James Ablan v. Bank of America Corporation , 665 F. App'x 544 ( 2016 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 14, 2016
Decided October 31, 2016
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-1072
JAMES J. ABLAN and Appeal from the
BEACON REALTY CAPITAL, INC., United States District Court for the
Plaintiffs-Appellants, Northern District of Illinois,
Eastern Division.
v.
No. 11 C 4493
BANK OF AMERICA CORPORATION
and MERRILL LYNCH MORTGAGE Charles R. Norgle,
LENDING, INC., Judge.
Defendants-Appellees.
ORDER
James Ablan is a financing broker who in 2003 contracted with Tax Strategies
Group, a company that purchased commercial properties for resale to investors. The
contract made him the company’s exclusive financing representative and required Tax
Strategies to pay him commissions for loans he secured on its behalf. In 2006 Ablan
approached Merrill Lynch in an attempt to secure a loan for an acquisition Tax
Strategies was pursuing. Merrill Lynch agreed to finance the acquisition a month later.
No. 16-1072 Page 2
Around the same time, however, Tax Strategies terminated its agreement with Ablan
and severed their relationship. Protracted litigation ensued over disputed commissions
related to the Merrill Lynch loan. Ablan and Tax Strategies eventually settled their
dispute.
Ablan then sued Bank of America, Merrill Lynch’s successor, alleging that
Merrill Lynch: (1) tortiously interfered with his contract with Tax Strategies; (2) failed to
fulfill a promise to Ablan that he would receive certain commissions related to the
financing agreement and is therefore liable under promissory estoppel; and
(3) conspired with Tax Strategies to deprive him of commissions he was owed. The
district court, sitting in diversity and applying Illinois law, found no evidence of
tortious interference or detrimental reliance and granted summary judgment for Bank
of America on all claims. The judge’s order did not specifically address the civil
conspiracy claim.
On appeal Ablan does not contest the judge’s rulings against him on his claims
for tortious interference and promissory estoppel. He argues only that the judge
overlooked the conspiracy claim and seeks a remand to allow the court to specifically
address it.
We review the summary judgment de novo. Boston v. U.S. Steel Corp., 816 F.3d
455, 462 (7th Cir. 2016). A remand would be pointless. To succeed on a civil conspiracy
claim, a plaintiff must establish an underlying tort. “It is well settled in Illinois that
conspiracy does not of itself constitute an actionable wrong. Instead, conspiracy
becomes actionable only when the underlying conduct which is the subject of the
conspiracy is independently tortious.” Champion Parts, Inc. v. Oppenheimer & Co.,
878 F.2d 1003, 1008 (7th Cir. 1989) (internal quotation marks omitted). Ablan insists that
Bank of America can be found liable because Merrill Lynch facilitated a breach of his
contract with Tax Strategies. But “facilitation” is not a tort. When the judge concluded
that Bank of America is not liable under theories of tortious interference or promissory
estoppel, the conspiracy claim was necessarily adjudicated and necessarily failed. And
when a claim is necessarily adjudicated, a district court need not explicitly address that
claim. See Am. Nat’l Bank & Tr. Co. of Chi. v. Sec'y of Hous. & Urban Dev. of Wash., D.C.,
946 F.2d 1286, 1290 (7th Cir. 1991).
AFFIRMED.