People v. Excavation and Lowboy Services, Inc.

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-3345 Rel

Case Date: 02/13/2009

Preview:1-07-3345

FIFTH DIVISION February 13, 2009 Filed: 2-13-09

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE, ex rel. LISA MADIGAN, Attorney General of the State of Illinois, and ex rel. RICHARD A. DEVINE, State's Attorney for Cook County, Illinois,

) ) ) ) Plaintiffs, ) ) v. ) ) EXCAVATING AND LOWBOY SERVICES, INC., an Illinois ) Corporation, DANIEL SERRITELLA, an Individual, THE CITY ) OF HARVEY, an Illinois Municipal Corporation, the HARVEY ) PARK DISTRICT, an Incorporated Illinois Park District, ) MOHAMMED SAYED, an Individual, and ALAADIEN Z. ) ELABADY, an Individual, ) ) Defendants ) ) (The City of Harvey, ) ) Third-Party Plaintiff-Appellant; ) ) The Department of Transportation, and Timothy Martin, ) Secretary of Transportation, ) ) Third-Party Defendants-Appellees ) ) (Achilles, Inc., Beverly Asphalt Paving Company, Dawn ) Companies, Inc., Dino's Cartage, Inc., Dolci Trucking, Dresden ) Land Improvements, Inc., Dunleavy Construction Company, H.F. ) Vegter Excavating Company, J.P. Hopkins Sewer Contractor, Inc., ) K-Five Construction Corporation, Ricci/Welch, Inc., Sid Kamp, ) Inc., Silvestri Paving Company, Inc., Wigboldy Excavating, Inc.Third-Party Defendants)). )

Appeal from the Circuit Court of Cook County. No. 04 CH 0863 No. 04 CH 9347 No. 07 CH 11709 (Consolidated) The Honorable Stuart E. Palmer, Judge Presiding

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1-07-3345 JUSTICE TOOMIN delivered the opinion of the court: In the proceedings below, the trial court dismissed the City of Harvey's (the City) thirdparty complaint against the Illinois Department of Transportation (IDOT) and its former secretary1, Timothy Martin after determining that relief was barred by the doctrine of sovereign immunity and the complaint failed to plead sufficient facts to substantiate the claim. On appeal, the City contends: (1) the State expressly consented to suit based on the Illinois Environmental Protection Act (Environmental Act) (415 ILCS 5/1 et seq. (West 2004); (2) dismissal was erroneous as to Martin; (3) the dismissal was inequitable; and (4) its amended complaint was factually sufficient. BACKGROUND In light of the narrow scope of our review, we refer only to evidentiary matters relevant to the issues raised by the City's appeal. The State of Illinois (State) filed suit against Excavating & Lowboy Services, Inc. (E&L), and one of its owners, Daniel Serritella, alleging E&L was illegally operating a dump site in Harvey. Thereafter, a second action was instituted for similar conduct at another site in Harvey, known as Worthy Park. This latter action alleged that E&L and Serritella violated the Environmental Act and created a public nuisance by disposing of waste in an area of Worthy

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The caption used by the parties in the trial court, as well as in this court, refers to this

office as "director" of the Department of Transportation. As the proper designation for this office is the "Secretary of Transportation," we have used it in our caption and utilize it herein in the interest of accuracy. 2

1-07-3345 Park, albeit with the permission of the City and its park district. The complaint also alleged that E&L and Serritella had allowed other companies to dump on the site for a fee. The State filed an amended complaint consolidating both actions and adding the City and its park district as defendants. The amended complaint further alleged that the City and the park district "caused or allowed" illegal dumping to occur at Worthy Park, continuing even after E&L and Serritella discontinued operations at the site. The park district's answer admitted ownership of the park but denied any culpability for the illegal dumping at either site. The City's answer also denied responsibility for the illegal dumping. An agreed order was entered on the State's motion for preliminary injunction, requiring the City and park district not to "cause or allow" dumping at Worthy Park for the duration of the litigation and to post signs indicating the prohibition against dumping at the site. Additionally, on October 20, 2006, default judgment in favor of the State of Illinois was entered against E&L and Serritella in the amount of $1,467,720. On December 20, 2006, the City filed a third-party complaint against IDOT, Martin, and 15 companies; it was amended on August 14, 2007. The City's amended third-party complaint alleged liability on the part of the defendants, without differentiation, and sought injunctive relief, remedial relief, and monetary damages from the defendants. A counterclaim was also filed naming the State, IDOT, Martin, and E&L, as well as Daniel Serritella. According to IDOT and Martin's brief, the City initiated suit in the Court of Claims against the State, IDOT, and Martin on December 20, 2006; however, we were unable to verify that representation with the Court of Claims.

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1-07-3345 IDOT and Martin moved to dismiss both of the City's third-party complaints as well as the counterclaim on the bases of sovereign immunity and the factual insufficiency of the complaint. Although the motion was fully briefed by the parties and the order references its entry on a hearing date, the extent of the hearing is unclear. In turn, the trial court entered dismissal on all counts as to IDOT and Martin pursuant to section 2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2004)), concluding sovereign immunity operated as a bar to the City's claims and counterclaims and, more specifically, that there was no waiver of sovereign immunity pursuant to section 45(d) of the Environmental Act. Dismissal was similarly granted as to all counts naming IDOT and Martin pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2004)), finding the complaint failed to allege sufficient facts entitling the City to relief. All counts were dismissed with prejudice. On November 7, 2007, the trial court granted the City's motion for a finding that the August 30, 2007, order was final and appealable pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). The City, in turn, filed its notice of appeal on December 5, 2007. ANALYSIS Orders of dismissal for lack of subject matter jurisdiction are reviewed de novo. Siakpere v. City of Chicago, 374 Ill. App. 3d 1079, 1081, 872 N.E.2d 495, 497 (2007). Reviewing courts "can sustain the decision of the circuit court on any grounds which are called for by the record regardless of whether the circuit court relied on the grounds and regardless of whether the circuit court's reasoning was sound." City of Chicago v. Holland, 206 Ill. 2d 480, 492, 795 N.E.2d 240, 247-48 (2003). Additionally, since the resolution of the issues in the present cases require us to

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1-07-3345 construe statutes, our review on those issues is also de novo. Illinois Department of Healthcare & Family Services v. Warner, 227 Ill. 2d 223, 229 882 N.E.2d 557, 560 (2008). Sovereign Immunity and Environmental Protection Act Litigation We first address the circuit court's determination that the City's third-party complaint was barred by the doctrine of sovereign immunity. At common law the doctrine precluded suits against the government absent consent on behalf of the entity to be sued. Jackson v. Alverez, 358 Ill. App. 3d 555, 559, 851 N.E.2d 1159, 1163 (2005). Notably, statutory immunity is an affirmative defense and is properly addressed in a section 2-619 motion. Williams v. Board of Education of the City of Chicago, 222 Ill. App. 3d 559, 562, 584 N.E.2d 257, 260 (1991). The City contends this is a matter of first impression and we note that our research did not uncover any controlling precedent addressing whether the Environmental Act contains an exception to sovereign immunity. After the abolition of the doctrine of sovereign immunity, "[e]xcept *** as provide[d] by law" (Ill. Const. 1970, art. XIII,

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