2022 IL App (1st) 210158 

No. 1-21-0158

Opinion filed ---, 2022 

 THIRD DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

OMEGA DEMOLITION CORPORATION, ) 

 ) 

Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

THE ILLINOIS STATE TOLL HIGHWAY ) 

AUTHORITY, ) 

 ) 

Defendant-Appellee. )

Appeal from the Circuit Court 

of Cook County. 

No. 19 L 9102 

The Honorable 

Daniel J. Kubasiak, 

Judge Presiding. 

JUSTICE GORDON delivered the judgment of the court, with opinion. 

 Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion. 

 OPINION 

¶ 1 Plaintiff, Omega Demolition Corporation, filed a complaint against the Illinois State Toll 

Highway Authority (Tollway), alleging that the Tollway wrongfully revoked its A15 

subcontractor approvals without notice or a hearing, resulting in monetary damages sustained 

by plaintiff, who was unable to continue doing work on Tollway projects without A15 

approvals. The initial complaint did not indicate the nature of the cause of action, but only the 

course of events and the claimed damages. The Tollway moved for dismissal pursuant to both 

section 2-615 and section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-

615, 2-619(a)(9), 2-619.1 (West 2018). The trial court granted the dismissal pursuant to section 

2-615 and granted plaintiff the opportunity to replead. Plaintiff filed an amended complaint 
No. 1-21-0158

2 

that added nothing more to state a cause of action but included as exhibits the contracts and 

subcontracts relevant to the complaint that were not initially included. The Tollway once again 

moved to dismiss under section 2-615 and requested that, in the alternative, the court review 

its motion to dismiss under section 2-619(a)(9). In plaintiff’s response to the second motion to 

dismiss, plaintiff clarified that its complaint was one based on a denial of due process. The trial 

court again granted the dismissal under section 2-615 and granted plaintiff a second 

opportunity to replead. Plaintiff filed a second amended complaint alleging a protectable 

interest in its A15 approvals and alleging a denial of due process. The Tollway once again 

moved to dismiss under section 2-615 and once again encouraged the court to, in the 

alternative, review its motion to dismiss pursuant to section 2-619(a)(9). The trial court 

dismissed with prejudice pursuant to section 2-615, citing plaintiff’s failure to plead facts 

sufficient to state a cause of action. 

¶ 2 In this timely appeal, plaintiff argues (1) that its second amended complaint cured the 

indicated defects in its first amended complaint by providing a factual basis for its protectable 

interest in its A15 approvals and by providing facts about the actions it and the Tollway took 

or did not take to restore its A15 approvals; (2) that if its factual pleadings were insufficient, 

or if it was required to allege facts showing that the Tollway had abused its authority, it should 

have been given a third opportunity to replead; (3) that the Tollway’s revocation of plaintiff’s 

A15 approvals was not an action that falls within the exercise of the Tollway’s discretionary 

powers; (4) that the order from the chief procurement officer revoking plaintiff’s interim 

suspension served as a directive to the Tollway, that it had a duty to follow, to reinstate 

plaintiff’s A15 approvals; and (5) that plaintiff’s A15 approvals are similar to a governmentally 

awarded license and should be treated the same with regard to what process is followed. 
No. 1-21-0158

3 

¶ 3 For the following reasons, we affirm the decision of the trial court. 

 BACKGROUND

¶ 4 The facts of this case are undisputed. Prior to April 14, 2016, plaintiff held six separate 

contracts to perform bridge demolition work on Illinois state highway projects as a 

subcontractor on contracts between other companies and the State of Illinois. Two of those 

contracts were with Judlau Contracting, Inc. (Judlau) and four were with F.H. Paschen, S.N. 

Nielsen & Associates, LLC (FH Paschen). For a subcontractor to perform any work on a 

Tollway project, that subcontractor must complete an A15 subcontractor approval form, which, 

upon approval from the Tollway, grants the applicant permission to work as a subcontractor 

on Tollway projects. Plaintiff submitted an A15 form and obtained approval from the Tollway. 

While appellant cites no authority, aside from its own complaint, to establish that A15 

approvals are required to serve as a subcontractor on a Tollway project, the Tollway confirms

in its brief that it does require subcontractors to be approved by the Tollway and the same is 

reflected in the contracts in the record between FH Paschen and the Tollway. 

¶ 5 On April 5, 2016, one of plaintiff’s employees was killed and three were injured in an 

incident that occurred on a worksite during the course of work being performed pursuant to 

plaintiff’s contract with Judlau to perform bridge demolition work on the span of I-90 known 

as the Jane Addams Memorial Tollway. There is no information in the record on appeal 

indicating whether plaintiff was responsible for the incident, nor the outcome of the 

Occupational Safety and Health Administration (OSHA) investigation of the incident causing 

the death and injuries. However, this court takes judicial notice of the fact that OSHA cited 

plaintiff for multiple health and safety violations related to the incident, including one willful 

safety violation, on October 3, 2016. Plaintiff asserts in its appellate brief that it, among others, 
No. 1-21-0158

4 

has settled with the estate of the employee killed in the incident and that no blame has been 

placed on plaintiff for the event, nor has the “cause of the fatality” been determined. According 

to an affidavit from Paul Kovacs, the Tollway’s chief engineer, Kovacs was responsible for 

overseeing all engineering activities for the Tollway. Kovacs averred that between April 5, 

2016, and April 14, 2016, he conducted an internal investigation of the fatal incident that led 

to the revocation of plaintiff’s A15 approval, during which he discovered that plaintiff deviated 

from the demolition plan without approval from him and that he believes that the incident was 

caused, “in whole or in part, by [plaintiff’s] unauthorized deviation from the demolition plan.” 

Kovacs averred that it was based upon his investigation that he recommended to the Tollway 

that plaintiff’s A15 subcontractor approval be revoked. Nine days after the incident, in a letter 

dated April 14, 2016, the same day Kovacs’ investigation was completed, the Tollway 

informed FH Paschen that plaintiff’s A15 approvals had been revoked on the four contracts 

FH Paschen held on which plaintiff worked as a subcontractor. The letter instructed FH 

Paschen to replace plaintiff on any remaining work plaintiff had yet to complete on those 

projects but gave no reason for the revocation of plaintiff’s A15 approvals. While no evidence 

is provided in the record to show that the Tollway revoked plaintiff’s A15 approvals for the 

projects it was contracted with Judlau to work on, plaintiff’s communications with the Tollway 

after the revocation mention that its A15 approvals for the Judlau projects were revoked and 

the Tollway does not dispute that claim in either its responses to those communications or in 

its brief.

¶ 6 On April 18, 2016, Ellen H. Daley, the Chief Procurement Officer of Illinois for General 

Services (CPO) issued an interim suspension preventing plaintiff from doing any work for the 

Tollway. The CPO is not under the authority of the Tollway. The CPO’s letter stated that initial 
No. 1-21-0158

5 

investigation indicated plaintiff had deviated from its own submitted and approved plans for 

its demolition work and thereby caused the fatal accident of April 5, 2016, that plaintiff’s 

president confirmed the deviation from the plans and could offer no justification, and that 

plaintiff may have violated job-site safety specifications. The CPO’s letter informed plaintiff 

that pursuant to section 6.520 of Title 44 of the Illinois Administrative Code (44 Ill. Adm. 

Code 6.520 (2011)), a contractor or subcontractor can be suspended due to “acts or omissions 

that indicate that the contractor or subcontractor lacks integrity and honesty in the conduct of 

business or the performance of contracts” and that an interim suspension could be and, by way 

of the letter, was being issued pending the outcome of a full investigation by the Tollway and 

OSHA. Plaintiff challenged the CPO’s decision pursuant to section 6.620 of Title 44 of the 

Illinois Administrative Code (44 Ill. Adm. Code 6.620(b) (2011)) and the CPO, upon review 

of plaintiff’s submitted documentation and argument, terminated the interim suspension of 

plaintiff on May 3, 2016. The termination of the interim suspension did not serve to restore 

plaintiff’s A15 approvals, as the requirement of A15 approvals and approval of A15 approvals 

is a Tollway policy not connected to the CPO’s policies. 

¶ 7 There is no information in the record on appeal as to what formal process, if any, exists to 

appeal the revocation of or pursue the reinstatement of a subcontractor’s A15 approvals. 

Plaintiff contacted the Tollway on multiple occasions between May 6, 2016, and January 17, 

2017, to attempt to discuss having its A15 approvals reinstated. 

¶ 8 On May 6, 2016, Chuck Gerage, plaintiff’s president, sent an e-mail to the Tollway 

following up from an alleged April 8, 2016, meeting. There is no information in the record or 

in either party’s filings in the trial court or on appeal that indicate what occurred at the April 

8, 2016, meeting. Gerage mentions in the e-mail that he participated in an “off the record” 
No. 1-21-0158

6 

conversation at this meeting, but it is unclear if the entire meeting was “off the record.” In the 

e-mail, Gerage professed his wish to mend plaintiff’s relationship with the Tollway and notes 

that a “corrective action plan” allegedly requested by the Tollway during the April 8, 2016, 

meeting was timely submitted. It is undisputed that no response to this e-mail was sent.

¶ 9 On May 13, 2016, plaintiff’s attorney sent a letter, also sent as an e-mail, to the Tollway 

noting that Gerage’s e-mail never received a response and requesting a meeting with the 

Tollway. The letter further noted that plaintiff had “never received a formal explanation of the 

Tollway’s actions, nor has the Tollway advised [plaintiff] whether [plaintiff] is eligible for 

future work on Tollway projects.” The letter requested that if the Tollway had concerns about 

[plaintiff’s] work site safety or practices, [plaintiff] would like to know what those concerns 

are so that it might address them.”

¶ 10 In its appellate brief, plaintiff claims that prior to May 19, 2016, plaintiff received an email from the Tollway’s counsel indicating that the Tollway was not willing to meet with 

plaintiff to discuss the termination of plaintiff’s A15 status. Plaintiff cites to its second 

amended complaint for this assertion, and no such e-mail is included in the record on appeal.

The Tollway does not dispute that plaintiff received such an e-mail. 

¶ 11 On May 19, 2016, plaintiff’s attorney sent a letter, also sent as an e-mail, to the Tollway. 

In the letter, plaintiff’s attorney asserts that an e-mail response was received indicating the 

Tollway’s unwillingness to meet with plaintiff or plaintiff’s attorney, but that the Tollway’s 

counsel would be willing to discuss matters with plaintiff and its attorney. Plaintiff’s attorney 

submitted a series of questions in the letter regarding plaintiff’s current and future eligibility 

to work on Tollway projects, the reason the Tollway instructed its prime contractors to 

terminate their subcontracts with plaintiff, what criteria the Tollway would use to determine 
No. 1-21-0158

7 

plaintiff’s eligibility, and what legal authority gave the Tollway the authority to render plaintiff 

ineligible to perform work on Tollway projects. 

¶ 12 On January 17, 2017, plaintiff’s attorney sent a letter, also sent as an e-mail, to the Tollway. 

In the letter, plaintiff’s attorney noted that “[a]t a Policy Committee meeting last week, the 

Tollway’s Executive Director, Greg Bedalov, advised the attendees that [plaintiff] is not 

suspended by the Tollway and is eligible to perform work on Tollway projects.” The letter 

further asserts that plaintiff’s attorney was informed by the Tollway’s attorney that Bedalov 

had said that plaintiff was eligible to perform work on Tollway projects during the meeting. 

The letter goes on to state that both attorneys had discussed that the revocation of plaintiff’s 

A15 approvals “was intended to allow for a cooling off period to enable to Tollway to gather 

facts concerning a fatal accident involving [an employee of plaintiff’s] on one of the I-90 

projects, and was not intended to revoke [plaintiff’s] eligibility to work on other Tollway 

projects.” The letter closed with a request for a short letter from the Tollway confirming 

plaintiff’s eligibility to work on Tollway contracts.

¶ 13 On January 23, 2017, the Tollway’s attorney returned a letter, also sent as an e-mail, 

indicating that “the Chief Procurement Officer (General Services) generally retains authority 

as to suspensions of Tollway contractors, and there is no such order in place regarding 

[plaintiff] that we are aware of.” The letter continues to say that the Tollway’s attorney would 

“not necessarily agree” with plaintiff’s attorney’s characterizations of referenced meetings or 

phone calls but that he did not think that altered anything substantively. 

¶ 14 No further correspondence is included in the record on appeal. It is undisputed that the 

Tollway did not reinstate plaintiff’s A15 approvals on any of the six contracts on which its 

A15 approvals were revoked. There is no information in the record on appeal or in either 
No. 1-21-0158

8 

party’s filings in the trial court or on appeal to indicate whether plaintiff has since applied for 

an A15 approval on any other project, nor what outcome may have resulted from such an effort. 

¶ 15 I. Initial Complaint

¶ 16 On August 16, 2019, plaintiff filed its initial complaint against the Tollway, in which it 

alleged that it had a protectable interest in its A15 approvals and that those approvals were 

terminated without due process. Plaintiff alleged damages resulting from “not being able to 

provide services for [the Tollway]” that were, at that time, incapable of being calculated, but 

were in excess of $1 million. Plaintiff did not allege any specifics about its protectable interest, 

merely that it had one. 

¶ 17 On September 20, 2019, the Tollway moved to dismiss plaintiff’s complaint pursuant to 

section 2-615 and section 2-619(a)(9) in a combined motion pursuant to section 2-619.1. In its 

motion to dismiss, the Tollway argued that plaintiff’s claim was based on its contracts with 

Judlau and FH Paschen, yet plaintiff had failed to attach those contracts and so the complaint 

should have been dismissed for failure to comply with section 2-206 (735 ILCS 5/2-606 (West 

2018)), which requires that a copy of the written instrument be attached to the complaint when 

the complaint contains claims founded on a written instrument. The Tollway further argued 

that plaintiff’s complaint was barred by the governing contracts and that the complaint was 

barred by section 32 of the Toll Highway Act. 605 ILCS 10/32 (West 2018). Included with the 

motion to dismiss was an affidavit from Kovacs, who averred that he was employed as the 

Tollway’s chief engineer and was responsible for overseeing all engineering activities. Kovacs 

averred that he conducted an internal investigation of the fatal incident that led to the 

revocation of plaintiff’s A15 approvals, during which he discovered that plaintiff deviated from 

the demolition plan without approval from him and that he believes that the incident was 
No. 1-21-0158

9 

caused, “in whole or in part, by [plaintiff’s] unauthorized deviation from the demolition plan.” 

Kovacs averred that it was based upon his investigation that he recommended to the Tollway 

that plaintiff’s A15 subcontractor approvals be revoked. 

¶ 18 On January 31, 2020, the trial court entered an order granting the Tollway’s motion to 

dismiss under section 2-615 without prejudice, finding that plaintiff had “failed to attach 

required documents and failed to state a cause of action against the Tollway on which relief 

can be granted under Illinois pleading standards.” The trial court further found that plaintiff

“failed to plead sufficient facts to indicate the terms of the subcontracts that were breached and 

failed to plead facts to support a cause of action against the Tollway.” The trial court cited 

caselaw that directs courts presented with a section 2-619.1 combined motion to dismiss to 

first entertain the section 2-615 motion and only entertain the 2-619 motion “after a legally 

sufficient cause of action has been found.” Johannesen v. Eddins, 2011 IL App (2d) 110108, 

¶ 29. Since the trial court dismissed based on the section 2-615 motion, it did not consider the 

section 2-619(a)(9) motion. The trial court gave plaintiff leave to file an amended complaint 

stating a cause of action.

¶ 19 II. First Amended Complaint 

¶ 20 On April 3, 2020, plaintiff filed its first amended complaint. The first amended complaint 

was largely identical to the original complaint. In its amended complaint, plaintiff claimed 

again that it had a protectable interest in its A15 approvals and alleged the same damages in 

excess of $1 million, this time “consisting of not being able to provide services for [the 

Tollway] and having the contracts referred to herein terminated.” Plaintiff attached its two 

Judlau contracts and its four FH Paschen contracts to its first amended complaint. 
No. 1-21-0158

10 

¶ 21 On April 22, 2020, the Tollway filed a motion to dismiss plaintiff’s first amended 

complaint pursuant to section 2-615. In its motion, the Tollway argued that although plaintiff 

had attached the contracts that were missing from the initial complaint, it had failed to cure all

other deficiencies in its original complaint. Namely, plaintiff’s amended complaint was still 

based on plaintiff’s subcontracts with the Tollway’s general contractors and failed to recite 

relevant provisions of those subcontracts that were allegedly breached. In its motion to dismiss, 

the Tollway also encouraged the court to consider its previously-submitted motion to dismiss 

pursuant to section 2-619(a)(9). 

¶ 22 On May 29, 2020, plaintiff filed a response to the Tollway’s motion to dismiss its first 

amended complaint. In its response, plaintiff argued that its cause of action was not a 

contractual one, but rather a cause of action based in the Tollway’s violation of plaintiff’s due 

process rights. Plaintiff argued that it had not alleged a breach of contract on the Tollway’s 

part at any time and that its complaint was entirely with regard to violation of its due process 

rights. Plaintiff argued that the Tollway should have provided it with advance notice of the 

termination of plaintiff’s A15 approvals and the Tollway should have provided it with an 

opportunity to be heard. 

¶ 23 On June 17, 2020, the Tollway filed a reply to plaintiff’s response to its motion to dismiss 

plaintiff’s first amended complaint. In its reply, the Tollway argued that plaintiff’s assertion 

that it had a protectable interest in its A15 approvals was a legal conclusion unsupported by 

any facts. The Tollway further argued that revocation of plaintiff’s A15 approvals fell within 

its discretionary authority and was not judicially reviewable. 

¶ 24 On July 31, 2020, the trial court entered an order granting the Tollway’s motion to dismiss 

plaintiff’s first amended complaint without prejudice, finding that plaintiff had “failed to set 
No. 1-21-0158

11 

forth a sufficient basis for its claimed denial of due process by the Tollway.” The trial court 

found that plaintiff’s allegation that it had a protectable interest in its A15 approvals was a 

conclusory statement that was insufficient to sustain a claim of violation of due process. The 

trial court pointed out additional flaws in plaintiff’s first amended complaint:

“Further, the first amended complaint states in paragraph 11 that its A15 status has not 

been restored, yet does not recite what specific actions have been taken by Plaintiff to 

have the A15s restored, what actions the Illinois State Toll Highway Authority has 

taken or not taken to restore status, or what requires the Illinois State Toll Highway 

Authority to do so. Simply stating that its legal status is unclear does not set forth a 

right or demonstrate that due process has been denied, and simply stating that there is 

a denial of due process without factual support is not sufficient to state a cause of action 

under Illinois pleading standards.” 

¶ 25 The trial court’s July 31, 2020, order granted the Tollway’s motion to dismiss plaintiff’s 

first amended complaint pursuant to section 2-615, dismissing it without prejudice. The order 

did not address the Tollway’s previous motion to dismiss under section 2-619(a)(9). The order 

further granted plaintiff a second, final chance to replead. 

¶ 26 III. Second Amended Complaint 

¶ 27 On August 24, 2020, plaintiff filed its second amended complaint. Plaintiff’s second 

amended complaint was largely identical to its original and first amended complaints but added 

mention of correspondence between plaintiff and the Tollway in which plaintiff sought to 

discuss its A15 status and in which the Tollway refused plaintiff’s request to meet regarding 

its A15 status. Plaintiff further alleged in its second amended complaint that “[t]here may have 
No. 1-21-0158

12 

been other actions taken by Plaintiff to attempt to obtain restoration of its A15s and other 

actions or inactions may have been taken by Defendant concerning Plaintiff’s A15s.” 

¶ 28 On September 9, 2020, the Tollway moved to dismiss plaintiff’s second amended 

complaint pursuant to section 2-615. The Tollway argued that plaintiff (1) had failed to cure 

the defects in its first amended complaint because it still failed to state a cause of action and 

(2) had failed to allege facts to show that the Tollway abused its discretionary authority by 

revoking plaintiff’s A15 approvals. In its motion, the Tollway requested that should its motion 

pursuant to section 2-615 be denied, its previous motion pursuant to section 2-619(a)(9) be 

ruled upon. 

¶ 29 It is unclear the dates on which plaintiff’s response to the Tollway’s September 9, 2020, 

motion to dismiss and the Tollway’s reply to that response were filed, as the response included 

in the record is dated December 10, 2020, and the reply to that response is dated October 21, 

2020. Regardless of the correct date on which it was filed, plaintiff’s response argued that 

when the trial court listed the facts missing from plaintiff’s complaint, it used the conjunction 

“or” rather than “and,” thereby indicating that only one of the set of missing facts was 

necessary to remedy that flaw in the complaint. Plaintiff argued that since it included in its 

second amended complaint the actions it took to attempt to have its A15 approvals restored 

and the actions taken or not taken by the Tollway with regard to the same, it had cured that 

defect in its complaint. Plaintiff further argued that by noting that A15 approvals are necessary 

to work for the Tollway, that all subcontractors working for the Tollway must have A15 

approvals, that a subcontractor cannot continue working on Tollway projects without an A15 

approval, and that Plaintiff applied for and acquired A15 approvals for each of the subcontracts 

it held with Judlau and FH Paschen for Tollway work, it had thereby demonstrated a 
No. 1-21-0158

13 

protectable interest under the due process clause of the United States constitution. Lastly, 

plaintiff argued that the Tollway’s argument that its decisions regarding A15s were within the 

exercise of its discretionary powers was unavailing because the Tollway had not cited to any 

authority to demonstrate that the decisions did in fact fall within such discretionary powers.

Plaintiff preemptively rebutted an expected argument from the Tollway that the Tollway’s 

statutory authority over “the letting of contracts for the construction of toll highways or any 

part thereof” included decisions regarding A15 approvals by arguing that plaintiff did not have 

a contract with the Tollway but instead only subcontracts with the Tollway’s general 

contractors to perform demolition, not construction. 

¶ 30 In its reply to plaintiff’s response, the Tollway argued that plaintiff had still failed to state 

a cause of action because it failed to demonstrate that it had a protectable interest in its A15 

approvals and, once again, that its decisions regarding the letting of contracts for the 

construction of toll highways or any part thereof were not judicially reviewable. Since the trial 

court’s second grant of leave to replead was indicated to be final, the Tollway argued that the 

complaint should be dismissed with prejudice. 

¶ 31 On January 14, 2021, the trial court entered an order granting the Tollway’s motion to 

dismiss plaintiff’s second amended complaint pursuant to section 2-615 with prejudice. The 

trial court found that plaintiff “failed to correct the defects in [its] first amended complaint, 

and [ ] failed to set forth a right or demonstrate that due process has been denied regarding the 

Tollway’s failure to restore [its] A15 Subcontractor Approval.” The trial court found that 

plaintiff’s efforts to remedy the defects in its first amended complaint were insufficient and 

that it had still failed to make the necessary showing to maintain a claim for violation of its 
No. 1-21-0158

14 

right to due process. The trial court’s order did not address the Tollway’s previous motion to 

dismiss under section 2-619(a)(9).

¶ 32 On February 16, 2021, plaintiff timely filed the instant appeal. Although the appeal was 

filed 32 days after the order dismissing plaintiff’s second amended complaint, the delay of two 

days was due to a weekend and a holiday during which the court was closed, and so the appeal 

is nonetheless timely.

¶ 33 ANALYSIS

¶ 34 On appeal, plaintiff argues first that where the trial court’s order dismissing plaintiff’s first 

amended complaint stated that “[plaintiff] does not recite what specific actions have been taken 

to have the A15s restored, what actions the [Tollway] has taken or not taken to restore status, 

or what requires the [Tollway] to do so,” plaintiff cured the defects in its previous pleading by 

providing facts about the actions taken or not taken and if plaintiff was required to show what 

requires the Tollway to restore its A15s, another opportunity to replead should have been 

granted to allow plaintiff to do so. Second, plaintiff argues that where the trial court’s order 

stated that merely alleging that plaintiff has a protectable interest is conclusory and insufficient 

to sustain a claim for violation of due process, plaintiff cured that deficiency when it set forth 

in its second amended complaint the facts that an A15 approval is required to do work on 

Tollway projects and that plaintiff had sought and received an A15 approval for each of its 

subcontracts on Tollway projects. Third, plaintiff argues that if its factual pleadings were 

insufficient, or if it was required to plead facts showing that the Tollway abused its 

discretionary powers, it should have been given a third opportunity to replead. Fourth, plaintiff 

argues that the Tollway’s argument in its motions to dismiss that its revocation of plaintiff’s 

A15 approvals is within its discretionary powers and therefore unreviewable under the Toll 
No. 1-21-0158

15 

Highway Act (605 ILCS 10/1 et seq. (West 2018)) is unavailing because the Tollway has failed 

to demonstrate that such a determination is in fact within its discretionary powers. Fifth, 

plaintiff argued in the response to the Tollway’s motion to dismiss plaintiff’s second amended 

complaint that the CPO’s order rescinding the plaintiff’s suspension constituted a direction to 

the Tollway to restore plaintiff’s A15 approvals, which the Tollway had a duty to follow. Sixth

and lastly, plaintiff argues for the first time on appeal that an A15 approval is akin to a license 

granted by the government and therefore plaintiff was due the same process upon revocation 

of its approval that a licensee would be due upon revocation of his or her license. We will not 

examine any potential matters of contract law, as plaintiff explicitly stated in its response to 

the Tollway’s motion to dismiss plaintiff’s first amended complaint that its argument was not 

one based in contract law but instead purely based in due process. 

¶ 35 I. Standard of Review 

¶ 36 The trial court dismissed plaintiff’s second amended complaint pursuant to section 2-615 

for failure to state a cause of action. A motion to dismiss under section 2-615 of the Code 

challenges the legal sufficiency of the complaint by alleging defects on its face. Young v. Bryco 

Arms, 213 Ill. 2d 433, 440 (2004); Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). Dismissal 

pursuant to section 2-615 is proper only if the defect is apparent on the face of plaintiff’s 

complaint. Young, 213 Ill. 2d at 440. The question is whether, even assuming that all wellpleaded facts in the complaint are true, the complaint states a legally recognized cause of 

action. Wakulich, 203 Ill. 2d at 228. In making this determination, a court will construe the 

complaint’s allegations in the light most favorable to the plaintiff and draw all reasonable 

inferences in the plaintiff’s favor. Young, 213 Ill. 2d at 441; Wakulich, 203 Ill. 2d at 228. An 

appellate court reviews de novo a trial court’s order granting a section 2-615 dismissal motion. 
No. 1-21-0158

16 

Young, 213 Ill. 2d at 440. De novo review means that we perform the same analysis a trial court 

would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). “Under the 

de novo standard of review, this court owes no deference to the trial court.” People v. Williams, 

2013 IL App (1st) 111116, ¶ 75 (citing Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 

154 (2007)). We may affirm on any basis appearing in the record, whether or not the trial court 

relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 

3d 40, 50 (1992). 

¶ 37 The Tollway also moved to dismiss plaintiff’s complaint pursuant to section 2-619(a)(9). 

The trial court did not rule on the Tollway’s section 2-619(a)(9) motion, however we may 

affirm on any basis appearing in the record, whether or not the trial court relied on that basis 

and whether or not the trial court’s reasoning was correct. Khan v. Fur Keeps Animal Rescue, 

Inc., 2021 IL App (1st) 182694, ¶ 25; Mullins v. Evans, 2021 IL App (1st) 191962, ¶ 59. “A 

motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of the 

plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats 

the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, LLC 

v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). “[T]he movant is essentially saying 

‘ “Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the 

claim.” ’ ” Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31 

(quoting Winters v. Wangler, 386 Ill. App. 3d 788, 792 (2008)). Dismissal is permitted based 

on certain listed “defects” (735 ILCS 5/2-619(a)(1)-(8) (West 2020)) or some “other 

affirmative matter” (735 ILCS 5/2-619(a)(9) (West 2020)) outside the complaint. Reynolds, 

2013 IL App (4th) 120139, ¶ 31. 
No. 1-21-0158

17 

¶ 38 On an appeal from a section 2-619 dismissal, our standard of review is also de novo. 

Hernandez v. Lifeline Ambulance LLC, 2020 IL 124610, ¶ 14; Solaia Technology, 221 Ill. 2d 

at 579. De novo review means that we perform the same analysis a trial court would perform. 

Khan, 408 Ill. App. 3d at 578. “Under the de novo standard of review, this court owes no 

deference to the trial court.” Williams, 2013 IL App (1st) 111116, ¶ 75. 

¶ 39 In ruling on a section 2-619 motion to dismiss, a court must interpret the pleadings and 

supporting materials in the light most favorable to the nonmoving party. Van Meter v. Darien 

Park District, 207 Ill. 2d 359, 367-68 (2003). “[A] court must accept as true all well-pled facts 

in the plaintiff’s complaint and any reasonable inferences that arise from those facts.” 

Hernandez, 2020 IL 124610, ¶ 14. 

¶ 40 Our supreme court has explicitly disapproved of procedure combining an inquiry into the 

sufficiency of a complaint with inquiries that admit the sufficiency of the complaint. Janes v. 

First Federal Savings & Loan Ass’n of Berwyn, 57 Ill. 2d 398, 406 (1974). In that case, our 

supreme court stated that “[w]hen, and only when, a legally sufficient cause of action has been 

stated should the court have entertained the motions for summary judgment and considered the 

affidavits filed in support thereof.” Janes, 57 Ill. 2d at 406. While a section 2-619 motion to 

dismiss is not a motion for summary judgment, as in Janes, such a motion similarly admits the 

legal sufficiency of the plaintiff’s complaint. See Johannesen, 2011 IL App (2d) 110108, ¶ 29. 

In the case at bar, the trial court was careful to decide only the section 2-615 motion to dismiss, 

not wanting to have the legal sufficiency of this complaint admitted when the complaint did 

not state a cause of action. However, the matter raised in the section 2-619 motion to dismiss 

is a question of whether the Tollway’s actions are reviewable by the courts at all, which is a 

matter of jurisdiction and it is this court’s duty to independently consider a court’s jurisdiction 
No. 1-21-0158

18 

and dismiss an appeal if jurisdiction is wanting. See Secura Insurance Co. v. Illinois Farmers 

Insurance Co., 232 Ill. 2d 209, 213 (2009). Accordingly, we will consider the arguments raised 

in the Tollway’s section 2-619 motion to dismiss. 

¶ 41 II. Jurisdiction 

¶ 42 The Tollway moved to dismiss plaintiff’s original complaint pursuant to section 2-

619(a)(9), arguing (1) that plaintiff had no rights against the Tollway and (2) that plaintiff’s 

claim was barred under section 32 of the Tollway Highway Act, as the decision to revoke 

plaintiff’s A15 approvals was a determination made in exercise of the Tollway’s discretionary 

powers. The trial court never ruled on the Tollway’s section 2-619(a)(9) motion to dismiss, but 

the issue presented therein is a jurisdictional one, so we will address it. The Tollway’s first 

argument is moot, as plaintiff later explicitly stated in its response to the Tollway’s motion to 

dismiss plaintiff’s first amended complaint that its claim was entirely one based in an alleged 

due process violation and was not based on its subcontracts. We find the Tollway’s second 

argument, regarding section 32, to be convincing. 

¶ 43 For a motion to be properly brought under section 2-619, the motion (1) must be filed 

“within the time for pleading” and (2) must concern one of nine listed grounds. 735 ILCS 5/2-

619(a) (West 2020). In the case at bar, there is no indication that defendants failed to file a 

timely motion, so we turn to the grounds that defendants assert. 

¶ 44 A section 2-619 motion is permitted on only the following grounds: 

“(1) That the court does not have jurisdiction of the subject matter of the action, 

provided the defect cannot be removed by a transfer of the case to a court having 

jurisdiction.
No. 1-21-0158

19 

(2) That the plaintiff does not have legal capacity to sue or that the defendant does 

not have legal capacity to be sued.

(3) That there is another action pending between the same parties for the same 

cause.

 (4) That the cause of action is barred by a prior judgment. 

(5) That the action was not commenced within the time limited by law.

(6) That the claim set forth in the plaintiff’s pleading has been released, satisfied of 

record, or discharged in bankruptcy. 

(7) That the claim asserted is unenforceable under the provisions of the Statute of 

Frauds. 

(8) That the claim asserted against defendant is unenforceable because of his or her 

minority or other disability.

(9) That the claim asserted against defendant is barred by other affirmative matter 

avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a) (West 2020).

¶ 45 Subsection (a)(9) permits dismissal when an affirmative matter outside of the pleadings 

bars the claim. 735 ILCS 5/2-619(a)(9) (West 2020). “Affirmative matter,” in this context, 

“encompasses any defense other than a negation of the essential allegations of the plaintiff’s 

cause of action.” (Internal quotation marks omitted.) Daniels v. Union Pacific R.R. Co., 388 

Ill. App. 3d 850, 855 (2009). 

¶ 46 In the Tollway’s motion to dismiss pursuant to section 2-619(a)(9), the Tollway argued 

that because section 32 bars the review of determinations made by the Tollway in the exercise 

of its discretionary powers by the courts, and its revocation of plaintiff’s A15 approvals was 

such a determination, that determination should not be subject to review by the courts.
No. 1-21-0158

20 

Although the Tollway brought this argument pursuant to section 2-619(a)(9), it better fits 

section 2-619(a)(1), as, if true, the trial court did not have jurisdiction over the matter and 

transfer to another court would not have removed that defect. Regardless, the Tollway’s 

argument falls within the scope of section 2-619. 

¶ 47 Section 32 reads: 

“All determinations made by the Authority in the exercise of its discretionary powers, 

with the approval of the Governor if such approval is expressly required by the 

provisions of this Act, including without limitation, the location and terminal points of 

any toll highway or section to be constructed by it, the materials to be used in its 

construction, the plans and specifications thereof, the tolls to be charged for the use 

thereof, and the letting of contracts for the construction of toll highways or any part 

thereof, or the sale of bonds, shall be conclusive and shall not be subject to review by 

the courts or by any administrative agency of the State.” 605 ILCS 10/32 (West 2018). 

¶ 48 In People v. Illinois State Toll Highway Comm’n, 3 Ill. 2d 218, 223 (1954), our supreme 

court found that the effectively identical provision applicable to the Toll Highway Commission 

(the Tollway’s predecessor) under section 28 of the State Toll Highway Commission Act (Ill. 

Rev. Stat. 1953, ch. 121, ¶ 314a53) was constitutional but that “[r]ecourse to the courts is not 

denied where bad faith, fraud, corruption, manifest oppression or a clear abuse of discretion 

enters in the commission’s determinations; the presence of any of these conditions will give 

ready access to the courts.” This court recognized the applicability of that supreme court 

holding to the Illinois State Toll Highway Authority Act (Ill. Rev. Stat. 1981, ch. 121, ¶ 1-101 

et seq.) in Hammerman v. Illinois State Toll Highway Authority, 148 Ill. App. 3d 259 (1986). 

Neither at trial, nor on appeal, does plaintiff allege that the revocation of their A15s constituted 
No. 1-21-0158

21 

bad faith, fraud, corruption, manifest oppression, or clear abuse of discretion. Accordingly, if 

the Tollway’s decision to revoke plaintiff’s A15 approvals was within the exercise of its 

discretionary powers, that decision is not reviewable by the courts. 

¶ 49 Plaintiff argued at trial and renews its argument on appeal that it is the Tollway’s burden 

to prove that the acts at issue in the case at bar are within its discretionary powers, but it has 

not cited any authority to support that position. Plaintiff further argued, in its response to the 

Tollway’s motion to dismiss its second amended complaint, and renews its argument on 

appeal, that, should the Tollway cite to the portion of section 32 that explicitly includes in its 

discretionary powers “the letting of contracts for the construction of toll highways or any part 

thereof,” such an argument is unavailing because “[plaintiff] did not have a contract with [the 

Tollway] for construction of tollways or any part thereof. [Plaintiff] had a contract with various 

subcontractors for the demolition of bridges.” 

¶ 50 It is clear that plaintiff’s intended second argument was that (1) its contracts were with 

Judlau and FH Paschen, not with the Tollway, and (2) its contracts were for bridge demolition, 

not for construction of toll highways or any part thereof. While both of these assertions are 

true, neither is sufficient to establish that the Tollway’s actions were not within the exercise of 

its discretionary powers. As to the first argument, the fact that plaintiff’s contracts were not 

with the Tollway renders the specific language in section 32 regarding the letting of contracts 

irrelevant, as the letting of contracts refers specifically to the awarding of contracts, and the 

Tollway awarded no contract to the plaintiff. However, section 8(b) of the Toll Highway Act 

establishes that the Tollway has the power “[t]o enter into all contracts and agreements 

necessary or incidental to the performance of its powers under this Act.” 605 ILCS 10/8(b)

(West 2018). 
No. 1-21-0158

22 

¶ 51 In this instance, the Tollway entered into contracts with FH Paschen and Judlau. Judlau’s 

subcontract with plaintiff includes a provision conditioning the entire subcontract on several 

conditions, one of which is “the approval of the subcontractor by the Owner and A/E, where 

such approval is required.” Judlau’s contract with the Tollway, in turn, stated: “All contractors 

must be approved in writing before they commence any work.” Both parties assert that such a 

requirement applies to all subcontractors seeking to work for Tollway general contractors. 

Accordingly, the Tollway’s decision to revoke plaintiff’s A15 approvals falls within the 

Tollway’s discretionary powers and is not subject to review by the courts. 

¶ 52 Plaintiff’s argument that because section 32 refers to the letting of contracts for the 

construction of toll highways or any part thereof, but its contract was for demolition work, the 

Tollway’s determination was not within the exercise of its discretionary powers, similarly fails. 

Section 8 (605 ILCS 10/8 (West 2018)) allows the Tollway to enter into all contracts and 

agreements necessary or incidental to the performance of its powers under the Act, so 

plaintiff’s argument is unavailing. It is unquestionable that the demolition of existing 

construction in a place where new tollway construction is to take place is necessary or, at a 

minimum, incidental to the exercise of the Tollway’s powers to build and maintain tollways. 

¶ 53 Plaintiff argues that the Tollway failed to sustain its burden to prove that the revocation of 

plaintiff’s A15 approvals was within its discretionary powers. The Tollway argues in return 

that it was plaintiff’s burden to prove that the Tollway’s affirmative defense that the act fell 

within its discretionary powers and was therefore unreviewable by the courts was, in fact, 

unavailing. Our supreme court has held that “[w]here a defendant presents affidavits or other 

evidentiary matter supporting the asserted [affirmative] defense, the burden shifts to the 

plaintiff to establish that the defense is unfounded or requires the resolution of an essential 
No. 1-21-0158

23 

element of material fact before it is proven.” McIntosh v. Walgreens Boots Alliance, Inc., 2019 

IL 123626, ¶ 16. In the case at bar, the Tollway argued that the Tollway revoked plaintiff’s 

A15 approvals “in accordance with its broad, discretionary authority pursuant to Section 

10/32” and included with the motion to dismiss an affidavit from its chief engineer, Kovacs, 

averring that he ordered the revocation of plaintiff’s A15 approvals after conducting an 

investigation into the fatal incident that occurred April 5, 2016, and found that it did not follow 

its filed plan in the demolition process and caused numerous OSHA violations. As such, the 

burden was shifted to plaintiff to show that the Tollway’s defense is unfounded. Plaintiff 

asserted in response both at trial and on appeal that the Tollway is required to cite an authority 

that proves that revocation of plaintiff’s A15 approvals was within the Tollway’s discretionary 

authority but does not cite any authority itself for this assertion. 

¶ 54 In the case at bar, plaintiff failed to carry its burden to establish that the Tollway’s defense 

was unfounded. In addition, plaintiff has not shown any evidence submitted to the Tollway 

that they were not responsible for the incident that killed one worker and injured three others. 

The evidence submitted shows that plaintiff deviated from their submitted and approved plan 

for the demolition and caused numerous OSHA violations. Our supreme court has said only 

that “[i]f, after considering the pleadings and affidavits, the trial judge finds that the plaintiff 

has failed to carry the shifted burden of going forward, the motion may be granted and the 

cause of action dismissed.” (Emphasis added.) Kedzie & 103rd Currency Exchange, Inc. v. 

Hodge, 156 Ill. 2d 112, 116 (1993). However, in this case, the question at hand is one of 

jurisdiction and plaintiff’s failure to demonstrate jurisdiction is fatal, and as a result, the section 

2-619 motion to dismiss should have been granted. 
No. 1-21-0158

24 

¶ 55 Since section 32 states that the trial court did not have jurisdiction to review the Tollway’s 

actions in exercise of its discretionary powers, we have no jurisdiction to review the trial 

court’s order. Accordingly, we vacate the order entered by the circuit court of Cook County on 

January 14, 2021, and dismiss this appeal in its entirety for lack of jurisdiction.

¶ 56 Appeal dismissed.
No. 1-21-0158

25 

2022 IL App (1st) 210158 

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-L-9102; 

the Hon. Daniel J. Kubasiak, Judge, presiding. 

Attorneys 

for 

Appellant: 

Arnold H. Landis, of Law Offices of Arnold H. Landis, P.C., of 

Chicago, for appellant. 

Attorneys 

for 

Appellee: 

Kwame Raoul, Attorney General of Chicago (Jane Elinor Notz, 

Solicitor General, and Evan Siegel, Assistant Attorney General, 

of counsel), for appellee.