The opinion
Illinois Official Reports
Appellate Court
Mack Industries, Ltd. v. Village of Dolton, 2015 IL App (1st) 133620
Appellate Court MACK INDUSTRIES, LTD., Plaintiff-Appellant, v. THE VILLAGE
Caption OF DOLTON and BERT HERZOG, Defendants-Appellees.
District & No. First District, Fifth Division
Docket No. 1-13-3620
Filed March 31, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-35480; the
Review Hon. Thomas B. Allen, Judge, presiding.
Judgment Affirmed.
Counsel on James R. Pittacora and Elizabeth S. Stevens, both of Pittacora Law
Appeal Group, LLC, of Chicago, for appellant.
Larry S. Kowalczyk and Jason Callicoat, both of Querrey & Harrow,
Ltd., and John B. Murphey, of Rosenthal, Murphey, Coblentz &
Donahue, both of Chicago, for appellees.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Palmer concurred in the judgment and opinion.
Justice Gordon concurred in part and dissented in part, with opinion.
OPINION
¶1 Plaintiff Mack Industries, Ltd. (Mack), appeals an order of the circuit court of Cook
County dismissing its verified amended complaint against defendants Village of Dolton
(Village) and Bert Herzog (Herzog). On appeal, Mack contends the circuit court erred in
dismissing three of the four counts of the verified amended complaint: (1) seeking a
declaratory judgment; (2) alleging breach of contract by the Village; and (3) alleging willful
and wanton, retaliatory misconduct by Herzog as the Village’s manager. For the following
reasons, the judgment of the circuit court is affirmed.
¶2 BACKGROUND
¶3 The record on appeal discloses that on September 20, 2012, Mack filed a verified
complaint against the Village, containing the following allegations. Mack is the owner and
manager of approximately 195 single-family homes (Mack properties) in the Village, a home
rule municipality. Mack’s complaint primarily arises out of the Village’s provision of water
service.
¶4 At all times relevant to the complaint, the Village exercised control over the supply of
water to residential properties within the Village. A Village ordinance 1 prohibited private
companies and individuals from supplying water to any building, structure or premises into
which water service is introduced. A Village ordinance also provided that water meter readings
were to be taken every three months. If no one was present on the premises, the water meter
reader was required to leave a United States postal card for the customer to record the water
usage and mail the reading to the Village clerk. If no postal card was returned to the Village
clerk within 10 days of a second meter reading, premises against which charges remained
outstanding “may be considered for ‘red tagging’ in preparation for ‘shut off’ of water to the
premises.” After the expiration of the time for payment as specified by ordinance, a list was
required to be compiled of those premises with unpaid charges and the ordinance provided
such premises “shall be authorized for ‘red tagging’ and ‘shut off.’ ” The ordinance required
the Village clerk to send notice by mail to the owner of premises scheduled for “red tagging,”
specifying the day and time the meter would be “red tagged” and water service would be shut
off. By ordinance, owners and users of water service were jointly and severally liable for water
charges. The ordinance further provided that if water charges were not paid within 60 days of
the issuance of a bill, the charges would be deemed delinquent and constitute a lien on the real
estate to which the service was supplied. The ordinance additionally provided, however, that
the Village clerk could refrain from filing sworn statements regarding these liens with the
recorder of deeds in Cook County if the Village proposed to sue the owner, occupant or user of
1
Although Mack’s complaint quoted various purported Village ordinances, the pleading did not
indicate when the purported ordinances were adopted. The Village’s motion to dismiss Mack’s verified
amended complaint attached copies of the purported ordinances as exhibits, but also without indicating
when the purported ordinances were adopted. During oral argument, the parties did not dispute the
substance of the Village’s ordinances or that the purported ordinances were in effect during the period
of the dispute at issue. It should be noted, however, that the provision regarding “red tagging” is
denoted as a “proposed ordinance” in the materials submitted to this court.
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the real estate in a civil action. Mack required its lessees to be responsible for the payment of
water bills.
¶5 Mack alleged that the stated practice of the Village’s water department was to flag
properties for disconnection of water service once a bill was more than 30 to 60 days overdue.
If a payment was not made after a notice of termination, service would be disconnected. This
practice allegedly applied to unpaid water bills in excess of $150. In addition, the Village
entered into payment plans with tenants relating to water service, but required the tenant or
owner to make an initial payment of at least 60% of the unpaid balance.
¶6 In the late summer of 2010, the Village allegedly ceased enforcing its water service
ordinances with respect to the majority of the Mack properties, thereby failing to send notices
of delinquency, “red tag” properties, and disconnect water service. In several instances, water
service was not disconnected until the lessee vacated the property, leaving Mack solely
responsible for the unpaid charges and a fee for reconnection of service. In many cases, the
unpaid water bills on a property exceeded $700. In some instances, the Village agreed to
payment plans with Mack’s lessees, under which only nominal payments were tendered to the
Village, without notice to or the agreement of Mack.
¶7 Mack further alleged the Village routinely ignored requests to send notices of
disconnection to Mack’s delinquent properties when the bills were 60 days overdue. In
September 2010, Mack commenced corresponding with the Village about the difficulties
Mack experienced regarding the lack of enforcement of the Village water ordinances. In
January 2012, Mack also discussed the issue with the Village counsel, who promised prompt
action. From August 2010 through September 2012, Mack was forced to pay in excess of
$18,000 in water charges that accrued after Mack requested disconnection of services. Mack
estimated it would be forced to remit in excess of $20,000 of water charges as of the date the
complaint was filed, and further charges would continue to accrue until the issue was resolved.
In March 2011, the Village commenced denying rental occupancy permits to properties with
unpaid water charges, thereby preventing Mack from establishing new tenancies.
¶8 In count I of the verified complaint, Mack sought a judgment declaring the Village’s
pattern and practices were not in compliance with the terms of the Village ordinance relating to
water service by failing to: (1) conduct a second meter reading or leave the appropriate notices;
(2) “red tag” premises after notice was provided; and (3) disconnect water service at properties
more than 60 days delinquent in payment. Mack also sought an award of attorney fees. In count
II of the verified complaint, Mack alleged the Village breached a contract to provide water
service to property owners. Mack asserted the contract was created as a matter of law by the
ordinance establishing the Village as the sole provider of water service. In count III of the
verified complaint, Mack sought an injunction against retaliation by the Village. Mack alleged
that after it provided the Village with a draft copy of its verified complaint in July 2012, the
Village: (1) contrary to its prior practice, commenced issuing citations regarding various Mack
properties without providing an opportunity to cure alleged violations; (2) failed or refused to
issue a letter certifying one of the Mack properties as destroyed by fire, thereby precluding
Mack from obtaining remediation of asbestos on that property; and (3) arbitrarily ordered
reinspections of Mack properties and refused to recertify at least 16 Mack properties, based on
a need to review paperwork regarding those properties.
¶9 On December 27, 2012, the Village filed a motion to dismiss Mack’s verified complaint
pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West
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2012)).2 The Village first contended counts I and II of Mack’s verified complaint must be
dismissed pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)), arguing the
Village is immune from liability for failing to enforce its own ordinances, pursuant to section
2-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act or Act) (745 ILCS 10/2-103 (West 2010)). The Village also contended count III
of Mack’s verified complaint must be dismissed pursuant to section 2-619 of the Code, arguing
the Village is immune from liability for failing to issue permits or certificates, pursuant to
section 2-104 of the Tort Immunity Act (745 ILCS 10/2-104 (West 2010)). The Village further
argued Mack’s verified complaint must be dismissed in its entirety pursuant to section 2-615 of
the Code (735 ILCS 5/2-615 (West 2012)), arguing all three counts failed to state a claim for
which relief may be granted.
¶ 10 On January 9, 2013, Mack filed a motion for leave to file an amended complaint. On
January 16, 2013, the circuit court entered an order granting Mack leave to file its amended
complaint instanter.
¶ 11 On January 17, 2013, Mack filed a verified amended complaint adding Herzog as a
defendant. The factual allegations of the verified amended complaint were substantially
similar to Mack’s initial complaint, although Mack only claimed 151 Mack properties were
located within the Village. Mack also alleged it was required to pay exorbitant water bills
regarding 28 of these properties. Mack further alleged that on numerous occasions, the Village
refused to correct overcharges after Mack notified the Village regarding its problems with
water service. Mack additionally alleged it was required to pay a $500 water charge for a
property it purchased in September 2012. Moreover, Mack alleged that commencing in
September 2012, the Village and Herzog: (1) refused to provide police service to Mack
property managers complaining about the criminal activity of Mack’s lessees, and in one case
refused to provide fire protection services; (2) arbitrarily changed rental occupancy inspection
deposit amounts; (3) required Mack to replace water meters at a cost of $300 to $400 per
property as a condition of the sale of 65 Mack properties to an investor; (4) required Mack’s
lessees to pay high water bill balances incurred by prior lessees; (5) disconnected water service
to Mack properties that had not accrued delinquent water charges; (6) refused to timely
connect water services at one of its properties; and (7) refused to speak to Mack employees or
agents regarding these issues.
¶ 12 The first three counts of Mack’s verified amended complaint asserted the same causes of
action as the initial complaint. Count IV of the verified amended complaint sought damages
against Herzog for his alleged role in the retaliation against Mack. The verified amended
complaint alleged Herzog had supervisory authority over the Village’s water and building
departments. Mack also alleged that on numerous occasions, Herzog informed Mack principal
Jack McClelland that the Village’s actions obstructing Mack’s business were Mack’s fault “for
getting the lawyers involved.”
¶ 13 On February 14, 2013, the Village and Herzog filed a motion to dismiss Mack’s verified
amended complaint pursuant to section 2-619.1 of the Code. Similar to the Village’s prior
motion to dismiss, the Village and Herzog contended counts I and II of Mack’s verified
2
The caption of the Village’s motion refers to dismissing Mack’s first amended complaint, but the
body of the motion and the complaint attached as an exhibit to the motion establish the motion was
directed to Mack’s initial verified complaint.
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amended complaint must be dismissed pursuant to section 2-619 of the Code on the ground the
Village is immune from liability for failing to enforce its own ordinances, pursuant to section
2-103 of the Tort Immunity Act. The Village and Herzog also contended counts III and IV of
Mack’s verified amended complaint must be dismissed pursuant to section 2-619 of the Code,
arguing the Village and Herzog were immune from liability for failing to issue permits or
certificates, and for failing to provide police or fire protection, pursuant to sections 2-104,
4-102, and 5-102 of the Tort Immunity Act (745 ILCS 10/2-104, 4-102, 5-102 (West 2010)).
The Village and Herzog further argued counts I, II and III of Mack’s verified complaint must
be dismissed pursuant to section 2-615 of the Code, arguing that these three counts failed to
state a claim for which relief may be granted. Lastly, the Village and Herzog argued Mack’s
requests for attorney fees must be stricken as unauthorized by statute or contract.
¶ 14 On March 22, 2013, Mack filed a response to the motion to dismiss the verified amended
complaint. Mack argued the Village’s provision of water services constituted a valid and
enforceable contract. Mack also argued the Tort Immunity Act did not apply to its adequately
stated claims for breach of contract claims and willful and wanton conduct. On April 16, 2013,
the Village and Herzog filed a short reply in support of their motion to dismiss, largely
reiterating their prior arguments.
¶ 15 On October 23, 2013, following a hearing on the matter, the circuit court entered an order
granting the motion to dismiss Mack’s verified amended complaint. On November 13, 2013,
Mack filed a timely notice of appeal to this court.
¶ 16 ANALYSIS
¶ 17 On appeal, Mack contends the circuit court erred in dismissing counts I, II and IV of its
verified first amended complaint. 3 Mack’s verified amended complaint was dismissed
pursuant to a motion brought under section 2-619.1 of the Code, which permits section 2-615
and section 2-619 motions to be filed together as a single motion, divided into parts which are
limited to and specify the single section of the Code under which relief is sought. 735 ILCS
5/2-619.1 (West 2012). In this case, the circuit court did not indicate under which section of the
Code it dismissed each of the counts of Mack’s verified amended complaint. The circuit court,
however, may be affirmed on any basis that appears in the record. Gunthorp v. Golan, 184 Ill.
2d 432, 438 (1998).
¶ 18 A motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West
2010)) attacks the legal sufficiency of a complaint by alleging defects on the face of the
complaint. Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004). When ruling on a section 2-615 motion,
the relevant question is whether the allegations in the complaint, construed in a light most
favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be
granted. Canel v. Topinka, 212 Ill. 2d 311, 317 (2004). A motion to dismiss should not be
granted “unless it is clearly apparent that no set of facts can be proved that would entitle the
plaintiff to relief.” Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161 (2009).
¶ 19 In contrast, a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619
(West 2010)) admits the legal sufficiency of a plaintiff’s complaint but raises defects, defenses,
or other affirmative matters which defeat the plaintiff’s claims. Russell v. Kinney Contractors,
Inc., 342 Ill. App. 3d 666, 670 (2003). In this case, The Village and Herzog rely on various
3
The dismissal of count III of the verified first amended complaint is not at issue in this appeal.
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provisions of the Tort Immunity Act. “Undoubtedly, the existence of tort immunity may be
raised in a section 2-619(a)(9) motion to dismiss.” Smith v. Waukegan Park District, 231 Ill. 2d
111, 121 (2008).
¶ 20 Under either section 2-615 or section 2-619, our review is de novo. Mauvais-Jarvis v.
Wong, 2013 IL App (1st) 120070, ¶ 64. De novo consideration means we perform the same
analysis that a trial court would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
578 (2011). Moreover, “[a] dismissal order may be affirmed ‘if it is justified in the law for any
reason or ground appearing in the record regardless of whether the particular reasons given by
the trial court, or its specific findings, are correct or sound.’ ” BDO Seidman, LLP v. Harris,
379 Ill. App. 3d 918, 923 (2008) (quoting Natural Gas Pipeline Co. of America v. Phillips
Petroleum Co., 163 Ill. App. 3d 136, 142 (1987)). With these principles in mind, we address
the dismissal of counts I, II and IV of Mack’s verified amended complaint.
¶ 21 Count I: Declaratory Judgment
¶ 22 Count I of Mack’s verified amended complaint requested the circuit court to issue a
declaratory judgment. The Illinois declaratory judgment statute provides in pertinent part:
“(a) No action or proceeding is open to objection on the ground that a merely
declaratory judgment or order is sought thereby. The court may, in cases of actual
controversy, make binding declarations of rights, having the force of final judgments,
whether or not any consequential relief is or could be claimed, including the
determination, at the instance of anyone interested in the controversy, of the
construction of any statute, municipal ordinance, or other governmental regulation ***
and a declaration of the rights of the parties interested.” 735 ILCS 5/2-701(a) (West
2010).
“The essential requirements of a declaratory judgment action are: (1) a plaintiff with a legal
tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy
between the parties concerning such interests.” Beahringer v. Page, 204 Ill. 2d 363, 372
(2003).
¶ 23 In this case, Mack argues it has a legal tangible interest in the strict enforcement of the
Village water ordinance, as such enforcement would induce Mack’s tenants to pay the water
charges. In particular, Mack alleged the Village failed to perform ministerial tasks by failing
to: (1) conduct a second water meter reading or to leave a notice of shut off after the second
water meter reading; (2) “red tag” properties in preparation for discontinuance of water service
10 days after notice was left; and (3) disconnect water service at properties more than 60 days
delinquent in payments. An “ ‘[o]fficial duty is ministerial, when it is absolute, certain and
imperative, involving merely the execution of a set task, and when the law which imposes it,
prescribes and defines the time, mode and occasion of its performance with such certainty, that
nothing remains for judgment or discretion.’ ” (Internal quotation marks omitted.) Village of
Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 496 (2001) (quoting In re Chicago
Flood Litigation, 176 Ill. 2d 179, 194 (1997) (discussing ministerial acts in the context of the
Tort Immunity Act)).4
4
Mack’s focus on the nonperformance of “ministerial” acts also parallels the law governing the writ
of mandamus. “Mandamus is an extraordinary remedy traditionally used to compel a public official to
perform a ministerial duty.” People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 464 (2004). “Generally,
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¶ 24 The ordinance, however, provided that premises with delinquent accounts “may be
considered for ‘red tagging’ in preparation for ‘shut off’ of water to the premises.” (Emphasis
added.) Thus, this aspect of the ordinance does not require the Village to “red tag” or leave a
notice of discontinuance of water service after a second meter reading. After the expiration of
the time for payment specified by ordinance, a list was required to be compiled of those
premises with unpaid charges and the ordinance provided such premises “shall be authorized
for ‘red tagging’ and ‘shut off.’ ” (Emphasis added.) This court has generally interpreted the
term “authorized” in accordance with its plain and ordinary meaning as “ ‘[t]o empower’ ” or
“ ‘to give a right or authority to act.’ ” Pierce Downer’s Heritage Alliance v. Village of
Downers Grove, 302 Ill. App. 3d 286, 296 (1998) (quoting Black’s Law Dictionary 122 (5th
ed. 1979)). “The term has also been defined as ‘to permit a thing to be done in the future.’ ” Id.
(quoting Midland Iron & Steel Corp. v. Chicago, Rock Island & Pacific Ry. Co., 4 Ill. App. 3d
369, 371 (1972)). Thus, the plain terms of the ordinance gave the Village the authority to “red
tag” water meters and discontinue water service at premises with delinquent accounts, but did
not require the Village to do so on a particular time schedule. Moreover, the ordinance required
the Village clerk to send notice by mail to the owner only after premises were scheduled for
“red tagging,” not immediately after the second water meter reading.
¶ 25 Lastly, and perhaps most significantly, the ordinance in this case imposes joint and several
liability on Mack for any unpaid water charges regarding its properties. Even assuming that the
enforcement of the ordinance Mack seeks may encourage Mack’s lessees to pay the water
charges, the Village is legally entitled to seek the full amount of the unpaid water charges from
Mack as the owner of the premises. See Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 801
(2009) (discussing common law doctrine of joint and several liability). The ordinance also
provided that the Village may elect to file a lien against the property or to file a civil action
a writ of mandamus will be awarded only if a plaintiff establishes a clear right to relief, a clear duty of
the public official to act, and a clear authority in the public official to comply with the writ.” Id. at 465.
“There must also be no other adequate remedy.” Id. “The writ will not lie when its effect is to substitute
the court’s judgment or discretion for that of the body which is commanded to act.” (Internal quotation
marks omitted.) Lewis E. v. Spagnolo, 186 Ill. 2d 198, 229 (1999). “Thus, mandamus is not appropriate
to regulate a course of official conduct or enforce the performance of official duties generally.” Givot v.
Orr, 321 Ill. App. 3d 78, 90 (2001). Generally, the decision to enforce an ordinance is discretionary in
nature. See, e.g., McClaughry v. Village of Antioch, 296 Ill. App. 3d 636, 644-45 (1998); see also
Castillo v. Jackson, 207 Ill. App. 3d 799, 804 (1990), aff’d, 149 Ill. 2d 165 (1992) (there is a “legion of
adjudicated cases” recognizing that a prosecutor or similar enforcing official may exercise a virtually
unreviewable, discretionary power to decline to enforce a statutory command (internal quotation marks
omitted)).
In this case, Mack merely seeks a declaration of its rights under the Village water ordinance, rather
than to compel Village officials to perform any particular action. This court has not settled the question
of whether a plaintiff may, given the tendency to liberalize use of the declaratory judgment act,
supplant mandamus in cases where the controversy is ripe. See Koziol v. Village of Rosemont, 32 Ill.
App. 2d 320, 326-28 (1961) (in which the case did not initially require the use of mandamus). We need
not settle that question in this case, as the Village and Herzog did not seek dismissal on the ground that
Mack was required to pursue a writ of mandamus. Rather, we observe that Mack’s declaratory
judgment action, by alleging the Village failed to perform ministerial tasks, is consistent with the idea
that its tangible legal interest in the enforcement of the Village water ordinance involves a clear duty to
act on the part of Village officials.
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against the owner, occupant, or user of the real estate. In short, Mack failed to allege facts that
would establish the Village failed to perform ministerial tasks, as opposed to acts of discretion
or judgment. Accordingly, Mack failed to allege a tangible legal interest in this case.
¶ 26 We also observe that Mack, as a lessor, has remedies other than a judicial declaration of
rights. “The mere existence of another remedy does not require dismissal of a declaratory
judgment action, but it may constitute sufficient grounds for dismissal in the trial court’s
discretion.” Mayfair Construction Co. v. Waveland Associates Phase I Ltd. Partnership, 249
Ill. App. 3d 188, 203 (1993) (citing Marlow v. American Suzuki Motor Corp., 222 Ill. App. 3d
722, 728 (1991)). The Second District of this court, however, has concluded “that a trial court
may not dismiss a claim for declaratory relief on the sole ground that another remedy is
available.” Illinois State Toll Highway Authority v. Amoco Oil Co., 336 Ill. App. 3d 300, 311
(2003); see also AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684,
692 (1998) (Fourth District ruling the availability of a quiet title action alone did not warrant
the dismissal of a declaratory judgment action on the pleadings). In this case, Mack not only
lacks a tangible legal interest in the strict enforcement of the Village water ordinance, but
Mack already sought to protect its economic interest by imposing a duty on its lessees to pay
the water charges.5 Mack also could seek to protect its economic interest by including the
expected water charges in the rent it charges lessees, as opposed to relying on the Village to
allocate its resources and exercise its discretion in support of Mack’s business. The fact that
Mack already has a remedy available is not the sole basis to dismiss Mack’s claim for a
declaratory judgment, but it is an additional reason supporting the dismissal in this case.
¶ 27 Accordingly, for all the aforementioned reasons, Mack has failed to establish the circuit
court erred in dismissing count I of the verified amended complaint.
¶ 28 Count II: Breach of Contract
¶ 29 Count II of Mack’s verified amended complaint alleged the Village breached a contract
with property owners to provide water service in accordance with the Village’s ordinances.
The essential elements of a breach of contract are: (1) the existence of a valid and enforceable
contract; (2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4)
resultant injury to the plaintiff. Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071, ¶ 35.
In this case, the Village argues its ordinances are not a contract with property owners to
provide water service.
¶ 30 Historically, the legal relationship between the municipality engaged in the business of
furnishing water to its inhabitants and a water consumer was “essentially one of contract.”
Brooks v. Village of Wilmette, 72 Ill. App. 3d 753, 756 (1979) (citing People ex rel. Brockamp
v. Schlitz Brewing Co., 261 Ill. 22 (1913), and Rosborough v. City of Moline, 30 Ill. App. 2d
167 (1961)). The Brockamp court, in determining water charges were not “taxes,” reasoned:
“When a municipality goes into the business of furnishing water, while such business is
more or less public in its nature, it does so not in the capacity of local sovereignty.
[Citation.] The obligation of the consumer to pay rests upon a contract entered into
5
During oral argument, counsel for Mack observed that pursuing its tenants and former tenants can
be difficult. Mack has not established, however, that any difficulty Mack might have in collecting water
charges from its tenants imposes a duty on the Village to collect the water charges.
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between the city and the consumer, which contract the consumer had an option to make
or not, as he pleased.” (Emphasis added.) Brockamp, 261 Ill. at 25.
The characterization of the relationship as contractual thus depended on the voluntary nature of
the transaction. See id.; see also Rosborough, 30 Ill. App. 2d at 172 (property owner’s
application for water service stated the application and acceptance by the municipality
constituted a contract).6
¶ 31 More recently, this court has ruled a municipality may mandate that property owners
connect to the municipal water system and require payment for the service. Village of
Algonquin v. Tiedel, 345 Ill. App. 3d 229, 236 (2003). In Village of Algonquin, this court
reasoned government is not required to deal with citizens on a purely contractual basis where
the state action represents a rational response to the myriad problems caused by private water
wells. See id. at 235-36 (adopting the rationale and holding in Stern v. Halligan, 158 F.3d 729
(3d Cir. 1998)). The court observed that when a municipality requires use of its water service,
“ ‘[t]he only forced contract is the broader social contract.’ ” Village of Algonquin, 345 Ill.
App. 3d at 236 (quoting Stern, 158 F.3d at 735).
¶ 32 Our decision in Village of Algonquin is also consistent with the principle that “ ‘[t]he
legislature must be free to exercise its constitutional authority without concern that each time a
public policy is expressed contractual rights may thereby be created.’ ” Unterschuetz v. City of
Chicago, 346 Ill. App. 3d 65, 71 (2004) (quoting Fumarolo v. Chicago Board of Education,
142 Ill. 2d 54, 106 (1990)). “A party who asserts that a State law creates contractual rights has
the burden of overcoming the presumption that a contract does not arise out of a legislative
enactment.” Fumarolo, 142 Ill. 2d at 104.
¶ 33 In this case, Mack’s verified amended complaint alleged that the Village exercised control
over the supply of water to residential properties within the Village. A Village ordinance
prohibits private companies and individuals from supplying water to any building, structure or
premises into which water service is introduced. Accordingly, the Village’s provision of water
service represents the exercise of its police power, not the establishment of a voluntary
contractual relationship. See Village of Algonquin, 345 Ill. App. 3d at 236. Thus, we conclude
the circuit court did not err in dismissing count II of Mack’s verified amended complaint
pursuant to section 2-615 of the Code.
¶ 34 Count IV: Willful and Wanton Conduct
¶ 35 Lastly, count IV of Mack’s verified amended complaint alleged that Herzog engaged in
willful and wanton conduct in retaliation against Mack. At the outset, we observe that under
Illinois law, a separate and independent tort of willful and wanton conduct does not exist.
Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 235 (2010). Illinois law regards willful
and wanton conduct as an aggravated form of negligence. Id.
6
Mack observes that this court referred to the relationship between a municipality and a water
consumer to be contractual as recently as our decision in Tepper v. County of Lake, 233 Ill. App. 3d 80,
82 (1992), which involved a charge based on an allegedly inaccurate water meter. The Tepper court did
not set forth the facts upon which it concluded the relationship was contractual, but it relied upon
Brooks and Rosborough, cases in which the record established the contractual nature of the
relationship. Id.
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¶ 36 Herzog did not move to dismiss count IV under section 2-615 of the Code. As Herzog’s
motion was based on section 2-619 of the Code, we assume the legal sufficiency of the claim.
Russell, 342 Ill. App. 3d at 670. Herzog’s motion to dismiss relies on the Tort Immunity Act.
The purpose of the Tort Immunity Act is to protect local public entities and public employees
from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2010). “In
promulgating the Tort Immunity Act, the legislature ‘sought to prevent the dissipation of
public funds on damage awards in tort cases.’ ” Kevin’s Towing, Inc. v. Thomas, 351 Ill. App.
3d 540, 544 (2004) (quoting Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003)).
The rules of statutory construction require courts “to ascertain and give effect to the intent of
the legislature.” In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. In doing so, we
“construe the statute as a whole and afford the language its plain and ordinary meaning.” Id.
We must also avoid rendering any part meaningless or superfluous, and consider words and
phrases in light of other relevant provisions of the statute. Id. Moreover, “[w]hen a general
statutory provision and a more specific one relate to the same subject, we will presume that the
legislature intended the more specific statute to govern.” Abruzzo v. City of Park Ridge, 231 Ill.
2d 324, 346 (2008).
¶ 37 Herzog relies on three provisions of the statute. Section 2-206 of the Tort Immunity Act
provides:
“A public employee is not liable for an injury caused by his issuance, denial,
suspension or revocation of or by his failure or refusal to issue, deny, suspend or
revoke, any permit, license, certificate, approval, order or similar authorization where
he is authorized by enactment to determine whether or not such authorization should be
issued, denied, suspended or revoked.” 745 ILCS 10/2-206 (West 2010).7
Section 4-102 of the Tort Immunity Act provides in part:
“Neither a local public entity nor a public employee is liable for failure to establish a
police department or otherwise provide police protection service or, if police protection
service is provided, for failure to provide adequate police protection or service, failure
7
Herzog’s motion to dismiss referred to section 2-104 of the Tort Immunity Act, which provides the
parallel immunity to local public entities. 745 ILCS 10/2-104 (West 2010). Mack’s opening brief noted
section 2-104 does not apply to Herzog. Mack, however, did not raise this objection in the circuit court.
Generally, arguments not raised in the trial court cannot be raised for the first time on appeal. See
Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996); Kalven v. City of Chicago, 2014 IL App (1st)
121846, ¶ 26. Had Mack raised this objection in the trial court, Herzog could have provided the correct
citation to the Tort Immunity Act, as he has in response to Mack’s argument on appeal. Accordingly,
Mack’s objection is forfeited on appeal.
Moreover, “it is well established that an appellee may argue in support of the judgment on any basis
which appears in the record [citation], and an appellate court may affirm a trial court’s judgment on any
grounds which the record supports [citation], even where those grounds were not argued by the parties
[citation].” Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 48 (Karmeier, J., specially
concurring); see Cuellar v. Hout, 168 Ill. App. 3d 416, 425 (1988); Redd v. Woodford County Swine
Breeders, Inc., 54 Ill. App. 3d 562, 565 (1977) (and cases cited therein). Accordingly, Herzog is
entitled to argue the circuit court was correct based on section 2-206 of the Tort Immunity Act,
particularly where Mack waited until this appeal to dispute the applicability of the substantively similar
section 2-104.
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to prevent the commission of crimes, failure to detect or solve crimes, and failure to
identify or apprehend criminals.” 745 ILCS 10/4-102 (West 2010).
Section 5-102 of the Tort Immunity Act provides:
“Neither a local public entity that has undertaken to provide fire protection service nor
any of its employees is liable for an injury resulting from the failure to suppress or
contain a fire or from the failure to provide or maintain sufficient personnel, equipment
or other fire protection facilities.” 745 ILCS 10/5-102 (West 2010).
The provisions Herzog relies upon make no exception for willful or wanton conduct. See
DeSmet v. County of Rock Island, 219 Ill. 2d 497, 515 (2006) (section 4-102 contains no
exception for willful and wanton misconduct); Village of Bloomingdale, 196 Ill. 2d at 496
(section 2-104 immunity for the issuance or denial of permits and approvals does not contain
an exception for willful and wanton misconduct). Courts will not insert exceptions for “willful
and wanton conduct” or for “corrupt or malicious motives” into provisions of the Tort
Immunity Act when such exceptions do not appear in the plain language of the statute. See
Village of Bloomingdale, 196 Ill. 2d at 493-94.
¶ 38 Mack argues Herzog may be liable for willful and wanton conduct pursuant to section
2-202 of the Tort Immunity Act, which immunizes public employees for an act or omission “in
the execution or enforcement of any law unless such act or omission constitutes willful and
wanton conduct.” 745 ILCS 10/2-202 (West 2010). Mack also relies on section 2-208, which
provides “[a] public employee is not liable for injury caused by his instituting or prosecuting
any judicial or administrative proceeding within the scope of his employment, unless he acts
maliciously and without probable cause.” 745 ILCS 10/2-208 (West 2010).
¶ 39 In this case, Mack alleged Herzog failed to issue various permits, certificates, and other
forms of approval. Mack also alleged Herzog was liable for the failure of the Village to provide
police or fire protection to Mack properties. These allegations are encompassed by sections
2-206, 4-102, and 5-102 of the Tort Immunity Act, which specifically address the issuance or
denial of governmental approvals, and the failure to provide police or fire protection services.
Accordingly, sections 2-206, 4-102, and 5-102 of the Tort Immunity Act–the provisions of the
statute more specifically applicable to Mack’s allegations–are controlling. Abruzzo, 231 Ill. 2d
at 346. Consequently, Mack’s claim of willful and wanton conduct fails regarding these
allegations. See DeSmet, 219 Ill. 2d at 515; Village of Bloomingdale, 196 Ill. 2d at 496.8
8
In Village of Sleepy Hollow v. Pulte Home Corp., 336 Ill. App. 3d 506 (2003), the appellate court
ruled that the immunity provided by section 2-201 of the Tort Immunity Act for discretionary policy
decisions does not always take precedence over the provisions of section 2-208. Id. at 510. The Village
of Sleepy Hollow court, however, reasoned that section 2-201 does not always control because
“[s]ection 2-201 begins with the phrase, ‘[e]xcept as otherwise provided by Statute’ (745 ILCS
10/2-201 (West 2000)), which clearly indicates that the legislature did not intend for public employees
to receive immunity from liability in all situations involving policy and discretion.” Id.
We observe that our supreme court has ruled that willful and wanton conduct cannot deprive a
municipality of an immunity granted by section 2-201. Harinek v. 161 North Clark Street Ltd.
Partnership, 181 Ill. 2d 335, 347 (1998); see also Kevin’s Towing, Inc, 351 Ill. App. 3d at 547-48
(categorizing actions as nondiscretionary solely based on a public employee’s intent would conflict
with the supreme court’s rulings that section 2-201 immunity is not limited by willful and wanton
conduct or by corrupt or malicious motives). Our supreme court has stated that when the legislature
intends to except willful and wanton misconduct from the provisions of an immunity statute, it has
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¶ 40 Mack, however, also alleged Herzog issued citations without an opportunity to cure
violations and subjected Mack properties to arbitrary reinspection. These allegations relate to
the enforcement of the law. Thus, section 2-202, which does not immunize willful and wanton
conduct, is applicable to these allegations. See Abruzzo, 231 Ill. 2d at 346. Moreover, the
issuance of a citation may be considered the institution of a judicial or administrative
proceeding. See, e.g., Village of Glenview v. Buschelman, 296 Ill. App. 3d 35, 37 (1998).
Accordingly, section 2-208 of the Tort Immunity Act also may apply to the allegations
regarding the issuance of citations. We therefore turn to consider whether Herzog engaged in
willful and wanton conduct or acted with malice absent probable cause regarding these
allegations.
¶ 41 “Willful and wanton conduct” is defined by the Tort Immunity Act as “a course of action
which shows an actual or deliberate intention to cause harm or which, if not intentional, shows
an utter indifference to or conscious disregard for the safety of others or their property.” 745
ILCS 10/1-210 (West 2010). The violation of self-imposed rules or internal guidelines does
not normally impose a legal duty and thus would not constitute negligence or willful and
wanton conduct. Luss v. Village of Forest Park, 377 Ill. App. 3d 318, 336 (2007). Although
generally a question of fact, a court may “hold as a matter of law that a public employee’s
actions did not amount to willful and wanton conduct when no other contrary conclusion can
be drawn.” Young v. Forgas, 308 Ill. App. 3d 553, 562 (1999).
¶ 42 In this case, Mack’s verified amended complaint alleges that on numerous occasions,
Herzog informed Mack principal Jack McClelland that the Village’s actions obstructing
Mack’s business were Mack’s fault “for getting the lawyers involved.” Mack thus alleges a
course of action which shows an actual or deliberate intent. The injury alleged from the
issuance of the citations and the reinspections, however, is lost revenue. The issue, therefore, is
whether such damages constitute “harm” within the scope of section 1-210 of the Tort
Immunity Act.
¶ 43 In cases analyzing willful and wanton conduct under section 1-210, this court has ruled
“ ‘[i]t is essential that plaintiff allege and establish that when the defendant acted, or failed to
act, he had knowledge, or should have had the knowledge under the circumstances, that his
conduct posed a high probability of serious physical harm to others.’ ” (Emphasis added.)
Choice v. YMCA of McHenry County, 2012 IL App (1st) 102877, ¶ 72 (quoting Pomrehn v.
Crete-Monee High School District, 101 Ill. App. 3d 331, 335 (1981)). Considering the term
“harm” in light of other relevant provisions of the statute, our interpretation of the term in
Choice is consistent with the remainder of section 1-210, which refers to “an utter indifference
to or conscious disregard for the safety of others or their property.” (Emphasis added.) 745
ILCS 10/1-210 (West 2010). Similarly, section 500 of the Restatement (Second) of Torts,
discussing reckless conduct, refers to conduct that “creates an unreasonable risk of physical
harm to another.” (Emphasis added.) Restatement (Second) of Torts § 500 (1965). Our
“ ‘ “unambiguously done so.” ’ ” DeSmet, 219 Ill. 2d at 514 (quoting Village of Bloomingdale, 196 Ill.
2d at 491, quoting Barnett v. Zion Park District, 171 Ill. 2d 378, 391 (1996)). We need not resolve the
apparent tension between Harinek and Village of Sleepy Hollow in this case. Sections 2-206, 4-102, and
5-102 of the Tort Immunity Act, unlike section 2-201, do not contain express exceptions for the
application of other statutes. 745 ILCS 10/2-206, 4-102, 5-102 (West 2010). Thus, the reasoning of
Village of Sleepy Hollow does not apply to this case.
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supreme court has relied on section 500 of the Restatement (Second) of Torts in analyzing
willful and wanton conduct under section 1-210 of the Tort Immunity Act. Burke v. 12
Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 449 (1992). Accordingly, section 500 of the
Restatement (Second) of Torts informs our analysis of the statute in this case.
¶ 44 Furthermore, Illinois law regards willful and wanton conduct as an aggravated form of the
tort of negligence (Krywin, 238 Ill. 2d at 235) and we are interpreting the Tort Immunity Act,
the purpose of which is to prevent the dissipation of public funds on damage awards in tort
cases (Kevin’s Towing, Inc., 351 Ill. App. 3d 544). “At common law, solely economic losses
are generally not recoverable in tort actions.” In re Chicago Flood Litigation, 176 Ill. 2d at
198. With exceptions not alleged in this case, “[a]bsent injury to a plaintiff’s person or
property, a claim presents an economic loss not recoverable in tort.” Id. at 201.
¶ 45 In this case (unlike, for example, the alleged failure to provide fire protection), Mack does
not allege the reinspections or the issuance of citations resulted in physical harm to persons or
property. Rather, Mack’s verified amended complaint alleged Mack was required to pay fees
and was in danger of losing tenants who sought to move into various Mack properties. Mack
thus alleged economic losses that are generally not recoverable in tort. Such losses are not the
“harm” addressed in the section 1-210 definition of willful and wanton conduct. Accordingly,
the immunity provided by section 2-202 of the Tort Immunity Act applies, rather than the
exception stated therein.
¶ 46 Lastly, there is the question of whether Mack sufficiently alleged that Herzog, by ordering
the issuance of the citations, acted “maliciously and without probable cause.” 745 ILCS
10/2-208 (West 2010). We observe that the language of section 2-208 is conjunctive, requiring
Mack to allege both malice and the absence of probable cause. See Village of Sleepy Hollow,
336 Ill. App. 3d at 512 (and cases cited therein). “The absence of probable cause cannot be
inferred from malice.” Knox County v. Midland Coal Co., 265 Ill. App. 3d 782, 788 (1994)
(and cases cited therein).
¶ 47 In this case, Mack alleged actions and statements by Herzog from which malice regarding
Mack may reasonably be inferred. Mack also alleged that the Village (on information and
belief at the direct order of Herzog), contrary to its prior practice, commenced issuing citations
regarding various Mack properties without providing an opportunity to cure alleged violations.
This allegation does not assert or support an inference that the citations were issued without
probable cause. Mack also alleged that its properties were subject to arbitrary reinspections,
but Mack has cited no authority establishing or suggesting that a property inspection is the
institution of an administrative or judicial proceeding. Thus, the allegations fall within the
scope of the immunity provided by section 2-208 of the Tort Immunity Act, rather than the
exception stated therein.
¶ 48 For all of the aforementioned reasons, the circuit court did not err in dismissing count IV of
Mack’s verified amended complaint pursuant to section 2-619(a)(9) of the Code.
¶ 49 Lastly, Mack suggested during oral argument that the case be remanded with leave to
replead. “Ordinarily a plaintiff whose complaint is dismissed for failure to state a cause of
action can complain of a judgment being entered in bar of action without leave to replead only
if it seeks and is denied leave to replead. [Citation.]” Eversole v. Wasson, 80 Ill. App. 3d 94, 97
(1980). In this case, Mack filed no motion to replead in the circuit court. Mack also informed
the court during oral argument that there was no transcript of proceedings regarding the
dismissal of the verified amended complaint. Furthermore, “[a]ny party who seeks on appeal to
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amend his or her pleadings or the process in the record on appeal shall present a written
application therefor, supported by affidavit.” Ill. S. Ct. R. 362(a) (eff. Feb. 1, 1994). Mack filed
no such application in this appeal. Indeed, Mack did not seek leave to replead in his appellate
briefs. Accordingly, we decline to remand with leave to replead in this case.
¶ 50 CONCLUSION
¶ 51 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is
affirmed.
¶ 52 Affirmed.
¶ 53 JUSTICE GORDON, concurring in part and dissenting in part.
¶ 54 I concur with the majority’s order affirming the dismissal of count 1, but not counts II and
IV. As I explain below, I would reverse the trial court’s dismissal of plaintiff’s counts II and IV
and, thus, I must respectfully dissent.
¶ 55 I. Count II: Breach of Contract
¶ 56 The majority affirms the dismissal of count II, for breach of contract, on the ground that the
Village’s provision of water is an exercise of its police power and therefore it cannot constitute
a contract. The majority acknowledges that, “[h]istorically, the legal relationship between the
municipality engaged in the business of furnishing water to its inhabitants and a water
consumer was ‘essentially one of contract.’ ” Supra ¶ 30 (quoting Brooks, 72 Ill. App. 3d at
756). But the majority rejects this line of cases based on one appellate court case: Village of
Algonquin v. Tiedel, 345 Ill. App. 3d 229, 236 (2003).
¶ 57 However, the Algonquin court was faced with a different issue than the issue at bar. In
Algonquin, the appellate court held that, pursuant to its police power, a municipality could
require residents to use its water. Algonquin, 345 Ill. App. 3d at 234 (an ordinance requiring
residents to use the village’s water is a valid exercise of the village’s police power). By
contrast, in the case at bar, plaintiff is not disputing the Village’s power to require use of its
water; rather, plaintiff is contesting the allegedly arbitrary and capricious manner in which the
Village is providing that service. In the decade since Algonquin was decided, it has been cited
by one published case, and that case cited it for the proposition which it held, namely, that a
municipality’s police power permits it to require use of its water. Board of Education of Dolton
School District 149 v. Miller, 349 Ill. App. 3d 806, 812 (2004) (parenthetical described
Algonquin’s holding as “compelling homeowners to connect to municipal water supply”).
Thus, the one case relied on by the majority is inapposite and not persuasive on the point for
which it is cited.
¶ 58 II. Count IV: Against the Village Manager
¶ 59 Second, the majority affirms the dismissal of count IV, which was brought against
defendant Bert Herzog, the village manager of Dolton.
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¶ 60 A. Plaintiff’s Allegations
¶ 61 This count alleged that Herzog has supervisory authority over all village departments,
including the water and building departments and that he committed willful and wanton
conduct against plaintiff for “ ‘getting the attorneys involved.’ ” Plaintiff alleged that “all of
the Village’s retaliatory actions as outlined herein [in the complaint] were performed at
Herzog’s direction or with his express approval.”
¶ 62 Count IV further alleged:
“71. Each of the retaliatory acts outlined in this Complaint constitute willful and
wanton abuses of the Village’s responsibilities under its ordinances to provide public
safety and water services to property owners and tenants within its borders. On
information and belief, Village Manager, Bert Herzog, has ordered Dolton employees
to do anything they can to harass Mack and hinder its operations within the Village
while this litigation is ongoing.
72. Mack has incurred and continues to incur damages on a daily basis, as the
abuses continue. There is no adequate remedy at law to Mack as a property owner in the
Village. Mack cannot refuse to submit to re-inspection, or place tenants in the
properties that currently require rental approval, as it will be forced to incur additional
violations and citations from the Village. Moreover, Mack cannot force the Village to
issue transfer stamps, and cannot legally provide police protection to its property
managers.”
¶ 63 B. Defendants’ Motion to Dismiss
¶ 64 1. Section 2-619
¶ 65 Defendants moved to dismiss count IV pursuant to section 2-619, on the ground that
Herzog was immune under the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2010)).
While a motion to dismiss pursuant to section 2-615 challenges the legal sufficiency of a
complaint based on defects apparent on its face (Lewis v. Heartland Food Corp., 2014 IL App
(1st) 123303, ¶ 7 (citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006))), a
motion to dismiss pursuant to section 2-619 admits the legal sufficiency of the complaint but
asserts an affirmative defense or other matter that avoids or defeats plaintiff’s claim. Bank of
America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, ¶ 57 (citing DeLuna v. Burciaga, 223 Ill.
2d 49, 59 (2006)); 735 ILCS 5/2-619(a)(9) (West 2012) (a motion under section 2-619 argues
that “the claim asserted against defendant is barred by *** affirmative matter avoiding the
legal effect of or defeating the claim”).
¶ 66 2. Statutory Sections Cited by Defendant
¶ 67 Since defendants moved under section 2-619, we do not consider whether count IV states a
cause of action but consider only whether the statutory sections cited by defendants constitute
affirmative matter defeating plaintiff’s claim.
¶ 68 In their motion to dismiss, defendants cited three sections of the Tort Immunity Act: (1)
section 2-104, concerning the issuance, denial, suspension or revocation of permits (745 ILCS
10/2-104 (West 2010)); (2) section 4-102, concerning police protection (745 ILCS 10/4-102
(West 2010)); and (3) section 5-102, concerning the failure to suppress or contain a fire (745
ILCS 10/5-102 (West 2010)).
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¶ 69 Section 2-104 provides in full:
“A local public entity is not liable for an injury caused by the issuance, denial,
suspension or revocation of, or by the failure or refusal to issue, deny, suspend or
revoke, any permit, license, certificate, approval, order or similar authorization where
the entity or its employee is authorized by enactment to determine whether or not such
authorization should be issued, denied, suspended or revoked.” 745 ILCS 10/2-104
(West 2010).
The majority concluded that the above-quoted section, which refers only to a public entity and
not to an employee, did not apply to defendant Herzog. Supra ¶ 37 n.7.
¶ 70 Section 4-102 provides in full:
“Neither a local public entity nor a public employee is liable for failure to establish a
police department or otherwise provide police protection service or, if police protection
service is provided, for failure to provide adequate police protection or service, failure
to prevent the commission of crimes, failure to detect or solve crimes, and failure to
identify or apprehend criminals. This immunity is not waived by a contract for private
security service, but cannot be transferred to any non-public entity or employee.” 745
ILCS 10/4-102 (West 2010).
¶ 71 Section 5-102 provides in full:
“Neither a local public entity that has undertaken to provide fire protection service nor
any of its employees is liable for an injury resulting from the failure to suppress or
contain a fire or from the failure to provide or maintain sufficient personnel, equipment
or other fire protection facilities.” 745 ILCS 10/5-102 (West 2010).
¶ 72 In addition to the above-quoted sections, the majority holds that defendants can raise, for
the first time on appeal, a statutory section that they did not cite before the trial court, namely,
section 2-206 (745 ILCS 10/2-206 (West 2010)). Supra ¶ 37 n.7. The majority holds that
defendants can do this because plaintiff should have realized that defendants were citing the
wrong section and should have objected below, and that because plaintiff did not flag for
defendants a better section to cite, plaintiff cannot object now to defendants raising it for the
first time on appeal. Supra ¶ 37 n.7. I know of no rule of waiver that requires a plaintiff’s
attorney to advise the defendants of a better argument to make or a better statutory section to
cite. It was defendants’ burden to raise the “affirmative matter” barring plaintiff’s claim in
their section 2-619 motion to dismiss. 735 ILCS 5/2-619 (West 2012). By failing to make any
arguments concerning section 2-206 in their brief to the court below, defendants waived the
issue for our consideration on appeal. Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st)
132842, ¶ 58 (issues not raised in the trial court are waived and may not be raised for the first
time on appeal).
¶ 73 C. Plaintiff’s Response
¶ 74 1. Section 2-101: Contract Exception
¶ 75 In its response to defendants’ motion to dismiss, plaintiff argued, first, that the Tort
Immunity Act does not apply to contracts. Section 2-101 of the Act provides: “Nothing in this
Act affects the liability, if any, of a local public entity or public employee, based on: a).
Contract.” 745 ILCS 10/2-101 (West 2010). As I discussed above, since water provision has
been historically viewed as a contract, the Tort Immunity Act does not apply to plaintiff’s
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claims.
¶ 76 2. Exceptions for Wanton and Willful Conduct
¶ 77 Second, plaintiff argued in its response to the trial court that, even if the rubric of the Act
applied, plaintiff’s claim fell into the Act’s exceptions for wanton and willful conduct.
Specifically, plaintiff cited the exceptions contained in: (1) section 2-202, which concerns the
execution or enforcement of the law by public employees (745 ILCS 10/2-202 (West 2010));
and (2) section 2-208, which concerns the institution or prosecution of judicial or
administrative proceedings (745 ILCS 10/2-208 (West 2010)).
¶ 78 Section 2-202 provides in full:
“A public employee is not liable for his act or omission in the execution or enforcement
of any law unless such act or omission constitutes willful and wanton conduct.” 745
ILCS 10/2-202 (West 2010).
¶ 79 Section 2-208 provides in full:
“A public employee is not liable for injury caused by his instituting or prosecuting any
judicial or administrative proceeding within the scope of his employment, unless he
acts maliciously and without probable cause.” 745 ILCS 10/2-208 (West 2010).
¶ 80 With respect to the above-quoted sections, the majority holds, first, that the sections cited
by defendants provide absolute immunity and that they trump the “willful and wanton” and
“maliciously” language provided in sections 2-202 and 2-208 (745 ILCS 10/2-202, 2-208
(West 2010)). Supra ¶ 39. However, the appellate court rejected a similar argument in Village
of Sleepy Hollow v. Pulte Home Corp., 336 Ill. App. 3d 506 (2003). In Sleepy Hollow, the
village argued that the immunity provided by section 2-201 for discretionary acts was absolute
and thus trumped the exception in section 2-208, which is one of the sections at issue in the
case at bar. Sleepy Hollow, 336 Ill. App. 3d at 510. By contrast, the opposing party in Sleepy
Hollow argued that section 2-208 was “more specific” and thus it was the section that “must
apply.” Sleepy Hollow, 336 Ill. App. 3d at 510.
¶ 81 The Sleepy Hollow court rejected both arguments, holding that the various sections of the
Act “operate in conjunction with each other.” Sleepy Hollow, 336 Ill. App. 3d at 510. The court
observed that, “[w]hen construing immunities under the Immunity Act, a court must view the
statute as a whole, with all relevant parts considered together.” Sleepy Hollow, 336 Ill. App. 3d
at 510. The court held that both sections applied to offer immunity to the village in different
ways, but that the “maliciously” language in section 2-208 provided an exception to the
immunity protections set forth in both section 2-208 and other parts of the Act. Sleepy Hollow,
336 Ill. App. 3d at 510, 512.
¶ 82 The issue before us is different from the issue in Abruzzo v. City of Park Ridge, 231 Ill. 2d
324 (2008), relied on by the majority. Supra ¶¶ 36, 40. In Abruzzo, 231 Ill. 2d at 327, the issue
was whether the Emergency Medical Services (EMS) Systems Act (the EMS Act) (210 ILCS
50/3.150(a) (West 2004)) or the Tort Immunity Act applied. Both acts appeared to apply, and
they conflicted with each other. Abruzzo, 231 Ill. 2d at 344. Forced to pick between two
conflicting acts, the court picked the EMS Act because it was both the “more specific” and the
“more recent” of the two separate legislations. Abruzzo, 231 Ill. 2d at 346. By contrast, in the
instant case, we are called upon to harmonize the sections of one act.
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¶ 83 Second, the majority holds that, since the exceptions for willful and wanton conduct do not
appear in the same statutory sections cited by defendant Herzog, then applying them here
would, in effect, “insert” exceptions that “do not appear in the plain language of the statute.”
Supra ¶ 37. However, when we refer to sections cited by defendant Herzog, we do not consider
section 2-104 (745 ILCS 10/2-104 (West 2010)) because, as the majority correctly observed, it
does not apply to Herzog. Supra ¶ 37 n.7. Also, as we explained above, defendant Herzog
waived any arguments based on section 2-206 (745 ILCS 10/2-206 (West 2010)) by failing to
raise it in the court below. Thus, the only sections cited by Herzog that are under consideration
are sections 4-102 and 5-102 (745 ILCS 10/4-102, 5-102 (West 2010)) which concern the
provision of fire and police protection and which affect only a small part of plaintiff’s
allegations.
¶ 84 In addition, the exceptions are in statutory sections cited by plaintiff. While “we may not
read into the statute limitations that the legislature did not express” (Sleepy Hollow, 336 Ill.
App. 3d at 511 (citing Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 493
(2001))), the exceptions in sections 2-202 and 2-208 are expressly stated by the legislature in
the Act. “ ‘[T]he legislature has recognized exceptions to its grants of immunity and
enumerated those exceptions in the plain language of the Act.’ ” Sleepy Hollow, 336 Ill. App.
3d at 510-11 (quoting Village of Bloomingdale, 196 Ill. 2d at 494-95 (specifically listing
sections 2-202 and 2-208 as examples of these exceptions)).
¶ 85 The issue before us is also different from the issue in Village of Bloomingdale, relied on by
the majority. Supra ¶¶ 37, 39. In Village of Bloomingdale, the issue was whether “the Illinois
Constitution prohibits the insertion of the common law ‘corrupt or malicious motives’
exception into the immunities provided by the Act.” Village of Bloomingdale, 196 Ill. 2d at
486. Holding that the exception could not be read into the Act, the court observed that “no
provision of the Act contains an exception for ‘corrupt or malicious motives.’ ” (Emphasis in
original.) Village of Bloomingdale, 196 Ill. 2d at 495. By contrast, in the case at bar, we are
discussing exceptions expressly provided in the Act itself.
¶ 86 Third, the majority acknowledges that section 2-208 concerns proceedings and that this
section “may” apply. Supra ¶ 40. However, the majority does not consider the proceeding
alleged by plaintiff. Plaintiff’s amended complaint, which is the complaint at issue, alleges in
count IV:
“68. In July 2012, [plaintiff] Mack sent a copy of a draft Complaint to Village
Manager Bert Herzog and Village Attorney Evangeline Levison indicating that, should
matters continue, it would be forced to file suit. The Village’s campaign of retaliation
began shortly thereafter.”
Thus, the complaint alleges that the “proceeding” is this lawsuit. 745 ILCS 10/2-208 (West
2010).
¶ 87 Section 2-208 says “instituting or prosecuting,” so the word “prosecuting” must mean
something different than “instituting,” otherwise it would be superfluous. In re Detention of
Stanbridge, 2012 IL 112337, ¶ 70 (we must interpret a statute so as to avoid rendering any part
“superfluous”). In interpreting a statute, we must “afford the language its plain and ordinary
meaning.” Stanbridge, 2012 IL 112337, ¶ 70. The first meaning of “prosecute” in the
dictionary is: “To pursue or persist in so as to complete.” The American Heritage Dictionary
994 (2d Coll. Ed. 1982). It is defendant Herzog’s retaliatory actions as part of pursuing this
lawsuit that are the subject of count IV, and section 2-208 withholds immunity if he acts
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maliciously and without probable cause, which is what plaintiff has alleged. 745 ILCS
10/2-208 (West 2010). Since defendants moved under section 2-619, we accept the legal
sufficiency of these allegations. Bank of America, 2014 IL App (1st) 131252, ¶ 57.
¶ 88 Thus, even assuming arguendo that the Act applied to contract claims, count IV falls into
the exceptions expressly carved out by the Act in section 2-202 for wanton and willful conduct
and section 2-208 for malicious conduct.
¶ 89 Conclusion
¶ 90 For the foregoing reasons, I would reverse the trial court’s dismissal of plaintiff’s counts II
and IV and, thus, I must respectfully dissent.
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