Village of East Dundee v. Village of Carpentersville , 2016 IL App (2d) 151084 ( 2016 )

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Appellate Court Date: 2016.08.18
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Village of East Dundee v. Village of Carpentersville, 2016 IL App (2d) 151084Appellate Court THE VILLAGE OF EAST DUNDEE, Plaintiff-Appellant, v. THE
Caption VILLAGE OF CARPENTERSVILLE, WAL-MART STORES, INC.,
and WAL-MART REAL ESTATE BUSINESS TRUST,
Defendants-Appellees.
District & No. Second District
Docket No. 2-15-1084
Filed June 20, 2016
Decision Under Appeal from the Circuit Court of Kane County, No. 15-MR-428; the
Review Hon. David R. Akemann, Judge, presiding.
Judgment Vacated in part and reversed in part; cause remanded with directions.
Counsel on Richard C. Gleason, Thomas G. Gardiner, and Michelle Lagrotta, all
Appeal of Gardiner Koch Weisberg & Wrona, of Chicago, for appellant.
Steven M. Elrod, Steven B. Varick, and Hart M. Passman, all of
Holland & Knight LLP, of Chicago, for appellee Village of
Carpentersville.
John A. Simon, of Drinker, Biddle & Reath LLP, of Chicago, for
appellees Wal-Mart Stores, Inc., and Wal-Mart Real Estate Business
Trust.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 This is the Village of East Dundee’s (East Dundee) second lawsuit against the Village of
Carpentersville (Carpentersville) and Wal-Mart Stores, Inc. (Wal-Mart), 1 arising from
Wal-Mart’s decision to close its retail store in East Dundee and open a Wal-Mart Supercenter
less than 10 miles away, in Carpentersville. See Village of East Dundee v. Village of
Carpentersville, 2014 IL App (2d) 131006-U, ¶ 2 (East Dundee I). In East Dundee I, East
Dundee sought a declaratory judgment that Carpentersville was required to make certain
findings pursuant to section 11-74.4-3(q)(13) of the Tax Increment Allocation Redevelopment
Act (Act) (65 ILCS 5/11-74.4-3(q)(13) (West 2014)),2 based on documentation submitted by
Wal-Mart, before it could fund any redevelopment project directly related to Wal-Mart’s
planned relocation. East Dundee I, 2014 IL App (2d) 131006-U, ¶ 2. East Dundee also sought
a writ of prohibition, a writ of mandamus, and an injunction. East Dundee I, 2014 IL App (2d)
131006-U, ¶ 2. The first suit was involuntarily dismissed for lack of ripeness. East Dundee I,
2014 IL App (2d) 131006-U, ¶ 2. We affirmed. East Dundee I, 2014 IL App (2d) 131006-U,
¶ 31. Because Carpentersville had not yet made any findings pursuant to section
11-74.4-3(q)(13), there was no way to predict whether defendants would violate that section.
East Dundee I, 2014 IL App (2d) 131006-U, ¶ 31.
¶2 On April 6, 2015, East Dundee filed the instant lawsuit,3 also arising from Wal-Mart’s
planned relocation. East Dundee alleged that the controversy was ripe, because Carpentersville
had made the necessary findings but failed to require evidence from Wal-Mart that its closure
of the East Dundee store was due to circumstances beyond its control. The trial court granted
defendants’ motions for involuntary dismissal on the ground that East Dundee lacked standing.
East Dundee appeals that order, as well as the orders denying its motions for substitution of
judge as of right and for leave to file an amended complaint. We reverse and remand for further
proceedings.
¶3 I. BACKGROUND
¶4 The purpose of the Act is to eradicate municipal blight by redeveloping blighted areas.
People ex rel. City of Canton v. Crouch, 79 Ill. 2d 356, 360 (1980). The Act authorizes the
passage of an ordinance designating a redevelopment project area and approving a
redevelopment plan. Crouch, 79 Ill. 2d at 360. Once such an ordinance is adopted, a
municipality is granted numerous powers to carry the plan into effect, including incurring
1
East Dundee added Wal-Mart Real Estate Business Trust to the second lawsuit. We refer to the
Wal-Mart defendants collectively as “Wal-Mart.”
2
Section 11-74.4-3(q)(13) requires the municipality’s “reasonable finding” that the store’s closing
is beyond the control of the retailer, in that the store’s location contained inadequate space, had
become economically obsolete, or was no longer a viable location for the retailer. 65 ILCS
5/11-74.4-3(q)(13) (West 2014).
3
East Dundee initially sued the Wal-Mart entities as respondents in discovery. Wal-Mart was
converted to a named defendant on its own motion.
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redevelopment costs. Crouch, 79 Ill. 2d at 360. Relevant here, section 11-74.4-3(q)(13)
provides that redevelopment costs may not include costs that would provide “direct financial
support” to a retail entity that is commencing operations in the redevelopment project area
while simultaneously terminating operations at another location within 10 miles of the
redevelopment project area but outside the boundaries of the municipality. 65 ILCS
5/11-74.4-3(q)(13) (West 2014). An exception to the 10-mile prohibition exists if closing the
operation is for reasons beyond the retailer’s control, as documented by the retailer. For the
exception to apply, the municipality must make a reasonable finding that the current location
contained inadequate space, had become economically obsolete, or was no longer a viable
location for the retailer. 65 ILCS 5/11-74.4-3(q)(13) (West 2014).
¶5 East Dundee’s April 6, 2015, complaint for declaratory and injunctive relief alleged as
follows. East Dundee and Carpentersville share a border. Wal-Mart has operated a retail store
in East Dundee within 1.8 miles of the proposed Carpentersville location. Wal-Mart had
determined that the East Dundee store was not inadequate or economically obsolete, and East
Dundee was willing to assist Wal-Mart in expanding the East Dundee store. On May 1, 2012,
Carpentersville approved a “Route 25 Redevelopment Plan” in accordance with the Act. The
Carpentersville redevelopment project area is blighted. In August 2012, Wal-Mart informed
East Dundee that it was closing the East Dundee store in order to relocate to the Carpentersville
redevelopment project area. Wal-Mart never documented that closing the East Dundee store
was for reasons beyond its control. Wal-Mart applied to Carpentersville for a $4.3 million
reimbursement related to acquiring land and constructing the new store, indicating that it
would not build the Carpentersville store unless it received the reimbursement. Carpentersville
unreasonably approved Wal-Mart’s application.
¶6 East Dundee asserted that it was entitled to declaratory and injunctive relief, because the
closure of the East Dundee Wal-Mart store would cause “significant economic and social
damages” to East Dundee. Specifically, East Dundee alleged that it would lose sales tax
revenues and property tax receipts.
¶7 The matter was assigned to the same judge who presided in East Dundee I. On April 28,
2015, East Dundee filed a motion for substitution of judge as of right pursuant to section
2-1001(a)(2)(ii) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2)(ii) (West
2014)). The motion alleged that the trial court had not ruled on any substantive issue in the
case. On May 1, 2015, Carpentersville4 filed its opposition to the motion, arguing that the
instant complaint was a refiling of the previous lawsuit. Carpentersville relied on the trial
court’s order that involuntarily dismissed the previous suit, which stated that “the [a]mended
[c]omplaint [was] dismissed subject to being refiled in the event” that the matter became ripe.
Carpentersville contended that the court in the previous suit made substantive rulings when it
denied East Dundee’s request for a temporary restraining order and dismissed the suit. On June
17, 2015, the court denied East Dundee’s motion for substitution of judge.
¶8 On April 29, 2015, Wal-Mart, now a party defendant, filed a motion to dismiss the
complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)).
Wal-Mart asserted that the complaint should be dismissed pursuant to section 2-615 of the
Code (735 ILCS 5/2-615 (West 2014)), because the Act does not give East Dundee a private
right of action. Wal-Mart also asserted that the complaint should be dismissed pursuant to
4
Wal-Mart had not yet been converted to a defendant.
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section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2014)), because East Dundee
lacked standing to sue to invalidate Carpentersville’s approval of Wal-Mart’s reimbursement
application. Carpentersville joined in the section 2-619(a)(9) motion. On September 29, 2015,
the court entered a written order finding that East Dundee lacked standing. The court did not
reach the private-right-of-action issue. East Dundee filed a timely appeal.
¶9 II. ANALYSIS
¶ 10 East Dundee first contends that the court erred in denying its motion for substitution of
judge as a matter of right. Section 2-1001(a)(2)(ii) of the Code provides that a party is entitled
to one substitution of judge without cause, as a matter of right, where it is presented before trial
or hearing begins and before the judge to whom it is presented has ruled on any substantial
issue in the case. 735 ILCS 5/2-1001(a)(2)(ii) (West 2014). The right to a substitution of judge
under this section is absolute. Chicago Transparent Products, Inc. v. American National Bank
& Trust Co. of Chicago, 337 Ill. App. 3d 931, 942-43 (2002). The provisions of the statute are
to be liberally construed, and where a party meets the statutory requirements, the trial court has
no discretion to deny the request, unless it is shown that the motion was made to delay or avoid
trial. Sahoury v. Moses, 308 Ill. App. 3d 413, 414 (1999). Because the trial court has no
discretion to deny a proper motion for substitution of judge as of right, the appellate court
reviews such a ruling de novo. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350
(1999). Further, our review should lean toward favoring, rather than defeating, a request for
substitution of judge. Rodisch, 309 Ill. App. 3d at 350.
¶ 11 East Dundee argues that the motion for substitution was timely and that it was brought
before the court made any substantial ruling in the case. Indeed, defendants5 do not object that
the motion was untimely. However, they assert that the court made substantial rulings in the
previous case. Defendants view the 2015 complaint as a continuation of the previous litigation
for purposes of the substitution-of-judge statute. They rely on the court’s August 30, 2013,
order that “[t]he amended complaint [was] dismissed subject to being refiled.” Defendants
argue that, because the previous complaint and the 2015 complaint concerned the same cause
of action, the 2015 pleading was a refiling, giving the court discretion to deny the motion for
substitution of judge.
¶ 12 The issue is whether Bowman v. Ottney, 2015 IL 119000, upon which defendants rely, is
dispositive. In Bowman, our supreme court construed section 2-1001(a)(2)(ii) of the Code and
its effect in relation to the voluntary dismissal and refiling provisions of the Code. Bowman,
2015 IL 119000, ¶ 8. In Bowman, the plaintiff voluntarily dismissed her complaint pursuant to
section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2014)) after the court made
substantial rulings in her medical malpractice case, but before trial. Bowman, 2015 IL 119000,
¶ 3. Four months later, the plaintiff refiled the complaint, asserting the identical claim, in
accordance with section 13-217 of the Code (735 ILCS 5/13-217 (West 2014) (allowing the
refiling of a voluntarily dismissed complaint within one year)). The second complaint was
docketed under a new number but was assigned to the same judge who presided over the first
proceeding. Bowman, 2015 IL 119000, ¶ 3. The plaintiff immediately filed a motion for
substitution of judge as of right, and the defendant objected on the ground that it was untimely
because the judge had made substantial rulings on the prior complaint. Bowman, 2015 IL
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Wal-Mart adopted Carpentersville’s arguments on appeal.
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119000, ¶ 3. The trial court denied the motion for substitution of judge but certified the
question of whether a trial judge has discretion to deny a motion for substitution of judge as of
right where the case was previously dismissed pursuant to section 2-1009 of the Code and then
was refiled. Bowman, 2015 IL 119000, ¶ 4. The appellate court answered that question in the
affirmative. Bowman, 2015 IL 119000, ¶ 5 (citing Bowman v. Ottney, 2015 IL App (5th)
140215).
¶ 13 In Bowman, our supreme court emphasized that it was considering only the narrow
question that was certified to the appellate court, namely, the effect of section 2-1001(a)(2)(ii)
in relation to the voluntary dismissal and refiling provisions of the Code. Bowman, 2015 IL
119000, ¶ 8. The court held that the voluntary dismissal and refiling of a cause of action does
not “reset the clock” with respect to the substitution of a judge who previously made
substantive rulings in the prior proceeding. Bowman, 2015 IL 119000, ¶ 21. The court pointed
out that the plaintiff had an absolute right to a substitution of judge in the first proceeding but
failed to use it before the judge made a substantive ruling. Bowman, 2015 IL 119000, ¶ 25. The
court stated that the plaintiff could not use the voluntary dismissal and refiling provisions to
accomplish in the second suit what she was precluded from doing in the earlier suit. Bowman,
2015 IL 119000, ¶ 25.
¶ 14 Our supreme court had not decided Bowman when Carpentersville argued the issue to the
court below. However, Carpentersville relied, inter alia, on the appellate court’s decision in
Bowman. In this appeal, defendants note that our supreme court affirmed the appellate court in
Bowman, and they argue that this case is indistinguishable because East Dundee’s 2015
complaint embodied the same cause of action as its earlier complaint.
¶ 15 Bowman is inapplicable to the facts in the present case. As noted above, our supreme court
decided a narrow issue involving the relationship between section 2-1001(a)(2)(ii) and the
sections of the Code governing voluntary dismissals and refiling. The holding in Bowman is
necessarily confined to its facts, because the scope of review was limited to the question
certified by the trial court. See Hudkins v. Egan, 364 Ill. App. 3d 587, 590 (2006) (the scope of
review in an interlocutory appeal under Rule 308 is ordinarily limited to the question certified
by the trial court).
¶ 16 Furthermore, in Bowman, the court’s decision hinged on the fact that the plaintiff had
control over the procedural posture of the case. “[The plaintiff] cannot use the voluntary
dismissal and refiling provisions to accomplish in the 2013 suit what she was precluded from
doing in the 2009 suit.” Bowman, 2015 IL 119000, ¶ 25. The supreme court all but accused the
plaintiff of gamesmanship, where she voluntarily dismissed her complaint after four years of
rulings by the trial court only to refile the same complaint four months later. The court
observed: “This is precisely the type of procedural maneuvering that section 2-1001 is
designed to prevent.” Bowman, 2015 IL 119000, ¶ 25.
¶ 17 In contrast, East Dundee’s previous complaint was involuntarily dismissed. East Dundee
could not, and did not, use the refiling provisions of the Code. Section 13-217 gives a plaintiff
who has taken a voluntary dismissal the right to refile the cause of action within one year.
Fiorito v. Bellocchio, 2013 IL App (1st) 121505, ¶ 10. Section 13-217 revives a plaintiff’s
previously filed complaint, where no adjudication on the merits has been obtained. Fiorito,
2013 IL App (1st) 121505, ¶ 10. Here, East Dundee’s previous complaint was dismissed as a
result of a substantive legal deficiency. East Dundee I, 2014 IL App (2d) 131006-U, ¶ 24. The
dismissal of a complaint for failure to state a cause of action is an adjudication on the merits.
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Doe v. Gleicher, 393 Ill. App. 3d 31, 36 (2009). Accordingly, East Dundee was entitled to a
substitution of judge as of right.
¶ 18 East Dundee cites the heretofore well-established rule that an order is void if it is entered
after a motion for substitution of judge is improperly denied. See Aussieker v. City of
Bloomington, 355 Ill. App. 3d 498, 500-01 (2005). However, the voidness of such orders is
called into question by LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 27, where our
supreme court stated that a judgment is void only if the court lacks jurisdiction. Where the
court possesses jurisdiction, the failure to comply with a statutory requirement or prerequisite
does not result in a void order. LVNV Funding, LLC, 2015 IL 116129, ¶ 37. Nevertheless, such
an order is unauthorized and must be vacated.
¶ 19 Defendants posit that we can affirm the dismissal of the complaint under Illinois Supreme
Court Rule 366(a)(5) (eff. Feb. 1, 1994), which gives the appellate court authority to “enter any
judgment and make any order that ought to have been given or made.” Defendants do not
elaborate on how Rule 366(a)(5) enables us to affirm an order that was entered without
authority, and we find no such power in the rule. Accordingly, we vacate the order dismissing
the complaint, reverse the order denying East Dundee’s motion for substitution of judge as of
right, and remand this matter with directions to grant the motion for substitution of judge.
¶ 20 Vacated in part and reversed in part; cause remanded with directions.
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