Mosier v. Vill. of Holiday Hills

• Decision Date: 03 May 2019
• Docket Number: No. 2-18-0681,2-18-0681
• Citation: 128 N.E.3d 1210,2019 IL App (2d) 180681,432 Ill.Dec. 46
• Parties: Gene MOSIER and Donna Mosier, Plaintiffs-Appellants, v. The VILLAGE OF HOLIDAY HILLS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 180681

128 N.E.3d 1210

432 Ill.Dec. 46

Gene MOSIER and Donna Mosier, Plaintiffs-Appellants,

v.The VILLAGE OF HOLIDAY HILLS, Defendant-Appellee.

No. 2-18-0681

Appellate Court of Illinois, Second District.

Opinion filed May 3, 2019

Thomas W. Gooch III and Sabina D. Walczyk, of The Gooch Firm, of Wauconda, for appellants.

James P. Kelly and Natalie L. Pesin, of Matuszewich & Kelly, LLP, of Crystal Lake, for appellee.

JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Gene and Donna Mosier, appeal the dismissal with prejudice of their second amended complaint against defendant, the Village of Holiday Hills (Village). We affirm.

¶ 2 I. BACKGROUND

¶ 3 In April 2008, plaintiffs obtained a permit from the Village to build a "garage, patio, driveway" on their property, which is located within the Village. Plaintiffs erected a metal pole barn in conformance with the permit. Then, on March 6, 2013, McHenry County (County) sued plaintiffs for violation of a County ordinance, alleging that plaintiffs built the structure in a regulatory flood-prone area without a stormwater management permit issued by the County. The County prayed for a fine of $ 750 per day.

¶ 4 As a result of the County's action, on May 3, 2016, plaintiffs sued the Village for breach of contract and violation of the Consumer Fraud and Deceptive Business Practices Act (Act) ( 815 ILCS 505/1 et seq. (West 2016) ). The gravamen of plaintiffs' suit was that the Village had a duty to disclose the County's permit requirement when plaintiffs applied for the building permit from the Village.

¶ 5 After the trial court involuntarily dismissed without prejudice that complaint and the first amended complaint, plaintiffs filed their two-count second amended complaint in which they alleged as follows. Count I, for breach of an oral contract, alleged that plaintiffs met with a Village building inspector, Ray DeBosz, who informed them that they could legally build a metal pole barn if they installed a "truss load." Plaintiffs agreed to DeBosz's terms, and the Village issued the permit on or about April 17, 2007.¹ At no time did DeBosz inform plaintiffs that they needed to make a separate application for a permit from the County. Plaintiffs completed construction of the pole barn only to learn that they were in violation of a County ordinance. Plaintiffs alleged that the Village had misrepresented the extent of its authority, because the necessary stormwater studies and site development work had to be approved by the County. As a result, plaintiffs spent thousands of dollars defending themselves against the County's lawsuit. Count II alleged a violation of the Act in that DeBosz misrepresented that plaintiffs needed only to include a "truss load" on the pole barn to obtain a valid permit. Plaintiffs alleged that DeBosz's statement was knowingly false and was made intentionally to induce plaintiffs to build the pole barn.

¶ 6 The Village moved to dismiss the second amended complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2016) ). As to count I, the Village argued, inter alia , that DeBosz did not have authority to bind the Village to a contract. The Village incorporated its president's affidavit averring that the Village board has the sole authority to enter into contracts and never authorized DeBosz to enter into contracts on its behalf. The Village also maintained that the application for, and issuance of, a building permit does not constitute a contract. As to count II, the Village argued that the Act was inapplicable because plaintiffs were not consumers and the Village was not engaged in trade or commerce. Further, the Village claimed that the complaint was barred by a three-year statute of limitations.

¶ 7 On July 26, 2018, the court granted with prejudice the Village's motion to dismiss. With respect to count I, the court ruled that DeBosz did not have actual authority to enter into contracts, but "arguably" had apparent authority to bind the Village. Nevertheless, the court found that there was no consideration for the alleged oral agreement, as plaintiffs merely paid a fee for the building permit. Further, the court found that plaintiffs got what they paid for, namely the permit. With respect to count II, the court found that the Village did not commit a deceptive act, as it had no obligation to disclose the County's requirements. The court also found that the Act did not apply, because there was no merchandise involved in the transaction. Plaintiffs filed a timely appeal.

¶ 8 II. ANALYSIS

¶ 9 Plaintiffs contend that the court erred in dismissing the second amended complaint. The Village brought the motion under section 2-619(a)(9) of the Code. Such a motion admits the legal sufficiency of the complaint but asserts that some "affirmative matter" defeats the claim. Norabuena v. Medtronic, Inc. , 2017 IL App (1st) 162928, ¶ 14, 416 Ill.Dec. 913, 86 N.E.3d 1198. An affirmative matter is something in the nature of a defense that completely negates the cause of action or refutes crucial conclusions of law or of material fact contained in or inferred from the complaint. Villanueva v. Toyota Motor Sales, U.S.A., Inc. , 373 Ill. App. 3d 800, 802, 311 Ill.Dec. 853, 869 N.E.2d 866 (2007). We must determine whether there is a genuine issue of material fact and whether the defendant is entitled to judgment as a matter of law. Villanueva , 373 Ill. App. 3d at 802, 311 Ill.Dec. 853, 869 N.E.2d 866. We accept all well-pleaded facts as true, and we draw all reasonable inferences in favor of the plaintiff. Villanueva , 373 Ill. App. 3d at 802-03, 311 Ill.Dec. 853, 869 N.E.2d 866. We review de novo the trial court's dismissal of a complaint under section 2-619. Norabuena , 2017 IL App (1st) 162928, ¶ 14, 416 Ill.Dec. 913, 86 N.E.3d 1198. Also, we may affirm a dismissal on any basis that is apparent from the record. Norabuena , 2017 IL App (1st) 162928, ¶ 14, 416 Ill.Dec. 913, 86 N.E.3d 1198.

¶ 10 A. Breach of Oral Contract

¶ 11 The first affirmative matter asserted by the Village was the Village president's affidavit averring that DeBosz had no authority to enter into contracts on behalf of the Village. The Village also posited lack of consideration as an affirmative matter. The Village asserted, and plaintiffs do not contest, that a Village ordinance required the issuance of a building permit for the erection, construction, or alteration of any structure. The Village argued that plaintiffs' application for the permit did not form a contract but was the fulfillment of a legal requirement.

¶ 12 The elements of a breach-of-contract action are (1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages. Village of South Elgin v. Waste Management of Illinois, Inc. , 348 Ill. App. 3d 929, 940, 284 Ill.Dec. 868, 810 N.E.2d 658 (2004). Plaintiffs argue that the Village, through DeBosz, offered to issue a permit to construct a pole barn on their property if they included a truss load. Implicit in that offer, plaintiffs argue, was the representation that "all [plaintiffs] needed to do to build" was to obtain a truss load. Plaintiffs assert that they accepted that offer and tendered consideration when they paid the application fee for the permit. Plaintiffs maintain that they performed under the contract by building a pole barn that included a truss load. They assert that the Village, through DeBosz, breached the contract by failing to inform them that they could not build the pole barn unless the County also approved the project. Plaintiffs assert that they were damaged by having to defend themselves against the County's lawsuit.

¶ 13 Plaintiffs argue that DeBosz had apparent authority to enter into the contract, because they "reasonably and detrimentally" relied upon his representations. Plaintiffs also cite the court's comment that DeBosz "arguably" had apparent authority to bind the Village. The Village argues that only "corporate authorities" can bind a municipality contractually and that a building inspector is not a corporate authority. As regards a village or incorporated town, "corporate authorities" means the president and trustees or a similar body. 65 ILCS 5/1-1-2(2)(b) (West 2016). The Village relies on City of Belleville v. Illinois Fraternal Order of Police Labor Council , 312 Ill. App. 3d 561, 247 Ill.Dec. 537, 732 N.E.2d 592 (2000). However, that case dealt with provisions of the Municipal Code generally providing that no expense shall be incurred by any officer or department of a municipality unless an appropriation has been previously made concerning that expense. City of Belleville , 312 Ill. App. 3d at 563, 247 Ill.Dec. 537, 732 N.E.2d 592. Here, DeBosz's actions did not incur any expense on behalf of the Village. The Village's reliance on McMahon v. City of Chicago , 339 Ill. App. 3d 41, 273 Ill.Dec. 447, 789 N.E.2d 347 (2003), and Patrick Engineering, Inc. v. City of Naperville , 2012 IL 113148, 364 Ill.Dec. 40, 976 N.E.2d 318, is similarly misplaced, as both of those cases involved a contract between a vendor and a municipality, which is not at issue here.

¶ 14 Plaintiffs and the Village both miss the mark debating DeBosz's authority under agency law. There is no question that he had authority to issue plaintiffs a building permit if they complied with the Village Code; however, that authority derived from the Village's police power. See Hartman v. City of Chicago , 282 Ill. 511, 513, 118 N.E. 731 (1918) (it is within the police power of a city to regulate the construction and use of buildings for the protection of the lives and safety of the citizens). Thus, the issuance of building permits is a governmental function designed to protect the public, and the charge for building permits is to offset expenses incurred by the municipality in promoting this public...