FIRST DIVISION

									February 17, 2004

No. 1-02-2524

THE CITY OF CHICAGO, a Municipal

Corporation, 

	Plaintiff-Appellant,

	v.

LATRONICA ASPHALT and GRADING, INC., an

Illinois Corporation,

	Defendant-Appellee.		

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Appeal from the

Circuit Court of

Cook County

01 CH 14595

Hon. Gay-Lloyd Lott,

Judge Presiding.

		JUSTICE McBRIDE delivered the opinion of the court:

	Plaintiff-appellant, City of Chicago (City), filed a complaint

against defendant-appellee, Latronica Asphalt & Grading, Inc.

(Latronica), which sought damages in connection with the City's

cleanup of illegal waste disposed of on a lot in the City of

Chicago (the Site).  Latronica filed a motion to dismiss which

sought to strike the complaint on the ground that the alleged

dumping by Latronica occurred more than five years prior to the

filing of the complaint and the claim was therefore barred by the

statute of limitations.  The trial court subsequently denied the

City's motion to reconider.  The trial court granted Latronica's 

motion.  The City appeals from those rulings.

	We state the following background facts.  On September 4, 2001, the City filed a four-count complaint against Latronica which

alleged unpermitted disposal of waste (count I), statutory public

nuisance (count II), common law public nuisance (count III), and

recovery of costs (count IV).  Specifically, the complaint alleged that the City obtained ownership of the Site as of December 30,

1999, and that prior to that time, the Site was owned by a trust

and was operated by several individuals including John Christopher,

a federal government informant in "Operation Silver Shovel," a

public corruption investigation conducted by the United States

Attorney.  During the period of Christopher's ownership and

control, the Site was operated by  Marlboro, Inc., a company owned

by Christopher.  At no time was a permit ever issued by the City

making the Site a permitted dump site.  

	According to "load tickets" and "invoices" produced by

Marlboro, the complaint alleged, Latronica disposed of construction

debris and other waste on the Site "(including asphalt, concrete,

dirt, and mixed materials) from Latronica job sites during the

period of at least August 4, 1992, through at least September 2,

1993."  Over this period, the City alleged that Latronica disposed

of at least 2,498 cubic yards of construction debris and other

waste at the Site.  It further claimed that Latronica's disposal of

waste on the Site contributed to a massive buildup of illegal waste

there.

	The complaint alleged that the City had begun cleanup at the

Site which would require the removal of approximately 663,500 cubic

yards of waste at the estimated total cost of nearly $24 million. 

The City claimed that the illegal waste disposed of at the Site

constituted a common law and statutory public nuisance, and a

threat to the "public health, safety, welfare, and the environment."  In count I, the complaint specifically alleged that

"mounds of waste [from the Site] caused dust, dirt, and other

materials to become airborne and to spread to the nearby

community."  The City claimed that the illegal dumping by Latronica

violated section 11-4-1500 of the Chicago Municipal Code.  Chicago

Municipal Code § 11-4-1500 (amended January 12, 1995).  It further

claimed that it was entitled to recover the cleanup costs under the

cost recovery provision of the same code.  In sum, the City sought

total damages in the amount of $106,889 which represented

Latronica's portion of the City's cleanup expenditures.

	On January 18, 2002, Latronica filed an amended motion to

dismiss under sections 2-615 and 2-619 of the Illinois Code of

Civil Procedure.  735 ILCS 5/2-615, 2-619 (West 2000).  Latronica's basis for the section 2-619 motion was that the alleged dumping

occurred between August 4, 1992, through November 2, 1993, dates

that were more than five years prior to the filing of the City's

complaint on September 4, 2001, and the City's lawsuit was

therefore barred by the statute of limitations.

	On March 28, 2002, the trial court granted Latronica's amended

motion to dismiss based on the five-year limitations period set

forth in section 13-205 of the Illinois Code of Civil Procedure. 

735 ILCS 5/13-205 (West 2000).  The court found that section 13-205

"[did] not exclude" the City and that the claims were time barred

because the dumping ceased in 1993 and the complaint was not filed

until 2001.  Although, as noted above, Latronica also filed a motion to dismiss under section 2-615 of the Illinois Code of Civil

Procedure, the trial court did not address any of the arguments

raised in that motion.  735 ILCS 5/2-615 (West 2000).

	A motion to dismiss pursuant to section 2-619 is a method of disposing of issues of law and easily proved issues of fact at the

outset of the case.  Fox Associates, Inc. v. Robert Half International, Inc., 334 Ill. App. 3d 90, 93, 777 N.E.2d 603 (2002).  Well-pled facts in the complaint are admitted; however,

legal conclusions and facts unsupported by specific allegations are

not.  Fox Associates, 334 Ill. App. 3d at 93.  We review a trial court's granting of a section 2-619 motion to dismiss de novo.  Fox Associates, 334 Ill. App. 3d at 93.

	The five-year statute of limitations in section 13-205 of the

Illinois Code of Civil Procedure provides the following, in

relevant part:

			"Five year limitation. *** [A]ctions on

unwritten contracts, expressed or implied, or

on awards of arbitration, or to recover

damages for an injury done to property, real

or personal, or to recover the possession of

personal property or damages for the detention

or conversion thereto, and all civil actions

not otherwise provided for, shall be commenced

within 5 years next after the cause of action

accrued."  735 ILCS 5/13-205 (West 2000).

	Section 7-28-440(a) of the Chicago Municipal Code states, in

relevant part:

			"No person shall dump or deposit or cause

to be dumped or deposited on any lot or parcel

of real estate within the city any garbage,

ashes, refuse, trash, miscellaneous waste,

manure or other substance that may contain

disease germs or may be scattered by the wind,

or may decompose, or become filthy, noxious or

unhealthful, except at a sanitary landfill

site, liquid waste handling facility or

transfer station for which a permit has been

properly issued pursuant to the provisions of

chapter 11-4 of this code.  Such dumping

without a permit is hereby declared to be a

nuisance. Any person violating this provision

of this chapter will be fined not less than

$1,500.00 and not more than $2,500.00 *** In

addition to other penalties provided in this

section, any person who violates this section

shall be liable to the city for three times

the amount of all costs and expenses incurred

by the city in abating a nuisance." Chicago

Municipal Code §7-28-440(a)(amended July 29,

2003).

	Section 8-28-020 of the Chicago Municipal Code states, in

relevant part:

			"Any person who causes the city or its

agents to incur costs in order to provide

necessary services as the result of such

person's violation of any federal, state or

local law, or such person's failure to correct

conditions which violate any federal, state or

local law when such person was under a legal

duty to do so, shall be liable to the city for

those costs.  This liability shall be

collectible in the same manner as any other

personal liability."  Chicago Municipal Code

§8-28-020 (amended May 17, 2000).  

	Section 11-4-1500 of the Chicago Municipal Code states, in

relevant part:

			"No solid or liquid waste shall be

treated or disposed of within the city of

Chicago except in accordance with this

chapter. *** 

						* * *

			(e) A transfer station may accept waste

for sorting and/or consolidation and for

further transfer to a waste disposal,

treatment, or handling facility.

			No persons shall (1) cause or allow the

open dumping of any waste, (2) abandon or

dispose of any waste upon public property,

except in a sanitary landfill approved by the

Illinois Environmental Protection Agency and

the Commissioner, (3) dispose, treat, abandon

or transport any waste, except at a site or

facility which meets the requirements of the

Illinois Environmental Protection Act and

which is permitted pursuant to this chapter.

			Disposal or treatment of any waste

without a permit is hereby declared to be a

nuisance."  Chicago Municipal Code §11-4-1500

(amended January 12, 1995).

	Section 11-4-1600 of the Chicago Municipal Code states, in

relevant part:

			"Any person found in violation of the

provisions of Section 14-4-1400 through 11-4-

1590 inclusive shall be subject to a fine of

$500.00 for the first offense, $1,000.00 fine

for the second and each subsequent offense. 

Each day such violation shall continue shall

constitute separate and distinct offense." 

Chicago Municipal Code §11-4-1600 (1995).  

	Under the common law, "the statute of limitations may not be asserted against the State or its county or municipal subdivisions

as plaintiffs in actions involving 'public rights' [Citation]." 

City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill. 2d 457, 459, 451 N.E.2d 874 (1983).  This doctrine of governmental immunity

from statutes of limitation is supported "by the policy judgment

that the public should not suffer as a result of the negligence of

its officers and agents in failing to promptly assert causes of

action which belong to the public."  Board of Education of City of Chicago v. A, C, & S, Inc., 131 Ill. 2d 428, 472, 546 N.E.2d 580 (1989).  The doctrine emerges from the latin maxim "nullum tempus occurit regi" (hereinafter nullum tempus), which translates to "time does not run against the King."  Shelbyville, 96 Ill. 2d at 460.  

	Whether the immunity doctrine applies depends on:

		"[W]hether the right the governmental unit

seeks to assert 'is in fact a right belonging

to the general public, or whether it belongs

only to the government or to some small and

distinct subsection of the public at large.' 

[Citation.]  Courts should consider who would

benefit by the government's action and who

would lose by its inaction. [Citation.] Three

factors must be addressed when determining

whether a governmental entity is asserting a

public or private right: (1) the effect of the interest on the public; (2) the obligation of

the governmental entity to act on behalf of

the public; and (3) the extent to which public

funds must be expended. [Citations.]" People ex rel. Department of Labor v. Tri State

Tours, Inc., 342 Ill. App. 3d 842, 845, 795 N.E.2d 990, 993 (2003).

	However, when the entity is acting in a private capacity, its

claim may be subject to a limitations defense.  Tri State Tours, 342 Ill. App. 3d at 844-45, 795 N.E.2d at 993.  Further, "it is

well established that where a statute of limitations does

'expressly include the State, county, municipality, or other

governmental agencies,' common law governmental limitations

immunity will not bar a limitations defense predicated on that

statute. [Citations.]"  County of Du Page v. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d 143, 152-53, 485 N.E.2d 1076 (1985).

	In the instant case, section 13-205 does not expressly include

the state, county, municipality, or any other governmental agency

within its purview.  As a result, if the City is asserting a

"public right" in the instant action, the trial court's dismissal

order based on the limitations defense was improper.  If, however,

the City was acting in a private capacity, the statute of

limitations may be asserted against it.  Therefore, we must decide

whether the City's action asserts a "public right" or a private one. 

	The City claims that there are two reasons its action asserts

public rights: (1) the complaint is a public nuisance action which,

by definition, is predicated upon a public right; (2) even if the

claim were not properly pled as a nuisance action, the case

satisfies the three factors noted above for asserting a public

right.  In response, Latronica argues that the doctrine of nullum tempus does not apply because the allegations at issue involve municipal ordinance violations and a tort claim which do not

involve a public right.  Without citation to any authority,

Latronica also suggests that the issue before this court does not

involve the assertion of a public right because "[t]here [was] no

attempt by the [C]ity to plead specific facts to allege damage to

public property."  However, this assertion, without more, does not

resolve the issue and, in any event, the City was not required to

plead specific facts to allege damage to public property.  A common

law public nuisance is actionable even if the claim is premised on

a nuisance present on private property.  See Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 100-02, 767 N.E.2d 314 (2002)(privately owned site of coal tar gas plant); City of Chicago v. Cecola, 75 Ill. 2d 423, 427, 389 N.E.2d 526 (1979)(privately owned establishment for prostitution).

	In Young v. Bryco Arms, 327 Ill. App. 3d 948, 959, 765 N.E.2d 1 (2001), appeal allowed, 201 Ill. 2d 619, 786 N.E.2d 202 (2002), this court stated:

			"A sufficient pleading for a public

nuisance cause of action consists of facts

alleging a right common to the general public,

a transgression of those rights by the

defendant and resulting damages. [Citations.]

Pleading requirements are not strenuous

because common law public nuisance eludes

precise definition and depends on the peculiar

facts of each case."  Young, 327 Ill. App. 3d at 959. 

See also Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 661, 633 N.E.2d 985 (1994).

	In People ex rel. Burris v. C.J.R. Processing, Inc., 269 Ill. App. 3d 1013, 1019, 647 N.E.2d 1035 (1995), the court, citing

Village of Wilsonville v. SCA Services, Inc., 86 Ill. 2d 1, 21-22, 426 N.E.2d 824 (1981), defined a common law public nuisance as "an act or failure to act which injures the safety, health or morals of

the public; or which causes substantial public annoyance;

inconvenience or injury."  It further observed:

		"The Criminal Jurisprudence Act defines public

nuisances in pertinent part:

			'It is a public nuisance:

			1.  To cause or allow *** any offal,

filth, or noisome substance to be collected,

deposited or to remain in any place, to the prejudice of others.

						* * *

			8.  To *** use any building or other

place for the exercise of any trade,

employment or manufacture, which, by

occasioning noxious exhalations, offensive

smells or otherwise, is offensive or dangerous

to the health of individuals, or of the

public.' 740 ILCS 55/221(1), (8)(West 1992)." 

Burris, 269 Ill. App. 3d at 1019.

	In the instant case, the complaint, paragraph 7, alleged that Latronica disposed of "construction debris and other waste on the

Site (including asphalt, concrete, dirt, and mixed materials) from

Latronica job sites during the period of at least August 4, 1992,

through at least November 2, 1993."  Paragraph 7 further alleged

that during the time period, "Latronica disposed of at least 2,498

cubic yards of construction debris and other waste at the Site." 

In paragraph 10, the complaint stated that, "[d]ue to the illegal

waste that has been disposed of and allowed to remain on the Site,

the site constitutes a public nuisance and a threat to the public

health, safety and welfare and the environment."  

	In count I of the complaint, for unpermitted disposal of waste

in violation of section 11-4-1500 of the Municipal Code, paragraph

13 alleged: 

			"Latronica disposed of substantial amounts of waste on the site, including

asphalt, concrete, dirt, and demolition

debris.  Latronica's disposal of waste on the

site contributed to the creation of mounds of

waste spread over the 20-acre site.  The

mounds of waste caused dust, dirt, and other

materials to become airborne and to spread to

the nearby community." 

	In count II of the complaint, for statutory public nuisance in

violation of sections 11-4-1500 and 7-28-440 of the Municipal Code,

paragraph 23 alleged:

			"This count is brought seeking damages

*** necessary to abate the nuisance at the

Site, which Latronica contributed to creating

and maintaining by disposing of construction

debris and other waste at the Site, as well as

fines for violations of the Municipal Code."

	In count III of the complaint, for common law public nuisance,

paragraph 30 alleged that:

			"Latronica's illegal disposal of waste on

the Site has resulted in the creation of an

unreasonable and substantial annoyance,

inconvenience, and danger to the citizens of

Chicago in a variety of ways, including but

not limited to the following:

			A.	Waste disposed of on the Site becoming airborne and scattered onto

the public way and nearby

properties;

			B.	Waste disposed of on the Site may harbor rats or other vermin;

			C.	Waste disposed of on the site could migrate onto adjacent properties

through runoff from the site." 

	Finally, the complaint claimed that the conduct of Latronica

caused the City to expend money damages for the task of removing

the waste illegally disposed of at the Site.  We find not only are

these allegations sufficient to state common law and statutory

public nuisance causes of action, but we also conclude the complaint alleges sufficient facts predicated upon a public right.

Specifically, the allegations consist of facts asserting the effect

the interest has on the public, the obligation of the governmental

entity to act on behalf of the public, and the extent to which

public funds have been expended.  Tri State Tours, 342 Ill. App. 3d at 845.

	There is no question that the City's cleanup of the Site

affects the interests of the general public.  As noted by the City,

"by cleaning up the Site, the City is eliminating a blight to the

surrounding community, as well as potential health risks to those

who live, work, or travel in the city each day."  In A,C,& S, the supreme court held that the abatement of asbestos in public school

buildings amounted to a public right because of the health concern

involved.  A, C, & S, 131 Ill. 2d at 475-76.  Similarly, in this  case, the illegal dumping of waste could create a danger to the

public health.  The presence of debris and airborne toxins could

prove hazardous to the community.  Therefore, the City's cleanup of

the Site affects the interests of the public.

	Second, the City is authorized and obligated by law to clean

up the Site.  Section 7-28-020 of the Chicago Municipal Code

requires that whenever "any nuisance shall be found on any premises

within the city, the commissioner of buildings or commissioner of

the environment is hereby authorized *** to cause the same to be

summarily abated."  Chicago Municipal Code §7-28-020 (amended

December 11, 1991).  This section expressly grants the City authority to summarily abate any nuisance.  

	Several provisions in section 2-30-030 of the Chicago Municipal Code obligate the City to act on the public's behalf to

abate nuisances.  Section 2-30-030(1) states that the commissioner

of the environment shall have the duty to "supervise the execution

of and implement all laws, ordinances, rules and regulations

pertaining to environmental protection and control."  Chicago

Municipal Code §2-30-030(1) (amended May 14, 1997).  The

commissioner is further obliged to "institute necessary proceedings

to prosecute violations of Chapter 11-4 and to compel the

prevention and abatement of *** pollution, *** and nuisances arising therefrom."  Chicago Municipal Code §2-30-030(4) (amended

May 14, 1997).  Specifically, the commissioner, under section 2-30- 030(19), is required to "initiate proceedings to bring about the summary abatement of pollution sources which pose an imminent and

serious threat to public health and welfare of the people or which

constitute a public nuisance."  Chicago Municipal Code §2-30-

030(19) (amended May 14, 1997).  These sections impose a duty upon

the City to bring about the abatement of pollution sources which

pose an imminent danger to the public or which constitute a public

nuisance.  Because of Latronica's inaction, the City was obliged to act on behalf of the public and to clean up waste disposed of at

the Site.  Tri State Tours, 342 Ill. App. 3d at 845.

	Finally, there is no doubt that the City expended significant public revenues on cleanup costs at the Site.  Paragraph 9 of the

complaint stated that the estimated total cost of the clean up was

$24,000,000.  The complaint further alleged that more than $106,899

was attributable to the waste dumped by Latronica.  For the reasons

above, we conclude the complaint alleges sufficient facts

predicated upon a public right.

	Latronica contends that only a private right has been asserted  because the complaint involved the rights of the people of Chicago

and not all people of the state.  In support of its argument,

Latronica relies upon language in Chicago Park District v. Kenroy, Inc., 58 Ill. App. 3d 879, 889, 374 N.E.2d 670 (1978), rev'd in part, 78 Ill. 2d 555, 42 N.E.2d 181 (1980), which states: "As used in the present context, 'public rights' are those rights belonging

to all of the people of the State alike; 'private rights' are those

rights limited to some local subdivision or municipality, such as

a city or village. [Citations.]".  

	While we acknowledge this language, we follow the more recent

supreme court language in A, C, & S, which states, "the governmental body need not be asserting an interest affecting

everyone in the State in order for it to qualify as a public

right."  A, C, & S, 131 Ill. 2d at 474.  This position is supported by this court's recent reasoning in Young, cited above.  In Young, the court, relying upon section 821B of the Restatement (Second) of

Torts, stated, "it is not necessary that the entire community be

affected by a public nuisance, so long as the nuisance will

interfere with those who come in contact with it in the exercise of

a public right or it otherwise affects the interests of the

community at large."  Young, 327 Ill. App. 3d at 958-59, citing Restatement (Second) of Torts §821B, Comment G (1979).

	In count I, paragraph 13, the complaint alleged that "mounds

of waste caused dust, dirt, and other materials to become airborne

and to spread to the nearby community."   In count III, paragraph 

30 A, the complaint alleged that, among other things, Latronica's

illegal disposal of waste at the Site resulted in danger to the

citizens of Chicago, because "[w]aste disposed of on the Site

[became] airborne and scattered onto the public way and nearby

properties."  We find that these allegations satisfy the requirements set forth in Young and section 821B of the Restatement (Second) of Torts because they allege that the nuisance will

interfere with those who come in contact with it in the exercise of

a public right.      	

	Latronica also claims that because the City admitted in its

brief that it intended to convey the property to a developer, "the

right that the City is asserting is a private right and is subject

to the applicable statute of limitations."  In support of this

position, Latronica relies upon People v. Hale, 320 Ill. App. 645, 651 (1943), quoting Brown v. Trustees of Schools, 224 Ill. 184, 186, 79 N.E. 59 (1906), which held: " '[I]f the state becomes a

partner with individuals, or engages in business, it divests itself

of its sovereign character and is subject to the statute [of

limitations].' "  In the instant case, the "admission" by the City

specifically stated that "the City obtained ownership of the Site

in order to clean [it] up *** prior to conveying it to a developer

at no cost."  Beyond this statement in the City's brief, there are

no allegations in the complaint nor is there evidence in the record

that the City became a partner with individuals or engaged in any

business other than conveying the Site to a developer at no charge. 

As a result, we reject Latronica's argument that the statute of

limitations at issue applies to the City on this ground.

	Latronica also claims that nullum tempus does not apply under these facts because the Site has been 85% to 90% cleaned-up, thus

the City's contention that imminent danger of waste on the Site becoming airborne is no longer a threat.  In our view, whether the

Site was cleanedup is irrelevant to the question of whether the

City is afforded immunity from the statute of limitations. 

Latronica offers no authority in support of this argument and we

therefore reject it.  The failure to comply with Supreme Court Rule

341(e)(7)(Official Reports Advance Sheet No. 21 (October 17, 2001),

R. 341(e)(7), eff. Oct. 1, 2001) and provide the reviewing court

with relevant authority "waives an issue on appeal."  Roe v. Jewish Children's Bureau of Chicago, 339 Ill. App. 3d 119, 125, 790 N.E.2d 882 (2003).

	Latronica also asserts that the City's complaint does not

assert a public right because the alleged dumping occurred on

private property during the period of 1992 and 1993.  But as the

City points out, the City can bring a common law public nuisance

action based on improper waste disposal on private property.  See 

Village of Wilsonville, 86 Ill. 2d at 6. 

	Further, we are not persuaded by any of the authority relied

upon by Latronica in support of its argument that nullum tempus does not apply.  Latronica cites Namur v. Habitat Co., 294 Ill. App. 3d 1007 (1998), and City of Chicago v. Enright, 27 Ill. App. 559 (1888), for the proposition that statutes of limitations can

"be asserted against a municipality where it attempts to seek the

enforcement of a penalty or an ordinance violation."  We note that Namur is easily distinguishable because the plaintiff in that case was not a government plaintiff and nullum tempus applies only to  government plaintiffs.  Shelbyville, 96 Ill. 2d at 459.  As a result, Namur is inapposite.

	As the City points out, Enright involved an action against the defendants to enforce a $200 penalty imposed by an ordinance that

required the defendants, who were engaged in the business of

selling liquor, to obtain a license before doing so.  While the

case did involve the question of whether a statute of limitations

found in the criminal code applied, Enright did not involve an action for public nuisance or the nullum tempus doctrine.  Enright is not instructive here.

	Latronica also relies upon the following language in People ex rel. City of Chicago v. Commercial Union Fire Insurance Co., 332 Ill. 326, 331, 153 N.E. 488 (1926): "it is recognized that when

acting in a private capacity a municipality may be subject to the

lapse of time."  Based on this language, Latronica concludes that

the City  in the instant case is improperly attempting to assert a

local ordinance that does not create a public right.  In Commercial Union, however, the court also recognized the general rule that "[t]ime does not run against the People in respect to the exercise

of their governmental rights and powers."  Commercial Union, 322 Ill. at 331.  The court further concluded that the right to have

certain insurance premiums reported in that case "[was] a public right." (Emphasis added.)  Commercial Union, 322 Ill. at 333.  The decision in Commercial Union does not help Latronica either.

	Latronica additionally relies upon Ramsay v. County of Clinton, 92 Ill. 225 (1879).  In Ramsay, the court, with little reasoning, concluded that the statute of limitations applied

against the county in an action filed by it to recover certain

monies that were fraudulently obtained by the county clerk.  We

agree with the City that the more recent language set forth in       A, C, & S now applies.  That is, "the governmental body need not be asserting an interest affecting everyone in the State in order for

it to qualify as a public right."  A, C, & S, 131 Ill. 2d at 474.

	Finally, Latronica relies upon Graham, cited above.  Graham, however, is easily distinguishable from this case because the

statute of limitations in Graham expressly included governmental entities within its purview.  Graham, 109 Ill. 2d at 152.  As a result, the court found that the express language of the statute of

limitations in Graham abrogated governmental immunity.  Graham, 109 Ill. 2d at 153.  Graham is therefore distinguishable.  For the reasons above, we find that the right asserted here was a public

right and that the doctrine of nullum tempus applies.

	Latronica makes the additional argument that the City violated

the Illinois public policy against splitting claims by failing to

pursue its claims in one proceeding against all parties who

allegedly engaged in illegal dumping at the Site.  This argument is

not persuasive.  As made clear by the supreme court in Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 340, 665 N.E.2d 1199 (1996), "[t]he rule against claim splitting *** prohibits a plaintiff form

suing for part of a claim in one action and then suing for the remainder in another action."  Here, it is clear that the City has

brought all of its claims against Latronica in one lawsuit. 

Therefore, we reject this argument.

	Alternatively, Latronica argues that the doctrine of laches bars the City's claim.  Our supreme court has held that,

"[g]enerally, principles of laches are applied when a party's failure to timely assert a right has caused prejudice to the

adverse party.  [Citation.]  The two fundamental elements of laches are lack of due diligence by the party asserting the claim and

prejudice to the opposing party."  Van Milligan v. Board of Fire  & Police Commissioners of the Village of Glenview, 158 Ill. 2d 85, 89, 630 N.E.2d 830 (1994).  Latronica argues that these two

elements have been satisfied in the instant case.

	Nevertheless, "[i]ssues and arguments which were not presented

to or considered by the trial court cannot be raised for the first

time on review.  [Citation.]"  Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804 (1983); People v. Wells, 182 Ill. 2d 471, 490, 696 N.E.2d 303 (1998).  Because Latronica's laches argument was not presented to the trial court, it has been waived and we will not

address it here.  

	Finally, we will not address the merits of Latronica's section

2-615 motion because it was never addressed or even ruled on by the

trial court in reaching its decision.  See Williams v. Board of Education of the City of Chicago, 222 Ill. App. 3d 559, 565, 584 N.E.2d 257 (1991)(the appellate court did not consider the merits

of the defendant's section 2-615 motion to dismiss where the trial

court based its dismissal of plaintiff's complaint solely on the

statute of limitations defense raised in the defendant's section 2-

619 motion).  See also Canel & Hale, Ltd. v. Tobin, 304 Ill. App. 3d 906, 922, 710 N.E.2d 861 (1999) (the appellate court declined to

rule on the merits of defendant's section 2-619 motion to dismiss

because the trial court's dismissal ruling was limited to the

defendant's section 2-615 motion).

	For the reasons above, the trial court's order granting Latronica's section 2-619 motion to dismiss on statute of

limitations grounds is reversed.

	Reversed and remanded for further proceedings.

	GORDON snand McNULTY, JJ., concur.