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21 June 2000

JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, the Village of Bloomingdale (Village), sueddefendant, C.D.G. Enterprises, Inc., for breach of contract,alleging that defendant had not paid for services the Villageprovided in reviewing defendant's application for rezoning and siteplan approval. Defendant answered and filed a counterclaimalleging tortious interference with business expectancy and forrecovery under a quasi-contract theory. The gist of defendant'scounterclaim was that the Village corruptly misused itsgovernmental powers to prevent defendant's plans from going forwardand appropriated the benefits of defendant's plans for developingthe properties at issue for its own ends.

On the Village's motion (see 735 ILCS 5/2--619(a)(9) (West1998)), the trial court dismissed the counterclaim, holding thatboth counts were barred by the Local Governmental and GovernmentalEmployees Tort Immunity Act (Tort Immunity Act or Act)(745 ILCS10/1--101 et seq. (West 1998)). After the Village voluntarilydismissed its complaint, defendant timely appealed.

On appeal, defendant argues that (1) the Tort Immunity Actdoes not bar either count of its counterclaim because the Act doesnot immunize governmental actions undertaken for corrupt ormalicious motives; and (2) the Act does not bar the second count ofthe counterclaim, for quasi-contract, because section 2--101(a) ofthe Act (745 ILCS 10/2--101(a) (West 1998)) specifically preservesmunicipal liability based on contract. We reverse and remand.

The Village's complaint alleged the following. By a writtenagreement, defendant promised to pay the Village for the servicesof various professionals who advised it concerning defendant'sapplication for rezoning and site plan approval. The Village hadrepeatedly billed defendant, but defendant had not paid.

Defendant's counterclaim alleged the following facts insupport of both counts. Defendant was the contract purchaser offive parcels of land in unincorporated Du Page County. In March1995, defendant petitioned the Village's plan commission to rezonethe five properties so that defendant could build a subdivisionbetween the Glendale Golf Course on the west and Medinah Road onthe east. The rezoning would be subject to the Village'sannexation of the properties. Before negotiating the contracts tobuy the five properties, defendant's representatives met with theVillage mayor, who told them the project would be approved. Beginning in September 1994, defendant's agents met with theVillage's land planner and other officials to review defendant'sdevelopment plan. Following those meetings, defendant submittedits revised land plan, which sought the rezoning and annexation ofthe properties to permit their development.

The counterclaim alleged further that, between April andOctober 1995, defendant repeatedly appeared before the planningcommission for public hearings on its petition. However, in Juneor July 1995, the Village secretly formed a "task force" with theaim of insinuating the Village or its chosen developers into thedevelopment of the five parcels. Toward this end, the Villagepursued the acquisition of the Glendale Golf Course; commissionedPlanning Resources, Inc., the Village's consultant in charge ofreviewing defendant's petition, to prepare a plan to redesign thegolf course so that some of the holes would be on the propertiesdefendant had agreed to acquire; and secretly met with nonresidentproperty owners to create opposition to defendant's plan. TheVillage kept all these acts secret and never revealed that PlanningResources, Inc., was working in a dual capacity. In August 1995,the planning commission voted down the project, with the chairmanpressuring other members to vote no. In October 1995, at a publichearing, the Village's board of trustees voted down defendant'spetition. Soon afterward, the Village revealed that it planned toacquire the golf course; it later did so.

Defendant alleged that its petition met all the Village'srequirements for rezoning and annexation; that defendant took allthe action the Village required; that defendant had spent heavilyin reliance on its meetings with the Village; and that, after theVillage denied the petition, defendant had to cancel its purchasecontracts and forfeit some of what it had paid. Defendant'sprojected gross profits from the project were $4.8 million.

Count I of the counterclaim alleged that the Village knew ofdefendant's business expectancy and deliberately frustrated thatexpectancy by secretly working to force defendant out of theplanned development while ostensibly reviewing defendant's petitionin order to usurp for itself or for cronies of certain Villageofficials the benefits of defendant's plans for developing the fiveparcels. Count II alleged that, when defendant filed its rezoningpetition and paid the required fee, the Village became obligated toprocess defendant's application reasonably and in good faith, whichit failed to do. Both counts sought $4.8 million in damages.

In seeking the dismissal of the counterclaim, the Villagerelied on various provisions of the Tort Immunity Act (see 745 ILCS 10/2--103, 2--104, 2--109, 2--201, 2--205 (West 1998)), arguingthat none of the relevant provisions of the Act contained anexception to the immunity from liability bestowed by the Act. Eventually, the trial court granted the Village's motion anddismissed the counterclaim. Defendant timely appealed.

This case comes before us following a dismissal under section2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (West1998)), which provides a means to obtain the summary disposition ofissues of law or of easily proved issues of fact. Kedzie & 103rdCurrency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). Under section 2--619(a)(9) of the Code, a court may dismiss anaction if the claim is barred by affirmative matter avoiding thelegal effect of or defeating a claim. 735 ILCS 5/2--619(a)(9)(West 1998). A section 2--619 motion to dismiss admits the legalsufficiency of the cause of action. Hodge, 156 Ill. 2d at 115. Our review is de novo. Hodge, 156 Ill. 2d at 116.

On appeal, defendant asserts that the Tort Immunity Act barsneither its claim for tortious interference with a businessexpectancy nor its claim for recovery in quasi-contract. Relyingprincipally on this court's opinion in River Park, Inc. v. City ofHighland Park, 281 Ill. App. 3d 154 (1996), appeal after remand,295 Ill. App. 3d 90 (1998), aff'd in part & rev'd in part on othergrounds, 184 Ill. 2d 290 (1998), defendant maintains that the Act'sprotections do not extend to acts a municipality performs in badfaith or out of corrupt or malicious motives. Defendant alsoargues that count II of the counterclaim, for quasi-contract,survives any tort immunity challenge because section 2--101(a) ofthe Act (745 ILCS 10/2--101(a) (West 1998)) states that nothing inthe Act affects municipal liability that is based on contract. Weagree.

The Illinois Constitution of 1970 abolished the doctrine ofsovereign immunity, which immunized all governmental units inIllinois from tort liability, except as the legislature maythereafter provide by statute. Ill. Const. 1970, art. XIII,