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Appellate Court Date: 2018.02.01
16:30:06 -06'00'
Martinez v. Cook County Sheriff’s Office, 2017 IL App (3d) 160514
Appellate Court DENISE J. MARTINEZ, Plaintiff-Appellant, v. THE COOK
Caption COUNTY SHERIFF’S OFFICE and COOK COUNTY, ILLINOIS,
Defendants-Appellees.
District & No. Third District
Docket No. 3-16-0514
Filed October 6, 2017
Decision Under Appeal from the Circuit Court of Will County, No. 16-L-19; the Hon.
Review John C. Anderson, Judge, presiding.
Judgment Affirmed.
Counsel on Anne M. Riegle, of Naperville, for appellant.
Appeal
Kimberly M. Foxx, State’s Attorney, of Chicago (Paul L. Fangman,
Assistant State’s Attorney, of counsel), for appellees.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justice Wright concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Denise J. Martinez, brought an action under the Income Withholding for Support
Act (Withholding Act) (750 ILCS 28/35 (West 2014)) against defendants, the Cook County
sheriff’s office and Cook County, to obtain a money judgment of over $50,000 for defendants’
failure to withhold approximately $1600 in maintenance from plaintiff’s ex-husband’s
paychecks. Defendants filed a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2014))
motion to dismiss the complaint, alleging that plaintiff was not entitled to the money judgment
requested because (1) the failure to withhold maintenance was the result of an innocent
mistake on the part of one of defendants’ employees and was not knowingly done and (2) the
claim for a money judgment was barred by the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-102 (West 2014)). After a
hearing, the trial court agreed with defendants’ contentions and granted defendants’ motion to
dismiss. Plaintiff appeals. We affirm the trial court’s judgment.
¶2 FACTS
¶3 Plaintiff was married to Salomon Martinez. Salomon was employed by Cook County and
worked for the sheriff’s office. Plaintiff and Salomon were divorced in May 2014. Pursuant to
the judgment for dissolution of marriage that was entered, Salomon was ordered to pay child
support for the parties’ two minor children and maintenance of $500 per month.
¶4 In May 2015, an amended support order was entered, terminating the child support
payments but continuing the maintenance payment of $500 per month. The maintenance
payment was to be automatically deducted from Salomon’s paycheck by his employer and sent
directly to the Illinois State Disbursement Unit.
¶5 In June 2015, Salomon faxed a notice of the change in withholding to the Cook County
comptroller’s office. The notice consisted of several pages. The first page of the notice was a
fax coversheet from Salomon, indicating that the documents he was sending to the comptroller
were in regard to “[t]ermination of child support.” The second page of the notice was a letter
from Salomon’s attorney, stating that Salomon’s child support payments had been terminated
by the court in May 2015 (the May 2015 court date) and directing the comptroller’s office to
“cease any current withholdings.” The third page of the notice was a one-page court order,
which had been entered on the May 2015 court date. The text of the order was hand-printed and
continued the underlying case to a date in June 2015 for a status hearing on plaintiff’s petition
for postjudgment relief. The fourth and fifth pages of the notice were a two-page court order
that had also been entered on the May 2015 court date. The text of the order was handwritten in
cursive, was somewhat difficult to read, and stated, among other things, that child support for
the two children was terminated. The order made no mention of Salomon’s maintenance
obligation. The sixth through eleventh pages of the notice were an amended income
withholding order for support from the same May 2015 court date. The order indicated that the
amount to be withheld from Salomon’s paychecks for spousal maintenance was $500 per
month ($230.77 biweekly) and that the child support for the two children had been terminated.
¶6 The faxed notice was received by comptroller wage garnishment clerk Laura Murray.
Murray promptly acted upon the information and terminated the withholding from Salomon’s
paycheck for child support. In addition, however, Murray erroneously terminated the
withholding from Salomon’s paycheck for spousal maintenance. As a result of the error,
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plaintiff did not receive her spousal maintenance payments for the following seven dates in
2015: June 5, June 19, July 3, July 17, July 31, August 14, and August 28.
¶7 Toward the end of August 2015, plaintiff’s attorney faxed a letter to the Cook County
sheriff’s office to notify them that plaintiff had not been receiving her spousal maintenance
payments and that the attorney had filed a petition for rule to show cause in the underlying
case. A copy of the amended income withholding order from the May 2015 court date was
attached to the letter. The letter was apparently forwarded to the comptroller’s office and was
received by the comptroller’s office shortly thereafter in September 2015.
¶8 Upon receiving the letter from the plaintiff’s attorney, comptroller clerk Murray promptly
corrected the error that she had made and immediately reinstated the withholding from
Salomon’s paycheck for monthly spousal maintenance. The withholding went into effect as of
the next pay period. Salomon later paid to plaintiff the entire amount of spousal maintenance
that the comptroller’s office had failed to withhold from his paychecks.
¶9 In January 2016, plaintiff filed the instant action against defendants, alleging that
defendants had knowingly failed to withhold the seven monthly maintenance payments and
seeking the assessment of a statutory penalty against defendants of over $50,000 under section
35(a) of the Withholding Act (see 750 ILCS 28/35(a) (West 2014) (providing for the
imposition of a $100-per-day penalty on any payor who knowingly fails to follow a
withholding order)).
¶ 10 In April 2016, defendants filed a section 2-619(a)(9) motion to dismiss the complaint,
alleging that dismissal was warranted because defendants had not knowingly violated the
statute and because plaintiff’s claim was barred by the Tort Immunity Act. Attached to the
motion were various supporting documents, including (1) the faxed notice that the
comptroller’s office had received from Salomon and his attorney in June 2015, (2) the faxed
letter that the comptroller’s office had received from plaintiff’s attorney in September 2015,
and (3) an affidavit of comptroller clerk Laura Murray. In her affidavit, Murray attested to
many of the facts set forth above. In addition to those facts and in explanation of how the error
occurred, Murray stated further in her affidavit that as she reviewed the notice from Salomon
and his attorney (1) she read on the cover page that the notice pertained to termination of child
support, (2) she read the letter from Salomon’s attorney on the second page of the notice,
which stated that Salomon’s obligation to pay child support was terminated by the May 2015
court order and specifically requested that Murray “cease any current withholdings”, (3) she
reviewed the court orders contained in the notice, (4) on the one court order, which was
handwritten (in cursive) and difficult to read, she underlined the phrase “terminated,” (5) she
stopped reviewing the notice at that point because she had come across the court order that
Salomon and his attorney had both mentioned in the first two pages of the notice, and (6) she
then changed the withholding amount for Salomon’s paycheck to zero. Murray also stated that
(1) as soon as she received notice of the error from plaintiff’s attorney, she corrected the error,
(2) the failure to withhold spousal maintenance was the result of a mistake and was not
intentional, and (3) she reviewed and acted on the June 2015 notice to the best of her abilities,
given the clear direction by Salomon’s attorney to “cease all withholdings,” which was
supported by the cover page and the handwritten court order.
¶ 11 Plaintiff filed a response and opposed the motion to dismiss, and defendants filed a reply to
that response. In July 2016, a hearing was held on the motion. After listening to the arguments
of the attorneys, the trial court took the motion under advisement. The trial court later issued a
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written order granting defendants’ section 2-619(a)(9) motion to dismiss “for the reasons
asserted in the motion itself,” and adopting “the rationale [and] arguments of the [defendants].”
Plaintiff appealed.
¶ 12 ANALYSIS
¶ 13 On appeal, plaintiff argues that the trial court erred in granting defendants’ section 2-619
motion to dismiss plaintiff’s complaint for money judgment (for the assessment of a section 35
statutory penalty against defendants). Plaintiff asserts that the motion to dismiss should not
have been granted because (1) defendants’ claim that the violation of the Withholding Act was
not knowingly done was merely a negation of one of the elements of a violation of the statute
and was not a proper affirmative matter to warrant dismissal under section 2-619(a)(9), (2)
defendants failed to show that no set of facts could be proved that would entitle plaintiff to
recover, as defendants were required to show to obtain a section 2-619 dismissal, (3) several
material questions of fact existed, which should have prevented defendants from prevailing on
their section 2-619 motion to dismiss, (4) Murray’s affidavit, which merely set forth the
evidence that defendants would expect to present to contest the facts alleged in the plaintiff’s
complaint (to show that the failure to withhold was not knowingly done) was insufficient to
support a dismissal under section 2-619(a)(9), and (5) the Tort Immunity Act should not apply
in this case to shield defendants from liability for the assessment of a statutory penalty under
section 35 of the Withholding Act, since the task performed by Murray was not “official” or
“discretionary” in nature, Murray’s conduct in failing to carefully review the documents that
she had received constituted willful and wanton conduct, the penalty under section 35 of the
Withholding Act is not punitive in nature, and there are several important public policy reasons
for not applying the Tort Immunity Act in this context. For all the reasons stated, plaintiff asks
that we reverse the trial court’s order granting defendants’ section 2-619 motion to dismiss the
plaintiff’s complaint for money judgment and that we remand this case for further proceedings.
¶ 14 Defendants argue that the trial court’s ruling was proper and should be upheld. In support
of that argument, defendants assert that (1) plaintiff did not state a claim for the assessment of
a penalty against defendants under section 35 of the Withholding Act, since plaintiff did not
(and could not) establish that a knowing failure to withhold maintenance had occurred, (2)
although the evidence in this case gave rise to the statutory presumption of a knowing failure to
withhold maintenance, defendants rebutted that presumption with Murray’s affidavit and
showed that defendants had not knowingly failed to withhold maintenance, (3) the failure to
withhold maintenance in this case was not knowingly or intentionally done but, rather, was the
result of an unintentional and honest mistake, which occurred due to the multiple and
conflicting documents that Murray had received from plaintiff’s ex-husband and his attorney
and the direction that Murray had received from plaintiff’s ex-husband’s attorney to “cease any
current withholdings”, (4) Murray acted promptly upon the notice that she had received from
plaintiff’s ex-husband and his attorney to change the withholding initially and, upon receiving
notice from plaintiff of the mistake, acted promptly to correct it, (5) case law supports the trial
court’s conclusion that a statutory penalty under section 35 of the Withholding Act is not
warranted in a situation, such as this, where the employer did not knowingly violate the
Withholding Act, (6) no person interpreting the facts in this case could reasonably conclude
that the actions of Murray constituted a purposeful disregard of the trial court’s withholding
order, (7) Murray’s affidavit and the supporting documents do not contest any facts in the
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plaintiff’s complaint but, instead, provide additional sworn testimony and documentary
evidence to rebut the statutory presumption of a knowing failure to withhold maintenance, (8)
defendants’ claim that the violation was not knowingly done and the evidence presented in
support of that claim were entirely appropriate and justify the trial court’s dismissal of the
complaint under section 2-619(a)(9), (9) Murray was a public employee, not a public official,
and was not involved in policymaking or the exercise of discretion, and plaintiff’s assertions of
that nature should be disregarded, since defendants never claimed that immunity applied on
that basis, (10) the assessment of a section 35 statutory penalty is punitive in nature, and the
imposition of such a penalty against a public entity is barred by the Tort Immunity Act, (11)
plaintiff’s characterization of Murray’s conduct as willful and wanton is misplaced and legally
groundless and was asserted by plaintiff primarily to get around a possible defense that
defendants have never asserted, and (12) although plaintiff claims that questions of material
fact remain, there is no dispute as to the documents that Murray received in the June 2015
faxed notice. For all of the reasons stated, defendants ask that we affirm the trial court’s grant
of defendants’ section 2-619 motion to dismiss plaintiff’s complaint for money judgment.
¶ 15 Section 2-619 of the Code of Civil Procedure allows a litigant to obtain an involuntary
dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619
(West 2014). The statute’s purpose is to provide litigants with a method for disposing of issues
of law and easily proven issues of fact early in a case, often before discovery has been
conducted. See Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003); Advocate
Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a section
2-619 proceeding, the moving party admits the legal sufficiency of the complaint, but asserts
an affirmative defense or other matter to defeat the nonmoving party’s claim. Van Meter, 207
Ill. 2d at 367. Section 2-619 lists several different grounds for which an involuntary dismissal
may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2014). Under subsection (a)(9),
the subsection that applies in this case, a litigant may obtain an involuntary dismissal of a claim
asserted against him if the claim is barred by other affirmative matter, which avoids the legal
effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2014). An “affirmative matter” is
something in the nature of a defense that negates the cause of action completely. Van Meter,
207 Ill. 2d at 367. In ruling upon a section 2-619 motion to dismiss, the court must construe all
of the pleadings and supporting documents in the light most favorable to the nonmoving party.
Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed de novo. Id. at 368.
When de novo review applies, the appellate court performs the same analysis that the trial
court would perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43. A
trial court’s grant of a motion to dismiss a complaint may be affirmed on any basis supported
by the record. Board of Trustees of Community College, District No. 508 v. Coopers &
Lybrand LLP, 296 Ill. App. 3d 538, 543 (1998).
¶ 16 I. Application of Section 2-102 of the Tort Immunity Act
¶ 17 In ruling on this appeal, we will address first whether section 2-102 of the Tort Immunity
Act bars the imposition of a statutory penalty against defendants under section 35 of the
Withholding Act because that determination completely resolves this appeal. In making that
determination, for the sake of argument, we will assume that defendants’ failure to withhold
the designated amount from Salomon’s paychecks was done knowingly. With that assumption
in place, we consider the relevant statutory provisions.
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¶ 18 Section 35 of the Withholding Act provides for the imposition of a $100-per-day penalty
on any payor who knowingly fails to follow a withholding order. See 750 ILCS 28/35(a) (West
2014). The purpose of the penalty provision is to punish parties that violate the Withholding
Act and to discourage future violations. See In re Marriage of Murray, 2014 IL App (2d)
121253, ¶ 47. The failure of a payor, on more than one occasion, to remit the amount withheld
to the State Disbursement Unit within seven business days after the date the amount would
have been paid or credited to the obligor creates a rebuttable presumption that the payor
knowingly failed to pay over the amounts. See 750 ILCS 28/35(a) (West 2014); In re Marriage
of Solomon, 2015 IL App (1st) 133048, ¶ 32. A separate violation of the Withholding Act
occurs each time a payor knowingly fails to withhold the amount designated in the income
withholding notice or fails to remit the amount withheld, and a statutory penalty under section
35 is to be assessed for each violation. Murray, 2014 IL App (2d) 121253, ¶ 16. The statutory
penalty per violation, however, may not exceed $10,000. 750 ILCS 28/35(a) (West 2014). The
section 35 statutory penalty may be collected by the recipient by bringing a civil action against
the payor. See id.; Murray, 2014 IL App (2d) 121253, ¶ 15.
¶ 19 The Tort Immunity Act’s purpose is to protect local public entities and public employees
from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2014);
Murray, 2014 IL App (2d) 121253, ¶ 36. “By providing immunity, the legislature sought to
prevent public funds from being diverted from their intended purpose to the payment of
damages claims.” Murray, 2014 IL App (2d) 121253, ¶ 36. In keeping with that legislative
goal, section 2-102 of the Tort Immunity Act provides that:
“Notwithstanding any other provision of law, a local public entity is not liable to pay
punitive or exemplary damages in any action brought directly or indirectly against it by
the injured party or a third party. In addition, no public official is liable to pay punitive
or exemplary damages in any action arising out of an act or omission made by the
public official while serving in an official executive, legislative, quasi-legislative or
quasi-judicial capacity, brought directly or indirectly against him by the injured party
or a third party.” 745 ILCS 10/2-102 (West 2014).
Thus, under section 2-102, punitive damages may generally not be assessed against a local
public entity, such as the county in the instant case (although plaintiff sued both the sheriff’s
office and the county, the county is the actual payor and is the true party defendant in this case).
See 745 ILCS 10/1-206, 2-102 (West 2014). Punitive damages are not awarded as
compensation but, rather, serve to punish the offender and to deter the offender and others from
committing similar acts of wrongdoing in the future. Murray, 2014 IL App (2d) 121253, ¶ 45
(citing Paulson v. County of De Kalb, 268 Ill. App. 3d 78, 80 (1994)).
¶ 20 To our knowledge, there are only a few Illinois appellate court cases that have determined
whether the statutory penalty under section 35 of the Withholding Act constitutes punitive
damages for the purposes of the Tort Immunity Act. In the Murray case, cited above, the
Second District of the Appellate Court found that the section 35 statutory penalty was punitive
in nature and constituted punitive damages. Id. ¶ 47. The Murray court noted that the obvious
purpose of allowing a plaintiff to recover the $100-per-day penalty for each knowing violation
was to punish parties that violated the Withholding Act and to discourage future violations. Id.
The Murray court commented that while actual damages recoverable under section 35 were
intended to make the plaintiff whole again, the $100-per-day penalty served to increase the
award beyond merely compensation. Id. Finding that the section 35 statutory penalty
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constituted punitive damages, the Murray court went on to conclude that section 2-102 of the
Tort Immunity Act and section 35 of the Withholding Act could be read together harmoniously
and that, pursuant to section 2-102 of the Tort Immunity Act, a section 35 statutory penalty
could not be assessed against a local public entity. Id. ¶¶ 48, 54-55. In reaching that
conclusion, the Murray court stated further that it would not disregard the phrase,
“notwithstanding any other provision of law,” contained in section 2-102 of the Tort Immunity
Act; that it was declining to read a limitation into section 2-102 that the legislature did not set
forth in the statute; and that if the legislature had intended to deny governmental entities
immunity for claims provided for in section 35 of the Withholding Act, the legislature could
have explicitly stated as much. Id. ¶ 49. In addition, the Murray court distinguished an earlier
ruling that the Second District Appellate Court had made in In re Marriage of Chen, 354 Ill.
App. 3d 1004, 1022 (2004), in which the Second District declined to apply the due process
criteria used for common law punitive damage claims to a statutory penalty assessed against an
employer under section 35 of the Withholding Act and stated that the case before it involved a
statutory penalty, rather than an award of punitive damages. Murray, 2014 IL App (2d)
121253, ¶¶ 51-53. Commenting on the decision in Chen, the Murray court stated that the fact
that the amount of common law punitive damages was uncertain and the amount of the section
35 statutory penalty was definite did not render the former punitive and the latter
compensatory for the purposes of section 2-102 of the Tort Immunity Act; rather, the overall
character of both was punitive. Id. ¶ 53.
¶ 21 Another Illinois Appellate Court case that determined whether the section 35 statutory
penalty constituted punitive damages is the Solomon case, cited above. See Solomon, 2015 IL
App (1st) 133048, ¶ 26. In Solomon, the First District Appellate Court disagreed with the
Second District’s conclusion in Murray and stated that the section 35 statutory penalty did not
constitute punitive damages. Id. In reaching that conclusion, the Solomon court cited the
statement made by the Second District Appellate Court in the earlier case of Chen, that the
section 35 penalty was a statutory penalty and not an award of punitive damages. Id. The
Solomon court went on to find, however, that section 2-102 immunity did not apply in that case
because the defendant’s actions were ministerial in nature and not discretionary. Id. ¶ 30.
Nevertheless, the Solomon court upheld the trial court’s refusal to impose a section 35 statutory
penalty because the defendant’s failure to comply with the support order in that case resulted
from an unintentional and honest mistake and not a knowing violation. Id. ¶¶ 34-35.
¶ 22 Having reviewed Murray, Solomon, and Chen, we find the reasoning in Murray to be the
most persuasive on this issue. The purpose of the section 35 statutory penalty is clearly to
punish those who violate the Withholding Act and to deter future violations—not to
compensate the recipient of support for the payments that he or she did not receive. See
Murray, 2014 IL App (2d) 121253, ¶ 47. We must conclude, therefore, as the Murray court
did, that the section 35 statutory penalty constitutes punitive damages for the purposes of
section 2-102 of the Tort Immunity Act. See id.; see also Paulson, 268 Ill. App. 3d at 83
(reaching a similar conclusion as to a portion of a treble damages provision under a different
statute). It follows, then, that defendants have immunity under section 2-102 of the Tort
Immunity Act from the section 35 statutory penalty in this case. See 745 ILCS 10/1-206, 2-102
(West 2014); Murray, 2014 IL App (2d) 121253, ¶¶ 54-55. The trial court, therefore, properly
granted defendants’ section 2-619 motion to dismiss plaintiff’s complaint for a money
judgment as the money judgment was barred by section 2-102 of the Tort Immunity Act. See
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745 ILCS 10/1-206, 2-102 (West 2014); Murray, 2014 IL App (2d) 121253, ¶¶ 54-55; Abruzzo
v. City of Park Ridge, 231 Ill. 2d 324, 331-32 (2008) (recognizing that immunity under the Tort
Immunity Act is a proper basis for a section 2-619(a)(9) dismissal).
¶ 23 In reaching that conclusion, we must take a moment to comment upon some of the
assertions to the contrary made by plaintiff in this appeal. From a statutory interpretation
standpoint, neither statute at issue in this case (section 35 and section 2-102) is ambiguous, and
we agree with the Murray court that the two statutes can be read together harmoniously,
especially in light of the prefatory “notwithstanding any other provision of law” language in
section 2-102. See Murray, 2014 IL App (2d) 121253, ¶ 48. Thus, there is no reason for us to
weigh the different policy interests supporting each statute or to determine which policy
interests should be deemed more important.
¶ 24 In addition, we believe that plaintiff’s assertions regarding whether the wage garnishment
clerk’s actions were done in an official capacity, whether the clerk’s conduct was discretionary
or ministerial in nature, and whether the clerk’s actions constituted willful and wanton conduct
are misplaced. Section 35 of the Withholding Act allows the recipient to bring a civil action
against the payor to try to obtain the assessment of the statutory penalty for knowingly failing
to withhold or remit support. 750 ILCS 28/35(a) (West 2014). The payor in this case is Cook
County, a local public entity for the purposes of the Tort Immunity Act. See 745 ILCS
10/1-206 (West 2014). Defendants asserted in a section 2-619(a)(9) motion to dismiss local
public entity immunity under section 2-102 of the Tort Immunity Act as other affirmative
matter that defeats plaintiff’s claim for a section 35 statutory penalty. Although the factual
circumstances in this case involve the conduct of a public employee, who is a wage
garnishment clerk for the county comptroller’s office, this case does not involve a suit brought
against that public employee or any public official, as they are not the payor of support.
Defendants, therefore, did not assert public official or public employee immunity as other
affirmative matter defeating plaintiff’s claim as there was no reason for them to do so. Thus,
questions as to whether the wage garnishment clerk’s actions were made while serving in an
official capacity, whether they were discretionary or ministerial, or whether they constituted
willful and wanton conduct have no relevance to our determination here. See, e.g., District No.
508, 296 Ill. App. 3d at 544 (stating that the critical question to consider when application of
the doctrine of public official immunity is asserted is whether the official’s or employee’s
conduct was discretionary or merely ministerial).
¶ 25 II. Other Assertions Made by the Parties
¶ 26 Because we have determined that plaintiff’s claim for the assessment of a section 35
statutory penalty against defendants was barred by section 2-102 of the Tort Immunity Act and
that defendants’ section 2-619(a)(9) motion to dismiss was properly granted on that basis, we
need not address the other assertions made by the parties in support of their arguments on
appeal. Most notably, we do not decide, and take no position on, the question of whether the
failure to withhold maintenance in this case was done knowingly for purposes of the section 35
statutory penalty or the question of whether the lack of a knowing violation may properly be
raised as other affirmative matter in a section 2-619(a)(9) motion to dismiss.
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¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
¶ 29 Affirmed.
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