agreement” that plaintiffs would
       accommodate defendant’s request to move the house farther east and, in exchange, defendant
       would support plaintiffs’ application for a variance and would forgo any challenge to the
       building department’s calculation of the front setback requirement. Defendant and his wife
       were also listed on the variance application as “amicus curiae ‘Nominal Applicants,’ ” and
       defendant signed the application as “Nominal Applicant.” According to plaintiffs, by
       agreeing to forgo any challenge to the setback calculations and to support plaintiffs’ variance
       application, defendant waived his first amendment rights regarding those issues; thus, the Act
       does not provide defendant with a defense such that dismissal was appropriate.
¶ 19       We first note that the trial court failed to address this argument although it was clearly
       raised in plaintiffs’ brief in opposition to the motion to dismiss. Instead, the trial court ruled
       only that defendant’s participation in the zoning process was “not frivolous” under the Act
       and granted the motion to dismiss.
¶ 20       We conclude that the trial court erred in granting the motion to dismiss. As we have
       stated, the purpose of a section 2-619 motion to dismiss is to dispose of issues of law and
       easily proved issues of fact early in the litigation; we must consider whether the existence
       of a genuine issue of material fact should have precluded the dismissal or, absent such an
       issue of fact, whether dismissal was proper as a matter of law. See Sandholm, 405 Ill. App.
       3d at 847. As brought and decided under the Act in this case, defendant’s motion seeks to
       dispose of the issue of whether “the acts of the moving party[, i.e., defendant’s challenge of
       the setback calculation,] are not immunized from, or are not in furtherance of acts immunized
       from, liability by this Act.” 735 ILCS 110/20(c) (West 2008).
¶ 21       Defendant’s position is that his contacts with government officials regarding the setback
       calculation on plaintiffs’ property were in furtherance of his rights of petition, speech,
       association, or to otherwise participate in government and are thus immune from liability
       under the Act. See 735 ILCS 110/5 (West 2008). Plaintiffs’ position in opposition to this is
       that defendant, by entering into the agreement not to challenge the setback calculation and
       instead to endorse the variance application, waived his rights of petition, speech, association,
       or to otherwise participate in government as they related to the setback calculation. This issue
       is neither an easily proved issue of fact nor an issue of law that is suitable to a section 2-619-
       type analysis.
¶ 22       Plaintiffs’ underlying causes of action and their defense to the motion to dismiss are both
       based on the alleged existence of an oral contract under which defendant agreed not to
       contest the setback calculation. The existence of an oral contract, its terms, and the intent of
       the parties are questions of fact. Laughlin v. France, 241 Ill. App. 3d 185, 195 (1993).
       Material issues of fact exist regarding the alleged oral contract. The existence of an alleged
       oral contract requires the presentation of testimony, not mere argument by attorneys. The
       complaint and plaintiffs’ defense to the Act are too intertwined for the complaint to be
       amenable to dismissal under the Act or section 2-619. Only by resolving issues of fact
       underlying plaintiffs’ complaint can the court determine if defendant did or did not waive his
       rights such that his actions are immunized from liability; only after such a determination is
       made is the issue of whether defendant’s actions were genuinely aimed at procuring

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       favorable government action, under section 15 of the Act, even relevant. We cannot
       conclude, as a matter of law, that defendant’s actions were immunized from liability by the
       Act, because issues of material fact exist as to whether defendant actually entered into an
       agreement and, if so, what he actually agreed to do.
¶ 23        Further, the case law of this state does not support defendant’s position such that, as a
       matter of law, his motion to dismiss should have been granted. It is generally accepted that
       parties may contract away rights, even those of constitutional or statutory dimension. See
       Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543, 549 (2006). Defendant notes in his brief
       that “no Illinois court has addressed whether an individual can contract away his or her rights
       under the Act and, if so, what type of contract or agreement is required to demonstrate
       knowing waiver.” However, he “acknowledges” that other states with comparable statutes
       “have recognized that, under some circumstances, a defendant can waive his or her right to
       immunity under the Act [sic] by entering into a contract prior to his communication with the
       governmental entity.” For example, in Middle-Snake-Tamarac Rivers Watershed District v.
       Stengrim, 784 N.W.2d 834 (Minn. 2010), after years of litigation, the district and various
       landowners, including Stengrim, entered into a settlement agreement, one provision of which
       was that the landowners agreed that they would “ ‘address no further challenges in litigation
       or otherwise’ ” to the establishment of a district project. Stengrim, 784 N.W.2d at 837. The
       district subsequently sought an order disgorging Stengrim of his share of the settlement
       proceeds because he breached the agreement by, among other things, attempting to interfere
       with funding for the project and making statements with the intent of harming the project.
       Stengrim, 784 N.W.2d at 837. Stengrim filed a motion to dismiss that lawsuit (an anti-
       SLAPP motion) under the Minnesota version of the Act, arguing that the suit targeted him
       for public participation and speech that was immune from liability under the statute and not
       prohibited by the settlement agreement. The trial court denied both Stengrin’s anti-SLAPP
       motion and the district’s motion for summary judgment, finding that issues of material fact
       still existed. Stengrim, 784 N.W.2d at 838.
¶ 24        The Minnesota Supreme Court noted that preexisting legal relationships, such as those
       based on a settlement agreement in which a party waives certain rights, may legitimately
       limit a party’s public participation. Stengrim, 784 N.W.2d at 842. The court concluded that
       a trial court:
            “has the authority to deny a defendant’s anti-SLAPP motion where a defendant has
            entered into a settlement agreement and contractually agreed not to hinder the
            establishment of a project, thereby waiving certain rights to public participation, but
            retaining others, and the court determines that there are genuine issues of material fact
            about the settlement agreement’s effect on the defendant’s public participation rights.”
            Stengrim, 784 N.W.2d at 842.
¶ 25        Stengrim is remarkably similar to the case before us, and we find it persuasive.
       Defendant’s signature on the application for the variance is evidence of a settlement
       agreement as in Stengrim. We can see no reason why a party cannot waive rights under the
       Act based on a preexisting legal relationship. We are not persuaded by defendant’s argument
       that the fact that the alleged contract in our case is oral, rather than written, in any way affects
       the ability to waive such rights. If anything, the allegation of an oral contract raises more

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       issues of fact and makes this case even less amenable to dismissal under the Act. We
       conclude that genuine issues of material fact remained such that, as a matter of law, the trial
       court erred in granting defendant’s motion to dismiss.
¶ 26        Both parties also address the issue of whether plaintiffs stated causes of action in their
       first amended complaint so as to survive defendant’s motion to dismiss pursuant to section
       2-615. This case is an exemplar of the potential dangers of bringing combined motions to
       dismiss. While such motions are authorized by statute, this “is not a legislative authorization
       for hybrid motion practice.” Storm & Associates, 298 Ill. App. 3d at 1046.
¶ 27        A motion under section 2-615 attacks the sufficiency of the complaint and questions
       whether it states a cause of action upon which relief can be granted. Storm & Associates, 298
       Ill. App. 3d at 1046. For purposes of appeal, all well-pleaded facts within the four corners
       of the complaint are regarded as admitted and true, along with all reasonable inferences
       drawn in the light most favorable to the plaintiff. Bank of Northern Illinois v. Nugent, 223
       Ill. App. 3d 1, 9 (1991). The ultimate facts to be proved must be alleged, and no evidentiary
       support or conclusions drawn from the allegations should be considered. Bank of Northern
       Illinois, 223 Ill. App. 3d at 9.
¶ 28        A section 2-619 motion admits the legal sufficiency of the complaint along with all well-
       pleaded facts and reasonable inferences drawn from those facts; it assumes that a cause of
       action has been stated but asserts that the claim is defeated by other affirmative matter.
       Mutual Management Services, 2011 IL App (2d) 100778, ¶¶ 4-5. In deciding a section 2-619
       motion, a court is to interpret all pleadings in the light most favorable to the nonmoving
       party. Mutual Management Services, 2011 IL App (2d) 100778, ¶ 4. In addition to the
       pleadings, the court may consider depositions and affidavits. Doe v. University of Chicago,
       404 Ill. App. 3d 1006, 1009 (2010).
¶ 29        While appellate review of decisions regarding motions brought under either section is de
       novo, these motions differ significantly. Mutual Management Services, 2011 IL App (2d)
       100778, ¶ 5. All well-pleaded facts of the complaint are admitted and taken as true in both
       motions; however, the legal sufficiency of the complaint is disputed in a section 2-615
       motion but admitted in a section 2-619 motion. Bank of Northern Illinois, 223 Ill. App. 3d
       at 7. The better practice is for a court to entertain the section 2-615 motion first, and then,
       only after a legally sufficient cause of action has been found, entertain the section 2-619
       motion with affidavits filed in support. Janes v. First Federal Savings & Loan Ass’n, 57 Ill.
       2d 398, 406 (1974) (regarding a motion for summary judgment).
¶ 30        The inclusion of a motion to dismiss under the Act along with the section 2-615 and
       section 2-619 motions to dismiss further muddies the waters of motion practice. The Act
       seeks “to establish an efficient process for identification and adjudication of SLAPPs.” 735
       ILCS 110/5 (West 2008). However, by attempting to efficiently adjudicate these actions, the
       Act necessarily encourages trial courts to handle motions out of order, dealing with motions
       that admit the sufficiency of the complaint and contain depositions and affidavits before, if
       necessary, addressing a section 2-615 motion that disputes the legal sufficiency of the claim
       and does not allow for consideration of anything outside of the complaint.
¶ 31        Here, the trial court clearly ruled only on the motion to dismiss brought under the Act.


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       It never considered whether plaintiffs stated causes of action in any of the six counts of the
       first amended complaint. We decline to address these arguments that were raised but not
       considered in the trial court.

¶ 32                                   III. CONCLUSION
¶ 33       For these reasons, the judgment of the circuit court of Du Page County is reversed, and
       the cause is remanded for further proceedings consistent with this opinion.

¶ 34      Reversed and remanded.




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