Village of Arlington Heights v. Anderson

• Decision Date: 20 December 2011
• Docket Number: No. 1–11–0748.,1–11–0748.
• Citation: 357 Ill.Dec. 551,2011 IL App (1st) 110748,963 N.E.2d 949
• Parties: VILLAGE OF ARLINGTON HEIGHTS, an Illinois Municipal Corporation, Plaintiff–Appellee, v. Mark R. ANDERSON, B. Gregory Trapani, Jordan Kaiser, Walter Kaiser, and Village Green, LLC, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 110748

357 Ill.Dec. 551

963 N.E.2d 949

VILLAGE OF ARLINGTON HEIGHTS, an Illinois Municipal Corporation, Plaintiff–Appellee,

v.Mark R. ANDERSON, B. Gregory Trapani, Jordan Kaiser, Walter Kaiser, and Village Green, LLC, Defendants–Appellants.

No. 1–11–0748.

Appellate Court of Illinois, First District, Second Division.

Dec. 20, 2011.

Voelker Litigation Group, Chicago (Daniel J. Voelker, of counsel), for Appellants.

Holland & Knight LLP, Chicago (Jack M. Siegel, of counsel), for Appellee.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

[357 Ill.Dec. 552] ¶ 1 Defendants-appellants Mark R. Anderson, B. Gregory Trapani, Jordan Kaiser, Walter Kaiser, and Village Green, LLC (collectively referred to as Village Green), appeal the order of the circuit court granting the motion of plaintiff-appellee Village of Arlington Heights (Arlington Heights) for partial summary judgment on count I of Arlington Height's complaint for declaratory judgment and accounting. The trial court found that pursuant to a $350,000 note signed by the four named Village Green defendants, they jointly and severally owed Arlington Heights $290,375 plus interest. On appeal, Village Green contends the trial court erred in granting summary judgment in favor of Arlington Heights where: (1) it admitted as evidence the Cook County treasurer reports, equalized assessed value of the Village Green parcels, and sales tax receipts, all of which lacked a valid foundation; and (2) a genuine issue of material fact existed as to whether Village Green agreed to guarantee the net incremental taxes annually or through the life of the redevelopment project. We affirm.

¶ 2 JURISDICTION

¶ 3 The trial court entered partial summary judgment in favor of plaintiff on September 1, 2010. On February 15, 2011, it entered a final judgment in the case, and defendants filed a notice of appeal on March 10, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 4 BACKGROUND

¶ 5 Arlington Heights sought to redevelop an area of the village under the Illinois Tax Increment Allocation Redevelopment Act (TIF Act) (65 ILCS 5/11–74.4–1 et seq. (West 2006)). Arlington Heights selected Village Green as the exclusive developer of the project, and on November 3, 1997, the parties executed the redevelopment agreement (RDA). The second amendment to the RDA required the Village Green defendants to execute a note which provided that by delivering the $350,000 note attached to the amendment:

“Developer will cause [defendants] B. Gregory Trapani, Mark R. Anderson, Jordan Kaiser, and Walter Kaiser * * * to personally guarantee to [Arlington Heights] * * * through the life of the TIF, December 31, 2006, that the net incremental taxes actually received or to be received for the project are not less than the projected net incremental taxes, pursuant to the revised Analysis of Incremental Tax Revenues, attached hereto as the revised Exhibit C to the Original Agreement. Beginning on December 1, 2002, and each December 1 thereafter, to and including December 1, 2006, [Arlington Heights] will analyze the net incremental taxes attributable to the Project, * * * and, if the net incremental taxes are less than the projected net incremental taxes, as calculated by the revised Analysis of Incremental Tax Revenues, [defendants] shall pay annually to [Arlington Heights], within thirty (30) days after notification by [Arlington Heights] (along with a schedule of computations) * * * the deficiency amount.”

The parties signed the note on August 17, 1998. The projected net incremental taxes, attached to the note as Exhibit C, were modified in the fourth amendment to the RDA.

¶ 6 Pursuant to the agreement and note, Arlington Heights advanced to Village Green $5,750,000 for TIF-eligible costs. The funds came from a bond issue for $4,500,000 and $1,250,000 borrowed from the general fund. In order to pay the principle and interest on the bonds, Arlington Heights needed to receive the projected amount of net incremental tax revenues on an annual basis. The parties amended the note four times to accommodate time extensions for completion, and the extensions resulted in a deficit of incremental taxes for tax years 2003 and 2004 compared to the projected amounts. Arlington Heights charged its community development director, William Enright, with calculating the net incremental taxes. His computations, based on data from the county treasurer's office and Illinois Department of Revenue, indicated the deficit was $111,694 for tax year 2003, and $119,787 for tax year 2004. In August, 2005, Arlington Heights notified Village Green of the deficits and the amounts due pursuant to the note.

¶ 7 On May 2, 2008, Arlington Heights filed a two-count complaint against Village Green for declaratory judgment and accounting. In deciding Arlington Heights' motion for partial summary judgment, the trial court limited the issue to “whether the annual calculation [Arlington Heights] was required to perform pertained to the life of the entire redevelopment project, or for the individual year in which the calculation occurred.” In its amended order dated September 29, 2009, the trial court determined that the note contemplated that calculations would be made, and deficits thereby paid, annually. After the order, more discovery between the parties ensued and Arlington Heights provided an explanation of the deficits and a corresponding spreadsheet.

¶ 8 Arlington Heights filed a second motion for partial summary judgment on June 10, 2010. Attached to the motion was the affidavit of Enright, explaining that he relied on the county treasurer's reports in making his calculations. Also attached were the treasurer's reports and a spreadsheet prepared by Enright showing the deficits in tax years 2003 and 2004. In its order of September 1, 2010, the trial court noted that it had previously ruled that calculations would be made, and deficits paid, annually. The court then determined that the treasurer's reports are public records admissible as an exception to the hearsay rule, and that the evidence supported Enright's calculations. It granted the motion for partial summary judgment, finding the Village Green defendants jointly and severally liable for $290,375 pursuant to the note. Upon Arlington Heights' motion for entry of judgment order and withdrawal of count II of its complaint, the trial court made the order a final judgment. Village Green filed this timely appeal.

¶ 9 ANALYSIS

¶ 10 A motion for summary judgment is granted only if the pleadings, depositions and admissions on file, together with any affidavits, reveal no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). “If a party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on his pleadings alone to raise issues of material fact.” Purtill, 111 Ill.2d at 240–41, 95 Ill.Dec. 305, 489 N.E.2d 867. For purposes of the summary judgment motion, facts contained in an affidavit are admitted as true if not contradicted by a counteraffidavit or other evidentiary material. Fields v. Schaumburg Firefighters' Pension Board, 383 Ill.App.3d 209, 224, 321 Ill.Dec. 607, 889 N.E.2d 1167 (2008). We review the trial court's grant of summary judgment de novo. Fields, 383 Ill.App.3d at 223, 321 Ill.Dec. 607, 889 N.E.2d 1167.

¶ 11 An affidavit sufficient to support a motion for summary judgment “shall be made on the personal knowledge of the affiant[ ]; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” Ill. S.Ct. R. 191(a) (eff. July 1, 2002).

¶ 12 Attached to Arlington Heights' motion was the affidavit of Enright. In his affidavit, Enright stated that as acting deputy director of planning and community development for Arlington Heights, he was familiar with the project at issue. He was charged with computing the actual incremental tax revenues (from both real estate and sales taxes) each year in order to determine Village Green's liability, if any, pursuant to the note. He stated that each year the county treasurer submits reports to Arlington Heights reflecting the assessed valuation and tax due for each tax parcel within the district relevant to the project. The reports for tax years 1999 through 2005 were attached as Exhibit C and had previously been transmitted to Village Green upon a document request. From the data in the reports, Enright ascertained the equalized assessed value of the Village Green parcels and computed the net incremental real estate taxes. He also determined the amount of annual sales taxes using confidential data provided to Arlington Heights by the Illinois Department of Revenue. He prepared a spreadsheet, attached to the motion as Exhibit I, reflecting his computations and the deficits in net incremental tax revenue for tax years 2003 and 2004. He outlined his methodology in the affidavit. The affidavit further stated that Enright based his calculations on the agreed-upon projections in the note and the official records of the county treasurer.

¶ 13 Generally, a document offered for the truth of the matter asserted is inadmissible as hearsay. People v. Graney, 234 Ill.App.3d 497, 506, 174 Ill.Dec. 790, 599 N.E.2d 574 (1992). However, public documents kept in the ordinary course of business are generally...