Docket No. 89963–Agenda 24–March 2001.

THE VILLAGE OF BLOOMINGDALE, Appellant, v. CDG 

								ENTERPRISES, INC., Appellee.

Opinion filed June 21, 2001.

	JUSTICE THOMAS delivered the opinion of the court:

	This case arises from the Village of Bloomingdale’s denial of

a zoning petition submitted by CDG Enterprises, Inc., and presents

two issues for our review. First, whether the Illinois Constitution

permits imposition of the common law “corrupt or malicious

motives” exception to certain immunities afforded by the Local

Governmental and Governmental Employees Tort Immunity Act

(Tort Immunity Act or Act) (745 ILCS 10/1–101 et seq. (West 1998)). Second, whether a claim for quasi-contract is proper under

section 2–101(a) of the Act (745 ILCS 10/2–101(a) (West 1998))

and whether the counterplaintiff alleged sufficient facts for this

court to impose a quasi-contract remedy. For the reasons set forth

below, we hold that the Illinois Constitution prohibits the insertion

of the common law “corrupt or malicious motives” exception into

the immunities provided by the Act. In addition, we hold that,

though section 2–101(a) of the Act, which preserves municipal

liability for contract, does not contemplate the remedy of quasi-

contract, the counterplaintiff has failed to sufficiently assert a claim

for that remedy. Accordingly, we reverse the appellate court.

BACKGROUND

	Plaintiff, the Village of Bloomingdale (Village), sued CDG

Enterprises, Inc. (CDG), in the circuit court of Du Page County,

for breach of contract alleging that CDG had not paid for services

the Village had provided in reviewing its petition for rezoning and

site plan approval. CDG, as counterplaintiff, answered and filed

two counterclaims, one for tortious interference with business

expectancy and another for recovery under a quasi-contract theory.

These counterclaims are at issue in this appeal.

	In support of both counts, CDG alleged the following facts,

which we will take as true for purposes of this appeal on the

Village’s motion to dismiss. See Fireman’s Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 161 (1997). CDG was the contract purchaser of five parcels of land adjacent to the Village of

Bloomingdale. In March 1995, CDG petitioned the Village’s

planning commission to annex the five parcels into the Village and

rezone them so that CDG could build a subdivision. CDG’s

representatives met with the Village’s land planner and other

officials, including the Village mayor, who allegedly told CDG that

the project would be approved. Between April and October 1995,

CDG repeatedly appeared before the Village planning commission

for public hearings on its petition.

	CDG further stated that, in June or July 1995, the Village

allegedly: secretly formed a “task force” in order to pursue the

acquisition and development of a golf course, which was adjacent

to the five parcels; commissioned Planning Resources, Inc., the

Village’s consultant in charge of reviewing CDG’s petition, to

prepare a plan to redesign the golf course so that some of the holes

would be on the property CDG intended to acquire; and secretly

met with other individuals to create opposition to CDG’s plan. In

August 1995, the Village planning commission voted down CDG’s

project, with the chairman allegedly pressuring other members to

vote against it. Then, in October 1995, the Village’s board of

trustees voted down CDG’s petition at a public hearing. Soon

afterward, the Village publicly revealed that it planned to acquire

the golf course, and later did so. In addition, one of the parcels was

allegedly bought by individuals “closely aligned with certain of the

Village’s officials.” CDG has not claimed that the Village itself

acquired any of the five parcels which CDG had intended to

purchase.

	CDG further alleged that its petition met all the Village’s

requirements for rezoning and annexation; that CDG took all the

action the Village required; that CDG had spent heavily in reliance

on its meetings with the Village; and that, after the Village denied

the petition, CDG had to cancel its purchase contracts and forfeit

some of what it had paid. CDG’s projected gross profits from the

project were $4.8 million.

	Count I of the counterclaim alleged that the Village

deliberately frustrated CDG’s business expectancy by secretly

working to force CDG out of the planned development. While ostensibly reviewing CDG’s petition, the Village allegedly planned

all along to develop the adjoining golf course and help cronies of

certain Village officials purchase one of the five parcels. Count II

alleged that, when CDG filed its rezoning petition and paid the

required fee, the Village became obligated through quasi-contract

to process CDG’s petition reasonably and in good faith, which it

failed to do. CDG never stated what the Village or any of its

employees gained by their alleged misconduct. Both counts sought

in damages the projected gross profits of $4.8 million.

	The Village moved to dismiss the counterclaims pursuant to

section 2–619(a)(9) of the Code of Civil Procedure (the Code)

(735 ILCS 5/2–619(a)(9) (West 1998)). It asserted sovereign

immunity based on various provisions of the Tort Immunity Act

(see 745 ILCS 10/2–103, 2–104, 2–106, 2–109, 2–201, 2–205

(West 1998)). The trial court dismissed the counterclaims, holding

that both were barred by the Village’s sovereign immunity under

the Act. The Village then voluntarily dismissed its complaint, and

CDG appealed.

	Before the appellate court, CDG argued that (1) the Tort

Immunity Act did not bar its counterclaims because the Act does

not immunize governmental actions undertaken for “corrupt or

malicious motives”; and (2) the Act did not bar the second count

for quasi-contract because section 2–101(a) of the Act (745 ILCS

10/2–101(a) (West 1998)) specifically preserves municipal liability

based on contract.

	The appellate court reversed the trial court and held that

CDG’s tort claim could proceed under the Act. The court rejected

the Village’s affirmative defenses and held that the general grants

of immunity afforded by the Act are limited by the common law

exception for “corrupt or malicious motives.” 314 Ill. App. 3d 210,

214-15. The appellate court also reversed the trial court as to the

second count and held that the Village could be held liable in quasi-

contract to process CDG’s petition in good faith and according to

its usual procedures, and that that claim fell under section 2–101(a)

and was, therefore, not barred by the Act. 314 Ill. App. 3d at 215.

	The Village appealed and we granted review of both issues

under Rule 315(a) (177 Ill. 2d R. 315(a)). Since the trial court

dismissed CDG’s counterclaim under section 2–619(a)(9) of the Code (735 ILCS 5/2–619(a)(9) (West 1998)), our review is de novo. Henrich v. Libertyville High School, 186 Ill. 2d 381, 386 (1998).

ANALYSIS

I. The Tort Immunity Act

	Traditionally, a governmental unit in Illinois was immune from

tort liability pursuant to the common law doctrine of sovereign

immunity. In 1959, however, this court abolished the doctrine in

Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 25 (1959). Then, in response to Molitor, the legislature in 1965 enacted the Tort Immunity Act (745 ILCS 10/1–101 et seq. (West 1998)). Under the Act, Illinois adopted the general principle that

local governmental units are liable in tort, but limited this liability

with an extensive list of immunities based on specific government

functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506 (1990). Finally, in 1970, the state adopted a new constitution

and with it a new provision regarding sovereign immunity. Article

XIII, section 4, of the 1970 Constitution states: “Except as the

General Assembly may provide by law, sovereign immunity in this

State is abolished.” Ill. Const. 1970, art. XIII, §4. Today,

therefore, the tort liability of a local public entity or employee is

expressly controlled both by the constitutional provision and by

legislative prerogative as embodied in the Tort Immunity Act.

Burdinie, 139 Ill. 2d at 507.

	The purpose of the Tort Immunity Act is to protect local

public entities and public employees from liability arising from the

operation of government. 745 ILCS 10/1–101.1(a) (West 1998).

“By providing immunity, the legislature sought to prevent the

diversion of public funds from their intended purpose to the

payment of damage claims.” Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The Tort Immunity Act grants only immunities and defenses; it does not create duties. 745 ILCS

10/1–101.1(a) (West 1998). “Rather, the Act merely codifies those

duties existing at common law, to which the subsequently

delineated immunities apply.” Barnett v. Zion Park District, 171 Ill. 2d 378, 386-88 (1996) (finding that park district owed plaintiff a common law duty of reasonable care); In re Chicago Flood Litigation, 176 Ill. 2d 179, 192 (1997) (“governmental units are liable in tort on the same basis as private tortfeasors unless a tort

immunity statute imposes conditions upon that liability”); Bubb, 167 Ill. 2d at 378; West v. Kirkham, 147 Ill. 2d 1, 14 (1992); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412 (1991). The existence of a duty and the existence of an immunity, therefore, are

separate issues. Barnett, 171 Ill. 2d at 388. Once a court determines that a duty exists, it then addresses whether the

governmental unit or employee is immune from liability for a

breach of that duty. See Barnett, 171 Ill. 2d at 388. In other words, because the Act implicitly recognizes duties which already exist at

common law, we may refer to the common law to determine the

duties a local public entity holds. But to determine whether that

entity is liable for the breach of a duty, we look to the Tort

Immunity Act, not the common law.

II. CDG’s Counterclaim in Tort

	This court has already established a significant line of

precedent regarding the existence of common law exceptions to

immunities granted by the Act. The first case relevant to our

discussion is Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), where we considered whether the Act afforded immunity to a park

district from a claim arising from the drowning of a 10-year-old

boy in the district’s pool. The district claimed immunity under

section 3–108(a), which provides in relevant part that, “neither a

local public entity nor a public employee is liable for an injury

caused by a failure to supervise an activity on or the use of any

public property.” 745 ILCS 10/3–108(a) (West 1992). The plaintiff

alleged that the boy drowned in the vicinity of six lifeguards despite

requests for help by bystanders and, therefore, the park district was

liable for “willful and wanton misconduct.” Barnett, 171 Ill. 2d at 391.

	In dismissing the plaintiff’s claim in Barnett, we held that though the district owed the child a common law duty of

reasonable care, it was immune under section 3–108 from liability

for breaching that duty. Barnett, 171 Ill. 2d at 388, 391-92. We observed that when the legislature intended to limit an immunity to cover only negligence and not willful and wanton misconduct, it

had “unambiguously done so.” Barnett, 171 Ill. 2d at 391, citing e.g., 745 ILCS 10/2–202, 2–210, 3–106, 3–109(c)(2), 4–105, 5–103(b), 5–106 (West 1992). Unlike those instances, however,

the plain language of section 3–108 contained no exception for

willful and wanton misconduct. We reasoned that “[s]ince the

legislature omitted such a limitation from the plain language of

section 3–108, then the legislature must have intended to immunize

liability for both negligence and willful and wanton misconduct.”

Barnett, 171 Ill. 2d at 391-92. We concluded, therefore, that “given the full immunity provided by the legislature in the

unconditional language of section 3–108” of the Act, the park

district was immune from liability. Barnett, 171 Ill. 2d at 393. See also West v. Kirkham, 147 Ill. 2d 1, 6-7 (1992) (declining to insert notice requirement as a “substantial limitation on the immunity of

section 3–104 where none exists”).

	Likewise, in In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), we held that the City of Chicago was immune under

section 2–201 of the Act for its alleged failure to supervise the

construction work of a contractor on city bridges and for its failure

to warn local residents of the resulting water damage and to repair

the damage. Chicago Flood, 176 Ill. 2d at 192, 195-97; see 745 ILCS 10/2–201 (West 1998). Section 2–201, which is at issue in

this case, provides that, “a public employee serving in a position

involving the determination of policy or the exercise of discretion

is not liable for an injury resulting from his act or omission in

determining policy when acting in the exercise of such discretion

even though abused.” 745 ILCS 10/2–201 (West 1998). In

Chicago Flood, we based our holding on the same rationale as set forth in Barnett and reasoned that since the plain language of section 2–201 did not contain the common law exception to

immunity for “willful and wanton misconduct,” the employee, and

consequently the City, were immune from liability. Chicago Flood, 176 Ill. 2d at 196.

	Next, in Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998), we addressed sections 2–109 and 2–201 of

the Act with regard to the liability of the City of Chicago and its

employee, a fire marshal. See 745 ILCS 10/2–109 (West 1998) (providing that a local public entity is not liable “for an injury

resulting from an act or omission of its employee where the

employee is not liable”). The plaintiff in Harinek alleged that the City of Chicago fire marshal negligently conducted a fire drill and

that the fire marshal’s conduct was “willful and wanton.” Harinek, 181 Ill. 2d at 338. We held that the fire marshal’s conduct

constituted acts or omissions in determining policy and exercising

discretion under section 2–201. Harinek, 181 Ill. 2d at 342-43. We further held that section 2–201 did not contain an exception for

“willful and wanton misconduct” and, pursuant to Chicago Flood, therefore, such a claim was barred by the City’s immunity under

the Act. Harinek, 181 Ill. 2d at 347, citing Chicago Flood, 176 Ill. 2d at 196.

	Finally, in Henrich v. Libertyville High School, 186 Ill. 2d 381 (1998), we again followed the plain language of the Act and

declined to recognize the common law exception for “willful and

wanton misconduct” in the immunity afforded to local public

entities and employees under section 3–108. Henrich, 186 Ill. 2d at 395; see 745 ILCS 10/3–108 (West 1998).

	We turn now to the instant case, where CDG asks that we

impose the common law exception for “corrupt or malicious

motives” onto certain provisions of the Act. Based on the

foregoing precedent, we think it obvious that, just as the Act does

not contemplate an exception to immunity for “willful and wanton

misconduct,” unless it expressly provides for such, the Act does

not implicitly contemplate the common law exception for “corrupt

or malicious motives.” None of the provisions on which the Village

relies expressly recognize an exception for conduct inspired by

“corrupt or malicious motives.” See 745 ILCS 10/2–103, 2–104,

2–106, 2–109, 2–201, 2–205 (West 1998). It is well settled that

“[w]here an enactment is clear and unambiguous a court is not at

liberty to depart from the plain language and meaning of the statute

by reading into it exceptions, limitations or conditions that the

legislature did not express.” Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). See also Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 508 (2000); Henrich, 186 Ill. 2d at 394- 95; Chicago Flood, 176 Ill. 2d at 193; Barnett, 171 Ill. 2d at 388- 89. Therefore, because the plain language of these provisions does not contain an exception for “corrupt or malicious motives,” we

will not insert one.

	Moreover, if this court were to recognize an exception for

“corrupt or malicious motives” where none exists at all in the Act,

we would be venturing into the province of the legislature and

violating the separation of powers. As we explained in Harinek,

		“[W]hen a court finds *** that the General Assembly has

granted a public entity immunity from liability, the court

may not then negate that statutory immunity by applying

a common law exception to a common law rule. Doing so

would violate not only the Illinois Constitution’s provision

governing sovereign immunity (Ill. Const. 1970, art. XIII,

§4), but also the Constitution’s separation of powers

clause, which provides that no branch of government ’shall

exercise powers properly belonging to another.’ Ill. Const.

1970, art. II, §1.” Harinek, 181 Ill. 2d at 346-47.

See also Michigan Avenue, 191 Ill. 2d at 522, quoting People v. Garner, 147 Ill. 2d 467, 475-76 (1992) (“ ‘Under the doctrine of separation of powers, courts may not legislate, rewrite or extend

legislation. If the statute as enacted seems to operate in certain

cases unjustly or inappropriately, the appeal must be to the General

Assembly, and not to the court’ ”). If the legislature had intended

to include an exception for “corrupt or malicious motives,” it

would have done so. Indeed, it has recognized exceptions

elsewhere. In section 2–202, for example, the legislature granted

immunity to a public employee for an “act or omission in the

execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” (Emphases added.) 745 ILCS 10/2–202 (West 1998). In section 3–106, the legislature

again recognized an exception to liability for willful and wanton

misconduct. 745 ILCS 10/3–106 (West 1998). The legislature has

recognized exceptions to its grants of immunity and enumerated

these exceptions in the plain language of the Act. See, e.g., 745 ILCS 10/2–202, 2–203, 2–208, 3–106, 3–109(c)(2), 4–105,

5–103(b), 5–106 (West 1998). On the other hand, no provision of the Act contains an exception for “corrupt or malicious motives.”

We will not adopt the legislative prerogative to insert such an

exception and, therefore, decline to impose the common law “corrupt or malicious motives” exception onto the immunities

claimed by the Village in the instant case.

	The appellate court in this case held that the conduct

complained of by CDG did not even fall within any of the specific

government functions immunized by the Act. It reasoned that CDG

was “not complaining of the denial of its petition per se but, rather, of the Village’s abuse of the governmental process and power to

hijack [CDG’s] plans.” 314 Ill. App. 3d at 214. CDG’s claim was

really about the “corrupt misuse of the Village’s power to steal

away the expected benefits of [CDG’s] plans to develop the

property.” 314 Ill. App. 3d at 215. The “gravamen” of CDG’s

claim, in other words, was the “Village’s theft of [CDG’s]

opportunity.” 314 Ill. App. 3d at 213-14.

	The appellate court’s characterization of CDG’s claim is

mistaken because it ignores the plain language of the Act. Under

section 2–104 of the Act, for example, local public entities are

immune from liability for “injury caused by the *** denial ***, or

by the failure or refusal to issue *** any permit, license, certificate,

approval, order or similar authorization where the entity or its

employee is authorized by enactment to determine whether or not

such authorization should be issued [or] denied.” 745 ILCS

10/2–104 (West 1998). The Village’s denial of CDG’s rezoning

petition is precisely what the legislature intended to immunize such

entities from. CDG attempts to avoid this result by claiming that it

really challenges the process by which the Village denied its petition, not the mere fact that it was denied. But whether the

Village denied the petition through an “abuse of official process

and power,” through “corrupt and malicious misuse of power,” or

for “corrupt or malicious motives,” as CDG claims, is wholly

immaterial to CDG’s claim in tort. It is immaterial because section

2–104 contains no reference to intent whatsoever and, again, it

certainly does not contain an exception for “willful and wanton

misconduct” or “corrupt or malicious motives.”

	As another twist on the above argument, CDG attempts to

frame its attack on the process by which the Village denied its

petition by labeling the denial a “ministerial task.” CDG alleges that

the Village’s course of conduct was a “deviation from the standard of usual and customary zoning procedures,” and that the Village is

not immune for its improper performance of this ministerial task.

	CDG correctly asserts that though a municipality is immune

from liability in its performance of discretionary tasks, it cannot

claim immunity for the improper performance of ministerial tasks. Chicago Flood, 176 Ill. 2d at 193-94. In fact, the discretionary immunity doctrine is codified in sections 2–109 and 2–201 of the

Act, which provide that “a public employee serving in a position

involving the determination of policy or the exercise of discretion

[and, thereby, the local public entity,] is not liable for an injury

resulting from his act or omission in determining policy when

acting in the exercise of such discretion even though abused.” 745

ILCS 10/2–109, 2–201 (West 1998); Chicago Flood, 176 Ill. 2d at 193-94. As this court has previously explained:

		“ ‘Official action is judicial where it is the result of

judgment or discretion. Official duty is ministerial, when

it is absolute, certain and imperative, involving merely the

execution of a set task, and when the law which imposes

it, prescribes and defines the time, mode and occasion of

its performance with such certainty, that nothing remains

for judgment or discretion.’ ” Chicago Flood, 176 Ill. 2d at 194, quoting City of Chicago v. Seban, 165 Ill. 371, 377-78 (1897).

We have never held, however, that the grant or denial of a zoning

petition is a ministerial, as opposed to a discretionary, task under

a tort theory of liability. Therefore, CDG’s argument is misplaced.

Moreover, section 2–104 plainly grants immunity for injury caused

by the “denial [of] any permit” and is, therefore, controlling. (Emphasis added.) 745 ILCS 10/2–104 (West 1998).

	In addition, if there were a “theft of [CDG’s] opportunity” by

the Village, as the appellate court found, that “theft” came in the

form of the denial of CDG’s petition. That the Village denied

CDG’s petition is the reason this matter is before us. Such an

action by the Village falls squarely within section 2–104 of the Act

because the Village and its officials were authorized to either grant

or deny CDG’s petition for rezoning and site plan approval.

Clearly, the legislature did not intend to grant an empty immunity

to local public entities when they denied “permits” such as zoning petitions. See State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541 (1992) (“a court construing the language of a statute

will assume that the legislature did not intend to produce an absurd

or unjust result”). CDG alleged that it was injured by the denial of

the petition; we hold, therefore, that pursuant to the Act the

Village is immune from liability for any injury resulting from that

denial.

	Likewise, the Village is immune from liability for any injury

resulting from the mayor’s alleged assurance that the project would

be approved. Under section 2–106 of the Act, the Village is not

liable for an injury “caused by an oral promise or misrepresentation

of its employee, whether or not such promise or misrepresentation is negligent or intentional.” (Emphasis added.) 745 ILCS 10/2–106 (West 1998). And section 2–109 provides that a local

public entity is not liable where its employee is not liable. 745 ILCS

10/2–109 (West 1998). CDG claims that, in reliance on its

meetings with the Village and the mayor, it spent a good deal of

money and, when the Village denied the petition, it had to cancel

its purchase contracts and forfeit some of what it had paid. Section

2–106, however, immunizes the Village from liability for any injury

resulting from another’s reliance on an employee’s oral promises

or misrepresentations. 745 ILCS 10/2–106 (West 1998). In fact,

that section expressly immunizes the Village even when the

promise or misrepresentation is “intentional.” 745 ILCS 10/2–106

(West 1998). CDG’s tort claim falls within the purview of sections

2–104, 2–106, 2–109, and 2–201 of the Act; therefore, the Village

is immune from liability.

	CDG’s heavy reliance on the opinion of the Appellate Court,

Second District, in River Park, Inc. v. City of Highland Park, 281 Ill. App. 3d 154 (1996), is misplaced. In River Park, the appellate court held that a municipality was not shielded from liability for conduct that was “corrupt, malicious, or otherwise undertaken in

bad faith” under the immunity granted by section 2–104 of the Act.

River Park, 281 Ill. App. 3d at 163. However, not only did the court in River Park not have the benefit of this court’s holdings in Chicago Flood, Harinek, and Henrich, but the rationale of River Park was based on a case that originated before the 1970 Constitution. In that decision, Young v. Hansen, 118 Ill. App. 2d 1 (1969), the Second District adopted the common law exception

of “corrupt or malicious motives” as an exception to the Act.

Young held that the “immunity afforded by section 2–201–while not expressly referring to the question of malice–extends only to

those types of acts not resulting from corrupt or malicious

motives.” Young, 118 Ill. App. 2d at 8. Since then, the Second District has followed the Young holding to recognize the “corrupt or malicious motives” exception to other grants of immunity by the

Act. See River Park, 281 Ill. App. 3d at 163; Madonna v. Giacobbe, 190 Ill. App. 3d 859, 868 (1989) (recognizing corrupt or malicious motives exception to sections 2–103, 2–201, and

2–205); Idlehour Development Co. v. City of St. Charles, 88 Ill. App. 3d 47, 52 (1980) (recognizing corrupt or malicious motives

exception to sections 2–201 and 2–206 of the Act).

	Since 1970, however, the authority of the General Assembly

to legislate with regard to governmental immunity has derived

directly from the Illinois Constitution. The Constitution was

amended to abolish sovereign immunity “[e]xcept as the General Assembly may provide by law.” (Emphasis added.) Ill. Const.

1970, art. XIII, §4. “Therefore, the tort liability of a [local public

entity] is expressly controlled by constitutional provision and legislative prerogative as embodied in the [Act].” (Emphasis

added.) Burdinie, 139 Ill. 2d at 507. Tort liability of local public entities is no longer controlled by the common law because the

adoption of article XIII, section 4, in 1970 wholly displaced the

common law doctrines of municipal tort immunity. Calloway v. Kinkelaar, 168 Ill. 2d 312, 335-36, 339 (1995) (Freeman, J., specially concurring). See also Michigan Avenue, 191 Ill. 2d at 519 (reasoning that the “legislature has the inherent authority to repeal

or change the common law and may do away with all or part of

it”). Governmental tort immunity has become a matter of statute

and the “General Assembly [was made] the ultimate authority in

determining whether a unit of local government is immune from

tort liability ***.” Burdinie, 139 Ill. 2d at 510.

	Young was decided before article XIII, section 4, of the 1970 Constitution; therefore, its rationale of drawing from the common

law doctrine of sovereign immunity to interpret the Tort Immunity

Act is improper. Moreover, it appears that the constitutional issue was never presented to the appellate court in River Park. Young and its progeny, including River Park, are hereby overruled.

	Based on these considerations, we reverse the appellate court

and affirm the trial court’s dismissal of CDG’s counterclaim in tort

as barred by the Village’s sovereign immunity under sections

2–104, 2–106, 2–109, and 2–201 of the Act.

III. CDG’s Counterclaim in Quasi-Contract

	In count II, CDG claims that when it filed its rezoning petition

and paid the required fee, the Village became obligated to process

its petition in good faith. CDG frames it as a claim in “quasi-

contract” in order to avail itself of section 2–101 of the Act, which

states that the Act does not affect liability based on contract. See

745 ILCS 10/2–101(a) (West 1998).

	In an action for “quasi-contract” (or, contract implied in law),

a plaintiff asks the court to remedy the fact that the defendant was

“unjustly enriched” by imposing a contract. See People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473, 497 (1992). A quasi-contract exists independent of any agreement or consent of

the parties. Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 334 (1977) (“The right to recover on a [quasi-contract], although

phrased in contract terminology, is not based on an agreement

between parties but is an obligation created by law”). In fact, the

intention of the parties is entirely disregarded. A quasi-contract,

therefore, is “no contract at all,” but a “rule of law that requires

restitution to the plaintiff of something that came into the

defendant’s hands but in justice belongs to the plaintiff.” D. Dobbs,

Dobbs Law of Remedies §4.2(3), at 580 (2d ed. 1993). Such an

action is based on the principle that no one ought to enrich himself

unjustly at the expense of another. Liability is based on the

principle of unjust enrichment and the contract is the remedy.

	Because a quasi-contract is “no contract at all” but instead is

a remedy based upon the principle of unjust enrichment, it follows

that quasi-contract is not a “contract” for purposes of section

2–101(a) (745 ILCS 10/2–101(a) (West 1998)). Consequently,

section 2–101(a), which preserves municipal liability based upon

contract, does not apply to CDG’s second count for quasi- contract.  The appellate court, therefore, erred in finding that the

second count of CDG’s counterclaim fell within section 2–101(a)

and in finding that the Village could be held liable in quasi-contract

to process CDG’s petition in good faith and according to its usual

procedures. Accordingly, we reverse the appellate court and affirm

the trial court’s dismissal of count II of CDG’s counterclaim as

barred by the Village’s sovereign immunity under sections 2–104,

2–106, 2–109, and 2–201 of the Act. Because we find that count

II of CDG’s counterclaim was barred by the Village’s sovereign

immunity, we need not consider whether CDG properly stated a

claim in quasi-contract.

CONCLUSION

	For the reasons stated, we reverse the appellate court’s

holding that CDG’s count I in tort could proceed against the

Village under the Tort Immunity Act. We also reverse the appellate

court’s judgment allowing CDG’s count II claim in quasi-contract

to proceed. We affirm the trial court’s dismissal of CDG’s

counterclaim in tort and quasi-contract.

Appellate court judgment reversed;

circuit court judgment affirmed.

	JUSTICE McMORROW, concurring in part and dissenting in

part:

	I am in agreement with the conclusion of the majority that

section 2–101(a) of the Local Governmental and Governmental

Employees Tort Immunity Act (Tort Immunity Act or Act) (745

ILCS 10/2–101(a) (West 1998)), which preserves municipal

liability for claims based on “contract,” does not contemplate

actions for quasi-contract. An action in quasi-contract is a theory

of recovery which is “totally unrelated to traditional concepts of

contract law.” 42 C.J.S. Implied Contracts §4 (1991); see generally 1 D. Dobbs, Remedies §4.2(3), at 580 (2d ed. 1993).

	I am also in agreement with the majority’s analysis of section

2–106 of the Tort Immunity Act (745 ILCS 10/2–106 (West 1998)), which provides that “[a] local public entity is not liable for

an injury caused by an oral promise or misrepresentation of its

employee, whether or not such promise or misrepresentation is

negligent or intentional.” (Emphasis added.) 745 ILCS 10/2–106 (West 1998). Because intentional conduct is explicitly immunized

in this provision, I concur in the majority’s conclusion that the

Village of Bloomingdale (Village) is immune from liability for any

alleged injuries claimed by CDG Enterprises, Inc. (CDG), in its

counterclaim as a result of the assurances made by the Village’s

mayor that CDG’s development project would be approved.

	I respectfully dissent, however, from the majority’s conclusion

that intentional misconduct by a local public entity or employee is

also shielded by the provisions contained within section 2–104 of

the Tort Immunity Act (745 ILCS 10/2–-104 (West 1998)). For the

reasons more fully set forth in my separate opinions in Barnett v. Zion Park District, 171 Ill. 2d 378, 402-08 (1996) (McMorrow, J., dissenting), In re Chicago Flood Litigation, 176 Ill. 2d 179, 213- 14 (1997) (McMorrow, J., concurring in part and dissenting in

part), Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and

dissenting in part), and Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (1998) (McMorrow, J., dissenting), I continue

to adhere to the view that where the Tort Immunity Act is silent on

the question of whether intentional government misconduct is

exempt from immunity, it should not be concluded that such silence

translates into a positive intent on the part of the General Assembly

to cloak local governmental entities and their employees with

unconditional immunity.

	The genesis of the instant appeal is the March 1995 filing by

CDG of a petition with the Village’s planning commission to

request the rezoning and annexation of five parcels of property

located between the Glendale Golf Course on the west and

Medinah Road on the east. CDG had contracted to purchase this

land with the intent of developing a residential subdivision

consisting of 122 townhomes. In August 1995, the Village’s

planning commission voted down the project, and in October 1995,

the Village’s board of trustees denied CDG’s rezoning and site plan

approval request during a public hearing.

	In September 1996, the Village filed a complaint for breach of

contract against CDG, alleging that CDG had breached a written

“application fee agreement” with the Village in which CDG had

promised to pay the costs of the Village’s attorney, land planner,

engineer and director of legal affairs in conjunction with CDG’s

application for rezoning and site plan approval. The Village’s

complaint alleged that CDG had failed to pay the costs owed to the

Village pursuant to this written agreement.

	CDG answered the Village’s complaint and filed a

counterclaim against the Village. The circuit court granted the

Village’s motion to dismiss CDG’s counterclaim pursuant to

section 2–619(a)(9) of the Code of Civil Procedure (735 ILCS

5/2–619(a)(9) (West 1998)), finding that various provisions of the

Tort Immunity Act immunized the Village from CDG’s claims.

Because this appeal comes before us on review of a section 2–619

dismissal, we must accept as true all well-pleaded facts in CDG’s

counterclaim, as well as all inferences that can reasonably be drawn

in CDG’s favor. See Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill. 2d 200, 206 (2000).

	CDG’s counterclaim alleges that the Village tortiously

interfered with CDG’s business expectancy in purchasing the five

parcels of land and in developing the intended residential

subdivision. According to the counterclaim, prior to negotiating the

contracts to acquire the land parcels, representatives of CDG met

with the Village’s mayor to determine the feasibility of the

subdivision project. According to the counterclaim, the mayor

assured CDG that the “project would be approved” based upon the

Village’s desire to encourage further residential development along

the Medinah Road corridor. According to CDG, between

September 1994 and October 1995, its representatives not only

met with various Village officials on numerous occasions to review

CDG’s development plans, but also appeared before the Village’s

planning commission several times for public hearings regarding

CDG’s rezoning and annexation requests. The counterclaim alleges

that while the Village was ostensibly reviewing CDG’s proposals,

sometime during June or July 1995 the “Village formed an internal

secret ‘task force’ to pursue the acquisition and financing” of the

Glendale Golf Course. The counterclaim further alleges that certain Village officials “secretly met with non-resident property owners

along the Medinah Road corridor in an effort to manufacture

opposition” to CDG’s development plans, with the goal of

“subvert[ing] and manipulat[ing] the public hearing process so as

to deprive [CDG] of a fair and impartial hearing so that the Village,

or certain developers favored by certain of the Village’s officials,

could acquire the parcels for which [CDG] was the contract

purchaser.”

	The counterclaim further relates that the Village retained

Planning Resources, Inc., as its consultant for land planning and

development. According to the counterclaim, at the same time that

Planning Resources was reviewing CDG’s land plans and petition,

the Village had surreptitiously commissioned Planning Resources

“to prepare a redesign of the Glendale Golf Course so as to

reconfigure the lay-out of various holes” onto CDG’s property.

CDG alleges that at no time did any representative of Planning

Resources or the Village disclose Planning Resource’s dual

capacity. The counterclaim further alleges that representatives of

Planning Resources “secretly met with the opposition group

created by certain of the Village’s officials,” and that one

representative of Planning Resources disclosed to CDG that “she

was told by an individual on the Village’s board to kill [CDG’s]

project.”

	According to CDG’s counterclaim, during the August 15,

1996, meeting of the Village’s planning commission at which time

CDG’s petition was declined, one commissioner “voiced objection

over the fact that the chairman of the Village’s planning

commission had contacted him at home to discuss [CDG’s]

pending petition,” while a second commissioner objected to the

fact that “the chairman, prior to the commencement of the hearing,

had circulated a preprinted motion to deny [CDG’s] project.”

According to the counterclaim, these two members of the planning

commission filed a “minority report” setting forth the improper acts

of the chairman of the Village’s planning commission.

	CDG’s counterclaim further alleges that after the October 23,

1995, public hearing during which the Village’s board of trustees

voted against CDG’s petition, “the Village made public its

intention to acquire the Glendale Golf Course by public referendum.” Soon thereafter, CDG alleges, the Village

successfully acquired the golf course. CDG’s counterclaim further

alleges that subsequent to the denial of its proposals, at least one

of the five land parcels was “purchased by individuals closely

aligned with certain of the Village’s officials.”

	In its counterclaim, CDG asserts that its petition met all of the

Village’s requirements for rezoning and annexation; that CDG took

all the action the Village required; that CDG had incurred costs in

reliance on its meetings with the Village while Village officials

were “secretly working to sabotage the public hearing process and

[CDG’s] development efforts”; and that after the Village denied its

petition, CDG was required to cancel the purchase contracts and

forfeit some of the monies which had been paid.

	The counterclaim filed by CDG asserts that, based upon the

foregoing facts, the Village “wilfully and with a conscious

disregard for the rights of [CDG], purposefully and with the intent

to prevent [CDG] from obtaining its rezoning, annexation and

development,” engaged in a course of conduct which “was

unreasonable, arbitrary and capricious,” constituted a “deviation

from the standard of usual and customary zoning authority

procedures,” and was “designed to subvert the public hearing

process so as to predetermine the outcome.” CDG contends in its

counterclaim that this course of conduct was entered into for

“improper governmental purposes” and “specifically designed to

deprive [CDG] of its reasonable business expectancy.” CDG

requested damages in the amount of $4.8 million, the expected

amount of gross profits from its development plans.

	The majority affirms the circuit court’s dismissal of CDG’s

counterclaim on the basis that the Village is immunized from

CDG’s claims pursuant to several provisions of the Tort Immunity

Act. I disagree with the majority’s holding that CDG’s

counterclaim is barred by section 2–104 of the Act (745 ILCS

10/2–104 (West 1998)). The majority arrives at this conclusion

based on a rationale first employed by this court in Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). In Barnett, this court held that section 3–108(a) of the Act (745 ILCS 10/3–108(a) (West

1992)) cloaked the defendant park district with absolute immunity

against allegations that the defendant’s swimming pool lifeguards knowingly and willfully ignored pleas to help a drowning minor,

thereby causing the minor’s death. The Barnett majority reasoned that the absence of an explicit exception for willful and wanton

misconduct in section 3–108(a) of the Act meant that “the

legislature must have intended to immunize liability for both

negligence and willful and wanton misconduct.” Barnett, 171 Ill. 2d at 391-92. In the course of my dissent from the majority’s

holding in Barnett, I observed that there “are strong reasons why the policies underlying grants of immunity for simple negligence

should not be impliedly expanded to reach willful and wanton or

intentional misconduct.” Barnett, 171 Ill. 2d at 403 (McMorrow, J., dissenting).

	More specifically, I explained that “[t]he general rationale for

granting public entities the protection of immunities not enjoyed by

private entities is the significant expense and burdens placed upon

the government” when negligence on the part of local public

entities or officials carrying out their government duties results in

injuries to the public and such negligence lawsuits “are permitted

to flourish unchecked.” Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was my view, however, that the “rationale

underlying a grant of immunity for simple negligence is different in

kind from any justification for immunizing tortious conduct that is

intentionally harmful or willful and wanton,” and if the legislature

actually intended to bestow absolute immunity for willful and

wanton misconduct, the immunity statute should positively and

unequivocally state such an intention. Barnett, 171 Ill. 2d at 404 (McMorrow, J., dissenting).

	Since Barnett, I have adhered to my belief that the policies underlying grants of immunity for simple negligence are

distinguishable from any justification for blanketing deliberate

governmental misconduct with immunity. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part); Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (McMorrow, J., dissenting). I note that my conclusion in Barnett that the legislature did not intend to immunize willful and wanton misconduct in the immunity provisions of section 3–108 was

validated when the General Assembly passed Public Act 90–805

(Pub. Act 90–805, eff. December 2, 1998), which amended section

3–108 to exclude willful and wanton conduct from the immunity

granted by the statute. My conviction remains strong that

deliberate acts of governmental misconduct, such as those alleged

by CDG in the instant cause, are not shielded under the Tort

Immunity Act by provisions which remain silent with respect to an

express exemption for such intentional bad acts.

	In the matter at bar, the majority, based upon the Barnett rationale, interprets section 2–104 of the Act (745 ILCS 10/12–104

(West 1998)) as affording a local governmental entity absolute

immunity against liability for an “injury” caused by a denial of “any

permit” because this section does not contain an express exemption

for willful and wanton misconduct or for corrupt and malicious

motives. In order to fit CDG’s counterclaim within the purview of

section 2–104, the majority narrowly construes CDG’s allegations

as a complaint against the Village’s denial of its rezoning,

annexation and site development petition. As the appellate court

correctly held below, CDG’s counterclaim complains of more than

the mere denial of its petition by the Village. 314 Ill. App. 3d at

214. CDG alleges that the Village deliberately, maliciously and

willfully pursued a course of conduct and abused its governmental

powers in an effort to deprive CDG of expected benefits and

appropriate those benefits to itself and its favored developers.

Specific allegations in the counterclaim, which must be taken as

true, state that while the Village and its officials gave the

appearance that CDG’s development and annexation requests were

being validly processed, the Village secretly formed opposition

groups against CDG’s plans and had commissioned the Village’s

own land planning consultant to work in a dual capacity with

respect to CDG. In addition, CDG alleged that the chairman of the

Village’s land planning commission had attempted to improperly

influence the votes of the land planning commissioners against

CDG. Blanket immunity should not be afforded to acts, such as

those alleged by CDG, which are performed by local governmental

entities or government officials in bad faith or out of corrupt and

malicious motives.

	In support of its conclusion that the Village is afforded

absolute immunity against the allegations of CDG, the majority

asserts that “[c]learly, the legislature did not intend to grant an

empty immunity to local public entities when they denied ‘permits’

such as zoning petitions,” and that construing section 2–104 in a

contrary manner would lead to an absurd result. Slip op. at 10-11).

I disagree. It is evident to me that the blanket, unlimited immunity

bestowed upon the Village in this case is unnecessary to protect

public entities from liability arising from “the operation of

government,” which is the stated purpose of the Tort Immunity

Act (745 ILCS 10/1–101.1 (West 1998)). Construing section

2–104 of the Act to only immunize only negligent conduct would

completely fulfill this legislative objective.1

	For the reasons stated, I dissent in part from the opinion of the

majority.