Dewitt v. McHenry County

No. 2--97--0044
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

KEN DEWITT, ) Appeal from the Circuit Court
) of McHenry County.)
Plaintiff-Appellant, )
)
v. ) No. 96--LA--51
)
McHENRY COUNTY, ) Honorable
) James C. Franz,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

JUSTICE RATHJE delivered the opinion of the court:

Plaintiff, Ken Dewitt, appeals the judgment of the circuit
court of McHenry County dismissing his complaint against defendant,
McHenry County, for breach of an employment contract. Plaintiff
contends that the court erred in holding that his cause of action
was barred by the one-year statute of limitations in the Local
Governmental and Governmental Employees Tort Immunity Act (the Act)
(745 ILCS 10/1--101 et seq. (West 1994)).
Plaintiff's complaint alleges that defendant hired him as a
data processing manager in February 1989. By December 8, 1993, he
held the position of senior systems manager. Plaintiff alleges
that he was given a copy of the "McHenry County Government
Personnel Policy Handbook." The handbook stated that defendant
would not discharge plaintiff without good cause and listed various
acts that constituted cause for disciplinary action or termination.
The handbook also provided for a pretermination hearing. Plaintiff
never committed any of the acts proscribed by the handbook, and no
one ever told him that his performance was unsatisfactory.
Nevertheless, on December 8, 1993, defendant terminated plaintiff's
employment without providing him with a pretermination hearing.
Counts I and II of the complaint allege breach of contract.
Count III alleges retaliatory discharge. Count IV is titled
"Denial of Constitutional Right to Counsel."
Defendant removed the case to the federal district court,
which remanded it to the state court. Defendant filed a combined
motion to dismiss the complaint pursuant to sections 2--615 and 2--
619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2--615, 2--
619(a)(5) (West 1994)).
The section 2--615 portion of the motion argued in pertinent
part that the complaint did not adequately allege various elements
of a breach-of-contract cause of action, including offer,
acceptance, and consideration. Defendant further contended that
the copy of the handbook attached to the complaint contained an
explicit disclaimer of any intention to create an enforceable
contract. The section 2--619 portion of the motion contended that
all of plaintiff's causes of action were barred by the one-year
limitations period provided in the Act. See 745 ILCS 10/8--101
(West 1994). In response, plaintiff argued that the copy of the
handbook attached to the complaint was not the one he actually
received, but a later revision, and that the one-year limitations
period did not apply to his contract counts.
At the hearing on the motion, the parties first argued the
issues of the complaint's factual sufficiency. The trial court
demonstrated a willingness to dismiss the complaint on that basis,
but also to allow plaintiff leave to amend. The parties then asked
to address the limitations issue. The court ruled that section 8--
101 barred all of plaintiff's causes of action. The court's order
states the court's finding that plaintiff's complaint is time-
barred and grants plaintiff 28 days to file an amended complaint.
Plaintiff then filed a notice of his intention to stand on his
complaint. The trial court dismissed the complaint with prejudice,
and plaintiff filed a timely notice of appeal.
Plaintiff contends that the trial court erred in dismissing
his breach of contract counts on the basis of the one-year
limitations period in section 8--101. He argues that the Act
relates only to tort liability and expressly disclaims any
intention to affect liability based on contract. Instead,
plaintiff contends, the court should have applied either the 5-year
limitations period governing actions for breach of oral contracts
(735 ILCS 5/13--205 (West 1994)) or the 10-year period governing
actions on written contracts (735 ILCS 5/13--206 (West 1994)).
Defendant responds that the plain language of section 8--101
applies to any civil action "for any injury" and broadly defines
"civil action" as "any action, whether based upon the common law or
statutes or Constitution of this State." 745 ILCS 10/8--101 (West
1994). Because an "injury" may include an injury to a property
right such as a contractual right to employment, defendant argues
that that section bars plaintiff's cause of action.
The primary purpose of a section 2--619 motion is to dispose
of issues of law or easily proved issues of fact. A.F.P.
Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905,
912-13 (1993). We review de novo the granting of a motion to
dismiss. M.E.H. v. L.H., 283 Ill. App. 3d 241, 246 (1996), aff'd,
177 Ill. 2d 207 (1997).
Previous cases have held that the five-year limitations period
applies to an action against a governmental entity for the breach
of an unwritten employment contract. Burris v. School Board
District No. 189, 70 Ill. App. 3d 572, 577 (1979); Wilson v. Board
of Education of Limestone-Walters School District No. 316, 127 Ill.
App. 3d 433, 436 (1984). Because it does not appear that the ap-
plicability of section 8--101 was specifically raised, those cases
have limited precedential value in this case except to demonstrate
the novelty of defendant's theory. In fact, our research has
failed to uncover any case that has squarely faced this issue.
Plaintiff points out that the Act does not affect contract
liability. Specifically, section 2--101 states:
"Nothing in this Act affects the liability, if any, of a local
public entity or public employee, based on *** Contract." 745
ILCS 10/2--101(a) (West 1994).
At first blush, this might appear to dispose of the matter.
However, defendant argues that it does not. Section 2--101 refers
only to "liability." According to defendant, a limitations period
such as that found in section 8--101 does not affect liability, but
merely shortens the time during which that liability can be
asserted. Thus, if a plaintiff alleges that a county has breached
a contract more than one year after the cause of action accrued,
the county remains liable thereon, but the plaintiff is no longer
able to obtain relief.
Defendant's argument appears strained. Liability can be
"affected" in a number of ways. Shortening its lifespan is one way
of affecting liability. In other words, it can be said that once
a cause of action is time-barred the potential defendant is no
longer "liable" thereon.
Defendant also contends, however, that the legislature's
intention to include contract claims can be gleaned from the plain
language of section 8--101, which provides that "no civil action"
may be commenced against a local entity "for any injury" unless
commenced within one year from the date the injury was received.
745 ILCS 10/8--101 (West 1994). In turn, the Act defines "injury"
as "death, injury to a person, or damage to or loss of property."
745 ILCS 10/1--204 (West 1994).
An expectation of continued employment can be considered a
form of "property" subject to "damage or loss" through wrongful
termination. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430,
71 L. Ed. 2d 265, 274, 102 S. Ct. 1148, 1155 (1982); Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 576-77, 33 L. Ed. 2d 548, 560-61, 92 S. Ct. 2701, 2708-09 (1972). However, in
interpreting the Act according to well-established principles of
statutory construction, as well as considering its historical
context, we must reject defendant's interpretation.
In construing a statute, a court must ascertain and give
effect to the legislature's intent in enacting the statute.
Collins v. Board of Trustees of Firemen's Annuity & Benefit Fund,
155 Ill. 2d 103, 110 (1993); DiMarco v. City of Chicago, 278 Ill.
App. 3d 318, 324 (1996). The statutory language is usually the
best indication of the drafters' intent, and the language should be
given its plain, ordinary, and popularly understood meaning.
Collins, 155 Ill. 2d at 111. Because a statute is passed as a
whole and animated by one general purpose, each part should be
construed with every other part to produce a harmonious whole.
American National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 23 (1992); 2A N. Singer, Sutherland on Statutory
Construction 46.05 (5th ed. 1992).
Here, the provision in question is part of the Local
Governmental and Governmental Employees Tort Immunity Act. The
title of an act can provide guidance in interpreting an ambiguous
provision. People v. Lamb, 224 Ill. App. 3d 950, 953 (1992). It
is apparent that the purpose of the statute is to circumscribe
carefully the tort liability of local governmental entities. It is
illogical to assume that the legislature would have enacted a
statute with substantive provisions related to tort liability, but
included therein a single paragraph providing a statute of
limitations governing contract actions.
Furthermore, the historical context in which the Act was
passed cannot be ignored. The legislature passed the Act in
response to the supreme court's decision in Molitor v. Kaneland
Community Unit District No. 302, 18 Ill. 2d 11 (1959). See
generally J. Latturner, Local Governmental Tort Immunity &
Liability in Illinois, 55 Ill. B.J. 28, 29-32 (1966) (hereafter
"Latturner"); P. Corboy, Shielding the Plaintiff's Achilles' Heel:
Tort Claim Notices to Governmental Entities, 28 DePaul L. Rev. 609,
611-12 (1979).
In Molitor, the supreme court abolished the doctrine of
sovereign immunity in Illinois. Molitor started as a suit for
personal injuries sustained in a school bus accident. Molitor, 18 Ill. 2d at 12-13. Acknowledging that sovereign immunity was then
the law in Illinois, the court traced the history of the doctrine,
based on the ancient maxim "the King can do no wrong," and
concluded that the theory had no place in an enlightened republic.
Molitor, 18 Ill. 2d at 15-22.
Almost immediately after Molitor was released for publication,
the legislature responded by passing a series of acts granting
absolute immunity to a number of specific types of municipal
entities. Latturner, 55 Ill. B.J. at 30. The supreme court struck
down the first of these statutes it considered and in so doing made
clear that all existing statutes would meet the same fate. Harvey
v. Clyde Park District, 32 Ill. 2d 60, 66-67 (1965); see Latturner,
55 Ill. B.J. at 30. The Harvey court did suggest, however, that a
statute classifying municipal functions, instead of classifying
among governmental agencies that performed the same function, might
be constitutional. Harvey, 32 Ill. 2d at 67. Within a few months
of Harvey, the legislature responded by passing the Act.
It is clear that the legislature passed the Act in response to
Molitor and Harvey, both of which dealt with tort liability. Even
before Molitor, there had never been any suggestion that a
governmental entity was immune from liability on its valid
contracts. Molitor thus presented no need to address this issue.
Pursuant to the supreme court's suggestion in Harvey, the Act sets
forth a comprehensive scheme delineating under what circumstances
a local government will not be subject to tort liability. One of
those circumstances is when the suit is filed more than one year
after the cause of action accrued. 745 ILCS 10/8--101 (West 1994).
There is nothing in the history or structure of the Act to indicate
that the legislature was concerned with allowing a governmental
entity to limit its liability for breaching a contract, and we will
not infer such an intention.
While not directly addressing the issue presented here, other
cases have reached results consistent with our conclusion. The Act
is in derogation of the common law and must be construed strictly
against the public defendants. Bertolis v. Community Unit School
District No. 7, 283 Ill. App. 3d 874, 878 (1996). In DiMarco v.
City of Chicago, 278 Ill. App. 3d 318, 324 (1996), the court held
that in enacting the Act "the legislature meant to exclude causes
of action under contract theory." See also Western Waterproofing
Co. v. Springfield Housing Authority, 669 F. Supp. 901, 905 n.2
(C.D. Ill. 1987). Although DiMarco and Western Waterproofing both
involved assertions of immunity rather than a statute of
limitations defense, the rejection of the argument in those cases
reflects a commonsense conclusion that the tort immunity act does
not apply to contracts. Finally, in Kepper v. LaSalle-Peru
Township High School District No. 130, 7 Ill. App. 3d 138, 140
(1972), the court stated that the Act's preliminary notice
requirement--since repealed--did not apply to a contract action.
The notice requirement had been codified immediately after section
8--101 and served the same general purpose.
Defendant further argues that section 8--101 must be applied
rather than section 13--205 or section 13--206 because the former
is a specific statute whereas the latter two are merely general
statutes. Where there are two statutory provisions, one general
and the other specific, the more specific provision controls.
Zimmer v. Village of Willowbrook, 242 Ill. App. 3d 437, 442 (1993).
In this case, it is equally plausible to say that sections 13--205
and 13--206 are more specific. Those sections apply to specific
types of actions, including those for oral and written contracts,
respectively. On the other hand, section 8--101, at least in
defendant's view, potentially applies to all actions against
governmental entities.
In Zimmer, plaintiffs sued for flood damages allegedly resulting
from defendant's installation of culverts near plaintiffs'
property. Plaintiffs claimed that section 13--214(a) of the Code
of Civil Procedure, rather than section 8--101, applied. Section
13--214(a) provides a four-year limitation period for actions
"based upon tort, contract or otherwise" against any person,
including a "body politic," for an act or omission in the
construction of real property (735 ILCS 5/13--214(a) (West 1994)).
We held that if plaintiffs could establish that the culverts were
an "improvement" to real property, then section 13--214(a) would
apply. Zimmer, 242 Ill. App. 3d at 444. While noting that neither
of the competing limitation provisions could be considered
"general," we found that section 13--214 was potentially "more"
specifically applicable to that case, in part because it was
restricted to particular types of actions.
The Appellate Court, Fourth District, recently followed Zimmer
in holding that section 13--211 of the Code, providing that actions
by minors may be brought within two years of the minors' attaining
majority (735 ILCS 5/13--211 (West 1994)), was a more specific
statute than section 8--101 and thus governed the action of plain-
tiffs, who were minors at the time they were injured. Bertolis,
283 Ill. App. 3d at 880-81. We thus reject defendant's argument
that section 8--101 must be applied because it is more "specific."
Defendant also argues that prior appellate decisions support
the application of section 8--101 to plaintiff's action. Defendant
relies primarily on Webb v. County of Cook, 275 Ill. App. 3d 674,
676 (1995), where the court held that section 8--101 barred
plaintiff's action for retaliatory discharge.
Plaintiff apparently acknowledges that his retaliatory
discharge action is barred; he makes no argument on appeal relative
to that count. However, Webb does not establish that plaintiff's
breach of contract counts are barred.
The facts giving rise to a cause of action for negligence may
also give rise to a cause of action for breach of contract. Where
this occurs, governmental immunity may bar the negligence claim but
does not prevent a party from pursuing the contract claim.
Lawrence v. Ingham County Health Department, 408 N.W.2d 461, 463
(Mich. App. 1987); 18 McQuillin on Municipal Corporations 53.01.10
(3d rev. ed. 1990); cf. Kepper, 7 Ill. App. 3d at 140.
This is perhaps especially true in the context of employment
law. As noted previously, the property right in the expectation of
continued employment may be interfered with in a manner giving rise
to tort-based liability. Retaliatory discharge actions have been
thought to be of this type. See Webb, 275 Ill. App. 3d at 679
(refusal to rehire constitutes ongoing tort). Where, as here,
plaintiff alleges the existence of a valid employment contract, the
application of contract law principles is appropriate. We have
already determined that section 8--101 does not apply to a cause of
action based on contract. Therefore, Webb does not support
defendant's contention that plaintiff's action is untimely. The
other cases defendant cites are likewise distinguishable in that
they did not involve actions for breach of contract.
Defendant's final contention is that we should affirm the
dismissal of the complaint on the ground that it fails to state a
cause of action. Defendant correctly points out that we may affirm
the trial court's judgment on any basis appearing in the record.
However, we decline to affirm the judgment on this basis.
It appears from the record that, although the trial court
found the complaint factually insufficient, it was prepared to
allow plaintiff an opportunity to amend the complaint. Only after
the trial court decided the limitations issue did plaintiff elect
to stand on his complaint, asserting that he could not allege any
additional facts relevant to the limitations question. The supreme
court has cautioned against affirming the dismissal of a complaint
on the basis of a correctable pleading defect where it is likely
that plaintiffs would have been given a chance to amend the
complaint if the defect had been addressed below. Geaslen v.
Berkson, Gorov & Levin, Ltd., 155 Ill. 2d 223, 230 (1993). We
believe Geaslen applies here where the trial court expressed its
willingness to allow plaintiff to amend the complaint.
The judgment of the circuit court of McHenry County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
GEIGER, P.J., and INGLIS, J., concur.