Johannesen v. Eddins
2011 IL App (2d) 110108
Ill. App. Ct.2011Background
- Plaintiffs sought to replace their Hinsdale home with a larger one on 222 E. Fourth St.; defendant owned adjacent 202 E. Fourth St.
- Building department had calculated a front setback of 85 feet and corner sideyard of 54.78 feet for plaintiffs’ property.
- Defendant offered help with variances and claimed the department’s setback calculation was incorrect and urged a corner sideyard variance.
- June 11, 2006 meeting: parties reached a mutual agreement that plaintiffs would move the house east; in exchange, defendant would support plaintiffs’ variance and forgo challenging the front setback calculation.
- Defendant confirmed the agreement by telephone the next day; plaintiffs applied for a variance with defendant listed as Nominal Applicant and amicus curiae.
- Zoning Board of Appeals granted eastern sideyard setback of 32 feet and front setback of 126 feet after Cook recalculated the setback to 144 feet; plaintiffs built a smaller home than designed and incurred extra costs and diminished value.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act bars the claims as SLAPPs. | Johannesen argues the Act does not immunize defendant for the asserted oral contract. | ||
| Eddins contends his challenged actions are immunized rights of petition and participation. | No; material fact issues exist about the contract and waiver, so dismissal under the Act was improper. | ||
| Whether defendant waived his rights under the Act by entering an oral agreement. | Waiver occurred when defendant agreed not to challenge the setback and to support the variance. | No waiver; rights remain and defenses under the Act apply. | Genuine disputes of material fact preclude dismissal on waiver theory. |
| Whether there were material facts about the existence/terms of the alleged oral contract. | Oral contract existed to move the house east in exchange for support and non-challenge. | No definite contract or intent proven; cannot be decided on motion. | Issues of fact exist; cannot resolve contract formation on motion. |
| Whether the court should resolve the sufficiency of the six counts under 2-615 before or after the Act dismissal. | Counts should be evaluated for legal sufficiency. | Act dismissal should render counts moot. | Court did not address 2-615 issues; reversal and remand necessary for full consideration. |
Key Cases Cited
- Sandholm v. Kuecker, 405 Ill. App. 3d 835 (2010) (treatment of Act motions as akin to 2-619; burden-shifting and de novo review guidance)
- Stengrim, 784 N.W.2d 834 (Minn. 2010) (preexisting relationships can limit public participation; anti-SLAPP waivers via settlement agreements)
- Laughlin v. France, 241 Ill. App. 3d 185 (1993) (oral contracts and intent questions of fact)
- Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543 (2006) (parties can contract away rights under statutory regimes under certain circumstances)
- Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040 (1998) (hybrid motion practice; combined motions to dismiss caution in sequencing)
- Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1 (1991) (well-pleaded facts assumed true in 2-615 vs 2-619 analysis)
- Janes v. First Federal Savings & Loan Ass’n, 57 Ill. 2d 398 (1974) (proper sequencing of 2-615 before 2-619 motions)
- Mutual Management Services, Inc. v. Swalve, 2011 IL App (2d) 100778 (2011) (distinguishes 2-619 from 2-615; deference to well-pleaded facts)