Toys 'R' Us, Inc. v. Adelman

• Decision Date: 28 June 1991
• Docket Number: No. 3-90-0532,3-90-0532
• Citation: 574 N.E.2d 1328,215 Ill.App.3d 561
• Parties: , 158 Ill.Dec. 935 TOYS "R" US, INC., a Delaware Corporation, Plaintiff-Appellant, v. Charles R. ADELMAN, in his official capacity as Will County Executive, and Will County, a body politic and corporate, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1328

574 N.E.2d 1328

215 Ill.App.3d 561, 158 Ill.Dec. 935

TOYS "R" US, INC., a Delaware Corporation, Plaintiff-Appellant, v. Charles R. ADELMAN, in his official capacity as Will County Executive, and Will County, a body politic and corporate, Defendants-Appellees.

No. 3-90-0532.

Appellate Court of Illinois,

Third District.

June 28, 1991.

Jerome A. Siegan, Gary L. Starkman, Allen H. Dropkin, Arvey, Hodes, Costello & Burman, Chicago, for Toys "R" Us, Inc.

Judith Z. Kelly, States' Attys. Appellate Prosecutor, Ottawa, Edward Burmila, Jr., Will County State's Atty., Joliet, for Charles R. Adelman and Will County.

Justice SPITZ delivered the opinion of the court:

This is an appeal by the plaintiff Toys "R" Us, Inc., from an order of the circuit court of Will County dismissing plaintiff's complaint against defendants Will County (County) and Charles R. Adelman, County executive. In this action, plaintiff sought a declaratory judgment, mandamus, and other relief. The action challenged the validity of a County resolution passed on May 10, 1990, which repealed an earlier resolution (County resolution 89-332 passed on December 11, 1989) which had declared a real estate tax abatement for plaintiff. The trial court's reason for granting defendants' section 2-619(a)(9) (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(9)) motion was that section 162 of the Revenue Act of 1939 (Revenue Act) (Ill.Rev.Stat.1989, ch. 120, par. 643) did not authorize the County to extend real estate tax abatements under the circumstances of this case and, therefore, resolution 89-332 was a nullity.

Whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendant. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372; Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 32 Ill.Dec. 319, 395 N.E.2d 549.) Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not, however, admitted. Howell v. Blecharczyck (1983), 119 Ill.App.3d 987, 75 Ill.Dec. 500, 457 N.E.2d 494.

Section 2-619 of the Code of Civil Procedure (Code) ( Ill.Rev.Stat.1989, ch. 110, par. 2-619) allows for the filing of a motion for involuntary dismissal based on defects or defenses enumerated in the statute. For example, under section 2-619(a)(4) (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(4)) defendant may seek dismissal if the claim is barred by a prior judgment, under theories of res judicata or collateral estoppel. If the ground for dismissal is not evident from the face of the pleading, the motion may be supported by affidavit.

The failure to allege special damages and the failure to state a cause of action are not such affirmative matter precluding relief under section 2-619. (Rowan v. Novotny (1987), 157 Ill.App.3d 691, 110 Ill.Dec. 80, 510 N.E.2d 1111.) In Rowan (157 Ill.App.3d at 693-94, 110 Ill.Dec. at 694-95, 510 N.E.2d at 1112-13), the majority distinguished sections 2-615 (see Ill.Rev.Stat.1989, ch. 110, par. 2-615) and 2-619 motions:

"The purpose of section 2-619 is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact. The basis of the motion must go to an entire claim or demand. (Ill.Ann.Stat., ch. 110, par. 2-615, Historical and Practice Notes (by Albert E. Jenner, Jr., Philip W. Tone and Arthur M. Martin) (Smith-Hurd 1985).) Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by a section 2-619 motion, the section is not designed for that purpose. (Leitch v. Hine (1946), 393 Ill. 211, 66 N.E.2d 90.) In other words, if the only ground of a motion is a defect that appears on the face of the pleading attacked the appropriate method of reaching that defect is by a motion under section 2-615."

See also Michel v. Gard (1989), 181 Ill.App.3d 630, 130 Ill.Dec. 164, 536 N.E.2d 1375.

In the case at bar, the motion to dismiss was made pursuant to section 2-619(a)(9) of the Code. Under that subsection, the motion asserts the claim is barred by some affirmative matter which avoids the legal effect or defeats the claim other than one of the grounds described in the previous eight subsections. (Defendants also filed a motion to dismiss pursuant to section 2-615 of the Code, but the trial court, having granted the section 2-619 motion, found it unnecessary to address the section 2-615 motion.)

Plaintiff's complaint alleged in two counts the following facts. In 1988, plaintiff began a search for a site upon which to construct a regional distribution center. Twenty-five sites in Cook, Will, Kane, and Du Page Counties in Illinois were reviewed. Six of these sites were located in Will County.

On February 3, 1988, John A. Annerino, chairman of the Will County board, sent a letter to the Joliet-Will County Center for Economic Development, which had been designated by Will County as the County's Economic Development Program Review Board. In that letter, a copy of which was passed on to representatives of plaintiff, Annerino stated, "[t]he County usually offers a three-year 100% abatement of taxes on expansion of businesses increasing jobs for Will County residents and to new companies locating in Will County." Subsequently, plaintiff was advised by the Joliet-Will County Center for Economic Development that plaintiff's project would be eligible for real estate tax abatement from Will County.

Plaintiff alleges that, in reliance on the representations of the availability of abatements, plaintiff entered into a contract to purchase 55 acres in Will County. On December 11, 1989, plaintiff filed a request with Adelman for a property tax abatement. The estimated annual abatement ranged from $23,130 to $30,840. On December 21, 1989, the Will County board adopted resolution 89-332, which authorized the Will County executive to enter into an agreement of intent to abate property taxes with plaintiff upon the execution of such agreement by plaintiff. On December 28, 1989, Adelman signed the agreement and sent the signed copy to the Will County Clerk, but at no time was the agreement forwarded to plaintiff.

Plaintiff further alleges that in reliance on the resolution and the signing of the agreement by Adelman, plaintiff (1) purchased the subject site on March 21, 1990, at a cost of $1,375,000, (2) applied for and received a building permit from the City of Joliet at a cost of $29,069, and (3) expended a sum in excess of $7,630,400 on the project. On April 20, 1990, plaintiff delivered to the office of the County executive page 7 of the agreement signed by Michael Park Miller on behalf of plaintiff on April 18, 1990. Adelman had previously signed page 7. On May 10, 1990, according to plaintiff's complaint, at a special meeting of the Will County board, a motion was adopted purporting to repeal the resolution and to deny the tax abatement to plaintiff.

In count II of plaintiff's complaint, it is further alleged that Adelman was obligated by section 9 of the County Executive Act (Ill.Rev.Stat.1987, ch. 34, par. 709, now section 2-5009 of the County Executive Law (Ill.Rev.Stat.1989, ch. 34, par. 2-5009)) to faithfully execute all orders, resolutions, and regulations of Will County. Nevertheless, Adelman has refused and continues to refuse to execute the agreement even after having received the signed page 7 of the agreement on April 20, 1990.

In count I, plaintiff sought to have the circuit court declare resolution 89-332 and the agreement as valid and binding upon the parties and to declare as a nullity the action of the county to repeal the tax abatement. Count II requests the issuance of a writ of mandamus against Adelman.

The basis for defendants' motion to dismiss pursuant to section 2-619 was that Will County was without authority to abate taxes. Section 162 of the Revenue Act provides, in pertinent part:

"Any taxing district, upon a majority vote of its governing authority, may, after the determination of the assessed valuation of its property, order the clerk of that county to abate any portion of its taxes on the property of any commercial or industrial firm locating within the taxing district during the immediately preceding calendar year from another state, territory, or country, or having been newly created within this State during the immediately preceding calendar year, or for an expanded previously existing facility. Such abatement shall not exceed a period of 10 years and the total aggregate amount of abated taxes for all taxing districts combined shall not exceed $1,000,000." (Ill.Rev.Stat.1989, ch. 120, par. 643.)

The defendants submitted in support of their motion the affidavit of Michael Makofski, an employee of the Will County Supervisor of Assessments Office, and a certified copy of the building permit issued by the City of Joliet, both of which demonstrate that the subject property did not have a previously existing Toys "R" Us facility on that property. Defendants also asked the circuit court to take judicial notice of Will County circuit court case Nos. 87-TX-0001, 87-TX-1003, and 88-TX-1017, which defendants argued demonstrate plaintiff had an existing commercial facility within the State of Illinois at a location other than the subject property.

In support of plaintiff's response to the motion to dismiss, plaintiff attached two exhibits. The first exhibit was an affidavit from plaintiff's assistant secretary, Steven Taplits, which stated plaintiff is constructing a 650,000 square foot regional distribution facility in Joliet, which facility will replace and is a relocation of an existing distribution facility in Milwaukee, Wisconsin, and it is an expansion of a...