Unterschuetz v. City of Chicago

• Decision Date: 22 January 2004
• Docket Number: No. 1-02-2871.,1-02-2871.
• Citation: 281 Ill.Dec. 367,346 Ill. App.3d 65,803 N.E.2d 988
• Parties: William UNTERSCHUETZ, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

803 N.E.2d 988

346 Ill. App.3d 65

281 Ill.Dec. 367

William UNTERSCHUETZ, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee.

No. 1-02-2871.

Appellate Court of Illinois, First District, Fourth Division.

January 22, 2004.

Irwin Rozner, Des Plaines, for Plaintiff-Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon, David Graver, of counsel), for Defendant-Appellee.

Justice GREIMAN delivered the opinion of the court:

Plaintiff William Unterschuetz was discharged from his position at the City of Chicago department of water (Department) for failing to maintain his residence within the City of Chicago, as required by a Chicago ordinance. He appealed to the personnel board (Board) of the City of Chicago which, after an evidentiary hearing, ordered him restored to his position with full back pay and benefits. Thereafter, he sued the City of Chicago (City), claiming that five sections of the City ordinance pertaining to the department of personnel constituted a breach of contract, and that the City breached that contract. That breach, plaintiff averred, entitled him to be reimbursed for attorneys fees and any diminutions of his pension fund that occurred while he was appealing his discharge.

The trial court dismissed plaintiff's claims for failing to state a claim for breach of contract and additionally held that if plaintiff's assertions were construed to sound in tort, the City would be immune pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-109 (West 2000)). On appeal, plaintiff does not contest the City's immunity in tort, but appeals the dismissal of his breach of contract claim. Accordingly, the only question raised is whether the plaintiff has alleged all the elements necessary for a breach of contract claim. We affirm.

During 1998 and 1999, the City's inspector general's office ran an investigation to determine whether the plaintiff resided in Chicago as required by the City's personnel rules. As a result of that investigation, on March 15, 2000, the plaintiff was placed on administrative leave. The next day, he was informed of charges against him and was given notice of a predisciplinary meeting at which a union representative would be present. On May 4, 2000, the plaintiff was discharged primarily for failing to reside within the City limits as required by ordinance. Plaintiff then appealed the decision to discharge with the City's personnel board, and the Board restored the plaintiff to his position with the department of water with full back pay and benefits.

Over a year later, plaintiff brought suit against the City, its department of water, and the Department's commissioner for violating the City's ordinances and rules by discharging him without justification and for violating his rights to due process. The City removed the case to federal court, after which the plaintiff voluntarily dismissed his due process claim. The federal district court ruled that it was without jurisdiction to determine the remaining state law claims.

Plaintiff then filed an amended complaint in state court, alleging only a single count for "breach of contract" and naming the "City of Chicago, Department of Water" as the only defendant. In response, the City filed a motion to dismiss the amended complaint arguing, inter alia, that the Department was not an entity that could be sued and that the plaintiff had failed to identify and attach the contract provisions that he claimed the City had violated. The trial court granted the City's motion to dismiss, but granted the plaintiff leave to file a second amended complaint.

Plaintiffs second amended complaint named the City as the only defendant and identified five sections of the City ordinance concerning the responsibilities, authority, and policy of the personnel department as the sources of the contractual obligations allegedly violated by the City. The City filed a motion to dismiss the second amended complaint arguing, inter alia that the City ordinances plaintiff cited do not create a contract, and that if the complaint were construed to sound in tort, the City would be immune under sections 2-109 and 2-201 of the Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2000)).

After briefing the matter, the trial court granted the City's motion and dismissed the case with prejudice for failure to state a cause of action for breach of contract and because "the City is immune pursuant to sections 2-201 and 2-209" of the Tort Immunity Act.¹ On appeal, plaintiff challenges only the rejection of his contract claim and does not challenge the trial court's dismissal of any tort claims attendant to the facts he has pled.

Plaintiff's only argument on appeal is that the trial court erred in dismissing his second amended complaint for failure to assert a cause of action for breach of contract, pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 2000). Our review of a dismissal pursuant to both sections 2-615 and 2-619 is de novo, and we accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. Hanna v. City of Chicago, 331 Ill.App.3d 295, 303, 264 Ill.Dec. 609, 771 N.E.2d 13 (2002). Under either section, dismissal is proper if the plaintiff fails to allege any set of facts to support a cause of action that would entitle him to relief. Stephen L. Winternitz, Inc. v. National Bank of Monmouth, 289 Ill.App.3d 753, 755, 225 Ill.Dec. 324, 683 N.E.2d 492 (1997). Further:

"A plaintiff cannot rely simply on mere conclusions of law or fact unsupported by specific factual allegations, regardless of whether they generally inform the defendant of the nature of the claim against him or her. Grund v. Donegan, 298 Ill.App.3d 1034, 1039 , 700 N.E.2d 157, 161 (1998); Hirsch [v. Feuer], 299 Ill.App.3d [1076,] 1081 , 702 N.E.2d [265,] 270[ (1998) ]. In other words, an actionable wrong cannot be made out merely by characterizing acts as having been wrongfully done. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill.2d 497, 520, 136 Ill.Dec. 47, 544 N.E.2d 733, 744 (1989)." Weidner v. Midcon Corp., 328 Ill.App.3d 1056, 1059, 263 Ill.Dec. 89, 767 N.E.2d 815 (2002).

In a claim for breach of contract, therefore, a plaintiff must establish the existence of a contract, the plaintiffs performance of all contractual conditions, defendant's breach of that contract, and consequential damages. See Premier Electrical Construction Co. v. City of Chicago. 159 Ill.App.3d 98, 102, 111 Ill. Dec. 140, 512 N.E.2d 44 (1987).

Plaintiff first asserts that five sections of the City ordinance concerning the responsibilities, authority, and policy of the personnel department, as pled in his complaint, constitute the existence of a contract between the City of Chicago and its employees. The first section, 2-74-010 of the Chicago Municipal Code (Code), creates merit employment and states as follows:

"It is the general purpose of this ordinance, and it is necessary in the public interest, to establish a system of personnel administration that meets the social, economic, and program needs of the people of the city of Chicago, to provide for a professional and progressive merit system for employment, and to insure flexible career service within the city of Chicago." Chicago Municipal Code § 2-74-010 (1998).

The second section, 2-74-020(5) and (7), states that the Department is to:

"(5) Establish and maintain records of all employees in the city service, in which there shall be set forth as to each employee the class title, pay and status, and other relevant data;

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(7) Certify that persons named on every payroll have been appointed and employed in accordance with the provisions of this ordinance and the rules adopted thereunder." Chicago Municipal Code §§ 2-74-020(5), (7) (1998).

Thereafter, section 2-74-050(14) states in part that a purpose of the personnel board is as follows:

"For the establishment of procedures for departmental review of disciplinary actions taken against departmental employment service employees. All such procedures shall be approved by the commissioner of personnel[.]" Chicago Municipal Code § 2-74-050(14) (amended November 10,1987).

Finally, section 2-74-090(B) states:

"No person shall make any false statement, certificate, mark, rating or report with regard to any test, certification or appointment made under any provisions of this ordinance or in any manner commit or attempt to commit any, fraud, prevent the impartial execution of this ordinance and any rules issued thereunder." Chicago Municipal Code § 2-74-090(B) (2003).

Plaintiff then refers to a booklet, entitled "Administrative Hearing Procedures Personnel Board—City of Chicago, effective' July 3, 1979, revised 08/93," which defines who is a merit employee and states as follows:

"Administrative Hearing Procedures Section 2. Definitions.

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(g) Employee—a person with career service status."

Plaintiff notes that the City never disputed his status as a merit employee. In addition, he notes that phrases in section 2-74-010 such as "to provide for a merit system" and "to insure career service" are clear and unambiguous contract language.² Accordingly, in reading the sections with their intended effect, plaintiff claims that both he and the City are bound by them and may not violate them without retribution. In other words, plaintiff asserts that the sections constitute a contract to which the City and its employees are parties, and that any breach thereof is, in actuality, a breach of that contract. For example, plaintiff notes the supreme court's decision in Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill.2d 482, 490, 106 Ill.Dec. 8, 505 N.E.2d 314 (1987), which held that "an employee handbook or other policy statement creates enforceable contractual...