decision in this case which overturns and is contrary to more than one hundred years of case law including case why stablished by this court relative to agency law in the state of illinois as it applies to public bod municipality to take that act the appellate court's decision has expanded that law to hold that it may also the public bodies may also be bound on the basis of apparent or implied already and has read an allegation of that the city should be equitably stopped from denying it payment of three hundred eighty thousand dollars for sirius is it claimed her performed outside the scope of the contract approved by the city council the contract negotiated between the city of naperville and plaintiff patrick engineering is forty nine pages long and it's extremely explicit and detailed in terms of its scope and the deliverables for which plaintiff will be paid section two of the contract entitled additional services was drafted so that we would never be before this or any other court with regard to the issue of whether or not additional services had in fact been authorized under the contract awarded to area project the plaintiff was to complete a pilot area so that the methodology for the entire project could be established before they proceeded on the entire twenty square mile area the total cost of the project which was established by patrick engineering's proposal to the city was four hundred thirty six thousand three hundred ninety two dollars the city paid patrick engineering seventy seven thousand three hundred twelve dollars had to engineering claims that it's due another three hundred eighty thousand four hundred one thousand dollars as a result of these additional services a claim to are performed outside the scope of the contract approved by the city council plaintiff alleged in its complaint that it performed these alleged additional services pursuant to section two of the contract entitled additional services however in fact plaintiff conceded that it did not perform the services in compliance with the provisions of section two by which it would have gained absolute clarity as to whether or not those additional services claim to perform were authorized or it would have been told not to perform those services and that it would not pay for them instead of complying with the contractual obligations set rare circumstances against a public body the application i quibble stapel against a public body is rare and should not be allowed unless there are compelling and extraordinary circumstances especially where public revenues are involved as they are in this case in order to plead a cause of action for equitable snapple a plaintiff must allege an affirmative act by the municipality itself or by agent of the municipality expressly authorized to take that knowing whether or not the facts of the situation in this case whether or not additional services were approved was correct as noted in the case of diligent wives worth persons curtain second district two thousand a party seeking to claim the benefit of a stopper cannot shut his eyes to obvious facts or neglect to seek information that is easily accessible and then charges ignorance in this case quite literally to others the basis of kind of scream of equitable snapple in this case is based on three elements first within weeks of being awarded the contract in this case by the city of naperville plaintiff notified city staff to change or would be needed to increase the value of the contract and when city staff didn't agree plaintiff walked off the job in response on august tenth two thousand and seven the city's strategic service manager beth lange wrote a letter she said please return to work and complete the pilot area as required by the contract you know you have to complete the pilot area first she provided a chart or graph of all the costs that would be paid to patrick engineering for completion of the pilot area including project management cost at a collection the technology component anything so she did with the pilot area him to eighty five thousand seven hundred one thousand dollars and she said this is what you'll get paid for the pilot  she had vice upon delivery and review of the pilot area data the city will work with plaintiff to determine if a change in scope to complete the remainder of area b is required at that time the project specifications each account projections and budget will undergo thorough review and any necessary changes will be made there was no promise of a change order made in that letter there is certainly no reference to additional services outside the scope of the contract in that letter this letter is the primary basis upon which plaintiff bases its claim that it performed three hundred eighty thousand dollars as of services outside the scope of the contract elucidated in a letter dated april second two thousand and seven attached as exhibit two to plaintiff's complaint there's nothing in the additional services that has anything to do with each count so the change order was based upon feature count according to  built atta had increased information included on it whether or not the pilot area which was simply a subset of the entire project had been expanded from one to three square miles those are the kinds of additional services alleged by plaintiff the only thing that sounds remotely like an additional service is that plaintiff alleges that the city asked it to include additional plans and categories of plans into the database but it has nothing to do with the future count upon which the change order w to be approved according to plan of celebrations plainness final basis for theory of aquittal stop against the city is that there were other city employees who were aware that it was performing additional work and failed to stop it from taking that action there is no allegation in plaintiff's complaint that those other employees of the city had any responsibility for or authority over this contract city employee had any authority to approve three hundred eighty thousand dollars of work outside the scope of the contract approved by the city council the parties entered into a stipulation the city had filed a motion to dismiss the parties entered into a stupor lation for the purposes of that motion to dismiss that went like this one there was no authority given by the corporate authorities for performance of the additional service to patrick engineering performed additional services three someone in the building department was aware that patrick engineering was performing additional services and did not stop them from performing them there was a fourth item the inducing act is performed by the corporate authorities themselves such as by way of legislation or by an act of an agent who has express the worry and the anyone dealing with a governmental body takes the risk of cases that stand for the proposition that the plaintiff has to show that the municipality or municipalities corporate the words themselves created the estoppel or that the municipal agent possessed formal authority to act as the word used by the court but the court stated that it found the validity of their proposition to be far from clear that it appeared to add a third requirement to the claim of equitable stoppel and that it was a creature appellate court went on to say patrick has alleged that persons who appear to have been designated by the corporate authorities to oversee the stormwater management project made representations to patrick that induced him to perform the extra work thus even though plaintiff failed to plead any of the worry any authority at all by any city employee not express or a parent or impl it in this case in order to reach the conclusion that plaintiff had alleged enough to state a color boat colorable claim of equitable stock the appellate court stated that the requirement of an action by the municipality itself or an employee expressly authorized to take that action was contrary to this court's holding city service oil vs city of disclaims however in the city service case the supreme court cited two other earlier supreme court cases where the general rule that a city cannot be stopped by an act of its agent the word he conferred upon him and that anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority and this is so even when the agent himself may have been unaware of the limitations on his authority the court and city services went on to say that i mean this is how he could be equitably a stop in special circumstances where it would be highly equitable or oppressive twenty four such public rights the court's finding was supported by its determination that the city had acquiesced and therefore ratified the issuance in that case  permits in the case at hand there could have been no acquiescence or ratification by the city council because there was no knowledge whatsoever on the part of the city council and plaintiff didn't allege that there wasn't any furthermore the plaintiffs in this case did not take any steps as the plaintiff in city services did to ensure that it was acting pursuant to authority instead of the plaintiff in this case to just the opposite it closed his eyes in order to avoid finding out whether or not the additional small fraction of the entire project then we'll sit down and we'll go over everything and see where we are but finish the pilot area first and then she heard me and they did they attempted to they were able to the pilot area was never accepted of evidence hundreds of the evidence it change the requirement that there has to be express authority to a parent or implied a story by city employees that will have catastrophic results not just for municipalities but for every public body in the state of illinois so that that needs to be addressed first and foremost your honor secondly you still need to plead that you still have to  and one of the facts is that there's authority the very first fact is that there was an affirmative act taken by the municipality or an agent who has expressed authority that must be alleged it wasn't alleged they filed five complaints it wasn't alleged in any one of them they failed to state a cause of action and therefore the motion to dismiss was properly granted especially in view of the stipulation in which they said yes we understand the corporate authorities never authorized the additional services does that answer your question the case at hand is sorry in terms of the comparison of this case to city services didn't take advantage of the convenient means it had in the contract to find out whether or not it was allowed to perform additional services finally the appellate court seemed to find that if the underlying contract was valid a modification or amendment of the contract could be irregularly entered into in order to amanda contract to modify a contract they have to have authority to do so and there have to be terms plaintiff has already alleged there's no authority or stipulated that there is no authority and there were no terms it's important to know in other cases where equitable stopovers discuss the plaintiff is saying you owe me one hundred fifty thousand dollars if i perform this work you want me seven thousand five hundred dollars if i perform this work plaintiff never said anything like that you would have to believe that playing the strategic services manager and the i t team leader gave patrick engineering a blank check and said just fill it out for whatever you need but every dish and services you want to perform that's what we'll pay it's not possible contract is a city of bellville versus illinois for turn an order of police labor council and that case there was a valid underlying contract and the mayor of the city in that case the mayor and tradin tryna dundon which changed added some significant were regularly entered into contracts certainly there are cases like that where bidding wasn't done correctly and yet that was mcgovern vs city of chicago where the city accepted ability even though it didn't comply with its specifications accepted the work and then said that we don't have to pay because your bid didn't comply with its specifications that's an irregularity this three hundred eighty thousand dollars of money have additional services that the city council knew nothing about that's not an irregularity that's a new contract that the city council knew nothing about the right and in this case they the city council approved a contract that said and again we're back to console and agency principles the principles words are set forth in the contract in the contract says you are to be paid four hundred thirty six thousand three hundred ninety two dollars if you need more money than that section two point one two says you have to come back for an amendment to the contract it speaks to the contractor through the contract finally your honor i see that my time is finished if i may just say that if the appellate court's ruling in the case that bar is allowed to stand in for stability of contracts will become an option instead of an obligation and employees secondly with regard to the project representatives authority which i think is what your question is that is defined in the contract as printed out for the first time in these proceedings by the plaintiffs section three point six of the contract defines with specificity what the project representatives obligations and authority is under the contract and it specifically says that project representative debbie cresswell beth lang had the authority to receive information interpret and define the city's policies and decisions with respect to the work covered by the agreement and transmit directions transmit instructions there was no authority in that section whatsoever to approve additional services honor as as i said at the beginning this contract is forty nine pages long it was written so that everything possible would be clear that could be clear so the actual responsibilities of the project representative are spelled out they are to transmit instructions receive information and interpret city policies that simply does not give them the authority to amend the contract only  will be able to fix and citizens will fall and people will be hurt it doesn't work that way construction contracts are different breed than professional services contract contingencies are built ten for those kinds of situations we don't allow gaping holes in the road for citizens to fall into thank you thank you may please the court food can some have patrick engineering while naperville continues to argue that your public or created new law that is just incorrect the second district did nothing more than apply current l said it didn't say patrick and jerry's going to win on the issue of equitable stoppel always said was we don't have the facts and we need those facts before we can rule we can go anywhere with it in fact they will sites twenty cases an equitable stop twenty each one of those cases is after discovery or after the opportunity interview the witnesses after a full record now one of those cases is a motion  only after an opportunity interview the witnesses and the plaintiff decided not to do discovery but other than that every one of them is after a full complete record the city had the authority to change the contract either a dark through change orders who had the approval who has to approve it the city is not set forth in the contract and you heard about a stipulation and there was a stipulation the stipulation however did not say that no one had authority to prove the change or the stipulation was the city council never acted that's a complete different that's not what that's what the stipulation was the city council never approved the whether it be for additional services or for a change order section three list certain responsibilities of the city clearly all of these are not to be completed by the city council for example the city shall provide for information as a certain things city shall provide showplace all available info at the consultant disposal shall make always more efforts to provide access to enter upon public and private lands provide legal accounting and insurance consulting services those are all quote city duties none of us expected the city council is going to physically do especially by a vote every month or every other week whatever they me that's not how this works it's not how the real work or world works and that's what city services and kenny and great lakes talk about the real world there's an ambiguity in this contract out there for it's forty nine pages of two hundred fifty pages we've all seen contracts that are long that have an ambiguity the ambiguity is who is the city know what the city told us that we had to go to the city council for th well we just heard for the first time who this project representative was this is the first time i've heard that because we have not had discovery and i've kind of heard two different names and i'm not sure which it is but we know miss queso said budget want to go through a review and necessary changes will be that's what we heard from her the project representative in three point six find exact language is also has the ability to define the city's policies and decisions and i think of transmit instructions that's the people we deal with on a daily basis we take our orders from them just like in great lakes just like kenny just like and stay when the person on the in the field on the job takes their instructions from there the person who is their project representative we took our instruction from that project representative and honestly that these are all very honest questions and you know they're important questions but there are questions that should be decided after facts after we get this cover which we were not allowed to have we sent out a written discovery and then they responded by saying we're not respond the court then brokered the stipulation after it said you know we're not going to give you this discover that's where we work and the stipulation says very few things we were not given discovery we were not allowed to proceed with discovery we don't know what documents the city has since this was means that type of absolutely reads if you review city services and i'm sure you all have or will it that statement that mr ford makes about it has to say who has the authority that's not anywhere in city services city services has two  already it doesn't say that that's the entire statement of the elements we don't have to say that particular person it doesn't require us to and in fact until i said here today i didn't know who the yes and all those people we most of the people we suggest were aware and had knowledge and were part of this process the quick three point six project representative is really what's not real clear i mean we were taking our direction from that request so you know who we thought was the project manager there's other people in titles involved but i can't as i sit here really tell you what the real pecking order is at the city in naperville that's not our responsibility and until we have full discovery we were really not nefesh to do that and that's kind of the problem which goes back to this commerce original question you can see that there must be an already yes and i think we conceded that early on whether that's express or implied is a different issue because there's and then you know i'm not sure it's real clear whether it's express paragraph thirty five of the opinion that patrick's allegations raised the reasonable inference that people were the people involved in managing the project for the city and that was enough to state a claim not proof the claim and write a that's right below the word and that's what the that's what the public or relied on actual stories express or implied versus apparent and we're not suggesting a parent organization and i think we've that's where this case kind of got here i think i think the city said well this is doesn't section two point one answer the question whether or not you're going to receive actual of forty because just as government asked you the question about section two and i didn't hear a clear cut answer on that i needed to the next to the last sentence the first paragraph and two point one says unless you hear something a contract deems that it's been rejected you request for additional services and honestly that's the same kind of contract provisions that are in kenny that are in great lakes that specific site not that specific sense but the sentence that says any approval unless you get it from the city council by a vote is not it is not it is not going to stay one says that which this court accepting cited with approval in k county says that great lakes could say that all three cases are cases where the the the contract says you gotta get approved by the city council otherwise it otherwise the approvals void and all three cases this court in hippo court said you know what we cannot allow cities whomever to watch stand idly by after they induce the action and then say afterwards hey guess what we're not going to pay and that's the ratification concept it's talked about great lakes county and state well i'm not understanding your comments and the answer to my question i was on the sentence that says failure of the city to respond as set or is deemed to be rejection of mean that's the contract of the parties in this case regardless of what happened in any other case and i pick in this case and this contract the party did respond queso responded to the city respond they hat is the city that's our project representative and as i said earlier you cannot say you look at those sectors other things in section three where they use the word city the city council did not was not expected to do any of those things where your position  i don't think so and i'll tell you why i think there's enough clearly they need actual authority i've admitted that ok the word appear maybe that needs to be cleaned up in a decision i'd leave that to you much more it's much more your belly work than mine but we don't have that out we haven't had that opportunity and as i said earlier all of the cases cited by the city are not number pleading cases none of them are before facts questions are number four that the facts are explored we didn't get one document from the city winning one deposition we asked for deposition of the person who for submitting an affidavit we didn't get that we were all we have was the stipulation the judge eleanor said will you agree to and that's where we gets that's where we went forward with but we kept continuing asterisk over it and never got it and that's the problem in this case and that's why this case is too early to actually determine i may lose this case i don't think i will but i may but i need but it has to be after a full record not not based on pleadings where we meet the elements of city services and just to clarify in the earlier question i asked i asked whether you had to  the the main case that the city relies on its heels is the same case the trial court relied upon the problem with wilson massey is nelson massey is a void contract it was void of michel because it was based on contract that was entered into without any prior appropriation the city has admitted there is some appropriation here we don't know how much and that's kind of a red herring this is a dish one there seven because again we don't have no discovery i represent many local government bodies as you know the city has their own corporate council made those bodies do not some do turning on what department do not appropriate by project or by contract we appropriate b we appropriate by division is we appropriate by funds and we didn't have that opportunity i'm sorry just a psychologist just a record other i think of it is not of record but it's not of record what naperville does either if you look at the cases however the cases say that you can appropriate on a much broader if you look at any public records the state of illinois appropriate for i doubt for the whole department it doesn't appropriate for you know i to ninety year i wherever it may be the city also suggest that tries to add a second element and actually add a few elements that i have never seen before in any cases that this court has come up with and that is compelling circumstances again that's a factual question whether they're comparing see among circumstances no ability to know the facts again a question of a factual question none of which are actually elements in the cause of action of equitable stubble in any case that i've ever read or that the city points out there are things that the court takes into account but they're not actually means i want to miss correct a little something that was in the record here the pilot area the city did not accept it patrick makes the allegation that it was finished it was city of bellevue the case that was cited by council is where the denim was not appropriate for that was an actual union contract that is a much different situation than what you have here i don't think anyone could ever say that i could that the city mayor could raise the rates of a union contract without having to go to the city for full approval in my state contract to specifically allowed it the conclusion patrick inclusion in this issue hedrick has set forth and put every element of an equitable stop a claim and must be allowed to proceed to discovery so the trial court can properly determine if the court is improper if the city has improperly accepted the benefits of patrick's work that it induced through its own affirmative acts as for account stated  county is a claim that's little more than a form of proving damages for a promise to pay we don't say that it's own action that without and neither did the appellate court it's really just once you show  whether i don't know that an account stated requires a certain amount owed i'm not sure i've ever seen a case that says that what the case law is i've seen says that the it's a meeting of the mines and in fact most of part says for example were a statement account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection the retention of a statement account within a reasonable time constitutes an acknowledgment and recognition by the letter of the correctness of the account and somehow a measure of damages as a ploy it lies to the equitable stop look as it applies to all the claims we have other we have a contract claim we have that is not being appealed we have a quantum error what claim that's not being appealed or it's not an appeal to those doesn't sound like it's not important whether the account prevails or not well i think it's important because it goes to the issue of damages and the amount of damages i'm not saying that we have a claim that just because we sent him an invoice we have a claim that irrespective of anything stands because i don't think that's a fair statement of the law but even without that count my point would be you're still going to have a way of proving up your damages an irrevocable stop going if allowed to go forward correct but i think we have the right to proceed on the account stated claim because for at least fifteen months and had never refuted um you never responded there's nothing well maybe i can't i don't have any record of them doing that nor is that in the case because we have no discovery but we pled that they had them and never  thank you justice mr looking hans pointed out that he is pleading actual authority in this case which means implied or express if the wording under the law in the state of illinois as it relates to principal agency principles generally the case law is so extensive that it's kind of shocking to say that to hear that there is no case law that says there has to be express authority there has to be express authority to bind public i offer to settle this case for three million dollars they say that's a great deal i'll accept that i believe i have implied authority to make that offer i work for the city i'm working on this case i am a senior systems city attorney i made the representation that we could settle this case for three million dollars in fact i have no such authority but under the appellate court's decision in this case we'd certainly have a lawsuit over whether or not i had that authority and there might even come a day where the city of naperville has to pay three million dollars because i made that assertion that's implied authority that's a danger of implied authority is by virtue of the position of the person who's talking so if a city inspector is speaking if the finance director is speaking if the head of the department of public works is speaking all those people have positions and authority that would appear to go with those positions they will all be allowed to buy into the public body by their statements it's an incredibly dangerous place to be and it's why there are so many cases that stand for the for the proposition that there has to be express authority and it's why we took this appeal it's why it's important that this case be decided didn't have any means of knowledge as to whether or not the city employees had the authority to buy in the city they might have been into title to discovery on that point in this case obviously it wasn't necessary because they didn't plead it in the first place and you really don't get discovery on something you don't plead secondly they stipulated you and i have a stipulation here for the purposes of the motion to dismiss and solely for the purpose of the motion to dismiss there was no authority given to patrick engineering by the corporate authorities that patrick engineer perform work and then that the building department or someone in the building department knew patrick engineering was performing that work and they were never told to stop they did stipulate that there was no corporate story and in the absence of corporate authority the project managers didn't have that authority either so discovery in this case wasn't necessary as to as to plaintiff's allegation that they didn't know who the project representative was crustal who is the project manager so they have alleged that they know who the project manager is and it's kind of surprising to hear today and in their briefs that they didn't know who that was but most importantly today answer your construction case and they were changed conditions and more importantly there was knowledge the sanitary district in that case had knowledge the contractor wrote them for letters the president of the sanitary district wrote w with the contractor and told the contractor whatever the chief engineer says is agreeable we'll do it too and on top of that they paid part of the additional costs that the contractor informed them would be necessary in order to cope with the change condition so for all of those reasons the supreme court and county said you know we have knowledge and we have waiver and and the senator district can't back out of it now we didn't have any of those things in this case it's not at all similar moreover in the kenney case there was ambiguous language as to whether or not it was necessary to obtain authority of the senator district and the court how that in conjunction with the partial payment for the additional services that the contractor was entitled to rely upon that as a contemporaneous transaction and therefore it would assume that the rest of its additional costs would be paid to none of the plaintiffs costs for additional costs were paid in this case the city didn't know about th m they couldn't have paid them finally in kenny the court specifically noted that the contract language is unique to this case and no general principles of agency law should be drawn from it in the  sailing we had a construction contract and in that case the contract had to inconsistent provisions one said that any extra work had to be authorized in writing by the architect and first approved by the board and another said that the architect had the ability to approve extras that would benefit either the contractor or the city specifically again in that case the board had knowledge and there was partial payment and again we had acquiescence and ratification we don't have that in this  case council mentioned something about the city agreed that there was an operation that's not in the record that's not that and as to whether or not they could have found out if there was an appropriation we are a public body and all of our records are public and subject to the freedom of information act if you can't find them on line i'm going to have to ask the court to stand on our account stated brief we thought just two things there was no there could have been no meeting of of the minds on these additional services you just heard why there was no meeting of the minds on account state it was applied for this case secondly the court of appeal seems to admit the the appellate court seemed to admit the requirement that there has to be an original liability it said on the account stated just go back and find out if the city disputed the invoices and if they didn't you've got an account stated that's not the law of account stated and it can't be allowed to create an original liability that's really why we appealed that version of the decision finally your honors it is critical that public bodies not be bound by the apparent or implied authorities of their employees public bodies serve the taxpayers we don't  we don't make a profit the city of naperville has nine hundred ten employees it public which decision in this case is allowed to stand every time one of those employees writes a letter or has conversation or sends an email it could be claimed that they made a representation upon which someone is allowed to rely to their detriment and sue an equitable stoppel and the city and the taxpayers will be bound by it this result is not compatible with a framework in which public bodies are required by law to exist in the state first of all and most importantly the corporate authorities are elected by the taxpayers and they are to make the discretionary decisions not the city upon the representations of the strategic services manager the prior appropriation statute requires a prior post appropriation be made for any contract or expense under the public quits decision that will be literally impossible because if you don't know that a liability exists you can't possibly appropriate for next the public supposed to be able to know what yes she already wrote your time is expired but don't leave yourself freeman has maternity leave it became back way and they put it in their complaint just as they knew who it was they did you indicated earlier that that person is identified in the contract the project representative and their duties are identified in section three of the if they were unclear about whichever it was first of all your honor i would take exception with the discovery was not allowed statements and secondly yes they can obtain freedom of information act requests outside of discovery and third there were over one hundred documents attached to their complaint with their page of documents that were paying them the freedom of information but quickly they would have been able to ascertain whether or not a prior appropriation had been made your honor justice they would have been able to know whether or not additional service certainly they knew additional services had been approved they knew that the extent of the border the contract because they are they proposed the amount of the contract to section two the city filed an affidavit saying no you didn't you never asked you never tent authority there was no compliance with section two whatsoever they sought discovery on the entire case and we didn't agree and the court did broker the exactly what amounts would be paid and what had been paid they didn't use that they wanted discovery from all of the employees not just the person who provided the affidavit we had long sessions over the extent of discovery that would be requested by plaintiffs it wasn't just with respect to the affidavit otherwise we would have had a problem you referenced the situation what was the stipulation the stipulation was brokered between the parties by the trial court for the purposes of the city's motion to dismiss there were three parts to it a fourth part that dealt just with quantum airway the three parts were that the quicker to authorities of the city of naperville did not approve additional services outside the scope of the contract that the city employ somebody in the building department knew that additional services were being performed and that person did not stop the plaintiff from performing their services for the purposes of quantum marriage a fourth part of the stipulation had to do with benefit thank you are there any