Village of Roselle v. Com. Edison Co.
| Decision Date | 07 November 2006 |
| Docket Number | No. 2-06-0294.,2-06-0294. |
| Citation | 859 N.E.2d 1,307 Ill.Dec. 1 |
| Parties | The VILLAGE OF ROSELLE, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
James H. Knippen, Adam C. Kruse, Walsh, Knippen, Knight & Pollock, Chtd, Wheaton, for Village of Roselle.
Stephen C. Carlson, Dale E. Thomas, Brian A. McAleenan, Charles K. Schafer, Sidley Austin LLP, Jessica M. Aspen, Exelon Business Services Co./Legal Department, Chicago, for Commonwealth Edison Company.
Plaintiff, the Village of Roselle (Village), filed a two-count complaint against defendant, Commonwealth Edison Company (ComEd), in the circuit court of Du Page County. Count I of the complaint sought an accounting related to an electric tax imposed by the Village. Count II of the complaint purported to state a cause of action for spoliation of evidence. The circuit court granted ComEd's motion to dismiss count I, finding that the Illinois Commerce Commission (ICC) had exclusive jurisdiction over the accounting claim. The circuit court also granted ComEd's motion to dismiss count II, finding that the issue would be more properly resolved by the ICC as a result of its jurisdiction over the underlying accounting claim and that, in any event, the Village failed to sufficiently plead a claim for spoliation of evidence. The Village filed a timely appeal from the trial court order. For the reasons that follow, we reverse the trial court's dismissal of the Village's accounting claim. We affirm the trial court's dismissal of the Village's claim for spoliation of evidence, but we remand that count to allow the Village to replead.
The Village and ComEd are parties to a franchise agreement, pursuant to which ComEd provides electrical utility service to the Village. See Roselle Ordinance No. 92-2222 (eff. July 29, 1992). Pursuant to section 8-11-2(3) of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/8-11-2(3) (West 1998)), the Village adopted an ordinance imposing a tax (electric tax) upon the use or consumption of electricity within its borders. Roselle Code of Ordinances § 20-38 (eff. April 26, 1999). The tax constitutes a debt owed to the Village by ComEd. 65 ILCS 5/8-11-2(c) (West 1998); Roselle Code of Ordinances § 20-42 (eff. April 26, 1999). However, section 9-221 of the Public Utilities Act (Act) (220 ILCS 5/9-221 (West 1998)) authorizes ComEd to levy upon its customers "an additional charge equal to the sum of (1) an amount equal to such municipal tax, or any part thereof (2) 3% of such tax, or any part thereof, as the case may be, to cover costs of accounting, and (3) an amount equal to the increase in taxes and other payments to governmental bodies resulting from the amount of such additional charge."
On September 22, 2005, the Village filed a two-count complaint against ComEd alleging that it was due unpaid electric tax from ComEd. As noted previously, count I purported to state a cause of action for an accounting, while count II purported to state a cause of action for spoliation of evidence. The following factual allegations are taken from the Village's complaint.
On or about February 11, 2005, the Village's finance director sent to ComEd a letter requesting "a listing of addresses from [ComEd] where ComEd is collecting electric utility tax on behalf of the Village." The Village followed up its initial correspondence with a pair of letters dated February 28, 2005. The first letter, signed by the Village administrator, informed ComEd that the Village had retained Azavar Technologies (the auditors) "to assist [the Village] in a full and comprehensive audit of each of [its] utility tax payers." The second letter, signed by the Village's director of finance, notified ComEd of the Village's "intent to perform an audit of the franchise fees/utility tax paid to the Village." (Emphasis in original.)
Thereafter, the auditors discussed with representatives from ComEd the terms of the audit. Among the conditions imposed by ComEd was that the auditors could view data only while at ComEd's offices or facilities. ComEd also insisted that the auditors not copy in any manner or remove any data from ComEd's facilities. As a result of these conditions, ComEd provided the auditors with a ComEd-owned laptop computer, which the auditors were to use to review the electronically-stored data. Moreover, because the auditors were prohibited from copying any data in any manner, the auditors used the ComEd-provided computer to input work product relative to the audit. The Village requested data from 72 months, but ComEd provided partial data from only one of those months. This partial data consisted of three individual "snapshots," which represented the same fields of data culled at three different points in time and which yielded three distinct compilations of data that could be compared. Based on the partial data, the auditors "were able to draw certain conclusions regarding fluctuations in taxed accounts, which led the [auditors] to the conclusion that ComEd owed unpaid tax monies to the Village." The Village further claimed that it has "reason to believe that ComEd is not properly designating premises relating to changes in the corporate boundaries of the Village."
At the time the auditors made their conclusions, the audit had been conducted under the auspices of ComEd's customer marketing systems department. However, responsibility for audit supervision was subsequently shifted to ComEd's tax department. Sometime later, the auditors sought to review the data at the tax department, but were informed that the laptop they had been using had been lost. Although the laptop was located a few days later, two of the three "snapshots," as well as the auditors' work product, had been irretrievably erased at the request of a ComEd executive. On June 23, 2005, the auditors, acting as the Village's agent, sent to ComEd a letter demanding an accounting. ComEd responded via a letter dated July 13, 2005, refusing to allow the accounting requested by the Village.
With respect to count I, the Village prayed for an order compelling ComEd:
With respect to count II, the Village alleged that it was the duty of ComEd "to exercise ordinary care and caution to protect and preserve the integrity of the data, information, and work product that was used and created by the Auditors for purposes of the audit by the Village," especially since ComEd prohibited that the information be copied in any manner and required that the information be reviewed and stored at ComEd facilities. The Village further alleged that ComEd was responsible for one or more "careless, negligent, willful, or intentional acts and/or omissions" related to the loss of the data and that, as a direct and proximate result of ComEd's conduct, the Village "is unable to prove the underlying action for Accounting."
ComEd filed a motion to dismiss both counts. ComEd argued that the Village's accounting claim should be dismissed pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(1) (West 2004)) because state law vests the ICC with exclusive jurisdiction to regulate a public utility's collection of a municipal utility tax, and the Village has not exhausted its administrative remedies. See 220 ILCS 5/9-252 (West 2004). ComEd further argued that the Village's spoliation-of-evidence count should be dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)) because the Village failed to establish the required elements for such a claim. The Village responded that the ICC's exclusive jurisdiction is limited to claims that a public utility is charging an excessive rate for its services, and this is not such a claim. The Village also insisted that it pled all elements necessary to state a claim for negligent spoliation of evidence.
The trial court granted ComEd's motion to dismiss both counts. The court found that the ICC had exclusive jurisdiction over the accounting claim. Having so decided, the court remarked that "it would seem * * * that the issue of spoliation, if any there be, should also go to the ICC." The court later voiced its agreement with ComEd's contention that the spoliation count was factually insufficient, but reiterated that the spoliation claim was "an ancillary matter * * * which should be first determined by the [ICC]." The Village appealed.
Before addressing the merits of this appeal, we point out what we perceive as a gross violation of Supreme Court Rule 341 ) by ComEd's counsel. Rule 341 provides that if the appellee opts to include a statement of facts in its brief, the statement of facts shall contain "the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." (Emphasis added.) (...
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