Smith v. Intergovernmental Solid Waste Disposal Ass'n

• Decision Date: 23 December 1992
• Docket Number: Nos. 4-92-0164,4-92-0202,s. 4-92-0164
• Citation: 239 Ill.App.3d 123,605 N.E.2d 654,178 Ill.Dec. 860
• Court: United States Appellate Court of Illinois
• Parties: , 178 Ill.Dec. 860 Stephen A. SMITH, d/b/a ABC Sanitary Hauling, et al., Plaintiffs-Appellees, v. INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION, a municipal joint action agency, Defendant (XL Disposal Corporation, an Illinois Corporation, Defendant-Appellant). Stephen A. SMITH, d/b/a ABC Sanitary Hauling, et al., Plaintiffs-Appellees, v. INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION, et al., Defendants-Appellees.

Page 654

605 N.E.2d 654

239 Ill.App.3d 123, 178 Ill.Dec. 860

Stephen A. SMITH, d/b/a ABC Sanitary Hauling, et al., Plaintiffs-Appellees, v. INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION, a

municipal joint action agency, Defendant (XL

Disposal Corporation, an Illinois

Corporation, Defendant-Appellant).

Stephen A. SMITH, d/b/a ABC Sanitary Hauling, et al., Plaintiffs-Appellees, v. INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION, et al.,

Defendants-Appellees.

Nos. 4-92-0164, 4-92-0202.

Appellate Court of Illinois Fourth District.

Dec. 23, 1992.

W. Robert Blair, Chicago, plaintiffs-appellees.

Glenn A. Stanko, Reno, O'Byrne & Kepley, P.C., Champaign, for defendant-appellant.

Justice McCULLOUGH delivered the opinion of the court:

On September 3, 1991, a number of garbage haulers in Champaign County, Stephen A. Smith, d/b/a ABC Sanitary Hauling; John Appl, d/b/a Appl Sanitary Service; Lawrence W. Boller II, d/b/a Area Garbage Service; Charles H. Miller, d/b/a C.H. Miller Sanitary; Chris Johnson, d/b/a Chris's Service Company; Eddie L. Cook, Sr., d/b/a Cook's Sanitary Hauling; Don Cory, d/b/a Cory Sanitary Hauling; Ronald E. Hayden, d/b/a Hayden Sanitary Service; Gordon Ficklin, d/b/a Illini Sanitary Service; Chris Yager, d/b/a Klean-Way Disposal; George McLaughlin, d/b/a McLaughlin Sanitary; Cheryl Manuel, d/b/a Rollaway Waste; Ronald W. Manuel, d/b/a Ron Manuel Sanitary; Russell Shaffer, d/b/a Shaffer Sanitary Company; William C. Uden, d/b/a Uden & Sons Sanitary Hauling; and Willis Sanitary Hauling, Inc., filed a complaint for declaratory and injunctive relief against defendants, Intergovernmental Solid Waste Disposal Association (ISWDA), and XL Disposal Corporation (XL), in the circuit court of Champaign County concerning a contract to design, construct, and operate a material recovery and transfer facility (MRF) between defendants. Plaintiffs alleged the contract was entered into without competitive bidding in violation of section 5-1022 of the Counties Code (Ill.Rev.Stat.1989, ch. 34, par. 5-1022). As relief, plaintiffs sought a declaration that the contract violated the statute, and is therefore void, and an injunction against performance of the contract by defendants. After defendants filed their answers to plaintiffs' complaint, plaintiffs filed a motion for judgment on the pleadings. Defendants thereafter filed an affirmative defense of laches; a motion for summary judgment alleging laches, compliance with the statute, and inapplicability of the competitive bidding requirements to the present contract; and a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-615).

After considering the documents filed and arguments of counsel, on January 28, 1992, the trial judge issued a memorandum of decision and order. Finding that laches did not bar plaintiffs' suit, the affirmative defense of laches was "stricken." While agreeing that there was no genuine issue of material fact as defendants' motion for summary judgment maintained, the trial judge decided a ruling in defendants' favor could not be maintained as a matter of law, denied defendants' motions for summary judgment and dismissal, and granted plaintiffs' motion for judgment on the pleadings.

On February 5, 1992, defendants filed a motion for clarification which was considered and ruled upon on February 10, 1992. Defendants filed a notice of appeal on February 25, 1992, docketed case No. 4-92-0164.

On February 20, 1992, plaintiffs had filed a petition for rule to show cause against defendants alleging a violation of the trial court's January 25, 1992, order by pursuing an application for site approval and refusing to withdraw the application for site approval. Plaintiffs sought an order finding defendants in contempt of court, imposing sanctions, directing defendants to withdraw the application for site approval, and enjoining defendants from seeking a developmental permit. On February 26, 1992, defendants filed a motion to strike the petition for rule to show cause, and on March 3, 1992, after hearing arguments of counsel, the motion to strike the rule to show cause was granted. On March 6, 1992, plaintiffs filed a notice of appeal from the order striking the petition for rule to show cause, docketed case No. 4-92-0202. A motion to consolidate these appeals was allowed by this court on March 20, 1992. On June 24, 1992, ISWDA's motion to be dismissed as an appellant in No. 4-92-0164 was granted.

The issues to be considered on review are: (1) whether the appeal in case No. 4-92-0164 is moot; (2) whether the trial court properly determined that the affirmative defense of laches did not apply to this case; (3) whether the defendants complied with the applicable competitive-bidding requirements; (4) whether ISWDA Ordinance 91-3 (Intergovernmental Solid Waste Disposal Association Ordinance No. 91-3, Nov. 13, 1991) exempted the subject facility from the competitive-bidding requirements of section 5-1022 of the Counties Code; and (5) whether the trial court erred in striking plaintiffs' petition for rule to show cause why defendants should not be held in contempt of court for violation of a court order. We affirm.

Before analyzing the issues raised on review, we must first consider a motion by plaintiffs to strike a portion of XL's reply brief in case No. 4-92-0164 and XL's objections thereto. Plaintiffs argue the objectionable portion of the reply brief raised for the first time the contention that the subject contract falls within the professional services exception of the competitive-bid statute, relying on this court's decision in Charlton v. Champaign Park District (1982), 110 Ill.App.3d 554, 66 Ill.Dec. 354, 442 N.E.2d 915, and two out-of-State cases.

In Darnall v. City of Monticello (1988), 168 Ill.App.3d 552, 553, 119 Ill.Dec. 175, 176, 522 N.E.2d 837, 838, this court stated:

"The theory upon which a case is tried in the lower court cannot be changed on review and an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill.2d 299, 303 , 443 N.E.2d 575, 577; Tomaso v. Plum Grove Bank (1985), 130 Ill.App.3d 18, 25 , 473 N.E.2d 588, 594.)"

Furthermore, points not presented in appellant's initial brief may not be raised in the reply brief. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill.2d 555, 568, 120 Ill.Dec. 508, 514, 524 N.E.2d 538, 544; 134 Ill.2d R. 341(e)(7).) Relying on Hux v. Raben (1967), 38 Ill.2d 223, 224-25, 230 N.E.2d 831, 832, XL argues that as a matter of discretion, this court may consider the contention relating to the professional services exception. Although the motion to strike is denied as overbroad because it requests the striking of pages 6 through 12 of XL's reply brief entirely, this court declines to consider XL's belatedly raised contention concerning the professional services exception to the subject competitive-bidding statute, having deemed that contention waived for purposes of review.

The ISWDA is a municipal joint action agency created on July 22, 1984, by the cities of Champaign and Urbana and the County of Champaign under section 3.2 of the Intergovernmental Cooperation Act (Act) to deal with solid waste issues transgressing municipal boundaries within Champaign County. (Ill.Rev.Stat.1989, ch. 127, par. 743.2.) The Act requires all expenditures made by ISWDA be in accordance with the law applicable to the ISWDA member with the largest population. (Ill.Rev.Stat.1989, ch. 127, par. 743.5.) Champaign County is the entity with the largest population of the three entities which signed the agreement. Thus, section 5-1022 of the Counties Code is the applicable law and regulates large purchases of the type at issue here. Section 5-1022 states as follows:

"Any purchase by a county with fewer than 2,000,000 inhabitants of services, materials, equipment or supplies in excess of $10,000, other than professional services, shall be contracted for in one of the following ways:

(1) by a contract let to the lowest responsible bidder after advertising for bids in a newspaper published within the county or, if no newspaper is published within the county, then a newspaper having general circulation within the county; or

(2) by a contract let without advertising for bids in the case of an emergency if authorized by the county board.

In determining the lowest responsible bidder, the county board shall take into consideration the qualities of the articles supplied, their conformity with the specifications, their suitability to the requirements of the county and the delivery terms.

This Section does not apply to contracts by a county with the federal government or to purchases of used equipment, purchases at auction or similar transactions which by their very nature are not suitable to competitive bids, pursuant to an ordinance adopted by the county board." (Emphasis added.) Ill.Rev.Stat.1989, ch. 34, par. 5-1022.

The ISWDA wished to contract with a party to design, construct, and operate an MRF. It began the process by issuing on July 21, 1989, a "Request for Qualifications" (RFQ). A notice of the RFQ, published in the Champaign-Urbana News-Gazette on July 26, 30, and August 6, 1989, stated the ISWDA was using the RFQ to compile a list of qualified vendors which would then submit "proposals" for the development of the MRF. The notice stated, "The ISWDA is intending to use a full-service procurement process. The proposed facility is to be publicly financed and owned while contracting with a vendor for the design/development of the facility with a separate contract for operation and landfill disposal." The notice described the proposed facility as receiving 100,000 tons of mixed solid waste per year and 10,000 tons per year of source-separated material. The notice further stated that "it is the intent of the ISWDA to use this...