Jordan v. Civil Service Com'n

• Decision Date: 06 May 1993
• Docket Number: No. 1-90-1995,1-90-1995
• Citation: 186 Ill.Dec. 903,617 N.E.2d 142,246 Ill.App.3d 1047
• Parties: , 186 Ill.Dec. 903 Thomas JORDAN, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 142

617 N.E.2d 142

246 Ill.App.3d 1047, 186 Ill.Dec. 903

Thomas JORDAN, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION, Defendant-Appellee.

No. 1-90-1995.

Appellate Court of Illinois,

First District, Fourth Division.

May 6, 1993.

Thomas Jordan, pro se.

Kelly R. Welsh, Corp. Counsel of the City of Chicago (Lawrence Rosenthal, Deputy Corp. Counsel, Benna Ruth Solomon, Chief Asst. Corp. Counsel, and Lynn K. Mitchell, Asst. Corp. Counsel, of counsel), for defendant-appellee.

Justice JOHNSON delivered the opinion of the court:

Plaintiff, Thomas Jordan, sought to recover damages from defendant, the Civil Service Commission, an agency of the City of Chicago (hereinafter the City), for breach of an alleged contract providing compensatory time off for "overtime" and the accrual of sick days and vacation days to be maintained for his benefit. Plaintiff further sought back pay for a wrongful discharge from 1967 to 1972.

Plaintiff filed an action in the United States District Court for the Northern District of Illinois. In 1983, the Federal judge granted summary judgment in favor of the City, finding that plaintiff had no claim under Federal law. The original 11-count complaint in this cause was filed in 1984. Count VIII was dismissed with prejudice. In 1989, plaintiff filed a third amended complaint having three counts. Count I alleged a cause of action for "detrimental reliance." Illinois law provides no cause of action under a theory of detrimental reliance. However, the record indicates that defendant was able to treat counts I and III of plaintiff's third amended complaint as if they were brought under a theory of implied or quasi contract. Count II alleged a breach of contract. Count III has been waived on appeal. The trial court granted defendant's 2-615 motion to strike and dismiss the third amended complaint. (Ill.Rev.Stat.1989, ch. 110, par. 2-615.) Plaintiff elected not to file a fourth amended complaint. The cause of action was then dismissed by the trial court with prejudice. This appeal followed.

On appeal, plaintiff contends that the trial court erred in finding that (1) his third amended complaint alleges insufficient facts to state a cause of action; (2) his third amended complaint should have been dismissed; and (3) count VIII of his original complaint should have been dismissed.

We affirm.

Plaintiff was hired by the City in 1951 as a license investigator. He was wrongfully discharged in 1967 but in 1972 was reinstated pursuant to a court order. In a 1975 ordinance, the City created the Department of Personnel and ceased to follow the Civil Service Act of Illinois. (Ill.Rev.Stat.1973, ch. 24, sec. 10-1-1 et seq.) Plaintiff contends that he was denied certain job duties and promotions to which he had previously been entitled under the Civil Service System. From 1975 to 1979, plaintiff did some work in excess of his required hours. Plaintiff alleges that the City promised him compensatory time for each hour worked beyond his required 40 hours per week. Plaintiff further alleges that the City's response to his request was to deny him both the compensatory time and any alternative compensation.

In plaintiff's request for relief, he argues that the trial court was wrong in refusing to allow him to maintain his action of counts I and II of his third amended complaint, counts I and II of his second amended complaint, and count VIII of his original complaint. However, this court adheres to the principle that once a plaintiff files an amended complaint, he has waived any objection to the trial court's ruling on any former complaints. Barbour v. South Chicago Community Hospital (1987), 156 Ill.App.3d 324, 327, 108 Ill.Dec. 862, 509 N.E.2d 558, citing Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill.2d 150, 153, 70 Ill.Dec. 251, 449 N.E.2d 125.

Thus, the first issue on appeal is plaintiff's contention that his third amended complaint alleges sufficient facts to state a cause of action. It was dismissed with prejudice by the trial court and is, therefore, a final and appealable order. (McMann v. Pucinski (1991), 218 Ill.App.3d 101, 106, 161 Ill.Dec. 22, 578 N.E.2d 149.) In reviewing a motion to dismiss, this court "must determine whether the allegations of the complaint when interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief may be granted." Brooks v. Village of Wilmette (1979), 72 Ill.App.3d 753, 756, 28 Ill.Dec. 934, 391 N.E.2d 133.

Plaintiff has two counts in his third amended complaint. Count III of plaintiff's third amended complaint was not at all addressed in plaintiff's opening brief. Illinois law states that all arguments not raised in an opening appellate brief are waived. (See 134 Ill.2d R. 341(e)(7).) Thus, count III will not be considered by this court of review.

Plaintiff makes several allegations in count I. First, he alleges that the City agreed to compensate him for his "overtime" hours. Further, paragraphs 7 and 10 of count I allege the following:

"7. Jordan also was allowed to accumulate a certain number of sick days and vacations, from year to year, and was advised by Chicago [the City of Chicago], through its agents and employees, that Jordan was being credited with such accumulation of vacation days, sick days and overtime hours.

* * * * * *

10. Jordan had only worked the overtime and only allowed the vacation and sick days to accumulate because the defendant Chicago promised and agreed to compensate Jordan with compensatory time off."

Plaintiff alleges that the fair monetary value of his damages in not being compensated for the aforementioned hours, days and time is approximately $150,000.

Count II is alleged in the alternative. It reiterates count I and alleges that the City's refusal to provide plaintiff compensation for "overtime" hours, vacation days and sick days amounted to a breach of contract. Thus, plaintiff requests monetary compensation for all damages incurred as a result of the City's breach.

In count I, plaintiff is attempting to apply the doctrine of equitable estoppel against the City. This panel has stated the following:

"In order to invoke equitable estoppel against a municipality, plaintiffs must prove two elements: '(1) an affirmative act on the part of the municipality; and (2) the inducement of substantial reliance by the affirmative act.' " Central Transport, Inc. v. Village of Hillside (1991), 210 Ill.App.3d 499, 515, 154 Ill.Dec. 910, 568 N.E.2d 1359, quoting Bank of Pawnee v. Joslin (1988), 166 Ill.App.3d 927, 938, 118 Ill.Dec. 484, 521 N.E.2d 1177.

First, plaintiff is unable to prove an affirmative act on the part of the municipality. In his claim, plaintiff does not specify the name or title of the party with whom he entered into this alleged contract. Plaintiff alleges only that he was "advised by Chicago [the City of Chicago], through its agents and employees," that he would be compensated for his overtime hours and for his accumulation of vacation and sick days. The Illinois Municipal Code requires that agents and employees of a municipal corporation may not enter into any contract on behalf of the municipality without prior appropriation (Ill.Rev.Stat.1977, ch. 24, sec. 8-1-7), and approval by a majority vote of the City Council (Ill.Rev.Stat.1977, ch. 24, sec. 3-11-17). Thus, any alleged representations made by the City's "agents and employees" cannot be invoked against the City.

Second, we do not find that plaintiff has shown substantial reliance. This panel has followed the Illinois Supreme Court in determining that "[t]hose who deal with governmental bodies take the risk of 'having accurately ascertained that he who purports to act for [the body] stays within the bounds of his authority.' " City of Chicago v. Unit One Corp. (1991), 218 Ill.App.3d 242, 246, 161 Ill.Dec. 67, 578 N.E.2d 194, quoting Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill.2d 157, 160-61, 171 N.E.2d 605.

Here, plaintiff's argument is based upon his own decision to rely on the promises of some municipal employees whom plaintiff chooses not to identify. This reliance was unfortunate but the City cannot be legally held at fault. Thus, we agree that plaintiff's third amended complaint alleges insufficient facts to state a cause of action.

The next issue on appeal is whether plaintiff's third amended complaint is insufficient as a matter of law with respect to the validity of the alleged contract. This issue addresses the alternative allegation under count II. Count II alleges a breach of an "unwritten agreement" between plaintiff and the City of Chicago, and requests compensation for all damages incurred as a result of the City's breach.

Plaintiff specifically alleges that under this agreement, he was to receive "compensatory time" apart from his 40-hour work week at a rate of 1 1/2 hours worked in excess of the required 40 hours. This purported agreement also credited plaintiff for any accumulation of vacation days, sick days and overtime hours. Statutory law requires that any contract with the City, made for monetary compensation, is subject to the Illinois Municipal Code. The relevant part provides:

"No contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof." Ill.Rev.Stat.1977, ch. 24, sec. 8-1-7.

Here, the record does not indicate that any appropriation had been made concerning this "unwritten agreement" with the City....