Justice REYES delivered the judgment of the court, with 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.
¶ 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
¶ 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
¶ 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 2012)).
¶ 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
¶ 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 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 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.
¶ 17 On appeal, Mack contends the circuit court erred in dismissing counts I, II and IV of its verified first amended complaint.
¶ 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, 282 Ill.Dec. 335, 806 N.E.2d 632 (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, 288 Ill.Dec. 623, 818 N.E.2d 311 (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, 336 Ill.Dec. 210, 920 N.E.2d 220 (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, 276 Ill.Dec. 987, 795 N.E.2d 340 (2003). In this case, The Village and Herzog rely on various 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, 324 Ill.Dec. 446, 896 N.E.2d 232 (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, 370 Ill.Dec. 98, 987 N.E.2d 864. 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, 350 Ill.Dec. 63, 948 N.E.2d 132 (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, 319 Ill.Dec. 199, 885 N.E.2d 470 (2008) (quoting Natural Gas Pipeline Co. of America v. Phillips Petroleum Co., 163 Ill.App.3d 136, 142, 114 Ill.Dec. 372, 516 N.E.2d 527 (1987)). With these principles in mind, we address the dismissal of counts I, II and IV of Mack's verified amended complaint.
¶ 22 Count I of Mack's verified amended complaint requested the circuit court to issue a declaratory judgment.
"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, 273 Ill.Dec. 784, 789 N.E.2d 1216 (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 failed 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, 256 Ill.Dec. 848, 752 N.E.2d 1090 (2001) (quoting In re Chicago Flood Litigation, 176 Ill.2d 179, 194, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997) (discussing ministerial acts in the context of the Tort Immunity Act)).
¶ 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, 330 Ill.Dec. 640, 909 N.E.2d 353 (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 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, 188 Ill.Dec. 780, 619 N.E.2d 144 (1993) (citing Marlow v. American Suzuki Motor Corp., 222 Ill.App.3d 722,
¶ 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.
¶ 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, 377 Ill.Dec. 489, 2 N.E.3d 405. 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, 28 Ill.Dec. 934, 391 N.E.2d 133 (1979) (citing People ex rel. Brockamp v. Schlitz Brewing Co., 261 Ill. 22, 103 N.E. 555 (1913), and Rosborough v. City of Moline, 30 Ill.App.2d 167, 174 N.E.2d 16 (1961)). The Brockcamp court, in determining water charges were not "taxes," reasoned:
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, 174 N.E.2d 16 (property owner's application for water service stated the application
¶ 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, 280 Ill.Dec. 493, 802 N.E.2d 418 (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, 280 Ill.Dec. 493, 802 N.E.2d 418 (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, 280 Ill.Dec. 493, 802 N.E.2d 418 (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, 281 Ill.Dec. 367, 803 N.E.2d 988 (2004) (quoting Fumarolo v. Chicago Board of Education, 142 Ill.2d 54, 106, 153 Ill.Dec. 177, 566 N.E.2d 1283 (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, 153 Ill.Dec. 177, 566 N.E.2d 1283.
¶ 33 In this case, Mack's verified amended complaint alleged that the Village exercised control over the supply of 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, 280 Ill.Dec. 493, 802 N.E.2d 418. 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.
¶ 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, 345 Ill.Dec. 1, 938 N.E.2d 440 (2010). Illinois law regards willful and wanton conduct as an aggravated form of negligence. Id.
¶ 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
¶ 37 Herzog relies on three provisions of the statute. Section 2-206 of the Tort Immunity Act provides:
Section 4-102 of the Tort Immunity Act provides in part:
Section 5-102 of the Tort Immunity Act provides:
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, 302 Ill.Dec. 466, 848 N.E.2d 1030 (2006) (section 4-102 contains no exception for willful and wanton misconduct); Village of Bloomingdale, 196 Ill.2d at 496, 256 Ill.Dec. 848, 752 N.E.2d 1090 (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, 256 Ill.Dec. 848, 752 N.E.2d 1090.
¶ 38 Mack argues Herzog may be liable for willful and wanton conduct pursuant to section 2202 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, 325 Ill.Dec. 584, 898 N.E.2d 631. Consequently, the Mack's claim of willful and wanton conduct fails regarding these allegations. See DeSmet, 219 Ill.2d at 515, 302 Ill.Dec. 466, 848 N.E.2d 1030; Village of Bloomingdale, 196 Ill.2d at 496, 256 Ill.Dec. 848, 752 N.E.2d 1090.
¶ 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, 316 Ill.Dec. 169, 878 N.E.2d 1193 (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, 241 Ill.Dec. 905, 720 N.E.2d 360 (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
¶ 44 Furthermore, Illinois law regards willful and wanton conduct as an aggravated form of the tort of negligence (Krywin, 238 Ill.2d at 235, 345 Ill.Dec. 1, 938 N.E.2d 440) 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 at 544, 286 Ill.Dec. 777, 814 N.E.2d 1003). "At common law, solely economic losses are generally not recoverable in tort actions." In re Chicago Flood Litigation, 176 Ill.2d at 198, 223 Ill.Dec. 532, 680 N.E.2d 265. 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, 223 Ill.Dec. 532, 680 N.E.2d 265.
¶ 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, 270 Ill.Dec. 793, 783 N.E.2d 1093 (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, 203 Ill.Dec. 577, 640 N.E.2d 4 (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
¶ 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, 35 Ill.Dec. 296, 398 N.E.2d 1246 (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 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.
¶ 51 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 52 Affirmed.
Presiding Justice PALMER concurred in the judgment and opinion.
Justice GORDON, concurred in part and dissented in part, with opinion.
¶ 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.
¶ 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, 28 Ill.Dec. 934, 391 N.E.2d 133). 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, 280 Ill.Dec. 493, 802 N.E.2d 418 (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, 280 Ill.Dec. 493, 802 N.E.2d 418 (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;
¶ 59 Second, the majority affirms the dismissal of count IV, which was brought against defendant Bert Herzog, the village manager of Dolton.
¶ 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:
¶ 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)) (the Act). 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, 384 Ill.Dec. 646, 17 N.E.3d 219 (citing Marshall v. Burger King Corp., 222 Ill.2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (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, 390 Ill.Dec. 431, 29 N.E.3d 60 (citing DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (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").
¶ 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)).
¶ 69 Section 2-104 provides in full:
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:
¶ 71 Section 5-102 provides in full:
¶ 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, 384 Ill.Dec. 249, 16 N.E.3d 345 (issues not raised in the
¶ 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 claims.
¶ 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:
¶ 79 Section 2-208 provides in full:
¶ 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, 270 Ill.Dec. 793, 783 N.E.2d 1093 (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, 270 Ill.Dec. 793, 783 N.E.2d 1093. 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, 270 Ill.Dec. 793, 783 N.E.2d 1093.
¶ 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, 270 Ill.Dec. 793, 783 N.E.2d 1093. 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, 270 Ill.Dec. 793, 783 N.E.2d 1093. 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, 270 Ill.Dec. 793, 783 N.E.2d 1093.
¶ 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, 270 Ill.Dec. 793, 783 N.E.2d 1093 (citing Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill.2d 484, 493, 256 Ill.Dec. 848, 752 N.E.2d 1090 (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, 270 Ill.Dec. 793, 783 N.E.2d 1093 (quoting Village of Bloomingdale, 196 Ill.2d at 494-95, 256 Ill.Dec. 848, 752 N.E.2d 1090 (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, 256 Ill.Dec. 848, 752 N.E.2d 1090. 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, 256 Ill.Dec. 848, 752 N.E.2d 1090. 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:
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, 366 Ill.Dec. 505, 980 N.E.2d 598 (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, 366 Ill.Dec. 505, 980 N.E.2d 598. The first meaning of "prosecute" in the dictionary is: "To pursue or persist in so as to complete." The American Heritage Dictionary, Second College Edition, 994 (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 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, 390 Ill.Dec. 431, 29 N.E.3d 60
¶ 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.
¶ 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.
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, 177 N.E.2d 867 (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.
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, 351 Ill.Dec. 467, 951 N.E.2d 1131 (Karmeier, J., specially concurring); see Cuellar v. Hout, 168 Ill.App.3d 416, 425, 118 Ill.Dec. 867, 522 N.E.2d 322 (1988); Redd v. Woodford County Swine Breeders, Inc., 54 Ill.App.3d 562, 565, 12 Ill.Dec. 529, 370 N.E.2d 152 (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.
